UNITED STATES REPORTS VOLUME 328 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1945 From April 22, 1946 (Concluded) to and Including June 10, 1946 (End of Term) WALTER WYATT REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1947 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $3.00 (Buckram) Erratum.—315 U. S. 118, eleventh line from bottom, “is” should be “it”. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. HARLAN FISKE STONE, Chief Justice.1 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.1 2 WILEY RUTLEDGE, Associate Justice. HAROLD H. BURTON, Associate Justice. RETIRED CHARLES EVANS HUGHES, Chief Justice. JAMES CLARK McREYNOLDS, Associate Justice. TOM C. CLARK, Attorney General. J. HOWARD McGRATH, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. THOMAS ENNALLS WAGGAMAN, Marshal. 1 Mr. Chief Justice Stone was stricken on the bench on April 22, 1946, and passed away during the evening of the same day. See 327 U. S. p. v. Before he was stricken, he had delivered his dissenting opinions in Seas Shipping Co. v. Sieracki, post, pp. 85, 103, and Girouard v. United States, post, pp. 61, 70, but not the opinions of the Court in Heiser v. Woodruff, 327 U. S. 726; United States V. Rice, 327 U. S. 742; and Swanson v. Marra Bros., post, p. 1, which he had written and which were announced by Mr. Justice Black prior to the death of the Chief Justice. 2 Mr. Justice Jackson was absent from the bench throughout the October Term, 1945. in SUPREME COURT OF THE UNITED STATES. Allotment of Justices. It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the Circuits, agreeably to the Acts of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Felix Frankfurter, Associate Justice. For the Second Circuit, Stanley Reed, Associate Justice. For the Third Circuit, Harold H. Burton, 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. November 13, 1945. (For the next previous allotment, see 326 U. S. p. v.) IV TABLE OF CASES REPORTED Page A. B. Frank Co. v. United States................ 851 Administrator. See name of administrator; Price Administrator; Wage & Hour Administrator. Aetna Insurance Co. v. Hobbs.................... 822 Agnew, Board of Governors v..................... 825 Agnew, Federal Reserve Board v.................. 825 Agwilines, Inc. v. The San Veronico............. 835 A. J. Tower Co., Labor Board v.................. 827 Alker v. Federal Deposit Ins. Corp...... 877, 879, 881 Allright Auto Park v. Bowles.................... 859 Altoona, Nycum v................................ 877 American Indemnity Co. v. Hobbs................. 822 American Stevedores v. Porello.'................ 827 American Tobacco Co. v. United States........... 781 Anderson, Levers v............................. 866 Anderson v. Mt. Clemens Pottery Co.............. 680 Anderson, United States v....................... 699 Anderson v. Yungkau............................. 829 Andrews v. Ohio................................. 877 Angel & Co. v. United States.................... 835 A. P. W. Paper Co., Federal Trade Comm’n v...... 193 Arnold, Century Indemnity Co. v................. 854 Atlantic Coast Line R. Co., Moore v............. 866 Atlantic Coast Line R. Co., United States v..... 826 Attorney General of Fla. v. Bowles.............. 824 Audett v. United States......................... 872 Autocar Sales & Service Co. v. Leonard...... 878, 879 Badt v. U. S. ex rel. Reel...................... 817 Bailey v. Ragen................................. 851 Bailey v. Stoutamire............................ 824 Balli, Crandall v............................... 852 v VI TABLE OF CASES REPORTED. Page Balli, Hughes v.................................. 852 Balli, Texas v............................. 852, 880 Baltimore Brick Co., Johnson & Sons v............ 865 Baltimore & Ohio R. Co., Crozier v................ 871 Baltimore & Ohio R. Co., Hill v.................. 849 Baltimore & Ohio R. Co., Phillips v.............. 871 Baltimore & Ohio Terminal R. Co. v. Howard....... 867 Bankers Building, Bishop v..................... 859 Bank of America, Hays v.......................... 834 Bank of America, Porteous v..................... 834 Barnard v. Ragen................................. 877 Barnes v. Howard........................... 842 Barnes v. Philadelphia..................... 848 Beagle v. Ragen.............................851 Beaver County, Defense Plant Corp, v............. 817 Beaver County, Reconstruction Finance Corp, v.... 204 Beecher v. Federal Land Bank..................... 871 Beecher, Federal Land Bank v..................... 869 Benjamin, Prudential Insurance Co. v............. 408 Bennett, McMahan v............................... 878 Benson, Sheridan v............................... 822 Bertram v. United States......................... 834 Beshears v. Nierstheimer......................... 856 Bihn v. United States............................ 633 Birch Ranch & Oil Co. v. Commissioner............ 863 Bishop v. Bankers Building....................... 859 Bledsoe v. Johnston.............................. 872 Board of Education, Winding Gulf Collieries v.... 844 Board of Governors v. Agnew.......................825 Borrelli v. Illinois....................... 845, 881 Boston & Maine R. Co., Jesionowski v............. 830 Boust v. United States........................... 855 Bowen v. United States........................... 835 Bowles, Carothers v.............................. 859 Bowles, Schreffler v............................. 870 Bowles, Watson v................................. 824 Bowman, Roberts v............................. 873 TABLE OF CASES REPORTED. VII Page Boykin, McRae v................................. 844 Bradey v. United States......................... 880 Bremer v. United States......................... 834 Brooks v. St. Louis-San Francisco R. Co......... 867 Brown, In re.................................... 819 Brown & Sharpe Mfg. Co., Kar Co. v.............. 869 Bruno, United States v.......................... 828 Buchsbaum & Co., Federal Trade Comm’n v........ 818 Buckley v. New York............................. 861 Burke, O’Neil v............................. 879,880 Burton-Sutton Oil Co. v. Commissioner............ 25 Butz v. U. S. Postmaster General................ 821 Cable v. Walker................................. 860 California, Marley v.......................... 821 California, Marvich v....................... 841,879 California, Robertson v......................... 440 Canada, In re................................... 821 Canadian River Gas Co. v. Higgins............... 880 Carothers v. Bowles............................. 859 Carpenter v. Title Insurance Co................. 847 Carter v. Illinois.............................. 827 Carter, Jeskowitz v............................. 839 Causby, United States v......................... 256 Century Indemnity Co. v. Arnold................. 854 Chahoon v. Hickey............................... 843 Chase National Bank, St. Louis-S. F. R. Co. v... 868 Chenery Corp., Securities Comm’n v.............. 829 Chicago & Eastern Illinois R. Co., Cogswell v........ 820 Chicago Metallic Mfg. Co., Ratzinger Co. v...... 826 Chief Justice & Associates, Pope v.............. 825 City Bank Farmers Trust Co., R. F. C. v......... 495 City of. See name of city. Civil Service Comm’n, Oklahoma v................ 831 Clifton v. Schroeder Co......................... 858 Clifton, Schroeder Co. v........................ 858 Clouse v. Ragen................................. 375 Cogswell v. Chicago & Eastern Illinois R. Co.... 820 VIII TABLE OF CASES REPORTED. Page Colegrove v. Green............................. 549 Coleman Bros. Corp., Franklin v................ 844 Collector, Canadian River Gas Co. v............ 880 Collector, Chahoon v........................... 843 Collector, First National Benefit Society v.... 847 Collector of Internal Revenue. See Collector. Collins v. Porter............................... 46 Comet Carriers v. Walling...................... 819 Commanding General, U. S. ex rel. Goodman v...... 833 Commanding General, Uyeki v............... 825, 832 Commanding Officer, U. S. ex rel. Goodman v.... 873 Commanding Officer v. U. S. ex rel. Horowitz...830 Commanding Officer v. U. S. ex rel. Samuels.... 830 Commissioner, Birch Ranch & Oil Co. v.......... 863 Commissioner, Burton-Sutton Oil Co. v........... 25 Commissioner, Crane v.. 826 Commissioner, Du Vai v......................... 838 Commissioner, Gillespie v.................. 839,880 Commissioner, Hash v...................... 838,879 Commissioner, Klein v.......................... 869 Commissioner, Pressed Steel Car Co. v.......... 838 Commissioner, Rohmer v......................... 862 Commissioner, West v....................... 877,881 Commissioner of Housing & Bldgs., Queenside Co. v. 80 Commissioner of Insurance, Aetna Ins. Co. v.....822 Commissioner of Insurance, Amer. Indemnity Co. v. 822 Commissioner of Insurance, Pacific Mutual Co. v.... 822 Commissioner of Internal Rev. See Commissioner. Commissioner of Patents, Line Material Co. v...843 Continental Oil Co. v. United States............847 Cooper v. Jackson...............................845 Copeland v. United States.......................841 Corey v. New York...............................856 County of. See name of county. Court of Claims, Pope v.........................825 Coy v. United States............................841 Crampton v. Crampton Mfg. Co....................840 TABLE OF CASES REPORTED. IX Page Crandall v. Balli..».......................... 852 Crane v. Commissioner........................ 826 Crebs v. Hudspeth........................... 857 Crozier v. Baltimore & Ohio R. Co............. 871 Crum v. Hunter................................ 850 Cudahy Packing Co. v. United States........... 849 Cunard White Star, Ivusich v.................... 854 D. A. B. Recreational Resort v. United States.. 833 Dale v. Heinze................................ 819 D. A. Schulte, Inc. v. Gangi............... 108, 824 Davis v. Indiana.............................. 857 Davis v. United States........................ 582 De Belaval, Riera v........................ i... 837 Defense Plant Corp. v. Beaver County.......... 817 Dellar v. Samuel Goldwyn, Inc................ 878 Delta Mfg. Co., Essley Machinery Co. v............ 867 Denver & R. G. W. R. Co. v. R. F. C........... 867 Denver &R.G.W.R. Co., R.F.C.v................. 495 Denver & S. L. W. R. Co., R. F. C. v.......... 495 De Pasquale, Williams-Bauer Corp, v............. 836 Deputy Commissioner, Harbor Marine Co. v....... 837 Deputy Commissioner, Spencer & Son Corp, v..... 837 Diamond Steamship Corp., Stone v............... 853 Dicken, Porter v........................... 252, 827 Dickinson, United States v....................... 828 Dikis v. St. Louis-San Francisco R. Co........ 868 Dineen v. United States....................... 865 Director of Labor v. United States.............. 8 District Director of Immigration, Karpathiou v. 868 District Judge, Santa Fe Pacific R. Co. v........... 819 District Supervisor, Levers v................. 867 Dobry v. Olson................................ 817 Dodd, United States v......................... 303 Dodez v. United States........................ 828 Dominion of Canada, In re..................... 821 Dotson v. Texas............................... 850 Driscoll Co. v. United States................. 854 X TABLE OF CASES REPORTED. Page Duggan v. Olson............................... 820 Duncan v. Ragen............................... 875 Dure v. Glazebrook............................ 854 Durkin v. McDonnell........................... 872 Du Vai v. Commissioner........................ 838 Earnhardt v. United States................... 858 Eastern Air Lines v. Grace & Co............... 832 Eastern Transportation Co. v. Walling......... 836 Eastman v. United States...................... 852 Economic Stabilization Director, Watson v...... 824 E. C. Schroeder Co. v. Clifton................ 858 E. C. Schroeder Co., Clifton v................ 858 Edward Ratzinger Co. v. Chicago Metallic Co.... 826 El Dorado Oil Works v. United States........... 12 E. L. Essley Machinery Co. v. Delta Mfg. Co.... 867 11,000 Acres of Land v. United States......... 835 Ellis v. Missouri............................. 873 Epstein v. United States...................... 858 Erie R. Co., Trucco v......................... 843 Essley Machinery Co. v. Delta Mfg. Co......... 867 Estate of. See name of estate. Evans v. United States........................ 855 Farm Mortgage Corp., Jordan v.............. 821, 852 Farrell v. Massachusetts.......................879 Federal Crop Insurance Corp., Frier v......... 856 Federal Deposit Insurance Corp., Alker v.. 877, 879,881 Federal Farm Mortgage Corp., Jordan v...... 821,852 Federal Land Bank v, Beecher...................869 Federal Land Bank, Beecher v...................871 Federal Land Bank, Greene County Assn, v.......834 Federal Power Comm’n, First Iowa Coop, v... 152,879 Federal Reserve Board v. Agnew.................825 Federal Trade Comm’n v. A. P. W. Paper Co...... 193 Federal Trade Comm’n v. Buchsbaum & Co.........818 Federal Trade Comm’n, Hastings Mfg. Co. v...... 853 Federal Water & Gas Corp., Securities Comm’n v... ■ 829 Feeley v. Ragen................................862 TABLE OF CASES REPORTED. XI Page Fidelity Bankers Trust Co., Shaver v............. 878 Fifth Avenue Co. v. Finn......................... 838 Finn, 415 Fifth Ave. Co. v...................... 838 Finn, Meighan v.................................. 839 First Iowa Hydro-Electric Coop. v. Comm’n.... 152, 879 First National Benefit Society v. Stuart......... 847 Fisher v. United States.......................... 463 Fishgold v. Sullivan Drydock Corp................ 275 Fish, Inc. v. United States...................... 869 Florida, McKown v................................ 833 Florida, Pennekamp v............................. 331 415 Fifth Ave. Co. v. Finn....................... 838 Foxall v. Ragen.................................. 817 Franchise Tax Comm’r, West Publishing Co. v...... 823 Francis v. Resweber.............................. 833 Frank Co. v. United States....................... 851 Frankel, Heath v................................. 844 Franklin v. Coleman Bros. Corp.................... 844 Freeman, Hudock v . \. . 836 Friedman, Johnson & Sons v....................... 865 Friend v. Friend................................. 865 Frier v. Federal Crop Insurance Corp............. 856 Gangi, Schulte, Inc. v....................... 108, 824 Gardner v. New Jersey........................ 850, 876 Garrison v. Johnston............................. 840 Gaskill v. Roth.................................. 876 Gatewood v. Sanders............................. 848 Gause v. Ragen..........................■........ 847 General Mills, Steele v......................... 830 George F. Driscoll Co. v. United States......// 854 George F. Fish, Inc. v. United States........... 869 German-American Vocational League v. U. S........ 833 Gibbe v. United States........................... 834 Gilbert, Gulf Oil Corp, v........................ 830 Gilbert Storage & Transfer Co., Gulf Oil Corp, v..... 830 Gillespie v. Commissioner.................... 839, 880 Ginsburg v. Sachs............................ 859,881 XII TABLE OF CASES REPORTED. Page Girouard v. United States...................... 61 Glasser v. Rogers.............................. 839 Glazebrook, Dure v............................ 854 Goldblatt Bros. v. Walling.................... 854 Goldwyn, Inc., Dellar v....................... 878 Golson v. Illinois............................ 865 Goodman v. Hearn.............................. 833 Goodman v. Roberts............................ 873 Gora v. Hawaii................................ 862 Gordon v. Porter.............................. 858 Gordon v. United States......................... 8 Gosselin v. Kelley............................ 817 Gould v. United States........................ 848 Grace & Co., Eastern Air Lines v.............. 832 Grace & Co., Pan American Airways Corp, v........ 832 Grasso v. Lorentzen........................... 878 Great Lakes Dredge Co. v. United States....... 852 Greco v. Parker............................... 877 Green, Colegrove v........................... 549 Green v. Oklahoma............................. 870 Greene County Farm Loan Assn. v. Land Bank..... 834 Griffin v. Griffin............................ 876 Gulf Oil Corp. v. Gilbert.................... 830 Gustin v. Sun Life Assurance Co............... 866 Haden Co. v. Walling.......................... 866 Hall Co. v. United States..................... 818 Halliburton Oil Well Co., Walling v............... 828 Hampson v. Smith.............................. 850 Hancock v. Nierstheimer....................... 846 Harbor Marine Contracting Co. v. Lowe......... 837 Hare v. United States......................... 836 Harris v. United States....................... 832 Hartzberg v. New York Central R. Co........... 849 Hash v. Commissioner....................... 838, 879 Hastings Mfg. Co. v. Federal Trade Comm’n...... 853 Haupt v. United States........................ 831 Hawaii, Gora v................................ 862 TABLE OF CASES REPORTED. xm Page Hays v. Bank of America..................... 834 Hearn, U. S. ex rel. Goodman v............... i... 833 Heath v. Frankel............................ 844 Heine, United States v.......... 833 Heinze, Dale v.............................. 819 Heiser v. Woodruff.......................... 879 Helwig v. United States..................... 820 Herzig, Swift & Co. v............................ 849 Hiatt, Perlstein v.......................... 822 Hickey, Chahoon v........................... 843 Hickman v. Taylor........................... 876 Higgins, Canadian River Gas Co. v........... 880 Higley v. New York.......................... 861 Hill v. Baltimore & Ohio R. Co.............. 849 Hobbs, Aetna Insurance Co. v................ 822 Hobbs, American Indemnity Co. v............. 822 Hobbs, Pacific Mutual Ins. Co. v............ 822 Hobbs, Prudential Insurance Co. v........... 822 Hoboken Railroad, W. & S. C. Co., Smith v.... 123 Holderfield v. Illinois..................... 862 Holpuch Co., United States v................ 234 Home Owners’ Loan Corp., Sabin v........ 840, 880 Horowitz, Pearson v. 830 Howard, Baltimore & Ohio Terminal R. Co. v....... 867 Howard, Barnes v.............................. 842 Howard Hall Co. v. United States............ 818 Howey Co., Securities Comm’n v.................. 293 Howitt v. United States..................... 189 H. Reeve Angel & Co. v. United States....... 835 Hudock v. Freeman........................... 836 Hudspeth, Crebs v........................... 857 Hudspeth, Maxwell v......................... 841 Hughes v. Balli............................. 852 Hunter, Crum v................................ 850 Hunter, Mitchell v.......................... 860 Hust v. Moore-McCormack Lines............... 707 Illinois. See also Illinois ex rel. XIV TABLE OF CASES REPORTED. Page Illinois, Borrelli v............................. 845, 881 Illinois, Carter v................................... 827 Illinois, Golson v................................... 865 Illinois, Holderfield v.............................. 862 Illinois, Krushinski v............................... 851 Illinois, Moore v.................................... 842 Illinois, Paynes v................................... 846 Illinois, Phillips v................................. 857 Illinois, Reck v..................................... 841 Illinois, Robinson v................................. 874 Illinois, Tomanek v.................................. 846 Illinois, Vlahos v................................... 851 Illinois, Wells v.................................... 877 Illinois ex rei. Gordon v. United States............... 8 Illinois ex rei. Pusch v. Mulcahy.................... 865 Indemnity Insurance Co. v. Reisley................... 857 Indemnity Insurance Co. v. Smoot..................... 835 Indiana, Davis v..................................... 857 Indiana, Prudential Insurance Co. v.................. 823 In re. See name of party. Insurance Commissioner, Prudential Ins. Co. v.. 408, 822 Iowa-Wisconsin Bridge Co. v. Phoenix Corp............ 844 Iowa-Wisconsin Bridge Co., Phoenix Corp, v........... 844 “Italia”-Societa Di Navigazione v. United States.... 864 Ivusich v. Cunard White Star......................... 854 Jackson, Cooper v.................................... 845 Jackson, McLeod v.................................... 863 Jackson, Whitehead v................................. 861 James v. Ragen................................... 825, 874 Jesionowski v. Boston & Maine R. Co.................. 830 Jeskowitz v. Carter.................................. 839 J. Friedman Co., Johnson & Sons v.................... 865 J. Lentin Lumber Co. v. Porter....................... 877 J. & L. Hartzberg v. New York Central R. Co.......... 849 John A. Johnson & Sons v. Baltimore Brick Co....... 865 John A. Johnson & Sons v. Friedman................... 865 John A. Johnson & Sons v. United States.............. 865 TABLE OF CASES REPORTED. xv Page Johnson & Sons v. Baltimore Brick Co........... 865 Johnson & Sons v. Friedman..................... 865 Johnson & Sons v. United States................ 865 Johnston, Bledsoe v............................ 872 Johnston, Garrison v........................... 840 Johnston, Wilson v............................. 872 Jones v. Welch................................. 820 Jordan v. Federal Farm Mortgage Corp....... 821, 852 Jordan, U. S. ex rel. Karpathiou v............. 868 Joseph A. Holpuch Co., United States v......... 234 Joyce v. United States......................... 860 Julian v. New York............................. 861 Kajatek v. New York............................ 857 Kar Engineering Co. v. Brown & Sharpe Co........ 869 Karpathiou v. Jordan........................... 868 Katzinger Co. v. Chicago Metallic Mfg. Co....... 826 Kelley, Gosselin v............................. 817 Kenyon Bearing Co., Metallizing Co. v...... 840, 881 Klein v. Commissioner.......................... 869 Knauer v. United States........................ 654 Knight v. Ohio................................. 878 Knudsen v. Stegman......................... 848, 881 Koehn v. United States......................... 834 Kotteakos v. United States..................... 750 Krug v. Santa Fe Pacific R. Co................. 832 Kruse v. Ragen................................. 874 Krushinski v. Illinois......................... 851 Labor Board v. Tower Co........................ 827 Labor Board, West Kentucky Coal Co. v.......... 866 Landreth v. Wabash R. Co...................... 855 La Placa v. New York........................... 874 La Ravearl v. Ragen............................ 874 Lebedis v. Ragen............................... 847 Lee, Porter v............................. 246, 826 Lentin v. Porter............................... 877 Leonard, Autocar Sales Co. v............... 878, 879 Leslie v. New York............................. 861 XVI TABLE OF CASES REPORTED. Page Lesser v. New York............................ 845 Levers v. Anderson............................. 866 Lewis v. Parker................................ 851 Libbey-Owens-Ford Glass Co., Sylvania Corp. v.... 859 Lieberman v. United States..................... 869 Lieblein v. United States...................... 834 Liggett & Myers Tobacco Co. v. United States.. 781, 824 Line Material Co. v. Ooms...................... 843 Ling, Santa Fe Pacific R. Co. v................ 819 Loftus v. Ragen................................ 846 Longtin v. Nierstheimer........................ 875 Loomis v. United States........................ 864 Lorentzen, Grasso v. 878 Lorenzo v. United States....................... 863 Los Angeles Soap Co. v. United States.......... 848 Louisiana ex rel. Francis v. Resweber.......... 833 Lovett, United States v............... i.......... 303 Lowe, Harbor Marine Contracting Co. v.......... 837 Lowe, Spencer & Son Corp, v.................... 837 Lynch v. New Jersey............................ 820 Malbin v. United States........................ 869 Mancione v. Ragen.......................... 825, 875 Maresca & Co. v. United States................. 864 Mariano Maresca & Co. v. United States......... 864 Marin County v. Pedrotti....................... 853 Marley v. California........................... 821 Marr v. Ragen.................................. 861 Marra Bros., Swanson v........................... 1 Marvich v. California...................... 841, 879 Massachusetts, Farrell v....................... 879 Maxwell v. Hudspeth............................ 841 Maxwell v. Neibarger........................... 842 McCann v. Mulcahy.............................. 875 McColgan, West Publishing Co. v................. 823 McDonnell, U. S. ex rel. Durkin v................. 872 McIntosh v. Wiggins............................ 839 McKown v. Florida.............................. 833 TABLE OF CASES REPORTED. XVII Page McLeod v. Jackson.............................. 863 McMahan v. Bennett............................. 878 McRae v. Boykin................................ 844 Medley v. United States........................ 873 Meighan v. Finn................................ 839 Mejia v. United States......................... 862 Mercado Riera v. De Belaval.................... 837 Metallizing Engineering Co. v. Kenyon Co... 840, 881 Michalowski v. Ragen........................... 875 Mills v. Ragen................................. 846 Minor v. Ragen................................. 846 Missouri, Ellis v.............................. 873 Missouri, Sanford v......................... 873 Mitchell v. Hunter............................. 860 Moffitt v. United States....................... 853 Moore v. Atlantic Coast Line R. Co............. 866 Moore v. Illinois.............................. 842 Moore-McCormack Lines, Hust v.................. 707 Morgan v. Parker............................ 842, 880 Morgan v. Virginia............................ 373 Mt. Clemens Pottery Co., Anderson v............ 680 Mulcahy, Illinois ex rei. Pusch v.............. 865 Mulcahy, McCann v.............................. 875 Murphy v. Murphy............................... 872 National Labor Relations Board. See Labor Board. National Trust & Savings Assn., Hays v......... 834 National Trust & Savings Assn., Porteous v....... 834 Neibarger, Maxwell v........................... 842 Nevada, Skaug v................................ 841 New Jersey, Gardner v...................... 850, 876 New Jersey, Lynch v............................ 820 New York, Buckley v............................ 861 New York, Corey v.............................. 856 New York, Higley v.......................... 861 New York, Julian v............................. 861 New York, Kajatek v............................ 857 New York, La Placa v........................... 874 717466 O—47-2 XVIII TABLE OF CASES REPORTED. Page New York, Leslie v............................... 861 New York, Lesser v.......................... 845 New Y ork, Renninger v. 861 New York, Rubin v............................. 851 New York, Spencer v. 850 New York, United States v. 824 New York Central R. Co., Hartzberg v............. 849 New York Life Ins. Co., Toucey v............ 857, 881 Nicholsen, Povich v.............................. 819 Nierstheimer, Beshears v....................... 856 Nierstheimer, Hancock v........................ 846 Nierstheimer, Longtin v........................ 875 Nierstheimer, Nowak v........................ 819,845 Nierstheimer, Woods v.. 211 Nolan v. United States........................... 856 Norris v. United States.......................... 850 Nowak v. Nierstheimer....................... 819, 845 Nycum v. Altoona................................. 877 Ohio, Andrews v.................................. 877 Ohio, Knight v................................... 878 Oklahoma, Green v................................ 870 Oklahoma v. U. S. Civil Service Comm’n........... 831 Olson, Dobry v................................... 817 Olson, Duggan v.................................. 820 O’Neil v. Burke.............................. 879,880 Ooms, Line Material Co. v........................ 843 Pacific Mutual Life Ins. Co. v. Hobbs............ 822 Pan American Airways Corp. v. Grace & Co.......... 832 Parker, Greco v.................................. 877 Parker, Lewis v.................................. 851 Parker, Morgan v............................. 842 880 Parker v. Porter................................. 828 Paynes v. Illinois............................... 846 Pearson v. U. S. ex rei. Horowitz................ 830 Pearson v. U. S. ex rei. Samuels................. 830 Pedrotti, Marin County v.......... i............. 853 Pennekamp v. Florida............................. 331 TABLE OF CASES REPORTED. XIX Page Pennsylvania, Sykes v......................... 847, 880 Perlstein v. Hiatt................................ 822 Philadelphia, Barnes v............................ 848 Phillips v. Baltimore & Ohio R. Co................ 871 Phillips v. Illinois.............................. 857 Phillips v. Ragen................................. 857 Phillips v. Securities & Exchange Comm’n.......... 860 Phoenix Finance Corp. v. Bridge Co................ 844 Phoenix Finance Corp., Bridge Co. v............... 844 Piccard v. Sperry Corp............................ 845 Pinkerton v. United States........................ 640 Pittman v. United States.......................... 843 Pittsburgh Steamship Co., Rymarkiewicz v........... 858 Pope v. Chief Justice & Associates................ 825 Pope v. United States............................. 879 Porello, American Stevedores v.................... 827 Porteous v. Bank of America....................... 834 Porter, Collins v.................................. 46 Porter v. Dicken.............................. 252, 827 Porter, Gordon v.................................. 858 Porter v. Lee................................. 246, 826 Porter, Lentin v.................................. 877 Porter, Parker v.................................. 828 Porter, Safeway Stores v.......................... 863 Porter, Thomas Paper Stock Co. v................... 50 Porter, Utah Junk Co. v............................ 39 Porter v. Warner Holding Co....................... 395 Portland Tug & Barge Co. v. Columbia River Co.... 863 Post Commanding Officer v. U. S. ex rel. Horowitz... 830 Post Commanding Officer v. U. S. ex rel. Samuels.... 830 Postmaster General, Butz v........................ 821 Postmaster General, Cable v....................... 860 Povich v. Nicholsen............................... 819 Powell, United States v......................... 826 Power Commission, First Iowa Coop, v.......... 152, 879 Pressed Steel Car Co. v. Commissioner............. 838 Price v. Ragen.................................... 851 XX TABLE OF CASES REPORTED. Page Price Administrator, Carothers v............... 859 Price Administrator, Collins v.................. 46 Price Administrator v. Dicken.............. 252, 827 Price Administrator, Gordon v.................. 858 Price Administrator v. Lee................. 246, 826 Price Administrator, Lentin v.................. 877 Price Administrator, Parker v.................. 828 Price Administrator, Safeway Stores v.......... 863 Price Administrator, Schreffler v.................. 870 Price Administrator, Thomas Paper Stock Co. v... 50 Price Administrator, Utah Junk Co. v............ 39 Price Administrator v. Warner Holding Co........ 395 Prudential Insurance Co. v. Benjamin........... 408 Prudential Insurance Co. v. Hobbs.............. 822 Prudential Insurance Co. v. Indiana............ 823 Pusch v. Mulcahy............................... 865 Queenside Hills Realty Co. v. Saxl.............. 80 Ragen, Bailey v. 851 Ragen, Barnard v............................... 877 Ragen, Beagle v................................ 851 Ragen, Clouse v.............................i .. 875 Ragen, Duncan v................................ 875 Ragen, Feeley v................................ 862 Ragen, Gause v................................. 847 Ragen, James v................................ 874 Ragen, Kruse v................................. 874 Ragen, La Ravearl v. 874 Ragen, Lebedis v.. 847 Ragen, Loftus v................................ 846 Ragen, Mancione v.............................. 875 Ragen, Marr v.................................. 861 Ragen, Michalowski v.... . i..................... 875 Ragen, Mills v................................. 846 Ragen, Minor v................................. 846 Ragen, Phillips v.............................. 857 Ragen, Price v................................. 851 Ragen, Ray v................................... 874 TABLE OF CASES REPORTED. XXI Page Ragen, Resco v.................................. 824 Ragen, Scott v.................................. 846 Ragen, Stafford v............................... 846 Ragen, U. S. ex rel. Foxall v................. 817 Ragen, U. S. ex rel. James v.................... 825 Ragen, U. S. ex rel. Mancione v................... 825 Ragen, Van Horn v......................... 855, 856 Ray v. Ragen.................................... 874 Reck v. Illinois................................ 841 Reconstruction Finance Corp. v. Beaver County.... 204 Reconstruction Finance Corp. v. City Bank Co.....495 Reconstruction Finance Corp. v. D. & R. G. W. R... 495 Reconstruction Finance Corp., D. & R. G. W. R. v... 867 Reconstruction Finance Corp. v. D. & S. L. W. R.. 495 Reconstruction Finance Corp. v. Thompson......... 495 Reconstruction Finance Corp., Thompson v........ 867 Reel, Badt v.................................... 817 Refrigeration Patents Corp., In re.............. 822 Regenbogen v. United States..................... 750 Reisley, Indemnity Insurance Co. v.............. 857 Renninger v. New York........................... 861 Resco v. Ragen.................................. 824 Resweber, Louisiana ex rel. Francis v........... 833 Reynolds Tobacco Co. v. United States....... 781, 824 Richmond Screw Anchor Co. v. Walling............ 870 Riera v. De Beiaval............................. 837 R. J. Reynolds Tobacco Co. v. United States.... 781, 824 Roberts v. Bowman............................... 873 Roberts, U. S. ex rel. Goodman v................ 873 Robertson v. California......................... 440 Robinson v. Illinois............................ 874 Robinson v. United States....................... 878 Rogers, Glasser v............................... 839 Rohmer v. Commissioner... >..................... 862 Root Refining Co., Universal Oil Co. v.......... 575 Rosasco v. United States........................ 863 Roth, Gaskill v................................. 876 XXII TABLE OF CASES REPORTED. Page Rubin v. New York................................ 851 Rule v. Sears.................................... 843 Rusk v. United States............................ 875 Rymarkiewicz v. Pittsburgh Steamship Co.......... 858 Sabin v. Home Owners’ Loan Corp............ 840, 880 Sachs, Ginsburg v........................... 859, 881 Safeway Stores v. Porter......................... 863 St. Louis-San Francisco R. Co., Brooks v......... 867 St. Louis-San Francisco R. Co. v. Chase Bank..... 868 St. Louis-San Francisco R. Co., Dikis v.......... 868 Samuel Goldwyn, Inc., Dellar v. 878 Samuels, Pearson v............................. 830 Sanders, Gatewood v. 848 Sanford v. Missouri.............................. 873 Sanford, Strewl v................................ 871 Santa Fe Pacific R. Co., Krug v................... 832 Santa Fe Pacific R. Co. v. Ling.................. 819 San Veronico, The, Agwilines v. 835 Saunders v. Wilkins.............................. 870 Saxl, Queenside Hills Realty Co. v80 S. Buchsbaum & Co., Federal Trade Comm’n v....... 818 Schmidt v. United States......................... 834 Schreffler v. Bowles............................. 870 Schreffler Steel & Supply Co. v. Bowles.......... 870 Schroeder v. United States....................... 833 Schroeder Co. v. Clifton......................... 858 Schroeder Co., Clifton v......................... 858 Schulte, Inc. v. Gangi...................... 108, 824 Scott v. Ragen................................... 846 Sears, Rule v.................................... 843 Seas Shipping Co. v. Sieracki................ 85, 878 Secretary of Banking, Hudock v................... 836 Secretary of the Interior v. Santa Fe P. R. Co... 832 Securities & Exchange Comm’n v. Chenery Corp.... 829 Securities & Exchange Comm’n v. Fed. Water Corp.. 829 Securities & Exchange Comm’n v. Howey Co......... 293 Securities & Exchange Comm’n, Phillips v......... 860 TABLE OF CASES REPORTED. XXIII Page Shaver v. Fidelity Bankers Trust Co............. 878 Sheehy, Skaug v................................. 841 Sheridan v. Benson.............................. 822 Sheridan, United States v...................... 829 Shew v. United States........................... 870 Siegel v. United States......................... 868 Sieracki, Seas Shipping Co. v................ 85, 878 Skaug v. Nevada................................. 841 Skaug v. Sheehy................................. 841 Small v. United States.......................... 838 Small v. Webster................................ 873 Smith, Hampson v................................ 850 Smith v. Hoboken Railroad, W. & S. C. Co........ 123 Smoot, Indemnity Insurance Co. v............... 835 Snyder v. United States......................... 871 Societa Anonima Cooperativa v. United States..... 864 Southern Pacific Co., Thiel v.........:......... 217 Spaulding v. United States.. .*................. 856 Spencer v. New York............................. 850 Spencer & Son Corp. v. Lowe..................... 837 Sperry Corp., Piccard v.......................... 845 Stafford v. Ragen............................... 846 Stassi v. United States..................... 842, 880 State of. See name of State. Steele v. General Mills......................... 830 Stegman, Knudsen v........ 848 881 Stein v. United States.......................... 834 Stone v. Diamond Steamship Corp................. 853 Stone Towing Line v. Diamond Steamship Corp.... 853 Stoutamire, Bailey v............................ 824 Strewl v. Sanford............................... 871 Stuart, First National Benefit Society v........ 847 Styer, Uyeki v.............................. 825,832 Sullivan Drydock & Repair Corp., Fishgold v...... 275 Sun Life Assurance Co., Gustin v................ 866 Superintendent of Insurance v. United States..... 865 Swanson v. Marra Bros............................. 1 XXIV TABLE OF CASES REPORTED. Page Swift & Co. v. Herzig.......................... 849 Sykes v. Pennsylvania...................... 847, 880 Sylvania Industrial Corp. v. Glass Co.......... 859 Taylor, Hickman v.............................. 876 Taylor & Anderson Towing Co., Hickman v........ 876 Texas v. Balli............................. 852, 880 Texas, Dotson v................................ 850 Texas Land & Mortgage Co., Wheat v............. 837 Texas Mexican R. Co., Thompson v............... 134 Thiel v. Southern Pacific Co................... 217 Thomas Paper Stock Co. v. Porter................ 50 Thompson v. Reconstruction Finance Corp......... 867 Thompson, Reconstruction Finance Corp, v........ 495 Thompson v. Texas Mexican R. Co................ 134 Thompson v. United States.................. 879, 881 Title Insurance & Trust Co., Carpenter v....... 847 Tomanek v. Illinois............................ 846 Toucey v. New York Life Ins. Co............ 857, 881 Tower Co., Labor Board v....................... 827 Trade Commission v. A. P. W. Paper Co.......... 193 Trade Commission v. Buchsbaum & Co............. 818 Trade Commission, Hastings Mfg. Co. v............ 853 Trailmobile Co. v. Whirls...................... 831 Trucco v. Erie R. Co........................... 843 United States. See also U. S. ex rel. United States, American Tobacco Co. v.......... 781 United States v. Anderson.......................’ 699 United States, Angel & Co. v................... 835 United States v. Atlantic Coast Line R. Co...... 826 United States, Audett v. .. 872 United States, Bertram v........................ 834 United States, Bihn v.......................... 633 United States, Boust v.......................... 855 United States, Bowen v. 835 United States, Bradey v......................... 880 United States, Bremer v.......................... 834 United States v. Bruno......................... 828 TABLE OF CASES REPORTED. XXV Page United States v. Causby......................... 256 United States, Continental Oil Co. v............ 847 United States, Copeland v....................... 841 United States, Coy v............................ 841 United States, Cudahy Packing Co. v............. 849 United States, D. A. B. Recreational Resort v... 833 United States, Davis v.......................... 582 United States v. Dickinson...................... 828 United States, Dineen v......................... 865 United States v. Dodd........................... 303 United States, Dodez v.......................... 828 United States, Driscoll Co. v................... 854 United States, Earnhardt v...................... 858 United States, Eastman v........................ 852 United States, El Dorado Oil Works v............. 12 United States, 11,000 Acres of Land v........... 835 United States, Epstein v......................... 858 United States, Evans v.......................... 855 United States, Fisher v......................... 463 United States, Fish, Inc. v..................... 869 United States, Frank Co. v...................... 851 United States, German-American League v......... 833 United States, Gibbe v.......................... 834 United States, Girouard v........................ 61 United States, Gordon v......................... 8 United States, Gould v.......................... 848 United States, Great Lakes Dredge Co. v......... 852 United States, Hall Co. v...................... 818 United States, Hare v........................... 836 United States, Harris v......................... 832 United States, Haupt v. 831 United States v. Heine.......................... 833 United States, Helwig v......................... 820 United States v. Holpuch Co..................... 234 United States, Howitt v......................... 189 United States, Illinois ex rei. Gordon v.......... 8 United States, "Italia’’-Società v.............. 864 XXVI TABLE OF CASES REPORTED. Page United States, Johnson & Sons v..................... 865 United States, Joyce v.............................. 860 United States, Knauer v............................. 654 United States, Koehn v.............................. 834 United States, Kotteakos v........................ 750 United States, Lieberman v....................... 869 United States, Lieblein v........................... 834 United States, Liggett & Myers Tobacco Co. v.. 781, 824 United States, Loomis v............................. 864 United States, Lorenzo v............................ 863 United States, Los Angeles Soap Co. v.. 848 United States v. Lovett............................. 303 United States, Malbin v............................. 869 United States, Maresca & Co. v...................... 864 United States, Medley v............................. 873 United States, Mejia v.............................. 862 United States, Moffitt v............................ 853 United States v. New York........................... 824 United States, Nolan v.......................... 856 United States, Norris v............................. 850 United States, Pinkerton v.......................... 640 United States, Pittman v............................ 843 United States, Pope v............................... 879 United States v. Powell............................. 826 United States, Regenbogen v......................... 750 United States, Reynolds Tobacco Co. v.......... 781, 824 United States, Robinson v........................... 878 United States, Rosasco v............................ 863 United States, Rusk v............................... 875 United States, Schmidt v............................ 834 United States, Schroeder v...:...................... 833 United States v. Sheridan........................... 829 United States, Shew v............................... 870 United States, Siegel v............................. 868 United States, Small v.............................. 838 United States, Snyder v............................. 871 United States, Societa Anonima v.................... 864 TABLE OF CASES REPORTED. XXVII Page United States, Spaulding v..................... 856 United States, Stassi v.................... 842, 880 United States, Stein v......................... 834 United States, Thompson v.................. 879, 881 United States v. Watson........................ 303 United States, Wilson v........................ 823 United States v. Withrow....................... 828 United States, Woodville v..................... 842 United States, Zap v........................... 624 U. S. Civil Service Comm’n, Oklahoma v........... 831 U. S. District Judge, Santa Fe P. R. Co. v..... 819 U. S. ex rel. Durkin v. McDonnell.............. 872 U. S. ex rel. Foxall v. Ragen.................. 817 U. S. ex rel. Goodman v. Hearn................. 833 U. S. ex rel. Goodman v. Roberts............... 873 U. S. ex rel. Horowitz, Pearson v.............. 830 U. S. ex rel. James v. Ragen................... 825 U. S. ex rel. Karpathiou v. Jordan............. 868 U. S. ex rel. Mancione v. Ragen.............. 825 U. S. ex rel. Reel, Badt v..................... 817 U. S. ex rel. Samuels, Pearson v............... 830 U. S. Postmaster General, Butz v............... 821 Universal Oil Products Co. v. Root Refining Co.. 575 Upper Columbia River Towing Co., Tug Co. v...... 863 Utah Junk Co. v. Porter......................... 39 Uyeki v. Styer............................. 825, 832 Van Horn v. Ragen.......................... 855, 856 Virginia, Morgan v............................. 373 Vlahos v. Illinois............................. 851 Wabash R. Co., Landreth v...................... 855 Wage & Hour Adm’r, Comet Carriers v............ 819 Wage & Hour Adm’r, Goldblatt Bros, v........... 854 Wage & Hour Adm’r, Haden Co. v................. 866 Wage & Hour Adm’r v. Halliburton Oil Well Co.... 828 Wage & Hour Adm’r, Richmond Anchor Co. v........ 870 Walker, Cable v................................ 860 Walling, Comet Carriers v....................... 819 XXVIII TABLE OF CASES REPORTED. Page Walling, Eastern Transportation Co. v.......... 836 Walling, Goldblatt Bros, v..................... 854 Walling, Haden Co. v........................... 866 Walling v. Halliburton Oil Well Co............. 828 Walling, Richmond Anchor Co. v.................. 870 Warner Holding Co., Porter v................... 395 War Shipping Administration, Bradey v.......... 880 Watson v. Bowles............................... 824 Watson, United States v......................... 303 W. D. Haden Co. v. Walling..................... 866 Webster, Small v............................... 873 Welch, Jones v................................. 820 Wells v. Illinois.............................. 877 West v. Commissioner....................... 877,881 West Kentucky Coal Co. v. Labor Board.......... 866 West Publishing Co. v. McColgan................ 823 Wheat v. Texas Land & Mortgage Co.............. 837 Whirls, Trailmobile Co. v...................... 831 Whitehead v. Jackson........................... 861 Wiggins, McIntosh v............................ 839 Wilkins, Saunders v............................ 870 Williams-Bauer Corp. v. De Pasquale............ 836 William Spencer & Son Corp. v. Lowe............ 837 Wilson v. Johnston............................. 872 Wilson v. United States........................ 823 Winding Gulf Collieries v. Board of Education... 844 Withrow, United States v....................... 828 W. J. Howey Co., Securities Comm’n v ±............ 293 Woodruff, Heiser v............................. 879 Woods v. Nierstheimer.......................... 211 Woodville v. United States..................... 842 W. R. Grace & Co., Eastern Air Lines v............. 832 W. R. Grace & Co., Pan American Airways Corp, v.. 832 Yungkau, Anderson v............................ 829 Zap v. United States........................... 624 TABLE OF CASES Cited in Opinions Page A. B. Kirschbaum Co. v. Walling, 316 U. S. 517 111, 118,122 Adams Mfg. Co. v. Stören, 304 U. S. 307 387,420,421 Adkins v. Children’s Hospi- tal, 261 U. S. 525 115 Admiral Peoples, The, 295 U. S. 649 4,7 A. F. of L. v. Watson, 327 U. S. 582 187,566 Agnello v. United States, 269 U. S. 20 612 A. Guckenheimer & Bros. Co. v. United States, 3 F. 2d 786 601 Aguilar v. Standard Oil Co., 318 U. S. 724 105 Alabama Power Co. v. Federal Power Comm’n, 317 U. S. 652; 75 U. S. App. D. C. 315 181 Alabama Power Co. v. Gulf Power Co., 283 F. 606 176 Alabama Power Co. v. Mc- Ninch, 94 F. 2d 601 181 Alabama State Federation of Labor v. McAdory, 325 U. S. 450 377 Alabama & Vicksburg R. Co. v. Morris, 103 Miss. 511 376 A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 415 Aldridge v. United States, 283 U. S. 308 490,757 Alexander v. Hillman, 296 U. S. 222 399 Alexander Sprunt & Son v. United States, 281 U. S. 249 283 Page Alexandria, The City of, 17 F. 390 92,105 Algiere v. Cosmopolitan Shipping Co., 185 Mise. 271 714 Allen v. Trust Company of Georgia, 326 U. S. 630 302 Allgeyer v. Louisiana, 165 U. S. 578 416 Allis v. United States, 155 U. S. 117 192 Alton R. Co. v. United States, 315 U. S. 15 818 American Federation of Labor v. Watson, 327 U. S. 582 187,566 American Mfg. Co. v. St. Louis, 250 U. S. 459 420 American Steel & Wire Co. v. Speed, 192 U. S. 500 435 Amos v. United States, 255 U. S. 313 592,599,612 Andersen v. State, 43 Conn. 514 473 Anderson v. Compagnie Maritime Beige Society, 72 F. 2d 1008 88 Anderson v. Helvering, 310 U. S. 404 27,32,36 Anderson v. Louisville & Nashville R. Co., 62 F. 46 385 Andrade v. United States, 16 F. 2d 776 705 Apex Hosiery Co. v. Leader, 310 U. S. 469 69,76,810 Arizona, The, v. Anelich, 298 U.S. 110 3,91,94,104 Arizona Employers’ Liability Cases, 250 U. S. 400 348 XXIX XXX TABLE OF CASES CITED. Page Armour Packing Co. v. United States, 209 U. S. 56 703,705 Arwood v. United States, 134 F. 2d 1007 470 Ashcraft v. Tennessee, 322 U. S. 143 345,476 Ashton v. Cameron County District, 298 U. S. 513 433 Ashwander v. Tennessee Valley Authority, 297 U. S. 288 320,329,330 Aszman v. State, 123 Ind. 347 474 Atchison, T. & S. F. R. Co. v. Railroad Commission, 283 U. S.380 145 Atherton v. United States, 128 F. 2d 463 299 Atlantic Coast Line v. Georgia, 234 U. S. 280 378 Atlantic Coast Line v. North Carolina Corporation Comm’n, 206 U. S. 1 378 Atlantic Coast Line v. Whar- ton, 207 U. S. 328 379 Atlantic Co. v. Broughton, 146 F. 2d 480 111 Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 89, 94,95,97,98 Attorney-General v. Tonks, [1934] N. Z. L. R. 141 363 Bailey v. Central Vermont R. Co., 319 U. S. 350 820 Bain Peanut Co. v. Pinson, 282 U. S. 499 84 Baker v. Moore-McCor- mack Lines, 57 F. Supp. 207 714,739 Baker v. United States, 115 F. 2d 533 647 Baldwin, Ex parte, 291 U. S. 610 139,140 Baldwin v. Seelig, Inc., 294 U. S. 511 458 Ballard v. Consolidated Steel Corp., 61 F. Supp. 996 691 Baltimore & Susquehanna R. Co. v. Nesbit, 10 How. 395 322 Banghart v. United States, 148 F. 2d 521 644 Page Bankers Coal Co. v. Burnet, 287 U. S. 308 33 Bartell v. United States, 227 U. S. 427 780 Bast v. American-Hawaiian S. S. Co., 1945 A. M. C. 503 714 Baten’s Case, 9 Coke R. 53b 264 Baumgartner v. United . States, 322 U. S. 665 348, 657,659,675 Beach v. United States, 19 F. 2d 739 763 Beale v. United States, 71 F. 2d 737 74 Bell v. Hood, 327 U. S. 678 568 Bell v. State, 120 Ark. 530 474 Berger v. United States, 295 U. S. 78 756, 757,766,777,780 Best v. District of Colum- bia, 291 U. S. 411 490 Bethlehem Motors Corp. v. Flynt, 256 U. S. 421 411, 446 Bigelow v. RKO Radio Pictures, 327 U. S. 251 688 Billings v. Truesdell, 321 U. S. 542 66,704 Bingham’s Trust v. Com- missioner, 325 U. S. 365 38 Birbalas v. Cuneo Printing Industries, 140 F. 2d 826 116 Bishop v. United States, 71 App. D. C. 132 473,490 Blair v. United States, 99 Ct. Cis. 71 238 Block v. Hirsh, 256 U. S. 135 83 Blockburger v. United States, 284 U. S. 299 788 Blodgett v. Holden, 275 U. S. 142 329 Blue v. United States, 138 F. 2d 351 647 Board of Education v. Bar- nette, 319 U. S. 624 69, 335,346 Bolden v. United States, 63 App. D. C. 45 471 TABLE OF CASES CITED. XXXI Page Bollenbach v. United States, 326 U. S. 607 639,649, 757, 763, 764, 769, 776 Boone v. Lightner, 319 U. S. 561 285 Borden Co. v. Borella, 325 U. S. 679 118 Bostic v. United States, 68 App. D. C. 167 466 Boston Tow Boat Co. v. United States, 321 U. S. 632 281,283,292 Bowles v. Beatrice Cream- ery Co., 146 F. 2d 774 600 Bowles v. Curtiss Candy Co., 55 F. Supp. 527 601 Bowles v. Glick Bros. Lum- ber Co., 146 F. 2d 566 406, 600 Bowles v. Lee, 59 F. Supp. 639 248 Bowles v. Skaggs, 151 F. 2d 817 397,402 Bowles v. Stitzinger, 59 F. Supp. 94 601 Bowles v. Willingham, 321 U. S. 503 250,255 Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 424 Boyd v. United States, 116 U. S. 616 587, 590,606,612,616 Boyd v. United States, 271 U. S. 104 638 Bracey v. Luray, 138 F. 2d 8 121 Bradley v. Public Utilities Comm’n, 289 U. S. 92 458 Bradley Fertilizer Co. v. The Edwin I. Morrison, 153 U. S. 199 93,104 Brady v. Roosevelt S. S. Co., 317 U. S. 575 714, 717,722,736,745 Bram v. United States, 168 U. S. 532 765 Brasfield v. United States, 272 U. S. 448 468 Bratton v. Chandler, 260 U. S. 110 329 Braverman v. United States, 317 U. S. 49 642, 652,788 Page Bridges v. California, 314 U. S. 252 334,335, 336,342,346, 350,369,372 Bridges v. Wixon, 326 U. S. 135 659 Brooklyn Savings Bank v. O’Neil, 324 U. S. 697 111, 115,116 Brown v. Maryland, 12 Wheat. 419 435 Brown v. Mississippi, 297 U. S. 278 360 Brown v. Swann, 10 Pet. 497 398 Browne v. United States, 290 F. 870 611 Bruno v. United States, 308 U. S. 287 757, 760,761,765 Bryant v. Vestland, 52 F. 2d 1078 88 Bryant v. Zimmerman, 278 U. S. 63 84 Bullock v. United States, 74 App. D. C. 220 481,490 Burge v. United States, 26 App. D. C. 524 473 Burgess v. Salmon, 97 U. S. 381 316 Burnet v. Harmel, 287 U. S. 103 29,32,33 Burnham v. Beverly Airways, 311 Mass. 628 263 Burns v. State, 3 Ohio Dec. 122 483 Burton-Sutton Oil Co. v. Commissioner, 150 F. 2d 621 27,30 Busby v. Electric Utilities Union, 323 U. S. 72 476 Butler v. Frontier Telephone Co., 186 N. Y. 486 265 Buzynski v. Luckenbach S. S. Co., 277 U. S. 226 88 Byars v. United States, 273 U. S. 28 611,612 Calder v. Bull, 3 Dall. 386 322 California v. Thompson, 313 U. S. 109 420, 448,449,450 XXXII TABLE OF CASES CITED. Page Calmar S. S. Corp. v. Taylor, 303 U. S. 525 4, 5, 104 Cameron v. Bendix Aviation Corp., 65 F. Supp. 510 691 Cameron v. Civil Aeronautics Board, 140 F. 2d 482 258 Camp v. Boyd, 229 U. S. 530 398 Campbell v. New York, 186 Misc. 586 357 Carlisle Packing Co. v. Sandanger, 259 U. S. 255 88,93,95 Carlson v. California, 310 U. S. 106 335 Carmichael v. Southern Coal Co., 301 U. S. 495 433 Carrey v. Spencer, 36 N. Y. Supp. 886 385 Carroll v. Becker, 285 U. S. 380 551,568 Carroll v. United States, 267 U. S. 132 611 Carroll v. United States, 133 F. 2d 690 718 Carter v. McClaughry, 183 U. S. 365 643 Carter v. Texas, 177 U. S. 442 227 Carter v. Virginia, 321 U. S. 131 459 Case v. Bowles, 327 U. S. 92 376 Cassil v. United States Emergency Fleet Corp., 289 F. 774 88,106 Central New England R. Co. v. Boston & Albany R. Co., 279 U. S. 415 151 Chambers v. Florida, 309 U. S. 227 318,335,345,360 Champion v. Ames, 188 U. S. 321 434 Chapman v. Hoage, 296 U. S. 526 102 Chelentis v. Luckenbach S. S. Co., 247 U. S. 372 89 Cheng Wai v. United States, 125 F. 2d 915 612 Chicago & Alton R. Co. v. Tranbarger, 238 U. S. 67 457 Page Chicago, B. & Q. R. Co. y. Nebraska ex rel. Omaha, 170 U. S. 57 83,457 Chicago, B. & Q. R. Co. v. Wisconsin Railroad Comm’n, 237 U. S. 220 379 Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453 379 Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 283 Chiles v. Chesapeake & Ohio R. Co., 218 U. S. 71 377 Chiles v. Chesapeake & Ohio R. Co., 125 Ky. 299 385 City of. See also name of city. City of Alexandria, The, 17 F. 390 92,105 Claassen v. United States, 142 U. S. 140 642 Clarion River Power Co. v. Smith, 287 U. S. 639 ; 59 F. 2d 861 181 Clark v. Paul Gray, Inc., 306 U. S. 583 458 Clark v. Poor, 274 U. S. 554 458 Clark v. Smith, 13 Pet. 195 400 Clark Distilling Co. v. West- ern Maryland R. Co., 242 U.S. 311 389,424,433,438 Clarke’s Case, 301 Pa. 321 74 Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514 379 Cleveland Terminal & Valley R. Co. v. Cleveland Steamship Co., 208 U. S. 316 4,7 Clinton Bridge, The, 10 Wall. 454 424 Closson v. Morrison, 47 N. H. 482 609 Clune v. United States, 159 U. S. 590 643 C. M. Spring Drug Co. v. United States, 12 F. 2d 852 601 TABLE OF CASES CITED. XXXIII Page Cochran v. United States, 41 F. 2d 193 647 Codman v. Evans, 89 Mass. 431 264 Coleman v. Miller, 307 U. S. 433 568,572 Collins v. Bowles, 152 F. 2d 760 48 Compagnie Française De Navigation v. State Board of Health, 186 U. S. 380 459 Commissioner v. Felix Oil Co., 144 F. 2d 276 27,31 Commissioner v. Flowers, 326 U. S. 465 691 Commissioner v. Tower, 327 U. S. 280 209 Commonwealth v. Bamer, 199 Pa. 335 474 Commonwealth v. Cooper, 219 Mass. 1 474 Commonwealth v. Dana, 2 Met. 329 605 Commonwealth v. Gricus, 317 Mass. 403 478 Commonwealth v. Hollinger, 190 Pa. 155 474 Commonwealth v. Jones, 1 Leigh (Va.) 598 483 Commonwealth v. Scott, 14 Pa. D. & C. Rep. 191 474 Commonwealth v. Trippi, 268 Mass. 227 474 Commonwealth v. Wire-back, 190 Pa. 138 474 Conklin Pen Co. v. Bowles, 152 F. 2d 764 48 Conlon v. Hammond Shipping Co., 55 F. Supp. 635 714 Continental Assurance Co. v. Tennessee, 311 U. S. 5 438 Continental Illinois National Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648 127, 133,143,532 Cook County National Bank v. United States, 107 U. S. 445 11 Cooley v. Board of Wardens, 12 How. 299 377,431 717466 O—47--3 Page Cortes v. Baltimore Insular Line, 287 U. S. 367 89 Counselman v. Hitchcock, 142 U. S. 547 608 County of. See name of county. Craig, Ex parte, 282 F. 138 369,372 Craig v. Hecht, 263 U. S. 255 350,372 Cramer v. United States, 325 U. S. 1 676 Cravens v. United States, 62 F. 2d 261 628 Crawford v. United States, 212 U. S. 183 345 Cromwell v. Sac County, 94 U. S. 351 282 Crossman v. Lurman, 192 U. S. 189 459 Crowell v. Benson, 285 U. S. 22 330 Cudmore v. Bowles, 79 U. S. App. D. C. 255 600 Culver v. Bell & Loffland, 146 F. 2d 29 121 Cummings v. Missouri, 4 Wall. 277 315, 316,317,320,324,327 Cupo v. Isthmian S. S. Co., 56 F. Supp. 45 102 Currin v. Wallace, 306 U. S. 1 800 Dale v. California, 327 U. S. 809 819 Daly v. Madison County, 378 Ill. 357 567 Darby v. United States, 132 F. 2d 928 629 Davis v. Department of La- bor, 317 U. S. 249 99 Davis v. Schwartz, 155 U. S. 631 689 Davis v. United States, 328 U. S. 582 628, 630, 632 Davis v. Utah Territory, 151 U. S. 262 472 Davis v. Wechsler, 263 U. S. • 22 368 Debs v. United States, 249 U. S. 211 351 Dejarnette v. Common- wealth, 75 Va. 867 474, 483 XXXIV TABLE OF CASES CITED. Page Delta Air Corp. v. Kersey, 193 Ga. 862 263 Dent v. West Virginia, 129 U. S. 114 324 Denver & R. G. W. R. Co., In re, 150 F. 2d 35 515,520 Denver & R. G. W. R. Co., In re, 62 F. Supp. 384 501 Des Moines & Ft. Dodge R. Co. v. Wabash, St. L. & P. R. Co., 135 U. S. 576 140 Dexter Horton National Bank v. Hawkins, 190 F. 924 283 Diaz v. Gonzalez, 261 U. S. 102 186 Di Santo v. Pennsylvania, 273 U. S. 34 392 District of . Columbia v. Buckley, 128 F. 2d 17 653 District of Columbia v. Murphy, 314 U. S. 441 491 District of Columbia v. Pace, 320 U. S. 698 476 Dize v. Maddrix, 324 U. S. 697 114 Dize v. Maddrix, 144 F. 2dr 584 121 Dobson v. Commissioner, 320 U. S. 489 37 Dollar v. Caddo River Lumber Co., 43 F. Supp. 822 691 Donahue v. State, 165 Ind. 148 474 Donegan v. United States, 287 F. 641 611 Dooley v. United States, 183 U. S. 151 434 Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 345 Ducat v. Chicago, 10 Wall. 410 438 Duckworth v. Arkansas, 314 U. S. 390 420 Dumbell v. Roberts, 113 L. J. (K. B.) 185 611 Duncan v. Kahanamoku, 327 U. S. 304 317 Eastman Kodak Co. v. Southern Photo Co., 273 U. S. 359 688 Page Ecker v. Western Pacific R. Corp., 318 U. S. 448 131,504, 509,510,516,521,531 Edith Godden, The, 23 F. 43 90,92 Edwards v. California, 314 U. S. 160 376 Edwin I. Morrison, The, 153 U. S. 199 93,104 Eggleston v. Republic Steel Corp., 47 F. Supp. 658 739 El Dorado Oil Works v. United States, 328 U. S. 12 149,151 Elgin, J. & E. R. Co. v. United States, 253 F. 907 22 Emergency Fleet Corp. v. Lustgarten, 280 U. S. 320 745 Emergency Fleet Corp. v. Rosenberg Bros. & Co., 276 U. S. 202 720 Enterprise Box Co. v. Fleming, 125 F. 2d 897 121 Entick v. Carrington, 19 How. State Trials 1029 604 Erb v. Morasch, 177 U. S. 584 378 Estate of. See name of estate. Estep v. United States, 327 U. S. 114 704 Ex parte. See name of party. Falbo v. United States, 320 U. S. 549 704 Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591 187 Federal Power Coinm’n v. Natural Gas Pipeline Co., 315 U. S. 575 187 Federal Trade Comm’n v. Raladam Co., 283 U. S. 643 199 Federation of Labor v. Mc- Adory, 325 U. S. 450 377 Fergus v. Kenney, 333 Ill. 437 567 Fergus v. Marks, 321 Ill. 510 567 Ferris v. American South African Line, 1945 A. M. C. 1296 714 TABLE OF CASES CITED. XXXV Page Fidelity & Deposit Co. v. Tafoya, 270 U. S. 426 416 Finn v. Meighan, 325 U. S. 300 • 126,128,133 Fisher v. People, 23 Ill. 283 474 Fisher v. United States, 149 F. 2d 28 471 Fleming v. Enterprise Box Co., 37 F. Supp. 331 121 Fleming v. Montgomery Ward & Co., 114 F. 2d 384 600 Fleming v. Warshawsky & Co., 123 F. 2d 622 110 Fletcher v. Peck, 6 Cranch 87 316,324 Florez v. The Scotia, 35 F. 916 96 Foster v. State, 37 Ariz. 281 474 Fonts v. State, 8 Ohio St. 98 483 Fox v. Alcoa S. S. Co., 143 F. 2d 667 714 Frank v. Mangum, 237 U. S. 309 362 Frank and Willie, The, 45 F. 494 94,104 Freeman v. United States, 146 F. 2d 978 644 Freihage v. United States, 56 F. 2d 127 471 Frohwerk v. United States, 249 U. S. 204 351 Funk v. United States, 290 U. S. 371 476 Furlong v. United States, 10 F. 2d 492 612 Galban Lobo Co. v. Henderson, 132 F. 2d 150 43 Gambino v. United States, 275 U. S. 310 610 Gangi v. D. A. Schulte, Inc., 150 F. 2d 694 110,118 Gardiner v. Agwilines, Inc., 29 F. Supp. 348 739 Garland, Ex parte, 4 Wall. 333 315,316,327 Garrett v. Moore-McCormack Co., 317 U. S. 239 89, „ 113,716,739 Garske v. United States, 1 F. 2d 620 611 Page Gavieres v. United States, 220 U. S. 338 644 Gay v. Pope & Talbot, 183 Misc. 162 714 Gebardi v. United States, 287 U.S. 112 643,776 Gelfert v. National City Bank, 313 U. S. 221 509 General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422 23,147 General Trading Co. v. Tax Comm’n, 322 U. S. 335 376 George v. United States, 75 U. S. App. D. C. 197 471 Georgia v. Pennsylvania R. Co., 324 U. S. 439 79 Georgia Power Co. v. Federal Power Comm’n, 152 F. 2d 908 181 German Alliance Ins. Co. v. Kansas, 233 U. S. 389 416,447 German Alliance Ins. Co. v. Lewis, 233 U. S. 389 416,447 Germanic, The, 196 U. S. 589 348 Gerradin v. United Fruit Co., 60 F. 2d 927 715 Gibbons v. Ogden, 9 Wheat. 1 173,413,423,434 Gilbert Knapp, The, 37 F. 209 96 Gilchrist v. Interborough Co., 279 U. S. 159 185 Giles v. Harris, 189 U. S. 475 552,573 Gitlow v. New York, 268 U. S. 652 335 Gladson v. Minnesota, 166 U. S. 427 378 Glasser v. United States, 315 U. S. 60 220,225 Globe S. S. Co. v. Moss, 245 F. 54 94 Go-Bart Importing Co. v. United States, 282 U. S. 344 609,613 Godden, The Edith, 23 F. 43 90 Gouled v. United States, 255 U. S. 298 595, 602,603,607,612 Grasso v. Lorentzen, 149 F. 2d 127 102 XXXVI TABLE OF CASES CITED. Page Grau v. United States, 287 U. S. 124 613,633 Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 552 Great Northern R. Co. v. Merchants Elevator Co., 259 U. S.285 19 Green v. United States, 289 F. 236 611 Greif Bros. Cooperage Co. v. Mullinix, 264 F. 391 141 Grossman, Ex parte, 267 U. S. 87 356 Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523 127, 132,504,509, 516, 517, 521 Grubb v. Public Utilities Comm’n, 281 U. S. 470 283 Guckenheimer & Bros. Co. v. United States, 3 F. 2d 786 601 Guess v. Montague, 140 F. 2d 500 110 Guiteau’s Case, 10 F. 161 471 Gwin, White & Prince v. Henneford, 305 U. S. 434 377, 387,421 Haas v. Henkel, 216 U. S. 462 705 Hadacheck v. Sebastian, 239 U. S. 394 83 Hague v. C. I. O., 307 U. S. 496 574 Hale v. Bimco Trading Co., 306 U. S. 375 255,458 Hall v. DeCuir, 95 U. S. 485 383, 384, 385, 388, 393 Hall Co. v. United States, 315 U. S. 495 818 Hamilton v. Regents, 293 U.S.245 72 Hamilton v. United States, 26 App. D. C. 382 473 Hamilton v. United States, 268 F. 15 92 Hammer v. Dagenhart, 247 U. S. 251 415,434 Hancock Ins. Co. v. Bartels, 308 U. S. 180 509 Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 438 Harrington v. McCarthy, 169 Mass. 492 264 Page Hart v. State, 100 Md. 595 385 Hart v. United States, 76 U. S. App. D. C. 193 473 Hartford Accident & Indemnity Co. v. Nelson Co., 291 U. S. 352 447 Hartford Indemnity Co. v. Illinois, 298 U.S.155 448 Harvester Co. v. Department of Treasury, 322 U. S. 340 416 H. A. Scandrett, The, 87 F. 2d 708 92 Hatch v. Reardon, 204 U. S. 152 377 Hawk, Ex parte, 321 U. S. 114. 217 Hawker v. New York, 170 U. S. 189 324 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S.238 580,671 Hebert v. Louisiana, 272 U. S. 312 376 Hecht Co. v. Bowles, 321 U. S. 321 252,398,399 Heike v. United States, 227 U. S.131 643 Helvering v. Elbe Oil Land Co, 303 U. S. 372 30, 35, 36, 38 Helvering v. Hallock, 309 U. S. 106 69 Helvering v. Mountain Producers Corp, 303 U. S. 376 29 Helvering v. O’Donnell, 303 U. S.370 . 35 Helvering v. Twin Bell Syndicate, 293 U. S. 312 29,33,34 Helvering v. Winmill, 305 U. S. 79 76 Hempton v. State, 111 Wise. 127 474 Henderson v. Fleckinger, 136 F. 2d 381 251 Hendrick v. Maryland, 235 U. S. 610 . 458 Hennington v. Georgia, 163 U. S. 299 459 Herndon v. Chicago, R. I. & _ P.R. Co, 218 U.S. 135 379 Hill v. United States, 22 App. D. C. 395 473 TABLE OF CASES CITED. XXXVII Page Hills v. Leeds, 149 F. 878 737 Hinman v. Pacific Air Trans- port, 84 F. 2d 755 264 Hipolite Egg Co. v. United States, 220 U. S. 45 434 Hirabayashi v. United States, 320 U. S. 81 642 Hite v. Commonwealth, 96 Va. 489 483 Hogue v. State, 65 Tex. Cr. Rep. 539 474 Hoke v. United States, 227 U.S. 308 434 Holker v. Hennessey, 141 Mo. 527 609 Hollister v. Benedict Mfg. Co., 113 U. S. 59 267 Hooper v. California, 155 U. S. 648 412,445 Hoopeston Canning Co. v. Cullen, 318 U. S. 313 416, 445, 448, 455, 458, 461 Hooven & Allison Co. v. Evatt, 324 U. S. 652 335,420 Hopt v. People, 104 U. 8. 631 473,475, 484,491 Homing v. District of Co- lumbia, 254 U. S. 135 757, 762 Howard Hall Co. v. United States, 315 U. S. 495 818 Howell, The, 273 F. 513 88 H. P. Welch Co. v. New Hampshire, 306 U. S. 79 377 Hull v. Philadelphia & Read- ing R. Co., 252 U. S. 475 739 Humphrey’s Executor v. United States, 295 U. S. 602 328 Hurley v. Kincaid, 285 U. S. 95 267 Hutchinson v. Valdosta, 227 U. S. 303 83 Hyde v. United States, 225 U. S. 347 352,646 Illinois Central R. Co. v. Illinois, 163 U. S. 142 379, 380 In re. See name of party. Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523 127,132, 504, 509, 516, 517, 521 Page International Harvester Co. v. Department of Treas- ury, 322 U. S. 340 416 International Shoe Co. v. Shartel, 279 U. S. 429 412 International Shoe Co. v. Washington, 326 U. 8. 310 416, 433, 823 International Steve- doring Co. v. Haverty, 272 U. S. 50 3,4,97,106 Interstate Busses Corp. v. Blodgett, 276 U. S. 245 823 Interstate Commerce Comm’n v. Jersey City, 322 U. 8. 503 534 Ivanhoe Bldg. & Loan Assn. v. Orr, 295 U. S. 243 529 Jackson, Ex parte, 96 U. 8. 727 607 Jackson v. Commonwealth, 97 Va. 762 483 Jacobs v. Commonwealth, 121 Pa. 586 474 Jacob Siegel Co. v. Federal Trade Comm’n, 327 U. 8. 608 199,204 Jamison v. Encarnacion, 281 U. S. 635 101 J. D. Adams Mfg. Co. v. Stören, 304 U. 8. 307 387, 420, 421 Jeffries v. DeHart, 102 F. 765 88 Jerome v. United States, 318 U. 8. 101 209 Jewell Ridge Coal Corp. v. Local No. 6167, 325 U. 8. 161 692,696 Johannessen v. United States, 225 U. S. 227 673 John Hancock Ins. Co. v. Bartels, 308 U. S. 180 509 Johnson v. Emergency Fleet Corp., 280 U. 8. 320 716,741 Johnson v. United States, 62 F. 2d 32 647 Johnson & Co., v. Johansen, 86 F. 886 90 Jones v. Commonwealth, 75 Pa. 403 474 Joseph B. Thomas, The, 86 F. 658 96 XXXVIII TABLE OF CASES CITED. Page Julia Fowler, The, 49 F. 277 104 Kansas City Southern R. Co. v. Kaw Valley Dist., 233 U. S. 75 379,380 Kelly v. Washington, 302 U. S. 1 377 Kentucky v< Dennison, 24 How. 66 556 Kentucky Whip & Collar Co. v. Illinois Central R. Co., 229 U. S. 334 433 Kie v. United States, 27 F. 351 221 Kimmish v. Ball, 129 U. S. 217 459 Kinloch, In re, 53 F. Supp. 521 67 Kirby Petroleum Co. v. Commissioner, 326 U. S. 599 27, 29, 32, 33, 34, 35 Kirschbaum v. Walling, 316 U. S. 517 111, 118, 122 Klatt v. Guaranteed Bond Co., 213 Wis. 12 298 Knapp, The Gilbert, 37 F. 209 96 Knights of Pythias v. Withers, 177 U. S. 260 736 Koenig v. Flynn, 285 U. S. 375 551,568 Kotteakos v. United States, 328 U. S. 750 650 Kraus & Bros. v. United States, 327 U. S. 614 405 Kwaku Mensah v. Rex, [1946] A. C. 83 486,488 Kwong How v. United States, 71 F. 2d 71 611 Labor Board v. Hearst Publications, 322 U. S. Ill 714, 724 Labor Board v. Jones & Laughlin Steel Corp., 301 U. S.1 415 Labor Board v. Waterman S. S. Co., 309 U. S. 206 287 Lacassagne v. Chapuis, 144 U. S. 119 399 Lake Shore & Michigan Southern R. Co. v. Ohio, 173 U. S. 285 378 Lane v. Wilson, 307 U. S. 268 552, 571, 573 Page Laney v. United States, 294 F. 412 612 La Tourette v. McMaster, 248 U. S. 465 416 Laughter v. United States, 259 F. 94 611 Lavender v. Kum, 327 U. S. 645 820 Leachinsky v. Christie, [1946] 1 K. B. 124 610 Leary v. United States, 14 Wall. 607 734 Leighton v. People, 88 N. Y. 117 483 Leisy v. Hardin, 135 U. S. 100 424 Lincoln National Ins. Co. v. Read, 325 U. S. 673 411, 438 Lisansky v. United States, 31 F. 2d 846 629 Lisenba v. California, 314 U. S. 219 345 Lloyd v. Ramsay, 192 Iowa 103 186 Loonen v. Deitsch, 189 F. 487 200,202 Loughran v. Loughran, 292 U. S. 216 491 Louisiana Public Service Comm’n v. Texas & N. O. R. Co., 284 U. S. 125 435 Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467 145 Louisville, N. O. & T. R. Co. v. Mississippi, 133 U. S. 587 384 Luckenbach S. S. Co. v. Buzynski, 277 U. S. 226; 19 F. 2d 871 88 Lucks v. United States, 100 F. 2d 908 763 Luria v. United States, 231 U. S. 9 658, 671, 673,676 Lynch v. Alworth-Stephens Co., 267 U. S. 364 33 Lyons v. Oklahoma, 322 U. S. 596 765 Mabee v. White Plains Pub-lishing Co, 327 U. S. 178 290. Mackett v. United States, 90 F. 2d 462 647 Madden v. Brown, 8 App-Div. 454 591 TABLE OF CASES CITED. XXXIX Page Mahnich v. Southern S. S. Co., 321 U. S. 96 90, 91,93,94,104,106 Malinski v. New York, 324 U. S. 401 345,765 Mallow v. Hinde, 12 Wheat. 193 403 Mancini v. Director of Public Prosecutions, [1942] A. C. 1 488 Mangrum v. Commonwealth, 19 Ky. Law Rep. 94 474 Maricopa County v. Valley National Bank, 318 U. S. 357 206 Marlene Linens v. Bowles, 144 F. 2d 874 43 Marlin v. Cardillo, 95 F. 2d 112 102 Marron v. United States, 275 U. S. 192 609,612,632 Marsh v. United States, 29 F. 2d 172 610 Maryland, The State of 85 F. 2d 944 91 Massachusetts Mutual Life Ins. Co. v. United States, 288 U. S. 269 290 Matthews v. Correa, 135 F. 2d 534 611 Matthews v. Rodgers, 284 U.S. 521 565 Mattus v. United States, 11 F. 2d 503 612 Maurer v. Hamilton, 309 U. S. 598 378 Max Morris, The, 137 U. S. 1 94 Maynard v. United States, 23 F. 2d 141 611 McAffee v. United States, 70 App. D. C. 142 490 McAffee v. United States, 72 App. D. C. 60 474 McCahan Co. v. Stoffel, 41 F. 2d 651 88,106 McCandless v. United States, 298 U. S. 342 638 McCarroll v. Dixie Greyhound Lines, 309 U. S. 176 387 McCarthy v. Arndstein, 266 U. S. 34 608 Page McCormick v. Moore-Mc- Cormack Lines, 54 F. Supp. 399 714 McGoldrick v. Berwind- White Co., 309 U. S. 33 411, 412,420 McGuire v. United States, 273 U. S. 95 629,630 McHargue v. Commonwealth, 231 Ky. 82 473 McLean v. Denver & Rio Grande R. Co., 203 U. S. 38 458 McLeod v. Dilworth Co., 322 U. S. 327 420,446 McLeod v. Threlkeld, 319 U. S. 491 119 McNabb v. United States, 318 U. S. 332 225,476,650 M’Naghten’s Case, 10 Cl. & Fin. 200 466,477 McNulta v. Lochridge, 141 U. S. 327 138 McPherson v. Blacker, 146 U. S. 1 568 Mellon v. Goodyear, 277 U. S. 335 113 Memphis Natural Gas Co. v. Beeler, 315 U. S. 649 823 Mercier, The, 72 F. 2d 1008; 5 F. Supp. 511 88 Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 84 Meyer v. Metzler, 51 Cal. 142 264 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 345 Miller v. United States, 317 U. S. 192 820 Minneapolis & St. Louis R. Co. v. Peoria & P. U. R. Co., 270 U. S. 580 146 Minnesota Rate Cases, 230 U. S. 352 377 Minnie v. Port Huron Co., 295 U. S. 647 4,7 Mintz v. Baldwin, 289 U. S. 346 377,459 Mississippi v. Johnson, 4 Wall. 475 556 XL TABLE OF CASES CITED. Page Mississippi Railroad Comm’n v. Illinois Central R. Co., 203 U. S. 335 379 Missouri v. Ross, 299 U. S. 72 76 Missouri-K.-T. R. Co. v. Haber, 169 U. S. 613 459 Missouri, K. & T. R. Co. v. May, 194 U. S. 267 319 Missouri, K. & T. R. Co. v. Texas, 245 U. S. 484 380 Missouri Pacific R. Co. v. Kansas, 216 U. S. 262 378 Missouri Pacific R. Co. v. Norwood, 283 U. S. 249 379 Mitchell v. United States, 313 U. S. 80 192 Mobile, In re, 278 F. 949 612 Moore v. Stella, 52 Cal. App. 2d 766 298 Moran v. Bowley, 347 Ill. 148 567 Morgan v. Commonwealth, 184 Va. 24 374,376 Morris v. Duby, 274 U. S. 135 378 Morrison, The Edwin I., 153 U. S. 199 93,104 Mortensen v. United States, 322 U. S. 369 787 Moss v. Alaska Packers Assn., 160 P. 2d 224 714 Muise v. Gorton-Pew Ves- sels Co., 1938 A. M. C. 714 93 Murdock v. Pennsylvania, 319 U. S. 105 346 Murphy Oil Co. v. Burnet, 287 U. S. 299 29,33 Murray v. American Export Lines, 53 F. Supp. 861 714 Myers v. Bethlehem Corp., 303 U. S. 41 403 Myers v. United States, 272 U. S. 52 328,356 Nardone v. United States, 308 U. S. 338 598 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96 378,448 Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 552 Nathanson v. United States, 290 U. S. 41 633 Page National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71 416, 447 Neagle, In re, 135 U. S. 1 482 Near v. Minnesota, 283 U. S. 697 335,348,354 Neiswonger v. Goodyear Tire & Rubber Co., 35 F. 2d 761 270 Nelson v. Sears, Roebuck & Co., 312 U. S. 359 420 Neptuno, The, 30 F. 925 104 New Jersey v. Sargent, 269 U. S. 328 181,183 New Mexico ex rei. McLean v. Denver & Rio Grande R. Co., 203 U. S. 38 458 New York Central & H. R. R. Co. v. United States, 166 F. 267 705 New York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495 414 New York Life Ins. Co. v. Head, 234 U. S. 149 416 New York, N. H. & H. R. Co. v. New York, 165 U. S. 628 378 New York Trust Co. v. Eis- ner, 256 U. S. 345 323 New York Trust Co. v. Palmer, 101 F. 2d 1 529 Ng Fung Ho v. White, 259 U. S. 276 659 Nielsen, Ex parte, 131 U. S. 176 653 Nielsen, In re, 60 F. Supp. 240 78 Nielsen v. American Presi- dent Lines, 50 N. Y. S. 2d 249 714 Nippert v. Richmond, 327 U. S. 416 387, 411, 420, 446 Nixon v. Condon, 286 U. S. 73 569 Nixon v. Herndon, 273 U. S. 536 552,568,569,572,573 Nolan v. General Seafoods Corp., 112 F. 2d 515 739 Norland, The, 101 F. 2d 967 739 TABLE OF CASES CITED. XLI Page North American Co. v. Securities & Exchange Comm’n, 327 U. S. 686 434, 811 Northern Securities Co. v. United States, 193 U. S. 197 810 North Shore Corp. v. Barnett, 323 U. S. 679 114 Northwest Airlines v. Minnesota, 322 U. S. 292 173,420 North Whittier Heights Citrus Assn. v. Labor Board, 109 F. 2d 76 • 287 Norton v. Warner Co., 321 U. S. 565 8 Nudd v. Burrows, 91 U. S. 426 487 No. 34, The, 25 F. 2d 602 96 Nutting v. Massachusetts, 183 U. S. 553 445 O’Connor v. United States, 281 F. 396 612 O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. 8. 36 2, 4, 5, 8, 99 Ohio v. Brooks, 1 Ohio Dec. 407 483 Ohio v. Neil, Tappan (Ohio) 120 483 O’Keefe v. United States, 240 U. 8. 294 21 Oklahoma Press Publishing Co. v. Walling, 327 U. 8.186 587 Olmstead v. United States, 277 U. 8. 438 596, 607, 609 Olsen v. Nebraska, 313 U. 8. 236 82 Oregon-Washington R. & N. Co. v. Washington, 270 U. 8. 87 459 Osborn v. Ozlin, 310 U. 8. 53 416,447 Osceola, The, 189 U. 8. 158 4, 90,91,92,104 Otis & Co. v. Securities & Exchange Comm’n, 323 U. S'. 624 133 Overnight Motor Co. v. Missel, 316 U. 8. 572 HC Owens v. United States, 66 App. D. C. 104 471 Page Pacific Pine, The, 31 F. 2d 152 102 Pacific Telephone Co. v. Oregon, 223 U. S. 118 556 Palmer v. Bender, 287 U. S. 551 32,33 Palmer v. Connecticut R. Co., 311 U. S. 544 688 Palmer v. Massachusetts, 308 U. 8. 79 132,133 Palmer v. Palmer, 104 F. 2d 161 128 Panama Agencies Co. v. Franco, 111 F. 2d 263 89 Panama Mail S. 8. Co. v. Davis, 79 F. 2d 430 88 Panama R. Co. v. Johnson, 264 U. 8.375 3, 89,329,739 Panama R. Co. v. Vasquez, 271 U. S. 557 89 Paper v. United States, 53 F. 2d 184 629 Parashuram Detaram Sham-dasani v. King-Emperor, [1945] A. C. 264 359 Parker v. Brown, 317 U. 8. 341 392 Parker v. Richard, 250 U. 8. 235 433 Passer v. County Board, 171 Minn. 177 . 225 Patsone v. Pennsylvania, 232 U. 8.138 84 Paul v. Virginia, 8 Wall. 168 410, 412, 414, 423, 445 Paxton’s Case, Quincy (Mass.) 51 604 Pedersen v. Stockard 8. 8. Corp., 268 App. Div. 992 714 Penfield Co. v. 8. E. C., 143 F. 2d 746 299 Pennekamp v. State, 156 Fla. 227 367 Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 424 Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 424, 426, 435, 436 Pennsylvania Water & Power Co. v. Federal Power Comm’n, 315 U. S. 806; 74 App. D. C. 351 181 XLII TABLE OF CASES CITED. Page People v. Barberi, 149 N. Y. 256 483 People v. Blackwell, 342 Ill. 223 567 People v. Bradley, 391 Ill. 169 215 People v. Caruso, 246 N. Y. 437 481,485,486 People v. Chiagles, 237 N. Y. 193 609 People v. Clardy, 334 Ill. 160 567 People v. Conroy, 97 N. Y. 62 483 People v. Cordova, 14 Cal. 2d 308 474 People v. Crum, 272 N. Y. 348 478 People v. Fisher, 340 Ill. 250 215 People v. French, 12 Cal. 2d 720 474 People v. Green, 355 Ill. 468 217 People v. Hawkins, 109 N. Y. 408 483 People v. Majone, 91 N. Y. 211 483 People v. Marendi, 213 N. Y. 600 611 People v. McAnally, 221 Ill. 66 216 People v. Moran, 249 N. Y. 179 474 People v. Shurtleff, 355 Ill. 210 215 People v. Siman, 284 Ill. 28 215 People v. Tavormina, 257 N. Y. 84 643 People v. Thompson, 155 Ill. 451 567 People v. Thompson, 358 Ill. 81 215 People v. Troche, 206 Cal. 35 474 People v. White, 124 Cal. App. 548 298 People v. Zimmer, 252 Ill. 9 215 Perkins v. Elg, 307 U. S. 325 658 Perkins v. Pennsylvania, 314 U. S. 586 433 Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 400 Page Philadelphia Fire Assn. v. New York, 119 U. S. 110 438 Philpott v. Standard Oil (jo., 53 F. Supp. 833 693 Pierce Oil Corp. v. Hope, 248 U. S. 498 83 Pinkerton v. United States, 328 U. S. 640 789,815 Pinkerton v. United States, 145 F. 2d 252 652 Pittman v. Home Owners’ Loan Corp., 308 U. S. 21 206 Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U. S. 577 122 Plumley v. Massachusetts, 155 U. S. 461 459 Plymouth, The, 3 Wall. 20 4 Plymouth Coal Co. v. Penn- sylvania, 232 U. S. 531 83 Pointer v. United States, 151 U. S. 396 221 Polish National Alliance v. Labor Board, 322 U. S. 643 412 Porter v. Dicken, 328 U. S. 252 251 Porter v. Lee, 328 U. S. 246 253, 254,399 Portsmouth Harbor Land Co. v. United States, 260 U. S. 327 262, 265, 267, 270 Powell v. United States, 300 U. S. 276 145 Prohaska v. Hemmer-Miller Development Co., 256 Ill. App. 331 298 Providence Journal Co., In re, 28 R. I. 489 372 Prudential Insurance Co. v. Benjamin, 328 U. S. 408 443, 447, 461, 822, 823 Puget Sound Power & Light Co. v. Federal Power Comm’n, 78 U. S. App. D. C. 143 181 Pumpelly v. Green Bay Co., 13 Wall. 166 261 Purity Extract Co. v. Lynch, 226 U. S. 192 83 Queenside Hills Realty Co. v. Sari, 328 U. S. 80 457 Quercia v. United States, 289 U. S. 466 637 TABLE OF CASES CITED. XLIII Page Quinn v. Southgate Nelson Corp., 121 F. 2d 190 737 Quintana Petroleum Co. v. Commissioner, 143 F. 2d 588 30,31 Rahrer, In re, 140 U. S. 545 424, 433 Railroad Commission v. Los Angeles R. Co., 280 U. S. 145 185 Railroad Commission v. Pullman Co., 312 U. S. 496 187 Rainey v. New York & P. S. S. Co., 216 F. 449 93 Rasmussen v. Idaho, 181 U. S. 198 459 Rawlins v. Georgia, 201 U. S. 638 227,230 Reed v. Allen, 286 U. S. 191 490 Reed v. Canfield, Fed. Cas. No. 11,641 105 Reed v. United States, 11 Wall. 591 734,747 Regina v. Gray, [1900] 2 Q. B. 36 364 Regina v, Milner, 2 Car. & K. 305 705 Reid v. Colorado, 187 U. S. 137 434,459 Reifsnyder v. Lee, 44 Iowa 101 609 Reinman v. Little Rock, 237 U. S. 171 83 R. E. Schanzer, Inc. v. Bowles, 141 F. 2d 262 43 Rex v. Davies, [1945] 1 K. B. 435 358,359 Rex v. Hopper, [1915] 2 K. B. 431 488 Rex v. Parke, [1903] 2 K. B. 432 358 Richards v. Washington Ter- minal Co., 233 U. S. 546 262 Richardson v. Anthony, 12 Vt. 273 591 Rigopoulos v. Kervan, 140 F. 2d 506 112 Rivard v. Bijou Furniture Co., 67 R. I. 251; 68 R. I. 358 9 Robertson v. Baldwin, 165 U. S. 275 104 Page Robertson v. California, 328 U. S. 440 410, 417, 432, 822 Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84 739 Roche v. Evaporated Milk Assn., 319 U. S. 21 819 Rochester Telephone Corp. v. United States, 307 U. S. 125 18,19 Rodgers v. United States, 138 F. 2d 992 600 Rogers v. Commonwealth, 96 Ky. 24 474 Rolph, The, 299 F. 52 94 Rooker v. Fidelity Trust Co., 263 U. S. 413 283 Root Refining Co. v. Univer- sal Oil Products Co., 296 U. S. 626 576 Rumely v. McCarthy, 250 U. S. 283 705 Sabens v. United States, 40 App. D. C. 440 486,490 Sage v. State, 91 Ind. 141 474 St. John v. Brown, 38 F. Supp. 385 121 St. Louis Compress Co. v. Arkansas, 260 U. S. 346 416 St. Louis, I. M. & S. R. Co. v. Arkansas, 240 U. S. 518 379 St. Louis & San Francisco R. Co. v. Public Service Comm’n, 254 U. S. 535 380 St. Louis-San Francisco R. Co. v. Public Service Comm’n, 261 U. S. 369 380 St. Louis Southwestern R. Co. v. Alexander, 227 U. S. 218 416 St. Louis Southwestern R. Co. v. Arkansas, 217 U. S. 136 379 St. Pierre v. United States, 319 U. S. 41 48 Sana Laboratories, Inc., In re, 115 F. 2d 717 600,629 San Francisco Chronicle, In re, 1 Cal. 2d 630 372 Sawyer, In re, 59 F. Supp. 428 67 Sayers v. United States, 2 F. 2d 146 611 Schaefer v. United States, 251 U. S. 466 352,353 XLIV TABLE OF CASES CITED. Page Schaller v. Matson Navigation Co., 43 N. Y. S. 2d 566 714 Schanzer, Inc. v. Bowles, 141 F. 2d 262 43 Schechter Poultry Corp. v. United States, 295 U. S. 495 415 Schenck v. United States, 249 U. S. 47 335,351, 352 Schneiderman v. United States, 320 U. S. 118 69, 348, 657, 658, 668, 675, 678 Seaboard Air Line R. Co. v. Blackwell, 244 U. S. 310 379 Securities & Exchange Comm’n v. Bailey, 41 F. Supp. 647 299 Securities & Exchange Comm’n v. Bourbon Sales Corp., 47 F. Supp. 70 299 Securities & Exchange Comm’n v. Crude Oil Corp., 93 F. 2d 844 299 Securities & Exchange Comm’n v. Joiner Corp., 320 U. S. 344 299,301 Securities & Exchange Comm’n v. Payne, 35 F. Supp. 873 299 Securities & Exchange Comm’n v. Pyne, 33 F. Supp. 988 299 Securities & Exchange Comm’n v. Timetrust, Inc., 28 F. Supp. 34 299 Securities & Exchange Comm’n v. Universal Service Assn., 106 F. 2d 232 299 Securities & Exchange Comm’n v. Wickham, 12 F. Supp. 245,299 Seguranca, The, 58 F. 908 96 Selective Draft Law Cases, 245 U. S. 366 72 Sgro v. United States, 287 U. S. 206 613, 633 Shamdasani v. King-Emperor, [1945] A. C. 264 359 Shoemaker v. State, 12 Ohio 43 483 Page Siegel Co. v. Federal Trade Comm’n, 327 U. S. 608 199, 204 Silverthorne Lumber Co. v. United States, 251 U. S. 385 607,630 Sinclair v. United States, 279 U. S. 749 757 Sindram v. People, 88 N. Y. 196 474 Singer v. United States, 323 U. S. 338 815 Sinking-Fund Cases, 99 U. S. 700 322 Skidmore v. Swift & Co., 323 U. S. 134 290 Skinner v. Oklahoma, 316 U. S. 535 85 Sloan Shipyards Corp. v. Merchant Fleet Corp., 258 U. S. 549 717 Smiley v. Holm, 285 U. S. 355 551, 564, 565, 568, 573 Smith v. Alabama, 124 U. S. 465 378,448 Smith v. Hoboken Railroad, W. & S. C. Co., 328 U. S. 123 142,144 Smith v. New England Aircraft Co., 270 Mass. 511 263 Smith v. O’Grady, 312 U. S. 329 214 Smith v. St. Louis & S. W. R. Co., 181 U. S. 248 459 Smith v. State, 100 Tenn. 494 376 Smith v. Texas, 311 U. S. 128 220,227,571 Smith v. United States, 59 App. D. C. 144 466 Smith & Son v. Taylor, 276 U.S. 179 6,7,107 Sneed v. United States, 298 F. 911 644 Sneierson v. United States, 264 F. 268 76* Snow, In re, 120 U. S. 274 653 Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424 % 104,105 South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177 373> 420 TABLE OF CASES CITED. xlv Page South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 8,102,107 South Covington & Cincinnati R. Co. v. Covington, 235 U. S. 537 379,385 South Covington & Cincinnati R. Co. v. Kentucky, 252 U. S. 399 385 South Covington & Cincinnati Street R. Co. v. Commonwealth, 181 Ky. 449 385 Southern Pacific Co. v. Arizona, 325 U. S. 761 377, 379, 380, 387, 391, 392, 393, 420, 421, 422. Southern Pacific Co. v. Jensen, 244 U. S. 205 99 Southern R. Co. v. King, 217 U. S. 524 379 Southern R. Co. v. Norton, 112 Miss. 302 376 Spector Motor Co. v. Mc- Laughlin, 323 U. S. 101 187 Spencer v. State, 69 Md. 28 474, 483 Sprague v. Ticonic National Bank, 307 U. S. 161 580 Spring Drug Co. v. United States, 12 F. 2d 852 601 Sproles v. Binford, 286 U. S. 374 378 Sprunt & Sons v. United States, 281 U. S. 249 283 Standard Dredging Co. v. Murphy, 319 U. S. 306 433 Starr v. United States, 153 U. S. 614 470 State v. Adkins, 284 Mo. 680 760 State v. Anselmo, 46 Utah o 137 474 State v. Bennett, 315 Mo. o 1267 591 State v. Brewster, 87 N. J. o L- 75 705 State v. Campbell, 210 Mo. 202 760 State v. Close, 106 N. J. L. 321 474 State v. Cook, 2 Ohio Dec. o 36 483 State v. Dooley, 121 Mo. 591 591 Page State v. Eaton, 154 S. W. 2d 767 473 State v. Evans, 154 Minn. 95 298 State v. Gardiner, Wright (Ohio) 392 483 State v. Gopher Tire & Rub- ber Co., 146 Minn. 52 298 State v. Green, 78 Utah 580 474 State v. Heath, 199 N. C. 135 298 State v. Holloway, 156 Mo. 222 474 State v. James, 96 N. J. L. 132 474 State v. Johnson, 40 Conn. 136 473 State v. Knight, 34 N. M. 217 591 State v. Maioni, 78 N. J. L. 339 474 State v. Maxwell, Dayton (Ohio) 362 483 State v. Noel, 102 N. J. L. 659 474 State v. Peabody, 25 R. I. 544 705 State v. Rodia, 132 N. J. L. 199 474 State v. Schilling, 95 N. J. L. 145 474 State v. Schneider, 158 Wash. 504 474 State v. Thompson, Wright (Ohio) 617 483 State v. Turner, Wright (Ohio) 20 483 State v. Van Vlack, 57 Idaho 316 474 State v. Warner, 220 Mo. 23 760 State v. Yocum, 182 Ind. 478 705 State ex rel. Passer v. County Board, 171 Minn. 177 225 State Industrial Comm’n v. Nordenholt Corp., 259 U. S. 263 6,7,107 State of. See also name of State; also Commonwealth. State of Maryland, The, 85 F. 2d 944 91 XLVI TABLE OF CASES CITED. Page State Tonnage Tax Cases, 12 Wall. 204 435 Steamship Co. v. Emigration Commissioners, 113 U. S. 33 329 Steele v. American South African Line, 62 F. Supp. 636 714 Sterling v. Constantin, 287 U. S. 378 568 Stevens v. Liberty Packing Corp., Ill N. J. Eq. 61 298 Steward Machine Co. v. Davis, 301 U. S. 548 433 Stilson v. United States, 250 U. S. 583 470 Stoll v. Gottlieb, 305 U. S. 165 283 Storey v. Illinois, 79 Ill. 45 372 Storgard v. France & Canada S. S. Corp., 263 F. 545 92 Story Parchment Co. v. Paterson Co., 282 U. S. 555 688 Strand v. Garden Valley Telephone Co., 51 F. Supp. 898 115 Stratton’s Independence v. Howbert, 231 U. S. 399 33 Student, The, 243 F. 807 88 Summers, In re, 325 U. S. 561 63 Swan v. United States, 295 F. 921 611 Swanson v. Marra Bros., 328 U. S. 1 99,102,106,107 Taylor v. United States, 286 U. S.1 612 Telman v. United States, 67 F. 2d 716 770 10 East 40th St. Co. v. Callus, 325 U. S. 578 118 Tennessee v. Hall, 164 Tenn. 548 591 Tennessee Coal, I. & R. Co. v. Muscoda Local, 321 U. S. 590 692,696 Tennessee Valley Authority v. Powelson, 319 U. S. 266 261,266 Terminal Railroad Assn. v. Trainmen, 318 U. S. 1 378,392 Texas v. Eastern Texas R. Co., 258 U. S. 204 329 Page Texas & New Orleans R. Co. v. Northside Belt R. Co., 276 U. S. 475 251,399 Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. 8. 426 147 Texas & Pacific R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266 145 Thiel v. Southern Pacific Co., 316 U. S. 698; 126 F. 2d 710 219 Thiel v. Southern Pacific Co., 328 U. S. 217 488 Thomas v. Collins, 323 U. S. 516 346 Thomas v. Perkins, 301 U. S. 655 36 Thomas Paper Stock Co. v. Bowles, 148 F. 2d 831 40, 48,53,55 Thomas Paper Stock Co. v. Bowles, 151 F. 2d 345 53,56 Thompson v. Texas Mexican R. Co., 328 U. S. 134 130 Thornes v. Socony-Vacuum Oil Co., 37 F. Supp. 616 89 Thornhill v. Alabama, 310 U. S. 88 335 Ticonic Bank v. Sprague, 303 U. S. 406 521 Tilghman v. Proctor, 125 U. S. 136 . 689 Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 820 Tinsley v. United States, 43 F. 2d 890 755 Toledo Scale Co. v. Comput- ing Scale Co., 261 U. 8. 399 670 Tot v. United States, 319 U. S. 463 . 764 Toucey v. New York Life Ins. Co., 314 U. S. 118 255 Townsend v. Yeomans, 301 U.S. 441 „ Trade-Mark Cases, 100 U. 8. 82 . . 415 Transit Commission v. United States, 289 U. 8. 121 146,147,148 Truax v. Raich, 239 U. 8. 33 TABLE OF CASES CITED. XLVII Page Trust of Bingham v. Commissioner, 325 U. S. 365 38 Tucker v. Texas, 326 U. S. 517 213 Tutun v. United States, 270 U. S. 568 673,674 Union Brokerage Co. v. Jen- sen, 322 U. S. 202 420, 448,449,450,458 Union Pacific R. Co. v. Chi- cago, M. & St. P. R. Co., 163 U. S. 564 140 Union Pacific R. Co. v. Public Service Comm’n, 248 U. S. 67 368,600 Union Pacific R. Co. v. United States, 313 U. S. 450 21,22 United States v. Allegheny County, 322 U. S. 174 206 United States v. Aluminum Co. of America, 148 F. 2d 416 786,811,813 United States v. American Tobacco Co., 221 U. S. 106 415, 791,811 United States v. American Tobacco Co., 164 F. 700 792, 811 United States v. American Tobacco Co., 191 F. 371 791 United States v. Antonelli Fireworks Co., 155 F. 2d 631 762,765 United States v. Appalachian Electric Power Co., 311 U. S. 377 173, 181,182,183, 188,599 United States v. A. Schrader’s Son, 252 U. S.85 810 United States v. Babcock, 250 U. S. 328 403 United States v. Baecker, 55 F. Supp. 403 662 United States v. Ballard, 322 U. S. 78 69 United States v. Baltimore & Ohio R. Co., 293 U. S. 454 53 United States v. Bekins, 304 U.S. 27 433 United States v. Berger, 73 F. 2d 278 756 Page United States v. Berkeness, 275 U. S. 149 633 United States v. Blair, 321 U. S.730 238,239,240 United States v. Bland, 283 U. S. 636 62,71 United States v. Borden Co., 308 U. S. 188 79 United States v. Borkowski, 268 F. 408 612 United States v. Bowmaji, 260 U. S. 94 703 United States v. Bregler, 55 F. Supp.837 662 United States v. Callahan Walker Co., 317 U. S. 56 240 United States v. Carolene Products Co., 304 U. S. 144 380 United States v. Carolina Freight Carriers Corp., 315 U. S. 475 818 United States v. Chandler- Dunbar Co., 229 U. S. 53 183 United States v. Chin On, 297 F. 531 612 United States v. Claassen, 56 F. Supp. 71 662 United States v. Classic, 313 U. S. 299 570 United States v. Cohen, 145 F. 2d 82 ’ 756 United States v. Collura, 139 F. 2d 345 704 United States v. Commodore Park, 324 U. S. 386 272 United States v. Cress, 243 U. S. 316 174,266,267 United States v. Darby, 312 U.S. 100 119,415,434 United States v. Delaware & Hudson Co., 213 U. S. 366 329 United States v. Dickerson, 310 U. S. 554 314 United States v. E. C. Knight Co., 156 U. S. 1 415 United States v. Elgin, J. & E. R. Co., 298 U. S. 492 76 United States v. Emory, 314 U. S. 423 12 United States v. Esnault-Pelterie, 299 U. S. 201 267, 268 XLVIII TABLE OF CASES CITED. Page United States v. Estes, 6 F. 2d 902 193 United States v. Falcone, 311 U. S. 205 755 United States v. Farnham, 25 Fed. Cas. No. 15,071 736 United States v. Feldman, 104 F. 2d 255 611 United States v. Fischer, 38 F. 2d 830 612 United States v. Freeman, 239 U. S. 117 701 United States v. General Motors Corp, 323 U. S. 373 262 United States v. Goelet, 232 U. S. 293 326 United States v. Goldsmith, 91 F. 2d 983 763 United States v. Gowen, 40 F. 2d 593 613 United States v. Gradwell, 243 U. S. 476 555 United States v. Guaranty Trust Co, 280 U. S. 478 12 United States v. Haas, 51 F. Supp. 910 662 United States v. Hark, 320 U. S. 531 44,49 United States v. Holtz, 54 F. Supp. 63 662 United States V. International Harvester Co, 274 U. S. 693; 214 F. 2d 987 811 United States v. Jin Fuey Moy, 241 U. S. 394 329 United States v. Johnson, 319 U. S. 503 815 United States v. Johnson, 323 U. S. 273 701,703,705 United States v. Johnson, 53 F. Supp. 596 701 United States v. Jordan, 22 F. 2d 702 705 United States v. Kaplan, 89 F. 2d 869 615 United States v. Katz, 271 U. S. 354 643 United States v. Kempe, 59 F. Supp. 905 601 United States v. Kirschenblatt, 16 F. 2d 202 613, 616 United States v. Kissel, 218 U. S. 601 647 Page United States v. Lee, 274 U. S. 559 629 United States v. Lee, 4 Mackey 489 471,474,489,490 United States v. Lefkowitz, 285 U. S.452 585,609,613 United States v. Lindenfeld, 142 F. 2d 829 611 United States v. Liss, 137 F. 2d 995 756,770 United States v. Lombardo, 241 U. S. 73 705 United States v. Lombardo, 228 F. 980 701 United States v. Lovett, 328 U. S. 303 564 United States v. Lynah, 188 U. S. 445 261 United States v. Macintosh, 283 U. S. 605 62,65,66,71 United States v. Mayer, 22 F. 2d 827 705 United States v. Midstate Horticultural Co., 306 U. S. 161 701,702 United States v. Miller, 317 U. S. 369 261 United States v. Mitchell, 137 F. 2d 1006 765 United States v. Mosley, 238 U. S. 383 570 United States v. Murphy, 264 F. 842 611 United States v. Ness, 245 U. S. 319 672,673 United States v. Northwestern Development Co., 203 F. 960 283 United States v. Oppen-heimer, 242 U. S. 85 653 United States v. Patten, 226 U. S. 525; 187 F. 664 811 United States v. Peoni, 100 F. 2d 401 _ 755 United States v. Poller, 43 F. 2d 911 611 United States v. Powelson, 319 U. S. 266 . 261,266 United States v. Rabinowich, 238 U. S. 78 . 644,789 United States v. Reading Co., 253 U.S. 26 _ 81U United States v. Ritzen, 50 *. Supp.301 6b TABLE OF CASES CITED. XLIX Page United States v. Rosenberg, 150 F. 2d 788 756 United States v. Ryan, 284 U. S. 167 76 United States v. Sall, 116 F. 2d 745 642,646,649,650 United States v. Sautter, 54 F. Supp. 22 662 United States v. Schrader’s Son, 252 U. S. 85 810 United States v. Schuchhardt, 49 F. Supp. 567 662 United States v. Schwimmer, 279 U. S. 644 62,64,68,71,72 United States v. Seltzer, 5 F. 2d 364 612 United States v. Seminole Nation, 299 U. S. 417 267 United States v. 71.41 Ounces Gold Filled Scrap, 94 F. 2d 17 611 United States v. Shapiro, 103 F. 2d 775 789 United States v. Shea, 152 U. S. 178 734 United States v. Sherry, 294 F. 684 601 United States v. Snyder, 278 F. 650 611 United States v. Socony-Vacuum Oil Co., 310 U. S. 150 644,757, 761,762,763,764,788,809 United States v. South-Eastern Underwriters Assn., 322 U. S. 533 410,412,414, 416,418,428,443,445,447 United States v. Standard Brewery, 251 U. S. 210 329 United States v. Swift & Co., 286 U. S. 106 796 United States v. 357.25 Acres of Land, 55 F. Supp. 461 263 United States v. Throckmorton, 98 U. S. 61 670, 673 United States v. Van Den Berg, 139 F. 2d 654 704,705 United States v. Waddill Co., 323 U. S. 353 9 United States v. Welch, 217 U.S.333 261 United States v. Welsh, 247 F. 239 611 717466 O—47---4 Page United States v. West Virginia, 295 U. S. 463 172 United States v. The William, 28 Fed. Cas. No. 16,700 436 United States v. Wilmovski, 56 F. Supp. 63 662 United States v. Wilson, 163 F. 338 611 United States v. Wolter, 53 F. Supp.417 662 United States v. Wood, 299 U. S. 123 230 U. S. Alkali Assn. v. United States, 325 U. S. 196 79 U. S. ex rel. T. V. A. v. Pow-elson, 319 U. S. 266 261,266 U. S. Glue Co. v. Town of Oak Creek, 247 U. S. 321 823 U. S. Gypsum Co. v. Brown, 137 F. 2d 803 43 U. S. Shipping Board Fleet Corp. v. Lustgarten, 280 U. S. 320 716 U. S. Shipping Board Fleet Corp. v. Rosenberg Bros. & Co., 276 U. S. 202 741 Uravic v. Jarka Co., 282 U. S. 234 3,97,106 Utah Junk Co. v. Porter, 328 U. S. 39 48,49 Vachina v. United States, 283 F. 35 612 Veazie v. Williams, 8 How. 134 401 Virginian R. Co. v. System Federation, 300 U. S. 515 398 Waco, The, 3 F. 2d 476 90 Walling v. Frank, 62 F. Supp. 261 693 Walling v. Jacksonville Paper Co., 317 U. S. 564 118,119 Walling v. Peavy-Wilson Lumber Co., 49 F. Supp. 846 691 Walsh’s Case, 1945 A. M. C. 747 714 Walter v. State, 208 Ind. 231 225 Wan v. United States, 266 U. S.1 360 Ward v. Love County, 253 U. S. 17 368 Warkentin, In re, 93 F. 2d 42 74 L TABLE OF CASES CITED. Page Warner v. Goltra, 293 U. S. 155 8,715 Warren v. Palmer, 310 U. S. 132 132,144 Warren-Bradshaw Drilling Co. v. Hall, 317 U. S. 88 119, 120 Warren Township School Dist. v. Detroit, 308 Mich. 460 263 Washington, B. & A. R. Co. v. Waller, 53 App. D. C. 200 385 Washington Fidelity Ins. Co. v. Burton, 287 U. S. 97 491 Weeks v. United States, 232 U. S. 383 585, 587,602,612,630 Weiler v. United States, 323 U. S. 606 476, 757,761,763,764 Welch Co. v. New Hampshire, 306 U. S. 79 377 Welton v. Missouri, 91 U. S. 275 411,421 West Coast Hotel Co. v. Parrish, 300 U. S. 379 115 Western Live Stock v. Bureau of Revenue, 303 U. S. 250 412, 420 White v. Ragen, 324 U. S. 760 213 White v. Schloerb, 178 U. S. 542 140 White v. Sparkill Realty Corp., 280 U. S. 500 399 Whitfield v. Ohio, 297 U. S. 431 389,433 Whitney v. Wenman, 198 U. S.539 140 Wholey v. British & Foreign S. S. Co., 171 F. 399; 158 F. 379 96 Wiborg v. United States, 163 U. S. 632 647 Wickard v. Filbum, 317 U. S. Ill 415 Page Wilkinson v. Leland, 2 Pet. 627 322 William Johnson & Co. v. Johansen, 86 F. 886 90 Williams v. American Foreign S. S. Corp., 1946 A. M. C. 98 714 Williams v. Kaiser, 323 U. S. 471 214 Williams v. United States, 255 U. S. 336 435 Willis v. Lykes Bros. S. S. Co., 23 F. 2d 488 96 Wilson v. New, 243 U. S. 332 329 Wilson v. United States, 221 U. S. 361 589, 591,593,600, 603 Winkler v. United States, 297 F. 202 611 Wisconsin P u b 1 i c Service Corp. v. Federal Power Comm’n, 325 U. S. 880; 147 F. 2d 743 181 Witty v. State, 75 Tex. Cr. Rep. 440 474 W. J. McCahan Co. v. Stof- fel, 41 F. 2d 651 88,106 Wood v. Broom, 287 U. S. 1 551,565, 568,573 Woodruff v. Parham, 8 Wall. 123 435 Wright v. Union Central Ins. Co., 311 U. S. 273 509,533 Yakus v. United States, 321 U. S. 414 45,404 Yarbrough, Ex parte, 110 U. S. 651 570 Yearsley v. Ross Construc- tion Co., 309 U. S. 18 267 Young, Ex parte, 209 U. S. 123 568,574 Zeltner v. State, 32 Ohio C. C. 102 483 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page 1789, July 31, c. 5, 1 Stat. 29.................. 582 Sept. 24, c. 20, 1 Stat. 73.................. 217 § 9............... 1 1790, Mar. 26, c. 3, 1 Stat. 103................. 654 Aug. 4, c. 35, 1 Stat. 145 ................ 582 1791, Mar. 3, c. 15, 1 Stat. 199................. 582 1799, Mar. 2, c. 22, 1 Stat. 627................. 582 1802, Apr. 14, c. 28, 2 Stat. 153................. 654 1806, Apr. 18, c. 29, 2 Stat. 379................. 582 1809, Mar. 1, c. 24, 2 Stat. 528................. 582 1815, Mar. 3, c. 94, 3 Stat. 231................. 582 1850, May 23, c. 11, 9 Stat. 428 ................ 549 1862, July 14, c. 170,12 Stat. 572................. 549 1863, Mar. 3, c. 76, 12 Stat. 737................. 582 1864, Feb. 24, c. 13, 13 Stat. 6.................... 61 1865, Feb. 28, c. 67, 13 Stat. 441.................. 582 1866, July 13, c. 184,14 Stat. 98 582 July 18, c. 201,14 Stat. 178 582 1867, Mar. 2, c. 188, 14 Stat. 546................. 582 1872, Feb. 2, c. 11, 17 Stat. 28.................. 549 Page 1873, Mar. 3, c. 258, 17 Stat. 598................. 582 1882, Apr. 25, c. 89, 22 Stat. 49 ................. 582 1887, Feb. 4, c. 104, 24 Stat: 379......... 108,123,134 1890, July 2, c. 647, § 2, 26 Stat. 209........... 781 Aug. 8, c. 728, 26 Stat. 313................. 408 1891, Feb. 10, c. 127, 26 Stat. 742................. 582 1893, Feb. 13, c. 105,27 Stat. 445 ................. 85 1894, Aug. 27, c. 349,28 Stat. 509................. 582 1897, July 24, c. 11, 30 Stat. 151................. 582 1899, Mar. 3, c. 429, 30 Stat. 1253................ 582 1900, June 6, c. 784, 31 Stat. 277................. 193 1901, Mar. 3, c. 854, 31 Stat. 1189............ 463,582 1902, June 17, c. 1093, § 8,32 Stat. 390........... 152 1903, Jan. 21, c. 196, 32 Stat. 775.................. 61 Feb. 11, c. 544,32 Stat. §23 ................ 781 Feb. 19, c. 708, § i, 32 Stat. 847............ 12 1905, Jan. 5, c. 23, § 4, 33 Stat. 600........... 193 1906, June 29, c. 3591, 34 Stat. 587............ 12 June 29, c. 3592, 34 Stat. 596 .......... 654 8 4 .......... 61,654 115.............. 654 LI LII TABLE OF STATUTES CITED. Page 1907, Mar. 2, c. 2564, 34 Stat. 1246......... 699 1909, Mar. 4, c. 321, 35 Stat. 1088........... 624,781 Aug. 5, c. 6, 36 Stat. 11................. 582 1910, June 23, c. 372, § 4, 36 Stat. 604.......... 193 1911, Mar. 3, c. 231, 36 Stat. 1087 .............. 217 Aug. 8, c. 5, §3, 37 Stat. 13........... 549 1913, Mar. 1, c. 90, 37 Stat. 699 ............... 373 1914, Sept. 26, c. 311, § 5, 38 Stat. 719.......... 193 1915, Mar. 3, c. 153, 38 Stat. 1168 .............. 707 1916, June 3, c. 134, 39 Stat. 166....:............. 61 Sept. 7, c. 451, § 11, 39 Stat. 729.......... 707 Sept. 8, c. 463, § 5, 39 Stat. 756........... 25 1917, Feb. 14, c. 53, 39 Stat. 903................ 582 May 18, c. 15, 40 Stat. 76.................. 61 §6............... 699 June 15, c. 30, 40 Stat. 217............ 582,624 1918, July 3, c. 128, 40 Stat. 755................ 582 Oct. 23, c. 194, 40 Stat. 1015............... 624 1919, Feb. 24, c. 18, §§ 214, 234, 40 Stat. 1057.. 25 Feb. 26, c. 48, 40 Stat. 1181................. 750 Oct. 28, c. 85, 41 Stat. 305................ 582 1920, Feb. 28, c. 9i41*Stat. 474............ 123,134 Mar. 9, c. 95, § 2, 41 Stat. 525.......... 707 June 4, c. 227, 41 Stat. 809 ................ 61 June 5, c. 250, 41 Stat. 988............... 1,85 § 33 ............ 707 June 10, c. 285, §§ 9, 23,27,41 Stat. 1063. 152 1921, Mar. 3, c. 129, 41 Stat. 1353............... 152 Page 1922, Sept. 14, c. 305, 42 Stat. 837 .......... 217 Sept. 21, c. 356, 42 Stat. 858........... 582 1924, June 7, c. 346, 43 Stat. 650 ................ 582 1925, Feb. 13, c. 229,43 Stat. 936................. 217 1926, Feb. 26, c. 27, §204, 44 Stat. 16.......... 25 May 20, c. 344, 44 Stat. 568 ........... 256 July 2, c. 721, § 10, 44 Stat. 787........... 624 1927, Mar. 4, c. 509, 44 Stat. 1424.................. 1 § 33.............. 85 Dec. 27, c. 6, 45 Stat. 51................ 781 1928, Apr. 23, c. 413,45 Stat. 448 ................ 582 1929, Jan. 19, c. 79, 45 Stat. 1084 ............... 373 Feb. 18, c. 257,45 Stat. 1222................ 582 Mar. 2, c. 536, § 6, 45 Stat. 1512.......... 654 June 18, c. 28, 46 Stat. 21 549 1930, June' 17,’ c. 497, 46 Stat. 590 .......... 582 June 23, c. 572, 46 Stat. 797........... 152 July 2, c. 801, 46 Stat. 845 ................ 582 1932, Jan. 22, c. 8, § 10, 47 Stat. 5..............204 1933, Mar. 3, c. 204, § 73, 47 Stat. 1467 ......... 495 May 27, c. 38, §§ 2, 3, 5, 48 Stat. 74 ..... 293 1934, June 18, c. 587, 48 Stat. 996 .......... 624 1935, June 15, c. 261, 49 Stat. 378........... 582 Aug. 9, c. 498, 49 Stat. 543............. 123,134 Aug. 14, c. 531, Titles 8, 9, 49 Stat. 620.. 8 Aug. 26, c. 687, §§ 4, 10, 303, 308, 309, 313, 49 Stat. 803... 152 Aug. 27, c. 740, 49 Stat. 872........... 582 TABLE OF STATUTES CITED. LIII Page 1935, Aug. 27, c. 774, 49 Stat. 911........... 134 §77 ............. 495 1936, June 22, c. 690, §§ 23, 114, 49 Stat. 1648.. 25 June 26, c. 833, § 77,49 Stat. 1969.......... 123 June 29, c. 858, 49 Stat. 1987.......... 707 1938, Mar. 21, c. 49, 52 Stat. Ill................ 193 Apr. 4, c. 69, 52 Stat. 197 .............. 624 Apr. 5, c. 72, 52 Stat. 198 .............. 582 June 22, c. 575, c. X, 52 Stat. 885........ 123 June 23, c. 601, 52 Stat. 973........... 256 June 25, c. 676, § 7, 52 Stat. 1063...... 108,680 §§ 11, 16.......... 680 1939, Feb. 10, c. 2, 53 Stat. 1................... 582 May 22, c. 140, 53 Stat. 752........... 256 July 28, c. 393,53 Stat. 1134 ............... 495 Aug. 2, c. 410, § 9, 53 Stat. 1148.......... 303 Aug. 7, c. 501, 53 Stat. 1223................ 217 Aug. 11, c. 689, 53 Stat. 1406.......... 123 1940, June 26, c. 432, §§ 15, 17, 54 Stat. 611.... 303 June 28, c. 439,54 Stat. 670................. 582 June 29, c. 440, § 2, 54 Stat. 676 ...... 582,633 Sept. 16, c. 720, 54 Stat. 885 ........... 61 §8............... 275 §11.............. 699 Sept. 18, c. 722, 54 Stat. 899....... 123,134 Oct. 14, c. 876, § 307, 54 Stat. 1137...... 61 §§338, 404-406... 654 1941, Feb. 6, c. 5, §§ 1, 2, 55 Stat. 5........ 707 Apr. 5, c. 40, § 5, 55 Stat. 92............ 303 Page 1941, May 31, c. 157, 55 Stat. 236............. 582,633 June 10, c. 190, 55 Stat. 248 .......... 204 June 28, c. 258, § 504, 55 Stat. 265........ 303 June 28, c. 259, § 7, 55 Stat. 303........... 303 June 30, c. 262, § 10, 55 Stat. 366........ 303 July 1, c. 267, § 3, 55 Stat. 408 .......... 303 July 1, c. 268, § 5, 55 Stat. 446 .......... 303 July 1, c. 269, § 704, 55 Stat. 466........ 303 July 1, c. 271, § 10, 55 Stat. 499........... 303 Aug. 25, c. 409,55 Stat. 669................. 707 Dec. 18, c. 593, § 401, 55 Stat. 841.......... 707 1942, Jan. 30, c. 26, § 2, 56 Stat. 23 ........ 50,246 §§20, 202 ........ 582 1203 ....... 39,46,50 § 204 ............ 39 §205 ......... 46,50, 246,395,582 Mar. 27, c. 199, 56 Stat. 176............ 61 § 301 ............. 582 § 1301 ............ 624 May 9, c. 295, 56 Stat. 271................. 699 July 2, c. 472, 56 Stat. 468 ................ 303 Oct. 16, c. 610, 56 Stat. 787................. 495 Dec. 7, c. 690, 56 Stat. 1041................... 61 1943, Mar. 24, c. 26, §§ 1, 2, 3, 4, 5, 57 Stat. 45.. 707 July 1, c. 183, 57 Stat. 301................. 582 July 12, c. 218, § 304, 57 Stat. 431.......... 303 July 16, c. 241, § 2, 57 Stat. 566"........... 50 1944, Feb. 26, c. 65, 58 Stat. 100................. 582 Mar. 11, c. 87, 58 Stat. 113.................. 303 LIV TABLE OF STATUTES CITED. Page 1944, June 9, c. 239, 58 Stat. 272............... 781 June 30, c. 325, 58 Stat. 632............ 395 § 106............ 39 § 203 ....... 46, 50 § 204 ...... 39,46,50 Oct. 3, c. 480, 58 Stat. 790 ................ 8 Dec. 8, c. 548, 58 Stat. 798............... 275 1945, Mar. 9, c. 20, 59 Stat. 33................ 440 §§1,2............ 408 May 9, c. 112, 59 Stat. 166............... 275 June 30, c. 215,59 Stat. 310........... 204,817 Constitution. See Index at end of volume. Criminal Code. § 35 ................ 624 § 37 ..... 633,640,750,781 § 332 ............ 582, 640 § 335 ............... 582 Internal Revenue Code. § 114................. 25 § 3321 ................ 640 Judicial Code. §24 ..................252 §66................... 134 § 145 ............... 256 § 240 ........ 152,252,463 § 262 ............... 575 § 265 ............ 246,252 § 266 ............... 549 § 269 ............ 633,750 §274 ................ 549 Revised Statutes. § 1024 .............. 750 §1044 ............... 781 § 1757 ............... 61 § 2165 .............. 654 § 3466 ................ 8 § 5339 .............. 463 U. S. Code. Title 2, §§ 2a, 201-226. 549 Title 5, § 16......... 61 Title 8, §§707,723,735.... 61 §§738, 804-806.... 654 §§1001, 1004 .......... 61 Page U. S. Code—Continued. Title 10, § 310............ 624 § 1581............ 61 Title 11, § 110............ 123 § 205 .... 123,134,495 § 526 ........... 123 Title 12, §§ 1702, 1703, 1715, 1731.......... 750 Title 15, §§ 2, 13, 29...... 781 § 45............. 193 § 77b............ 293 §§1011-1015.. 408,440 Title 16, § 791 et seq.. 152 Title 18, §§ 2, 58.......... 303 § 80 ............ 624 §88 ............ 633, 640,750,781 §§ 199, 202, 203, 207............ 303 § 541 ........... 582 § 550 ........ 582,640 §§556, 557........ 750 § 582 ........... 781 §611 et seq.......582 § 612 ........ 582,624 § 682 ........... 699 Title 26, § 3321..... 640 Title 28, § 41 ......... 12,85,549 §41 et seq........217 §125........ 134 §218 et seq.......217 §§250, 288........ 256 §344 ............ 204 § 345 ............ 12 § 347 ........... 152 § 371.............. 1 § 372 ........... 217 § 377 ........... 575 § 379 ........... 252 § 380 ........... 549 § 391 .......: 633,750 § 400 ........... 549 §§ 411,412,413,415, 423, 426, 444 et seq............ 217 Title 29, §201 et seq.. 680 Title 33, § 901 et seq.....1>°£ § 902 ............ 85 TABLE OF STATUTES CITED. LV Page U. S. Code—Continued. Title 33—Continued. § 903 ............. 1 § 905 .......... 1,85 § 933 ................ 85 Title 36, § 4............. 193 Title 42, § 1546.......... 204 Title 43, § 383........... 152 Title 45, §51 et seq...... 1, 85 § 56 ................ 707 Title 46, §§ 189-195 ....... 85 §688............ 1,85,707 §§713, 741, 1117, 1242 ......... 707 Title 49, § 1.............. 123,134 §§ 1 et seq., 2, 3.... 189 § 6......... 108,189 § 10.......... 189 §§15,41........ 12 § 60 ................ 373 §§ 171,176,180, 401, 403........... 256 Title 50, Appendix, § 301 ........... 275 § 305 ................ 61 §311.............. 699 §§601, 621........ 707 § 633 ...... 582,633 § 643 ............... 624 §901 et seq... 582 § 902 ............... 50 § 921 ............... 582 § 923 ...... 39,46,50 § 924 .......... 39,50 § 925 ...... 46,50,395 §§ 1274,1291,1295.707 Air Commerce Act, 1926... 256 American Red Cross Act, 1905, § 4............... 193 American Red Cross Act, 1910, § 4............... 193 Bankruptcy Act, §70.................. 123 § 77 ......... 123,134,495 Chapter X................. 123 Civil Aeronautics Act, 1938. 256 Civil Service Retirement Act. 707 Clarification Act, 1943, §§ 1, 2, 3, 4,5.....’......,88.. 707 declaratory Judgment Act. 549 Likins Act, § 1............... 12 Page Emergency Price Control Act, § 2 ............. 50,246 §§20, 202............... 582 §§203, 204............ 39,50 §205............... 46,50, 246,252,395,582 Taft Amendment....... 50 Emergency Relief Appropriation Act, 1941, §§ 15, 17...................... 303 Employees’ Compensation Act..................... 707 Employers’ Liability Act.. . 1, 85,108 Employment Tax Laws.... 707 Espionage Act............. 582 Fair Labor Standards Act.. 408 § 6..................... 108 § 7 ............. 108,680 § 11.................. 680 § 16 ............ 108,680 Federal Declaratory Judgment Act................ 549 Federal Employers’ Liability Act............ 1,85,108 Federal Power Act, §§ 4, 6, 7, 9, 10, 13, 14, 19, 20, 21, 23, 27, 28, 313......... 152 Federal Social Security Laws.................... 707 Federal Trade Commission Act, § 5................ 193 Federal Water Power Act, 1920..........,......... 152 First Judiciary Act......217 First War Powers Act, 1941, § 401 .................. 707 Harter Act................. 85 Hatch Act, § 9............ 303 Interstate Commerce Act, § 1 ........ 123,134,189 § 2................... 189 §3............... 134,189 § 5................... 134 § 6.............. 12,189 § 10.................. 189 §15.................... 12 Joint Resolution, Feb. 6, 1941, §§ 1,2............ 707 Jones Act, 1920.......... 1,85 § 33 ................. 707 Judiciary Act, 1789, § 9.... 1 LVI TABLE OF STATUTES CITED. Page Longshoremen’s & Harbor Workers’ Compensation Act, 1927........... 1,85 McCarran Act........... 440 §§ 1, 2..............408 Merchant Marine Act, 1920. 85, 408 § 33 .............. 1,707 Merchant Marine Act, 1936, §§207, 902............. 707 National Housing Act, Title 1................ 750 Nationality Act, 1940, §§307, 335.............. 61 §§338, 404-406........ 654 National Labor Relations Act.................... 408 Naturalization Act, 1906, § 4..................... 61 Price Control Act. See Emergency Price Control Act. Public Utility Act, 1935, Title II, Part 1..... 152 Reapportionment Act, 1862. 549 Reapportionment Act, 1911, § 3.................. 549 Reapportionment Act, 1929 . 549 Reclamation Act, 1902, § 8. 152 Reconstruction Finance Corporation Act, § 10......204 Red Cross Act, 1905, § 4... 193 Red Cross Act, 1910, § 4... 193 Revenue Act, 1916, § 5.. 25 Revenue Act, 1918, §§ 214, 234..................... 25 Page Revenue Act, 1934, § 114... 25 Revenue Act, 1936, §§ 23, 114...................... 25 Search Warrant Act........ 624 Second War Powers Act... 61 § 301 .............. 582 § 1301 ............. 624 Securities Act, 1933, §§ 2, 3, 5....................... 293 Selective Draft Act,. 1917, § 6..................... 699 Selective Training & Service Act, 1940.............. 61 § 8................. 275 § 11................ 699 Sherman Act..............408 §§1,2.................781 Social Security Act, Titles 8, 9; §§ 807, 905............ 8 Social Security Laws......707 Stabilization Extension Act, 1944 ................... 395 § 106................ 39 Suits in Admiralty Act, §§ 1, 2....................... 707 Taft Amendment to Price Control Act............ 50 Transportation Act, 1940, § 5..................... 134 Urgent Deficiency Appropriation Act, 1943, § 304. 303 Wage-Hour Act. See Fair Labor Standards Act. Wilson Act...............408 (B) Statutes of the States and Territories. Alabama. Code, 1940, Title 1, § 2; Title 48, § 268.... 373 Title 51, §§ 816-819............. 408 Arkansas. 1943 Acts, p. 379.... 373 Pope Stats., 1937, §§ 1200, 6921-6927 . 373 California. 1935 Stats., cs. 282, 283, pp. 657, 667, 678, 1002............. 440 1937 Stats., c. 726, p. 2024 ............... 440 1939 Stats., c. 321, p. 1609............... 440 Code of Civil Procedure, §§ 198, 199, 200, 201. 217 TABLE OF STATUTES CITED. LVII Page California—Continued. Deering Civil Code, 1941, §§ 51-54....... 373 Deering Insurance Code, §§ 700, 703, 1560-1607, 1639, 1642, 1643, 1648.5, 1649, 1674, 1678, 1760-1779, 10510, 10818 ............. 440 Colorado. Stats. Ann., 1935, c. 35, §§ 1-10...............373 Connecticut. Gen. Stats., Supp. 1933, § 1160b.............. 373 District of Columbia. Code, 1857, c. 130, §§ 1-2.................... 463 Code, 1940, xiv; §§ 22-2401, 22-2402, 22-2403,22-2404......... 463 Florida. 1941 Stats. §§38.23.... 331 §205.43 ............. 408 §932.03.......... 331 Georgia. Code, 1933, § 68-616.. 373 Michie Code, 1928, Supp., § 2177...... 373 Illinois. 1901 Laws, p. 3.......549 Rev. Stats., 1943, c. 73, § 1021..... 408 c. 38, §§ 125-128g. 373 Rev. Stats., 1945, c. 46, §§ 154-156.. 549 c. 110, § 196......211 Unemployment Compensation Act.......... 8 Indiana. Burns Stats., 1933, §§ 10-901, 10-902....... 373 Burns Stats., 1940, § 39-4802 ................ 408 Iowa. 1943 Laws, c. 278, §306. 152 Code, 1939, c. 363, §§ 7767-7797.1 ......... 152 §§ 13251-13252 .... 373 Kansas. Corrick Gen. Stats., 1935, §40-252........ 408 Page Kansas—Continued. Gen. Stats., 1935, § 21- 2424 ............... 373 Kentucky. Rev. Stats., 1944, § 136.330 ............ 408 Louisiana. Dart Gen. Stats., 1939, §§ 5307-5309 ....... 373 § 8369 ........... 408 Massachusetts. Constitution, 1780, Art. XXIX.................331 Ann. Laws, c. 278, § 33E .................463 Michie Laws, 1933, c. 272, § 98........... 373 Michigan. Comp. Laws, 1929, § 12387................. 408 Stats. Ann., 1938, §§ 28.343, 28.344...... 373 Minnesota. Mason Stats., 1927, § 7321.................. 373 Mississippi. Code, 1942, §7785.... 373 Missouri. Rev. Stats., 1939, § 6094 ............... 408 Nebraska. Comp. Stats., 1929, § 23-101................ 373 Rev. Stats., 1943, § 77- 902 ................ 408 New Jersey. Rev. Stats., 1937, §§ 10: 1-2 to 10: 1-7...... 373 New Mexico. Stats. Ann., 1941, § 60- 401................. 408 New York. Constitution, Art. 6, § 7................... 463 Constitution, 1938, Art. 1, § 12............ 582 1929 Laws, c. 713...... 80 1942 Laws, c. 544... 582 1944 Laws, c. 554, § 4.. 80 Cons. Laws, c. 61 A.... 80 McKinney Civil Rights Law, §§ 40-41....... 373 Multiple Dwelling Law, § 4.................. 80 LVIII TABLE OF STATUTES CITED. Page New York—Continued. Penal Code, 1898, §§ 183, 183a, 184..... 463 North Carolina. Gen. Stats., 1943, §§ 63- 11, 63-12, 63-13.... 256 § 62-109 ....... 373 North Dakota. Comp. Laws, 1913, § 4924 .............. 408 Ohio. Throckmorton Code, 1940, §§ 12940-12942. 373 Throckmorton Code Ann., 1940, § 5433.. 408 Oklahoma. Constitution, Art. XXIII, § 11.......373 Stats. Ann., 1941, Title 47, §§ 201-210..... 373 Pennsylvania. 1794 Laws, c. 257, §§ 1- 2................ 463 Purdon Stats., Title 18, §§ 4654-4655 .... 373 Purdon Stats. Ann., 1930, Title 72, §2261. 408 Purdon Stats. Ann., 1936, Title 72, § 5020-201________________ 204 Page Rhode Island. Gen. Laws, 1938, c. 606, §§ 28-29 .......... 373 South Carolina. Code, 1942, §§ 7948, 7949................. 408 § 8530-1 ........ 373 Texas. Vernon Civ. Stats., 1925, Art. 4769 ... 408 Vernon Penal Code, 1936, Art. 1659.... 373 Virginia. 1900 Acts, p. 340.... 373 1903-4904 Acts, pp. 987, 990 ............... 373 1910 Acts, p. 581.... 373 1930 Acts, pp. 97, 343.. 373 Code, 1887, § 49..... 373 Code, 1942, §§ 67, 1574, 4097m, 4097z to 4097-dd, 5099a.............373 Code Ann., 1942, §§ 3978-3983; 4022-4025 ................ 373 Washington. Remington Rev. Stats., 1932, § 2686......... 373 Wisconsin. 1943 Stats., § 340.75... 373 (C) Treaties. 1864, Aug. 22, 22 Stat. 940 (Geneva Convention)... 193 1929, July 27, Art. 28, 47 Stat. 2074 (Geneva Red Cross Convention)...... 193 (D) Foreign Statutes. English. 39 & 40 Viet., c. 80, § 5. 85 57 & 58 Viet., c. 60, § 458..................... 85 English—Continued. Merchant Shipping Act, §§ 5, 458......... 85 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1945. SWANSON v. MARRA BROTHERS, INC. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 405. Argued February 1, 1946.—Decided April 22, 1946. 1. A longshoreman in the employ of a stevedoring company, while on a pier and engaged in loading cargo on a ship lying alongside in a harbor, was struck by a life raft which fell from the vessel and injured him. Held, he has no right of recovery against his employer under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688. International Stevedoring Co. v. Haverty, 272 U. S. 50; O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36, differentiated. Pp. 2, 7. 2. By legislation subsequent to the Jones Act and the decision in the Haverty case, Congress has expressed its purpose to restrict the liability of the employer under federal statutes to injuries to his employees occurring on navigable waters or inflicted upon an employee who is either a master or a member of a crew of the vessel, injured in the course of his employment as such. P. 5. 3. The effect of the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927, 33 U. S. C. 901 et seq., is to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by the Longshoremen’s Act. P. 7. 4. Since the Longshoremen’s Act is restricted to compensation for injuries occurring on navigable waters, it excludes from its own terms and from the Jones Act any remedies against the employer for injuries inflicted on shore. P. 7. 1 2 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. 5. It leaves the injured employees in such cases to pursue the remedies afforded by the local law, which this Court has often held permits recovery against the employer for injuries inflicted by land torts on his employees who are not members of the crew of a vessel. P.7. 6. It leaves unaffected the rights of members of the crew of a vessel to recover under the Jones Act when injured while pursuing their maritime employment whether on board or on shore. Pp. 7-8. 149 F. 2d 646, affirmed. Petitioner, a longshoreman in the employ of respondent stevedoring company, sued to recover under the Jones Act, 41 Stat. 1007, for injuries suffered while on a pier and engaged in loading cargo on a vessel lying alongside in the harbor. The District Court dismissed the complaint. 57 F. Supp. 456. The Circuit Court of Appeals affirmed. 149 F. 2d 646. This Court granted certiorari. 326 U. S. 710. Affirmed, p. 8. Abraham E. Freedman argued the cause for petitioner. With him on the brief was Charles Lakatos. Joseph W. Henderson argued the cause for respondent. With him on the brief was George M. Brodhead. Opinion of the Court by Mr. Chief Justice Stone, announced by Mr. Justice Black. Petitioner, a longshoreman in the employ of respondent stevedoring company, while on a pier and engaged in loading cargo on a vessel lying alongside in the harbor of Philadelphia, was struck by a life raft which fell from the vessel and injured him. The question for decision, which was reserved in O'Donnell n. Great Lakes Dredge & Dock Co., 318 U. S. 36, 43, 44, is whether petitioner may maintain a suit against his employer to recover for the injury, under the Jones Act, 41 Stat. 1007,46 U. S. C. § 688. Petitioner, after having sought and received compensation for his injury under the state employers liability SWANSON v. MARRA BROS. 3 1 Opinion of the Court. act of Pennsylvania, brought the present suit in the District Court for Eastern Pennsylvania “pursuant to the Maritime Law as modified by Section 33 of the Merchant Marine Act of 1920” (the Jones Act). He alleged as the cause of the injury respondent’s breach of duty in failing to provide a safe and seaworthy vessel and appliances and a safe place for petitioner to work, and in failing to make the life raft secure and to make adequate inspection of it. The district court dismissed the complaint, holding that there could be no recovery under the Jones Act by one not a seaman for an injury suffered by him while on shore. 57 F. Supp. 456. The Court of Appeals for the Third Circuit affirmed. 149 F. 2d 646. We granted certiorari, 326 U. S. 710, because of the novelty and importance of the question presented. The Jones Act provides in pertinent part: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the commonlaw right or remedy in cases of personal injury to railway employees shall apply . . .” The Act thus made applicable to seamen, injured in the course of their employment, the provisions of the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq., which give to railroad employees a right of recovery for injuries resulting from the negligence of their employer, its agents or employees. Panama R. Co. v. Johnson, 264 U. S. 375; The Arizona v. Anelich, 298 U. S. 110, 118. We have held that a stevedore who was injured while storing cargo, and while on but not employed by a vessel lying in navigable waters, was authorized by the Jones Act to bring suit against his employer to recover for injury caused by the employer’s negligence. International Stevedoring Co. v. Haverty, 272 U. S. 50; Uravic v. Jarka 4 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Co., 282 U. S. 234. It was thought that both the language and the policy of the Act indicated that by taking over principles of recovery already established for the employees of interstate railroads and in making them applicable in the admiralty setting, Congress intended to extend them to stevedores, the employees of an independent contractor, while working on a vessel in navigable waters and while rendering services customarily performed by seamen. International Stevedoring Co. v. Haverty, supra, 52; see O’Donnell v. Great Lakes Dredge & Dock Co., supra, 38, 39. Petitioner, in urging that the doctrine of the Haverty case be extended so as to allow him to recover for his injuries sustained on shore, places his reliance on O’Donnell v. Great Lakes Dredge Dock Co., supra. We there held the ship owner liable, under the Jones Act, for injuries caused to a seaman by a fellow servant while the former was on shore engaged in repairing a conduit which was a part of the vessel and used for discharging its cargo. But in that case we sustained the recovery because the injured person was a seaman and an employee of the vessel, engaged in the Course of his employment as such. An incident to his employment by the vessel as a seaman was his right to maintenance and cure for injuries received in the course of his employment, a cause of action traditionally cognizable in admiralty. The Osceola, 189 U. S. 158, 175; Calmar S. S. Corp. v. Taylor, 303 U. S. 525, 527-528. The jurisdiction of admiralty over such a cause of action depends, not on the place where the injury is inflicted, compare The Plymouth, 3 Wall. 20; Cleveland Terminal R. Co. v. Steamship Co., 208 U. S. 316; see Minnie v. Port Huron Co., 295 U. S. 647; The Admiral Peoples, 295 U. S. 649, but on the nature of the seaman’s service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters. O’Don- SWANSON v. MARRA BROS. 5 1 Opinion of the Court. nell v. Great Lakes Dredge & Dock Co., supra, 42-43; cf. Calmar S. S. Corp. v. Taylor, supra. Congress, in thus enlarging an admiralty remedy, was exercising its constitutional power to regulate commerce, and to make laws which shall be necessary and proper to carry into execution powers vested by the Constitution in the Government or any department of it, Art. I, § 8, cl. 18, including the judicial power which, by Art. Ill, § 2, extends “to all Cases of admiralty and maritime Jurisdiction.” By § 9 of the Judiciary Act of 1789, 1 Stat. 76, 28 U. S. C. § 371, (Third), Congress conferred on the district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . saving to suitors, in all cases, the right of a common law remedy, where the common- law is competent to give it . . .” By the grant of admiralty and maritime jurisdiction in the Judiciary Article, and by § 9 of the Judiciary Act, the national Government took over the traditional body of rules, precepts and practices known to lawyers and legislators as the maritime law, so far as the courts invested with admiralty jurisdiction should accept and apply them. See O’Donnell v. Great Lakes Dredge & Dock Co., supra, 40, and cases cited. We have no occasion to consider here whether Congress, by the Jones Act, undertook to or could give a remedy against the employer for injuries caused by a vessel to nis employees, not members of the crew of the vessel, while working on shore. For Congress, by later legislation, has expressed its purpose to restrict the liability of the employer under federal statutes to injuries to his employees occurring on navigable waters or inflicted upon an employee who is either a master or a member of a crew of the vessel, injured in the course of his employment as such. 6 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Within six months after the decision in the Haverty case and nearly sixteen years before our decision in the O’Donnell case, Congress enacted the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927, 44 Stat. 1424, 33 U. S. C. § 901 et seq., which gave a remedy against employers by way of compensation for disability or death suffered on navigable waters by any employee not a “master or member of a crew of any vessel.” § 903. The liability of employers to pay the prescribed compensation is, by § 905, made “exclusive and in place of all other liability of such employer to the employee,” his legal representative and any other person entitled to recover damages “at law or in admiralty” from the employer for the injury or death. By § 903 (a) (1) recovery may be had under the Act only “if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” The Act both imposes liability on the employer for injuries on navigable waters to employees not including the master or members of a crew of a vessel, and makes the prescribed liability to employees within the coverage of the Act exclusive. The Act thus excludes from its benefits stevedores not members of the crew who are injured on navigable waters from recovering under the Jones Act as interpreted by the Haverty case. Those provisions make it plain that Congress’ own interpretation of the Jones Act is such as to preclude the extension of the doctrine of that case to the specified employees injured on land. We can hardly suppose that Congress, while explicitly denying a right of recovery under the Jones Act to maritime workers not members of a crew who are injured on board a vessel, either thought that the Jones Act extended to injuries inflicted on shore to employees not members of a crew, see State Industrial Commission v. Nordenholt Corp., 259 U. S. 263, 273 ; Smith & Son v. Taylor, 276 U. S. SWANSON v. MARRA BROS. 7 1 Opinion of the Court. 179, or intended that there should be established for such workers injured on shore, by extension of the doctrine of the Haverty case, a right of recovery which it at the same time withdrew from such workers when injured on navigable waters. The Senate Judiciary Committee, in recommending the legislation which became the Longshoremen’s and Harbor Workers’ Compensation Act, expressed doubt as to the constitutional power of Congress to give recovery to such employees injured on shore, saying “These men are mainly employed in loading, unloading, refitting, and repairing ships; but it should be remarked that injuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States.” Sen. Rep. No. 973, 69th Cong., 1st Sess., p. 16. Cf. Cleveland Terminal R. Co. v. Steamship Co., supra; The Admiral Peoples, supra. We must take it that the effect of these provisions of the Longshoremen’s Act is to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by the Longshoremen’s Act. But since this Act is restricted to compensation for injuries occurring on navigable waters, it excludes from its own terms and from the Jones Act any remedies against the employer for injuries inflicted on shore. The Act leaves the injured employees in such cases to pursue the remedies afforded by the local law, which this Court has often held permits recovery against the employer for injuries mflicted by land torts on his employees who are not members of the crew of a vessel. State Industrial Commission v. Nordenholt Corp., supra; Smith & Son v. Taylor, supra; cf. Minnie v. Port Huron Co., supra. And it leaves unaf- 717466 O—47-5 8 OCTOBER TERM, 1945. Counsel for Parties. 328U.S. fected the rights of members of the crew of a vessel to recover under the Jones Act when injured while pursuing their maritime employment whether on board, Warner v. Goltra, 293 U. S. 155; Norton v. Warner Co., 321 U. S. 565; see South Chicago Co. v. Bassett, 309 U. S. 251, 255-6, or on shore. O’Donnell v. Great Lakes Dredge & Dock Co., supra. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. ILLINOIS ex rel. GORDON, DIRECTOR OF LABOR, v. UNITED STATES. CERTIORARI TO THE SUPREME COURT OF ILLINOIS. No. 749. Argued March 28,1946.—Decided April 22,1946. 1. Under R. S. § 3466, which provides that where an insolvent debtor makes a voluntary assignment of his property “the debts due to the United States shall be first satisfied,” a claim of the United States for taxes under the Social Security Act is entitled to priority over the claim of a State for taxes under the state Unemployment Compensation Act. Pp. 9,11. 2. Priority of the United States under R. S. § 3466 in such case is not inconsistent with either the express language or the purpose of the Social Security Act. P. 11. 391 in. 29, 62 N. E. 2d 537, affirmed. The State Supreme Court sustained a claim of the United States to priority over the claim of the State in the property of an insolvent debtor. 391 Ill. 29, 62 N. E. 2d 537. This Court granted certiorari. 327 U. S. 771. Affirmed, p. 12. Albert E. Hallett, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the brief was George F. Barrett, Attorney General. ILLINOIS v. UNITED STATES. 9 8 Opinion of the Court. J. Louis Monarch argued the cause for the United States. With him on the brief were Solicitor General McGrath, Acting Assistant Attorney General Sewall Key and Helen Goodner. Mr. Justice Black delivered the opinion of the Court. In this case the Supreme Court of Illinois held that certain tax claims of the Federal Government against an insolvent taxpayer must be satisfied in full before the State of Illinois can recover amounts due as taxes under its Unemployment Compensation Act. 391 Ill. 29, 62 N. E. 2d 537. This decision is substantially in conflict with that of the Supreme Court of Rhode Island in Rivard n. Bijou Furniture Co., 67 R. I. 251, 21 A. 2d 563, 68 R. I. 358, 27 A. 2d 853, and we granted certiorari to resolve this conflict. The claim of the United States is for federal unemployment compensation taxes under Title 9 and federal insurance contributions taxes under Title 8 of the Social Security Act, 49 Stat. 620.1 The priority claimed by the United States rests on R. S. 3466, which provides in part that "Whenever any person indebted to the United States . . ., not having sufficient property to pay all his debts, makes a voluntary assignment” of his property, "the debts due to the United States shall be first satisfied.” The State concedes that the facts here bring the United States’ tax claims within the general priority provisions of § 3466. The taxpayer while insolvent had made a voluntary assignment of all his property for the benefit of creditors. And it is well settled that taxes are debts within the meaning of § 3466. United States v. Waddill Co., 323 U. S. 353, 355. The State’s only contention is that the * *A small part of the Government’s claim was for capital stock taxes, but this fact is of no significance here. 10 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Social Security Act evinces a congressional purpose to free state unemployment tax claims from the general priority provisions of § 3466. The State draws its inference not from an express declaration of congressional purpose, but from what it deems to be broad implications behind the general scheme of the Social Security Act. The contention is that enforcement of priorities over state unemployment compensation tax claims would weaken state unemployment compensation funds and thus tend to frustrate the manifest purpose of Congress to foster, in the national interest, sound financial and stable state unemployment compensation systems. The State points to the following as showing Congress’ interest in state systems. Title 9 of the Social Security Act contains provisions intended to induce states to set up sound unemployment compensation in accordance with congressionally prescribed standards. To this end state systems that meet these standards are permitted to build up their own funds by collection from employers within the state of 90% of the tax those employers would otherwise have to pay to the Federal Government. State funds must be paid into the United States Treasury, to be credited to a special fund, and can be withdrawn only for paying unemployment benefits. Furthermore, the federal portion of unemployment compensation taxes can be used to help states pay administrative expenses. And Congress, since passage of the original Act, has enacted legislation guaranteeing the solvency of state funds. 58 Stat. 790. All of these facts, and some others to which the State refers, are said to show that the paramount purpose of the social security legislation was to treat unemployment relief as a problem to be solved by the Federal Government by its assumption of the primary burden of making state systems a success. ILLINOIS v. UNITED STATES. 11 8 Opinion of the Court. We agree that the social security legislation provides a method for accomplishing state and federal unemployment relief systems, integrated in plan, function, and purpose, and that sound state systems are essential to complete success of the congressional plan. But we cannot agree that Congress thereby intended in effect to amend § 3466, by making its priority provisions inapplicable to state unemployment tax claims. For while the state and federal governments were to cooperate, the underlying philosophy of the Federal Act was to keep the state and federal systems separately administered. The Act nowhere indicates a purpose to treat a state unemployment claim as the State here urges us to treat its claim—“tantamount to a claim of the United States.” Furthermore, §§ 807 (c) and 905 (b) of the Federal Act, and the provisions they incorporated by reference, made applicable to social security taxes all other provisions of law relating to the assessment and collection of other taxes unless such other remedies are inconsistent with the Social Security Act. While there is no evidence that Congress in these sections had § 3466 specifically in mind, these provisions indicate that Congress intended, so far as practicable, to apply to social security taxes all of the remedies available to the Federal Government in collecting other taxes. Section 3466 provides one of these remedies. Since, as has been indicated, it is not inconsistent with either the express language or purpose of the Social Security Act, it must be applied here. Previous decisions of this Court relied on by the State do not support its contention. Those cases, insofar as they held that § 3466 did not give the United States priority over certain other types of claims, did so because later Acts were found to contain provisions plainly inconsistent with United States priority. Cook County Na- 12 OCTOBER TERM, 1945. Syllabus. 328 U. S. tional Bank v. United States, 107 U. S. 445; United States v. Guaranty Trust Co., 280 U. S. 478. Cf. United States v. Emory, 314 U. S. 423, 431-432. We find no such inconsistency here. And “only the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466.” United States v. Emory, supra, 433. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. EL DORADO OIL WORKS et al. v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 428. Argued January 30 and March 26, 1946.—Decided April 22, 1946. A shipper who rented tank cars for transporting its products in interstate commerce brought suit in the District Court against the car company for the amount by which allowances received by the car company from carriers for use of the cars exceeded the rental. This Court, in General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, ordered the District Court to stay its hand until the Interstate Commerce Commission could determine the administrative problems involved. In response to a petition of the shipper, the Commission found that an allowance to the shipper in excess of the rental would be unjust, unreasonable and unlawful, and ordered the proceeding before it discontinued. Held: 1. The action of the Commission was a reviewable “order,” and a suit to enjoin or set it aside was within the jurisdiction of a District Court of three judges. 28 U. S. C. §§ 41 (28), 47. P. 18. 2. The Commission’s determination as to what constituted a just and reasonable allowance to the shipper was valid although it related to past transactions. P. 19. EL DORADO OIL WORKS v. U. S. 13 12 Counsel for Parties. (a) The Commission made its determination, as to the lawfulness of the past practices, upon the application of the shipper. P. 19. (b) The determination of the Commission was authorized by the decision of this Court in the Tank Car case, as well as by the Interstate Commerce Act. P. 19. (c) The Commission was not required in this proceeding to establish uniform rates for the future for all shippers. P. 20. 3. The finding of the Commission that the allowances to this shipper were unjust and unreasonable was based on uniform treatment of all shipper-lessees, whom the Commission was justified in treating as a class apart. P. 20. 4. It is the duty of the Commission to abolish all practices which result in rebates or preferences. P. 21. 5. The fact that the freight was paid by the consignees at the regular rate does not preclude the finding that the practices here in question involved rebates or preferences to the shipper which are prohibited by the Interstate Commerce Act and the Elkins Act. P. 22. 59 F. Supp. 738, affirmed. Appellants’ suit to set aside an order of the Interstate Commerce Commission, 2581. C. C. 371, was dismissed by a District Court of three judges for want of jurisdiction, 59 F. Supp. 738, and appellants appealed to this Court. Affirmed on other grounds, p. 22. W. F. Williamson argued the cause and filed briefs for appellants. H. Russell Bishop entered an appearance for the El Dorado Oil Works, appellant. Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appellees. With him on the brief were Solicitor General McGrath and Walter J. Cummings, Jr. Mr. Knowlton also filed a brief for the Interstate Commerce Commission. Allan P. Matthew argued the cause for the General American Transportation Corporation, appellee. With him on the briefs were Kenneth F. Burgess and Douglas F. Smith. 14 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. J. Carter Fort and Thomas L. Preston filed a brief for the Alabama Great Southern Railroad Company et al., appellees. Mr. Justice Black delivered the opinion of the Court. Appellants filed a complaint in the District Court under 28 U. S. C. 41 (28), challenging action taken by the Interstate Commerce Commission allegedly pursuant to instructions contained in an earlier opinion rendered by this Court in connection with these proceedings. 308 U. S. 422. The District Court dismissed the complaint for want of jurisdiction on the ground that the Commission’s action did not amount to a reviewable “order” within the meaning of 28 U. S. C. 41 (28). The case is before us on direct appeal. 28 U. S. C. 345. The following facts constitute the background of this proceeding: El Dorado Oil Works, one of the appellants, processes, sells, and ships coconut oil in interstate commerce. Special kinds of tank cars are necessary for that distribution. The appellee, General American Tank Car Corporation,1 owns tank cars which it rents and leases to various shippers. In 1933, Oil Works made a contract with the Car Company to rent, for a period of three years, fifty tank cars at $27.50 per car per month, and such additional cars as it might need at $30 per car per month. The outstanding railroad tariffs, prescribing payment by the railroad of 1^0 per mile for the use of tank cars, contained rules which provided that the mileage would be paid only to the “party” whose “reporting marks” appeared on the cars. During part of the rental period here in question the rules provided that “mileage for the use of cars of private ownership will be paid . . . only to the car owner—not to a 1 General American Transportation Corporation has become the successor of the General American Tank Car Corporation. EL DORADO OIL WORKS v. U. S. 15 12 Opinion of the Court. lessee.” Since under the agreement the cars were to bear the “reporting marks” of the Car Company and not the Oil Works, and since Oil Works was a lessee, no tariffs authorized railroad mileage payments to Oil Works. Nevertheless, under the agreement Oil Works was to receive the full mileage allowance prescribed by the tariffs. The rent Oil Works was to pay to Car Company was to be taken out by Car Company from the mileage allowances it received from the railroads and the balance was to be paid by it to Oil Works. The railroad payments proved to be greatly in excess of the rental obligations, and Car Company regularly paid the difference to Oil Works, until July 1,1934. July 2, 1934, the Interstate Commerce Commission, after an exhaustive investigation, handed down its findings, opinion, and conclusion in Use of Privately Owned Refrigerator Cars, 201 I. C. C. 323. It there drew a distinction between car owners as a class and car renters as a class. It found that car owners must have sufficient rental allowances, whether they rented to railroads or to shippers, to pay a reasonable return on investment, taking into consideration cost of maintenance, idle cars, etc. On the other hand the Commission found that car renters had no such fixed costs. The Commission’s conclusion was that costs of rented cars to a shipper, including rent and incidentals, was the only allowance the shipper-lessee should receive from a railroad, directly or indirectly, and that if he receives more, the cost of transportation to him would be less than the cost of transportation to shippers generally, especially those who use cars furnished by the carriers. To make the railroad pay more for use of a car rented by a shipper than the rent he had to pay, was, according to the Commission, a violation of § 15 (13) of the Interstate Commerce Act, 49 U. S. C. 15 (13), in that it required the railroad to pay more for the car than was 16 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. “just and reasonable.” The Commission was of the opinion that refunds of car mileage in excess of the rent charged the shipper-lessee was the equivalent of an unlawful concession or rebate, prohibited by the Elkins Act. While the Commission’s findings were limited to refrigerator cars, it stated that “the general principles enunciated apply equally to all other types of private cars.” Id. at 382. After the Commission’s decision in the refrigerator case, the Car Company declined to pay over to Oil Works any part of the excess mileage. In 1935 El Dorado Terminal Company, one of the appellants acting as assignee of Oil Works, brought suit against the Car Company to recover accrued excess mileage earnings. Car Company defended on the ground that further refunds would violate Interstate Commerce legislation, particularly the Elkins Act. 49 U. S. C. 41. The district judge found that the contract was in violation of the Elkins Act, and rendered judgment for the Car Company. The Circuit Court of Appeals reversed. 104 F. 2d 903. The Car Company filed a petition for certiorari which was supported here by the Solicitor General and the Interstate Commerce Commission. Their claim that the Circuit Court of Appeals erred rested on the following major grounds: (1) The railroad’s payments to Car Company, which provided no facilities to the railroad, were unauthorized; (2) since no published tariff authorized payments to a shipper-lessee such as Oil Works, its only recourse to collect allowances for the cars it had furnished was to institute proceedings before the Commission for recovery of a reasonable allowance; (3) payment to Oil Works of excess mileage earnings received by Car Company would violate the Elkins Act. In reply to the Commission’s brief urging certiorari, Oil Works contended that the case did not raise a question “within the administrative or primary control of the Commission.” EL DORADO OIL WORKS v. U. S. 17 12 Opinion of the Court. We granted certiorari and reversed the judgment of the Circuit Court of Appeals. 308 U. S. 422. While we rejected the Commission’s contention that the District Court had no jurisdiction to hear the case, we accepted its contention that determination of the validity of the challenged past practices was for the Commission. We pointed out that the tariffs approved by the Commission fixed no uniform rate to be paid by railroads to the shipper directly for the use of cars originally rented by the shipper. We pointed out further that Oil Works had never “applied to the Commission for its decision as to what was a proper allowance for the cars furnished by it.” We said that the Oil Works was “entitled, under the plain terms of § 15 (13) [of the Interstate Commerce Act], to be paid by the carrier a just and reasonable allowance” for providing the cars. The opinion stated that questions such as whether the shipper was “reaping a substantial profit from the use of the cars,” and whether, on the one hand, the “allowances and practices” were lawful and reasonable or, on the other hand, violated the Elkins Act, were all administrative problems calling for investigation and determination by the Commission. The District Court was accordingly ordered to stay its hand so that the Commission could render its decision. On remand Oil Works and Terminal Company filed a petition with the Commission praying that it hold hearings and enter an order to the effect that Car Company could pay the mileage earnings to Oil Works without violating the Elkins Act and that such payment would not constitute a rebate or concession. The Commission found that a just and reasonable allowance to Oil Works would be the cost incurred by it in furnishing the cars, namely the monthly rental to the Car Company, that any amount in excess of that would be unjust and unreasonable in violation of § 15 (13) and would “constitute a rebate and discrimination and involve a departure from the tariff 18 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. rules applicable, prohibited by section 1 of the Elkins Act, and section 6 (7) of the Interstate Commerce Act ...”2 The Commission further ordered that the proceeding before it be discontinued. On this appeal both sides argued the jurisdictional question as well as questions going to the merits. Before we reach the merits of the controversy we must at the outset briefly dispose of the jurisdictional question. As the facts already stated reveal, the Commission’s findings and determination if upheld constitute far more than an “abstract declaration.” Rochester Telephone Corp. n. United States, 307 U. S. 125, 143. “Legal consequences” 2 The Commission did not rule that a shipper-lessee would always be entitled to allowances equal to the cost to him of the cars he rented. The Commission’s opinion makes it clear that a shipper-lessee is only entitled to receive a just and reasonable allowance for cars while they are actually used by the railroad, even though this allowance might be less than the car rent paid by the shipper. On that subject the Commission said: “In administering the provisions of section 15 (13) we have consistently adhered to two principles, bearing in mind that we were to prescribe the maximum amount which the carrier might pay: (1) The amount paid should not be more than was just and reasonable for the service or instrumentality furnished, and (2) that the amount which might be paid should not exceed the reasonable cost to the owner of the goods of performing the service or furnishing the instrumentality used. Whichever of these sums was the lower marked the maximum the carrier might pay.” Here the Commission has applied these uniform criteria in such a way as to permit the shipper-lessee to receive as much as the full rental he paid. Were it not for these proceedings resulting from the Car Company’s refusal to continue payments to the shipper, the railroad would have had to pay as it did pay 1^0 per mile, which proved far in excess of the rental. It may be that in other cases a just and reasonable rate would fall below the rental. It may be that in this case the rental exceeded what would be a just and reasonable allowance with respect to the use of the cars by the railroad. But this would serve to further reduce the rate to which appellants were actually entitled; appellants, therefore, have no interest in challenging the Commission’s order on this point. EL DORADO OIL WORKS v. U. S. 19 12 Opinion of the Court. {id. at 132) would follow which would finally fix a “right or obligation” {id. at 131) on appellants’ part. These findings are more than a mere “stage in an incomplete process of administrative adjudication,” for the Commission here has discontinued further proceedings. Id. at 143. We, therefore, think that the Commission’s action falls within the class of “orders” which Rochester Telephone Corp. v. United States, supra, held to be reviewable by a district court of three judges. The District Court erred in dismissing the complaint for want of jurisdiction. On the merits, appellants’ major contention is that the Interstate Commerce Act and our earlier opinion in this case do not authorize the Commission to determine, as it here has done, the justice and reasonableness of mileage allowances which appellants were to receive on past transactions. The contention is that both our opinion and the Act authorize the Commission to do no more than determine what uniform allowance shippers as a class would be permitted to charge in the future. In part the argument is that insofar as the order is based on a treatment of shipper-lessees as a class apart, and on a limitation of their allowance to the cost to them of the cars they furnish, the order is invalid, in that it neither rests on, nor brings about, a uniform rate to all shippers, or even all shipperlessees. We cannot agree with the above contentions. First, it must be noted that the Commission made its determination as to the lawfulness of these past practices on the basis of appellants’ own application, asking the Commission to do so. Second, our previous opinion, as well as the Interstate Commerce Act, authorized the Commission to make this determination. The question before us when this case was first here did not relate to future but to past allowances. Relying on past decisions, we held that the “reasonableness and legality” of the past dealings here involved were matters which Congress had entrusted to the Commission. See e. g. Great Northern R. 20 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Co. v. Merchants Elevator Co., 259 U. S. 285, 291, and other cases cited in our previous opinion. And we rejected appellants’ petition for rehearing which presented substantially the argument now repeated, namely that any order the Commission might make “could only be effective as to the future,” that the Commission’s determination “could not affect the contract ... in this case,” that the Commission’s action would be “futile,” and that consequently our judgment and opinion would provide no “guidance” for the District Court. Our first opinion, buttressed by our rejection of the motion for rehearing, was a plain authorization for the Commission to determine the justice and reasonableness of the past allowances to this shipper. The Commission did not have to establish future uniform rates to determine the questions we sent to it. Consequently, insofar as appellants’ argument is that the Commission failed to treat all shippers or all shipper-lessees uniformly because it did not fix future uniform rates, the answer is that it was not required to do so. Insofar as appellants’ argument as to lack of uniform treatment of shippers and shipper-lessees seeks to attack the basis of the Commission’s finding that the past allowances here were unjust and unreasonable, it also lacks merit. We think the Commission’s finding was based on a uniform treatment of all shipper-lessees. While it is true, as appellants contend, that under the Commission’s rule different shipper-lessees might receive different allowances, the rule is uniform in that it permits no shipperlessee to receive allowances exceeding the rental he pays. All shipper-lessees are prohibited from making profits at the expense of the railroads on cars rented to transport goods in interstate commerce. Since the facts before the Commission were enough to enable it to find that such profits amount to rebates to shipper-lessees which result in a discrimination against shippers that own cars or use EL DORADO OIL WORKS v. U. S. 21 12 Opinion of the Court. cars furnished by the railroad, the Commission was justified in treating shipper-lessees as a class apart. As the Commission pointed out in its Refrigerator opinion, the history of railroad practices shows that rebates, concessions, and favoritism have frequently grown out of the private car system. Notwithstanding the very great transportation service supplied by private cars, designed and equipped to meet special needs, the Commission acts within its power when it attempts to regulate their use so as to put a stop to existing prohibited evils. It must test violations of the Interstate Commerce Act by results. Union Pacific R. Co. v. United States, 313 U. S. 450, 462. It is the duty of the Commission to nullify practices that result in rebates or preferences, “whatever form they take and in whatsoever guise they may appear,” O’Keefe v. United States, 240 U. S. 294, 297.3 The appellants’ remaining contentions challenge the sufficiency of the evidence. They rest primarily on the premise that the Commission lacked authority to determine what we had directed it to find. Insofar as these contentions rest on that premise, they have been disposed of by what we have already said. The only contention as to alleged insufficiency of evidence that requires further 3 Appellants contend that if the car rental cost is the maximum allowable payment, the mileage payments to the Car Company were unlawful. That these payments by the railroad to Oil Works were apparently” unlawful and recoverable by the railroad, was the position taken by the Commission in its brief filed when this case was first before us. And in our opinion we stated that since the shipper, not the Car Company, had furnished the cars to the railroad, “It seems clear that no rule or regulation of the carrier may provide for the payment of such allowance to any other person” except Oil Works. But appellants can not benefit from the unlawfulness of Payments to the Car Company. On the contrary, such a conclusion would strengthen the position of the Commission, namely that a just and reasonable” allowance to Oil Works must be determined y the Commission without regard to the mileage payments to Car Company. 22 OCTOBER TERM, 1945. Douglas, J., dissenting in part. 328U.S. attention is that there could be no finding that the practices here involved resulted in rebates or concessions to Oil Works, since the freight on the oils transported was not paid by it, but was allegedly always paid by the consignees and at the regular rate. Oil Works, however, was a shipper who supplied cars to be used as facilities for transportation. For supplying these cars, it could not consistently with § 15 (13) receive from the railroad, directly or indirectly, more than a “just and reasonable” allowance. This allowance was “in respect to transportation.” See Union Pacific R. Co. v. United States, supra, 462. Payment by the railroad of more than the just value of the services inevitably resulted in its carrying Oil Works’ product at less than the regular freight rate, even though it collected the full rate from the consignees. The reduced rate at which Oil Works could thus have its products transported justified the Commission’s finding that Oil Works got a concession and an advantage over other shippers who made no such profits on tank cars. Whether Oil Works or its consignees paid the freight makes no difference. Cf. Elgin, J. & E. R. Co. v. United States, 253 F. 907, 911. A practice which accomplishes this result is prohibited by the Interstate Commerce Act and the Elkins Act. The judgment dismissing the complaint is affirmed, but on the ground that the Commission’s order is valid, and that the appellants were consequently not entitled to the relief prayed for. Affirmed, Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Douglas, dissenting in part. I do not think it should be left to the shipper and the car owner to determine what portion of the tariff paid by the railroad should be paid to the shipper. But that is EL DORADO OIL WORKS v. U. S. 23 12 Douglas, J., dissenting in part. exactly what the Court permits when it measures the shipper’s allowance by the amount of rental he has agreed to pay the car owner. As Commissioner Splawn pointed out in his dissent from the opinion of the Interstate Commerce Commission (258 I. C. C. 371, 382-383), the Commission in following this course failed to comply with our opinion in General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422. We there said (pp. 429-430) : “As the Circuit Court of Appeals has pointed out, different shippers may have differing costs in respect of privately owned cars furnished the carriers. Nevertheless, as the allowances to be made them by the carriers for the use of such cars must be the subject of published schedules, and must be just and reasonable, the Commission is compelled to ascertain in the light of past and present experience a fair and reasonable compensation to cover such costs and prescribe a uniform rate which will reflect such experience. It is inevitable that some shippers may be able to furnish facilities at less than the published allowance while others may find their costs in excess of it. This fact, however, does not militate against the fixing of a uniform rate applicable to shippers properly classified by the Commission.”1 Unless that course is followed, a situation is sanctioned in which concessions and discriminations condemned by § 1 1 Sec. 15 (13) of the Interstate Commerce Act, 49 U. S. C. § 15 (13), provides: “If the owner of property transported under this chapter directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be published in tariffs or schedules filed in the manner provided in this chapter and shall be no more than is just and reasonable, and the commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for under this section.” 717466 O—47-6 24 OCTOBER TERM, 1945. Douglas, J., dissenting in part. 328U.S. of the Elkins Act, 32 Stat. 847, 34 Stat. 587, 49 U. S. C. § 41, are likely to thrive. There is a further objection to the course which the Court sanctions. As stated by Commissioner Splawn in his dissenting opinion (2581. C. C. at 384): “It is elementary that the form of an allowance for the use of cars must be such as to reflect the extent of the use by the railroads of the facilities furnished. Whenever we have had occasion to determine such allowances, we have prescribed either per diem or mileage allowances. The railroads cannot be held responsible for the amount of rent reserved by the Car Corporation in an agreement with the shipper as the car may be left idle during the entire period. The car has value to the railroad only when it is used in transporting lading and results in the payment of freight charges.” Any allowance based on cost to the shipper rather than on the use of the facility furnished violates that principle. Only an appropriate uniform rate would obviate both of the objections I have mentioned.2 I would remand the 2 The Commission’s finding was “That the rental paid or to be paid by El Dorado Oil Works to General American Tank Car Corporation under the terms of the lease agreement between those parties, dated September 28, 1933, was the only cost incurred by the former in furnishing the tank cars in which its shipments moved. A just and reasonable allowance as a maximum to have been paid by the respondents, rail carrier or carriers, to the Oil Works for the furnishing of such cars would have been an amount not to exceed such rental. Such an amount and allowance has been paid to the Oil Works through credits made to the account of the Oil Works by the Tank Car Corporation.” There are no facts of record which show the relationship between the rental paid and the extent of the use by the railroads of the facilities furnished. The Commission made no findings in that regard. Whether a uniform rate which is just and reasonable would be greater or less than the rental is wholly conjectural on the present record. BURTON-SUTTON OIL CO. v. COMM’R. 25 12 Statement of the Case. case to the Commission so that it could now do what, according to my understanding, we originally intended it to do in accordance with the requirements of § 15 (13) of the Interstate Commerce Act.3 BURTON-SUTTON OIL CO., INC. v. COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 361. Argued March 25, 28, 1946.—Decided April 22,1946. 1. The taxpayer, an operating company for the production of oil, was assignee of a contract relating to oil land, whereby the grantee agreed to pay to the grantor 50% of net profits from operations. The contract required the grantee to drill promptly, to account for production, and to sell the production to the grantor on specified terms, if the grantor desired to purchase. The land owner and the grantor’s transferor retained underlying and overriding royalties. Held, under the Revenue Acts of 1934 and 1936, that the 50% payments made by the taxpayer to the grantor were deductible from the taxpayer’s gross income. Pp. 26,32. 2. The contract here involved could not properly be construed as a sale; it was, rather, an assignment of the right to exploit the property, with a reservation in the assignor of an economic interest in the oil. P. 37. 3. Ownership of a royalty or other economic interest in addition to the right to net profits is not essential to make the possessor of a right to a share of the net profit the owner of an economic interest in the oil in place. P. 32. 4. Helvering v. Elbe Oil Land Co., 303 U. S. 372, distinguished. P. 36. 150 F. 2d 621, reversed. The Tax Court sustained the Commissioner’s determination of a deficiency in petitioner’s income tax. 3 3 Note 1, supra. 26 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. T. C. 1187. The Circuit Court of Appeals affirmed. 150 F. 2d 621. This Court granted certiorari. 326 U. S. 755. Reversed, p. 37. Norman F. Anderson argued the cause for petitioner. With him on the brief was Cullen R. Liskow. Solicitor General McGrath, Acting Assistant Attorney General Sewall Key, Helen R. Carloss and Hilbert P. Zarky submitted on brief for respondent. Mr. Justice Reed delivered the opinion of the Court. The taxpayer, the petitioner here, is the operating company for the production of oil from Louisiana lands. The taxpayer acquired a contract from J. G. Sutton, grantee in the contract, that imposed upon the grantee the obligation to develop the oil land. For that purpose the contract transferred to the grantee all oil rights previously obtained by S. W. Sweeney by a lease from the owners of the land, the Cameron Parish School Board. Through another transaction the grantor in the Sutton contract, the Gulf Refining Company of Louisiana, acquired these rights from Sweeney. An underlying oil royalty was retained by the School Board and an overriding oil royalty by Sweeney. The contract between Gulf and Sutton required the grantee-operator, who is now this taxpayer, to pay to the grantor, Gulf, 50% of the proceeds of the oil produced and sold from the land, deducting from the proceeds certain itemized expenses of the producer. Those expenses are so general in character that it may be said fairly that Gulf was to receive 50% of the net from operations. The issue here is the correctness of the taxpayer’s manner of handling this 50% net from operations, paid to Gulf, in its return for federal income tax for its fiscal years ending during 1936, 1937 and 1938 under the Revenue BURTON-SUTTON OIL CO. v. COMM’R. 27 25 Opinion of the Court. Acts of 1934 and 1936. The taxpayer deducted these payments of 50% of net income from its income for each of the years from the oil sold from the property. It claimed that Gulf retained an economic interest in the oil in place to the extent of this 50% payment. The Tax Court upheld the Commissioner’s inclusion of an amount equal to these 50% payments in the taxpayer’s gross income. They were included by the Commissioner in the income on the theory that the 50% payments represented capital investment by the taxpayer. That is, they were a part of the cost of the lease. 3 T. C. 1187. If this theory is correct, it is proper to add an equivalent sum, as the Commissioner did, to the taxpayer’s gross income.1 The Circuit Court of Appeals affirmed the Tax Court. Burton-Sutton Oil Co. v. Commissioner, 150 F. 2d 621. A decision on the category of expenditures to which these 50% disbursements belong affects both the operators who make them and the owners, lessors, vendors, grantors, however they may be classed, who receive them. If they are capital investments to one, they are capital sales to the other. If they are rents or royalties paid out to one, they are rents or royalties received by the other.1 2 The decision below conflicts in principle with Commissioner v. Felix Oil Co., 144 F. 2d 276. Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, involved payments of a share of net income by a producer but differs from this case because the lessor there was a landowner who reserved a royalty as well as a share in the net profits. Consequently, we granted certiorari, 327 U. S. 771. The applicable provisions in the Revenue Acts of 1934 and 1936 and the Regulations thereunder are substan- • 1 The Commissioner and the Tax Court allowed the taxpayer depletion upon its entire income, so adjusted, under § 114 (b). 2 Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, 603-605; Anderson v. Helvering, 310 U. S. 404,407. 28 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. tially the same for the two Acts. We insert below those that seem pertinent.3 The issue of the character of these 50% payments is not settled, however, by the statutes or regulations. These prescribe the federal income tax accounting procedure after a determination that an expendi- 3 Revenue Act of 1936, Ch. 690,49 Stat. 1648,1660,1686: “SEC. 23. DEDUCTIONS FROM GROSS INCOME. In computing net income there shall be allowed as deductions: (m) Depletion.—In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. ... In the case of leases the deductions shall be equitably apportioned between the lessor and lessee. . . .” “SEC. 114. BASIS FOR DEPRECIATION AND DEPLETION. (b) Basis for Depletion.— (3) Percentage depletion for oil and gas wells.—In the case of oil and gas wells the allowance for depletion under section 23 (m) shall be 27^2 per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. . . .” Treasury Regulations 94, promulgated under the Revenue Act of 1936: “Art. 23 (m)-l [as amended by T. D. 5413, 1944 Cum. Bull. 124]. Depletion of mines, oil and gas wells, other natural deposits, and timber; depreciation of improvements.— (g) The term ‘gross income from the property,’ as used in sections 114 (b) (3) and 114 (b) (4) and . . . articles 23 (m)-l to 23 (m)-28 of Regulations . . . 94 . . . means the following: In the case of oil and gas wells, ‘gross income from the property as used in section 114 (b) (3) means the amount for which the taxpayer sells the oil and gas in the immediate vicinity of the well. ... In all cases there shall be excluded in determining the ‘gross income from the property’ an amount equal to any rents or royalties which were paid or incurred by the taxpayer in respect of the property and are not otherwise excluded from the ‘gross income from the property.’ . . .” BURTON-SUTTON OIL CO. v. COMM’R. 29 25 Opinion of the Court. ture of an operator is or is not a rent, a royalty or an ordinary business expense, but throw little light on what is a rent or royalty. In the Kirby case, we held that a payment of a share of the net profits from oil production by the operator to the owner of the land was a rent or royalty and taxable to the landowner as income from the oil property. Therefore the owner could take from the payment the 27^ per centum allowance for depletion provided by § 114 (b) (3). The reason given in the Kirby case for holding that the payment of a part of the net return from the property to the landowner was a royalty or rent,4 was that the owner had a capital investment—an economic interest—in the oil with a possibility of profit from that interest or investment solely from the extraction of the oil. As hereinbefore indicated, the landowner in the Kirby case had retained also a one-sixth oil royalty and had received a bonus. It was conceded that as both the bonus and the royalty represented a return for the sale in part of the lessor’s investment in the oil in place, the lessor was entitled to depletion on both.5 The respondent urges that in the Kirby case it was the lessor’s economic interest in some of the oil itself, or its proceeds, because of the bonus and royalty rights, which made the net profit payments subject to depletion in the 4 A reading of § 114 (b) (3) shows that the “gross income from the property” means income from the oil and gas wells on the property. Helvering v. Twin Bell Syndicate, 293 U. S. 312; Helvering v. Producers Corp., 303 U. S. 376, 382. Other income would not be depletable under that section. “Rents or royalties” in the section are those payable for the privilege of extraction. 5 Kirby Petroleum Co. v. Commissioner, supra, pp. 601-602; Burnet v. Harmel, 287 U. S. 103, 111; Murphy Oil Co. v. Burnet, 287 U. S. 299, 302. 30 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. lessor’s hands; that net profits received are not depletable unless the recipient is entitled also to oil royalties.6 Consequently, the Government contends that in this case where there is only a share in profits due to the assignor, Gulf, the Kirby case conclusion on the right to depletion should not be extended but that the judgment below should be affirmed on the ground that the profit payment was a part of the purchase price. In dealing with the operator’s exclusion from gross income of agreed payments to lessors or assignors of leases out of net profits and with the lessor’s or assignor’s rights to depletion, the Tax Court has not followed consistently the principle that a reserved royalty is necessary to make a net profit payment depletable to the lessor and deductible from gross income from the property by the operator.7 A number of the Tax 6 The principle upon which the Tax Court and the Circuit Court of Appeals decided this case for respondent differs from respondent’s present contention. This principle was that an obligation to pay a part of net proceeds is a personal covenant of the obligor and was the purchase price for the assignment. Burton-Sutton Oil Co. v. Commissioner, 150 F. 2d 621, 622; 3 T. C. 1187, 1194, relying upon Quintana Petroleum Co. v. Commissioner, 143 F. 2d 588, 590-91; 44 B. T. A. 624, 627; Helvering v. Elbe Oil Land Co., 303 U. S. 372. 7 In W. S. Green, 26 B. T. A. 1017, the lessor was allowed depletion on a net income payment in addition to his royalty on the ground that the net income payment was like a bonus. In Marrs McLean, 41 B. T. A. 565, 573, which was decided after the Elbe case, the Tax Court said a transfer of leases for cash and a share of the profits was a sale. Where only a three-fourths interest in the lease was transferred and the transferor was to have one-fourth of the net profits, depletion was allowed the assignor. In Felix Oil Co., T. C. Docket No. 107148, decided December 18, 1942, a lessor corporation that had leased its oil lands for a cash payment plus 50% of the net profits as defined in the lease and no royalty, was held to have “retained an interest in the oil in place” through its ownership of the land. “Clearly, petitioner retained an interest in BURTON-SUTTON OIL CO. v. COMM’R. 31 25 Opinion of the Court. Court cases on depletion and deduction cited in the preceding note did involve reserved royalties as well as payments of net profits. The Felix Oil Company and A. B. the oil produced because it could compel the lessee to sell 50 percent of the production elsewhere if it became dissatisfied with amounts realized by the lessee.” Memorandum op., p. 13. See Commissioner v. Felix Oil Co., 144 F. 2d 277, affirming. Compare A. B. Innis, T. C. Docket Nos. 2735-2736, June 29,1945. In Kirby Petroleum Co., 2 T. C. 1258, 1261, the Tax Court relied on the latter ruling in Marrs McLean and held that the lessor could deplete its net profits payment, as well as its royalty. It later explained this ruling as based on the Kirby Company’s retention of a “one-sixth oil royalty, thus reserving to itself an interest in the oil in place.” Estate of Dan A. Japhet, 3 T. C. 86,93. In the Japhet case, depletion on net profits from an assignee’s operation was denied an assignor of a lease who had received a cash payment but had not reserved a royalty. It was.said no “economic interest” was reserved. In A. B. Innis, T. C. Docket Nos. 2735-2736, June 29,1945, a similar problem arose as to deductibility by gold lease operators from their gross income of a share in net profits paid to the sub-lessor of the lease. The Tax Court found no difference between such a payment to a sub-lessor and one to a lessor. Both were said to have economic interests and therefore depletable rights. Felix Oil Co., supra, was followed and Quintana, supra, distinguished as a sale by assignment rather than sublease. Williams Bar Dredging Co. is in accord. T. C. Docket Nos. 3284,4074, June 30,1945. In Quintana Petroleum Co., 44 B. T. A. 624, an operator-assignee acquired an oil lease by an agreement that called for payment by the assignee to the assignor of one-fourth of the net proceeds from the leased property with no reservation of royalty. The Board concluded that the assignment was a purchase and no deduction of the amount of net profits paid was allowable. See also Quintana Petroleum Co. v. Commissioner, 143 F. 2d 588. In Euleon Jock Gracey, 5 T. C. 296, 302, decided June 21, 1945, the Tax Court under similar circumstances followed Quintana and held an operator-assignee was entitled to depletion on gross production but could not exclude the net profit payment to his assignee from bis gross, as the transfer of the lease, in consideration of a net profit payment only, was a sale. 32 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Innis did not. We do not agree with the Government that ownership of a royalty or other economic interest in addition to the right to net profits is essential to make the possessor of a right to a share of the net profit the owner of an economic interest in the oil in place. The decision in Kirby did not rest on that point. To let the character of the net profit payments turn wholly on the ownership of a royalty of some sort by the one who received the net profit would make the right to depletion a form of words. No such mechanical application of a national tax act is desirable. Compare Burnet v. Harmel, 287 U. S. 103, 110-11. This taxpayer’s acquisition of Sutton’s contract with Gulf places the taxpayer in Sutton’s situation as operator of the School Board lease. The School Board and Sweeney, the original parties to the lease, unquestionably have royalties which would compel a determination that net income payments would be subject to depletion if paid to them in addition to their royalties. It does not logically follow, it seems to us, that the mere receipt of the net income payments by different lessors or assignors can change the character of the taxpayer’s arrangements from leases to purchases. It seems generally accepted that it is the owner of a capital investment or economic interest in the oil in place who is entitled to the depletion. Anderson v. Helvering, 310 U. S. 404, 407; E ule on Jock Gracey, 5 T. C. 296, 302; Kirby Petroleum Co. v. Commissioner, supra. Whether the instrument creating the rights is a lease, a sublease or an assignment has not been deemed significant from the federal tax viewpoint in determining whether or not the taxpayer had an economic interest in the oil in place. Palmer v. Bender, 287 U. S. 551, 557, 558. Nor has the title to the oil in place been considered by this Court as decisive of the capital investment of the taxpayer in the BURTON-SUTTON OIL CO. v. COMM’R. 33 25 Opinion of the Court. oil.8 Technical title to the property depleted would ordinarily be required for the application of depletion or depreciation. It is not material whether the payment to the assignor is in oil or in cash which is the proceeds of the oil, Helvering v. Twin Bell Syndicate, 293 U. S. 312, 321, nor that some of the payments were in the form of a bonus for the contract. Burnet v. Harmel, 287 U. S. 103, 111; Murphy Oil Co. v. Burnet, 287 U. S. 299, 302. Congress, however, has recognized the peculiar character of the business of extracting natural resources.9 Leases are a method of exploitation of the land for oil and payments under leases are “income to the lessor, like payments of rent.”10 11 Receipts from oil sales are gross income to the operator and subject to statutory deductions. Since lessors as well as lessees and other transferees of the right to exploit the land for oil may retain for themselves through their control over the exploitation of the land valuable benefits arising from and dependent upon the extraction of the oil,11 Congress provided as early as the Revenue Act 8 287 U. S. at 557: “The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” 287 U. S. at 558: “Even though legal ownership of it, in a technical sense, remained in their lessor, they, as lessees, nevertheless acquired an economic interest in it which represented their capital investment and was subject to depletion under the statute.” Lynch v. Alworth-Stephens Co., 267 U. S. 364; Burnet v. Harmel, 287 U. S. 103,109-10; Bankers Coal Co. v. Burnet, 287 U. S. 308; Kirby Petroleum Co. v. Commissioner, supra, p. 603. 9 Stratton’s Independence v. Howbert, 231 U. S. 399, 413-14. 10 Burnet v. Harmel, 287 U. S. 103, 107-8. 11 See Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370; Palmer v. Bender, 287 U. S. 551, 556. 34 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. of 191812 for equitable apportionment of the depletion allowance between them to correct what was said to be an existing inequality in the law or its administration.13 In the present case, the assignor of the petitioner before assignment had an economic interest in the oil in place through its control over extraction. Under the contract with petitioner, its assignor retained a part of this interest—fifty per cent of net. Like the other holders of such economic interest through royalties, the petitioner looked to the special depletion allowances of § 114 (b) (3) to return whatever capital investment it had. The cost of that investment to the beneficiary of the depletion under § 114 (b) (3) is unimportant. Depletion depends only upon production. It is the lessor’s, lessee’s or transferee’s “possibility of profit” from the use of his rights over production, “dependent solely upon the extraction and sale of 12 40 Stat. 1057, 1067, 1078, §§214 (a) (10), 234 (a) (9). 13 H. Rep. No. 767, 65th Cong., 2d Sess., September 3,1918, Deductions (5) and for corporations, Deductions (4). The inequality referred to under the Revenue Act of 1916, 39 Stat. 759, §5, Eighth (a), arose from the preferred treatment given the owner over the lessee. See Hearings, House Committee on Ways and Means, 65th Cong., 2d Sess., pp. 455, 516-17, 523-28, 530-31. Regulations 33, Income Tax, promulgated January 2, 1918, Art. 170; Regulations 45, 1920 ed., Income Tax, promulgated January 28,1921, Art. 201. The applicable law for allowance of depletion in oil and gas wells appears in § 114 (b) (3). It is identical with I. R. C. § 114 (b) (3). This section is the result of administrative experience with oil and gas depletion. Hearings, Sen. Com. on Finance, 69th Cong., 1st Sess., pp. 177-78; Hearings, House Com. on Ways and Means, 69th Cong., p. 1006. See H. Rep. No. 1, 69th Cong., 1st Sess., December 7, 1925, Discovery Value; § 204 (c) (2), 44 Stat. 16. For discussion see Helvering v. Twin Bell Syndicate, 293 U. S. 312, and Kirby Petroleum Co. v. Commissioner, supra, pp. 602, 603. Depletion is now an arbitrary percentage allowance based on production from the wells without regard to cost or value of the property. BURTON-SUTTON OIL CO. v. COMM’R. 35 25 Opinion of the Court. the oil,” which marks an economic interest in the oil. See Kirby Petroleum Co. v. Commissioner, supra, page 604. Through retention of certain rights to payments from oil or its proceeds in himself, each of these assignors of partial exploitation rights in oil lands has maintained a capital investment or economic interest in the oil or its proceeds.14 As the oil is extracted and sold, that economic interest in the oil in place is reduced and the holder or owner of the interest is entitled to his equitable proportion of the depletion as rent or royalty. The operator, of course, may deduct such payments from the gross receipts. Of course, such a transferor, whether the landowner or any intermediate assignor, may completely divest himself of any interest, economic or otherwise, in the extraction of the oil. As the record shows no reservation of an economic interest by Sutton, the assignee of Gulf and the assignor of petitioner, he appears to have done so in this case. See Helvering v. Elbe Oil Land Co., 303 U. S. 372. While, as pointed out above, the payment of proceeds in cash, the form of the instrument of transfer and its effect on the title to the oil under local law are not decisive of the right to participation in depletion under § § 23 (m) and 114 (b) (3), there must be a determination under federal tax law as to “whether the transferor has made an absolute sale or has retained” such economic interest as we have just described in the preceding paragraph. Kirby Petroleum Co. v. Commissioner, supra, page 606. We have said that the instrument should be construed as a sale when a large cash payment was made with a reserved payment that could be satisfied by future sales of the transferred property without extraction of the oil. Obviously 4 A participation in net profits disassociated from an economic interest does not enable a recipient of such profits to benefit from depletion. Helvering v. O’Donnell, 303 U. S. 370. 36 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. there could be no depletion without extraction. Anderson v. Helvering, 310 U. S. 404, 412. On the other hand, we have construed an assignment of oil leases for cash and a deferred payment, “payable out of oil only, if, as and when produced,” as the reservation of an economic interest in the oil—not a sale. Thomas v. Perkins, 301 U. S. 655. The Government contends that Helvering v. Elbe Oil Land Co., 303 U. S. 372, controls this case. The transfer of the leases in Elbe was held an absolute sale. There the transfer was for cash, deferred payments in cash, if the assignee did not take advantage of a stipulation for abandonment, and a one-third interest in the net profits of the assignee. It was further provided that Elbe, the assignor after the transfer, should have “no interest in or to said properties,” except in the case of an abandonment of the property by the assignee. This provision for the transfer of all interest of the assignor was emphasized as a significant part of the agreement for transfer. The issue upon which this Court passed was the classification of the deferred payments. Were they gross income from the property or receipts from a sale of the leases? These deferred payments were not payable out of oil sales but were payable absolutely, unless there was an abandonment. This Court concluded that the addition of a provision for the payment of a share of net profits did not qualify “in any way the effect of the transaction as an absolute sale.” Page 375. In view of what we have said in this and in the Kirby Petroleum case as to the economic interest in the oil of a recipient of a share of net profits, the holding of Elbe should not be extended to the facts of this agreement. The assignor, Gulf, in the assignment here involved, required the grantee to drill promptly, to account for production, to pay over fifty per cent of receipts, less agreed BURTON-SUTTON OIL CO. v. COMM’R. 37 25 Opinion of Frankfurter, J. costs and expenses, and to sell the production on defined terms to grantor, if grantor desired to purchase. This last clause did not appear in the Elbe contract. Such a transfer of rights to exploit could not, we think, properly be construed as a sale. It is rather an assignment to the operator, petitioner here, of the right to exploit the property15 with a reservation in the assignor of an economic interest in the oil. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Black and Mr. Justice Douglas dissent. Mr. Justice Frankfurter. The tortuous process by which the result in this case has evidently to be reached by the Court justifies calling attention again to the present unsatisfactory state of tax litigation. It is of course idle to expect that the complexities of our economic life permit revenue measures to be drawn with such simplicity and particularity as to avoid much litigation. But it is not a counsel of perfection to assume that a system of judicial oversight of fiscal administration can be devised sufficiently rational to avoid the unedifying series of cases relating to income from oil operations culminating, for the present at least, in this case. The Court made a brave effort in Dobson v. Commissioner, 320 U. S. 489, to meet some of the difficulties of the present distribution of judicial authority in tax cases by lodging practical finality in a Tax Court decision unless it invokes a “clear-cut mistake of law.” Id. at 502. An attempt to give adequate scope to such a doctrine of I judicial abstention by dealing with the practicalities of I 15 See the discussion of Felix Oil Co. in note 7, supra. 38 OCTOBER TERM, 1945. Opinion of Frankfurter, J. 328U.S. tax matters instead of relying on the grab-bag concepts of “law” and “fact” as a basis of review has not, however, commended itself to the Court. See Trust of Bingham n. Commissioner, 325 U. S. 365. To be sure, even the adoption of this view would not make the Tax Court the Exchequer Court of the country inasmuch as tax litigation can go through the district courts as well as through the Tax Court. It would, however, largely centralize review in the Tax Court of Treasury determinations, assuming that the bulk of tax litigation will continue to find its way to the Tax Court. It is suggested that the Tax Court makes differentiations from case to case which to the uninitiated look suspiciously like conflicting opinions. But it is impossible to escape nice distinctions in the application of complicated tax legislation. And so far as over-nice distinctions are to be made, I do not see that it helps the administration of law for this Court rather than the Tax Court to make them. Nothing better illustrates the gossamer lines that have been drawn by this Court in tax cases than the distinction made in the Court’s opinion between Helvering v. Elbe Oil Land Co., 303 U. S. 372, and this case. To draw such distinctions, which hardly can be held in the mind longer than it takes to state them, does not achieve the attainable certainty that is such a desideratum in tax matters, nor does it make generally for respect of law. Perhaps it is inherent in the scheme which Congress has provided for review of tax litigation that we have such an unsatisfactory series of decisions as those which are sought to be reconciled by the present opinion. If so, then the call for legislation voiced in responsible quarters to reform the situation may well be heeded. See e. g., Griswold, The Need for a Court of Tax Appeals (1944) 57 Harv. L. Rev. 1153. UTAH JUNK CO. v. PORTER. 39 Counsel for Parties. UTAH JUNK CO. v. PORTER, PRICE ADMINISTRATOR. CERTIORARI TO THE EMERGENCY COURT OF APPEALS. No. 400. Argued February 26, 1946.—Decided April 22, 1946. 1. The amendment of § 203 (a) of the Emergency Price Control Act of 1942 by § 106 of the Stabilization Act of 1944 authorized any person subject to a price schedule to file a protest “at any time.” Held that, although the time within which a protest could be filed under the original Act had expired, a person whose rights were affected was entitled to file a protest under the amendatory Act, notwithstanding that the basis of his objection to the price schedule had been removed prospectively by modification of the price schedule prior to the filing of the protest. P. 43. 2. The considerations of fairness which led Congress to liberalize the right of protest under the price control legislation apply equally to a regulation that has been revised and to a new regulation, where the superseded regulation continues to govern the validity of transactions that occurred under its rule. P. 44. 3. The contentions that the Administrator ought not to be burdened with issues arising under superseded regulations, and that the protestant here could test the validity of the price schedule by other procedures, do not warrant the construction urged by the Administrator. Pp. 44-45. 150 F. 2d 963, reversed. The Price Administrator denied a protest filed with him by the petitioner under the Emergency Price Control Act. The Emergency Court of Appeals dismissed petitioner’s complaint. 150 F. 2d 963. This Court granted certiorari. I 326 U. S. 710. Reversed, p. 45. Keith L. Seeg miller submitted on brief for petitioner. Richard H. Field argued the cause for respondent. With him on the brief were Solicitor General McGrath, I R. Benney and Jacob D. Hyman. 717466 O—47_7 40 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Mr. Justice Frankfurter delivered the opinion of the Court. This is one of a series of cases calling for the construction of amendments to the Emergency Price Control Act of 1942. Section 203 of that Act, 56 Stat. 23, 31; 50 U. S. C. App. § 923, confined within narrow limits the right to protest to the Administrator against a price schedule promulgated by him. The Stabilization Act of 1944, 58 Stat. 632, 638; 50 U. S. C. App. § 923, greatly liberalized this right to protest. The view taken by the United States Emergency Court of Appeals of the scope of this liberalization, 150 F. 2d 963, based on its prior ruling in Thomas Paper Stock Co. v. Bowles, 148 F. 2d 831, led us to bring the case here. 326 U. S. 710. The facts relevant to the immediate issue can be quickly stated. The Administrator established maximum prices for iron and steel scrap. Revised Price Schedule No. 4, 7 Fed. Reg. 1207 (February 21, 1942). This schedule, § 1304.13 (f), id. at 1212, made no special provision for smelter fluxing scrap, scrap prepared for use in lead blast furnaces. Petitioner, a scrap dealer, operating in Utah, was engaged in the preparation and sale of fluxing scrap. Between April 25, 1942, and February 10, 1943, it sold a considerable amount of fluxing scrap to one of its customers, for which it was to be paid, in addition to the ceiling price for the scrap, $1.50 per ton for preparing the scrap. Inasmuch as the petitioner had been notified by the Office of Price Administration that such a charge was a violation of the price schedule, it merely billed its customer for the additional $1.50 per ton but abstained from collecting it, so as to avoid the penal provisions of the Price Control Act. The controversy concerns petitioner’s lawful right to collect this processing charge as previously agreed upon UTAH JUNK CO. v. PORTER. 41 39 Opinion of the Court. between the parties to the contract. Claiming that the price schedule governing the sales in question was invalid insofar as it failed to permit an allowance for processing, petitioners filed a protest with the Administrator. The Administrator and the Emergency Court of Appeals ruled that the protest came too late. It was timely, in any event, only if the amendment to § 203 (a) of the Price Control Act of 1942 made by § 106 of the Stabilization Act of 1944, 58 Stat. 632, 638, can be invoked after the ground of objection to a price schedule had been prospectively removed.1 For the Administrator had completely met petitioner’s objection by the time that the petitioner could avail itself of whatever enlarged right of protest the 1944 amendments conferred. The Administrator did so, in part, on December 21, 1943, by authorizing a Regional Office of the Price Administration to grant upon application an allowance of up to $1.50 per ton for processing scrap; and on June 30, 1944, the very day that the Act of 1944 became effective, the schedule was revised to permit such a charge on all future sales of scrap. 9 Fed. Reg. 7330. 1 § 203 (a) reads as follows; the bracketed material was deleted by the 1944 amendment, the italicized material added by that amendment: “[Within a period of sixty days] At any time after the issuance of any regulation or order under section 2, or in the case of a price schedule, [within a period of sixty days] at any time after the effective date thereof specified in section 206, any person subject to any provision of such regulation, order, or price schedule may, in accordance with regulations to be prescribed by the Administrator, file a protest specifically setting forth objections to any such provision and affidavits or other written evidence in support of such objections. [At any time after the expiration of such sixty days any person subject to any provision of such regulation, order, or price schedule may file such a protest based solely on grounds arising after the expiration of such sixty days.]” 56 Stat. 23, 31; 58 Stat. 632, 638 ; 50 U. S. C. aPP.§923 (a). 42 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. This brings us to the controlling legislation. The procedure established by the Emergency Price Control Act of 1942 authorized “any person subject to any provision” of a price schedule issued by the Administrator to “file a protest specifically setting forth objections to any such provision,” with a right of appeal to the Emergency Court of Appeals from denial of such protest by the Administrator. §§ 203 (a) and 204 (a), 56 Stat. 23,31. But such protest had to be made “within a period of sixty days after the effective date” of a price schedule. By the Stabilization Act of June 30, 1944, 58 Stat. 632, 638, Congress amended the procedure so that a protest against any provision of a price schedule could be filed “at any time” after the effective date. If one had only the words of the 1944 amendment to go on, it would be dubious to infer that Congress had not only removed the bar of sixty days for protests to which the future may give rise but had also revived a right of protest which had expired through non-user under the Act of 1942. But such, it appears, is the meaning of the amendment. On this point the legislative history is decisive. A Senate report furnishes an authoritative gloss: “The committee was concerned ... by the fact that in the early days of price control many people unfamiliar with the provisions of the act might have lost their right to challenge the basic validity of a regulation by excusable failures to file a protest within the statutory period. The committee therefore recommends that with respect to all regulations issued before July 1, 1944, a new period of 60 days from that date be provided for the filing of protests. . . .” S. Rep. No. 922, 78th Cong., 2d Sess. (1944) 10. It will be noted that the Senate proposed a reviver of barred claims for only sixty days. Even this limitation was removed when the measure was amended by the House UTAH JUNK CO. v. PORTER. 43 39 Opinion of the Court. and subsequently became law. See H. R. Rep. No. 1593, 78th Cong., 2d Sess. (1944) 5; H. R. Rep. 1698,78th Cong., 2dSess. (1944) 21. Congress was evidently impressed by the need for relief of rights lost through what it deemed excusable failure to enforce them under the original Price Control Act. Since, then, Congress lifted the sixty-day limitation retrospectively, we are relieved from considering whether, in the circumstances of this case, petitioner’s right of protest would have been barred even under the 1942 Act so long as the controverted price schedule remained unmodified.2 But this takes us only part of the way. We need still ascertain whether the 1944 amendment authorizes a protest without a time limit only against a price schedule contemporaneously active. Does it, that is, preclude a right of protest like petitioner’s against a schedule that had been superseded, although it continues to govern the validity of transactions that occurred under its rule? The Administrator argues that this restriction upon the enlargement of the right of protest made by the Act of 1944 is immanent in what Congress said. This is what Congress said: “At any time after the issuance of any regulation or order . . ., or in the case of a price schedule, at any time after the effective date thereof . . . any per- 2 The price schedule in controversy was reissued on February 21, 1942, 7 Fed. Reg. 1207, and the sixty days for protest, under the 1942 Act, expired on April 21, 1942. But it was not until April 25, 1942, that petitioner was notified by the 0. P. A. that the schedule applied to its sales of fluxing scrap. Under the original Act, the sixty-day imitation did not apply to “a protest based solely on grounds arising a ter the expiration of such sixty days.” We need not decide whether petitioner could have brought itself under this escape clause. See Galban Lobo Co. v. Henderson, 132 F. 2d 150; United States Gypsum Co. v. Brown, 137 F. 2d 803; R. E. Schanzer, Inc. v. Bowles, 141 F. d 262; Marlene Linens v. Bowles, 144 F. 2d 874. 44 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. son subject to any provision of such regulation, order, or price schedule may, in accordance with regulations to be prescribed by the Administrator, file a protest . . .” We find nothing in this language of the 1944 amendment of § 203 (a), or in its history, or in any illumination otherwise shed upon the terms of this legislation, to justify reading in a qualification that Congress has left out. All construction is the ascertainment of meaning. And literalness may strangle meaning. But in construing a definite procedural provision we do well to stick close to the text and not import argumentative qualifications from broad, unexpressed claims of policy. Insofar as such considerations are relevant here, however, they tell against cutting down the natural meaning of the language Congress chose. Congress liberalized the right to challenge the validity of price regulations so extensively as it did, even reviving rights theretofore lapsed, because it felt, as we have seen, that rights were unfairly lost through unfamiliarity with the technical requirements of emergency legislation. Price-fixing is not static; it is a continuing process. The considerations of fairness that led Congress to give relief are the same whether a regulation was revised or remained unchanged. There is not a hint that Congress intended to draw a line so artificial as the one the Administrator would have us draw. This conclusion is left undisturbed by the arguments advanced on behalf of the Administrator. It is urged that he ought not to be burdened with issues arising under superseded regulations. But as a matter of law enforcement a regulation continues to survive its supersession as a contemporaneous price schedule. United States v. Hark, 320 U. S. 531. The Administrator has the duty of enforcing the Act, and in a proceeding for suspension of a license UTAH JUNK CO. v. PORTER. 45 39 Opinion of the Court. or for treble damages or penalties, it is immaterial that the basis of the suit is violation of a superseded price regulation. It is also suggested that the protest proceedings under § 203 (a) as amended are not available to a protestant in petitioner’s plight because the validity of the old schedule may be otherwise tested. The only other way implies the readiness of the customer to pay the contract price for the processing charge and its acceptance by the petitioner, subjecting both to civil and criminal actions for violations of the Act. With the consent of the trial court, the Emergency Court of Appeals could then pass on the schedule. § 204 (e), 58 Stat. 632,639; 50 U. S. C. App. § 924 (e). It surely does not commend itself to good sense to bar a direct protest to the Administrator so easily justified by an unstrained reading of the Act, because leave might be obtained to litigate the issue in a roundabout way, involving violations of a presumptively valid regulation. And in the event that the Administrator’s insistence on the validity of the old maximum scrap price schedule is not challenged by violation, it could not be tested by bringing a suit on the contract for the additional price. Yakus v. United States, 321 U. S. 414. Finally, apart from a construction of the statute which we are bound to reject, the Administrator seeks to invoke the general doctrine of laches” against the petitioner, upon the particular facts of this case. The Emergency Court of Appeals may consider that issue when, upon remand, it disposes of this case in conformity with this opinion. Judgment reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. 46 OCTOBER TERM, 1945. Syllabus. 328 U. S. COLLINS ET AL. V. PORTER, PRICE ADMINISTRATOR. CERTIORARI TO THE EMERGENCY COURT OF APPEALS. No. 393. Argued February 26, 1946.—Decided April 22, 1946. 1. The decision of this case on the merits is governed by Utah Junk Co. n. Porter, ante, p. 39. P. 49. 2. While a suit for treble damages under § 205 (e) of the Emergency Price Control Act was pending in the District Court against petitioners, they filed with the Price Administrator a protest under § 203 (a) seeking to have the regulation on which the enforcement proceeding was based declared invalid or inapplicable. The protest was dismissed by the Price Administrator, and petitioners’ ensuing complaint in the Emergency Court of Appeals was dismissed by that court without opinion. Upon a complaint filed by leave of the District Court under § 204 (e) of the Act, the Emergency Court of Appeals sustained the validity of the regulation but refused to pass on its applicability to petitioners. Held that the judgment of the Emergency Court of Appeals dismissing the complaint in the protest proceeding under § 203 (a) was not rendered moot by its judgment sustaining the validity of the regulation in the proceeding under § 204 (e). P. 48. 3. The fact that Congress by the 1944 amendment of the Emergency Price Control Act granted a limited opportunity for review of a regulation by the Emergency Court of Appeals by leave of a district court in which an enforcement proceeding is pending, neither repealed nor qualified the protest proceeding originally authorized by § 203 (a). The two methods of securing a hearing on the validity and applicability of a price regulation are cumulative and not alternative. P. 49. 4. A person against whom a treble damage suit for violation of a regulation under the Emergency Price Control Act is pending, is a “person subject to . . . such regulation” within the meaning of § 203 (a) of the Act, although the regulation has since been revoked or superseded. United States v. Hark, 320 U. S. 531. P. 49. Reversed. COLLINS v. PORTER. 47 46 Opinion of the Court. Petitioners filed with the Price Administrator a protest under the Emergency Price Control Act. The Price Administrator denied the protest. The Emergency Court of Appeals dismissed the petitioners’ complaint. This Court granted certiorari. 326 U. S. 710. Reversed, p. 49. Mac Asbill argued the cause for petitioners. With him on the brief were Allen P. Dodd, Sr. and Max O’Rell Truitt. Richard H. Field argued the cause for respondent. With him on the brief were Solicitor General McGrath, John R. Benney, Jacob D. Hyman and John 0. Honnold, Jr. Mr. Justice Frankfurter delivered the opinion of the Court. Petitioners were stockholders in a distilling corporation on the dissolution of which in December, 1942, they received as their share of the assets warehouse receipts covering the bulk whiskey owned by the corporation. Early in January, 1943, they sold these receipts at a price above that fixed by the Administrator for bulk whiskey, Maximum Price Regulation 193, 7 Fed. Reg. 6006 (August 4, 1942), on the assumption that the receipts constituted “securities” expressly exempt from the pricing provisions. On the basis of the sale of these certificates the Administrator, under § 205 (e) of the Emergency Price Control Act, 56 Stat. 23, 34; 50 U. S. C. App. § 925 (e), brought a suit for treble damages against the petitioners to recover approximately $6,800,000. That suit is still pending. In May, 1945, petitioners, invoking the authority of § 203 (a), 56 Stat. 23, 31, 58 Stat. 632, 638; 50 U. S. C. App. § 923 (a), sought to have the regulation on which the enforcement proceedings against them were based de- 48 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. dared invalid or inapplicable by a protest filed with the Administrator. He dismissed it on the authority of Thomas Paper Stock Co. v. Bowles, 148 F. 2d 831, the ruling of which we have reversed in Utah Junk Co. n. Porter, decided this day, ante, p. 39. Petitioners then went to the Emergency Court, which dismissed the complaint without opinion, and we granted certiorari. 326 U. S. 710. Prior to the petition for certiorari, petitioners obtained leave of the trial court in the treble damage action to file a complaint with the Emergency Court under § 204 (e) of the Act, 58 Stat. 632, 639, 50 U. S. C. App. § 925 (e), and on January 10, 1946, that court sustained the validity of the regulation. Collins v. Bowles, 152 F. 2d 760. The Government contends that the latter decision of the Emergency Court renders moot the judgment of that court dismissing the complaint, which is the only judgment now before us. This Court is powerless to decide a case if its decision “cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U. S. 41, 42. The decision of this case may affect the rights of the litigants. The Emergency Court sustained the challenged regulation. It refused to pass on the applicability of the regulation to the petitioners. It left that question to the District Court before which the treble damage suit is pending. Had petitioners’ contentions come before the Emergency Court through the protest proceedings under §•203 (a) that court would have adjudicated both issues. Conklin Pen Co. v. Bowles, 152 F. 2d 764; Collins v. Bowles, supra. And in the event that the Emergency Court had found the regulation inapplicable and such decision had been made before a judgment was rendered in the District Court, its ruling would be binding upon the District Court. Under § 204 (e) (2) (ii), consideration of a protest under § 203 (a) is not a ground for staying the COLLINS v. PORTER. 49 46 Opinion of the Court. proceedings in the District Court, since the protest proceeding did not precede the suit in the District Court; and under the same provisions of the Act determination of the protest proceeding under § 203 (a) can have no retroactive effect once the District Court has entered its judgment. But the opportunity for securing a decision from the Emergency Court through the protest proceeding before a judgment in the District Court is entered, has practical significance and makes this a living and not a hypothetical controversy. On the merits the case is governed by our decision in Utah Junk Co. n. Porter. The petitioners in this case had a right to have their protests considered by the Administrator and, in case of denial, to resort to the Emergency Court of Appeals. The fact that Congress in 1944 gave a limited opportunity to go to the Emergency Court by leave of the District Court before which an enforcement proceeding is pending, § 204 (e), neither repealed nor qualified the protest proceeding originally designed by § 203 (a). The two modes of securing a hearing on the validity and applicability of the price regulation are cumulative and not alternative. The Administrator advances no argument to distinguish the case from that of Utah Junk Co. v. Porter. His contention that the petitioners are not persons “subject to . . . [the] regulation,” §203 (a), is amply refuted by the continuing liability of the petitioners, United States v. Hark, 320 U. S. 531, for some $6,800,000, should their arguments as to the invalidity and inapplicability of the regulation be rejected when the case is considered on the merits. It is superfluous to discuss other issues raised in this case. Judgment reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. 50 OCTOBER TERM, 1945. Statement of the Case. 328 U. S. THOMAS PAPER STOCK CO. et al. v. PORTER, PRICE ADMINISTRATOR. CERTIORARI TO THE EMERGENCY COURT OF APPEALS. Nos. 67 and 578. Argued February 25, 26, 1946.—Decided April 22, 1946. 1. The Taft Amendment to the Emergency Price Control Act nullified price schedules based on standards, and no such schedules could be valid after that Amendment unless and until the Price Administrator “determined” that no other method of price control was practicable. P. 53. 2. Sales of wastepaper between July 16, 1943, the effective date of the Taft Amendment, and September 11, 1943, the date when the Price Administrator determined that other than by standardization no method of effective price control of such commodity was practicable, did not subject the sellers to the penalties of the Emergency Price Control Act, even though such sales were at prices in excess of a pre-Taft Amendment maximum price based on a standard. Pp. 51-52, 56. 3. The accommodation of the various interests involved in a system of price control is for Congress, not the courts; and the legislation is to be so construed as to give effect to the will of Congress. P. 55. 151 F. 2d 345, reversed. No. 578. By leave of the District Court in which a prosecution of the petitioners for violation of a regulation under the Emergency Price Control Act was pending, petitioners sought in the Emergency Court of Appeals a declaration of the invalidity of the regulation. The Emergency Court of Appeals sustained the validity of the regulation. 151 F. 2d 345. This Court granted certiorari. 326 U. S. 715. Reversed, p. 56. No. 67. Petitioners filed a protest with the Price Administrator under the Emergency Price Control Act. The Price Administrator denied the protest. The Emergency THOMAS PAPER STOCK CO. v. PORTER. 51 50 Opinion of the Court. Court of Appeals sustained the Price Administrator. 148 F. 2d 831. This Court granted certiorari. 325 U. S. 847. Writ of certiorari dismissed, p. 56. Jack H. Oppenheim argued the cause for petitioners. With him on the briefs was Claude A. Roth. Jacob D. Hyman argued the cause in No. 578, and Richard H. Field argued the cause in No. 67, for respondent. With them on the briefs were Solicitor General McGrath, Ralph F. Fuchs and Josephine H. Klein. Mr. Justice Frankfurter delivered the opinion of the Court. Having been charged with violations of a price regulation, petitioners challenged its validity before the Emergency Court of Appeals by two different modes in two separate actions. The claim of invalidity in both proceedings was based on the Taft Amendment to the Price Control Act. Adjudication of this claim will dispose of both cases without consideration of procedural issues raised before the Emergency Court. Thomas Paper Stock Company, a dealer in paper scrap, and its president were indicted under § 205 (b) of the Emergency Price Control Act, 56 Stat. 23, 33; 50 U. S. C. App. § 925 (b), for the sale of wastepaper in violation of Maximum Price Regulation No. 30,7 Fed. Reg. 9732 (Nov. 24, 1942). Section 1347.14 (d) of that regulation fixed the maximum price for unsorted wastepaper in terms of a specification or standard. Id. at 9735. On similar allegations, the Administrator later began an action against petitioners for treble damages. § 205 (e), 56 Stat. 23,34; 50 U. S. C. App. § 925 (e). Both proceedings involved sales of wastepaper between July 16, 1943 and September 52 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. 11, 1943. The dates are crucial. July 16, 1943 is the effective date of the Taft Amendment, the proper construction of which is the controlling issue. On September 11, 1943, the Administrator, by an amendment to the Maximum Price Regulation No. 30, “determined” that “no practicable alternative exists for securing effective price control” with respect to such wastepaper except through the standardization defined in the pre-Taft Amendment Maximum Price Regulation No. 30. 8 Fed. Reg. 12554 (Sept. 14, 1943). The problem before us is whether, after the Taft Amendment, sales of wastepaper were governed by a maximum price based on a standard, prior to the determination by the Administrator on September 11, 1943 that there was no practicable alternative to such standardization. And so we turn to the Taft Amendment. It added subsection (j) to § 2 of the Emergency Price Control Act. The relevant provisions of the Taft Amendment are these: “(j) Nothing in this Act shall be construed . . • (3) as authorizing the Administrator to standardize any commodity, unless the Administrator shall determine, with respect to such standardization, that no practicable alternative exists for securing effective price control with respect to such commodity; or (4) as authorizing any order of the Administrator fixing maximum prices for different kinds, classes, or types of a commodity which are described in terms of specifications or standards, unless such specifications or standards were, prior to such order, in general use in the trade or industry affected, or have previously been promulgated and their use lawfully required by another Government agency.” 57 Stat. 566; 50 U. S. C. App. § 902 (j). We agree with the Emergency Court that Congress thus provided “three alternative situations in any one of which THOMAS PAPER STOCK CO. v. PORTER. 53 50 Opinion of the Court. [the Administrator] is authorized to employ specifications or standards in connection with price control.” Thomas Paper Stock Co. v. Bowles, 148 F. 2d 831, 835. Thus, in the case of wastepaper, standardization is permitted under Clause (3) of the Amendment although the Administrator may define a standard which “had not previously been used by the wastepaper industry or required by another Government agency.” Id. at 837. But we are also of opinion that beginning with July 16, 1943, the day the Taft Amendment came into force, it precluded standardized commodity prices unless and until the Administrator “determined” that no other method of price control was practicable. The terms of the Amendment, in the circumstances of its setting, see, e. g., H. R. Rep. No. 697, 78th Cong., 1st Sess. (1943), bring us to this conclusion, but we need add little to the full discussion the Taft Amendment received in the opinion of the court and that of the dissent below. Thomas Paper Stock Co. v. Bowles, 151F. 2d 345. For us the decisive consideration is that the Amendment was a rigorous limitation upon the powers of the Administrator based upon the Congressional view that standardizations outstanding at the time the Taft Amendment was passed had not been authorized by the more general language of the original Act. § 2 (h), 56 Stat. 23, 27; 50 U. S. C. App. § 902 (h).1 Accordingly, Congress laid down a specific requirement for the validity of prices based on standards, and a fair reading of the Amendment in the light of its history requires that the Administrator must indicate that he has fulfilled this requirement. See United States v. B. & 0. R. Co., 293 U. S. 454. It would hardly satisfy the restriction which the Taft Amendment 1 The powers granted in this section shall not be used or made to operate to compel changes in the business practices, cost practices or methods, or means or aids to distribution, established in any indus-except to prevent circumvention or evasion of any regulation, order, price schedule, or requirement under this Act.” 54 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. placed upon the Administrator’s power to standardize to allow him to continue situations which, as Congress thought, needed correction. In signing the joint resolution containing the Taft Amendment, the President did so with the understanding that it “preserved power in the Administrator to ‘standardize’ a commodity in any case on which this was absolutely essential to an effective system of fixing prices.” See Statement of Price Administrator’s Reasons Involved in the Issuance of Supplementary Order No. 64 (Sept. 11, 1943). Congress thus gave power to standardize; it did not stereotype past standardizations. With entire candor the Administrator conceded here that he “had many regulations outstanding which required re-examination in the light of the terms of the Taft Amendment.” But although the Amendment apparently had the acquiescence of the Administrator, it contains no saving clause that all outstanding standardizing regulations were to be deemed continuingly valid, nor is there any intimation warranting such an implied limitation. The court below seemed to recognize the duty of a manifested determination by the Administrator of the need for a standardized price by suggesting that the Administrator showed “reasonable promptness” in making the determination applicable to wastepaper within two months after the Taft Amendment. But Congress did not sanction standardization for what we may deem a reasonable period after the enactment of the Taft Amendment without the Administrator’s determination of its need. This is too substantial a qualification to be made by judicial interpolation. Nor can we draw on broad arguments about inflationary pressures on price control m construing legislation dealing with so technically confining a provision as that of the Taft Amendment. The legislation was too specifically directed against prior unauthor- THOMAS PAPER STOCK CO. v. PORTER. 55 50 Opinion of the Court. ized regulations, promulgated no doubt with the best of motives in the great effort against inflation, for us to give it a meaning other than that which the language in the context of its history yields. Of course, all provisions of the Emergency Price Control Act are infused by its far-reaching aims. But the accommodation of the various interests involved in a system of price control is for Congress and not for us, and we must construe its legislation as fairly as we can to catch the will behind the words. That the construction we have placed upon the Taft Amendment does not touch the vital forces in price control is indicated by the Government’s opposition to a review of this litigation on the ground that it was devoid of much practical significance. It only remains to unsnarl the complicated procedures by which the petitioners sought to establish the invalidity of the regulation which they were charged with violating. On June 15, 1944, petitioners filed a protest against § 1347.14 (d) under § 203 (a) of the Act. 56 Stat. 23, 31, 58 Stat. 632, 638; 50 U. S. C. App. § 923 (a). By this time, as has been noted, the Administrator had amended the regulation to conform in terms with the Taft Amendment. The Administrator denied the protest on the merits and also expressed doubt as to his power to consider the validity of a regulation of which the alleged defects had been cured. The Emergency Court of Appeals sustained the Administrator on the ground that a corrected regulation bars protest. Thomas Paper Stock Co. v. Bowles, 148 F. 2d 831. We then brought the case here as one of a series of cases raising important issues in the enforcement of the Emergency Price Control Act. 326 U.S. 715. In the meantime petitioners invoked § 204 (e) of the Act, 58 Stat. 632, 639; 50 U. S. C. App. § 924 (e), whereby they sought leave to file a complaint directly with the 717466 O—47---8 56 OCTOBER TERM, 1945. Black, J., dissenting. 328 U. S. Emergency Court. The District Court, before which the criminal prosecution was pending, granted such leave pursuant to § 204 (e). The Emergency Court then passed on the merits of the claim of the invalidity of the regulation in controversy between the date of the Taft Amendment and September 11, 1943, when in Supp. Order 64, 8 Fed. Reg. 12554, the Administrator determined the necessity for standards. That court, as we have seen, held that the old regulation survived the Taft Amendment, Thomas Paper Stock Co. v. Bowles, 151 F. 2d 345, and we granted certiorari. 326 U. S. 715. It is this latter judgment, in No. 578, that we now reverse with the result that disregard of the regulation based on standardized prices for wastepaper not “determined” by the Administrator prior to September 11, 1943, does not subject petitioners to the penalties of the Price Control Act. In view of disposition in No. 578 of the merits of petitioner’s claim of invalidity under the Taft Amendment it would be futile to decide the issue on which judgment went in No. 67. Accordingly, the writ of certiorari issued in No. 67 will be dismissed. Mr. Justice Jackson took no part in the consideration or decision of these cases. Mr. Justice Black, dissenting. The judgment which the Court just rendered permits these petitioners and others to keep profits obtained from sales made at inflationary prices expressly prohibited by Maximum Price Regulation No. 30. That Regulation establishes dollar and cent ceiling prices for thirty-two grades of wastepaper defined by the Price Administrator. It is the type of regulation, of which |here have been many, which controls prices by first standardizing or grouping similar commodities, and then fixing one and THOMAS PAPER STOCK CO. v. PORTER. 57 50 Black, J., dissenting. the same maximum price for each of the commodities in a particular classification. On July 16, 1943, long after Regulation No. 30 was promulgated and fully in force, Congress added the Taft Amendment (§ 2 (j)) to the Emergency Price Control Act of 1942. The Court holds that Congress intended by this Amendment to invalidate automatically Price Regulation No. 30, and all the numerous regulations like it, until such time as the Price Administrator should find it possible, amidst all his pressing duties, to investigate and make determinations, formally expressed in writing, that only by standardizing or grouping certain commodities could price control over them be successfully enforced. Since the task of rechecking all past regulations which contained standardization provisions was very great, the Administrator did not find time to reach the Regulation here involved until two months after the Amendment’s enactment. The Court holds that during this interval the public had no protection whatever from inflationary prices prohibited by this Regulation. In my opinion this holding finds support neither in the Section’s language nor its legislative history. When the sponsor of the Taft Amendment offered it on the Senate floor his statement clearly indicated that it grew out of cooperative effort between the legislators and the Price Administrator, who certainly would not be interested in throwing a monkey wrench into 0. P. A.’s enforcement of the existing regulations. Referring to provisions of the Act which his Amendment was intended to clarify, Senator Taft said: “Price Administrator Brown came before the committee and urged that it would seriously hamper his price regulations in a number of trades, regu-ations for which had already been issued, to many of which there was no objection. He submitted another 58 OCTOBER TERM, 1945. Black, J., dissenting. 328 U. S. form of amendment, carrying out the same purpose, but making it perfectly clear that it would not interfere with those regulations, which are proper.” Cong. Rec. July 6, 1943, Vol. 89, p. 7251. In spite of this clear declaration on the part of Senator Taft of his intention to save “proper” existing regulations, the Court now gives the Taft Price Administrator Amendment a meaning which does “interfere with those regulations.” It not only interferes with them; it completely destroys their effectiveness for an indefinite interval of time. These petitioners and others are wholly freed from any possible penalty for deliberate inflationary overcharges, forbidden by Congress, during the period between the passage of the Amendment and the Administrator’s publication of his determinations. That the Regulation here involved was a “proper” regulation on the day the Taft Amendment was passed is conceded. That its standardization provisions were at all times necessary to the effective enforcement of the Act is shown both by the Administrator’s later findings and by his original promulgation. Consequently, it is this Court, and not the Congress, which must take the responsibility for permitting petitioners to violate the price regulation with impunity. Furthermore, the Taft Amendment’s language offers no support for the Court’s decision. For by its terms it neither repeals nor renders unenforceable or ineffective valid outstanding regulations which standardize commodities. And in addition to what has already been pointed out, the prevailing circumstances at the time of its enactment make it highly improbable that Congress intended such a result. At the time the Amendment was enacted the threat of inflation was the greatest since the outbreak of the war. Just in April the President had thought it necessary to issue his well-known “Hold-the-Line Order THOMAS PAPER STOCK CO. v. PORTER. 59 50 Black, J., dissenting. in order to tighten controls designed to stem the inflationary trend. Purchasing power was very great and consumer •goods had become extremely scarce. Had Congress really intended to protect the public against inflation, as its legislation shows it did, it would not have chosen this time for relaxing government controls. The giving of free reign to inflationary pressure was likely to endanger seriously our economy and to bring great hardship to many individuals. I cannot, without a clear declaration to that effect with respect to any part of our economy, impute to Congress an intent to let inflation run riot during such critical times. I cannot conclude, therefore, as the opinion of the Court necessarily does, that Congress intended to suspend all Maximum Price Regulations containing standardization provisions until the Price Administrator reviewed them. What then was the purpose of Congress in enacting the Taft Amendment? The Managers on the part of the House thus stated the Section’s purpose in the Conference Report on the Amendment: It “is to meet the objection that the Price Administrator has exceeded the limitations expressed in section 2 (h) of . . . [the 1942 Price Control Act] in issuing certain regulations already promulgated.” (Italics supplied.) Section 2 (h) provides: “The powers granted . . . shall not be used or made to operate to compel changes in the business practices, cost practices or methods, or means or aids to distribution, established in any industry, except to prevent circumvention or evasion °J any regulation, order, price schedule, or requirement under this Act.” (Italics supplied.) As the Conference Report indicates, the Taft Amendment actually added little new, if anything at all, to the requirements already contained in § 2 (h). It was merely an explanation and elaboration of one phase of the requirements of § 2 (h). 60 OCTOBER TERM, 1945. Black, J., dissenting. 328 U. S. Any regulation, including the one here held invalid, that was promulgated when § 2 (h) was in effect had to meet its requirements. As later explained by the Taft Amendment, the requirements of § 2 (h) which permitted the Administrator to require changed business practices to prevent “circumvention or evasion” included, in the case of regulations containing new standardization provisions, a determination that there was no practical alternative to effective price control. All standardization provisions, including the one here held invalid, in order to be valid under the old § 2 (h) had to be based on such a determination. The Taft Amendment was not, as the Court now holds, a declaration by Congress that all past standardization provisions had not been based on such a determination and that they were therefore invalid. Here the Regulation in question was promulgated while § 2 (h) was in full force and effect. Not only did petitioners fail to show that the Regulation was not based on the determination required by § 2 (h) as explained by the Taft Amendment, but the Administrator, after the Amendment was enacted, and before any proceedings were brought against petitioners, double checked the Regulation to make sure that it was based on the determination required. It is not denied, and apparently cannot be denied, that it was absolutely necessary for the Administrator to order these changed standardization practices in order to prevent circumvention or evasion. In my opinion, therefore, the wastepaper provisions of Maximum Price Regulation No. 30 were valid at all times, since they met the requirements of § 2 (h) as explained by § 2 (j). I would affirm the judgment below, which dismissed the complaint. Mr. Justice Douglas and Mr. Justice Murphy join in this dissent. GIROUARD v. UNITED STATES. 61 Opinion of the Court. GIROUARD v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 572. Argued March 4, 1946.—Decided April 22, 1946. An alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship under the Nationality Act of 1940, as amended by the Act of March 27, 1942. United States v. Schwim-mer, 279 U. S. 644; United States v. Macintosh, 283 U. S. 605; and United States v. Bland] 283 U. S. 636, overruled. Pp. 64-70. 149 F. 2d 760, reversed. A District Court admitted petitioner to citizenship. The Circuit Court of Appeals reversed. 149 F. 2d 760. This Court granted certiorari. 326 U. S. 714. Reversed, p. 70. Homer Cummings and William D. Donnelly argued the cause for petitioner. With them on the brief was David J. Coddaire. Frederick Bernays Wiener argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman. Ernest Angell, Julien Cornell, John W. Davis and Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, in support of petitioner. Mr. Justice Douglas delivered the opinion of the Court. In 1943 petitioner, a native of Canada, filed his petition for naturalization in the District Court of Massachusetts. He stated in his application that he understood the prin- 62 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. ciples of the government of the United States, believed in its form of government, and was willing to take the oath of allegiance (54 Stat. 1157, 8 U. S. C. § 735 (b)) which reads as follows: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely without any mental reservation or purpose of evasion: So help me God.” To the question in the application “If necessary, are you willing to take up arms in defense of this country?” he replied, “No (Non-combatant) Seventh Day Adventist.” He explained that answer before the examiner by saying “it is a purely religious matter with me, I have no political or personal reasons other than that.” He did not claim before his Selective Service board exemption from all military service, but only from combatant military duty. At the hearing in the District Court petitioner testified that he was a member of the Seventh Day Adventist denomination, of whom approximately 10,000 were then serving in the armed forces of the United States as non-combatants, especially in the medical corps; and that he was willing to serve in the army but would not bear arms. The District Court admitted him to citizenship. The Circuit Court of Appeals reversed, one judge dissenting. 149 F. 2d 760. It took that action on the authority of United States V. Schwimmer, 279 U. S. 644; United States v. Macintosh, 283 U. S. 605, and United States v. Bland, 283 U. S. 636, saying that the facts of the present case brought it squarely within the principle of those cases. The case is here on GIROUARD v. UNITED STATES. 63 61 Opinion of the Court. a petition for a writ of certiorari which we granted so that those authorities might be re-examined. The Schwimmer, Macintosh and Bland cases involved, as does the present one, a question of statutory construction. At the time of those cases, Congress required an alien, before admission to citizenship, to declare on oath in open court that “he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.”1 It also required the court to be satisfied that the alien had during the five-year period immediately preceding the date of his application “behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.” 1 2 Those provisions were reenacted into the present law in substantially the same form.3 While there are some factual distinctions between this case and the Schwimmer and Macintosh cases, the Bland case on its facts is indistinguishable. But the principle emerging from the three cases obliterates any factual distinction among them. As we recognized in In re Summers, 325 U. S. 561, 572, 577, they stand for the same general rule—that an alien who refuses to bear arms will not be admitted to citizenship. As an original proposition, we could not agree with that rule. The fallacies underlying 1 Naturalization Act of 1906, § 4, 34 Stat. 596. 2 Id. 3 We have already set forth in the opinion the present form of the oath which is required. It is to be found in the Nationality Act of 1940, 54 Stat. 1137, 1157, 8 U. S. C. § 735 (b). Sec. 307 (a) of that Act, 8 U. S. C. § 707 (a), provides that no person shall be naturalized unless he has been for stated periods and still is “a person of good nioral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.” 64 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. it were, we think, demonstrated in the dissents of Mr. Justice Holmes in the Schwimmer case and of Mr. Chief Justice Hughes in the Macintosh case. The oath required of aliens does not in terms require that they promise to bear arms. Nor has Congress expressly made any such finding a prerequisite to citizenship. To hold that it is required is to read it into the Act by implication. But we could not assume that Congress intended to make such an abrupt and radical departure from our traditions unless it spoke in unequivocal terms. The bearing of arms, important as it is, is not the only way in which our institutions may be supported and defended, even in times of great peril. Total war in its modern form dramatizes as never before the great cooperative effort necessary for victory. The nuclear physicists who developed the atomic bomb, the worker at his lathe, the seamen on cargo vessels, construction battalions, nurses, engineers, litter bearers, doctors, chaplains—these, too, made essential contributions. And many of them made the supreme sacrifice. Mr. Justice Holmes stated in the Schwimmer case (279 U. S. p. 655) that “the Quakers have done their share to make the country what it is. And the annals of the recent war show that many whose religious scruples prevented them from bearing arms, nevertheless were unselfish participants in the war effort. Refusal to bear arms is not necessarily a sign of disloyalty or a lack of attachment to our institutions. One may serve his country faithfully and devotedly, though his religious scruples make it impossible for him to shoulder a rifle. Devotion to one’s country can be as real and as enduring among non-combatants as among combatants. One may adhere to what he deems to be his obligation to God and yet assume all military risks to secure victory. The effort of war is indivisible; and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their GIROUARD v. UNITED STATES. 65 61 Opinion of the Court. assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his rôle may be limited by religious convictions rather than by physical characteristics has no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost. Petitioner’s religious scruples would not disqualify him from becoming a member of Congress or holding other public offices. While Article VI, Clause 3 of the Constitution provides that such officials, both of the United States and the several States, “shall be bound by Oath or Affirmation, to support this Constitution,” it significantly adds that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The oath required is in no material respect different from that prescribed for aliens under the Nationality Act. It has long contained the provision “that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I-will bear true faith and allegiance to the same ; that I take this obligation freely, without any mental reservation or purpose of evasion . . .” R. S. § 1757, 5 U. S. C. § 16. As Mr. Chief Justice Hughes stated in his dissent in the Macintosh case (283 U. S. p. 631), “the history of the struggle for religious liberty, the large number of citizens of our country, from the very beginning, who have been unwilling to sacrifice their religious convictions, and in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God”—these considerations make it impossible to conclude “that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties.” There is not the slightest suggestion that Congress set a dieter standard for aliens seeking admission to citizen- 66 OCTOBER TERM, 1945. Opinion of the Court. 328 U. 8. ship than it did for officials who make and enforce the laws of the nation and administer its affairs. It is hard to believe that one need forsake his religious scruples to become a citizen but not to sit in the high councils of state. As Mr. Chief Justice Hughes pointed out (United States v. Macintosh, supra, p. 633), religious scruples against bearing arms have been recognized by Congress in the various draft laws. This is true of the Selective Training and Service Act of 1940 (54 Stat. 889, 50 U. S. C. App. § 305 (g))4 as it was of earlier acts. He who is inducted into the armed services takes an oath which includes the provision “that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever . . .”5 41 Stat. 809,10 U. S. C. § 1581. Congress has thus recognized that one may adequately discharge his obligations as a citizen by rendering non-combatant as well as combatant services. This respect by Congress over the years for the conscience of those having 4 Sec. 305 (g) provides in part: “Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason ot religious training and belief, is conscientiously opposed to participation in war in any form. Any such person claiming sucn exemption from combatant training and service because of sucn conscientious objections whose claim is sustained by the loca board shall, if he is inducted into the land or naval forces under this Act, be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of sue induction, be assigned to work of national importance unde civilian direction.” For earlier Acts see Act of February 24, 1864, 13 Stat. 6, 9; Act of January 21, 1903, 32 Stat. 775; Act of June 3,1916, 39 Stat. 166,197; Act of May 18, 1917, 40 Stat. 76, 78. 5 And see Billings n. Truesdell, 321 U. S. 542, 549-550; Army Regu lations No. 615-500, August 10,1944, § II, 15 (f) (2). GIROUARD v. UNITED STATES. 67 61 Opinion of the Court. religious scruples against bearing arms is cogent evidence of the meaning of the oath. It is recognition by Congress that even in time of war one may truly support and defend our institutions though he stops short of using weapons of war. That construction of the naturalization oath received new support in 1942. In the Second War Powers Act, 56 Stat. 176, 182, 8 U. S. C., Supp. IV, § 1001, Congress relaxed certain of the requirements for aliens who served honorably in the armed forces of the United States during World War II and provided machinery to expedite their naturalization.6 Residence requirements were relaxed, educational tests were eliminated, and no fees were required. But no change in the oath was made; nor was any change made in the requirement that the alien be attached to the principles of the Constitution. Yet it is clear that these new provisions cover non-combatants as well as combatants.7 If petitioner had served as a non- 8 Comparable provision was made in the Act of December 7, 1942, 56 Stat. 1041,8 U. S. C., Supp. IV, § 723a, for those who served honorably in World War I, in the Spanish-American War, or on the Mexican Border. 7 Zn re Kinloch, 53 F. Supp. 521, involved naturalization proceed-mgs of aliens, one of whom, like petitioner in the present case, as a Seventh Day Adventist. He had been inducted into the army as a non-combatant. His naturalization was opposed by the Immigration Service on the ground that he could not promise to bear arms. he court overruled the objection, stating, p. 523: 11 conscientious objectors, who are aliens, performing military * Y’.and wearing the uniform, are not granted the privileges of citizenship under this act, then the act would be meaningless, •“would be so made if an applicant, being a conscientious objector, W j l aS a^ained the status of a soldier, performs military duty, and honorably wears the uniform (as is admitted in the instant cases), is denied citizenship. If the oath of allegiance is to be construed as requiring such applicant to agree, without mental reservation, to bear arms, then the result would be a denial of even though Congress has conferred such privilege Aild see In re Sawyer, 59 F. Supp. 428. 68 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. combatant (as he was willing to do), he could have been admitted to citizenship by taking the identical oath which he is willing to take. Can it be that the oath means one thing to one who has served to the extent permitted by his religious scruples and another thing to one equally willing to serve but who has not had the opportunity? It is not enough to say that petitioner is not entitled to the benefits of the new Act since he did not serve in the armed forces. He is not seeking the benefits of the expedited procedure and the relaxed requirements. The oath which he must take is identical with the oath which both non-combatants and combatants must take. It would, indeed, be a strange construction to say that “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic” demands something more from some than it does from others. That oath can hardly be adequate for one who is unwilling to bear arms because of religious scruples and yet exact from another a promise to bear arms despite religious scruples. Mr. Justice Holmes stated in the Schwimmer case (279 U. S. pp. 654-55): “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country.” The struggle for religious liberty has through the centuries been an effort to accommodate the demands of the State to the conscience of the individual. The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the ages, men have suffered death rather than subordinate their allegiance to God to the authority of the State. Freedom of religion guaranteed by the First Amendment is the product of that struggle. As we GIROUARD v. UNITED STATES. 69 61 Opinion of the Court. recently stated in United States v. Ballard, 322 U. S. 78, 86, “Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. Board of Education v. Barnette, 319 U. S. 624.” The test oath is abhorrent to our tradition. Over the years, Congress has meticulously respected that tradition and even in time of war has sought to accommodate the military requirements to the religious scruples of the individual. We do not believe that Congress intended to reverse that policy when it came to draft the naturalization oath. Such an abrupt and radical departure from our traditions should not be implied. See Schneiderman v. United States, 320 U. S. 118, 132. Cogent evidence would be necessary to convince us that Congress took that course. We conclude that the Schwimmer, Macintosh and Bland cases do not state the correct rule of law. We are met, however, with the argument that, even though those cases were wrongly decided, Congress has adopted the rule which they announced. The argument runs as follows: Many efforts were made to amend the law so as to change the rule announced by those cases; but in every instance the bill died in committee. Moreover, when the Nationality Act of 1940 was passed, Congress reenacted the oath in its pre-existing form, though at the same time it made extensive changes in the requirements and procedure for naturalization. From this it is argued that Congress adopted and reenacted the rule of the Schwimmer, Macintosh and Bland cases. Cf. Apex Hosiery Co. v. Leader, 310 U. S. 469,488-489. We stated in Helvering v. Hallock, 309 U. S. 106, 119, that “It would require very persuasive circumstances enveloping Congressional silence to debar this Court from reexamining its own doctrines.” It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law. We do not think under the circumstances of this legislative history that we can properly 70 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328 U. S. place on the shoulders of Congress the burden of the Court’s own error. The history of the 1940 Act is at most equivocal. It contains no affirmative recognition of the rule of the Schwimmer, Macintosh and Bland cases. The silence of Congress and its inaction are as consistent with a desire to leave the problem fluid as they are with an adoption by silence of the rule of those cases. But, for us, it is enough to say that since the date of those cases Congress never acted affirmatively on this question but once and that was in 1942. At that time, as we have noted, Congress specifically granted naturalization privileges to non-combatants who like petitioner were prevented from bearing arms by their religious scruples. That was affirmative recognition that one could be attached to the principles of our government and could support and defend it even though his religious convictions prevented him from bearing arms. And, as we have said, we cannot believe that the oath was designed to exact something more from one person than from another. Thus the affirmative action taken by Congress in 1942 negatives any inference that otherwise might be drawn from its silence when it reenacted the oath in 1940. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Chief Justice Stone, dissenting. I think the judgment should be affirmed, for the reason that the court below, in applying the controlling provisions of the naturalization statutes, correctly applied them as earlier construed by this Court, whose construction Congress has adopted and confirmed. In three cases decided more than fifteen years ago, this Court denied citizenship to applicants for naturalization who had announced that they proposed to take the pre- GIROUARD v. UNITED STATES. 71 61 Stone, C. J., dissenting. scribed oath of allegiance with the reservation or qualification that they would not, as naturalized citizens, assist in the defense of this country by force of arms or give their moral support to the government in any war which they did not believe to be morally justified or in the best interests of the country. See United States v. Schwimmer, 279 U. S. 644; United States v. Macintosh, 283 U. S. 605; United States v. Bland, 283 U. S. 636. In each of these cases this Court held that the applicant had failed to meet the conditions which Congress had made prerequisite to naturalization by § 4 of the Naturalization Act of June 29, 1906, c. 3592, 34 Stat. 596, the provisions of which, here relevant, were enacted in the Nationality Act of October 14, 1940. See c. 876, 54 Stat. 1137, as amended by the Act of March 27, 1942, c. 199, 56 Stat. 176, 182-183, and by the Act of December 7, 1942, c. 690, 56 Stat. 1041, 8 U. S. C. §§ 707, 735. Section 4 of the Naturalization Act of 1906, paragraph “Third,” provided that before the admission to citizenship the applicant should declare on oath in open court that “he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.” And paragraph “Fourth” required that before admission it be made to appear “to the satisfaction of the court admitting any alien to citizenship” that at least for a period of five years immediately preceding his application the applicant has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same • . jn applying these provisions in the cases mentioned, this Court held only that an applicant who is unable to take the oath of allegiance without the reservations or qualifications insisted upon by the applicants in ose cases manifests his want of attachment to the principles of the Constitution and his unwillingness to meet 717466 O—47-9 72 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328U.S. the requirements of the oath, that he will support and defend the Constitution of the United States and bear true faith and allegiance to the same, and so does not comply with the statutory conditions of his naturalization. No question of the constitutional power of Congress to withhold citizenship on these grounds was involved. That power was not doubted. See Selective Draft Law Cases, 245 U. S. 366; Hamilton v. Regents, 293 U. S. 245. The only question was of construction of the statute which Congress at all times has been free to amend if dissatisfied with the construction adopted by the Court. With three other Justices of the Court I dissented in the Macintosh and Bland cases, for reasons which the Court now adopts as ground for overruling them.1 Since this Court in three considered earlier opinions has rejected the construction of the statute for which the dissenting Justices contended, the question, which for me is decisive of the present case, is whether Congress has likewise rejected that construction by its subsequent legislative action, and has adopted and confirmed the Court’s earlier construction of the statutes in question. A study of Congressional action taken with respect to proposals for amendment of the naturalization laws since the decision in the Schwimmer case, leads me to conclude that Congress has adopted and confirmed this Court’s earlier con- 1 In the opinion of the writer there was evidence in United States v. Schwimmer, 279 U. S. 644, from which the district court could and presumably did infer that applicant’s behavior evidenced a disposition, present and future, actively to resist all laws of the United States and lawful commands of its officers for the furthering of any military enterprise of the United States, and actively to aid and encourage such resistance in others, and this the district court presumably concluded evidenced a want of attachment of the applicant to the principles of the Constitution which the naturalization law requires to be exhibited by the behavior of the applicant, preceding the application for citizenship. GIROUARD v. UNITED STATES. 73 61 Stone, C. J., dissenting. struction of the naturalization laws. For that reason alone I think that the judgment should be affirmed. The construction of the naturalization statutes, adopted by this Court in the three cases mentioned, immediately became the target of an active, publicized legislative attack in Congress which persisted for a period of eleven years, until the adoption of the Nationality Act in 1940. Two days after the Schwimmer case was decided, a bill was introduced in the House, H. R. 3547, 71st Cong., 1st Sess., to give the Naturalization Act a construction contrary to that which had been given to it by this Court and which, if adopted, would have made the applicants rejected by this Court in the Schwimmer, Macintosh and Bland cases eligible for citizenship. This effort to establish by Congressional action that the construction which this Court had placed on the Naturalization Act was not one which Congress had adopted or intended, was renewed without success after the decision in the Macintosh and Bland cases, and was continued for a period of about ten years.2 All of these measures were of substantially the same pattern as H. R. 297, 72d Cong., 1st Sess., introduced December 8, 1931, at the first session of Congress, after the decision in the Macintosh case. It provided that no person otherwise qualified “shall be debarred from citizenship by reason of his or her religious views or philosophical opinions with respect to the lawfulness of war as a means of settling international disputes, but every alien admitted to citizenship shall be subject to the same obligations as the native-born citizen.” H. R. 3547, 71st Cong., 1st Sess., 2H. R. 3547, 71st Cong., 1st Sess., 71 Cong. Rec. 2184; H. R. 297, ?2d Cong., 1st Sess., 75 Cong. Rec. 95; H. R. 298, 72d Cong., 1st Sess., 75 Cong. Rec. 95; S. 3275, 72d Cong., 1st Sess., 75 Cong. Rec. 2600; H- R. 1528, 73d Cong., 1st Sess., 77 Cong. Rec. 90; H. R. 5170, 74th cong., 1st Sess., 79 Cong. Rec. 1356; H. R. 8259, 75th Cong., 1st Sess., 81 Cong. Rec. 9193; S. 165, 76th Cong., 1st Sess., 84 Cong. Rec. 67. 74 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328 U. S. introduced immediately after the decision in the Schwim-mer case, had contained a like provision, but with the omission of the last clause beginning “but every alien.” Hearings were had before the House Committee on Immigration and Naturalization on both bills at which their proponents had stated clearly their purpose to set aside the interpretation placed on the oath of allegiance by the Schwimmer and Macintosh cases.3 There was opposition on each occasion.4 5 * Bills identical with H. R. 297 were introduced in three later Congresses.8 None of these bills were reported out of Committee. The other proposals, all of which failed of passage (see footnote 2, ante}, had the same purpose and differed only in phraseology. Thus, for six successive Congresses, over a period of more than a decade, there were continuously pending before Congress in one form or another proposals to overturn the rulings in the three Supreme Court decisions in question. Congress declined to adopt these proposals after full hearings and after speeches on the floor advocating the change. 72 Cong. Rec. 6966-7; 75 Cong. Rec. 15354-7. In the meantime the decisions of this Court had been followed in Clarke's Case, 301 Pa. 321, 152 A. 92; Beale v. United States, 71 F. 2d 737; In re Warkentin, 93 F. 2d 42. In Beale v. United States, supra, the court pointed out that the proposed amendments affecting the provisions of the statutes relating to admission to citizenship had failed, saying: “We must conclude, therefore, that these statutory requirements as construed 3 Hearings on H. R. 3547, pp. 12, 22, 29-57, 73-109,169-180; Hearings on H. R. 297, pp. 4-7, 10, 12, 15-19, 41-48, 53-56, 66-81, 147, 148. 4 Hearings on H. R. 3547, pp. 57-65, 73,146-169,181-212; Hearings on H. R. 297, pp. 85-140. 5 H. R. 1528, 73d Cong., 1st Sess.; H. R. 5170, 74th Cong., 1st Sess.; H. R. 8259,75th Cong., 1st Sess. GIROUARD v. UNITED STATES. 75 61 Stone, C. J., dissenting. by the Supreme Court have congressional sanction and approval.” Any doubts that such were the purpose and will of Congress would seem to have been dissipated by the reenactment by Congress in 1940 of Paragraphs “Third” and “Fourth” of § 4 of the Naturalization Act of 1906, and by the incorporation in the Act of 1940 of the very form of oath which had been administratively prescribed for the applicants in the Schwimmer, Macintosh and Bland cases. See Rule 8 (c), Naturalization Regulations of July 1, 1929.« The Nationality Act of 1940 was a comprehensive, slowly matured and carefully considered revision of the naturalization laws. The preparation of this measure was not only delegated to a Congressional Committee, but was considered by a committee of Cabinet members, one of whom was the Attorney General. Both were aware of our decisions in the Schwimmer and related cases and that no other question pertinent to the naturalization laws had been as persistently and continuously before Congress in the ten years following the decision in the Schwimmer case. The modifications in the provisions of Paragraphs “Third” and “Fourth” of § 4 of the 1906 Act show conclusively the careful attention which was given to them. ’Section 307 (a) of the Nationality Act, 8 U. S. C. § 707 (a), provides that no person shall be naturalized unless for a period of five years preceding the filing of his petition for naturalization he “has been and still is a person . . . attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.” Section 335 (a) of the Nationality Act, 8 U. S. C. § 735 (a), provides that before an applicant for naturalization shall be admitted to citizenship, he shall take an oath in °pen court that inter alia he will “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; . . . and . . . bear true faith and allegiance to the same . . 76 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328 U. S. In the face of this legislative history the “failure of Congress to alter the Act after it had been judicially construed, and the enactment by Congress of legislation which implicitly recognizes the judicial construction as effective, is persuasive of legislative recognition that the judicial construction is the correct one. This is the more so where, as here, the application of the statute . . . has brought forth sharply conflicting views both on the Court and in Congress, and where after the matter has been fully brought to the attention of the public and the Congress, the latter has not seen fit to change the statute.” Apex Hosiery Co. v. Leader, 310 U. S. 469, 488-9. And see to like effect United States v. Ryan, 284 U. S. 167-175; United States v. Elgin, J. & E. R. Co., 298 U. S. 492, 500; Missouri v. Ross, 299 U. S. 72, 75; cf. Helvering v. Winmill, 305 U. S. 79,82, 83. It is the responsibility of Congress, in reenacting a statute, to make known its purpose in a controversial matter of interpretation of its former language, at least when the matter has, for over a decade, been persistently brought to its attention. In the light of this legislative history, it is abundantly clear that Congress has performed that duty. In any case it is not lightly to be implied that Congress has failed to perform it and has delegated to this Court the responsibility of giving new content to language deliberately readopted after this Court has construed it. For us to make such an assumption is to discourage, if not to deny, legislative responsibility. By thus adopting and confirming this Court’s construction of what Congress had enacted in the Naturalization Act of 1906 Congress gave that construction the same legal significance as though it had written the very words into the Act of 1940. The only remaining question is whether Congress repealed this construction by enactment of the 1942 amend- GIROUARD v. UNITED STATES. 77 61 Stone, C. J., dissenting. ments of the Nationality Act. That Act extended special privileges to applicants for naturalization who were aliens and who have served in the armed forces of the United States in time of war, by dispensing with or modifying existing requirements, relating to declarations of intention, period of residence, education, and fees. It left unchanged the requirements that the applicant’s behavior show his attachment to the principles of the Constitution and that he take the oath of allegiance. In adopting the 1942 amendments Congress did not have before it any question of the oath of allegiance with which it had been concerned when it adopted the 1940 Act. In 1942 it was concerned with the grant of special favors to those seeking naturalization who had worn the uniform and rendered military service in time of war and who could satisfy such naturalization requirements as had not been dispensed with by the amendments. In the case of those entitled to avail themselves of these privileges, Congress left it to the naturalization authorities, as in other cases, to determine whether, by their applications and their conduct in the military service, they satisfy the requirements for naturalization which have not been waived. It is pointed out that one of the 1942 amendments, 8 U. S. C., Supp. IV, § 1004, provided that the provisions of the amendment should not apply to “any conscientious objector who performed no military duty whatever or refused to wear the uniform.” It is said that the implication of this provision is that conscientious objectors who rendered noncombatant service and wore the uniform were, under the 1942 amendments, to be admitted to citizenship. From this it is argued that since the 1942 amendments apply to those who have been in noncom-Datant, as well as combatant, military service, the amendment must be taken to include some who have rendered 78 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328U.S. noncombatant service who are also conscientious objectors and who would be admitted to citizenship under the 1942 amendments, even though they made the same reservations as to the oath of allegiance as did the applicants in the Schwimmer, Macintosh and Bland cases. And it is said that although the 1942 amendments are not applicable to petitioner, who has not been in military service, the oath cannot mean one thing as to him and another as to those who have been in the noncombatant service. To these suggestions there are two answers. One is that if the 1942 amendment be construed as including noncombatants who are also conscientious objectors, who are unwilling to take the oath without the reservations made by the applicants in the Schwimmer, Macintosh and Bland cases, the only effect would be to exempt noncombatant conscientious objectors from the requirements of the oath, which had clearly been made applicable to all objectors, including petitioner, by the Nationality Act of 1940, and from which petitioner was not exempted by the 1942 amendments. If such is the construction of the 1942 Act, there is no constitutional or statutory obstacle to Congress’ taking such action. Congress if it saw fit could have admitted to citizenship those who had rendered noncombatant service, with a modified oath or without any oath at all. Petitioner has not been so exempted. Since petitioner was never in the military or naval forces of the United States, we need not decide whether the 1942 amendments authorized any different oath for those who had been in noncombatant service than for others. The amendments have been construed as requiring the same oath, without reservations, from conscientious objectors, as from others. In re Nielsen, 60 F. Supp. 240. Not all of those who rendered noncombatant service were conscientious objectors. Few were. There were others in the noncombatant service who had announced their con- GIROUARD v. UNITED STATES. 79 61 Stone, C. J., dissenting. scientious objections to combatant service, who may have waived or abandoned their objections. Such was the experience in the First World War. See “Statement Concerning the Treatment of Conscientious Objectors in the Army,” prepared and published by direction of the Secretary of War, June 18, 1919. All such could have taken the oath without the reservations made by the applicants in the Schwimmer, Macintosh and Bland cases and would have been entitled to the benefits of the 1942 amendments, provided they had performed military duty and had not refused to wear the uniform. The fact that Congress recognized by indirection, in 8 U. S. C., Supp. IV, § 1004, that those who had appeared in the role of conscientious objectors, might become citizens by taking the oath of allegiance and establishing their attachment to the principles of the Constitution, does not show that Congress dispensed with the requirements of the oath as construed by this Court and plainly confirmed by Congress in the Nationality Act of 1940. There is no necessary inconsistency in this respect between the 1940 Act and the 1942 amendments. Without it repeal by implication is not favored. United States v. Borden Co., 308 U. S. 188, 198-9, 203-6; Georgia v. Pennsylvania R. Co., 324 U. S. 439,457 ; United States Alkali Assn. v. United States, 325 U. S. 196, 209. The amendments and their legislative history give no hint of any purpose of Congress to relax, at least for persons who had rendered no military service, the requirements of the oath of allegiance and proof of attachment to the Constitution as this Court had interpreted them and as I the Nationality Act of 1940 plainly required them to be interpreted. It is not the function of this Court to I disregard the will of Congress in the exercise of its I institutional power. I Mr. Justice Reed and Mr. Justice Frankfurter join I m this opinion. 80 OCTOBER TERM, 1945. Statement of the Case. 328U.S. QUEENSIDE HILLS REALTY CO., INC. v. SAXL, COMMISSIONER OF HOUSING AND BUILDINGS OF THE CITY OF NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 769. Argued March 28, 1946.—Decided April 22, 1946. In 1940 appellant constructed a lodging house in New York, complying with all applicable laws then in force. In 1944 New York amended its Multiple Dwelling Law so as to provide that lodging houses of “non-fireproof construction existing prior to the enactment” of the amendment should comply with certain new requirements, including the installation of an automatic wet pipe sprinkler system. Appellant asserted that its building did not constitute a fire hazard or a danger to its occupants; that it had a market value of $25,000; that the cost of complying with the 1944 law would be $7,500; and that the benefits to be obtained by the changes were negligible. Held: 1. The law does not violate the due process clause of the Fourteenth Amendment, since it is within the police power of the State and the owner of property does not acquire immunity against the exercise of the police power by constructing it in full compliance with existing laws. P. 82. 2. In the absence of a showing that there are in existence other lodging houses of the same category which will escape its requirements, the law can not be held to violate the equal protection clause of the Fourteenth Amendment because of its failure to apply to lodging houses which might be erected subsequently; since lack of equal protection is found in the actual existence of an invidious discrimination and not in the mere possibility that there will be like or similar cases which will be treated more leniently. Pp. 83-85. 3. The wisdom of the legislation and the need for it are questions for the legislature. P. 82. 294 N. Y. 917, 63 N. E. 2d 116, affirmed. Appellant sued in the New York courts for a declaratory judgment holding certain provisions of the New York Multiple Dwelling Law (L. 1929, c. 713) as amended in 1944 (L. 1944, c. 553) unconstitutional and restraining their enforcement. The Supreme Court dismissed the QUEENSIDE HILLS CO. v. SAXL. 81 80 Opinion of the Court. suit. The Appellate Division affirmed. 269 App. Div. 691, 54 N. Y. S. 2d 394. The Court of Appeals affirmed, 294 N. Y. 917, 63 N. E. 2d 116, certifying by its remittitur that questions involving the Fourteenth Amendment were presented and necessarily passed upon. 295 N. Y. 567, 64 N. E. 2d 278. Affirmed, p. 85. George G. Lake argued the cause and filed a brief for appellant. Edward G. Griffin argued the cause for appellee. With him on the brief were John J. Bennett and Joseph F. Mulqueen, Jr. Mr. Justice Douglas delivered the opinion of the Court. In 1940 appellant constructed a four-story building on the Bowery in New York City and since that time has operated it as a lodging house. It was constructed so as to comply with all the laws applicable to such lodging houses and in force at that time. New York amended its Multiple Dwelling Law1 in 1944,1 2 providing, inter alia, that lodging houses “of non-fireproof construction existing prior to the enactment of this subdivision”3 should comply with certain new requirements.4 Among these was the installation of an automatic wet pipe sprinkler system. Appellant received notice to comply with the new requirements and thereupon instituted this suit in the New York courts for a declaratory judgment holding these provisions °f the 1944 law unconstitutional and restraining their enforcement. 1L. 1929, ch. 713; Cons. L. ch. 61A. 2 L. i944, ch. 553. 3 Id., §4. This followed a disastrous fire in an old lodging house in New York City in which there was a considerable loss of life. 82 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. The bill alleged that the building was safe for occupancy as a lodging house and did not constitute a fire hazard or a danger to the occupants; that it complied with all building laws and regulations at the time of its construction ; that part of it was fireproof and that the rest was so constructed as not to be dangerous to occupants; that the regulations existing prior to 1944 were adequate and sufficient to prevent loss of life in lodging houses of this particular type. It was further alleged that this lodging house has a market value of about $25,000, that the cost of complying with the 1944 law would be about $7,500; and that the benefits to be obtained by the changes were negligible. By reason of those circumstances the 1944 law was alleged to violate the due process clause of the Fourteenth Amendment. It was also alleged to violate the equal protection clause of the Fourteenth Amendment since it was applicable to lodging houses “existing” prior to the 1944 law but not to identical structures erected thereafter. Appellee answered, denying the material allegations of the bill, and moved to dismiss. The Supreme Court granted the motion. The Appellate Division affirmed without opinion. 269 App. Div. 691,54 N. Y. S. 2d 394. On appeal to the Court of Appeals the judgment was likewise affirmed without opinion. 294 N. Y. 917, 63 N. E. 2d 116. The case is here.on appeal, the Court of Appeals having certified by its remittitur that questions involving the Fourteenth Amendment were presented and necessarily passed upon. 295 N. Y. 567, 64 N. E. 2d 278. Little need be said on the due process question. We are not concerned with the wisdom of this legislation or the need for it. Olsen v. Nebraska, 313 U. S. 236, 246. Protection of the safety of persons is one of the traditional uses of the police power of the States. Experts may differ as to the most appropriate way of dealing with fire hazards in lodging houses. Appellant, indeed, says that its building, QUEENSIDE HILLS CO. v. SAXL. 83 80 Opinion of the Court. far from being a fire-trap, is largely fireproof; and to the extent that any fire hazards exist, they are adequately safeguarded by a fire alarm system, constant watchman service, and other safety arrangements. But the legislature may choose not to take the chance that human life will be lost in lodging house fires and adopt the most conservative course which science and engineering offer. It is for the legislature to decide what regulations are needed to reduce fire hazards to the minimum. Many types of social legislation diminish the value of the property which is regulated. The extreme cases are those where in the interest of the public safety or welfare the owner is prohibited from using his property. Reinman v. Little Rock, 237 U. S. 171; Hadacheck v. Sebastian, 239 U. S. 394; Pierce Oil Corp. v. Hope, 248 U. S. 498. We are dealing here with a less drastic measure. But in no case does the owner of property acquire immunity against exercise of the police power because he constructed it in full compliance with the existing laws. Hadacheck v. Sebastian, supra, p. 410. And see Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57; Hutchinson v. Valdosta, 227 U. S. 303. The police power is one of the least limitable of governmental powers, and in its operation often cuts down property rights. Block v. Hirsh, 256 U. S. 135, 155. And see Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531. Appellant may have a lodging house far less hazardous than the other existing structures regulated by the 1944 law. Yet a statute may be sustained though some of the objects affected by it may be wholly innocent. Purity Extract Co. v. Lynch, 226 U. S. 192, 204. The question °f validity turns on the power of the legislature to deal with the prescribed class. That power plainly exists here. Appellant’s claim of lack of equal protection is based on the following argument: The 1944 law applies only to 84 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. existing lodging houses; if a new lodging house were erected or if an existing building were converted into a lodging house, the 1944 law would be inapplicable. An exact duplicate of appellant’s building, if constructed today, would not be under the 1944 law and hence could be lawfully operated without the installation of a wet pipe sprinkler system. That is said to be a denial of equal protection of the laws. The difficulty is that appellant has not shown that there are in existence lodging houses of that category which will escape the law. The argument is based on an anticipation that there may come into existence a like or identical class of lodging houses which will be treated less harshly. But so long as that class is not in existence, no showing of lack of equal protection can possibly be made. For under those circumstances the burden which is on one who challenges the constitutionality of a law could not be satisfied. Metropolitan Casualty Insurance Co. v. Brownell, 294 U. S. 580, 584. The legislature is entitled to hit the evil that exists. Patsone v. Pennsylvania, 232 U. S. 138,144; Bryant v. Zimmerman, 278 U. S. 63; Bain Peanut Co\ N. Pinson, 282 U. S. 499. It need not take account of new and hypothetical inequalities that may come into existence as time passes or as conditions change. So far as we know, the 1944 law may have been designed as a stop-gap measure to take care of a pressing need until more comprehensive legislation could be prepared. It is common knowledge that due to war conditions there has been little construction in this field in recent years. By the time new lodging houses appear they, too, may be placed under the 1944 law; or different legislation may be adopted to take care both of the old and the new on the basis of parity. Or stricter standards for new lodging houses may be adopted. In any such case the asserted discrimination would have turned out to be fanciful, not real. The point is that lack SEAS SHIPPING CO. v. SIERACKI. 85 80 Syllabus. of equal protection is found in the actual existence of an invidious discrimination {Truax n. Raich, 239 U. S. 33; Skinner v. Oklahoma, 316 U. S. 535), not in the mere possibility that there will be like or similar cases which will be treated more leniently. Affirmed. Mr. Justice Rutledge concurs in the result. Mr. Justice Jackson took no part in the consideration or decision of this case. SEAS SHIPPING CO., INC. v. SIERACKI. CERTIORARI to the circuit court of appeals for the THIRD CIRCUIT. No. 365. Argued January 3,1946.—Decided April 22, 1946. 1- A shipowner’s obligation of seaworthiness, traditionally owed by shipowners to seamen, extends to a stevedore who was injured while aboard and loading the ship, although employed by an independent stevedoring contractor engaged by the owner to load the ship. Pp. 89-100. (a) The obligation is essentially a species of liability without fault and is neither limited by conceptions of negligence nor contractual in character. Pp. 90-94. (b) It is not confined to seamen who perform the ship’s service under immediate hire of the owner, but extends to those who render it with his consent or by his arrangement. Pp. 95-97. (c) For purposes of the liability, a stevedore is a seaman, because he is doing a seaman’s work and incurring a seaman’s hazards, and be is entitled to a seaman’s traditional protection. P. 99. 2. By giving longshoremen the rights of compensation afforded by the Longshoremen’s and Harbor Workers’ Compensation Act and mak-mg them exclusive as against the employer, Congress has not withdrawn from longshoremen the protections gained under the Merchant Marine Act of 1920 or other protections relating to personal injury available to them under general maritime law. P. 100. 86 OCTOBER TERM, 1945. Counsel for Parties. 328U.S. (a) The Longshoremen’s and Harbor Workers’ Compensation Act did not purport to make the stevedore’s remedy for compensation against his employer exclusive of remedies against others and it expressly reserved to the stevedore a right of election to proceed against third parties responsible for his injury. P. 101. (b) It did not nullify any right of a stevedore against the owner of the ship, except possibly when he is hired by the owner. P. 102. 3. A right peculiar to the law of admiralty may be enforced either by a suit in admiralty or by one on the law side of the court. P. 88. 4. The liability of a shipowner for failure to maintain a seaworthy vessel rests upon an entirely different basis from the liability of contractors and subcontractors who built the ship. Therefore, the shipowner would not be jointly liable with the builders but would be liable severally. P. 89. 5. When one of several defendants in a suit brings the cause here on certiorari and the others are not named as respondents or served in accordance with Rule 38 (3), this Court is precluded from making any determination concerning the rights or liabilities of the other defendants. P. 89. 149 F. 2d 98, affirmed. A stevedore employed by an independent stevedoring company sued a shipowner, the contractor who built the ship and a subcontractor for injuries sustained while working aboard the ship as a result of a latent defect in a part of the ship. The District Court gave judgment against the contractor and subcontractor but in favor of the shipowner. 57 F. Supp. 724. The Circuit Court of Appeals reversed as to the shipowner. 149 F. 2d 98. This Court granted certiorari. 326 U. S. 700. Affirmed, p. 103. Thomas E. Byrne, Jr. argued the cause for petitioner. With him on the brief were Rowland C. Evans, Jr. and John B. Shaw. Abraham E. Freedman argued the cause for respondent. With him on the brief was Charles Lakatos. SEAS SHIPPING CO. v. SIERACKI. 87 85 Opinion of the Court. Mr. Justice Rutledge delivered the opinion of the Court. The principal question is whether the obligation of seaworthiness, traditionally owed by an owner of a ship to seamen, extends to a stevedore injured while working aboard the ship. Sieracki was employed by an independent stevedoring company which was under contract to petitioner to load its ship, the S. S. Robin Sherwood. On December 23, 1942, he was on the vessel loading cargo. The winch he operated was controlled by a ten-ton boom at number five hatch. One part of a freight car had been lowered into the hold. The second part weighed about eight tons. While it was being put down the shackle supporting the boom broke at its crown, causing the boom and tackle to fall and injure respondent. He sued petitioner and two other companies. These were the Bethlehem Steel Company, to which the Maritime Commission had awarded the contract for constructing the ship, and Bethlehem Sparrow’s Point, Inc., which had built part of the ship under agreement with the steel company. The District Court found that the shackle had broken as the result of a defect which had occurred in its forging. The Bethlehem companies had purchased this equipment from another concern. Nevertheless the court held they were negligent in not having tested it adequately before installing it. But the court considered petitioner to be under no such obligation to test1 and therefore not negligent. Accordingly, it gave judgment against the two Bethlehem companies but in favor of petitioner. 57 F. Supp. 724. The Circuit Court of Appeals reversed as to petitioner. 149 F. 2d 98. Accepting the District Court’s conclusion 1 Visual inspection would not have disclosed the defect. 717466 O—47-10 88 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. that it was not negligent, the Court of Appeals was of the opinion that respondent should recover for the ship’s lack of seaworthiness.2 The opinion emphasized that the decision was novel, noting “statements and assumptions each way.”3 Because of the novelty and importance of the question we granted certiorari.4 326 U. S. 700. The finding that the ship was unseaworthy is not disputed. Petitioner says, first, that the doctrine of unseaworthiness is peculiar to admiralty and cannot be applied in a suit brought on the law side of the court. It also urges that in any event the liability may not be extended properly to the benefit of stevedores and longshoremen. And finally petitioner argues that, if the doctrine is properly so applicable, its liability is only secondary to that of the Bethlehem companies, which both courts found to be negligent; and therefore petitioner, the nonnegligent defendant, should not be held “jointly” liable with the negligent ones. At the outset we may dismiss the first contention. It is now well settled that a right peculiar to the law of admiralty may be enforced either by a suit in admiralty or by one on the law side of the court. Carlisle Packing Co. v. 2 The District Court found “that the accident occurred by reason of unseaworthiness of the vessel.” 57 F. Supp. 724, 726. 3 The references were to W. J. McCahan Co. v. Stoffel, 41 F. 2d 651, 654 (C. C. A. 3); Cassil v. United States Emergency Fleet Corp., 289 F. 774 (C. C. A. 9), suggesting liability; and, to the contrary, Panama Mail S. S. Co. v. Davis, 79 F. 2d 430 (C. C. A. 3); Bryant v. Vestland, 52 F. 2d 1078 (C. C. A. 5); Luckenbach S. S. Co. v. Buzyn-ski, 19 F. 2d 871 (C. C. A. 5), rev’d on another ground, 277 U. S. 226; The Howell, 273 F. 513 (C. C. A. 2); The Student, 243 F. 807 (C. C. A. 4); Jeffries v. DeHart, 102 F. 765 (C. C. A. 3); The Mercier, 5 F. Supp. 511, affirmed, 72 F. 2d 1008 (C. C. A. 9). 4 See in addition to the authorities cited by the Circuit Court of Appeals, 149 F. 2d at 102; Decision (1945) 45 Col. L. Rev. 957; (1945) 59 Harv. L. Rev. 127; (1946) 19 Temp. L. Q. 336, 339. SEAS SHIPPING CO. v. SIERACKI. 89 85 Opinion of the Court. Sandanger, 259 U. S. 255, 259; Garrett v. Moore-McCormack Co., 317 U. S. 239, 243-244; Thornes v. Socony-Vac-uum Oil Co., 37 F. Supp. 616.5 Equally unavailable is the contention concerning the secondary character of petitioner’s liability. That liability, if it exists, not only sounds in tort,6 but rests upon an entirely different basis from that upon which recovery has been had against the Bethlehem companies. Such a liability therefore would be not joint but several and the judgment of the Court of Appeals obviously went on this view. Moreover the contention necessarily affects the Bethlehem companies, at any rate in relation to possible claim of indemnity by petitioner. They have not been named as respondents here or served in accordance with Rule 38 (3). Consequently we are precluded from making any determination concerning their rights or liabilities, with relation either to petitioner or to respondent. The nub of real controversy lies in the question whether the shipowner’s obligation of seaworthiness extends to longshoremen injured while doing the ship’s work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship. ’Nothing in 28 U. S. C. §41 (3) is to the contrary. The section provides that federal district courts shall have jurisdiction “of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it . . . .” This does not mean that where suit is brought at law the court is restricted to the enforcement of commonlaw rights. Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 384; Panama R. Co. v. Johnson, 264 U. 8. 375, 387-388; Panama R. Co. v. Vasquez, 271 U. S. 557, 560-561. “When a cause of action in admiralty is asserted in a court of law its substance is unchanged.” Panama Agencies Co. v. Franco, 111 F. 2d 263, 266. 6Cf. text infra; Cortes v. Baltimore Insular Line, 287 U. S. 367; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52. 90 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. There could be no question of petitioner’s liability for respondent’s injuries, incurred as they were here, if he had been in petitioner’s employ rather than hired by the stevedoring company. That an owner is liable to indemnify a seaman for an injury caused by the unseaworthiness of the vessel or its appurtenant appliances and equipment has been settled law in this country ever since The Osceola, 189 U. S. 158. Mahnich v. Southern S. S. Co., 321 U. S. 96, 99, and authorities cited. And the liability applies as well when the ship is moored at a dock as when it is at sea. See, e. g., The Edith Godden, 23 F. 43; Wm. Johnson & Co. v. Johansen, 86 F. 886; The Waco, 3 F. 2d 476. Petitioner insists, however, that the obligation flows from, and is circumscribed by the existence of, the contract between the owner of the vessel and the seaman. Accordingly, since there was no such contract here, it says respondent cannot recover. Respondent is equally insistent that the owner cannot slough off liability to those who do the vessel’s work by bringing an intermediary contracting employer between himself and those workers. In respondent’s view the liability is an incident of the maritime service rendered, not merely of the immediate contractual relation of employment, and has its roots in the risks that service places upon maritime workers and in the policy of the law to secure them indemnity against such hazards. Obviously the norm of the liability has been historically and still is the case of the seaman under contract with the vessel’s owner. This is because the work of maritime service has been done largely by such persons. But it does not follow necessarily from this fact that the liability either arose exclusively from the existence of a contractual relation or is confined to situations in which one exists. SEAS SHIPPING CO. v. SIERACKI. 91 85 Opinion of the Court. The origins are perhaps unascertainable.7 But that fact in itself may be some evidence that contract alone is neither the sole source of the liability nor its ultimate boundary. For to assume this would be at once to project ideas of contract backward into centuries governed more largely than our own by notions of status,8 and to exclude from the protection all who do the work of the sea without benefit of contract with the owner. It may be doubted, for example, that he has ever been able to escape liability to impressed seamen, in whose cases to speak of “contract” would only rationalize a responsibility imposed regardless of consensual relationship. And it would hardly seem consistent with the obligation’s benevolent purposes9 that 7 It has been suggested that “the seaman’s right of indemnity for injuries caused by defective appliances or unseaworthiness seems to have been a development from his privilege to abandon a vessel improperly fitted out.” The Arizona v. Anelich, 298 U. S. 110, 121, note 2; Mahnich v. Southern S. S. Co., 321 U. S. 96, 99; cf. The Osceola, 189 U. S. 158. It does not follow that the right of abandonment would not exist if the seaman were hired by another at the instance of the vessel’s owner, and no decision to which we have been referred so holds. 8 See Maine, Ancient Law (1861). For a modern criticism, see Pound, Interpretations of Legal History (1930) 53 et seq. 9 An excellent summary is given by Parker, J., in The State of Maryland, 85 F. 2d 944, 945: “Seamen are the wards of admiralty, and the policy of the maritime law has ever been to see that they are accorded proper protection by the vessels on which they serve. In early days, this protection was sufficiently accorded by the enforcement of the right of ‘maintenance and cure.’ Vessels and their appliances were of comparatively simple construction, and seamen were in quite as good position ordinarily to judge of the seaworthiness °* a vessel as were her owners .... With the advent of steam navigation, however, it was realized, at least in this country, that ‘maintenance and cure’ did not afford to injured seamen adequate compensation in all cases for injuries 92 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. the owner might nullify it by the device of having all who man the ship hired by others willing to furnish men for such service at sea or ashore. It is true that the liability for unseaworthiness is often said to be an incident of the seaman’s contract. But in all instances which have come to our attention this has been in situations where such a contract existed.10 Necessarily sustained. Vessels were no longer the simple sailing ships, of whose seaworthiness the sailor was an adequate judge, but were full of complicated and dangerous machinery, the operation of which required the use of many and varied appliances and a high degree of technical knowledge. The seaworthiness of the vessel could be ascertained only upon an examination of this machinery and appliances by skilled experts. It was accordingly held that the duty of the vessel and her owners to the seaman, in this new age of navigation, extended beyond mere ‘maintenance and cure,’ which had been sufficient in the simple age of sailing ships; that the owners owed to the seamen the duty of furnishing a seaworthy vessel and safe and proper appliances in good order and condition; and that for failure to discharge such duty there was liability on the part of the vessel and her owners to a seaman suffering injury as a result thereof. The Osceola, 189 U. S. 158, 175 ... . In the Edith Godden (D. C.) 23 F. 43,46, which dealt with the case of a seaman injured by a defective derrick, Judge Addison Brown pointed out that in dealing with injuries sustained by the use of modern appliances ‘it is more reasonable and equitable to apply the analogies of the municipal law in regard to the obligation of owners and masters, rather than to extend the limited rule of responsibility under the ancient maritime law to these new, modern conditions, for which those limitations were never designed.’ ” See, in addition to the cited opinion of Judge Brown, his opinion in The City of Alexandria, 17 F. 390. See also Storgard v. France & Canada S. 8. Corp., 263 F. 545, 547-548; The H. A. Scandrett, 87 F. 2d 708, 711. 10 In all of the cases cited or found, except perhaps the stevedore cases cited in note 3, where the cause of action has been based upon unseaworthiness, there was a contract. The “implied warranty” on the part of a shipowner that a ship is seaworthy has been read not only into contracts made with seamen, Hamilton v. United States, 268 F. SEAS SHIPPING CO. v. SIERACKI. 93 85 Opinion of the Court. in such a setting the statement could have no reference to any issue over liability in the absence of such a contractual relation. Its function rather has been to refute other suggested restrictions which might be held to apply on the facts. Most often perhaps these have been limitations arising from the erroneous idea that the liability is founded in negligence and therefore may be defeated by the common-law defenses of contributory negligence, assumption of risk and the fellow-servant rule. Mahnich v. Southern S. S. Co., supra; cf. Carlisle Packing Co. v. Sandanger, 259 U. S. 255. Because rationalizing the liability as one attached by law to the relation of shipowner and seaman, where this results from contract, may have been thought useful to negative the importation of those common-law tort limitations does not mean, however, that the liability is itself contractual or that it may not extend to situations where the ship’s work is done by others not in such an immediate relation of employment to the owner. That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the 15,21, but also into contracts for the carriage of goods by sea, Bradley Fertilizer Co. v. The Edwin I. Morrison, 153 U. S. 199, 210-211, although this liability has been modified by the Harter Act, 27 Stat. 445, 46 U. S. C. §§ 189-195; and in rare instances perhaps also into contracts with passengers, cf. Muise v. Gorton-Pew Vessels Co., 1938 A. M. C. 714, 718; Ramey v. New York & P. S. S. Co., 216 F. 449, 453; Robinson, Admiralty (1939) 306, note 109. 94 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. owner regardless of his fault.11 Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost. These and other considerations arising from the hazards which maritime service places upon men who perform it, rather than any consensual basis of responsibility, have been the paramount influences dictating the shipowner’s liability for unseaworthiness as well as its absolute character. It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. Mahnich v. Southern S. S. Co., supra; Atlantic Transport 11 Contributory negligence has never been a defense in suits brought by seamen to recover for injuries due to a ship’s unseaworthiness but has been applied merely in mitigation of damages. Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, 429; The Arizona v. Anelich, 298 U. S. 110, 122, and cases cited. And in The Max Morris, 137 U. S. 1, the Court held that in a suit for personal injuries brought in admiralty by a stevedore the admiralty rule of divided damages was applicable. It was said in The Arizona v. Anelich, at 122-123, with respect to the defense of assumption of risk: “The seaman assumes the risk normally incident to his perilous calling . . ., but it has often been pointed out that the nature of his calling, the rigid discipline to which he is subject, and the practical difficulties of his avoiding exposure to risks of unseaworthiness and defective appliances, make such a defense . ■ • peculiarly inapplicable to suits by seamen to recover for the negligent failure to provide a seaworthy ship and safe appliances.” As to the fellow-servant rule, see Mahnich v. Southern S. S. Co., 321 U. S. 96, 100-103; The Frank and Willie, 45 F. 494,495-496. In this connection is pertinent also the frequently stated rule that the obligation of a shipowner to provide a seaworthy ship is nondelegable. See, e. g., Lord and Sprague, Cases on the Law of Admiralty (1926) 237, note 4; The Rolph, 299 F. 52, 55; Globe S. S. Co. v. Moss, 245 F. 54, 55. SEAS SHIPPING CO. v. SIERACKI. 95 85 Opinion of the Court. Co. v. Imbrovek, 234 U. S. 52; Carlisle Packing Co. v. Sandanger, supra. It is a form of absolute duty owing to all within the range of its humanitarian policy. On principle we agree with the Court of Appeals that this policy is not confined to seamen who perform the ship’s service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement. All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship’s work or by other devices which would strip the men performing its service of their historic protection. The risks themselves arise from and are incident in fact to the service, not merely to the contract pursuant to which it is done. The brunt of loss cast upon the worker and his dependents is the same, and is as inevitable, whether his pay comes directly from the shipowner or only indirectly through another with whom he arranges to have it done. The latter ordinarily has neither right nor opportunity to discover or remove the cause of the peril and it is doubtful, therefore, that he owes to his employees, with respect to these hazards, the employer’s ordinary duty to furnish a safe place to work, unless perhaps in cases where the perils are obvious or his own action creates them.12 If not, no 12 In Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, the stevedor-aig company was held liable to its employee for negligence in failing to furnish a safe place to work. This consisted in its failure to secure properly a beam which supported hatch covers removed by it in the loading process. The libelant joined the shipowner with the stevedor-lng contractor, both being represented by the same proctors and advocates. The stevedoring company acquitted the shipowner and the rbel was dismissed as to it. The case, in view of these circumstances, ls not authority for the view that the stevedoring company is liable 0 the stevedore, under the employer’s obligation to furnish a safe 96 OCTOBER TERM, 1945. Opinion of the Court. 328 U. 8. such obligation exists unless it rests upon the owner of the ship. Moreover, his ability to distribute the loss over the industry is not lessened by the fact that the men who do the work are employed and furnished by another. Historically the work of loading and unloading is the work of the ship’s service, performed until recent times by members of the crew. Florez v. The Scotia, 35 F. 916; The Gilbert Knapp, 37 F. 209, 210; The Seguranca, 58 F. 908,909. That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker’s hazard and should not nullify his protection. Every consideration, therefore, giving rise to the liability and shaping its character bespeaks inclusion of men intermediately employed to do this work, save only that which is relevant to consent as a basis for responsibility. We do not think this is the ultimate basis of the liability where the seaman hired by the vessel does the work. It is only the source of the relation which furnishes the occasion for the liability, attached by law to performance of the service, to come into play. Not the owner’s consent to liability, but his consent to performance of the service defines its boundary. That this is given by contract with the worker’s employer rather than with the worker himself does not defeat the responsibility. working place, for the hazards secured against by the shipowners obligation of seaworthiness. It holds only that the stevedoring company is liable for its own negligence. It has frequently been said that a shipowner owes to stevedores the duty of providing a safe place to work, see, e. g., The Joseph B. Thomas, 86 F. 658, 660; The No. 34, 25 F. 2d 602, 604, but cf. Willis v. Lykes Bros. S. S. Co., 23 F. 2d 488,489, although the duty has at times been qualified by statements that it does not extend to latent defects that “a reasonable inspection by the shipowner or his agents would not show.” Wholey v. British & Foreign S. S. Co., 158 F. 379, 380, affirmed, 171 F. 399. SEAS SHIPPING CO. v. SIERACKI. 97 85 Opinion of the Court. Accordingly we think the Court of Appeals correctly held that the liability arises as an incident, not merely of the seaman’s contract, but of performing the ship’s service with the owner’s consent. For this view, in addition to the stated considerations of principle, the court rightly found support in the trend and policy of this Court’s decisions, especially in International Stevedoring Co. v. Hav-erty, 272 U. S. 50; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; and Uravic v. Jarka Co., 282 U. S. 234. The Haverty case is of special importance. The Court of Appeals said, with reference to its bearing and that of the Imbrovek decision: “And so an injury to a stevedore comes within the classification of a marine tort. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52. It seems, therefore, that when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights. This is the very basis on which the Jones Act13 was held applicable to give redress to an injured stevedore in International Stevedoring Co. v. Haverty . . . 149 F. 2d 98,101. The conclusions are sound, notwithstanding the cases are distinguishable in their specific rulings. From that fact it does not follow that either those rulings or the grounds upon which they went are irrelevant or without force for our problem. It is true that negligence was the basis of recovery in both cases and that in each the stevedoring contractor was held responsible. But it was of the gist of the jurisdictional question presented by the libel 13 Merchant Marine Act of 1920, 41 Stat. 1007, 46 U. S. C. § 688, extending to “seamen” the benefits of the Federal Employers’ Liability °t, 45 U. S. C. § 51 et seq. 98 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. in Imbrovek™ that stevedores injured while working aboard the ship, though not employed by its owner, are within the traditional protections afforded to seamen by admiralty and that “the fortuitous circumstance” of their employment by one other than the owner to do the ship’s work not only did not remove them from those protections, but brought their employers within the protection of the liability to supply them.14 15 The same underlying considerations were controlling in the Haverty decision, although the liability asserted arose under an Act of Congress and the Court cast its ruling in terms of legislative intent. The only fulcrum for its action was the statute’s undefined use of the term “seamen” in conferring the right of recovery under the Federal Employers’ Liability Act for the employer’s negligence. 41 Stat. 988, 1007. Recognizing that for most purposes “stevedores are not ‘seamen,’ ” 16 and relying upon Imbro- 14 It was argued that the wrong, although taking place aboard ship in navigable waters, was not of maritime character and hence not within the admiralty jurisdiction of the District Court. 15 In answer to the contention that the service was not maritime and hence the independently employed stevedore’s claim was not within the admiralty jurisdiction, the Court said: "Upon its proper performance depend in large measure the safe carrying of the cargo and the safety of the ship itself; and it is a service absolutely necessary to enable the ship to discharge its maritime duty. Formerly the work was done by the ship’s crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class 'as clearly identified with maritime affairs as are the mariners’.” 234 U. S. 52,61-62. 16 The Court of Appeals in this case likewise carefully limited its ruling in recognition of the fact that stevedores are not entitled to all the protections a seaman may claim. It is in relation to liability for personal injury or death arising m the course of his employment aboard the ship that the policy of our law has been most favorable to the stevedore’s claims. Whether or not that policy has been influenced by the vicissitudes experienced m SEAS SHIPPING CO. v. SIERACKI. 99 85 Opinion of the Court. vek, the Court again stressed that “the work upon which the plaintiff was engaged was a maritime service formerly rendered by the ship’s crew,” and that the statute’s policy was to afford compensation for injuries “as properly part of the cost of the business,” that is, of the maritime service rendered, rather than by the capricious circumstance of employment “by a stevedore rather than by the ship.” And the Uravic decision rejected an equally capricious discrimination based upon the nationality of the vessel’s flag. Running through all of these cases, therefore, to sustain the stevedore’s recovery is a common core of policy which has been controlling, although the specific issue has varied from a question of admiralty jurisdiction to one of coverage under statutory liability within the admiralty field. It is that for injuries incurred while working on board the ship in navigable waters the stevedore is entitled to the seaman’s traditional and statutory protections, regardless of the fact that he is employed immediately by another than the owner.17 For these purposes he is, in short, a seaman because he is doing a seaman’s work and incurring a seaman’s hazards. Moreover, to make the policy effective, his employer is brought within the liability which is peculiar to the employment relation to the extent that and because he also undertakes the service of the ship. finding protection for him as a result of the Jensen decision, 244 U. S. 205; Davis v. Department of Labor, 317 U. S. 249, 252-253, the reasons underlying the policy are perhaps more nearly identical in this application, as between seamen and longshoremen, than those supporting other rights of the seaman, such as that to maintenance and cure. 7 In this case we are not concerned with the question whether the ame P°licy extends to injuries incurred ashore by a stevedore en-Saged in the same work, a matter which is relevant however in Swan-S°n v. Marra Brothers, Inc., ante, p. 1. Cf. O’Donnell v. Great Lakes Co-> 318 u. s. 36. 100 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. It would be anomalous if such a policy, effective to control such issues, were less effective when the question is simply whether the stevedore is entitled to the traditional securities afforded by the law of the sea to men who do the ship’s work. Nor does it follow from the fact that the stevedore gains protections against his employer appropriate to the employment relation as such, that he loses or never acquires against the shipowner the protections, not peculiar to that relation, which the law imposes as incidental to the performance of that service. Among these is the obligation of seaworthiness. It is peculiarly and exclusively the obligation of the owner. It is one he cannot delegate.18 By the same token it is one he cannot contract away as to any workman within the scope of its policy. As we have said, he is at liberty to conduct his business by securing the advantages of specialization in labor and skill brought about by modern divisions of labor. He is not at liberty by doing this to discard his traditional responsibilities. That the law permits him to substitute others for responsibilities peculiar to the employment relation does not mean that he can thus escape the duty it imposes of more general scope. To allow this would be, in substantial effect, to convert the ancient liability for maritime tort into a purely contractual responsibility. This we are not free to do. It remains to consider one other argument, namely, that the Haverty decision has been overruled, in effect, by the enactment of the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927, 44 Stat. 1424, 33 U. S. C. § 901 ff., and therefore the effect of that decision as furnishing any support for including longshoremen within the owner’s obligation of seaworthiness has been 18 See note 11. SEAS SHIPPING CO. v. SIERACKI. 101 85 Opinion of the Court. nullified. The argument is that by giving longshoremen the rights of compensation afforded by that Act against the employer and making them exclusive, Congress has withdrawn from them not only the protections gained by virtue of the Merchant Marine Act of 1920 under the Haverty decision, but also all other protections relating to personal injury which otherwise might be available to them under the general maritime law. In other words, it is claimed that the remedies afforded by the Longshoremen’s legislation are exclusive of all other remedies for injuries incurred aboard ship, whether against the employer or others. This view cannot be accepted. Apart from the fact that the Uravic decision was rendered by a unanimous Court some three years after the Longshoremen’s and Harbor Workers’ Act was adopted, with a like result in Jamison v. Encarnacion, 281 U. S. 635,19 the compelling answer is that Congress by that Act not only did not purport to make the stevedore’s remedy for compensation against his employer exclusive of remedies against others. It expressly reserved to the stevedore a right of election to proceed against third persons responsible for his injury20 and, in case of his election to receive compensation, it provided for assignment of his rights against third persons to his employer, binding the latter to remit to him any “Both cases were determined on facts which arose prior to enactment of the statute. ’Section 33 (a) of the Act provides: “If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to . deputy commissioner in such manner as the commission may pro-V1de, to receive such compensation or to recover damages against such third person.” 44 Stat. 1440, 33 U. S. C. § 933 (a). 102 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. excess of the recovery over the compensation, expenses of recovery, etc.21 We may take it therefore that Congress intended the remedy of compensation to be exclusive as against the employer. See Swanson v. Marra Brothers, Inc., ante, p. 1; 33 U. S. C. § 905. But we cannot assume, in face of the Act’s explicit provisions, that it intended this remedy to nullify or affect others against third persons. Exactly the opposite is true. The legislation therefore did not nullify any right of the longshoreman against the owner of the ship, except possibly in the instance, presumably rare, where he may be hired by the owner. The statute had no purpose or effect to alter the stevedore’s rights as against any but his employer alone. Beyond that consequence, moreover, we think it had none to alter either the basic policy or the rationalization of the Haverty decision. Because the recovery under the Merchant Marine Act of 1920 was limited to the employer, the necessary effect of the Longshoremen’s and Harbor Workers’ Act, likewise so limited, was to substitute its remedy for that provided under the preexisting legislation and the Haverty decision’s construction of it. There was none to nullify the basic and generally applicable policy of that decision or to affect the validity of its foundations in other applications. It may be added that, beyond the applicability of those considerations to sustain the stevedore’s right of recovery 21 See 33 U. S. C. §§ 933 (b) to (g) inclusive. As to the right of election and the right to receive compensation or the amount of the recovery against third persons, whichever is greater, see Chapman v. Hoage, 296 U. S. 526, 529; Marlin v. Cardillo, 95 F. 2d 112; Grasso v. Lorentzen, 149 F. 2d 127; The Pacific Pine, 31 F. 2d 152; Cupo v. Isthmian S. S. Co., 56 F. Supp. 45. The statute did not cover members of a crew of a vessel, thereby saving to them their preexisting rights under the Merchant Manne Act of 1920. 33 U. S. C. § 902 (3). See South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 256-257. SEAS SHIPPING CO. v. SIERACKL 103 85 Stone, C. J., dissenting. for breach of the owner’s obligation of seaworthiness, are others to support the statutory policy of giving his employer recovery over against the owner when the latter’s breach of duty casts upon the employer the burden of paying compensation. These may furnish additional reason for our conclusion. With them however we are not immediately concerned. The judgment is Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Chief Justice Stone, dissenting. Mr. Justice Frankfurter, Mr. Justice Burton and I think the judgment should be reversed. Respondent, the employee of a stevedoring company, which had contracted with petitioner to load its vessel lying in navigable waters, was injured while so employed, in consequence of the failure of a shackle, a part of the ship’s tackle, due to its hidden defects. The courts below have found that two other defendants were liable for negligence in furnishing the defective shackle. The courts were unable to find that the injury was attributable to any negligent act or omission of the vessel or its owner. But the Court of Appeals below and this Court have sustained a recovery against petitioner on the novel ground that the owner is an insurer against injury caused by the unseaworthiness of the vessel or its appliances to a maritime worker on board, although not a member of the crew or the ship’s company, and not employed by the vessel. The Court has thus created a new right in maritime workers, not members of the crew of a vessel, which has not itherto been recognized by the maritime law or by any 8 atute. For this I can find no warrant in history or precedent, nor any support in policy or in practical needs. 717466 0—47-ii 104 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328U.S. The liability of a vessel or its owner to members of the crew, as an insurer of seaworthiness of the vessel and its tackle, was not recognized by the maritime law of England until established by statute. Merchant Shipping Act, 39 & 40 Viet. c. 80, § 5; 57 & 58 Viet. c. 60, § 458. In this country the right of the seaman to demand, in addition to maintenance and cure, indemnity for injuries resulting from unseaworthiness, was first recognized by this Court in The Osceola, 189 U. S. 158. In later cases it has been established that due diligence of the owner does not relieve him from this obligation. See The Arizona v. Anelich, 298 U. S. 110, 121; Socony-Vacuum Co. v. Smith, 305 U. S. 424, 429, 432; Mahnich v. Southern S. S. Co., 321 U. S. 96, 100, and cases cited; The Neptuno, 30 F. 925; The Frank & Willie, 45 F. 494; The Julia Fowler, 49 F. 277; cf. The Edwin I. Morrison, 153 U. S. 199, 210. The liability of the vessel or owner for maintenance and cure, regardless of their negligence, was established long before our modern conception of contract. But it, like the liability to indemnify the seaman for injuries resulting from unseaworthiness, has been universally recognized as an obligation growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected. They are exposed to the perils of the sea and all the risks of unseaworthiness, with little opportunity to avoid those dangers or to discover and protect themselves from them or to prove who is responsible for the unseaworthiness causing the injury. For these reasons the seaman has been given a special status in the maritime law as the ward of the admiralty, entitled to special protection of the law not extended to land employees. Robertson v. Baldwin, 165 U. S. 275, 282-3; The Arizona v. Anelich, supra, 122, 123; Calmar SEAS SHIPPING CO. v. SIERACKI. 105 85 Stone, C. J., dissenting. S. 8. Corp. v. Taylor, 303 U. S. 525; Socony-Vacuum Co. v. Smith, supra, 430; Aguilar v. Standard Oil Co., 318 U. S. 724. See also Judge Addison Brown in The City of Alexandria, 17 F. 390,394, et seq. Justice Story said in Reed v. Canfield, Fed. Cas. No. 11,641, 1 Sumn. 195, 199: “Seamen are in some sort co-adventurers upon the voyage; and lose their wages upon casualties, which do not affect artisans at home. They share the fate of the ship in cases of shipwreck and capture. They are liable to different rules of discipline and sufferings from landsmen. The policy of the maritime law, for great, and wise, and benevolent purposes, has built up peculiar rights, privileges, duties, and liabilities in the sea-service, which do not belong to home pursuits.” It is for these reasons that throughout the long history of the maritime law the right to maintenance and cure, and later the right to indemnity for injuries attributable to unseaworthiness, have been confined to seamen. Longshoremen and harbor workers are in a class very different from seamen, and one not calling for the creation of extraordinary obligations of the vessel or its owner in their favor, more than other classes of essentially land workers. Unlike members of the crew of a vessel they do not go to sea; they are not subject to the rigid discipline of the sea; they are not prevented by law or ship’s discipline from leaving the vessel on which they may be employed; they have the same recourse as land workers to avoid the hazards to which they are exposed, to ascertain the cause of their injury and to prove it in court. Congress has recognized this difference in their status r°ni that of seamen. Although it has given extensive consideration to it in enacting the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 ff., !n ^27, and again, upon its revision in 1934 and 1938, 111 no instance did Congress extend to longshoremen and 106 OCTOBER TERM, 1945. Stone, C. J., dissenting. 328U.S. harbor workers any of the special rights or privileges conferred on seamen by the maritime law. In fact Congress, by the Longshoremen’s Act, cut off from longshoremen and harbor workers the right extended to them by judicial construction of the Jones Act, 46 U. S. C. § 688, International Stevedoring Co. v. Haverty, 272 U. S. 50; Uravic v. Jarka Co., 282 U. S. 234, to enjoy the same right of recovery from the vessel or owner as seamen for negligent injuries sustained while working on navigable waters. Swanson v. Marra Brothers, ante, p. 1. While the Act gave to longshoremen and stevedores a right to compensation against their employer, it neither conferred upon nor withheld from them any rights of recovery for such injuries against third persons. It can hardly be said that the failure of Congress thus to enlarge the rights of longshoremen, so as to make them comparable to those of seamen, is a recognition of existing rights against third persons arising from the warranty of seaworthiness which no court has ever recognized* and which grows out of a status which longshoremen have never occupied. There are no considerations of policy or practical need which should lead us, by judicial fiat, to do that which Congress, after a full study of the subject, has failed to do. Wherever the injury occurs on navigable waters, Congress has given to longshoremen and harbor workers substantial rights to compensation against their employer for in- *The two cases relied upon by the Circuit Court of Appeals do not lend support to its decision. In Cassil v. United States Emergency Fleet Corp., 289 F. 774, recovery was sought on the ground that the vessel was negligent, and the court merely said that there could be no claim against the vessel unless it was unseaworthy. The court seems to have assumed that a recovery for unseaworthiness could be had only if negligence was shown. See cases cited in Mahnich v. Southern S. S. Co., 321 U. S. 96,100. In W. J. McCahan Co. v. Stoffel, 41 F. 2d 651, a longshoreman was allowed recovery on the ground of negligence of one of the ship’s employees. SEAS SHIPPING CO. v. SIERACKI. 107 85 Stone, C. J., dissenting. juries inflicted without his fault. South Chicago Co. v. Bassett, 309 U. S. 251. It has left them free to pursue their remedy for injuries resulting from negligence of third parties, including in this case the vessel and the furnishers of the defective shackle. Where the injury occurs on land they are free to pursue the remedy afforded by local law. State Industrial Commission v. Nordenholt Corp., 259 U. S. 263; Smith & Son v. Taylor, 276 U. S. 179; Swanson v. Marra Brothers, ante, p. 1. There would seem to be no occasion for us to be more generous than Congress has been by presenting to them paid-up accident insurance policies at the expense of a vessel by which they have not been employed, and which has not failed in any duty of due care toward them. Apparently under the decision now rendered the maritime worker employed by a vessel on navigable waters, but not a member of the crew, would enjoy rights of recovery not accorded to members of the crew. For he would be entitled to indemnity upon the warranty of seaworthiness as are members of the crew and also to the benefits of the Longshoremen’s and Harbor Workers’ Act from which members of the crew are excluded. See South Chicago Co. v. Bassett, supra, 255-6. Nor is the rule now announced to be justified as a modem and preferred mode of distributing losses inflicted without fault. Congress, in adopting the Longshoremen’s Act, has chosen the mode of distribution in the case of longshoremen and harbor workers. By 33 U. S. C. § 901 . seq. it has given to them compensation for their injuries, irrespective of fault. Section 933 provides that if a stevedore entitled to compensation elects to recover damages against a third person, the employer must pay as compen-aation a sum equal to the excess of the amount which the commission determines is payable on account of the mjury over the amount recovered against the third person. 108 OCTOBER TERM, 1945. Syllabus. 328 U. S. The whole philosophy of liability without fault is that losses which are incidental to socially desirable conduct should be placed on those best able to bear them. Congress has made a determination that the employer is best able to bear the loss which, in this instance, could not be avoided by the exercise of due care. This is an implied determination which should preclude us from saying that the ship owner is in a more favorable position to absorb the loss or to pass it on to society at large, than the employer. D. A. SCHULTE, INC. v. GANGI et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 517. Argued March 1,1946.—Decided April 29,1946. 1. An employer can not be relieved from liability for liquidated damages under § 16 (b) of the Fair Labor Standards Act by a compromise or settlement of a bona fide dispute as to the coverage of the Act. P. 114. 2. The purpose of the Fair Labor Standards Act—to secure a subsistence wage for low-income workers—requires that neither wages nor the damages for withholding th^m be reducible by compromise of controversies over coverage. Pp. 116-118,121. 3. Maintenance employees of a building the occupants of which receive, work on and return in intrastate commerce goods belonging to non-occupants who subsequently in the regular course of their business ship substantial proportions of the occupants’ products to other States, held covered by the Fair Labor Standards Act. P. 120. 4. The burden of proof that rests Upon employees to establish that they are engaged in the production of goods for commerce, within the coverage of the Fair Labor Standards Act, must be met by evidence in the record. P. 120. 5. In determining whether employees are engaged in the “production o goods for commerce,” within the meaning of the Fair Labor Stan ards Act, it is sufficient that, from the circumstances of production, SCHULTE CO. v. GANGI. 109 108 Opinion of the Court. a trier of fact may reasonably infer that the employer has reasonable grounds to anticipate that his products will move in interstate commerce. Walling v. Jacksonville Paper Co., 317 U. S. 564, distinguished. Pp. 119,121. 6. Mere separation of the economic processes of production for commerce between different industrial units, even without any degree of common ownership, does not destroy the continuity of production for commerce. P. 121. 150 F. 2d 694, affirmed. Respondent, suing on behalf of himself and other employees similarly situated, brought suit against his employer to recover liquidated damages under § 16 (b) of the Fair Labor Standards Act. The District Court held that the liability of the employer had been validly released. 53 F. Supp. 844. The Circuit Court of Appeals reversed. 150 F. 2d 694. This Court granted certiorari. 326 U. S. 712. Affirmed, p. 121. Edwin A. Falk argued the cause for petitioner. With him on the brief was Abraham Friedman. Isidore Entes argued the cause and filed a brief for respondent. Solicitor General McGrath, William S. Tyson, Bessie Margolin and Joseph M. Stone filed a brief for the Administrator of the Wage and Hour Division, United States Department of Labor, as amicus curiae, urging affirmance. Mr. Justice Reed delivered the opinion of the Court. The issues brought to this Court by this proceeding arise from a controversy concerning overtime pay and liquidated damages under the Fair Labor Standards Act of 938. Under § 7 (a), the employer is required to pay for 110 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. excess hours of work not less than one and one-half times the regular rate.1 An employer who violates this subsection is liable to his injured employees in the amount due and unpaid and in an additional equal amount as liquidated damages.* 2 The primary issue presented by the petition for certiorari is whether the Fair Labor Standards Act precludes a bona fide settlement of a bona fide dispute over the coverage of the Act on a claim for overtime compensation and liquidated damages where the employees receive the overtime compensation in full. As the conclusion of the Circuit Court of Appeals on this issue in this case3 conflicts with that of the Fourth Circuit in Guess v. x52 Stat. 1063: “Sec. 7. (a) No employer shall . . . employ any of his employees who is engaged in commerce or in the production of goods for commerce—[longer than the maximum workweek] unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 2 52 Stat. 1069: “Sec. 16. (b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 3 Gangi v. D. A. Schulte, 150 F. 2d 694. See also Fleming v. TFar-shawsky & Co., 123 F. 2d 622, 626. SCHULTE CO. v. GANGI. Ill 108 Opinion of the Court. Montague, 140 F. 2d 500, 504-505, and the Fifth Circuit in Atlantic Co. v. Broughton, 146 F. 2d 480, we granted certiorari in order to determine the issue which was not passed upon in Brooklyn Bank v. O’Neil, 324 U. S. 697, 702-704,708, note 21. 326 U. S. 712.4 Respondents were employed by petitioner as building service and maintenance employees in its twenty-three story loft building in the garment manufacturing district of New York City during the period October 24, 1938, to February 5, 1942. Each put in varying hours of overtime for which no payment had been made prior to our decision in Kirschbaum Co. v. Walling, 316 U. S. 517, on June 1, 1942, by which service and maintenance employees in buildings tenanted by manufacturers producing for interstate commerce were held to be covered by the Wage-Hour Act. Shortly thereafter respondents made claims for overtime pay and liquidated damages which were refused by petitioner on the ground, admittedly true, that its tenants did not ship the products they produced directly in interstate commerce but delivered them to distributors or producers in the same state who thereafter used the products of petitioner’s tenants for interstate commerce or the production of goods for that commerce. Under threat of suit, petitioner paid the overtime compensation and obtained a release under seal signed by the 4 In view of the number of settlements for violations, the issue is of importance. See Annual Report, Wage and Hour and Public Contracts Divisions, U. S. Department of Labor, fiscal year ending June 30,1945, p. 2: In the six years and nine months that the Fair Labor Standards Act had been in force through the end of the fiscal year, about $85,000,000 in restitution of illegally withheld wages had been agreed to or ordered paid to almost two and a half million workers in more than 110,000 establishments, with more than two-fifths of the cases involving failure to pay the minimum wage of 40 cents an hour or less.” 112 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. several respondents. It is set out below.5 Petitioner computed the amount of overtime and respondents raise no question as to its accuracy. Respondents then brought this suit in the District Court to recover liquidated damages due them under § 16 (b) of the Act. It was stipulated that the liquidated damages, due if recoverable, were certain stated amounts which corresponded to the overtime compensation already paid. Petitioner denied that it was covered by the Act and pleaded affirmatively, as a defense, the releases which it asserted were obtained in settlement of a bona fide dispute as to coverage. The District Court held that there was a good accord and satisfaction and release of all claims for liquidated damages because there was a bona fide settlement of a bona fide dispute. It specifically refused to pass upon the defense that the Act did not cover the respondents except to indicate that it presented a difficult issue. 53 F. Supp. 844. This judgment was entered prior to our decision in the O’Neil case. The Circuit Court of Appeals reversed. That court thought the O’Neil case substantially determined that a bona fide compromise of a dispute as to coverage was invalid. Its conclusion as to the invalidity of such compromises was in accord with its prior comments that the liability of unpaid overtime compensation and liquidated damages is single and “is not discharged in toto by paying one-half of it.” Rigopoulos v. Kervan, 140 F. 2d 506, 507; Fleming v. Post, 146 F. 2d 441, 443. Petitioner urges that the theory of a single liability of the employer to the employee under § 16 (b) is unsound 5 “The undersigned, an employee of D. A. Schulte, Inc., in premises 575 Eighth Avenue, New York City, does hereby acknowledge receipt of the sum of $....as payment in full of all sums, if any, which may be due to the undersigned by said D. A. Schulte, Inc. by reason of the Federal Wage & Hour Act, and the undersigned does hereby release said D. A. Schulte, Inc. of and from any other or further obligations in connection therewith.” SCHULTE CO. v. GANGI. 113 108 Opinion of the Court. and that this Court should not find a lack of power in employers and employees to settle amicably controversies over coverage and amounts due for violations of the unpaid minimum wage or unpaid overtime compensation under §§ 6 and 7 of the Act. Petitioner reasons on its first contention that there were two claims—one for overtime compensation and the other for an equal amount as liquidated damages—and that the payment for the first in full was sufficient consideration for the release of the second. On its second contention, petitioner advances the argument that since the congressional intent to forbid compromises of such claims is not clear, such a sharp departure from the traditional policy of encouraging the adjustment instead of the litigation of disputes cannot be inferred from the purposes of the Act. Petitioner points out that a seaman may release his claims under statutes enacted for his protection in a bona fide settlement6 and that settlement of accrued claims is permitted under the Federal Employers’ Liability Act.7 Petitioner adds that in doubtful cases it may be advantageous to the employee to compromise, that to force litigation may disrupt employer-employee relationships, and that numerous compromise settlements have been made for less than full liability.8 8 Garrett v. Moore-McCormack Co., 317 U. S. 239. 7 Mellon v. Goodyear, 277 U. S. 335. Attention is called by petitioner to the failure in this case of the dministrator of the Wage and Hour Division, United States Department of Labor, as amicus curiae, to take the position that compromise Payments in cases of disputed coverage are invalid. The Adminis-rator is charged with responsibility for the administration of the Act. etitioner cites from the Administrator’s brief (p. 20) in the O’Neil ase to show the government position the following excerpt: “The actors which we have mentioned suggest, to us, the difficulty and er aps the inadvisability from the standpoint of the policy of the 114 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. We do not find it necessary to determine whether the liability for unpaid wages and liquidated damages that § 16 (b) creates is unitary or divisible.9 Whether the liability is single or dual, we think the remedy of liquidated damages cannot be bargained away by bona fide settlements of disputes over coverage. Nor do we need to consider here the possibility of compromises in other situa- Act of framing a sweeping generalization that all releases of liquidated damages are either valid or invalid.” That brief called attention also (pp. 19-20) to government practice upon violations of the Act by contractors with cost-plus contracts with the War and Navy Departments: “If it is decided by the contracting agency, the Administrator, or on appeal by the Assistant Attorney General, that the employee should prevail, the United States Attorney handling the case is directed to negotiate a tentative settlement with the employee’s counsel for submission to the contracting agency for acceptance or rejection. The wages due are of course always paid, but the claim for liquidated damages is the subject of bargaining, and almost invariably the employee’s counsel is willing to accept considerably less than the total amount of liquidated damages. After payment of the amount agreed on, a judgment is entered dismissing the suit with prejudice, thereby preventing the employee from seeking to recover more on the same claim.” Settlements of controversies under the Act by stipulated judgments in this Court are also referred to by petitioner. North Shore Corp. v. Barnett, 323 U. S. 679. Petitioner draws the inference that bona fide stipulated judgments on alleged Wage-Hour violations for less than the amounts actually due stand in no better position than bona fide settlements. Even though stipulated judgments may be obtained, where settlements are proposed in controversies between employers and employees over violations of the Act, by the simple device of filing suits and entering agreed judgments, we think the requirement of pleading the issues and submitting the judgment to judicial scrutiny may differentiate stipulated judgments from compromises by the parties. At any rate, the suggestion of petitioner is argumentative only as no judgment was entered in this case. 9 See Dize v. Maddrix, 324 U. S. 697,701-2,713. SCHULTE CO. v. GANGI. 115 108 Opinion of the Court. tions which may arise, such as a dispute over the number of hours worked or the regular rate of employment.10 11 The reasons which lead us to conclude that compromises of real disputes over coverage which do not require the payment in full of unpaid wages and liquidated damages do not differ greatly from those which led us to condemn the waivers of liquidated damages in the O’Neil case. We said there, 324 U. S. at 708: “The same policy which forbids waiver of the statutory minimum as necessary to the free flow of commerce requires that reparations to restore damage done by such failure to pay on time must be made to accomplish Congressional purposes. Moreover, the same policy which forbids employee waiver of the minimum statutory rate because of inequality of bargaining power, prohibits these same employees from bargaining with their employer in determining whether so little damage was suffered that waiver of liquidated damage is called for.” In a bona fide adjustment on coverage, there are the same threats to the public purposes of the Wage-Hour Act that exist when the liquidated damages are waived. The damages are at the same time compensatory and an aid to enforcement. It is quite true that the liquidated damage provision acts harshly upon employers whose violations are not deliberate but arise from uncertainties or mistakes as to coverage. Since the possibility of violations inheres in every instance of employment that is covered by the Act, Congress evidently felt it should not provide for variable compensation to fit the degree of blame in each infraction.11 Instead Congress adopted a mandatory re- 10 See Strand v. Garden Valley Telephone Co., 51 F. Supp. 898, 904-5. 11 Brooklyn Savings Bank v. O’Neil, supra, 713; West Coast Hotel v. Parrish, 300 U. S. 379, 397; Adkins v. Children’s Hospital, 261 U-S. 525,563. 116 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. quirement that the employer pay a sum in liquidated damages equal to the unpaid wages so as to compensate the injured employee for the retention of his pay.12 It is realized that this conclusion puts the employer and his employees to an “all or nothing gamble,” as Judge Chase phrased the result in his dissent below. Theoretically this means each party gets his just deserts, no more, no less. The alternative is to find in the Act an intention of Congress to leave the adjustments to bargaining at the worst between employers and individual employees or at best between employers and the employees’ chosen representatives, bargaining agent or some other. We think the purpose of the Act, which we repeat from the O’Neil case was to secure for the lowest paid segment of the Nation’s workers a subsistence wage, leads to the conclusion that neither wages nor the damages for withholding them are capable of reduction by compromise of controversies over coverage.13 Such a compromise thwarts the public policy of minimum wages, promptly paid, embodied in the Wage-Hour Act, by reducing the sum selected by Congress as proper compensation for withholding wages.14 The only other material question presented by this certiorari 15 is whether the Wage-Hour Act covers service and 12 Overnight Motor Co. v. Missel, 316 U. S. 572, 583-84; Birbalas v. Cuneo Printing Industries, 140 F. 2d 826,828-29. 13 Discussions of compromise of liability under the Wage-Hour Act will be found in 45 Col. L. Rev. 798; 14 George Washington L. Rev. 385 and 57 Harv. L. Rev. 257. 14 Brooklyn Savings Bank v. O’Neil, supra, 704-5, note 14. 15 The precise language of the question presented is as follows: “Whether building maintenance employees are within the protection of the Act if the facts relied on to establish coverage oi the employees show only that some of the tenants in the building receive, work on and return in intrastate commerce goods b^ng" ing to local owners who are not tenants of the building and tna subsequently some of the said goods are sold and shipped by sue non-tenant owners in interstate commerce, there being no proo SCHULTE CO. v. GANGI. 117 108 Opinion of the Court. maintenance employees of a building that is tenanted by occupants who receive, work on and return in intrastate commerce goods belonging to non-occupants who subsequently in the regular course of their business ship substantial proportions of the occupants’ products to other states.* 16 It is agreed by petitioner and respondents that if certain tenants are included as producers for interstate commerce the occupants of the building who are engaged in production for interstate commerce are sufficiently numerous and productive to bring the maintenance em- either that at the time of production such tenants had any knowledge of the ultimate destination of the goods worked on by them or that at the time of production the non-tenant owners had any prior orders or agreements to sell and ship any part of the completed goods in interstate commerce.” 16 No problem involving the soundness of the Wage-Hour standards to guide its enforcement of the Act is involved. We express no opinion on that question. As a working hypothesis the Wage-Hour Administration assumes that when as much as twenty per cent of a building is occupied by firms substantially engaged in production for commerce, then it is likely that maintenance employees will be covered. Release PR-19 (rev.), Nov. 19, 1943, Wage-Hour Division, U. S. Department of Labor. The Circuit Court of Appeals applied this rule with the result that it decided none of the respondents was covered by the Act prior to January 1, 1940. 150 F. 2d 694, 696-97. It decided that all the respondents were covered by the Act beginning January 1, 1940, because more than twenty per cent of the tenants then were engaged in the production of goods for commerce. No review of the first ruling is sought by respondents. Petitioner did not question the soundness of the twenty per cent standard in its petition for certiorari or brief. As no question is made in petition for certiorari or brief as to the propriety of the action or the power of the Circuit Court of Appeals ® determining the kind of activity, state or interstate, that the petitioner’s tenants carried on, rather than returning the case to the District Court for a finding of fact, we pass the question without inquiry ®nd without intimation of our understanding of the proper procedure, onapare the majority and dissenting opinions in 150 F. 2d 694. 118 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. ployees of the building within the coverage of the Act. Gangi v. D. A. Schulte, 150 F. 2d 694, note 5. That is, petitioner’s building then would be in the same classification, so far as the coverage of its maintenance employees by the Wage-Hour Act is concerned, as were the buildings in Kirschbaum Co. v. Walling, 316 U. S. 517, and Borden Co. v. Borella, 325 U. S. 679. We then would have no problem as to the business of the tenants, that is, whether they were producers for interstate commerce, such as was involved in 10 East 40th Street Co. v. Callus, 325 U. S. 578. While the Wage-Hour Act covers employees engaged in the production of goods for commerce, a maintenance employee working for a building corporation which furnishes loft space to tenants can hardly be so engaged unless an adequate proportion of the tenants of that building are so engaged. Kirschbaum Co. v. Walling, 316 U. S. at 524; Walling v. Jacksonville Paper Co., 317 U. S. 564, 572. Our inquiry, therefore, is narrowed to a determination of whether or not these certain tenants of petitioner, twelve in number, are producing goods for interstate commerce. These tenants manufactured articles for non-ten-ant New York City business organizations, which organizations subsequently sold the articles in interstate commerce. The Circuit Court of Appeals held as to them, 150 F. 2d 697:17 17 Petitioner says as to this finding: “The sole basis in the record for this finding is that the manufacturers for whom the said twelve tenant-contractors worked eventually disposed of some of their goods in interstate commerce. No evidence was offered and no attempt was made to prove that at the time when any of the additional twelve tenants worked on goods belonging to the manufacturers, such manufacturers had an order or an agreement or contract for the shipment of the goods, when completed, in interstate commerce. There was no testimony by any of the twelve tenants that they knew or had reason SCHULTE CO. v. GANGI. 119 108 Opinion of the Court. “And the testimony clearly shows that at the time of production these tenants had at the very least reasonable grounds to anticipate that their products would move in other states. This is all that had to be shown to constitute them interstate producers. Warren-Bradshaw Drilling Co. v. Hall, 317 U. S. 88, 92; United States v. Darby, 312 U. S. 100,118. . . Petitioner asserts that for four of the twelve there was no evidence that any of them knew at the time of production or later that their products were to be shipped interstate and that the proper characterization of these four tenants, as producers or non-producers for interstate commerce, is decisive of the liability of petitioner. Without detailing the factual situation which makes the position of these four tenants decisive of liability, we assume petitioner’s conclusion that its liability depends upon the proper characterization of the four tenants in respect to their position as producers for interstate commerce. We assume that the other eight are in the same category of tenants. Petitioner relies upon Walling v. Jacksonville Paper Co., 317 U. S. 564, 569, as indicating that evidence of a preexisting understanding by a manufacturer of the interstate destination of his products is essential. But that case was concerned with whether a wholesaler’s employees who handled stock were in commerce, not whether they were engaged in the production of goods for commerce.18 On that basis distinctions were made, as to employees handling goods locally, between a wholesaler’s stock pur- to believe that the goods worked on by them would be shipped in interstate commerce. In fact, there was no evidence, in the case of four of the twelve tenants, that any of them knew, either at the tune of production or at any time thereafter, or even upon the trial, that the goods worked on by them were eventually shipped in interstate commerce.” 18 Compare McLeod v. Threlkeld, 319 U. S. 491. 717466 O—47--12 120 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. chased on prior order extra-state for delivery intrastate and other stock purchased extra-state and warehoused for subsequent sale and local handling. We find nothing in the case that lends any support to the suggestion that a manufacturer’s intrastate delivery to a wholesaler or distributor or other manufacturer for further processing for ultimate interstate distribution interrupts production for interstate commerce. The burden of proof that rests upon employees to establish that they are engaged in the production of goods for commerce must be met by evidence in the record. Warren-Bradshaw Drilling Co. v. Hall, 317 U. S. 88, 90. The record shows this building is at 571-583 Eighth Avenue, Borough of Manhattan, City of New York. The testimony of many witnesses shows that the tenants were predominantly, if not entirely, engaged in work for the garment trades. We will take judicial notice, as a matter of common knowledge, that New York City produces more garments for interstate shipment than any other city in the Nation. Eleven of the twelve tenants were contractors who furnished labor on goods sent in to them so as to produce clothing articles eventually distributed in interstate commerce. The twelfth was a manufacturer with offices, salesroom and shipping rooms elsewhere in New York. There was no specific evidence that the four contractors, upon whose status petitioner bases his argument, ever knew that their goods were intended to be or eventually were shipped interstate. There is clear evidence that each business organization for which these four tenants did produce these clothing articles shipped a major proportion of the articles so produced by these tenants in interstate commerce in the regular course of their business. The production of these articles by the tenants for nontenants was the regular business of the tenants. The shortest occupancy of space by any of the four was five years and eleven months. SCHULTE CO. v. GANGI. 121 108 Frankfurter, J., dissenting. From these facts, we think the conclusion of the Circuit Court of Appeals that these tenants had reasonable grounds to anticipate that material quantities of their production would move interstate is well supported. It is not essential that individual products should be traced. It is sufficient that, from the circumstances of production, a trier of fact may reasonably infer that a producer has grounds to anticipate that his products will move interstate.19 Certainly if these tenants had not only manufactured but had also shipped their products interstate, no one would doubt that they were producers for commerce. Mere separation of the economic processes of production for commerce between different industrial units, even without any degree of common ownership, does not destroy the continuity of production for commerce. Producers may be held to know the usual routes for distribution of their products. All this is made plain by the citations of the Court of Appeals to the Darby and Bradshaw cases. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, with whom Mr. Justice Burton concurs, dissenting. Substantially for the reasons given by Judge Rifkind, 53 F. Supp. 844,1 would restore his judgment in the District Court and reverse that of the Circuit Court of Appeals. For purposes of judicial enforcement, the “policy” of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out 19 Compare Dize v. Maddrix, 144 F. 2d 584; Culver v. Bell & Loffland, 146 F. 2d 29; St. John v. Brown, 38 F. Supp. 385, 388; Fleming v. Enterprise Box Co., 37 F. Supp. 331, aff’d 125 F. 2d 897; Bracey v. Luray, 138 F. 2d 8. 122 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328 U. S. of the air. Before a hitherto familiar and socially desirable practice is outlawed, where overreaching or exploitation is not inherent in the situation, the outlawry should come from Congress. To that end, some responsibility at least for a broad hint to the courts, if not for explicitness, should be left with Congress. When on other occasions Congress has desired to forbid arrangements made in good faith, it has known how to express its will. When it has not said so in words, it has said so in effect by the very thing it has required, as, for instance, when it made tariffs filed with the Interstate Commerce Commission the fixed measure of transportation charges and forbade discrimination. 24 Stat. 379, 380, as amended; 49 U. S. C. § 6 (7). Of course that precludes discrimination by contract. E. g., Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U. S. 577. The Fair Labor Standards Act affords no comparable basis for the Court’s decision in this case. Nothing is discernible in anything that Congress has said or done to imply the prohibition of a settlement made by parties in good faith, not for the minimum wages but a settlement affecting the penalizing double liability where any liability was fairly in controversy when the settlement was made. The severity of the penalties imposed and the legitimate differences regarding the scope of the Act, inherent in its terms, c/. Kirschbaum Co. v. Walling, 316 U. S. 517, 520,523, only serve to underline the impolicy of attributing to Congress a purpose reflected neither in any specific provision of the statute nor in the scheme of the legislation. Strict enforcement of the policy which puts beyond the pale of private arrangement minimum standards of wages and hours fixed by law does not call for disregard of another policy, that of encouraging amicable settlement of honest differences between men dealing at arm’s length with one another. SMITH v. HOBOKEN R. CO. 123 Syllabus. SMITH, TRUSTEE, et al. v. HOBOKEN RAILROAD, WAREHOUSE AND STEAMSHIP CONNECTING CO. ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 384. Argued December 11, 1945.—Decided April 29,1946. 1. The provision of § 70 (b) of the Bankruptcy Act that “an express covenant that an assignment by operation of law or the bankruptcy of a specified party thereto or of either party shall terminate the lease or give the other party an election to terminate the same shall be enforceable” is applicable to railroad reorganizations under § 77 of the Bankruptcy Act. Pp. 126-128. 2. The provision of § 70 (b) of the Bankruptcy Act, authorizing enforcement against a bankruptcy trustee of an express covenant of forfeiture, embraces a covenant applicable to any “transfer” of the premises “in any proceeding, whether at law or in equity or otherwise,” to which the lessee is a party, and “whereby any of the rights, duties and obligations” of the lessee are “transferred, encumbered, abrogated or in any manner altered” without the lessor’s consent. P. 128. 3. Whether, in a proceeding for reorganization of an interstate railroad under § 77 of the Bankruptcy Act, enforcement against the trustee of a covenant of forfeiture in a lease of railroad tracks and facilities would be “consistent with the provisions” of § 77, within the meaning of § 77 (1), presents problems primarily for consideration and decision by the Interstate Commerce Commission; and the reorganization court should not have declared a forfeiture of the lease until the questions had been passed upon by the Commission. Pp.128-129. (a) Whether the public interest requires that the line be operated by the lessee rather than the lessor presents a question for the Commission under § 1 (18) of the Interstate Commerce Act. P. 130. (b) It is the function of the Commission under § 77 of the Bankruptcy Act to prepare the plan of reorganization of the debtor company; and, if the reorganization court decrees a forfeiture in advance of consideration of the problem by the Commission, it would interfere with the functions entrusted to the Commission under § 77. Pp. 130,132. 150 F. 2d 921, reversed. 124 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. In proceedings for the reorganization of a railroad under § 77 of the Bankruptcy Act, the reorganization court granted respondent’s motion to terminate a lease in which the debtor company was lessee. 56 F. Supp. 187. The Circuit Court of Appeals affirmed. 150 F. 2d 921. This Court granted certiorari. 326 U. S. 707. Reversed, p. 133. James D. Carpenter argued the cause and filed a brief for Smith, Trustee, petitioner. Parker McCollester argued the cause for the Hoboken Manufacturers Railroad Company et al., petitioners. With him on the brief was Edward A. Markley. Edward J. O’Mara argued the cause for respondents. With him on the brief was John J. Hickey. Solicitor General McGrath, Assistant Attorney General Berge, Edward Dumbauld, Daniel W. Knowlton and Edward M. Reidy filed a brief for the United States and the Interstate Commerce Commission, as amici curiae. Mr. Justice Douglas delivered the opinion of the Court. Hoboken Manufacturers Railroad Co. (the debtor) operates a terminal switching railroad along the waterfront at Hoboken, New Jersey. It is a common carrier subject to the provisions of the Interstate Commerce Act. 24 Stat. 379, 41 Stat. 474, 49 Stat. 543, 54 Stat. 899, 49 U. S. C. § 1. The major part of its right-of-way and line of railroad is held by it under a 99-year lease from respondent dated June 19, 1906.1 In 1943 the debtor filed a peti- 1 The debtor has two additional pieces of land under 99-year leases, dated June 19,1906, from the parent company of the respondent. By a tie-in indenture the debtor agreed that these leases should terminate SMITH v. HOBOKEN R. CO. 125 123 Opinion of the Court. tion for reorganization under § 77 of the Bankruptcy Act (49 Stat. 1969, 53 Stat. 1406, 11 U. S. C. § 205) in the District Court for the District of New Jersey. The petition was approved and petitioner Smith was appointed trustee. Shortly thereafter respondent notified the trustee that it would petition the reorganization court for termination of the lease. A hearing was held and decision reserved. While the matter was under advisement the trustee on order of the court adopted the lease. Thereafter the reorganization court granted respondent’s motion to terminate the lease, holding that the appointment of the trustee was a breach of the terms of the lease entitling the lessor to reenter.* 2 56 F. Supp. 187. The Circuit Court of Appeals affirmed. 150 F. 2d 921. 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 Interstate Commerce Act and the Bankruptcy Act. The provision of the lease upon which the forfeiture was decreed reads as follows: “The Lessee shall not and will not sell, assign or transfer this lease or underlet the demised premises, or any part thereof, or the rights and privileges, or any of them, hereby granted, without the previous consent of the Lessor expressed by endorsement on this lease made in pursuance of authority granted by resolution of the board of directors of the Lessor . . . This covenant shall also apply to any unauthorized sale or transfer thereof or underletting of the demised premises, or any part thereof, or of the said rights and on the expiration or earlier termination of the main lease mentioned in the opinion. What we say in the opinion also governs these tie-in leases. 2 Notice was also given by respondent’s parent company for termination of the tie-in leases mentioned in note 1, supra. The order of the District Court also terminated these leases. 126 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. privileges, or any of them, whether made by the Lessee or in any proceeding, whether at law or in equity or otherwise, to which the Lessee may be a party, whereby any of the rights, duties and obligations of the Lessee shall or may be transferred, encumbered, abrogated or in any manner altered, without the consent of the Lessor first had and obtained in the manner hereinbefore provided.” By a further provision of the lease, violation of that covenant entitled the lessor to terminate the lease and to reenter on specified notice. Sec. 77 (1), 11 U. S. C. § 205 (1) provides: “In proceedings under this section and consistent with the provisions thereof, the jurisdiction and powers of the court, the duties of the debtor and the rights and liabilities of creditors, and of all persons with respect to the debtor and its property, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the debtor’s petition was filed.” Sec. 70 (b) of the Bankruptcy Act, 11 U. S. C. § 110 (b) provides in part: “A general covenant or condition in a lease that it shall not be assigned shall not be construed to prevent the trustee from assuming the same at his election and subsequently assigning the same; but an express covenant that an assignment by operation of law or the bankruptcy of a specified party thereto or of either party shall terminate the lease or give the other party an election to terminate the same shall be enforceable.” We have recently held that those provisions of § 70 (b) of the Bankruptcy Act are applicable to reorganizations under Ch. X. 52 Stat. 885, 11 U. S. C. § 526. Finn v. Meighan, 325 U. S. 300. It is argued here, as it was there, that § 70 (b) should not be applied in reorganization pro- SMITH v. HOBOKEN R. CO. 127 123 Opinion of the Court. ceedings since reorganization plans might be seriously impaired if forfeiture clauses in leases were allowed to be enforced. It is contended that forfeiture of railroad leases runs counter to the design and purpose of § 77, which is aimed at keeping railroad properties intact so that reorganization plans may be worked out and disintegration of transportation systems prevented. It is argued that the policy of § 77 which prevents pledgees and mortgagees from foreclosing their liens (Continental Illinois National Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648; Group of Institutional Investors n. Chicago, M., St. P. & P. R. Co., 318 U. S. 523) is equally applicable to prevent lessors from causing forfeiture of leases. It is pointed out that § 77 (a) gives the reorganization court exclusive jurisdiction of the debtor and its property wherever located. It is noted that lessors are creditors as defined by § 77 (b) and that a plan of reorganization can modify or alter the rights of creditors either through the issuance of securities or otherwise. § 77 (b) (1). It is also pointed out that a plan of reorganization may cure or waive defaults and may deal with all or any part of the property of the debtor, § 77 (b) (5), and may provide for the rejection or adoption of leases. § 77 (b). From these provisions and the policy they reflect, it is argued that § 77 should not be construed as incorporating within it § 70 (b). As we have noted, § 77 (1) provides that, so far as “consistent with the provisions” of § 77, the “duties of the debtor” and the “rights and liabilities of creditors” shall be the same as if a voluntary adjudication had been made. We cannot say that the forfeiture provisions of § 70 (b) on their face are inconsistent with § 77. They embrace leases all kinds and sorts. They include leases of railroad tracks and facilities but they are not restricted to them. But if § 70 (b) is applicable to some leases under § 77, it 128 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. would seem to be applicable to all. And termination of leases would, in many cases at least, be as consistent with reorganizations of railroads under § 77 as it would with reorganizations of other enterprises under Ch. X. Sec. 70 (b) is applicable to reorganizations under Ch. X as we held in Finn v. Meighan, supra. As we pointed out in that case, an express covenant of forfeiture has long been held to be enforceable against the bankruptcy trustee. That represents the bankruptcy rule. And we find no provision in § 77 which suggests that Congress intended to make that rule inapplicable in case of railroad reorganizations. It is argued, however, that the covenant in the present lease is not of the kind which is enforceable under § 70 (b). In other words, it is said not to be “an express covenant that an assignment by operation of law or the bankruptcy” of the lessee shall “terminate” or give the lessor “an election to terminate” the lease. These forfeiture clauses are to be liberally construed in favor of the bankruptcy lessee. Finn v. Meighan, supra. Yet the covenant in question, so construed, seems to us to fall within § 70 (b). It applies to any “transfer” of the premises “in any proceeding, whether at law or in equity or otherwise,” to which the lessee is a party, “whereby any of the rights, duties and obligations” of the lessee are “transferred, encumbered, abrogated or in any manner altered” without the lessor’s consent. When the trustee adopted the lease, the lessee’s interest was transferred to him. Palmer v. Palmer, 104 F. 2d 161. That transfer, being in a § 77 proceeding, was made in a “proceeding, whether at law or in equity or otherwise.” The lessee was a party to the proceeding. And by the adoption the trustee acquired such rights and obligations under the lease as the lessee had. But the question remains whether enforcement of the forfeiture clause would be “consistent with the provisions SMITH v. HOBOKEN R. CO. 129 123 Opinion of the Court. of § 77 within the meaning of § 77 (1). That question does not seem to have been considered by the lower courts. Our view is that it presents problems primarily for consideration and decision by the Interstate Commerce Commission and that the reorganization court should not have declared a forfeiture of the lease until the questions had been passed upon by the Commission. There are two aspects of that problem. The first relates to abandonment of operations by the trustee. The District Court terminated the lease and authorized the lessor to reenter upon the premises and to oust the debtor and the trustee. This order followed an order of the Interstate Commerce Commission dismissing an application made by respondent to resume operations of the properties. The application was dismissed because the Commission was of the view that no certificate from it was needed. It ruled that the lessor’s “obligations and duties to the public have never ceased but have merely been performed by the lessee for its benefit, and when the latter for any reason no longer can perform such obligations, the duties must be performed by the lessor on its own behalf.” 2571. C. C. 739,744. And the Commission added, “If and when the lease is terminated and the property reverts to the applicant, it will have no alternative but to resume operation thereof.” Id., p. 744. But that case only held that the lessor needed no certificate of public convenience and necessity under § 1 (18) to operate the road, as, if, and when the lessee or its trustee ceased operations. It did not present the question whether operations by the lessee or its trustee might be abandoned. No application for abandonment of operations by the lessee or its trustee was before the Commission. Authority of a lessor to resume operations if the lessee or its trustee abandons is one thing; authority of the lessee or its trustee to abandon is quite different. 130 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Sec. 1 (18) of the Interstate Commerce Act provides in part: “. . . no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment.” In Thompson v. Texas Mexican R. Co., post, p. 134, we held that a company having trackage rights over the lines of another must receive authorization to abandon the operations. That case is, of course, different from the present one because it entailed complete abandonment of operations by one company over another’s lines. Here the question is whether the lessee or the lessor shall perform the service. But § 1 (18) provides that “no carrier by railroad” shall abandon “the operation” of all or any portion of a line without a certificate from the Commission. Discontinuance of operations by the trustee is abandonment of operations by a carrier within the meaning of § 1 (18). And a certificate is required under § 1 (18) whether the lessee or the lessor is abandoning operations. See Lehigh Valley R. Co. Proposed Abandonment of Operation, 202 I. C. C. 659; Norfolk Southern R. Co. Receivers’ Abandonment, 221 I. C. C. 258. Whether the public interest requires that the line be operated by the lessee rather than the lessor presents a question for the Commission under § 1 (18) of the Interstate Commerce Act. The lessor is not at the mercy of the lessee in this situation. For the lessor, as well as the lessee, has the standing necessary to invoke § 1 (18) on the question of abandonment. Thompson v. Texas Mexican R- Co., supra. The second aspect of the problem is related to the first. It is the function of the Commission under § 77 to prepare the plan of reorganization of the debtor company. SMITH v. HOBOKEN R. CO. 131 123 Opinion of the Court. §77 (d). As we stated in Ecker v. Western Pacific R. Corp., 318 U. S.448,468: “These reorganizations require something more than contests between adversary interests to produce plans which are fair and in the public interest. When the public interest, as distinguished from private, bulks large in the problem, the solution is largely a function of the legislative and administrative agencies of government with their facilities and experience in investigating all aspects of the problem and appraising the general interest. Congress outlined the course reorganization is to follow. It established standards for administration and placed in the hands of the Commission the primary responsibility for the development of a suitable plan. When examined to learn the purpose of its enactment, § 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation by the court.” The Commission in preparation of the plan is guided not only by the requirements that the plan be fair and equitable and feasible. It is also charged with the duty of preparing a plan that “will be compatible with the public interest.” § 77 (d). Whether a leased line should continue to be operated by the lessee or should revert to the system of the lessor may present large questions bearing on the development by the Commission of an adequate transportation system. Interstate Commerce Act § 1. Moreover, it appears in the present case that forfeiture of the lease will deprive the debtor of all of its railroad properties.3 Whether a particular carrier should go out of The District Court ordered the trustee to turn over to the respond-ent all of the property held or used for railroad purposes except bank ccounts, cash, accounts receivable and the like. Among the property were small lengths of line which the debtor claimed to own in fee but w ich the respondent asserted should revert to it. The order of the strict Court provided that the trustee might file a claim for that Property or its value and reasonable compensation for its use. 132 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. business presents problems of primary importance to its security holders and perhaps to the public interest as well. If forfeiture of the lease is now declared, no plan of reorganization may be possible. The problem of preparing a plan of reorganization will often present to the Commission decisions concerning the adoption or rejection of leases. The adoption of a lease by the trustee does not preclude rejection of it in the plan of reorganization. § 77 (b). The scheme of the Act is, indeed, to settle in the plan of reorganization the various claims to the property. The Commission may decide that it is in the public interest as well as in the interest of the private claimants that a lease be adopted. If it is adopted, then any defaults under it can be cured.4 § 77 (b) (5). Or it may conclude, as it did in Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., supra, pp. 546-555, that a lease should be rejected unless the lessor consented to a revision of its terms. Or it may conclude that forfeiture of a lease according to the provisions of § 70 (b) would be compatible with the public interest. As we stated in Palmer v. Massachusetts, 308 U. S. 79, 87, “The judicial process in bankruptcy proceedings under § 77 is, as it were, brigaded with the administrative process of the Commission.” And see Warren v. Palmer, 310 U. S. 132. The point is that if the reorganization court decrees a forfeiture in advance of consideration of the problem by the Commission, it interferes with the functions entrusted to the Commission under § 77. Forfeiture of a lease in accordance with the provisions of § 70 (b) may be wholly consistent with the preparation of a plan of reorganization under § 77. But, as we have said, the nature of the 4 Sec. 77 (b) (5) provides in part, “A plan of reorganization within the meaning of this section . . . shall provide adequate means for . . . the curing or waiver of defaults . . .” SMITH v. HOBOKEN R. CO. 133 123 Opinion of the Court. plan of reorganization to be submitted is entrusted primarily to the Commission. If forfeiture of leases can be decreed without prior reference of the matter to the Commission, it may be seriously embarrassed in preparing the plan which it deems necessary or desirable for the reorganization of the debtor.5 The federal policy embodied in § 77 can prevent enforcement of the engagements of the debtor pursuant to their terms. Continental Illinois National Bank v. Chicago, R. I. & P. R. Co., supra. Cf. Otis & Co. v. Securities & Exchange Commission, 323 U. S. 624. We hold that the District Court erred in declaring the lease forfeited and that the judgment should be reversed and the cause remanded. The District Court should stay its hand pending a decision by the Interstate Commerce Commission on the questions. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. 5 Finn v. Meighan, supra, involved the forfeiture of a lease in reorganization proceedings under Ch. X. But the problem there was not complicated by any provisions of Ch. X giving to an administrative agency the functions entrusted to the Interstate Commerce Commission under § 77. As we stated in Palmer v. Massachusetts, 308 U. S. ’ 87, “. . . the whole scheme of § 77 leaves no doubt that Congress id not mean to grant to the district courts the same scope as to bank-^Pt roads that they may have in dealing with other bankrupt estates.” 134 OCTOBER TERM, 1945. Syllabus. 328 U. S. THOMPSON, TRUSTEE, et al. v. TEXAS MEXICAN RAILWAY CO. CERTIORARI TO THE COURT OF CIVIL APPEALS FOR THE FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS. No. 42. Argued October 9, 1945.—Decided April 29,1946. 1. By contract between two interstate railroads, both of which were subject to the authority of the Interstate Commerce Commission, one obtained trackage rights over the lines of the other, at a specified rental. The contract was terminable by either party upon twelve months’ notice. The grantee railroad subsequently petitioned for reorganization under § 77 of the Bankruptcy Act, a trustee was appointed, and stay orders pursuant to § 77 (j) were entered. Thereafter the grantor gave notice that it was exercising its right to terminate the contract. After the date when by its terms the contract would thus have been terminated, the trustee continued to operate trains over the lines of the grantor, and refused to pay more than the rental specified in the contract. Thereupon the grantor brought suit in a state court to enjoin the grantee and its trustee from using the tracks of the grantor without the grantor’s consent, and to recover $500 a day damages for such use or alternatively the reasonable value of the use. The state court denied an injunction; adjudged that the contract had been terminated; and awarded damages. Held that maintenance of the suit in the state court was not precluded by the stay orders issued by the bankruptcy court nor by § 77 of the Bankruptcy Act, but that the state court should have stayed its hand and remitted the parties to the Interstate Commerce Commission for determination of the administrative phases of the questions involved. Pp. 138,151. (a) So far as the suit involved a money claim against the estate for acts of the trustee in operating trains over the grantor’s tracks, it was maintainable in the state court under § 66 of the Judicial Code, which authorizes suits against the trustee, without leave of the bankruptcy court, “in respect of any act or transaction of his in carrying on the business.” P. 138. (b) Maintenance of the suit in the state court is not inconsistent with the provisions of § 77 granting the reorganization court exclusive jurisdiction over the debtor and its property. P. 139. THOMPSON v. TEXAS MEXICAN R. CO. 135 134 Statement of the Case. (c) The exclusive jurisdiction of the bankruptcy court is determined by the “main purpose” of the suit, which in this case evidently was an attempt on the part of the grantor to obtain a more favorable rental. P. 139. (d) The principle that the exclusive jurisdiction of the bankruptcy court extends to the adjudication of questions affecting title is inapplicable here, since the trackage agreement created only a personal obligation and did not purport to grant any estate in the property of the grantor. P. 140. (e) The general rule in bankruptcy that the trustee takes the contracts of the debtor subject to their terms and conditions is applicable to proceedings under § 77 by virtue of the provisions of §77(1). P. 141. (f) The qualification in § 77 (1) that the rule of bankruptcy be “consistent with the provisions” of § 77 made premature an adjudication by the court that the contract was terminated, prior to a determination by the Interstate Commerce Commission that that step was consistent with the reorganization requirements of the debtor. P. 141. 2. Prior to rendition of judgment on the merits the decision of the Interstate Commerce Commission was necessary on certain phases of the controversy: (1) Whether termination of the trackage agreement would interfere with the plan of reorganization to be formulated by the Commission under § 77 of the Bankruptcy Act. P. 142. (2) Whether the Commission should issue a certificate under § 1 (18) of the Interstate Commerce Act that “the present or future public convenience and necessity” would permit abandonment of operations under the trackage agreement. P. 144. (3) What would be a reasonable rental to be allowed, under §5(2) (a) of the Transportation Act of 1940, if the Commission decided that the trackage arrangement should be continued. P. 149. 3. Until determination by the Interstate Commerce Commission of the administrative phases of the questions involved is had, it can not be known with certainty what issues for judicial decision will emerge; and, until that time, judicial action is premature. P. 151. 1 S. W. 2d 895, reversed. The respondent railroad company brought suit in a state court against the petitioner railroad company (which was a debtor in a reorganization proceeding under § 77 of the 717466 O—47-__13 136 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Bankruptcy Act) and its trustee, and was awarded damages. The Court of Civil Appeals affirmed. 181 S. W. 2d 895. The Supreme Court of Texas refused an application for a writ of error. This Court granted certiorari. 324 U. S. 838. Reversed, p. 151. Robert H. Kelley argued the cause and filed a brief for petitioners. John P. Bullington argued the cause for respondent. With him on the brief were M. G. Eckhardt and B. D. Tarlton. Solicitor General McGrath, Daniel W. Knowlton and Edward M. Reidy filed a brief for the Interstate Commerce Commission, as amicus curiae. Mr. Justice Douglas delivered the opinion of the Court. Brownsville (The St. Louis, Brownsville and Mexico Railway Co.) and Tex-Mex (The Texas Mexican Railway Co.) are interstate carriers by railroad and subject to the provisions of the Interstate Commerce Act. 24 Stat. 379,41 Stat. 474,49 Stat. 543,54 Stat. 899,49 U.S. C. § 1. On November 1, 1904, they entered into a written contract whereby, for payment of specified rentals, Tex-Mex granted Brownsville the right to operate its trains over the tracks of Tex-Mex between Robstown and Corpus Christi, Texas, and to make use of terminal facilities of Tex-Mex at Corpus Christi. The contract provided that it was to continue for a term of 50 years from its date unless sooner terminated by the parties. And it containe the following provision, “It is further agreed that this contract may be terminated without giving any reason therefor, by either party, upon giving twelve mont s notice of such intent to terminate the lease.” THOMPSON v. TEXAS MEXICAN R. CO. 137 134 Opinion of the Court. In 1933 Brownsville filed its petition for reorganization under § 77 of the Bankruptcy Act.1 The petition was approved and petitioner Thompson was appointed as trustee in the proceeding. Shortly thereafter the bankruptcy court entered stay orders to which we will later refer. In October 1940 Tex-Mex notified petitioners that it was exercising its right to terminate and cancel the trackage contract, effective twelve months after November 1, 1940. The trustee, however, continued to operate over the Tex-Mex and to use the Tex-Mex facilities after November 1, 1941. Tex-Mex informed him that a charge of $500 per day would be made for the use of these facilities—an amount in excess of the rental under the contract. The trustee refused to pay any rental other than that specified in the contract. Thereupon this suit was instituted by Tex-Mex in the Texas courts to enjoin Brownsville and its trustee from using the tracks or other facilities without the consent of Tex-Mex and to recover $500 a day damages for such use or alternatively the reasonable value of the use of the property. The trial court overruled pleas to its jurisdiction and tried the case on the merits. It denied an injunction. It held that the 1904 contract had been terminated and awarded Tex-Mex damages in the amount of $184,929.85. The Court of Civil Appeals affirmed.2 181 8. W. 2d 895. The Supreme Court of Texas refused an application for a writ of error. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problems in the administration of Interstate Commerce Act and of the Bankruptcy his petition was filed in the reorganization proceedings of the issouri Pacific R. Co. which owned about 94 per cent of the voting s 0C of the New Orleans, Texas and Mexico Ry. Co., which in turn W2n® v°fing stock of Brownsville. o complaint was made on appeal of the denial of an injunction. 138 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. First. It is contended here, as it was in the state court, that the maintenance of the present suit is precluded by the stay orders issued by the bankruptcy court and by § 77 of the Bankruptcy Act. Sec. 66 of the Judicial Code, 28 U. S. C. § 125, authorizes suits against the trustee, without leave of the bankruptcy court, “in respect of any act or transaction of his in carrying on the business.”3 In McNulta v. Lochridge, 141 U. S. 327,332, this statute was said to grant an “unlim-' ited” right “to sue for the acts and transactions” of the estate. Operation of the trains is plainly a part of the trustee’s functions. Claims which arise from their operation—whether grade-crossing claims as in McNulta v. Lochridge, supra, or claims for the use of the tracks of another as in the present case—are claims based on acts of the trustee in conducting the business. Hence this suit, so far as it involves only a money claim against the estate for acts of the trustee in operating trains over respondent’s tracks, could be maintained in the state courts against the trustee.4 And the stay orders entered were wholly consistent with this course.5 3 “Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice.” 4 Judgment for damages was granted only against petitioner trustee, judgment for costs was granted against the trustee and Brownsville jointly and severally. 5 The stay orders authorized the trustee to defend any suits which might be brought. In view of our disposition of the case it is unnecessary to decide at this time whether or not the suit may also be maintained agains Brownsville. The stay order, entered for the benefit of the debtor, THOMPSON v. TEXAS MEXICAN R. CO. 139 134 Opinion of the Court. It is argued, however, that this suit cannot be maintained consistently with the provisions of § 77 which grant the reorganization court exclusive jurisdiction over the debtor and its property.6 The theory is that the suit interferes with the administration of the estate, adjudicates the trustee’s interest in property in his possession, and indeed seeks to disrupt the operating schedule of trains. It is clear that the issuance of an injunction against operation of the trains over respondent’s tracks would have been an interference with the exclusive jurisdiction of the reorganization court. The fact that no injunction was granted is not a decisive answer. In Ex parte Baldwin, 291 U. S. 610, 618, the Court held that the exclusive jurisdiction of the bankruptcy court is determined by the “main purpose” of the suit. In that case suit had been brought in the state courts to have a railroad right of way declared forfeited and in addition to recover damages. The claim for damages was held to be “merely an incident” to the suit for a forfeiture and did not save the suit from the defense that it was of the type which sought to interfere with the exclusive jurisdiction of the bankruptcy court. We do not construe the present followed the provisions of §77 (j) of the Bankruptcy Act, 49 Stat. 911, 922, 11 U. S. C. §205 (j) and provided: “That commencement or continuation of suits against any of the debtor companies is hereby stayed and enjoined until after final decree entered in these proceed-lngs, provided, however,'that suits or claims for damages caused by the operation of trains, buses, or other means of transportation may he filed and prosecuted to judgment in any court of competent juris-iction, and any order heretofore staying the prosecution of any such causes of action or appeal is hereby vacated.” Sec. 77 (a) provides in part: “If the petition is so approved, the court in which such order is entered shall, during the pendency of e proceedings under this section and for the purposes thereof, have exclusive jurisdiction of the debtor and its property wherever located . . 140 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. bill as having as its main object the stoppage of the movement of petitioner’s trains over respondent’s tracks. The main purpose of the suit seems to be an attempt on the part of respondent to obtain a more favorable rental. The fact, however, that respondent’s suit does not have as its main purpose the ouster of petitioners from possession is not a complete answer to the plea to the state court’s jurisdiction. As Ex parte Baldwin, supra, p. 616, held, the exclusive jurisdiction of the bankruptcy court is not limited to protecting the possession of the trustee; it “extends also to the adjudication of questions respecting the title.” See White v. Schloerb, 178 U. S. 542; Whitney v. Wenman, 198 U. S. 539. Petitioners argue that the present case comes within that principle. It is pointed out that this suit seeks the cancellation of the trackage agreement. It is argued that the rights granted Brownsville under that agreement are property rights; and that a suit to cancel the agreement and collect amounts other than the specified rentals is a suit which interferes with and adjudicates title to the property. If we were dealing here with a lease, a suit to effect its forfeiture could not be maintained in another court without consent of the reorganization court. But the trackage agreement created only a personal obligation and did not purport to grant Brownsville any estate in the property of Tex-Mex. See Des Moines & Ft. Dodge R. Co. v. Wabash, St. L. & P. R. Co., 135 U. S. 576, 583; Union Pacific R. Co. v. Chicago, M. & St. P. R- Co., 163 U. S. 564, 582-583. It was an executory contract subject to termination on a specified notice. The exclusive jurisdiction of the reorganization court was a barrier to any action by any other court which would disturb the possession of the trustee or interfere in any way with his operation of the business. But, apart from the qualification to which we will later refer, litigation restricted to the amount due under a contract, express or implied, for the THOMPSON v. TEXAS MEXICAN R. CO. 141 134 Opinion of the Court. use by the trustee of another’s property no more interferes with the administration of the estate than suits to determine his liability under contracts calling for the delivery of coal or other supplies. In each the claim is reduced to judgment and may then be presented to the bankruptcy court for proof and allowance. Cancellation of a contract pursuant to its terms alters, of course, rights and duties of the trustee. But the bankruptcy rule is that he takes the contracts of the debtor subject to their terms and conditions. Contracts adopted by him are assumed cum onere.1 The general rule is (1) that if the other party had a right to terminate the arrangement, that right survives adoption of the contract by the trustee; and (2) that the incidence of termination, except as it interferes with the exclusive jurisdiction of the bankruptcy court, may be litigated in any court where the trustee may be sued. That rule of bankruptcy is applicable to proceedings under § 77 by reason of § 77 (1) which provides: “In proceedings under this section and consistent with the provisions thereof, the jurisdiction and powers of the court, the duties of the debtor and the rights and liabilities of creditors, and of all persons with respect to the debtor and its property, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the debtor’s petition was filed.” But, as we shall see, the qualification in § 77 (1) that me rule of bankruptcy be “consistent with the provisions” °f § 77 made premature an adjudication by the court that me contract was terminated, prior to a determination by the Interstate Commerce Commission that that step was onsistent with the reorganization requirements of the debtor. 7 See Greij Bros. Cooperage Co. v. Mullmix, 264 F. 391, 397; 4 Collier on Bankruptcy (14th ed.) § 70.43. 142 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Second. Prior to the rendition of judgment on the merits, the decision of the Interstate Commerce Commission was necessary on two phases of the controversy—one under § 77 of the Bankruptcy Act, the other under provisions of the Interstate Commerce Act. (1) As we have said, the right to terminate a contract pursuant to its terms survives the bankruptcy of the other contracting party. And that general bankruptcy rule is applicable in § 77 proceedings by reason of § 77 (1), which, as we have said, incorporates into § 77 the rules governing the duties of debtors and the rights and liabilities of creditors so far as they are “consistent with the provisions” of § 77. We have considered the meaning of that qualification in Smith v. Hoboken Railroad, W. & S. C. Co., ante, p. 123. We there held that a covenant of forfeiture in a lease of railroad tracks and facilities should not be enforced by the bankruptcy court prior to a determination by the Commission that such step would be consistent with the reorganization requirements of the debtor. The Commission has the primary responsibility for formulating plans of reorganization under § 77. See § 77(d). Forfeiture of leases by the court in advance of a determination by the Commission of the nature of the plan of reorganization which is necessary or desirable for the debtor may seriously interfere with the performance by the Commission of the functions entrusted to it. We think that the same considerations are applicable to a determination that the trackage agreement in this case should be terminated pending formulation of a reorganization plan. By § 77 (b) the plan of reorganization may adopt or reject executory contracts of the debtor as well as unexpired leases. And the adoption of either an executory contract or of a lease by the trustee does not preclude a rejection of it in the plan. Moreover, trackage agreements, like leases of railroad tracks and facilities, are means by THOMPSON v. TEXAS MEXICAN R. CO. 143 134 Opinion of the Court. which railroad systems have been assembled. The retention or the sloughing off of trackage agreements may assume importance in the fashioning of a plan of reorganization by the Commission. The problem is kin to that involved in Continental Illinois National Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648. In that case the Court sustained the power of the reorganization court to enjoin under § 77 creditors, who held collateral notes of the debtor railroad secured by its bonds and bonds of its subsidiaries, from selling the collateral under a power of sale in the notes, where the sale would so hinder, obstruct or delay the plan of reorganization as would likely defeat it. The Court stated (p. 676) that a proceeding under § 77 is a “special proceeding which seeks only to bring about a reorganization, if a satisfactory plan to that end can be devised. And to prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.” The Court concluded, in view of the complexity of the problems involved in the reorganization, that without the maintenance of the status quo for a reasonable length of time no satisfactory plan could be worked out.” p. 679. That decision prevented in the interests of a reorganization the enforcement of the provisions of the contracts of the debtor according to their terms. We think like reasons make it important that the status quo of this trackage agreement be maintained pending decision by the Commission as to the proper treatment of it in the reorganization plan. The Commission may decide that it should be adopted. Or the Commission may conclude that the trackage agreement should be rejected or that its termination pursuant to its terms should be allowed. These maters involve not only the interests of the two parties to e trackage agreement but phases of the public interest 144 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. as well. A court which enforced the termination clause of the agreement pursuant to its terms would be narrowing the choice of the Commission and perhaps embarrassing it in the performance of the functions with which it has been entrusted. For these and like reasons which we have discussed in Smith v. Hoboken Railroad, W. & S. C. Co., ante, p. 123, we think the court erred in holding that the trackage agreement had been or should be terminated. (2) The Commission has further functions to perform apart from determining under § 77 whether it would be consistent with the reorganization requirements of the debtor to terminate the trackage agreement. By § 1 (18) of the Interstate Commerce Act it is provided that “no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment.” Carriers being reorganized under § 77 of the Bankruptcy Act are not exempt from that provision. § 77 (o), 11 U. S. C. § 205 (o); Warren v. Palmer, 310 U. S. 132, 137-138. Whatever may be the powers of the Commission under the Interstate Commerce Act, rather than § 77, over the terms of the trackage agreement (Abandonment of Chicago, R. I- & P. R. Co., 1311. C. C. 421; Kansas City Southern R. Co. Kansas City Terminal R. Co., 211 I. C. C. 291), it is clear that the Commission has jurisdiction over the operations. Sec. 1 (18) embraces operations under trackage contracts, as well as other types of operations. See Chicago & Alton R. Co. v. Toledo, P. & W. R. Co., 1461. C. C. 171,179-181. And the fact that the trackage contract was entered into in 1904 prior to the passage of the Act is immaterial; the provisions of the Act, including § 1 (18), are applicable to contracts made before as well as after its enactment. THOMPSON v. TEXAS MEXICAN R. CO. 145 134 Opinion of the Court. See Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467,482. Though the contract were terminated pursuant to its terms, a certificate would still be required under § 1 (18). Brownsville or its trustee could, of course, make the application for abandonment of operations. But the fact that they might be content with the existing arrangement and fail or refuse to move does not mean that Tex-Mex would be burdened with a trackage arrangement in perpetuity. Tex-Mex might invoke the Commission’s jurisdiction under § 1 (18) and make application for abandonment of operations by Brownsville or its trustee. There is no requirement in § 1 (18) that the application be made by the carrier whose operations are sought to be abandoned. It has been recognized that persons other than carriers “who have a proper interest in the subject matter” may take the initiative.8 See Atchison, T. & 8. F. R. Co. v. Railroad Commission, 283 U. S. 380, 393-394. An application by a city and county for abandonment of a part of the Colorado & Southern line was indeed entertained. Colorado & Southern R. Co. Abandonment, 166 I. C. C. 470. Tex-Mex has even a more immediate interest in the operations over this line. Its property is involved; and the amount being paid for the use of its property is deemed by it insufficient. The Commission is as much concerned with its financial condition as it is with that of Brownsville. Tex-Mex therefore has the standing necessary to invoke § 1 (18). Tex-Mex, however, points out that in 1941 it made application to the Commission “for authority to cancel track- 8 Cf. Texas & Pacific R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266, > which holds that a party in interest who is opposed to construc-10n of an extension may not “initiate before the Commission any Proceeding concerning the project,” his remedy being to appear in opposition if application is made or to seek an injunction under L» If no application is made. And see Powell n. United States, 300 U.S. 276. 146 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. age agreements” with Brownsville and that the Secretary of the Commission returned the application saying “The Commission is without authority to consider an application of the nature submitted by you. Its jurisdiction under Section 1 (18) of the Interstate Commerce Act would extend only to abandonment of operation by the St. Louis, Brownsville & Mexico Railway Company.” We need not consider whether the application was in proper form for one authorizing and requiring abandonment of operations by Brownsville. In any event, the Secretary of the Commission was without authority to bind the Commission in the matter. Cf. Minneapolis & St. Louis R. Co. v. Peoria &P.U.R. Co., 270 U. S. 580, 585. (3) The jurisdiction of the Commission is not restricted, however, to determining whether or no operations of Brownsville over the tracks of Tex-Mex should be abandoned. Prior to the Transportation Act of 1940 the Commission had some jurisdiction over trackage agreements of the character involved in this case. Transit Commission v. United States, 289 U. S. 121. But by that Act the Commission received new, explicit powers over trackage rights. Sec. 5 (2) (a) (ii) provides: “It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) ... for a carrier by railroad to acquire trackage rights over, or joint ownership in or joint use of, any railroad line or lines owned or operated by any other such carrier, and terminals incidental thereto.” Trackage rights acquired without the consent and approval of the Commission are unlawful. § 5 (4). The authority of the Commission under § 5 (2) (a) extends to fixing terms and conditions, including rentals, for any trackage agreements entered into subsequent to the effective date of the Transportation Act of 1940. If, therefore, the two carriers had voluntarily terminated the 1904 trackage contract and had entered into a new one without the approval of the Commission, they would have THOMPSON v. TEXAS MEXICAN R. CO. 147 134 Opinion of the Court. violated the Act. There would be no difference in result merely because the trackage contract expired by its terms or was terminated by operation of an escape clause. Until abandonment is authorized, operations must continue. While they continue, trackage rights are being enjoyed. In absence of administrative control, the law would under those circumstances imply a contract for the use of another’s property and award reasonable compensation. Thus trackage rights would be acquired on such terms as the court and jury determined. But §5 (2) (a) vests in the Commission, not the courts, the power to determine the terms and conditions under which trackage rights may be acquired. The jurisdiction of the Commission is exclusive. Transit Commission v. United States, supra. In that case the Commission had approved a trackage agreement between two carriers and the Court held that the Commission’s jurisdiction being exclusive, approval by a state commission was not necessary. The court below thought that case was not controlling here, in view of the fact that the Interstate Commerce Commission had not acted. But in a long line of cases beginning with Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, it has been held that where the reasonableness or legality of the practices of the parties was subject to the administrative authority of the Interstate Commerce Commission, the court should stay its hand until the Commission had passed on the matter. See General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, and cases (Med. That course is singularly appropriate here. It is the function of the Commission to determine the terms and conditions under which trackage rights are acquired. If the parties were allowed to by-pass the Commission and litigate the question in the courts, the power to fix the rental under trackage agreements would be shifted from the Commission to the courts and juries.’ Moreover, one Jury would determine the amount of compensation due 148 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. for the period here in question and another jury the amount due for a subsequent period. But a major concern of Congress in dealing with this problem was that neither inadequate rentals nor extortionate nor unreasonable exactions would be made for trackage rights. Transit Commission v. United States, supra, p. 128. Those questions intimately relate to the financial strength of carriers. And it is one of the Commission’s high functions to protect the public interest against unfair or oppressive financial practices which in the past led to such great havoc and disaster. That policy would be undermined if the carriers could repair to courts for determination of the conditions under which trackage rights could be secured. Then jury verdicts or settlements would take the place of the expert and informed judgment of the Commission. It is suggested, however, that the Commission is empowered to fix the rental only for the future and that it has no power to make an award with retroactive effect. But on this phase of the case we are not dealing with the problem of reparations. In any case where application is made for trackage rights the terms and conditions fixed by the Commission are applicable when the certificate of public convenience and necessity takes effect. If operations do not start until that time, no problem is presented. But frequently there will be applications for renewal of trackage agreements which have expired. Operations may not be discontinued until a certificate of abandonment is obtained. If new trackage rights are granted, they run from the expiration of the old and their terms and conditions are applicable to the full term.9 Once the Com- 9 The terms and conditions approved by the Commission in Long Island R. Co. Trackage, 1801. C. C. 439, affirmed Transit Commission v. United States, 289 U. S. 121, were given retroactive effect in that sense. • THOMPSON v. TEXAS MEXICAN R. CO. 149 134 Opinion of the Court. mission has acted, the court may then proceed to enter judgment in conformity with the terms and conditions specified by the Commission. See El Dorado Oil Works v. United States, 328 U. S. 12. It is argued, however, that the trackage rights envisioned by §5(2) (a) of the Act are consensual arrangements between the parties; and that the Commission is not granted authority to force a trackage agreement on a carrier. We do not decide what may be the full reach of the power of the Commission under §5(2) (a). We are dealing here with an existing operation, not with a case where one carrier seeks to initiate a new one by acquiring the right to run its trains over the tracks of another. The Commission has the power under § 1 (18) to refuse to allow abandonment of the operations. If it so refuses, trackage rights continue to be enjoyed by Brownsville. The question of what would be the amount of a fair rental to be paid by Brownsville would be highly relevant to a decision by the Commission on the issue of abandonment. We conclude that at least in that situation the Commission has the power under § 5 (2) to fix a reasonable rental for the use of the facility by Brownsville regardless of the consent of Tex-Mex.10 Denial of that power to the Com- 10 The argument is that the Commission has that authority only under §3(5) which gives the Commission authority to require the use of terminal facilities including main-line tracks for a reasonable distance outside of the terminal. Sec. 3 (5) provides: “If the commission finds it to be in the public interest and to be practicable, without substantially impairing the a ihty of a common carrier by railroad owning or entitled to the enjoyment of terminal facilities to handle its own business, it shall have power by order to require the use of any such terminal facilities, ofC main"Bne track or tracks for a reasonable distance outside 0 such terminal, of any common carrier by railroad, by another such carrier or other such carriers, on such terms and for such compen- 150 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. mission is not required by the language of § 5 (2) (a). And this construction of § 5 (2) (a) is in harmony with the power of the Commission under § 1 (18) to refuse to authorize the abandonment of operations. If operations must continue, it is more consistent with this scheme of regulation for the Commission rather than courts or juries to determine the amount of the rental. Any legal, including constitutional, rights of Tex-Mex are protected by the review which Congress has granted the orders of the Commission. Third. If the Commission granted trackage rights, Tex-Mex could then recover judgment, as we have said, for the amount of the rental fixed by the Commission. If, on the other hand, the Commission authorizes the operations to be abandoned, it “may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require.” § 1 (20). The Commission could permit abandonment unless Brownsville paid such reasonable compensation for the use of Tex-Mex’s property as the Commission should fix. sation as the carriers affected may agree upon, or, in the event of a failure to agree, as the commission may fix as just and reasonable for the use so required, to be ascertained on the principle controlling compensation in condemnation proceedings. Such compensation shall be paid or adequately secured before the enjoyment of the use may be commenced. If under this paragraph the use of such terminal facilities of any carrier is required to be given to another earner or other carriers, and the carrier whose terminal facilities are required to be so used is not satisfied with the terms fixed for such use, or if the amount of compensation so fixed is not duly and promptly paid, the carrier whose terminal facilities have thus been required to be given to another carrier or other carriers shall be entitled to recover, by suit or action against such other carrier or carriers, proper damages for any injuries sustained by it as the result of compliance with such requirement, or just compensation for such use, or both, as the case may be.” THOMPSON v. TEXAS MEXICAN R. CO. 151 134 Opinion of the Court. In that case, too, the court would have an administrative finding as a guide to the judgment it would enter. In case abandonment were authorized without more, respondent would then be free to move in this proceeding for judgment and to apply to the bankruptcy court for compliance with the Commission’s order. In all those situations suits to recover the amounts due for use of the tracks of Tex-Mex could be maintained in the state court1 11 under the principles announced in Central New England R. Co. v. Boston & Albany R. Co., 279 U. S. 415, 420. If, however, the Commission decided that the trackage agreement should be dealt with in the plan, the state court would not have power to proceed further. For respondent’s rights would be protected by the provisions of the plan which may be reviewed only by the reorganization court. §77 (e). Thus, however the case may be viewed, the court below should have stayed its hand and remitted the parties to the Commission for a determination of the administrative phases of the questions involved. Until that determination is had, it cannot be known with certainty what issues for judicial decision will emerge. Until that time, judicial action is premature. The judgment will be reversed and the cause remanded so that the case may be held pending the conclusion of appropriate administrative proceedings. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. 1 If the order of the Commission were challenged, its review could of course be had only in the manner provided by statute. See El Dorado Oil Works v. United States, 328 U. S. 12. 717466 0—47__14 152 OCTOBER TERM, 1945. Syllabus. 328 U.S. FIRST IOWA HYDRO-ELECTRIC COOPERATIVE v. FEDERAL POWER COMMISSION. STATE OF IOWA, Intervenor. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. No. 603. Argued March 8,1946.—Decided April 29,1946. Petitioner applied to the Federal Power Commission for a license for a power project in Iowa involving the construction of a dam on a navigable stream and the diversion of water from two navigable streams into another. Section 9 (b) of the Federal Power Act requires an applicant to submit satisfactory evidence of compliance with requirements of state laws “with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of a license under this Act.” Petitioner showed no attempt to comply with Iowa Code, 1939, ch. 363, which forbids the construction of dams and the diversion of water for industrial purposes without a permit from the State Executive Council and authorizes the issuance of such a permit upon a finding, inter alia, that “any water taken from the stream ... is returned thereto at the nearest practicable place. The State intervened and urged that the application be denied because petitioner did not submit evidence of its compliance with the requirements of the Iowa Code for a permit from the State Executive Council. The Commission found that a federal license for the project was required under the Federal Power Act and that the project called for a practical and reasonably adequate water power development, with certain recreational advantages, all at a cost not appearing to be unreasonable; but it dismissed the application without prejudice, on the ground of petitioner’s failure to present satisfactory evidence, pursuant to §9 (b), of compliance with requirements of laws of Iowa requiring a state permit. Held: 1. Compliance with requirements for a state permit under Iowa Code, 1939, ch. 363, is not a condition precedent to, or an adminis trative procedure that must be exhausted before, securing a federa license. Pp. 163, 170, 182. FIRST IOWA COOP. v. POWER COMM’N. 153 152 Syllabus. (a) To require petitioner to secure a state permit as a condition precedent to securing a federal license would vest in the State Executive Council a veto power over the federal project which easily could destroy the effectiveness of the Federal Act and subordinate to state control the “comprehensive” planning which the Federal Power Act entrusts to the judgment of the Commission or other representatives of the Federal Government. P. 164. (b) The action of the Commission in requiring petitioner to present satisfactory evidence of compliance with the requirements for a state permit, while not requiring it actually to secure a state permit, avoided vesting a veto power in the State Executive Council; but it did not meet the substance of petitioner’s objection, because it subjected to state control the very requirements of the project which Congress has placed in the discretion of the Commission. P. 165. (c) The Act leaves to the States their traditional jurisdiction over property rights to the beds and banks of streams and the use of water, subject to the superior right of the Federal Government to regulate interstate and foreign commerce, administer public lands and reservations of the United States and exercise authority under treaties. Pp. 171-176. (d) The intention of Congress was to secure a comprehensive development of national resources and not merely to prevent obstructions to navigation. Pp. 180-181. (e) The Act establishes a dual system of* control by separating those subjects which remain under the jurisdiction of the States from those which the Constitution delegates to the United States and over which Congress vests the Commission with authority to act. P. 167. (f) Where the Federal Government supersedes the State Government, there is no suggestion that both agencies shall have final authority. P. 168. (g) A contrary policy is indicated in §§ 4 (e), 10 (a), (b) and (c) and 23 (b), which sections place responsibility squarely upon federal officials and usually upon the Federal Power Commission. (h) The express provision of § 27 requiring that the Act be not construed as affecting the laws of the States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein, indicates that § 9 (b) should not be given a like effect in the absence of a similar provision. Pp. 175-178. 154 OCTOBER TERM, 1945. Syllabus. 328 U.S. (i) Section 27, protecting state laws from supersedure, is limited to laws as to the control, appropriation, use or distribution of water in irrigation or for municipal or other uses of the same nature and has primary, if not exclusive, reference to such proprietary rights. Pp. 175,176. (j) Section 9 is devoted to securing adequate information for the Commission as to pending applications for licenses and does not itself require compliance with any state laws. Pp. 168,177,178. (k) The detailed provisions of the Act providing a comprehensive plan for the development and regulation of the water resources of the Nation leave no room or need for conflicting state controls. P. 181. (l) It is the Federal Power Commission rather than the Iowa Executive Council that under our constitutional Government must pass upon issues affecting the use of navigable waters—on behalf of the people of Iowa as well as on behalf of all others. P. 182. 2. The action of the Commission was erroneous in dismissing the application on the ground of petitioner’s failure to present satisfactory evidence, pursuant to § 9 (b), of compliance with requirements of laws of Iowa requiring a state permit. Pp. 161-167. (a) The project is clearly within the jurisdiction of the Commission under the Federal Power Act. P. 163. (b) Believing the Iowa law to be inapplicable or to have been superseded by the Federal Power Act, the Commission would have been justified in following its own interpretation of the Federal Power Act and proceeding with the merits of the application thereunder, without requiring petitioner to submit evidence of compliance with such laws of Iowa. Pp. 160-162. (c) The Commission’s action in dismissing the application without prejudice did not avoid passing on the issue as to the need for evidence of petitioner’s compliance with the state law, but constituted a ruling that such evidence was essential. Pp. 161-162. (d) A state permit not being required, there was no justification for requiring petitioner, as a condition of securing a federal permit, to present evidence of its compliance with the requirements of the state law for that state permit. P. 166. (e) There is ample opportunity and authority for the Commission to require by regulation the presentation of evidence satisfactory to it of petitioner’s compliance with any of the requirements for a state permit that the Commission considers appropriate to effect the purposes of a federal license. P. 167. FIRST IOWA COOP. v. POWER COMM’N. 155 152 Counsel for Parties. 3. Upon the remand of this application to the Commission, it will not act as a substitute for the local authorities having jurisdiction over such questions as the sufficiency of applicant’s legal title to riparian rights or the validity of its local franchises relating to proposed intrastate public utility service. P. 178. (a) The references in § 9 (b) to beds and banks of streams, to proprietary rights to divert or use water, or to legal rights to engage locally in the business of developing, transmitting and distributing power neither add anything to nor detract anything from the force of local laws, if any, on those subjects. P. 178. (b) In so far as those laws have not been superseded by the Federal Power Act, they remain as applicable and effective as they were before its passage. P. 178. 151F. 2d 20, reversed. Petitioner applied to the Federal Power Commission for a license to construct, operate, and maintain a power project on navigable waters in Iowa. The State intervened and urged that the application be denied because petitioner had not presented satisfactory evidence of its compliance with the requirements of Iowa Code, 1939, ch. 363, as to the issuance of a permit by the State Executive Council. The Commission dismissed the application without prejudice to renewal within one year upon satisfying the requirements of Section 9 (b) of the Federal Power Act.” 52 P. U. R. (N. S.) 82. The Court of Appeals for the District of Columbia affirmed. 151 F. 2d 20. This Court granted certiorari. 326 U. S. 715. Reversed, p. 183. David W. Robinson, Jr. argued the cause for petitioner. With him on the brief were George B. Porter, Andrew G. Haley and John Connolly, Jr. Howard E. Wahrenbrock argued the cause for the Federal Power Commission, respondent. With him on the brief were Solicitor General McGrath and Louis W. McKernan. 156 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Neill Garrett argued the cause for the State of Iowa, intervenor. With him on the brief were John M. Rankin, Attorney General of Iowa, Horace L. Lohnes and C. Walter Harris. Mr. Justice Burton delivered the opinion of the Court. This case illustrates the integration of federal and state jurisdictions in licensing water power projects under the Federal Power Act.1 The petitioner is the First Iowa Hydro-Electric Cooperative, a cooperative association organized under the laws of Iowa with power to generate, distribute and sell electric energy. On January 29, 1940, pursuant to § 23 (b) of the Federal Power Act,1 2 it 141 Stat. 1063, as amended, 49 Stat. 838,16 U. S. C. §§ 791a-825r. 2 “Sec. 23. . . . (b) It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands ... of the United States . . . except under and in accordance with the terms of ... a license granted pursuant to this Act. Any person, association, corporation, State, or municipality intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this Act. If the Commission shall not so find, and if no public lands . . . are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws.” 49 Stat. 846,16 U. S. C. § 817. FIRST IOWA COOP. v. POWER COMM’N. 157 152 Opinion of the Court. filed with the Federal Power Commission a declaration of intention to construct and operate a dam, reservoir and hydro-electric power plant on the Cedar River, near Moscow, Iowa.3 On April 2, 1941, it also filed with the Commission an application for a license, under the Federal Power Act, to construct an enlarged project essentially like the one it now wishes to build. The cost of the enlarged project is estimated at $14,600,000. It calls for an 8,300 foot earthen dam on the Cedar River near Moscow, an 11,000 acre reservoir at that point and an eight-mile diversion canal to a power plant to be built near Muscatine on the Mississippi. The canal will create two other reservoirs totaling 2,000 acres. It is alleged that the three reservoirs incidentally will provide needed recreational facilities. The power plant will have four turbo-generating units with a total capacity of 50,000 kw., operating with an average head of 101 feet of water provided by the fall from the canal to the Mississippi. Water will be pumped from the Mississippi up to the head bays of the power intake dam at the plant to meet possible shortages in supply. The tailrace will extend for a mile along the shore of the Mississippi to a point below Dam 16 on that River. Transmission lines will connect the project with a source of steam standby electric current at Davenport, Iowa, 24 miles up the Mississippi. The plant is expected to produce 200,000,000 kwh. of marketable power per year, of which 151,000,000 kwh. will be firm energy in an average year. Interchange of energy is proposed with the Moline-Rock Island Manufacturing Company near Davenport and the project is suggested as an alternative to the addi- This described a project including an 8,500 foot earthen dam, and ? P°wer plant of three 5,000 kw. hydraulic turbine generators operating under a maximum head of 35 feet, with an estimated output of >000,000 kwh. per year. The water was to be returned to the ar River immediately below the dam. 158 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. tion of a 50,000 kw. unit to the plant of that company. The power will be available especially to non-profit rural electrification cooperative associations and to cities and towns in 35 or more nearby counties. The Cedar River rises in Minnesota and flows 270 miles southeasterly through Iowa to Moscow, which is 10 miles west of the Mississippi. From there it flows southwesterly 29 miles to Columbus Junction where it joins the Iowa River and returns southeasterly 28 miles to the Mississippi. The proposed diversion will take all but about 25 c. f. s. of water from the Cedar River at Moscow. This will correspondingly reduce the flow in the Iowa River while the diverted water will enter the Mississippi at Muscatine, about 20 miles above its present point of entry at the mouth of the Iowa River. There are no cities or towns on the Cedar River between Moscow and Columbus Junction and the record indicates that the petitioner has options upon 98% of the riparian rights on the Cedar River in that area. At petitioner’s request, this application was treated as a supplement to its then pending declaration of intention to construct the smaller project. On June 3, 1941, the Commission made the following findings: “(1) That the Cedar and Iowa Rivers are navigable waters of the United States; (2) That the diversion of water from the Cedar River by means of the diversion canal as set forth above would have a direct and substantial effect upon the flow and stage of the Iowa River and hence would affect the navigable capacity of that river; (3) That the alternate withholding of water in the reservoir and canal during periods of shut-down oi the power plant and the release of water at substantial rates of flow during periods of operation of the power plant, as set forth above, would cause extreme fluctuations in the flow of the Mississippi River at FIRST IOWA COOP. v. POWER COMM’N. 159 152 Opinion of the Court. Muscatine, Iowa, and would substantially affect the navigable capacity of that river; (4) That the interests of interstate commerce would be affected by construction of the project as described in the declaration of intention as supplemented ; (5) That the two small islands ... [in the Cedar River] are public lands of the United States and will be partly or wholly flooded by the reservoir of the proposed project and will be occupied by the project; (6) That a license for the construction proposed above is required under the provisions of the Federal Power Act.” 2 Fed. Power Comm. Rep., 958.4 On August 11, 1941, the petitioner, pursuant to that finding, filed with the Commission an application for a license to construct the project above described. On November 4, 1941, the Commission granted the State of Iowa’s petition to intervene and, since then, the State has opposed actively the granting of the federal license. 4 On February 7, 1940, the Commission had sent notice to the Governor of Iowa of the filing of the original declaration of intention and invited him to present information and comments relative thereto. The State, however, took no part in the proceedings. The record also indicates that twice in the three years before the present proceeding, the Executive Council of the State of Iowa rejected applications of the petitioner requesting state permits to construct a dam near Moscow comparable to that proposed in all of these proceedings, but not including a diversion of water from the Cedar to the Mississippi River. The last application of the petitioner to the Council for such a permit was filed August 12, 1940, and rejected June 25, 1941. No application has been made by the petitioner to the Executive Council for a state permit for construction of the project including the canal diverting most of the flow of the Cedar River to the Mississippi and providing for a plant and tailrace on the bank of the Mississippi. In !ts petition to intervene in the present proceeding for a federal license, the State alleged that such a diversion would violate § 7771 (in Chapter 363) of the Code of Iowa, 1939. That allegation touches the principal question in this case. 160 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. On January 29,1944, after extended hearings, the Commission rendered an opinion including the following statements: “As first presented, the plans of the applicant for developing the water resources of the Cedar River were neither desirable nor adequate, but many important changes in design have been made. [The opinion here quoted in a footnote § 10 (a) of the Federal Power Act.]5 The applicant has also agreed to certain modifications proposed by the Chief of Engineers of the War Department. The present plans call for a practical and reasonably adequate development to utilize the head and water available, create a large storage reservoir, and make available for recreational purposes a considerable area now unsuitable for such use, all at a cost which does not appear to be unreasonable. “Further changes in design may be desirable, but they are minor in character and can be effected if the applicant is able to meet the other requirements of the act.” Re First Iowa Hydro-Electric Cooperative, 52 PUR (NS) 82,84. We believe that the Commission would have been justified in proceeding further at that time with its consideration of the petitioner’s application upon all the material facts. Such consideration would have included evidence submitted by the petitioner pursuant to § 9 (b) 8 “Sec. 10. All licenses issued under this Part shall be on the following conditions: “(a) That the project adopted, including the maps, plans, and specifications, shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification o any project and of the plans and specifications of the project works before approval.” 49 Stat. 842,16 U. S. C. § 803 (a). FIRST IOWA COOP. v. POWER COMM’N. 161 152 Opinion of the Court. of the Federal Power Act6 as to the petitioner’s compliance with the requirements of the laws of Iowa with respect to the petitioner’s property rights to make its proposed use of the affected river beds and banks and to divert and use river water for the proposed power purposes, as well as the petitioner’s right, within the State of Iowa, to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of the license. The Commission, however, was confronted at that point with a claim by the State of Iowa that the petitioner must not only meet the requirements for a federal license for the project under the Federal Power Act, but should also present satisfactory evidence of its compliance with the requirements of Chapter 363 of the Code of Iowa, 1939, hereinafter discussed, for a permit from the State Executive Council of Iowa for the same project. While it now appears, from its brief and the argument in this Court, that it is the opinion of the Federal Power Commission that the requirements of Chapter 363 of the Code of Iowa as to this project have been superseded by those of the Federal Power Act, yet, at the time of the original hearing, the Commission felt that the courts were the appropriate place for the decision on Iowa’s contention as to the applicability and effectiveness of Chapter 363 Sec. 9. That each applicant for a license hereunder shall submit to the commission— (b) Satisfactory evidence that the applicant has complied with t e requirements of the laws of the State or States within which the Proposed project is to be located with respect to bed and banks and the appropriation, diversion, and use of water for power purposes an with respect to the right to engage in the business of developing, ransmitting, and distributing power, and in any other business neces-*° e^ect the purposes of a license under this Act.” 41 Stat. 1068>16 U.S.C.§ 802 (b). 162 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. of its Code in relation to this project. The Commission decided, therefore, to proceed no further until that question had been decided by the courts, and dismissed the petitioner’s application, without prejudice, in accordance with the following explanation stated in its opinion: “The appropriate place for a determination of the validity of such state laws is in the courts and, if we dismiss the application for license on the basis of failure to comply with the requirements of § 9 (b), applicant may seek review of our action and its contentions under § 313 (b) of the Federal Power Act.” 52 PUR (NS) 82, 85. The Commission also expressly found that— “The applicant has not presented satisfactory evidence, pursuant to § 9 (b) of the Federal Power Act, of compliance with the requirements of applicable laws of the state of Iowa requiring a permit from the State Executive Council to effect the purposes of a license under the Federal Power Act, and the pending application, as supplemented, should be dismissed without prejudice; . . .” Id. at 85. This action, after all, did not save the Commission from passing on the issue, for the order of dismissal was a ruling upon it, adverse both to the petitioner’s contentions and to its own views on the law. The Commission would have been justified in following its own interpretation of the Federal Power Act and proceeding with the merits of the application without requiring the petitioner to submit evidence of its compliance with the terms of Chapter 363, or of any other laws of the State of Iowa, which the Commission held to be inapplicable or to have been superseded by the Federal Power Act. On the applicant’s petition for review of the dismissal, it was affirmed by the United States Court of Appeals for the District of Columbia. 151 F. 2d 20. We then granted certiorari under § 240 (a) of the Judicial Code, 28 U. S. C. § 347, and § 313 (b) of the Federal Power Act, FIRST IOWA COOP. v. POWER COMM’N. 163 152 Opinion of the Court. 49 Stat. 860,16 U. S. C. § 825Z, because of the importance of the case in applying the Federal Power Act. The findings made by the Commission on June 3, 1941, in response to the petitioner’s declaration of intention are not in question. For the purposes of this application it is settled that the project will affect the navigability of the Cedar, Iowa and Mississippi Rivers, each of which has been determined to be a part of the navigable waters of the United States; will affect the interests of interstate commerce; will flood certain public lands of the United States; and will require for its construction a license from the Commission.7 The project is clearly within the jurisdiction of the Commission under the Federal Power Act. The question at issue is the need, if any, for the presentation of satisfactory evidence of the petitioner’s compli- 7 “Sec. 4. The Commission is hereby authorized and empowered— “(e) To issue licenses ... to any corporation organized under the laws of the United States or any State thereof, . . . for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands ... of the United States . . .: rovided further, That no license affecting the navigable capacity of any navigable waters of the United States shall be issued until the P ans of the dam or other structures affecting navigation have been approved by the Chief of Engineers and the Secretary of War. enever the contemplated improvement is, in the judgment of the ommission, desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, a finding to that e ect shall be made by the Commission and shall become a part of ^records of the Commission: . . .” 49 Stat. 840, 16 U. S. C. § (e). See also, § 23 (b), note 2, supra. 164 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. ance with the terms of Chapter 363 of the Code of Iowa. This question is put in issue by the petition for review of the order of the Commission which dismissed the application solely on the ground of the failure of the petitioner to present such evidence. The laws of Iowa which that State contends are applicable and require a permit from its Executive Council to effect the purposes of the federal license are all in § § 7767-7796.1 of the Code of Iowa, 1939, constituting Chapter 363, entitled “Mill Dams and Races.” Section 7767 of that chapter is alleged to require the issuance of a permit by the Executive Council of the State and is the one on which the Commission’s order must depend. It provides: “7767 Prohibition—permit. No dam shall be constructed, maintained, or operated in this state in any navigable or meandered stream for any purpose, or in any other stream for manufacturing or power purposes, nor shall any water be taken from such streams for industrial purposes, unless a permit has been granted by the executive council to the person, firm, corporation, or municipality constructing, maintaining, or operating the same.”8 To require the petitioner to secure the actual grant to it of a state permit under § 7767 as a condition precedent to securing a federal license for the same project under the Federal Power Act would vest in the Executive Council of Iowa a veto power over the federal project. Such a veto power easily could destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the “comprehensive” planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.9 8 Sections 7771, 7776, 7792 and 7796 of Chapter 363 have a less direct relation to the issue but would be superseded by the Federa Power Act if § 7767 is superseded by it. 9 See § 10 (a), note 5, supra; § 23 (b), note 2, supra; and §4 (e), note 7, supra. FIRST IOWA COOP. v. POWER COMM’N. 165 152 Opinion of the Court. The Commission’s order of dismissal avoids this extreme result because, instead of charging the petitioner with failure to present satisfactory evidence of the actual grant to it of a state permit, the order charges the petitioner with failure to present satisfactory evidence merely of its “compliance with the requirements of applicable laws of the state of Iowa requiring a permit from the State Executive Council.” While this avoids subjecting the petitioner to an arbitrary and capricious refusal of the permit it does not meet the substance of the objection to the order. For example, § 7776 of the State Code requires that “the method of construction, operation, maintenance, and equipment of any and all dams in such waters shall be subject to the approval of the Executive Council.” This would subject to state control the very requirements of the project that Congress has placed in the discretion of the Federal Power Commission.10 A still greater difficulty is illustrated by § 7771. This states the requirements for a state permit as follows: “7771 When permit granted. If it shall appear to the council that the construction, operation, or 10 See § 10 (a), note 5, supra; and also: “Sec. 10. All licenses issued under this Part shall be on the following conditions: . . . ‘(b) That except when emergency shall require for the protection of navigation, life, health, or property, no substantial alteration or addition not in conformity with the approved plans shall be made to any dam or other project works constructed hereunder . . . without the prior approval of the Commission; and any emergency alteration or addition so made shall thereafter be subject to such modification and change as the Commission may direct. (c) That the licensee shall maintain the project works in a condition of repair adequate for the purposes of navigation and tor the efficient operation of said works in the development and transmission of power, shall make all necessary renewals and replacements, shall establish and maintain adequate depreciation reserves for such purposes, shall so maintain and operate said works as not to impair navigation, and shall conform to such rules and regulations as the Commission may from time to time V^^ibe for the protection of life, health, and property. . . .” y btat. 842,16 U. S. C. § 803 (b) and (c). (Italics supplied.) 166 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. maintenance of the dam will not materially obstruct existing navigation, or materially affect other public rights, will not endanger life or public health, and any water taken from the stream in connection with the project is returned thereto at the nearest practicable place without being materially diminished in quantity or polluted or rendered deleterious to fish life, it shall grant the permit, upon such terms and conditions as it may prescribe.” (Italics supplied.) This strikes at the heart of the present project. The feature of the project which especially commended it to the Federal Power Commission was its diversion of substantially all of the waters of the Cedar River near Moscow, to the Mississippi River near Muscatine. Such a diversion long has been recognized as an engineering possibility and as constituting the largest power development foreseeable on either the Cedar or Iowa Rivers.11 It is this diversion that makes possible the increase in the head of water for power development from a maximum of 35 feet to an average of 101 feet, the increase in the capacity of the plant from 15,000 kw. to 50,000 kw. and its output from 47,000,000 kwh. to 200,000,000 kwh. per year. It is this diversion that led the Federal Power Commission, on January 29, 1944, to make its favorable appraisal of the enlarged project in contrast to its unfavorable appraisal, and to the State’s rejection, of the smaller project. It is this feature that brings this project squarely under the Federal Power Act and at the same time gives the project its greatest economic justification. If a state permit is not required, there is no justification for requiring the petitioner, as a condition of securing its federal permit, to present evidence of the petitioner’s com- 11 Report from the Chief of Engineers on the Iowa River and its tributaries made in 1929 covering navigation, flood control, P°W®J development and irrigation. H. R. Doc. No. 134, 71st Cong., Sess., 86,87, 90. FIRST IOWA COOP. v. POWER COMM’N. 167 152 Opinion of the Court. pliance with the requirements of the State Code for a state permit. Compliance with state requirements that are in conflict with federal requirements may well block the federal license. For example, compliance with the state requirement, discussed above, that the water of the Cedar River all be returned to it at the nearest practicable place would reduce the project to the small one which is classified by the Federal Power Commission as “neither desirable nor adequate.” Similarly, compliance with the engineering requirements of the State Executive Council, if additional to or different from the federal requirements, may well result in duplications of expenditures that would handicap the financial success of the project. Compliance with requirements for a permit that is not to be issued is a procedure so futile that it cannot be imputed to Congress m the absence of an express provision for it. On the other hand, there is ample opportunity for the Federal Power Commission, under the authority expressly given to it by Congress, to require by regulation the presentation of evidence satisfactory to it of the petitioner’s compliance with any of the requirements for a state permit on the state waters of Iowa that the Commission considers appropriate to effect the purposes of a federal license on the navigable waters of the United States. This evidence can be required of the petitioner upon the remanding of this application to the Commission. In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States rom those subjects which the Constitution delegates to e United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system o control. The duality of control consists merely of the ivision of the common enterprise between two cooperating agencies of government, each with final authority in 1 s own jurisdiction. The duality does not require two U7466 O—47-___15 168 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. agencies to share in the final decision of the same issue. Where the Federal Government supersedes the state government there is no suggestion that the two agencies both shall have final authority. In fact a contrary policy is indicated in §§ 4 (e), 10 (a), (b) and (c), and 23 (b).12 In those sections the Act places the responsibility squarely upon federal officials and usually upon the Federal Power Commission. A dual final authority, with a duplicate system of state permits and federal licenses required for each project, would be unworkable. “Compliance with the requirements” of such a duplicated system of licensing would be nearly as bad. Conformity to both standards would be impossible in some cases and probably difficult in most of them.13 The solution adopted by Congress, as to what evidence an applicant for a federal license should submit to the Federal Power Commission, appears in § 9 of its Act. It contains not only subsection (b)14 but also subsections (a) and (c).15 Section 9 (c) permits 12 See notes 7, 5,10 and 2, supra. 13 In addition to those given in the text, another example of conflict between the project requirements of the Iowa statutes and those of the Federal Power Act appears in § 7792 of the Iowa Code. That section requires the beginning of construction of the project dam or raceway within one year and the completion of the plant within three years after the granting of the permit. This conflicts with § 13 o the Federal Power Act which makes this largely discretionary wit the Federal Power Commission but generally contemplates that the construction be commenced within two years from the date of the license. So in § 7793 of the Iowa Code, the life of a permit conflicts with the term of a license under § 6 of the Federal Power Act. 14 See note 6, supra. 15 “Sec. 9. That each applicant for a license hereunder shall submit to the commission— “(a) Such maps, plans, specifications, and estimates of cost as may be required for a full understanding of the proposed project, u maps, plans, and specifications when approved by the commission be made a part of the license; and thereafter no change shall be ma FIRST IOWA COOP. v. POWER COMM’N. 169 152 Opinion of the Court. the Commission to secure from the applicant “Such additional information as the commission may require.” This enables it to secure, in so far as it deems it material, such parts or all of the information that the respective States may have prescribed in state statutes as a basis for state action. The entire administrative procedure required as to the present application for a license is described in § 9 and in the Rules of Practice and Regulations of the Commission.18 * 16 in said maps, plans, or specifications until such changes shall have been approved and made a part of such license by the commission. “(c) Such additional information as the commission may require.” 41 Stat. 1068,16 U. S. C. § 802 (a) and (c). 16 These rules and regulations are issued pursuant to §§ 303, 308 and 309,49 Stat. 855, 858,16 U. S. C. §§ 825b, 825g and 825h, interpreting §§4 and 9 of the Federal Power Act. Federal Power Commission Rules of Practice and Regulations, 1938, §§4.40-4.51, 18 C. F. R. §§4.40-4.51. They cover the field so fully as to leave no purpose to be served by filing comparable information required in some alternative form under state laws as a basis for a state permit. Exhibits D and E, required by § 4.41 of the regulations, are to satisfy § 9 (b) of the Federal Power Act and have to do especially with property rights in the use of water under the state laws and do not alter the legal situation presented by the Act itself. These exhibits are described as follows: “Exhibit D.—Evidence that the applicant has complied with the requirements of the laws of the State or States within which the project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business, necessary to effect the purposes of the license applied for, including a certificate of convenience and necessity, if required. This evidence shall be accompanied by a statement of the steps that have been taken and the steps that remain to be taken to acquire franchise or other rights from States, counties, and municipalities before the project can be completed and put into operation. Exhibit E.—The nature, extent, and ownership of water rights which the applicant proposes to use in the development of the 170 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. The securing of an Iowa state permit is not in any sense a condition precedent or an administrative procedure that must be exhausted before securing a federal license. It is a procedure required by the State of Iowa in dealing with its local streams and also with the waters of the United States within that State in the absence of an assumption of jurisdiction by the United States over the navigability of its waters. Now that the Federal Government has taken jurisdiction of such waters under the Federal Power Act, it has not by statute or regulation added the state requirements to its federal requirements. The State of Iowa, in its petition to intervene in the proceedings before the Commission, stated in relation to the proposed diversion of water from the Cedar River to the Mississippi: “said diversion would be in direct violation of the provisions of section 7771, Code of Iowa 1939.” Also, in the State’s motion to intervene in the proceedings before the Court of Appeals, it alleged that “By reason of said provisions of law [§§ 7767 and 7771, Code of Iowa, 1939] and the diversion of water involved in the proposed project of petitioner, the executive council of the state of Iowa could not lawfully grant a permit for the erection of the dam proposed.” Furthermore, the Executive Council, which includes the Governor of the State, on July 5, project covered by application, together with satisfactory evidence that the applicant has proceeded as far as practicable in perfecting its rights to use sufficient water for proper operation of the project works. A certificate from the proper State agency setting forth the extent and validity of the applicant’s water rights shall be appended if practicable. In case the approval or permission of one or more State agencies is required by State law as a condition precedent to the applicant’s right to take or use water for the operation of the project works, duly certified evidence of such approval or permission, or a showing of cause why such evidence cannot be reasonably submitted shall also be filed. When a State certificate is involved, one certified copy and three uncertified copies shall be submitted.” Federal Power Commission Rules of Practice and Regulations, effective June 1, 1938, pp. 21-22. FIRST IOWA COOP. v. POWER COMM’N. 171 152 Opinion of the Court. 1944, adopted a resolution directing the Attorney General of Iowa to intervene in this case before that court and “thereby take steps to sustain the said order of the Federal Power Commission [dismissing the petitioner’s application for a federal license] ” because “it is vital to the interests of the State of Iowa that the said order of the Commission be sustained.” This demonstrates that the State of Iowa not only is opposed to the granting of a state permit but is opposed also to the granting of a federal license for the project. This opposition is based at least in part on the ground that the state statute, as interpreted by the state officials, expresses a policy opposed to the diversion of water from one stream to another in Iowa under such circumstances as the present. Accepting this as the meaning of § 7771 of the Iowa Code brings us to consideration of the effect of the Federal Power Act upon it and the related state statutes. We find that when that Act is read in the light of its long and colorful legislative history, it discloses both a vigorous determination of Congress to make progress with the development of the long idle water power resources of the Nation and a determination to avoid unconstitutional invasion of the jurisdiction of the States. The solution reached is to apply the principle of the division of constitutional powers between the State and Federal Governments. This has resulted in a dual system involving the close integration of these powers rather than a dual system of futile duplication of two authorities over the same subject matter. The Act leaves to the States their traditional jurisdiction subject to the admittedly superior right of the Federal Government, through Congress, to regulate interstate and foreign commerce, administer the public lands and reservations of the United States and, in certain cases, exercise authority under the treaties of the United States. These sources of constitutional authority are all applied in 172 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. the Federal Power Act to the development of the navigable waters of the United States.17 The closeness of the relationship of the Federal Government to these projects and its obvious concern in maintaining control over their engineering, economic and financial soundness is emphasized by such provisions as those of § 14 authorizing the Federal Government, at the 17 The Federal Government took its greatest step toward exercising its jurisdiction in this field by authorizing federal licenses, under the Federal Water Power Act of 1920 (41 Stat. 1063), for terms of 50 years for the development of water power in the navigable waters of the United States. That Act was limited in 1921 by the exclusion from it of water power projects in national parks or national monuments. 41 Stat. 1353. The Commission was reorganized so as to improve its administrative capacity in 1930. 46 Stat. 797. The Act was generally revised and perfected on August 26, 1935, 49 Stat. 803, when it received the name of the Federal Power Act. It was then made Part I of Title II of the Public Utility Act of 1935. This last step was shortly after the decision of this Court in United States v. West Virginia, 295 U. S. 463, and it has served to clarify the law as it existed prior to that decision. Among other things, this last step amended § 23 so as expressly to require a federal license for every water power project in the navigable waters of the United States. It also made mandatory, instead of discretionary, the filing with the Federal Power Commission of a declaration of intention by anyone intending to construct a project in non-navigable waters over which Congress had jurisdiction under its authority to regulate commerce. It continued its recital of permission to construct such projects upon compliance with the state laws, rather than with the Federal Power Act, provided the projects were not in navigable waters of the United States, did not affect the interests of interstate or foreign commerce and did not affect the public lands or reservations of the United States. These amendments sharpened the line between the state and federal jurisdictions and helped to make it clear that the Federal Government was assuming responsibility through the Federal Power Commission for the granting of appropriate licenses for the development of water power resources in the navigable waters of the United States. See also the rapid development of federal projects shown in the Annual Reports of the Federal Power Commission 1921-1945. FIRST IOWA COOP. v. POWER COMM’N. 173 152 Opinion of the Court. expiration of a license, to take over the licensed project by payment of “the net investment of the licensee in the project or projects taken, not to exceed the fair value of the property taken,” plus an allowance for severance damages. The scope of the whole program has been further aided, in 1940, by the definition given to navigable waters of the United States in United States v. Appalachian Power Co., 311 U. S. 377. “Students of our legal evolution know how this Court interpreted the commerce clause of the Constitution to lift navigable waters of the United States out of local controls and into the domain of federal control. Gibbons v. Ogden, 9 Wheat. 1, to United States v. Appalachian Power Co., 311 U. S. 377.” Northwest Airlines v. Minnesota, 322 U. S. 292,303. It was in the light of these developments that this petitioner, in April, 1941, made application for a federal license for this enlarged project. This project thus illustrates the kind of a development, in relation to interstate commerce and to the navigable waters of the United States, that is brought forth by the new recognition of its value when viewed from the comprehensive viewpoint of the Federal Power Commission. Until 1941, this enlarged project had remained dormant at least from the time when its value was recognized in the report to Congress filed by the War Department in 1929.18 Further light is thrown upon the meaning of the Federal Power Act by the statement, made by Representative William L. LaFollette of Washington, a member of the Special Committee on Water Power, which reported the bill which later became the Federal Water Power Act of 1920. In the debate which led to the insertion in § 9 (b) 18 H. R. Doc. No. 134, 71st Cong., 2d Sess., reflecting the recommendations of the District Engineer, pp. 8-90; Division Engineer, P- 90; Mississippi River Commission, pp. 90-93; Board of Engineers or Rivers and Harbors, pp. 3-8; and the Chief of Engineers, pp. 1-3. See especially pp. 86,87,90. 174 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. of the reference to state laws as to the bed and banks of streams, he said: “The property rights are within the State. It can dispose of the beds, or parts of them, regardless of the riparian ownership of the banks, if it desires to, and that has been done in some States. If we put in this language, which is practically taken from that Supreme Court decision [United States v. Cress, 243 U. S. 316], as to the property rights of the States as to the bed and the banks and to the diversion of the water, then it is sure that we have not infringed any of the rights of the States in that respect, or any of their rules of property, and we are trying in this bill above everything else to overcome a divided authority and pass a bill that will make it possible to get development. We are earnestly trying not to infringe the rights of the States. If possible we want a bill that can not be defeated in the Supreme Court because of omissions, because of the lack of some provision that we should have put in the bill to safeguard the States.” 56 Cong. Rec. 9810. (Italics supplied.) As indicated by Representative LaFollette, Congress was concerned with overcoming the danger of divided authority so as to bring about the needed development of water power and also with the recognition of the constitutional rights of the States so as to sustain the validity of the Act. The resulting integration of the respective jurisdictions of the State and Federal Governments is illustrated by the careful preservation of the separate interests of the States throughout the Act, without setting up a divided authority over any one subject.19 19Instances of such provisions are the following: §4 (a) and (c), cooperation of the Commission with the executive departments and other agencies of the State and National Governments is required in the investigation of such subjects as the utilization of water resources, water-power industry, location, capacity, development costs and the relation to markets of power sites, and the fair value of power. §4 (f), notice of application for a preliminary permit is to go to any State or municipality likely to be interested. § 7 (a), m FIRST IOWA COOP. v. POWER COMM’N. 175 152 Opinion of the Court. Sections 27 and 9 are especially significant in this regard. Section 27 expressly “saves” certain state laws relating to property rights as to the use of water, so that these are not superseded by the terms of the Federal Power Act. It provides: “Sec. 27. That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.” 41 Stat. 1077,16 U. S. C. §821. Section 27 thus evidences the recognition by Congress of the need for an express “saving” clause in the Federal Power Act if the usual rules of supersedure are to be overcome. Sections 27 and 9 (b) were both included in the original Federal Water Power Act of 1920 in their present form. The directness and clarity of § 27 as a “saving” clause and its location near the end of the Act emphasizes the distinction between its purpose and that of § 9 (b) which is included in § 9, in the early part of the Act, which deals with the marshalling of information for the consideration of a new federal license. In view of the use by Congress of such an adequate “saving” clause in § 27, its failure to use similar language in § 9 (b) is persuasive that § 9 (b) should not be given the same effect as is given to §27. The effect of § 27, in protecting state laws from supersedure, is limited to laws as to the control, appropriation, issuing permits and licenses preference is to be given to States and municipalities. § 10 (e), licenses to States and municipalities under certain circumstances shall be issued and enjoyed without charge. §14, a right is reserved not only to the United States but to any tate or municipality to take over any licensed project at any time by condemnation and payment of just compensation. §§ 19 and 20, regulation of service and rates is preserved to the States. 176 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. use or distribution of water in irrigation or for municipal or other uses of the same nature. It therefore has primary, if not exclusive, reference to such proprietary rights. The phrase “any vested right acquired therein” further emphasizes the application of the section to property rights. There is nothing in the paragraph to suggest a broader scope unless it be the words “other uses.” Those words, however, are confined to rights of the same nature as those relating to the use of water in irrigation or for municipal purposes. This was so held in an early decision by a District Court, relating to § 27 and upholding the constitutionality of the Act, where it was stated that “a proper construction of the act requires that the words ‘other uses’ shall be construed ejusdem generis with the words ‘irrigation’ and ‘municipal.’ ” Alabama Power Co. v. Gulf Power Co., 283 F. 606, 619. This section therefore is thoroughly consistent with the integration rather than the duplication of federal and state jurisdictions under the Federal Power Act. It strengthens the argument that, in those fields where rights are not thus “saved” to the States, Congress is willing to let the supersedure of the state laws by federal legislation take its natural course.20 20 The legislative history of § 27 confirms these conclusions. The language is similar to that of § 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U. S. C. § 383, which provides, “nothing [in several listed sections] in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Tern-tory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, . . .” This restricted clause appeared in a modified and broader form in the Ferris Public Lands Bill of 1916, H. R. No. 408, 64th Cong., Is* Sess.: “Sec. 13. That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws FIRST IOWA COOP. v. POWER COMM’N. 177 152 Opinion of the Court. Section 9 (b)21 does not resemble § 27. It must be read with § 9 (a) and (c).22 The entire section is devoted to securing adequate information for the Commission as to pending applications for licenses. Where § 9 (a) calls for engineering and financial information, § 9 (b) calls for legal information. This makes § 9 (b) a natural place in which to describe the evidence which the Commission shall require in order to pass upon applications for federal licenses. This makes it a correspondingly unnatural place to establish by implication such a substantive policy as that contained in § 27 and which, in accordance with the contentions of the State of Iowa, would enable Chapter 363 of the Code of Iowa, 1939, to remain in effect although in conflict with the requirements of the Federal Power Act. There is nothing in the express language of § 9 (b) that requires such a conclusion. It does not itself require compliance with any state laws. Its reference to state laws is by way of suggestion to the of any State relating to the control, appropriation, use, or distribution of water.” It also had appeared as § 14 of the Ferris Bill of 1914, H. R. Nt>. 16673,63d Cong., 2d Sess., as follows: “Sec. 14. That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired thereunder.” Discussion in Congress further emphasized the purely proprietary sense in which this language was used. 51 Cong. Rec. 13630-13631. The clause reappeared in the Bill which became the Federal Water Power Act and was there enacted into the law in its present form. The use, in § 27 of the Federal Power Act, of language having a limited meaning in relation to proprietary rights under the reclamation law and in public land bills, carries that established meaning of the language into the Federal Power Act in the absence of anything in the Act calling for a different interpretation of the language. 21 See note 6. 22 See note 15. 178 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Federal Power Commission of subjects as to which the Commission may wish some proof submitted to it of the applicant’s progress. The evidence required is described merely as that which shall be “satisfactory” to the Commission. The need for compliance with applicable state laws, if any, arises not from this federal statute but from the effectiveness of the state statutes themselves. When this application has been remanded to the Commission, that Commission will not act as a substitute for the local authorities having jurisdiction over such questions as the sufficiency of the legal title of the applicant to its riparian rights, or as to the validity of its local franchises, if any, relating to proposed intrastate public utility service. Section 9 (b) says that the Commission may wish to have “satisfactory evidence” of the progress made by the applicant toward meeting local requirements but it does not say that the Commission is to assume responsibility for the legal sufficiency of the steps taken. The references made in § 9 (b) to beds and banks of streams, to proprietary rights to divert or use water, or to legal rights tp engage locally in the business of developing, transmitting and distributing power neither add anything to nor detract anything from the force of the local laws, if any, on those subjects. In so far as those laws have not been superseded by the Federal Power Act, they remain as applicable and effective as they were before its passage. The State of Iowa, however, has sought to sustain the applicability and validity of Chapter 363 of the Code of Iowa in this connection, on the ground that the Federal Power Act, by the implications of § 9 (b), has recognized this chapter of Iowa law as part of a system of dual control of power project permits, cumbersome and complicated though it be. If it had been the wish of Congress to make the applicant obtain consent of state as well as federal authorities to each project, the simple thing would FIRST IOWA COOP. v. POWER COMM’N. 179 152 Opinion of the Court. have been to so provide. In the course of the long debate on the legislation it was proposed at one time to provide for some such consent in § 9 (b). For example, in the Shields Bill, S. No. 1419,65th Cong., 2d Sess., in 1917, a proviso was proposed : “That before the permit shall be granted under this Act, the permittee must first obtain, in such manner as may be required by the laws of the States, the consent of the State or States in which the dam or other structure for the development of the water power is proposed to be constructed.” (Italics supplied.) This proviso was not enacted into law but it illustrates the concreteness with which the proposal was before Congress. In 1918, when Representative Mondell, of Wyoming, successfully defended the present language against amendment, he stated the purposes of § 9 (b) as follows: “There are two controlling reasons for the insertion of this paragraph. The first, from the standpoint of water-power legislation, is that the water-power commission shall have the benefit of all of the information which the States possess relative to the condition of water supply at the point of proposed diversion. That is a very important reason for a provision of this kind. . . . The second reason is so that the bill shall carry with it notice to the commission that they must proceed in accordance with the State laws, ■ which they must do in any event, whether the provision were in the bill or not.” 56 Cong. Rec. 9813-9814. (Italics supplied.) The purpose of this section as thus explained is consistent with the contention of the Commission in this case. It provides for presentation of information to the federal commission and protects the constitutional rights of the States. This explanation does not support the contention of the State of Iowa that § 9 (b) amounts to the subjection of the federal license to requirements of the state law on the same subject. The inappropriateness of such 180 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. an interpretation is apparent in the light of the circumstances which culminated in the passage of the Federal Water Power Act in 1920. The purposes of the Act were then so generally known as to have made such a restrictive interpretation impossible and a denial of it unnecessary. It was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted. It was a major undertaking involving a major change of national policy.23 That it was the intention of Congress 23 The nation-wide drive for the passage of this legislation dates back at least to the administration of Theodore Roosevelt and to the enthusiastic support of “the conservationists” led by Gifford Pinchot, as Chief of the Division of Forestry. “With all its faults the Federal Water Power Act of 1920, marked a great advance. It established firmly the principle of federal regulation of water power projects, limited licenses to not more than fifty years, and provided for Government recapture of the power at the end of the franchise. “For the first time, the Act of 1920 established a national policy in the use and development of water power on public lands and navigable streams.” Pinchot, The Long Struggle for Effective Federal Water Power Legislation (1945), 14 Geo. Wash. L. Rev. 9, 19. See also, Kerwin, Federal Water-Power Legislation, c. VI. The present Act was distinctly an effort to provide federal control over and give federal encouragement to water power development. It grew out of a bill prepared by the Secretaries of War, Interior and Agriculture. It was recommended by a Special Committee on Water Power created in the House of Representatives at the suggestion of President Wilson. See Statement by Representative Sims, Chairman of the Committee on Water Power, 56 Cong. Rec. 9797-9798. The bill was to provide “a method by which the water powers of the FIRST IOWA COOP. v. POWER COMM’N. 181 152 Opinion of the Court. to secure a comprehensive development of national resources and not merely to prevent obstructions to navigation is apparent from the provisions of the Act, the statutory scheme of which has been several times reviewed and approved by the courts.* 2 * * 24 The detailed provisions of the Act providing for the federal plan of regulation leave no room or need for conflicting state controls.25 The contention of the State of country, wherever located, can be developed by public or private agencies under conditions which will give the necessary security to the capital invested and at the same time protect and preserve every legitimate public interest. . . . The problems are national, rather than local; they transcend State lines and cannot be handled adequately except by or in conjunction with national agencies.” Statement by David F. Houston, Secretary of Agriculture, quoted in H. R. Rep. No. 61,66th Cong., 1st Sess., p. 5. 2i New Jersey v. Sargent, 269 U. S. 328; United States v. Appalachian Power Co., 311 U. S. 377; Clarion River Power Co. v. Smith, 59 F. 2d 861, certiorari denied, 287 U. S. 639; Alabama Power Co. v. McNinch, 94 F. 2d 601; Pennsylvania Water & Power Co. v. Federal Power Commission, 74 App. D. C. 351, 123 F. 2d 155, certiorari denied, 315 U. S. 806; Alabama Power Co. v. Federal Power Commission, 75 U. S. App. D. C. 315,128 F. 2d 280, certiorari denied, 317 U. S. 652; Puget Sound Power & Light Co. v. Federal Power Commission, 78 U. S. App. D. C. 143,137 F. 2d 701; Wisconsin Public Service Corp. v. Federal Power Commission, 147 F. 2d 743, certiorari denied, 325 U. S. 880; Georgia Power Co. v. Federal Power Commission, 152 F. 2d 908. 25Sections 4 (e) and 10 (a), comprehensive plans required; §§ 4 (f) and 5, preliminary permits; § 4 (g), investigation of power resources; §6, license term of 50 years; § 7 (a) development of water resources on a national basis; § 7 (b), developments by the United States itself; §13, prompt construction required; §14, recapture of projects and Payment for them by the Government upon expiration of licenses, thus giving the Government a direct interest in and reason for control of every feature of each licensed project; § 21, federal powers of condemnation vested in licensee; and § 28, prohibition of amendment or repeal of licenses. 182 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Iowa is comparable to that which was presented on behalf of 41 States and rejected by this Court in United States v. Appalachian Power Co., 311 U. S. 377, 404-405, 426-427, where this Court said: “The states possess control of the waters within their borders, ‘subject to the acknowledged jurisdiction of the United States under the Constitution in regard to commerce and the navigation of the waters of rivers.’ It is this subordinate local control that, even as to navigable rivers, creates between the respective governments a contrariety of interests relating to the regulation and protection of waters through licenses, the operation of structures and the acquisition of projects at the end of the license term. But there is no doubt that the United States possesses the power to control the erection of structures in navigable waters. “The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government. The license conditions to which objection is made have an obvious relationship to the exercise of the commerce power. Even if there were no such relationship the plenary power of Congress over navigable waters would empower it to deny the privilege of constructing an obstruction in those waters. It may likewise grant the privilege on terms. It is no objection to the terms and to the exertion of the power that ‘its exercise is attended by the same incidents which attend the exercise of the police power of the states.’ The Congressional authority under the commerce clause is complete unless limited by the Fifth Amendment.” It is the Federal Power Commission rather than the Iowa Executive Council that under our constitutional Government must pass upon these issues on behalf of the people of Iowa as well as on behalf of all others. FIRST IOWA COOP. v. POWER COMM’N. 183 152 Frankfurter, J., dissenting. We accordingly reverse the judgment of the court below with directions to remand the case to the Federal Power Commission for further proceedings in conformity with this opinion. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting. This case does not present one of those large constitutional issues which, because they are so largely abstract, have throughout its history so often divided the Court. The controversy, as I understand it, is concerned with the proper administration of a law in which Congress has recognized the interests of the States as well as of the United States and has entrusted the proper adjustment of these nation-State relations to the interrelated functions of the Federal Power Commission and the courts. We are all agreed that Congress has the constitutional power to promote a comprehensive development of the nation’s water resources and that it has exercised its authority by the Federal Power Act. 41 Stat. 1063, 49 Stat. 838; 16 U. S. C. §§ 791 (a) et seq. See United States v. Chandler-Dunbar Co., 229 U. S. 53; New Jersey v. Sargent, 269 U. S. 328; United States v. Appalachian Power Co., 311 U. S. 377. And in view of Congress’ power, of course this enactment overrides all State legislation in conflict with it. But the national policy for water power development formulated by the Federal Power Act explicitly recognizes regard for certain interests of the States as part of that national policy. This does not unply that general, uncritical notions about so-called States’ rights” are to be read into what Congress has writfen. It does mean that we must adhere to the express Congressional mandate that the public interest which 717466 O—47-16 184 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. underlies the Federal Power Act involves the protection of particular matters of intimate concern to the people of the States in which proposed projects requiring the sanction of the Federal Power Commission are to be located. By §9 (b) of the Act, 41 Stat. 1063, 1068; 16 U. S. C. § 802 (b),1 Congress explicitly required that before the Commission can issue a license for the construction of a hydro-electric development, such as the proposed project of the petitioner, the Commission must have “satisfactory evidence that the applicant has complied with the requirements of the laws of the State” in reference to the matters enumerated. Whether the Commission has such “satisfactory evidence” necessarily depends upon what the requirements of State law are. In turn, what the requirements of State law are often depends upon the appropriate but unsettled construction of State law. And so, the Commission may well be confronted, as it was in this case, with the necessity of determining what the State law requires before it can determine whether the applicant has satisfied it, and, therefore, whether the condition for exercising the Commission’s power has been fulfilled. To safeguard the interests of the States thus protected by § 9 (b), Congress has directed that notice be given to the State when an application has been filed for a license, the granting of which may especially affect a State. § 4 (f ), 49 Stat. 838, 841 ; 16 U. S. C. § 797 (f ). If a State does not challenge the claim of an applicant, the evidence 1 “Sec. 9. That each applicant for a license hereunder shall submit to the commission . . . (b) Satisfactory evidence that the applicant has complied with the requirements of the laws of the State or States within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of a license under this Act.” FIRST IOWA COOP. v. POWER COMM’N. 185 152 Frankfurter, J., dissenting. submitted by the applicant, if found to be satisfactory by the Commission, has met the demands of § 9 (b), and a State cannot thereafter challenge the Commission’s determination. But a real problem in administration is presented to the Power Commission when a State does intervene and claims that the applicant has not complied with its lawful requirements. For, before the Commission can meet the duty placed on it by § 9 (b), it must ascertain the scope and meaning of the State law. Suppose the State law is not clear or is susceptible of different constructions and has received no construction by the only authoritative source for the interpretation of State laws, namely, the highest court of the State. Must the Federal Power Commission give an independent interpretation of the laws of the State? This is not to suggest an unreal or hypothetical situation. The Federal Power Commission submitted here a compilation of laws relating to State requirements relevant under § 9 (b) for not less than thirty States. Are the lawyers of the Commission to make themselves the originating interpreters of the laws of these States? Are they to construe, for instance, the laws of New Jersey and Oklahoma and Arizona and Illinois when the courts of those States have not spoken? And if they do and the State appeals from the, decision, must the Court of Appeals for the District of Columbia become the interpreter of these various laws? Finally, in the event of a further appellate review is this Court to construe State legislation without guidance by the State courts? Time out of mind, and in a variety of situations, this Court has admonished against the avoidable assumption by this Court of the independent construction of State legislation. ®ee>e- 9-, Gilchrist v. Interborough Co., 279 U. S. 159,207-209; Brandéis, J., dissenting, in Railroad Comm’n v. Los Angeles R. Co., 280 U. S. 145,158,164-66. It is pertinent to recall the classic statement of the reason for leaving to the controlling interpretation of local courts the mean- 186 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. ing of local law: “to one brought up within it, varying emphasis, tacit assumptions, unwritten practices, a thousand influences gained only from life, may give to the different parts wholly new values that logic and grammar never could have got from the books.” Diaz v. Gonzalez, 261 U. S. 102,106. If it has been deemed unwise to throw upon this Court the burden of construing local legislation when the construction could by appropriate procedure be had from the States, it seems odd that we should reject this as a rule of administration adopted by the Power Commission. That is all that the Commission has done in this case. It has said, in effect: “We do not know what the Iowa law demands of the applicant. Iowa has a right to make certain demands under § 9 (b) and until they are met we are not empowered to grant a license to the applicant. But we cannot tell whether they have been met, because the meaning of the Iowa statutes has not been determined, as it easily can be determined, by an appropriate action in the Iowa courts. Only after such an authoritative pronouncement can we know what our obligation under the statute may be.” The Court of Appeals for the District of Columbia thought that such procedure made sense. It seems to have said: “The Commission doesn’t know what the Iowa law requires, and neither do we. For we cannot tell what it requires until the Iowa Supreme Court tells us what it requires. And an adjudication of that issue can be readily secured if the applicant will proceed along the easy path provided by Iowa for obtaining such an adjudication.” 151 F. 2d 20. See Iowa Laws, 1943, c. 278, § 306 and Lloyd v. Ramsay, 192 Iowa 103, 116-17, 183 N. W. 333. Even we cannot construe the requirements of Iowa law in the absence of a determination by the Iowa Supreme Court. And in much more conventional types of litigation we have evolved the procedure whereby federal litigation is stayed until the State law is authoritatively FIRST IOWA COOP. v. POWER COMM’N. 187 152 Frankfurter, J., dissenting. determined by a State court. E. g., Railroad Commission v. Pullman Co., 312 U. S. 496; Spector Motor Co. v. McLaughlin, 323 U. S. 101; A. F. of L. v. Watson, 327 U. S. 582. What reason of policy is there for not approving this mode of adjusting interests that involve a regard for both federal and State enactments? The Federal Power Commission which devised this procedure has not been an unzealous guardian of the national interests. E. g., Fed-eral Power Comm’n v. Natural Gas Pipeline Co., 315 U. S. 575; Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591. It is no answer to suggest that the Attorney-General of Iowa at the bar of this Court expressed a view of the Iowa statute which would make obedience to it needless because of conflict with the provisions of the Federal Power Act. The Attorney-General is not the judicial organ of the State of Iowa. This Court does not always take the interpretation by the Attorney-General of the United States of a federal statute. It should not take the view of the Attorney-General of Iowa as authoritative on a statute not construed by the Supreme Court of Iowa when we are called upon to make the adjustment in federal-State relations which Congress has enjoined in § 9 (b). After all, advocates, including advocates for States, are like managers of pugilistic and election contestants in that they have a propensity for claiming everything. Before conflict can be found between federal and State legislation, construction must be given the State legislation. Avoidance of conflict is itself an important factor relevant to construction. And so, construction of State legislation relating to the matters dealt with in the Federal Power Act rs subtle business and a subtlety peculiarly within the fluty, skill, and understanding of State judges. If it be said that the procedure for which the Federal Power Commission contends may take time, there is no 188 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. assurance that a contested case like this will not take just as much time hereafter. The Commission must pass independently on an unconstrued State statute; its construction may then come before the Court of Appeals for the District and eventually before this Court. Even then the possibility remains that this Court’s decision will be followed by one in the State court ruling, as has not been unknown, that this Court’s interpretation was in error. In any event, mere speed is not a test of justice. Deliberate speed is. Deliberate speed takes time. But it is time well spent. With due respect, I have not been able to discover an adequate answer to the position of the Federal Power Commission, thus summarized in the Solicitor-General’s brief: “Unless Section 9 (b) is to be given no effect whatever, some evidence of compliance with at least some state laws is a prerequisite to the issuance of a federal license, and the view of the court below, that there is no occasion, in this case, to anticipate conflicts between state and federal authority and the consequent invalidity of the state law, is not an unreasonable one. ‘To predetermine, even in the limited field of water power, the rights of different sovereignties, pregnant with future controversies, is beyond the judicial function.’ United States v. Appalachian Electric Power Co., 311 U. S. 377, 423. Here petitioner, since the modification of its plans, has given the State Executive Council and the Iowa courts no opportunity to express their views on its proposed project with reference to matters which may be peculiarly of local concern; without such an expression, it is difficult to assess the propriety of what is only an anticipated exercise of the State’s power.” Accordingly, I think that the judgment should be affirmed. HOWITT v. UNITED STATES. 189 Counsel for Parties. HOWITT ET AL. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 354. Argued January 4,1946.—Decided May 6,1946. 1. Ticket sellers and other employees of a railroad who use the power of their positions to discriminate among passengers by exacting sums in excess of established rates, appropriating the excess for themselves, are punishable under § 10 (1) of the Interstate Commerce Act, even though the railroad is not a party to their conduct. Pp.190-193. 2. One of the primary purposes of the Interstate Commerce Act is to establish uniform treatment of users of transportation facilities. P.192. 3. Section 10 shows the clearest possible purpose to bar railroad employees from overcharging for their own or for the railroad’s illegitimate gain. P. 193. 4. The Act imposes the same duty on ticket sellers and clerks of common carriers as that imposed on railroad officers or other employees, to treat all the public alike as to terms and conditions of transportation. P. 193. 150 F. 2d 82, affirmed. Petitioners were indicted for violations of the Interstate Commerce Act and demurred to the indictments. The District Court overruled the demurrers, 55 F. Supp. 372, and they were convicted. The Circuit Court of Appeals affirmed. 150 F. 2d 82. This Court granted certiorari. 326 U. S. 706. Affirmed, p. 193. Bart. A. Riley submitted on brief for petitioners. Walter J. Cummings, Jr. argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Beatrice Rosenberg. 190 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Willard H. McEwen filed a brief for the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, as amicus curiae. Mr. Justice Black delivered the opinion of the Court. The wartime transportation shortage during the winter of 1943 made it exceedingly difficult to obtain tickets for trains going north from Miami, Florida. Petitioners are three ticket sellers and one diagram clerk who were employed at that time by a railroad at Miami. Petitioners Howitt, Lee, and Dewhurst were charged with, and convicted for, conspiracy to violate the Interstate Commerce Act, 49 U. S. C. § 1 et seq., in that they conspired to collect and receive unjust and unreasonable charges for passenger transportation, in violation of § 1 (5) (a); to receive and collect greater compensation for service from certain persons than that which would be collected from others, in violation of § 2; to prefer particular persons to the disadvantage of others, in violation of § 3 (1) and to collect and receive compensation in excess of that fixed by tariff schedules, in violation of §6(7). These violations are made a crime by § 10.1 Petitioner 1 Section 10 reads in part as follows: “Any common carrier subject to the provisions of this part, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this part prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this part required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this part to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this part for which no penalty is otherwise provided, or who shall aid or abet therein, shall be deemed guilty of a misdemeanor . . .” HOWITT v. UNITED STATES. 191 189 Opinion of the Court. O’Rourke was charged with and convicted for committing substantive offenses of the same nature.2 The Circuit Court of Appeals affirmed. 150 F. 2d 82. We granted certiorari because this case raises important questions concerning the scope of the Act. The Government charged that there was a working agreement between petitioners and certain local hotel employees under which persons anxious to purchase railroad tickets would, in order to obtain them, pay amounts in excess of published rates either to petitioners directly, or to the hotel employees who in turn would divide the excess payments between themselves and petitioners.3 2 Ordinary violations of the Act are under § 10 punished only by imposition of a fine. But a proviso imposes a prison term if the violation consists of an unlawful discrimination. Petitioner O’Rourke contends that he was charged only with violating § 6 (7) rather than § 2, which is the unlawful discrimination section, and that he therefore could not be imprisoned under § 10. This contention is frivolous. The O’Rourke indictment clearly and explicitly also charges a violation of § 2. 3 An amicus brief filed with us contains the suggestion that a rather extensive paragraph of the court’s charge to the jury, to which exception was noted, contains language susceptible of the construction that acceptance of a “bona fide tip” might constitute a violation of the Interstate Commerce Act. We think that that language read in its context does not relate to bona fide tips but rather to excess charges which the prospective passenger was forced to pay and which were made to look like tips. Moreover, this paragraph of the charge also contains instructions that employees acting alone without participa- • tion by the railroad might be found guilty of violating the Act. The exception to the paragraph was a general one. In view of what petitioners argue here, what they argued on demurrer, and on the motion or directed verdict, it is likely that the exception was directed to these last-mentioned instructions and not to the language challenged y the amicus brief. Indeed, petitioners introduced no evidence to show that they were receiving bona fide tips, nor did they request any charge on the basis of this theory. If petitioners in excepting to e challenged paragraph of the charge had the “bona fide” tip ques- 192 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. The railroad played no part in these transactions. The Government produced a great deal of evidence to support these charges.4 Petitioners offered no testimony or other kind of evidence to contradict that produced by the Government. Their only contention was raised on demurrer, motion for directed verdict and exception to the charge of the jury. This contention, urged on several different grounds, was that the indictment failed to charge, and the evidence failed to establish a crime, since the Interstate Commerce Act and § 10 in particular are primarily aimed at railroads and do not make discriminatory and illegal charges by railroad employees for passenger transportation criminally punishable, unless the railroad is itself a party to the conduct. This is still the basis of petitioners’ arguments. It is well established that one of the primary aims of the Interstate Commerce Act and the amendments to it was to establish uniform treatment of users of transportation facilities. See Mitchell v. United States, 313 U. 8. 80, 94, 95. The Act again and again expressly condemns all kinds of discriminatory practices. Railroad employees can accomplish invidious transportation discrimination, whether or not their conduct is approved or participated in by their superiors. Not only do the Act’s provisions against discrimination and special favors fail to exempt tion in mind they should have specifically pointed this out to the trial court. See Allis v. United States, 155 U. S. 117, 121-123. The issue raised by the amicus brief as to whether the Act covers bona fide tips is therefore not before us. 4 The Circuit Court of Appeals said that this evidence “proved beyond question that the defendants repeatedly and systematically took advantage of the prevailing war-time congestion in transportation to exact from applicants for accommodations more money than the regular rate prescribed, and appropriated the difference to themselves.” TRADE COMM’N v. A. P. W. PAPER CO. 193 189 Syllabus. employees such as petitioners; but § 10 standing alone shows the clearest possible purpose to bar all railroad employees from overcharging for their own or for the railroad’s illegitimate gain. The Interstate Commerce Act imposes the same duty on ticket sellers and clerks of common carriers as that imposed on railroad officers or other employees: to treat all the public alike as to the terms and conditions of transportation. Railroad accommodations are thus not to depend upon who will or can pay more because of greater need or a longer purse. See United States v. Estes, 6 F. 2d 902,905. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. FEDERAL TRADE COMMISSION v. A. P. W. PAPER CO., INC. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 320. Argued February 4,1946.—Decided May 6,1946. Prior to 1905 respondent used "Red Cross” as a trade name and displayed the Red Cross symbol on its products. Section 4 of the American Red Cross Act of January 5, 1905, forbade “any person or corporation, other than the Red Cross of America, not now lawfully entitled to use the sign of the Red Cross, hereafter to use such sign ... for the purposes of trade or as an advertisement to induce the sale of any article whatsoever.” That section was amended in 1910 so as to forbid the use of the symbol or the words Red Cross” for the purpose of trade or as an advertisement “to induce the sale of any article” or “for any business or charitable purpose” by any person other than the American National Red Cross or the sanitary and hospital authorities of the army and °avy, except that “no person, corporation, or association that actu- 194 OCTOBER TERM, 1945. Syllabus. 328 U.S. ally used . . . the said emblem ... or words for any lawful purpose prior to” January 5, 1905 “shall be deemed forbidden by this Act to continue the use thereof . . .” The Geneva Convention of 1929, ratified by the United States in 1932, bound the contracting Governments to take or recommend to their legislatures such measures as might be necessary “to prevent the use by private persons ... of the emblem or the name of the Red Cross,” from the time set in the legislation and not later than five years after the effective date of the convention. Congress enacted no legislation to effectuate this undertaking. In 1942 the Federal Trade Commission charged petitioner with a violation of § 5 (a) of the Federal Trade Commission Act, as amended by the Act of March 21,1938, which makes unlawful “unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce.” After appropriate administrative proceedings, the Commission found that respondent’s use of the words and symbol were misleading to the purchasing public and ordered respondent to cease and desist from using the words “Red Cross” to describe its products and from displaying the symbol on them. Held: 1. Under the facts of this case, the Commission may not absolutely forbid the use of the words and symbol by respondent. Pp. 198,200, 204. (a) The 1910 Act granted, or at least recognized, the right of pre-1905 users to continue their use. P. 200. (b) This specific right was not intended to be swept away by the 1938 amendment to the Federal Trade Commission Act. P. 202. (c) Since Congress has taken no action to effectuate the undertaking in the Geneva Convention of 1929 to prevent their use by private persons, it does not impair the rights of good faith pre-1905 users granted or recognized by t£ie 1910 Act. P. 203. 2. Reading the 1910 and 1938 Acts in pari materia, the good faith use of the words and symbols by pre-1905 users is permissible; but the Commission may require the addition of language which removes any misleading inference that the products are in fact sponsored, approved, or in any manner associated with the Amen-can National Red Cross. P. 202. 3. The fashioning of the order which should be entered is entrusted to the Commission, which has wide latitude for judgment. P. 203. 149 F. 2d 424, affirmed. TRADE COMM’N v. A. P. W. PAPER CO. 195 193 Opinion of the Court. The Federal Trade Commission ordered respondent to cease and desist from using the words “Red Cross” to describe its products and from displaying the Greek red cross on them. 38 F. T. C. 1. On petition for review, the Circuit Court of Appeals reversed the Commission’s order and remanded the case to the Commission for the formulation of a new order which, though not forbidding the use of the words and symbol, might require statements which would avoid any inference that the goods were sponsored or approved or in any way connected with the American National Red Cross. 149 F. 2d 424. This Court granted certiorari. 326 U. S. 704. Affirmed, p. 204. Solicitor General McGrath argued the cause for petitioner. With him on the brief were Assistant Attorney General Berge, Charles H. Weston and W. T. Kelley. Edward H. Green argued the cause for respondent. With him on the brief was E. H. Sykes. Kenneth Perry and Hector M. Holmes filed a brief for Johnson & Johnson, as amicus curiae, urging affirmance. Mr. Justice Douglas delivered the opinion of the Court. Respondent manufactures and sells toilet tissues and paper towels in interstate commerce. On each package or roll of one brand are a Greek red cross and the words Red Cross”. Respondent registered the words “Red Cross” and the Red Cross symbol as a trade mark ; and it features them in its advertisements and on its letterheads. By § 4 of the American Red Cross Act of January 5, J905, 33 Stat. 600, 36 U. S. C. § 4, it was made unlawful for any person or corporation, other than the Red Cross 196 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. of America, not now lawfully entitled to use the sign of the Red Cross, hereafter to use such sign or any insignia colored in imitation thereof for the purposes of trade or as an advertisement to induce the sale of any article whatsoever.” That section was amended by the Act of June 23, 1910, 36 Stat. 604, 36 U. S. C. § 4. Sec. 4 of that Act made unlawful the use of the Greek red cross on a white ground or the words “Red Cross” for the purpose of trade or as an advertisement “to induce the sale of any article” or “for any business or charitable purpose” by any person other than the American National Red Cross1 or its duly authorized employees and agents or the sanitary and hospital authorities of the army and navy. It contained, however, a proviso which reads as follows: “That no person, corporation, or association that actually used or whose assignor actually used the said emblem, sign, insignia, or words for any lawful purpose prior to January fifth, nineteen hundred and five, shall be deemed forbidden by this Act to continue the use thereof for the same purpose and for the same class of goods.” Petitioner’s use of the trade name and emblem antedate January 5,1905.1 2 But in 1942 the Federal Trade Commis- 1 The Red Cross organization had its origin in a treaty drafted at the Geneva Convention in 1864 and acceded to by the United States in 1882. 22 Stat. 940. The American Association of the Red Cross was incorporated in 1881 under the laws of the District of Columbia. It was reincorporated in 1893 under the laws of the District of Columbia as the American National Red Cross. On June 6, 1900, it was incorporated under the same name by Act of Congress (31 Stat. 277) and was reincorporated January 5, 1905. 33 Stat. 599. From the time of its first incorporation in 1881 down to the present, it has used the words “Red Cross” as a part of its name and has also used the emblem adopted by the 1864 Geneva Convention, the Greek red cross on a white ground. 2 Toilet tissues were marketed by petitioner under that trade name and emblem since 1897 and paper towels since 1933. The trade-mar TRADE COMM’N v. A. P. W. PAPER CO. 197 193 Opinion of the Court. sion charged petitioner with a violation of § 5 (a) of the Federal Trade Commission Act, 38 Stat. 719, as amended 52 Stat. Ill, 15 U. S. C. § 45, which makes unlawful “unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce.” A hearing was had, findings were made and a cease and desist order was issued. The Commission found that “the use by respondent of the words ‘Red Cross’ and of the mark of the Greek red cross to designate its products has the tendency and capacity to mislead and deceive a substantial portion of the purchasing public, in that such name and mark represent or imply that respondent’s products are sponsored, endorsed, or approved by the Red Cross; that the Red Cross is financially interested in the sale of the products; that the products are used by the Red Cross; that the products are manufactured in accordance with sanitary standards set up by the Red Cross; or that there is some other connection between the products and the Red Cross. Not only are these, in the opinion of the Commission, reasonable inferences to be drawn from the use of the name and mark, but the record affirmatively shows that the name and mark are in fact so understood and interpreted by many members of the public.” The Commission also found that statements on respondent’s products that they are made by respondent and that the name and mark are registered “do not serve to correct the erroneous and misleading impression created through the use of the trade name and mark.” The Commission entered an order which, among other things, forbade respondent from using the words “Red Cross” to was first registered in the Patent Office in 1911 and was extended to cover piaper towels in 1934. ‘ The Commission made no finding as to whether the paper towels were of the same class of goods as the toilet tissue within the meaning °f the proviso to § 4 of the 1910 Act. 198 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. describe its products and from displaying the Greek red cross on them.3 38 F. T. C. 1. On a petition for review, the Circuit Court of Appeals, by a divided vote, reversed the order of the Commission. 149 F. 2d 424. It held that the order went beyond permissible limits in forbidding any use of the words and the mark. It remanded the case to the Commission for the formulation of a new order which, though not forbidding the use of the words and the symbol, might require statements which would avoid any inference that the goods were sponsored or approved or in any way connected with the American National Red Cross. The case is here on petition for a writ of certiorari which we granted because of the importance of the problem in the administration of the Federal Trade Commission Act. There is no suggestion that the pre-1905 use of the words and the symbol was an unlawful one within the meaning of either the 1905 or the 1910 Act. Nor has the Commission found that respondent has engaged in any fraudulent activity or made any untruthful statements in connection with its use of the words and the symbol. Therefore this is not a case where the words and symbols 8 It ordered respondent to cease and desist from “1. Using the words ‘Red Cross’ or any abbreviation or simulation thereof, either alone or in combination or connection with any other word or words, to designate, describe, or refer to respondent’s products. “2. Using or displaying on respondent’s products or in any advertisement of such products the mark of a Greek red cross, or any other mark, emblem, sign, or insignia simulating or resembling such cross. “3. Representing in any manner or by any means, directly or by implication, that respondent’s products are sponsored, endorsed, or approved by the Red Cross; that the Red Cross is financially interested in the sale of said products; that said products are used by the Red Cross; that said products are manufactured in accordance with sanitary standards set up by the Red Cross; or that there is any other connection between said products and the Red Cross.” TRADE COMM’N v. A. P. W. PAPER CO. 199 193 Opinion of the Court. were either adopted or used pursuant to a fraudulent design, aimed at creating the impression that these products were sponsored by or otherwise carried the imprimatur of the Red Cross. Hence, here, as in Jacob Siegel Co. v. Federal Trade Commission, 327 U. S. 608, we have no problem involving the power of the Commission to uproot a fraudulent scheme in its entirety. But it is argued that however lawful the earlier use may have been, it cannot survive a finding by the Commission that the use constitutes an unfair or deceptive act or practice in commerce. It is pointed out that the 1938 amendment to the Federal Trade Commission Act gave the Commission power to protect consumers, as well as competitors, against unfair or deceptive practices.4 It is said that there are no exceptions to that broad power and none should be implied from the Red Cross Act of 1910. The latter Act, it is said, confers no general rights but only a limited immunity and should not be construed as exempting pre-1905 users of the name and emblem from regulatory legislation of general application which Congress may from time to time enact for the protection of the public. It is also argued that by the Geneva Convention of 1929, which was ratified 4 In Federal Trade Commission v. Raladam Co., 283 U. S. 643, 647-648, the Court had ruled that, “The paramount aim of the act is the protection of the public from the evils likely to result from the destruction of competition or the restriction of it in a substantial degree, and this presupposes the existence of some substantial competition to be affected, since the public is not concerned in the maintenance of competition which itself is without real substance.” The 1938 amendment to § 5 of the Federal Trade Commission Act was designed to make “the consumer, who may be injured by an unfair trade practice, of equal concern, before the law, with the merchant or manufacturer injured by the unfair methods of a dishonest competitor.” H. Rep. No. 1613,75th Cong., 1st Sess., p. 3. And see S. Rep. No. 221, 75th Cong., 1st Sess., p. 3. 717466 O—47-17 200 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. by the United States5 in 1932, the United States agreed to prohibit the use by private persons of the name and the symbol and that the Red Cross Act and the Federal Trade Commission Act should not be construed in favor of conduct which this nation is under international obligation to terminate. We agree, however, with the Circuit Court of Appeals. It is clear that the 1910 Act granted, or at least recognized, the right of pre-1905 users to continue the use of the words and the symbol.6 The House Report stated that the Act as amended “will permit the use of the symbol by . . . such persons, corporations, and associations as actually used the emblem prior to January 5,1905, for the purposes 5 47 Stat. 2074. Article 28 provides in part (47 Stat. 2092): “The Governments of the High Contracting Parties whose legislation may not now be adequate shall take or shall recommend to their legislatures such measures as may be necessary at all times: “a) to prevent the use by private persons or by societies other than those upon which this Convention confers the right thereto, of the emblem or of the name of the Red Cross or Geneva Cross, as well as any other sign or designation constituting an imitation thereof, whether for commercial or other purposes; “The prohibition mentioned in subparagraph a) of the use of signs or designations constituting an imitation of the emblem or designation of the Red Cross or Geneva Cross, . . ■ shall take effect from the time set in each act of legislation and at the latest five years after this Convention goes into effect. After such going into effect it shall be unlawful to take out a trademark or commercial label contrary to such prohibitions.” 6 The manager of the bill which became the 1905 Act stated on the floor of the House during the debate that it would not “interfere with any lawful right now existing.” 39 Cong. Rec. 406. Judge Learned Hand, speaking of the 1910 Act in Loonen v. Deitsch, 189 F. 487, 492, stated: “Whatever may have been the policy before, Congress has now definitely declared in the proviso of the latter act that it would permit such marks if they antedated 1905. Congress had power so to legalize the use of it; the question of public policy was for it and for it alone, and it is now finally closed.” TRADE COMM’N v. A. P. W. PAPER CO. 201 193 Opinion of the Court. for which they were so entitled to use it and for the same class of goods. The section, as so amended, grants to the American National Red Cross the fullest protection it is possible to afford it by congressional enactment and at the same time amply protects the concerns possessing vested property rights in the emblem.” H. Rep. No. 1256, 61st Cong., 2d Sess., pp. 2-3. It is apparent from the terms of the 1905 Act and the 1910 Act7 that Congress was concerned not only with protecting the Red Cross against pretenders but also with protecting the public against the false impression that goods purchased were the products of the Red Cross or were sponsored by it. Congress, however, did not go the full distance. It preserved the right of earlier, good faith users to continue the use of the words and the symbol. It may have concluded that the mark which had been acquired was a valuable business asset 7 As we have already noted, the 1905 Act made it unlawful “for any person or corporation, other than the Red Cross of America, not now lawfully entitled to use the sign of the Red Cross, hereafter to use such sign or any insignia colored in imitation thereof for the purposes of trade or as an advertisement to induce the sale of any article whatsoever.” And § 4 of the 1910 Act, which we have already summarized, provided: “It shall be unlawful for any person, corporation, or association other than the American National Red Cross and its duly authorized employees and agents and the army and navy sanitary and hospital authorities of the United States for the purpose of trade or as an advertisement to induce the sale of any article whatsoever or for any business or charitable purpose to use within the territory of the United States of America and its exterior possessions the emblem of the Greek Red Cross on a white ground, or any sign or insignia made or colored in imitation thereof, or of the words Red Cross’ or ‘Geneva Cross’ or any combination of these words: Provided, however, That no person, corporation, or association that actually used or whose assignor actually used the said emblem, sign, insignia, or words for any lawful purpose prior to January fifth, nineteen hundred and five, shall be deemed forbidden by this Act to continue the use thereof for the same Purpose and for the same class of goods.” 202 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. which should not be destroyed. Or it may have thought that the extent and manner of the use by the established concerns were not likely to injure the public.8 But whatever the purpose, the fact remains that the good faith use of the mark by the pre-1905 users was intended to be preserved unimpaired. We cannot lightly infer that this specific right was intended to be swept away under the 1938 amendment to the Federal Trade Commission Act. Repeals by implication are not favored. Yet if the order of the Commission stands, the right granted or recognized by the 1910 Act becomes a nullity. For the use of the words and the symbol by good faith pre-1905 users becomes per se unlawful. As the 1910 Act, like the Federal Trade Commission Act, was in part directed towards protection of the public against deceptive practices, we think the two Acts must be read in pari materia. The problem is to reconcile the two, if possible, and to give effect to each. We think that may be done by recognizing that while the good faith use of the words and symbols by pre-1905 users is permissible, the Commission may require the addition of language which removes any misleading inference that the 8 Judge Learned Hand in Loonen v. Deitsch, supra, note 6, p. 489, stated : “Does the mark actually mean that the society is in any way concerned with the manufacture of the goods? I think not. We have become familiar with it in the past for many other uses than that of the society, though happily such uses will now slowly disappear. It had been used on hospital ambulances, upon medicaments, upon doctors’ motor cars, upon barber shops, upon laundries, and for military field service not connected with the Red Cross Society. In short, until the legislation of 1905 (Act Jan. 5, 1905, c. 23, 33 Stat. 599 [U. S. Comp. St. Supp. 1909, p. 1038]), it had been quite instinctively adopted for many uses which were congruous with the chief objects of the society, but which did not indicate that the society had anything to do with them, or certainly with the frequency of the use ceased to do so. Finally, Congress has clearly recognized that fact by permitting al those who prior to 1905 had used the mark lawfully, to continue. TRADE COMM’N v. A. P. W. PAPER CO. 203 193 Opinion of the Court. products are in fact sponsored, approved, or in any manner associated with the American National Red Cross. We need comment only briefly on the Geneva Convention of 1929, which was ratified by the United States in 1932.9 The undertaking “to prevent the use by private persons” of the words or symbol is a matter for the executive and legislative departments. The problem has been before the Congress in recent years.10 * No action has yet been taken. But we can find in that inaction no basis for concluding that the rights of good faith, pre-1905 users granted or recognized by the 1910 Act are today in any way impaired. Indeed, the existence of that right was recognized as giving rise to the need for additional legislation.11 That assumption can hardly be reconciled with the conclusion that complete relief is already accorded under the Federal Trade Commission Act. We do not undertake to prescribe the order which the Commission should enter. The fashioning of the remedy 9 See note 5, supra. 10 In the 77th Congress a bill to eliminate over a period of years the exemption given to pre-1905 users was favorably reported by the Committee on Foreign Affairs of the House. H. Rep. 2387, 77th Cong., 2d Sess. This proposed legislation was designed to discharge the obligation of the United States under the Geneva Convention of 1929. W., pp. 1,2,4. In the 78th Congress a bill passed the Senate with similar provisions. 90 Cong. Rec. 398, 401, 3656. It was reported favorably, with amendments, by the Committee on Foreign Affairs of the House. • keP- No. 2054, 78th Cong., 2d Sess. This proposed legislation was 1 ewise designed to discharge the obligation of the United States under the Geneva Convention of 1929. Id., pp. 4—6. And see 90 Cong. Rec. 399. See H. Rep. No. 2387, supra, note 10, pp. 2, 3; H. Rep. No. 2054, note 10, pp. 4-6. In the latter Report it was, indeed, recognized at under existing law, there are legal uses of the symbol by commercial users.” p. 4. 204 OCTOBER TERM, 1945. Syllabus. 328 U.S. is a matter entrusted to the Commission, which has wide latitude for judgment. Jacob Siegel Co. v. Trade Commission, supra. We only hold that under the facts of this case the Commission may not absolutely forbid the use of the words and the symbol by respondent. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. RECONSTRUCTION FINANCE CORPORATION v. BEAVER COUNTY. APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. No. 40. Argued April 30, 1946.—Decided May 13, 1946. By § 10 of the Reconstruction Finance Corporation Act, Congress forbade States and local governments to tax personal property of the R. F. C. or its subsidiaries, but provided that their “real property” shall be subject to state and local taxation “to the same extent according to its value as other real property is taxed.” An R. F. C. subsidiary acquired certain land in Pennsylvania, erected buildings thereon, and equipped them with machinery and attachments necessary for a manufacturing plant. Most of the machinery was heavy, not attached to the buildings, and was held in place by its own weight. Other portions were attached by easily removable screws and bolts. Some of the equipment could be moved from place to place in the plant. The plant was leased to a manufacturer of war equipment under a contract providing that the machinery should “remain personalty notwithstanding the fact it may be affixed or attached to realty.” The Supreme Court of Pennsylvania sustained the imposition of a tax by a county on the machinery, holding that it was real estate under a long-established rule in Pennsylvania applying to all essential machinery of a manufacturing pla^-Held: 1. The tax is sustained. P. 210. 2. The interpretation of Pennsylvania’s tax law by its Supreme Court is binding on this Court. P. 208. R. F. C. v. BEAVER COUNTY. 205 204 Counsel for Parties. 3. Pennsylvania’s definition of “real property” cannot govern if it conflicts with the scope of that term as used in the federal statute. P. 208. 4. By permitting local taxation of the real property, Congress made it impossible to apply the federal legislation with uniform consequences in each State and locality. P. 209. 5. The application of a local rule as to what is “real property” for tax purposes would not impair the congressional program for the production of war materials any more than the action of Congress in leaving the fixing of rates of taxation to local communities. Pp. 209, 210. 6. The congressional purpose can best be accomplished by the application of settled state rules as to what constitutes “real property,” so long as they do not effect a discrimination against the Government or run counter to the terms of the Act. P. 210. 7. Any other course would create the kind of confusion and resulting hampering of local tax machinery which Congress did not intend when it sought to integrate its permission to tax with local tax assessment and collection machinery. P. 210. 350 Pa. 520,39 A. 2d 713, affirmed. Appeal from a decision of the Supreme Court of Pennsylvania, 350 Pa. 520, 39 A. 2d 713, sustaining a tax on machinery of a manufacturing plant owned by the Defense Plant Corporation, a subsidiary of the R. F. C. Affirmed, p.210. Robert L. Stern argued the cause for appellant. With him on the brief were Solicitor General McGrath, John D. Goodloe, J. Bowers Campbell, Henry J. Crawford and Harold F. Reed. John G. Marshall and Edward G. Bothwell argued the cause and filed a brief for appellee. By special leave of Court, John L. Nourse, Deputy Attorney General of California, argued the cause for the btate of California, and Sherrill Halbert argued the cause or Stanislaus County, as amici curiae. With them on a 206 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. brief filed for that State, as amicus curiae, were Robert W. Kenny, Attorney General, Leslie A. Cleary and Harold W. Kennedy, urging affirmance. Edward G. Bothwell filed a brief for Allegheny County, Pa., as amicus curiae, in support of appellee. Mr. Justice Black delivered the opinion of the Court. By § 10 of the Reconstruction Finance Corporation Act, as amended, 47 Stat. 5, 9; 55 Stat. 248, Congress made it clear that it did not permit States and local governments to impose taxes of any kind on the franchise, capital, reserves, surplus, income, loans, and personal property of the Reconstruction Finance Corporation or any of its subsidiary corporations.1 Congress provided in the same section that “any real property” of these governmental agencies “shall be subject to State, Territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed.” The Supreme Court of Pennsylvania sustained the imposition of a tax on certain machinery owned and used in Beaver County, Pennsylvania, by the Defense Plant Corporation, an RFC subsidiary.1 2 The question presented on this appeal from the Supreme Court judgment is whether the Supreme Court’s holding that this machinery is “subject to a local “real property” tax means that the Pennsylvania tax statute, 72 Purdon’s Pennsylvania Stat. (1936) 5020— 201, as applied, conflicts with § 10 of the Reconstruction Finance Corporation Act. This appeal, thus, challenges the validity of a state statute sustained by the highest 1 As to the constitutional tax immunity of governmental properties see United States v. County of Allegheny, 322 U. S. 174. See also Pittman n. Home Owners' Loan Corporation, 308 U. S. 21; Maricopa County v. Valley National Bank, 318 U. S. 357. 2 350 Pa. 520, 39 A. 2d 713. R. F. C. v. BEAVER COUNTY. 207 204 Opinion of the Court. court of the State and raises a substantial federal question. We have jurisdiction under 28 U. S. C. § 344 (a) and appellee’s motion to dismiss is denied. In 1941 Defense Plant Corporation 3 acquired certain land in Beaver County. It erected buildings on the.property and equipped them with machinery and attachments necessary and essential to the existence and operation of a manufacturing plant for aircraft propellers. The plant, thus fully equipped, was leased to Curtiss-Wright Corporation, to carry out its war contracts with the Government for the manufacture of propellers. Most of the machinery was heavy, not attached to the buildings, and was held in place by its own weight. Other portions of the machinery were attached by easily removable screws and bolts, and some of the equipment and fixtures could be moved from place to place within the plant. The lease contract with Curtiss-Wright authorized the Government to receive and to replace existing equipment, and parts of the machinery appear to have been frequently interchanged and replaced as the convenience of the Government required. The lease contract also provided that the machinery should “remain personalty notwithstanding the fact it may be affixed or attached to realty.” The Government contends that under these circumstances the machinery was not “real” but was “personal” property, and that therefore its taxation was forbidden by Congress. The “real property” which Congress made subject” to state taxation should in the Government’s view be limited to “land and buildings and those fixtures 3 By joint resolution of Congress, 59 Stat. 310, Defense Plant Corporation was dissolved and all of its functions, powers, duties and labilities were transferred to Reconstruction Finance Corporation, ursuant to this joint resolution this Court granted a motion to sub-s itute Reconstruction Finance Corporation as party appellant in succession to Defense Plant Corporation. 208 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. which are so integrated with the buildings as to be uniformly, or, at most, generally, regarded as real property.” “Real property,” within this definition, would include buildings and “fixtures as are essential to a building’s operations” but would not include fixtures, movable machinery, or equipment, which, though essential to applicant’s operations as a plant, are not essential to a building’s operation as a building. The county would, for tax purposes, define real property so as to treat machinery, equipment, fixtures, and the land on which a manufacturing establishment is located as an integral real property unit. This is in accord with the view of the State’s Supreme Court which made the following statement in sustaining the tax here involved: “It has long been the rule in Pennsylvania that ‘Whether fast or loose, therefore, all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for a part of the freehold.’ . . . Appellant’s machinery, being an integrated part of the manufactory, and so, of the freehold, was therefore taxable” under Pennsylvania’s definition of real property. This interpretation of Pennsylvania’s tax law is of course binding on us. But Pennsylvania’s definition of “real property” cannot govern if it conflicts with the scope of that term as used in the federal statute. What meaning Congress intended is a federal question which we must determine. The 1941 Act does not itself define real property. Nor do the legislative reports or other relevant data provide any single decisive piece of evidence as to congressional intent.4 Obviously, it could have intended either, as the 4 The 1941 amendments to § 10 added among others the following provision: . . such exemptions shall not be construed to be appi'" cable in any State to any buildings which are considered by the laws of such State to be personal property for taxation purposes.’ The Government contends that this indicates a congressional intent to R. F. C. v. BEAVER COUNTY. 209 204 Opinion of the Court. Government argues, that content be given to the term “real property” as a matter of federal law, under authoritative decisions of this Court, or, as the county contends, that the meaning of the term should be its meaning under local tax laws so long as those tax laws were not designed to discriminate against the Government. In support of its contention that a federal definition of real property should be applied, the Government relies on the generally accepted principle that Congress normally intends that its laws shall operate uniformly throughout the nation so that the federal program will remain unimpaired. Jerome v. United States, 318 U. S. 101, 104; Commissioner v. Tower, 327 U. S. 280. But Congress, in permitting local taxation of the real property, made it impossible to apply the law with uniform tax consequences in each State and locality. For the several States, and even the localities within them, have diverse methods of assessment, collection, and refunding. Tax rates vary widely. To all of these variable tax consequences, Congress has expressly subjected the “real property” of the Defense Plant Corporation. In view of this express provision, the normal assumption that Congress intends its law to have the same consequences throughout the nation cannot be made. Furthermore, Congress, had it desired complete nationwide uniformity as to tax consequences, could have stipulated for fixed payments in lieu of taxes, as it has done m other statutes.5 Nor can we see how application of a establish a uniform meaning of the term “real property” regardless of local rules. But the addition also might be taken to indicate that Congress understood that without it under the language of § 10 the local rule would be followed with respect to taxing buildings. In our opinion the addition of the above-quoted language does not tend to lead to one conclusion or the other. 5 See, e. g., 42 U. S. C. 1546. See also list of Acts in Federal Contributions to States and Local Governmental Units with Respect to ederally Owned Real Estate, House Document No. 216, pp. 39-41. 210 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. local rule governing what is “real property” for tax purposes would impair the congressional program for the production of war materials any more than the program would be impaired by the action of Congress in leaving the fixing of rates of taxation to local communities. We think the congressional purpose can best be accomplished by application of settled state rules as to what constitutes “real property,” so long as it is plain, as it is here, that the state rules do not effect a discrimination against the Government, or patently run counter to the terms of the Act. Concepts of real property are deeply rooted in state traditions, customs, habits, and laws. Local tax administration is geared to those concepts. To permit the States to tax, and yet to require them to alter their long-standing practice of assessments and collections, would create the kind of confusion and resultant hampering of local tax machinery which we are certain Congress did not intend. The fact that Congress subjected Defense Plant Corporation’s properties to local taxes “to the same extent according to its value as other real property is taxed” indicated an intent to integrate congressional permission to tax with established local tax assessment and collection machinery. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. WOODS v. NIERSTHEIMER. 211 Syllabus. WOODS v. NIERSTHEIMER, WARDEN. NO. 631. CERTIORARI TO THE CIRCUIT COURT OF RANDOLPH COUNTY, ILLINOIS.* Argued May 2, 1946.—Decided May 20, 1946. More than five years after his conviction for murder on an alleged plea of guilty, petitioner petitioned two Illinois courts for writs of habeas corpus, alleging circumstances which, if true, were sufficient to show that he had been convicted without due process of law in violation of the Fourteenth Amendment. Each court denied the petition without an opinion, on the ground that it failed to state a cause of action. These orders were not appealable to a higher state court. It appeared that the proper remedy under Illinois law was not a writ of habeas corpus but a statutory substitute for a writ of error coram nobis, in respect of which there was a five-year limitation. Held: 1. Since the orders denying writs of habeas corpus were not appealable to a higher state court, this Court is authorized to review them if they are based on decisions of federal questions. P. 213. 2. Since it appears that the petitions for writs of habeas corpus probably were denied because that was not the proper remedy under Illinois law, the judgments do not clearly present federal questions. P. 216. 3. The situation is not altered by the fact that the five-year statute of limitations on the proper remedy has expired, since it is not known whether the state courts will construe the statute as depriving petitioner of his right to challenge a judgment rendered in violation of constitutional guaranties. P. 216. 4. Whether petitioner will be denied any remedy in the state courts will not be known until they have passed on a petition for the proper remedy under state law. P. 216. 5. If the State should at all times deny all remedies to persons imprisoned in violation of the Constitution, the federal courts would be available to provide a remedy to correct such wrongs. P. 217. Dismissed. *Together with No. 671, Woods v. Nierstheimer, Warden, on certiorari to the Criminal Court of Cook County, Illinois, argued and decided on the same dates. 212 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Petitioner was denied writs of habeas corpus by state courts from which there was no appeal. This Court granted certiorari. 327 U. S. 772. Dismissed, p. 217. Edward H. Levi argued the cause and filed a brief for petitioner. William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief was George F. Barrett, Attorney General. Mr. Justice Black delivered the opinion of the Court. In 1940 the petitioner was indicted for murder in the Criminal Court of Cook County, Illinois. Adjudged to be guilty on an alleged plea of guilty, he was sentenced to serve ninety-nine years in the state penitentiary. In 1945 he filed two identical petitions for habeas corpus, one in the Criminal Court of Cook County and the other in the Randolph County Circuit Court. In summary the allegations of these petitions were: On March 8th or 9th, 1940, Chicago policemen came to petitioner’s home, accused him of murder, and arrested him. For a period of four days these policemen subjected him to mistreatment in an effort to force him to confess to the crime of murder. The policemen allegedly abused him, beat him with their hands, with blackjacks, and with clubs. At the end of four days, under threat of instant death if he failed to do so, petitioner signed a paper which he later discovered to be a confession. Petitioner averred that he was unable to employ counsel, that he had no counsel, and that he did not consult with counsel during the next two months while he was confined to jail. According to the allegations, petitioner was brought into court at the end of that period, and a public defender appeared as WOODS v. NIERSTHEIMER. 213 211 Opinion of the Court. his counsel; but the public defender declined to permit petitioner to explain the circumstances surrounding the confession. Moreover, despite petitioner’s repeated assertion of his innocence, the defender allegedly entered a plea of guilty on behalf of petitioner. The allegations further assert that the public defender and the State’s attorney threatened petitioner by telling him that he would burn in the electric chair if he did not keep his mouth shut, and that despite these threats petitioner pleaded not guilty and never did at any time consent to the guilty plea which is the basis for his ninety-nine year sentence. Petitioner’s contention before the two trial courts was that a judgment and sentence under these circumstances amounted to a denial of due process of law in violation of the Fourteenth Amendment to the United States Constitution. The Randolph County Circuit Court denied petitioner’s application for habeas corpus “for want of jurisdiction and failure to state a cause of action.” The Cook County Criminal Court granted the State’s motion to dismiss, made on the ground that the petition on its face failed to state a cause of action. In neither court was petitioner afforded an opportunity to offer evidence to prove his allegations. Neither court wrote an opinion explaining its order. Since Illinois does not provide for appellate review of an order denying a petition for a writ of habeas corpus, the orders here involved were entered by the highest courts of the State that could have entered them. See White v. Ragen, 324 U. S. 760. This Court is consequently authorized to review these orders if they are based on decisions of federal questions. Tucker v. Texas, 326 U. S. 517. Because of the serious violations of the Fourteenth Amendment alleged by the petitioner, and because of uncertainty as to whether denial of his petitions rested on an adequate state ground, we granted certiorari. 214 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. The State, through its Attorney General, concedes that the allegations of the petitions for habeas corpus, if true, would show that conviction and sentencing of the petitioner violated the due process clause of the Fourteenth Amendment. The State contends, however, that the applications for habeas corpus were not denied on the ground that the allegations, if proved, would fail to show a violation of due process. According to the State, the denials of petitioner’s applications rested on the separate and distinct ground that in the Illinois state courts habeas corpus is not the proper remedy for relief from judgments violating due process of law in the manner here alleged. The contention is that the exclusive relief against such judgments is provided by a statutory substitute for the common law writ of error coram nobis, Ch. 110, par. 196, Illinois Revised Statutes, 1945. The petitioner counters by calling attention to the fact that the statutory remedy is not available unless brought within five years after the rendition of a judgment; that the judgment and sentence against petitioner was rendered more than five years ago; that consequently, if petitioner has no remedy for habeas corpus, he has no remedy at all; that we should not assume that Illinois grants no relief to one whose imprisonment violates rights protected by the United States Constitution, cf. Smith v. O’Grady, 312 U. S. 329; and that we should therefore hold that habeas corpus is available to the petitioner. From our investigation of the law of the State of Illinois we conclude that the denials of the applications in this case could have rested, and probably did rest, on the ground that habeas corpus is not the proper remedy in cases such as the one before us. For this reason we are without power to review the judgments, see Williams v. Kaiser, 323 U. S. 471, 477, and the writs of certiorari must be dismissed. The Supreme Court of Illinois has repeatedly held that a court of the State has jurisdiction of a WOODS v. NIERSTHEIMER. 215 211 Opinion of the Court. habeas corpus proceeding only where the original judgment of conviction was void or where something has happened since its rendition to entitle the petitioner to his release. According to Illinois Supreme Court decisions, this means that if the petition and return in the habeas corpus proceeding show that the court which rendered the original judgment had jurisdiction over the person and over the subject matter, and nothing has happened since the conviction to entitle the applicant to his release, the court to which the petition is addressed lacks power to discharge the prisoner.1 The petitions for habeas corpus here involved did not challenge the court’s jurisdiction over the person, nor did they allege that anything had happened since the rendition of the judgment which would entitle the petitioner to his release. The allegations that petitioner did not consent to the guilty plea and that he was not represented by proper counsel, moreover, did not challenge jurisdiction over the subject matter, within the meaning of that term as used in defining the power of Illinois courts to release prisoners on habeas corpus.1 2 1 See e. g. People v. Zimmer, 252 Ill. 9, 96 N. E. 529, and cases discussed; People v. Siman, 284 Ill. 28, 32, 119 N. E. 940; People v. Shurtlefi, 355 Ill. 210, 189 N. E. 291; People v. Thompson, 358 Ill. 81, 192 N. E. 693; People v. Bradley, 391 Ill. 169, 62 N. E. 2d 788. 2 See People v. Fisher, 340 Ill. 250,172 N. E. 722, where the Supreme Court of Illinois made the following statement on p. 260: ‘If the jury is an essential part of the tribunal without which the court has no jurisdiction of the subject matter, it is not discernible how, upon a plea of guilty in a criminal case, a valid judgment can be rendered. Yet the power of the court, without a jury, upon such a plea, to find the defendant guilty and render judgment is unquestioned. A court’s jurisdiction of the subject matter is not determined by the plea whicji a person charged with crime may interpose. Before he appeared at the bar of the tribunal, it either was or was not vested with jurisdiction of the subject matter of his cause. If the court possessed such jurisdiction, it was conferred by or pursuant to some provision of the constitution, and not by the act or consent of the defendant.” 717466 O—47--18 216 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Consequently, it seems highly probable that under the Illinois decisions the writ of habeas corpus was not the proper remedy in this case. That this is so is further borne out by the fact that in Illinois orders denying petitions for habeas corpus are not subject to appellate review. People v. McAnally, 221 Ill. 66, 68, 77 N. E. 544. We cannot assume that Illinois would so far depart from its general appellate procedure as to deny appellate review of orders denying applications for habeas corpus, if such applications were the proper procedure for challenging violations of fundamental rights to life and liberty guaranteed by the United States Constitution. Since the record thus shows that petitioner’s applications for a writ of habeas corpus were probably denied because he did not seek the proper remedy under Illinois law, it does not appear that the judgments we are asked to review do not rest on an adequate non-federal ground. Nor do the denials of petitioner’s applications for habeas corpus present a federal question merely because the five-year statute of limitations on the statutory substitute for the writ of error coram nobis has expired. Petitioner claims that this leaves him without any remedy in the state courts. But we do not know whether the state courts will construe the statute so as to deprive petitioner of his right to challenge a judgment rendered in violation of constitutional guarantees where his action is brought more than five years after rendition of the judgment. Nor can we at this time pass upon the suggestion that the Illinois statute so construed would itself violate due process of law in that a denial of that remedy, together with a denial of the writ of habeas corpus, would, taken together, amount to a complete deprivation of a state remedy where constitutional rights have been denied. We would reach that question only after a denial of the statutory substitute for the writ of error coram nobis based on the statute THIEL v. SOUTHERN PACIFIC CO. 217 211 Syllabus. of limitations had been affirmed by the Supreme Court of the State.3 Furthermore, it cannot be doubted that if the State of Illinois should at all times deny all remedies to individuals imprisoned within the State in violation of the Constitution of the United States, the federal courts would be available to provide a remedy to correct such wrongs. Ex parte Hawk, 321 U. S. 114. Dismissed. Mr. Justice Jackson took no part in the consideration or decision of these cases. THIEL v. SOUTHERN PACIFIC CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 349. Argued March 25,1946.—Decided May 20,1946. 1. A federal court jury panel from which persons who work for a daily wage were intentionally and systematically excluded held unlawfully constituted. Pp. 221, 225. 2. Such discrimination against daily wage earners as a class was not justified by either federal or California law. P. 222. 3. The choice of the means by which unlawful distinctions and discriminations in the selection of jury panels are to be avoided rests largely in the sound discretion of the trial courts and their officers. P.220. 4. The pay period of an individual is irrelevant to his eligibility and capacity to serve as a juror. P. 223. 5. Although a federal judge may be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship, that fact can not support the complete exclusion of all daily wage earners regardless of whether there is actual hardship involved. P.224. A judgment in a coram nobis proceeding is final and appealable m Illinois. See People v. Green, 355 Ill. 468,189 N. E. 500. 218 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. 6. Jury service is a duty as well as a privilege of citizenship. A claim of financial embarrassment will excuse only when a real burden or hardship would be imposed. P. 224. 7. A judgment of the District Court in a case in which that court denied a motion to strike a jury panel from which persons who work for a daily wage were intentionally and systematically excluded is here reversed by this Court in the exercise of its power of supervision over the administration of justice in the federal courts. P.225. 8. It is unnecessary in this case to determine whether the unsuccessful litigant was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class. P. 225. 9. Nor is it material that the jury which actually decided the factual issue in this case was found to include at least five persons who were of the laboring class though not per diem workers. P. 225. 149 F. 2d 783, reversed. Petitioner brought suit in a state court against the railroad company to recover damages for alleged negligence in its treatment of him while a passenger on one of its trains. On application of the railroad company, the suit was removed to the federal district court on the ground of diversity of citizenship. The judgment of the District Court, upon a trial by jury, was in favor of the railroad company. The Circuit Court of Appeals affirmed. 149 F. 2d 783. This Court granted certiorari limited to the question whether petitioner’s motion to strike the jury panel was properly denied by the District Court. 326 U. S. 716. Reversed, p. 225. Allen Spivock argued the cause and filed a brief for petitioner. Arthur B. Dunne argued the cause and filed a brief for respondent. Mr. Justice Murphy delivered the opinion of the Court. Petitioner, a passenger, jumped out of the window of a moving train operated by the respondent, the Southern THIEL v. SOUTHERN PACIFIC CO. 219 217 Opinion of the Court. Pacific Company. He filed a complaint in a California state court to recover damages, alleging that the respondent’s agents knew that he was “out of his normal mind” and should not be accepted as a passenger or else should be guarded and that, having accepted him as a passenger, they left him unguarded and failed to stop the train before he finally fell to the ground. At respondent’s request the case was removed to the Federal District Court at San Francisco on the ground of diversity of citizenship, respondent being a Kentucky corporation. Several vain attempts were then made by the petitioner to obtain a remand of the case to the state court; petitioner was also restrained from attempting to proceed further in the state court.1 After demanding a jury trial, petitioner moved to strike out the entire jury panel, alleging inter alia that “mostly business executives or those having the employer’s viewpoint are purposely selected on said panel, thus giving a majority representation to one class or occupation and discriminating against other occupations and classes, particularly the employees and those in the poorer classes who constitute, by far, the great majority of citizens eligible for jury service ...” Following a hearing at which testimony was taken, the motion was denied. Petitioner then attempted to withdraw his demand for a jury trial but the respondent refused to consent. A jury of twelve was chosen. Petitioner thereupon challenged these jurors upon the same grounds previously urged in relation to the entire jury panel and upon the further ground that six of the twelve jurors were closely affiliated and connected with the respondent. The court denied this challenge. The trial proceeded and the jury returned a verdict for the respondent. 1 The injunction against petitioner proceeding in the state court was affirmed upon appeal. Thiel v. Southern Pacific Co., 126 F. 2d 710; certiorari denied, 316 U. S. 698. 220 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Petitioner renewed his objections in his motion to set aside the verdict or, in the alternative, to grant a new trial. In denying this motion the court orally found that five of the twelve jurors “belong more closely and intimately with the working man and employee class than they do with any other class” and that they might be expected to be “sympathetic with the experiences in life, the affairs- of life, and with the economic views, of people who belong to the working or employee class.” The Ninth Circuit Court of Appeals affirmed the judgment in its entirety, 149 F. 2d 783, and we brought the case here on certiorari “limited to the question whether petitioner’s motion to strike the jury panel was properly denied.” The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U. S. 128, 130; Glasser v. United States, 315 U. S. 60, 85. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury. The choice of the means by which unlawful distinctions and discriminations are to be avoided rests largely in the sound discretion of the trial courts and their officers. This THIEL v. SOUTHERN PACIFIC CO. 221 217 Opinion of the Court. discretion, of course, must be guided by pertinent statutory provisions. So far as federal jurors are concerned, they must be chosen “without reference to party affiliations,” 28 U. S. C. § 412; and citizens cannot be disqualified “on account of race, color, or previous condition of servitude,” 28 U. S. C. § 415. In addition, jurors must be returned from such parts of the district as the court may direct “so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service,” 28 U. S. C. § 413. For the most part, of course, the qualifications and exemptions in regard to federal jurors are to be determined by the laws of the state where the federal court is located, 28 U. S. C. § 411.2 Pointer v. United States, 151 U. S. 396. A state law creating an unlawful qualification, however, is not binding and should not be utilized in selecting federal jurors. See Kie v. United States, 27 F. 351,357. The undisputed evidence in this case demonstrates a failure to abide by the proper rules and principles of jury selection. Both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage. They generally used the city directory as the 2 Federal statutes prohibit the service by any person as a petit juror 'more than one term in a year,” 28 U. S. C. § 423, exempt from jury service artificers and workmen employed in the armories and arsenals of the United States, 50 U. S. C. § 57, and set up disqualifications for service as a juryman or talesman “in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States,” 28 U. S. C. § 426. See, in general, Blume, “Jury Selection Analyzed: Proposed Revision of Federal System,” 42 Mich. L. Rev. 831; Report to the Judicial Conference of Senior Circuit Judges of the United States of the Committee on Selection of Jurors (1942); Report of the Commission on the Administration of Justice in New York (1934). 222 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. source of names of prospective jurors. In the words of the clerk, “If I see in the directory the name of John Jones and it says he is a longshoreman, I do not put his name in, because I have found by experience that that man will not serve as a juror, and I will not get people who will qualify. The minute that a juror is called into court on a venire and says he is working for $10 a day and cannot afford to work for four, the Judge has never made one of those men serve, and so in order to avoid putting names of people in who I know won’t become jurors in the court, won’t qualify as jurors in this court, I do leave them out. . . . Where I thought the designation indicated that they were day laborers, I mean they were people who were compensated solely when they were working by the day, I leave them out.” The jury commissioner corroborated this testimony, adding that he purposely excluded “all the iron craft, bricklayers, carpenters, and machinists” because in the past “those men came into court and offered that [financial hardship] as an excuse, and the judge usually let them go.” The evidence indicated, however, that laborers who were paid weekly or monthly wages were placed on the jury lists, as well as the wives of daily wage earners. It was further admitted that business men and their wives constituted at least 50% of the jury lists, although both the clerk and the commissioner denied that they consciously chose according to wealth or occupation. Thus the admitted discrimination was limited to those who worked for a daily wage, many of whom might suffer financial loss by serving on juries at the rate of $4 a day and would be excused for that reason. This exclusion of all those who earn a daily wage cannot be justified by federal or state law. Certainly nothing in the federal statutes warrants such an exclusion. And the California statutes are equally devoid of justification for THIEL v. SOUTHERN PACIFIC CO. 223 217 Opinion of the Court. the practice. Under California law a daily wage earner may be fully competent as a juror. A juror, to be competent, need only be a citizen of the United States over the age of 21, a resident of the state and county for one year preceding selection, possessed of his natural faculties and of ordinary intelligence and not decrepit, and possessed of sufficient knowledge of the English language. California Code of Civil Procedure, § 198. Cf. § 199. Nor is a daily wage earner listed among those exempt from jury service. § 200. And under the state law, “A juror shall not be excused by a court for slight or trivial causes, or for hardship, or for inconvenience to said juror’s business, but only when material injury or destruction to said juror’s property or of property entrusted to said juror is threatened ...” § 201. Moreover, the general principles underlying proper jury selection clearly outlaw the exclusion practiced in this instance. Jury competence is not limited to those who earn their livelihood on other than a daily basis. One who is paid $3 a day may be as fully competent as one who is paid 830 a week or 8300 a month. In other words, the pay period of a particular individual is completely irrelevant to his eligibility and capacity to serve as a juror. Wage earners, including those who are paid by the day, constitute a very substantial portion of the community,3 a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system. Were we to sanction an exclusion of this nature we would encourage whatever desires those responsible for the selection of jury panels may have to discriminate against persons of low In the San Francisco-Oakland industrial area in 1939 there were 76,374 wage earners employed by manufacturers out of a total population (as of 1940) of 1,412,686. Sixteenth Census of the United States: 1940, Manufactures 1939, Vol. Ill, p. 80. 224 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. economic and social status. We would breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged. That we refuse to do. It is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship.4 But that fact cannot support the complete exclusion of all daily wage earners regardless of whether there is actual hardship involved. Here there was no effort, no intention, to determine in advance which individual members of the daily wage earning class would suffer an undue hardship by serving on a jury at the rate of $4 a day. All were systematically and automatically excluded. In this connection it should be noted that the mere fact that a person earns more than $4 a day would not serve as an excuse. Jury service is a duty as well as a privilege of citizenship; it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power. Only when the financial embarrassment is such as to impose a real burden and hardship does a valid excuse of this nature appear. Thus a blanket exclusion of all daily wage earners, however well-intentioned and however justified by prior actions of trial judges, must be counted among those tendencies which undermine and weaken the institution of jury trial. “That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may, one by 4 See statement of Judge John C. Knox in Hearings before the House Committee on the Judiciary, 79th Cong., 1st Sess., on H. R. 3379, H. R. 3380 and H. R. 3381, Serial No. 3, June 12 and 13, 1945, p. 4. “. . . when jurors’ compensation is limited to $4 per day, and when their periods of service are often protracted, thousands upon thousands of persons simply cannot afford to serve. To require them to do so is nothing less than the imposition upon them of extreme hardship.” Id., p. 8. THIEL v. SOUTHERN PACIFIC CO. 225 217 Frankfurter, J., dissenting. one, lead to the irretrievable impairment of substantial liberties.” Glasser v. United States, supra, 86. It follows that we cannot sanction the method by which the jury panel was formed in this case. The trial court should have granted petitioner’s motion to strike the. panel. That conclusion requires us to reverse the judgment below in the exercise of our power of supervision over the administration of justice in the federal courts. See McNabb v. United States, 318 U. S. 332,340. On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class. See Glasser v. United States, supra; Walter v. State, 208 Ind. 231,195 N. E. 268; State ex rel. Passer n. County Board, 171 Minn. 177, 213 N. W. 545. It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laboring class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards, to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, with whom Mr. Justice Reed concurs, dissenting. This was a suit brought by the petitioner, a salesman, against the Southern Pacific Company for injuries suffered by him while a passenger on one of the Railroad’s trains, and attributed to the Company’s negligence. The trial was in the United States District Court sitting in San Francisco. The jury rendered a verdict against the peti- 226 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. tioner. The District Court found no ground for setting it aside and entered judgment on the verdict. Upon full review of the trial, the Circuit Court of Appeals for the Ninth Circuit affirmed the judgment. 149 F. 2d 783. Thus, a verdict arrived at by a jury whose judgment on the merits the District Court has found unassailable, which the Circuit Court of Appeals has affirmed on the merits, and which this Court has refused to review on the merits, 326 U. S. 716, is here nullified because of an abstract objection to the manner in which the district judges for the Northern District of California have heretofore generally discharged their duty, with the approval of the reviewing judges of the Ninth Circuit, to secure appropriate jury panels. The process of justice must of course not be tainted by property prejudice any more than by racial or religious prejudice. The task of guarding against such prejudice devolves upon the district judges, who have the primary responsibility for the selection of jurors, and the circuit judges, whose review of verdicts is normally final. It is embraced in the duty, formulated by the judicial oath, to “administer justice without respect to persons, and do equal right to the poor and to the rich ...” 1 Stat. 73, 76, 36 Stat. 1087, 1161; 28 U. S. C. § 372. But it is not suggested that the jury was selected so as to bring property prejudice into play in relation to this specific case or type of case, nor is there the basis for contending that the trial judge allowed the selective process to be manipulated in favor of the particular defendant. No such claim is now sustained. Neither is it claimed that the district judges for the Northern District of California, with the approval of the circuit judges, designed racial, religious, social, or economic discrimination to influence the makeup of jury panels, or that such unfair influence infused the selection of the panel, or was reflected in those who were THIEL v. SOUTHERN PACIFIC CO. 227 217 Frankfurter, J., dissenting. chosen as jurors in this case. Nor is there any suggestion that the method of selecting the jury in this case was an innovation. What is challenged is a long-standing practice adopted in order to deal with the special hardship which jury service entails for workers paid by the day. What is challenged, in short, is not a covert attempt to benefit the propertied but a practice designed, wisely or unwisely, to relieve the economically least secure from the financial burden which jury service involves under existing circumstances. No constitutional issue is at stake. The problem is one of judicial administration. The sole question over which the Court divides is whether the established practice in the Northern District of California not to call for jury duty those otherwise qualified but dependent on a daily wage for their livelihood requires reversal of a judgment which is inherently without flaw. Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case. Since the color of a man’s skin is unrelated to his fitness as a juror, negroes cannot be excluded from jury service because they are negroes. F. g., Carter v. Texas, 177 U. S. 442. A group may be excluded for reasons that are relevant not to their fitness but to competing considerations of public interest, as is true of the exclusion of doctors, ministers, lawyers, and the like. Rawlins v. Georgia, 201 U. S. 638. But the broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility. See Smith v. Texas, 311 U.S. 128,130. Obviously these accepted general considerations must have much leeway in application. In the abstract the Court acknowledges this. “The choice of the means by 228 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. which unlawful distinctions and discriminations are to be avoided rests largely in the sound discretion of the trial courts and their officers.” Congress has made few inroads upon this discretion. Its chief enactment underlines the importance of avoiding rigidities in the jury system and recognizes that ample play must be allowed the joints of the machinery. The First Judiciary Act adopted for the federal courts the qualifications and exemptions, with all their diversities, prevailing in the States where the federal courts sit. 1 Stat. 73, 88. That has remained the law. 36 Stat. 1087, 1164; 28 U. S. C. § 411. (For a collection of federal statutes regulating the composition and selection of jurors, see 37 Harv. L. Rev. 1010,1098-1100.) We would hardly have taken this case to consider whether the federal court in San Francisco deviated from the requirements of California law, and nothing turns on that here. But it is not without illumination that under California law all those belonging to this long string of occupations are exempted from jury service: judicial, civil, naval, and military officers of the United States or California; local government officials; attorneys, their clerks, secretaries, and stenographers; ministers; teachers; physicians, dentists, chiropodists, optometrists, and druggists; officers, keepers, and attendants at hospitals or other charitable institutions; officers in attendance at prisons and jails; employees on boats and ships in navigable waters; express agents, mail carriers, employees of telephone and telegraph companies; keepers of ferries or tollgates ; national guardsmen and firemen; superintendents, engineers, firemen, brakemen, motormen, or conductors of railroads; practitioners treating the sick by prayer. California Code of Civil Procedure, § 200. Placed in its proper framework the question now before us comes to this: Have the district judges for the Northern District of California, supported by the circuit judges of THIEL v. SOUTHERN PACIFIC CO. 229 217 Frankfurter, J., dissenting. the Ninth Circuit, abused their discretion in sanctioning a practice of not calling for jury duty those who are dependent upon a daily wage for their livelihood? The precise issue must be freed from all atmospheric innuendoes. Not to do so is unfair to the administration of justice, which should be the touchstone for the disposition of the judgment under challenge, and no less unfair to a group of judges of long experience and tested fidelity. If workmen were systematically not drawn for the jury, the practice would be indefensible. But concern over discrimination against wage earners must be put out of the reckoning. Concededly those who are paid weekly or monthly wages were placed on the jury lists. And that no line was drawn against the wage earners because they were wage earners, and that there was merely anticipatory excuse of daily wage earners, is conclusively established by the fact that the wives of such daily wage earners were included in the jury lists. As to any claim of the operation of a designed economic bias in the method of selecting the juries, the Circuit Court of Appeals rightly found “no evidence that the persons whose names were in the box, or the persons whose names were drawn therefrom and who thus became members of the panel, were ‘mostly business executives or those having the employer’s viewpoint.’ ” 149 F. 2d 783,786. When the question is narrowed to its proper form the answer does not need much discussion. The nature of the classes excluded was not such as was likely to affect the conduct of the members as jurymen, or to make them act otherwise than those who were drawn would act. The exclusion was not the result of race or class prejudice. It does not even appear that any of the defendants belonged to any of the excluded classes. The ground of omission no doubt was that pointed out by the state court, that the business of the persons omitted was such that either they 230 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. would have been entitled to claim exemption or that probably they would have been excused.” So this Court speaking through Mr. Justice Holmes answered a related question in Rawlins v. Georgia, 201 U. S. 638, 640. And the justification for the answer applies to the present situation. It is difficult to believe that this judgment would have been reversed if the trial judge had excused, one by one, all those wage earners whom the jury commissioner, acting on the practice of trial judges of San Francisco, excluded. For it will hardly be contended that the absence of such daily wage earners from the jury panel removed a group who would act otherwise than workers paid by the week or the wives of the daily wage earners themselves. The exclusion of the daily wage earners does not remove a group who would, in the language of Mr. Justice Holmes, “act otherwise than those who are drawn would act.” Judged by the trend of census statistics, laborers paid by the day are not a predominant portion of the workers of the country. See Sixteenth Census of the United States, 1940, Population, Vol. Ill, The Labor Force, Part 2, pp. 290 et seq. It certainly is too large an assumption on which to base judicial action that those workers who are paid by the day have a different outlook psychologically and economically than those who earn weekly wages. In the language of Mr. Chief Justice Hughes, “Impartiality is not a technical conception. It is a state of mind.” United States v. Wood, 299 U. S. 123,145. And American society is happily not so fragmentized that those who get paid by the day adopt a different social outlook, have a different sense of justice, and a different conception of a juror’s responsibility than their fellow workers paid by the week. No doubt the insecurities of a system of daily earnings, or generally of wages on less than an annual basis, raise serious problems as does, of course, also the THIEL v. SOUTHERN PACIFIC CO. 231 217 Frankfurter, J., dissenting. question of guaranteed wage plans. See the letter of President Roosevelt to the Director of War Mobilization, James F. Byrnes, on the date of March 20, 1945, carrying out the suggestion of a report to the President by the War Labor Board for the creation of a Commission to study the question of guaranteed wage plans. And see Basic Steel Case, 19 W. L. B. 568, 653 et seq.; N. W. L. B. Research and Statistics Report No. 25, Guaranteed Employment and Annual Wage Plans (1944). But these are matters quite irrelevant to the problem confronting district judges in dealing with the present plight of daily wage earners when called to serve as jurors and the power of the judges, as a matter of discretion, to excuse such daily wage earners from duty. For it cannot be denied that jury service by persons dependent upon a daily wage imposes a very real burden. Judge John C. Knox, Senior District Judge of the Southern District of New York, thus described the problem: . . when jurors’ compensation is limited to $4 per day, and when their periods of service are often protracted, thousands upon thousands of persons simply cannot afford to serve. To require them to do so is nothing less than the imposition upon them of extreme hardship. “With respect to the item last-mentioned, it is easy to say that jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship. With that statement I am in full accord, but it does not solve the difficulty. Adequate provision for one’s family is the first consideration of most men. And if, with this thought predominant in a man’s mind, he is required to perform a public service that means a default of an insurance premium, the sacrifice of a suit of clothes, 717466 O—47 19 232 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. or the loss of this [his] job, he will entertain feelings of resentment that will be anything but conducive to the rendition of justice. In other words, persons with a grievance against the Government or who serve under conditions that expose them to self-denial are not likely to have the spiritual contentment and mental detachment that good jurors require.” Hearings before H. R. Committee on the Judiciary on H. R. 3379, H. R. 3380, H. R. 3381, 79th Cong., 1st Sess. (1945) 8. No doubt, in view of the changes in the composition and distribution of our population and the growth of metropolitan areas, a reexamination is due of the operation of the jury system in the federal courts. Just as the federal judicial system has been reorganized and administratively modified through a series of recent enactments (see Act of September 14, 1922, 42 Stat. 837, 838, 28 U. S. C. §§ 218 et seq.; Act of February 13, 1925, 43 Stat. 936, 28 U. S. C. §§41 et seq.; Act of August 7, 1939, 53 Stat. 1223, 28 U. S. C. §§ 444 et seq.), the jury system, that indispensable adjunct of the federal courts, calls for review to meet modern conditions. The object is to devise a system that is fairly representative of our variegated population, exacts the obligation of citizenship to share in the administration of justice without operating too harshly upon any section of the community, and is duly regardful of the public interest in matters outside the jury system. This means that the many factors entering into the manner of selection, with appropriate qualifications and exemptions, the length of service and the basis of compensation must be properly balanced. These are essentially problems in administration calling for appropriate standards flexibly adjusted. Wise answers preclude treatment by rigid legislation or rigid administration. Congress has devised the appro- THIEL v. SOUTHERN PACIFIC CO. 233 217 Frankfurter, J., dissenting. priate procedure and instrument for making these difficult and delicate adjustments by its creation, in 1922, of the Conference of Senior Circuit Judges. The Conference, under the presidency of the Chief Justice of the United States, is charged with the duty of continuous oversight of the actual workings of the federal judicial system and of meeting disclosed needs, either through practices formulated by the Conference, or, when legislation is necessary or more appropriate, through proposals submitted to Congress. See 40 Harv. L. Rev. 431. That is precisely the course that has been followed in regard to the inadequacies in the operation of the federal jury system. In September, 1941, the late Chief Justice brought the matter before the Conference. As a result, Mr. Chief Justice Stone appointed a committee of experienced district judges, see Report of the Judicial Conference (1941) 16, under the chairmanship of Judge Knox who, because of the length and richness of his experience in the busiest district of the country, brought unusual equipment for devising appropriate reforms. In September, 1942, the Committee reported, Report to the Judicial Conference of the Committee on Selection of Jurors (1942) 1, and submitted proposals for legislation. Id. at 44, 62, 107. Bills to carry out these recommendations were introduced in the Senate on January 11, 1944, S. 1623, 1624, 1625, 78th Cong., 2d Sess., and in the House on June 5, 1945, H. R. 3379,3380,3381, 79th Cong., 1st Sess. Hearings were had upon the House Bills on June 12 and 13, 1945, and action on them is now pending. The Court now deals by adjudication with one phase of an organic problem and does so by nullifying a judgment which, on the record, was wholly unaffected by difficulties inherent in a situation that calls for comprehensive treatment, both legislative and administrative. If it be suggested that until there is legislation this decision will be 234 OCTOBER TERM, 1945. Syllabus. 328 U. S. the means of encouraging the district judges to uncover a better answer than they have thus far given to a lively problem, an appropriate admonition from the Court would accomplish the same result, or common action regarding the practice now under review may be secured from the Conference of Senior Circuit Judges. To reverse a judgment free from intrinsic infirmity and perhaps to put in question other judgments based on verdicts that resulted from the same method of selecting juries, reminds too much of burning the barn in order to roast the pig. I would affirm the judgment. UNITED STATES v. JOSEPH A. HOLPUCH CO. CERTIORARI TO THE COURT OF CLAIMS. Nos. 696 and 697. Argued May 3,1946.—Decided May 20,1946. Respondent had two construction contracts with the United States, each of which provided that “disputes concerning questions arising under this contract shall be decided by the contracting officer . . ■ subject to written appeal ... to the head of the department.’ Held: 1. Disputes as to extra pay for footing excavations and for increased wages paid to bricklayers were “questions arising under this contract” within the meaning of the quoted provision. Pp-238-239. 2. Respondent’s failure to exhaust the administrative appeal provisions of the contracts barred recovery in the Court of Claims in respect of such disputes. P. 239. 3. In the absence of clear evidence that the appeal procedure prescribed is inadequate or unavailable, that procedure must be pursued and exhausted before respondent may be heard to complain in a court. P. 240. 4. The designation on the covers of the contracts of the disbursing officer who would make payment on the contracts was not a part of the contracts and can not be used in any way to alter or,amend any actual provisions thereof. P. 240. UNITED STATES v. HOLPUCH CO. 235 234 Opinion of the Court. 5. Even if it be assumed that the dispute as to extra pay for footing excavations concerned only the amount of payment under the contract, such an issue is a question “arising under” the contract and therefore expressly subject to the administrative appeal provision. P. 241. 6. There being no evidence that the wage increase to bricklayers was established by the Federal Emergency Administration of Public Works, which under the contracts was the only agency that had authority to do so, a provision for an automatic adjustment of the amount due the contractor in that event did not become operative. P. 242. 104 Ct. Cis. 254, reversed. The respondent brought two suits in the Court of Claims on two contracts with the United States, and was adjudged entitled to recover on both. This Court granted certiorari. 327 U. S. 772. Reversed, p. 243. Abraham J. Harris argued the cause for the United States. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett and Paul A. Sweeney. No appearance for respondent. Mr. Justice Murphy delivered the opinion of the Court. The narrow question here is whether a contractor’s failure to exhaust the administrative appeal provisions of a government construction contract bars him from bringing suit in the Court of Claims to recover damages. Respondent, a building contractor, entered into two contracts1 with the United States through the War Department in 1933 to construct officers’ quarters at Fort Sam Houston, Texas, which were being built as a Federal * The contracts here involved were both executed on U. S. Government Form No. P. W. A. 51. 236 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Emergency Administration of Public Works project. Disputes arose as to excavations for footings and as to increased wages ordered to be paid to respondent’s bricklayers. Respondent brought suit against the Government on these matters in the Court of Claims, which entered judgments in favor of respondent on both items.2 Article 15, which appeared in both contracts, provided: “All labor issues arising under this contract which cannot be satisfactorily adjusted by the contracting officer shall be submitted to the Board of Labor Review. Except as otherwise specifically provided in this contract, all other disputes concerning questions arising under this contract shall be decided by the contracting officer or his duly authorized representative, subject to written appeal by the contractor, within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto as to such questions. In the meantime the contractor shall diligently proceed with the work as directed.” The dispute concerning the footing excavations arose out of an apparent inconsistency between certain figures used in the specifications and in the drawings. The specifications estimated that respondent was to excavate to a depth of 37^2 feet below the first-floor level of the buildings. The drawings, on the other hand, were found by the Court of Claims to call for excavations to the depth of 33 feet. Additional payments were to be made to respondent for excavations deeper than indicated “on the drawings,” while the Government was to receive a credit for excavations of a lesser depth. Respondent made vari- 2 The Court of Claims entered separate judgments and opinions in relation to each of the two contracts, although both of them were identical and involved the same issues. The only difference between the contracts concerned the particular buildings to be constructed. UNITED STATES v. HOLPUCH CO. 237 234 Opinion of the Court. ous excavations ranging in depth from 27.58 feet to 42.42 feet. The problem thus presented itself as to whether the 3714-foot figure in the specifications or the 33-foot figure in the drawings should serve as the basis for extra compensation to the respondent and for credit to the Government. Article 2 of the contracts provided: “In case of difference between drawings and specifications, the specifications shall govern. In any case of discrepancy in the figures or drawings, the matter shall be immediately submitted to the contracting officer . . .” The specifications contained a similar provision and added that the constructing quartermaster was to be the interpreter of the “intent and meaning of the drawings and specifications.” The constructing quartermaster duly resolved the discrepancy in this instance by interpreting the specifications and drawings to mean that the footing excavations were to be paid for on the basis of the 37^ feet estimated in the specifications. Respondent made no attempt to appeal from this decision to the contracting officer or to the departmental head in accordance with the terms of Article 15. The other dispute concerned a required increase in wages for respondent’s bricklayers. The contracts established $1.00 per hour as the minimum wage rate for skilled labor unless, as of April 30, 1933, there should be a higher prevailing hourly rate prescribed by collective agreements between employers and employees. Article 18 (e) provided that this minimum wage rate “shall be subject to change by the Federal Emergency Administration of Public Works on recommendation of the Board of Labor Review, ’ in which case “the contract price shall be adjusted accordingly.” On March 3, 1934, the Board of Labor Review ruled that bricklayers on another Army construc-h°n project at San Antonio, Texas, with which respond- 238 OCTOBER TERM, 1945. Opinion of the Court. 328 U. 8. ent was unconnected, should be paid at the rate of $1.25 per hour retroactive to February 2, 1934. Respondent was informed of this decision and on March 23, 1934, the constructing quartermaster advised respondent that all bricklayers employed on the instant project “will be paid at the rate of $1.25 per hour.” Respondent stated that it “would be governed accordingly but under protest, and [that it] expected reimbursement of the difference of 25 cents per hour.” On May 12,1934, the constructing quartermaster advised respondent “that it was the decision of the contracting officer that bricklayers employed on War Department construction projects at San Antonio, Texas, and vicinity [Fort Sam Houston is in this vicinity] should be paid $1.25 per hour, retroactive to February 2, 1934,” and that respondent would be within its rights “to file appeal with the Board of Labor Review from the decision of the contracting officer.”3 No such appeal was taken; respondent merely paid its bricklayers $1.25 per hour and then filed a claim in the court below for the 25-cent differential. Here again the provisions of Article 15 were ignored. We cannot sanction respondent’s failure to abide by the appeal provisions of Article 15 of the contracts which it made with the United States. Both the dispute over the 3 The constructing quartermaster was in error in stating that respondent could have appealed the wage increase decision to the Board of Labor Review. Under Article 15, the Board is charged with handling appeals only on matters involving “labor issues.” This plainly means labor issues between employers and employees. See Blair v. United States, 99 Ct. Cis. 71, 149-150, reversed in other respects, 321 U. 8. 730. Here, however, the only controversy lay between the respondent and the Government rather than between respondent and its bricklayers. Hence the ordinary review provisions of Article 15 were applicable, enabling respondent to appeal the contracting officer’s decision to the departmental head or his representative. The Court of Claims made a like error in this respect. UNITED STATES v. HOLPUCH CO. 239 234 Opinion of the Court. footing excavations and the dispute over the bricklayers’ wages were “questions arising under this contract” within the meaning of Article 15. The first was a question arising under Article 2 of the contracts as well as under the specifications, which expressly contemplated that government officers would resolve all discrepancies between specifications and drawings. Their decisions in such matters were clearly appealable under Article 15. The second dispute was a question arising under the wage provisions of Article 18 of the contracts; that question involved a consideration of the factual situation surrounding the required wage increase and a determination of the validity and effect of the increase under the circumstances. Any decision or order of a subordinate government officer in this respect was also appealable under Article 15. Yet respondent did not even seek the contracting officer’s opinion as to the footing excavation decision of the constructing quartermaster. And as to the contracting officer’s order requiring an increase in the bricklayers’ wages, respondent neglected to file a written appeal to the departmental head or his representative. But Article 15 is something more than a dead letter to be revived only at the convenience or discretion of the contractor. It is a clear, unambiguous provision applicable at all times and binding on all parties to the contract. No court is justified in disregarding its letter or spirit. Article 15 is controlling as to all disputes “concerning questions arising under this contract” unless otherwise specified in the contract. It creates a mechanism whereby adjustments may be made and errors corrected on an administrative level, thereby permitting the Government to mitigate or avoid large damage claims that might otherwise be created. United States v. Blair, 321 U. S. 730,735. This mechanism, moreover, is exclusive in nature. Solely through its operation may claims be made and adjudicated 240 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. as to matters arising under the contract. United States v. Blair, supra, 735; United States v. Callahan Walker Co., 317 U. S. 56, 61. And in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court. It follows that when a contractor chooses without due cause to ignore the provisions of Article 15 he destroys his right to sue for damages in the Court of Claims. That court is then obliged to outlaw his claims, whatever may be their equity. To do otherwise is to rewrite the contract. In this instance no justifiable excuse is apparent for respondent’s failure to exhaust the appeal provisions of Article 15. Certainly the reasons relied upon by the Court of Claims are lacking in merit. The court felt that the dispute over the footing excavation figures involved only a matter of contract price computation and that the responsibility for such a computation rested solely with the Army Finance Officer at Fort Sam Houston, any decision by the contracting officer on the matter being no more than advisory. Since the contracts made no provision for an appeal of the Finance Officer’s computation, the Court of Claims held that there was no appealable decision confronting respondent and that respondent’s claim could be heard and determined by that court. Support for this novel interpretation was sought in the statement on the covers of the contracts that payment on the contracts was to be made “by the Finance Officer, U. S. Army, Fort Sam Houston, Texas.” The short answer is that this designation of a disbursing officer is not a part of the contracts and cannot be used in any way to alter or amend any actual provisions thereof. The designation only identifies the person whose duty it is to perform the ministerial UNITED STATES v. HOLPUCH CO. 241 234 Opinion of the Court. function of disbursement and is subject to change at any time by the War Department without notice to the contractor.4 Moreover, even if it be assumed that the issue did concern only the amount of payment under the contracts,5 such an issue is a question arising under the contracts and hence expressly subject to the provisions of Article 15. 4 The Government points out that in 1933 and 1934 there were 18 Army Finance Officers located at various places in the United States and that all the notation on the cover could mean was that payment was to be made by the Finance Officer at Fort Sam Houston, Texas, and not by a Finance Officer located elsewhere. Moreover, an affidavit by the Chief, Receipts and Disbursements Division, Office of the Fiscal Director, Army Service Forces, appearing as an appendix to the Government’s brief, states in regard to the notation: “This is merely an indication to the constructing quartermaster to which disbursing officer the constructing quartermaster should certify vouchers. The designation of the Finance Officer is not a term of the contract. It is part of an outline showing the parties, the amount, the site of the work, the services to be performed, and the authorized accounts to which payments will be charged. ... On a construction contract containing the above terms the disbursing officer would not in practice alter or modify and would not be authorized to alter or modify the decision of a certifying construction quartermaster as to the basis on which payments can be made under the contract when such basis, as here, is dependent upon an interpretation of the specifications or has been covered by a decision on a dispute by the contracting officer. . . . Another reason why the Finance Officer would not undertake to determine the question presented in this case is that finance officers as a rule have no experience with construction and would not be qualified to make such decisions.” Such an assumption is faulty in that nearly every dispute between a contractor and the Government ultimately involves the amount of Payment under the contract. Hence, under the view of the Court of Claims, all such disputes would be subject to the Finance Officer’s review, thereby nullifying Article 15 as well as other portions of the contract contemplating final decision by the contracting officer or the departmental head on these matters. 242 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. The Court of Claims sought to justify respondent’s refusal to appeal the contracting officer’s decision to increase the bricklayers’ wages by holding that this decision automatically increased the contract price under the terms of Article 18 (e). It stated that the constructing quartermaster reasonably construed the ruling of the Board of Labor Review in regard to the San Antonio project as applicable to the vicinity of San Antonio as well, the wages prevailing in the vicinity being the wages to apply to a contract within that vicinity. Thus it was said that it was plainly of no special interest to respondent to appeal the contracting officer’s decision. But the assumption that this decision automatically resulted in a contract price increase is not in accord with the facts or with the contract provisions. Under Article 18 (e) no automatic price increase results unless the wage change is established by the Federal Emergency Administration of Public Works on recommendation of the Board of Labor Review.8 The Board alone cannot effect a change; it can only make a recommendation. Here, however, there was no evidence that the wage increase either as to respondent or as to the San Antonio project was established by the Federal Emergency Administration of Public Works, the only agency that had authority to do so. Accordingly the provision of Article 18 (e) for an automatic price increase did not come into operation, as was recognized by respondent in its protest. Serious questions were thus raised as to the authority of the contracting officer to direct a wage increase under these circumstances and as to the validity 6 The Board of Labor Review, although a part of the Federal Emergency Administration of Public Works, is a distinct entity. And Article 18 (e) of the contracts made a clear functional distinction between the two in regard to wage rate increases. We are not free to disregard that distinction and rewrite the procedure established by Article 18 (e). UNITED STATES v. HOLPUCH CO. 243 234 Douglas, J., dissenting in part. and effect of the ruling of the Board of Labor Review. Respondent should have secured a determination of those questions by challenging the contracting officer’s decision pursuant to the provisions of Article 15. Respondent having failed to avail itself of the procedure created by Article 15 for the settlement of disputes arising under the contracts, it was precluded from bringing suit on such matters in the Court of Claims. And the Court of Claims erred in entertaining and deciding the claims involving those disputes. Reversed. Mr. Justice Jackson took no part in the consideration or decision of these cases. Mr. Justice Douglas, dissenting in part. The Court requires this contractor to pay out of his own pocket the wage increase which he was directed to make. Whatever support that conclusion may have in a literal reading of the contract, it is so harsh and unfair as to be avoided if the contract does not compel the result. I do not think it does. The contract set a minimum wage rate of $1 an hour for bricklayers. But it also provided that if the “prevailing” hourly rates under agreements between organized labor and employers on April 30, 1933, were above that minimum rate, the higher rate would become the minimum and be paid.1 The Federal Emergency Administration of Public Works on recommendation of the Board 1 “In the event that the prevailing hourly rates prescribed under collective agreements or understandings between organized labor and employers on April 30, 1933, shall be above the minimum rates specified above, such agreed wage rates shall apply: Provided, That such agreed wage rates shall be effective for the period of this contract, but n°t to exceed 12 months from the date of the contract.” 244 OCTOBER TERM, 1945. Douglas, J., dissenting in part. 328U.S. of Labor Review could change the contract rate of $1 an hour; it could also change the “prevailing” hourly rate. If it did either, it would establish a “different” minimum wage rate within the meaning of the contract.2 And the contract price would be adjusted accordingly. The Board of Labor Review, acting for the Federal Emergency Administration of Public Works,3 ruled that bricklayers on another government project at San Antonio should be paid at the rate of $1.25 an hour. San Antonio, as held by the Court of Claims, is in the same vicinity as Fort Sam Houston where the present projects were under way. And plainly the “prevailing” hourly rate refers to the rate which obtains in the vicinity. So the respondent paid the extra wages under a ruling which, as I read the contract, was binding on him. It seems, therefore, manifestly unfair to hold that he must pay the wage increase out of his own pocket. A contractor confronted with an order of the quartermaster to raise the wages of his employees is in an ex- 2 “The minimum wage rates herein established shall be subject to change by the Federal Emergency Administration of Public Works on recommendation of the Board of Labor Review. In event that the Federal Emergency Administration of Public Works acting on such recommendation establishes different minimum wage rates, the contract price shall be adjusted accordingly on the basis of all actual labor costs on the project to the contractor, whether under this contract or any subcontract.” 3 The suggestion that the wage increase at San Antonio was not authorized by the Federal Emergency Administration of Public Works is not warranted by the record. The Board of Labor Review is a part of the Federal Emergency Administration of Public Works. It did not “recommend” an increase at San Antonio. It “formally ruled” that the bricklayers on that project “should be paid at the rate of $1.25 per hour.” The Court of Claims treated that as action by the Federal Emergency Administration of Public Works. That seems to me to be the fair construction; and it was so treated both by the quartermaster and the contractor. UNITED STATES v. HOLPUCH CO. 245 234 Douglas, J., dissenting in part. tremely difficult position. If he disobeys the order, he risks a strike and industrial turmoil. Yet the Court holds that he must take that risk or else pay the wage increase from his own pocket. Such a literal reading of the contract is not a fair one. And it is not a necessary one, as I have shown. Hence I would choose a construction which avoided that harsh and unfair result and did not victimize the contractor. If he had not protested the order of the quartermaster but had acquiesced, I suppose no one would say that there had been a dispute “concerning questions arising under” the contract,4 which should have been or could have been appealed. It is not doubted that then the contractor would be entitled to reimbursement. I see no difference in substance if the contractor, after an initial protest, acquiesces in the ruling and accepts the new “prevailing” rate and thus avoids dissension with his employees. There is justice in what the Court of Claims ruled and I would sustain it. Mr. Justice Frankfurter and Mr. Justice Rutledge join in this dissent. 4 The Government concedes that the quartermaster’s advice to respondent that he could file an appeal with the Board of Labor Review was erroneous. It points out that the Board of Labor Review was charged with the decision only of “labor issues,” which embrace controversies between employers and employees. The confusion existing in the mind of the Government’s own representative emphasizes the trap set for this contractor whether he followed the quartermaster’s suggestion or acquiesced in his ruling. 246 OCTOBER TERM, 1945. Syllabus. 328 U. S. PORTER, PRICE ADMINISTRATOR, v. LEE et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. Nos. 1116 and 1117. Argued May 13, 1946.—Decided May 27,1946. While an eviction suit by a landlord against a tenant was pending in a state court, the Price Administrator sued in a Federal District Court under § 205 of the Emergency Price Control Act to enjoin the landlord from evicting that tenant “or any other tenant” and from violating the Rent Regulation for Housing (promulgated under the Emergency Price Control Act), which forbids the eviction of tenants so long as they pay the rent to which the landlord is entitled. The District Court dismissed the Administrator’s complaint for want of jurisdiction. While an appeal was pending, the tenant was evicted. The Circuit Court of Appeals dismissed the appeal as moot. Held: 1. The District Court had jurisdiction under § 205 (c) of the Emergency Price Control Act, w’hich provides that “The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act, and, concurrently with State and Territorial Courts, of all other proceedings under section 205 of this Act.” P. 249. (a) The landlord’s eviction proceeding in the state court was not an enforcement proceeding authorized by the Act and, therefore, not within the “concurrent” jurisdiction contemplated by §205. P. 250. (b) Over the enforcement proceedings contemplated by §205, not only did the District Court acquire jurisdiction first, but the state court never acquired any jurisdiction at all. P. 250. 2. The Circuit Court of Appeals erred in holding that the case was moot. P. 251. (a) The mere fact that the tenant vacated the premises in compliance with a writ of possession did not end the controversy, since the court could have restored the status quo by a mandatory injunction. P. 251. (b) Moreover, the Administrator sought to restrain the eviction of any other tenant of the landlord as well as other acts in violation of the Regulation; and § 205 (a) authorizes such a broad injunction upon a finding that the landlord has engaged in violations. P. 251. Reversed and remanded. PORTER v. LEE. 247 246 Opinion of the Court. The Price Administrator sued to enjoin the eviction of a tenant and other violations of the Rent Regulation for Housing promulgated under the Emergency Price Control Act. The District Court dismissed the suit for want of jurisdiction. 59 F. Supp. 639. The Circuit Court of Appeals dismissed an appeal as moot. This Court granted certiorari. 328 U. S. 826. Reversed and remanded to the District Court for trial on the merits, p. 252. Robert L. Stern argued the cause for petitioner. With him on the brief were Solicitor General McGrath, Milton Klein, David London and Irving M. Gruber. Howell W. Vincent argued the cause and filed a brief for respondents. Mr. Justice Black delivered the opinion of the Court. October 24,1944, Dr. Lee brought a forcible detainer suit in the Justice of the Peace Court of Kenton County, Kentucky, to recover possession of an apartment he had rented to R. C. and Sarah Beever by reason of an alleged nonpayment of rent due on October 18, 1944. On December 4, 1944, before any judgment had been rendered, the Price Administrator, under § 205 of the Emergency Price Control Act, 56 Stat. 23, sought an injunction in the Federal District Court to order respondents, Dr. and Mrs. Lee, not to prosecute eviction proceedings against “Beever or any other tenant” and to restrain them from violating the Rent Regulation for Housing, 10 F. R. 3436,13528, promulgated pursuant to the Emergency Price Control Act.1 That 1 The part of the Regulation here in question (§6) was promulgated pursuant to § 2 (d) of the Emergency Price Control Act, 56 Stat. 23, which authorizes the Administrator, whenever such action is necessary or proper in order to effectuate the purposes of the Act, to “ regulate or Pronibit . . . renting or leasing practices (including practices re- 717466 ()—47-20 248 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Regulation provides among other things that so long as the tenant continues to pay the rent to which the landlord is entitled no tenant shall be removed or evicted by any landlord. The Administrator’s complaint in the injunction proceeding alleged that Beever owed no rent; that tender of the rent due had been refused by Dr. Lee; that this had been done not because there had been a default in payment but rather because Dr. Lee did not want families with children, such as the Bee vers, living on the premises; and that the eviction proceeding, thus, violated the Rent Regulation for Housing. The District Court issued a temporary restraining order, but later, without passing on the disputed factual issue of whether Beever had actually been delinquent in paying his rent at the time of the commencement of the Justice of the Peace Court proceedings, dismissed the Price Administrator’s complaint on the ground that it lacked jurisdiction to enjoin the Lees from prosecuting an eviction proceeding in the state court. Bowles v. Lee, 59 F. Supp. 639.* 2 The Justice of the Peace Court on the landlord’s motion then dismissed the forcible detainer action and on June 25, 1945, a new action was brought in the same Justice of the Peace Court asking for a writ of restitution to remove the Beevers on the ground of nonpayment of rent. The Justice of the Peace Court then entered a judgment directing the eviction of the Beevers. The Price Administrator this time asked the Federal District Court to restrain enforcement and execution of the judgment of eviction. This action by the Price lating to recovery of the possession) in connection with any defensearea housing accommodations, which in his judgment are equivalent to or are likely to result in . . . rent increases . . . inconsistent with the purposes of this Act.” 2 The original petition for injunction was filed by Chester Bowles as Price Administrator. Petitioner Porter is his successor in office, and upon motion he has been substituted as petitioner in this Court. PORTER v. LEE. 249 246 Opinion of the Court. Administrator was again dismissed on the ground of lack of jurisdiction. The Price Administrator appealed from both District Court orders dismissing his complaints and made prompt application to the Circuit Court of Appeals for an injunction pending appeal in the first case. This motion was denied. The landlord moved to have the case dismissed as moot and in support of that motion filed an affidavit setting forth that the premises had been vacated by the Beevers. In response the Price Administrator submitted an affidavit by R. C. Beever stating that he had not vacated the apartment as a matter of choice, but had moved to several basements and into the home of his wife’s parents because he was compelled to do so by a writ of possession which had been served on him. The Circuit Court of Appeals dismissed both cases as moot. We granted certiorari because of the obvious importance of the questions raised by the Federal District Court’s dismissals for want of jurisdiction and the holding of the Circuit Court of Appeals that the proceedings had become moot. First. As to jurisdiction, the provisions of the Price Control Act and the Rent Regulation for Housing, promulgated pursuant thereto and not challenged here, make it clear that the Price Administrator’s allegations in his complaint before the District Court stated an enjoinable violation over which the District Court as an enforcement court ordinarily would have jurisdiction under § 205 (a) and (c) of the Act. But the landlord claims that here the District Court was without power to act because the provisions of § 205 (c) permit actions in state courts alone under the particular circumstances here. He relies on that part of subsection (c) which provides that “The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act, and, concurrently with State and Territorial courts, of all other proceedings under 250 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. section 205 of this Act.” The landlord’s argument is as follows: The Administrator’s proceeding in the Federal District Court was a proceeding under § 205 over which the state courts have concurrent jurisdiction. The only issue in the federal proceeding would have been whether the landlord had legally sought to evict the Beevers because of nonpayment of rent or whether eviction was sought for other reasons in violation of the applicable regulation. That question could have been raised in the Justice of the Peace Court in view of its “concurrent” jurisdiction under § 205 (c). Since the Justice of the Peace Court action by the landlord was commenced prior to the Administrator’s injunction proceeding in the federal court, the Justice of the Peace Court had acquired sole power to decide the crucial issue and the Federal District Court therefore lacked jurisdiction. We think this contention is without merit. Section 205 (c) gives the state courts concurrent jurisdiction only over non-criminal enforcement “proceedings under section 205.” Bowles v. Willingham, 321 U. S. 503,511-512. Here the landlord’s eviction proceeding in the Justice of the Peace Court clearly was not an enforcement proceeding authorized by the Act. It was, rather, if the allegations of the Administrator proved to be true, a violation of the Act. The state court’s jurisdiction was based on state law and not on § 205 of the Price Control Act. It was therefore not part of the “concurrent” jurisdiction contemplated by § 205. Over the enforcement proceedings contemplated by that section not only did the District Court acquire jurisdiction first, but the state court never acquired any jurisdiction at all. It was consequently within the power of the Federal District Court to grant the injunction, provided the Government succeeded in proving the merits of its case. To rule otherwise would require the Administrator to bring enforcement proceedings, in situations such as the PORTER v. LEE. 251 246 Opinion of the Court. one before us, always in the state courts. Such a requirement would certainly not be in accord with the “concurrent” jurisdiction provision of § 205 (c). Or the Administrator in order to protect the public interest would always be forced to intervene in state court proceedings brought by the landlord. This procedure would be inadequate, because the speedy manner in which eviction suits are handled will frequently make it too late to intervene when the Administrator becomes aware of a violation. Furthermore, justice of the peace courts do not, at least ordinarily, have jurisdiction to grant injunctions to prevent future violations of the Act. Since there is nothing in the Act that limits the Administrator’s action to intervention in the state courts, we see no reason, nor are we authorized, to so restrict him.3 Second. We also think the Circuit Court of Appeals erred in holding that the case was moot. The mere fact that the Beevers, in order to comply with the writ of possession, vacated the apartment was not enough to end the controversy. It has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo. Texas & New Orleans R. Co. v. Northside Belt R. Co., 276 U. S. 475, 479. The Administrator, therefore, was entitled to seek a restoration of the status quo in this case. See Henderson v. Flecking er, 136 F. 2d 381-382. Moreover, here the Administrator sought to restrain not merely the eviction of Beever but also that of any other tenant of the landlord as well as other acts in violation of the Regulation. Section 205 (a) authorizes the District Court in its discretion to grant such a broad injunction upon a finding that the landlord has engaged in violations. See 3 And for the reasons stated in Porter v. Dicken, post, p. 252, § 265 of the Judicial Code does not require a different result. 252 OCTOBER TERM, 1945. Statement of the Case. 328U.S. Hecht Co. v. Bowles, 321 U. S. 321. If the eviction proceeding actually was a violation of the Regulation, then Beever’s vacating the premises was merely the completion of one violation. The issue as to whether future violations should be enjoined was still before the Court and was by no means moot. The judgments of the Circuit Court of Appeals are reversed and the cases are remanded to the District Court for trial of the issues on the merits. It is so ordered. Mr. Justice Jackson took no part in the consideration or decision of these cases. PORTER, PRICE ADMINISTRATOR, v. DICKEN ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 1118. Argued May 13, 1946.—Decided May 27, 1946. Under § 205 of the Emergency Price Control Act, authorizing the Price Administrator to bring injunction proceedings to enforce the Act in either state or federal courts, a federal district court has jurisdiction to grant an injunction sought by the Price Administrator to restrain eviction of a tenant under an order of a state court where the Administrator alleges that eviction would violate the Act and regulations pursuant thereto—notwithstanding § 265 of the Judicial Code, which forbids federal courts to grant injunctions to stay proceedings in state courts except in bankruptcy proceedings. Pp. 254, 255. Reversed and remanded. A writ of possession to evict a tenant having been issued by a state court, the Price Administrator sued in a Federal District Court for an injunction to restrain the eviction. The District Court dismissed the suit for want of jurisdiction. The Circuit Court of Appeals denied an application for an injunction prohibiting the PORTER v. DICKEN. 253 252 Opinion of the Court. eviction pending an appeal to that Court. Before judgment of the Circuit Court of Appeals on the merits, this Court granted certiorari. 328 U. S. 827. Reversed and remanded, p. 255. Robert L. Stern argued the cause for petitioner. With him on the brief were Solicitor General McGrath, Milton Klein and Irving M. Gruber. Submitted on brief by respondents, pro se. Mr. Justice Black delivered the opinion of the Court. This case, like Porter v. Lee, ante, p. 246, involves the jurisdiction of the Federal District Court to grant an injunction, sought by the Price Administrator under § 205 (a) of the Emergency Price Control Act, to restrain eviction of a tenant under an order of a state court where the Administrator alleges that eviction would violate the Act and valid regulations promulgated pursuant to it. Briefly stated the circumstances of the controversy are these: B. M. Murray, as executor of an estate, pursuant to authority granted him by the Probate Court of Franklin County, Ohio, sold a house located within the Columbus Defense Rental Area. A writ of possession directing the sheriff of the County to evict the tenant and to place the respondent purchasers in possession was obtained in the Probate Court. No certificate authorizing the eviction was sought or obtained from the Price Administrator as is required by § 6 of the Rent Regulation for Housing. 10 F. R. 3436,13528. Before the sheriff executed the writ the Price Administrator brought this action for an injunction in the Federal District Court. The District Court issued a temporary restraining order but later dismissed the complaint on the ground that § 265 of the Judicial Code, 28 U. S. C. 379, deprived the Federal District Court of jurisdiction to stay the proceedings in the state court. 254 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. This section provides that: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” The District Court in dismissing the cause entered an order restraining respondents from evicting the tenant pending determination by the Circuit Court of Appeals for an application for an injunction prohibiting the eviction pending an appeal to that Court. The Administrator made this application in the Circuit Court of Appeals, but it was denied, thus removing all obstacles to eviction of the tenant. The Circuit Court of Appeals has not heard this case. In order to prevent eviction of the tenant, the Administrator sought and obtained from Mr. Justice Reed an injunction pending final disposition of this case in this Court and applied for certiorari directly to this Court under § 240 (a) of the Judicial Code, which authorizes us to grant certiorari “either before or after a judgment or decree by such lower court . . .” We were prompted to bring the District Court’s judgment directly to this Court for review by reason of the close relationship of the important question raised to the question presented in Porter n. Lee, ante, p. 246. The District Court was of the opinion that since § 205 (c) of the Act gave concurrent jurisdiction to state courts to grant relief by injunction, the policy of § 265 against federal injunctions of state proceedings should not be considered impaired by the Emergency Price Control Act. The District Court’s conclusion was that if the Administrator wanted an injunction to restrain eviction under state court procedure he should have gone into some state court that had jurisdiction of the cause. The District Court erred in holding that the policy of § 265 of the Judicial Code should not be considered impaired by the Emergency Price Control Act. While we realize that § 265 embodies a long-standing governmental policy to PORTER v. DICKEN. 255 252 Opinion of the Court. prevent unnecessary friction between state and federal courts, Toucey v. New York Life Insurance Co., 314 U. S. 118, we still hold as we held in Bowles v. Willingham, 321 U. S. 503, that § 205 of the Price Control Act which authorizes the Price Administrator to seek injunctive relief in appropriate courts, including federal district courts, is an implied legislative amendment to § 265, creating an exception to its broad prohibition.1 This is true because § 205 authorizes the Price Administrator to bring injunction proceedings to enforce the Act in either state or federal courts, and this authority is broad enough to justify an injunction to restrain state court evictions. But if § 265 controls, as the District Court held, the Administrator here could not proceed in the federal court, since there is a proceeding pending in a state court. Since the provisions of the Price Control Act, enacted long after § 265, do not compel the Administrator to go into the state courts but leave him free to seek relief in the federal courts, he was not barred by § 265 from seeking an injunction to restrain an unlawful eviction. Cf. Hale N. Bimco Trading, Inc., 306 U. S. 375. The judgment of the District Court is reversed and the case is remanded to that Court to exercise the jurisdiction conferred upon it by § 205 of the Emergency Price Control Act. Reversed and remanded. Mr. Justice Jackson took no part in the consideration or decision of this case. * xAn alternative reason given for the decision in the Willingham case was that, since the state court there was attempting to enjoin the Administrator from performing his duties under the Act, the District Court had power both under §205 (a) of the Act and §24 (1) of he Judicial Code to protect the exclusive federal jurisdiction which ongress had granted. But our opinion did not, as the District Court thought, depend entirely on this alternative ground. 256 OCTOBER TERM, 1945. Syllabus. 328 U. S. UNITED STATES v. CAUSBY et ux. CERTIORARI TO THE COURT OF CLAIMS. No. 630. Argued May 1, 1946.—Decided May 27, 1946. Respondents owned a dwelling and a chicken farm near a municipal airport. The safe path of glide to one of the runways of the airport passed directly over respondents’ property at 83 feet, which was 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. It was used 4% of the time in taking off and 7% of the time in landing. The Government leased the use of the airport for a term of one month commencing June 1, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever was earlier. Various military aircraft of the United States used the airport. They frequently came so close to respondents’ property that they barely missed the tops of trees, the noise was startling, and the glare from their landing lights lighted the place up brightly at night. This destroyed the use of the property as a chicken farm and caused loss of sleep, nervousness and fright on the part of respondents. They sued in the Court of Claims to recover for an alleged taking of their property and for damages to their poultry business. The Court of Claims found that the Government had taken an easement over respondents’ property and that the value of the property destroyed and the easement taken was $2,000; but it made no finding as to the precise nature or duration of the easement. Held: 1. A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 260-267. (a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 260, 261. (b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 260,261,266. (c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 263, 264. UNITED STATES v. CAUSBY. 257 256 Counsel for Parties. (d) Flights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it. Pp. 261, 262, 264r-267. 2. Since there was a taking of private property for public use, the claim was “founded upon the Constitution,” within the meaning of § 141 (1) of the Judicial Code, and the Court of Claims had jurisdiction to hear and determine it. P. 267. 3. Since the court’s findings of fact contain no precise description of the nature or duration of the easement taken, the judgment is reversed and the cause is remanded to the Court of Claims, so that it may make the necessary findings. Pp. 267, 268. (a) An accurate description of the easement taken is essential, since that interest vests in the United States. P. 267. (b) Findings of fact on every “material issue” are a statutory requirement, and a deficiency in the findings can not be rectified by statements in the opinion. Pp. 267, 268. (c) A conjecture in lieu of a conclusion from evidence would not be a proper foundation for liability of the United States. P. 268. 104 Ct. Cis. 342,60 F. Supp. 751, reversed and remanded. The Court of Claims granted respondents a judgment for the value of property destroyed and damage to their property resulting from the taking of an easement over their property by low-flying military aircraft of the United States, but failed to include in its findings of fact a specific description of the nature or duration of the easement. 104 Ct. Cis. 342, 60 F. Supp. 751. This Court granted certiorari. 327 U. S. 775. Reversed and remanded, p. 268. Walter J. Cummings, Jr. argued the cause for the United States. With him on the brief were Solicitor General McGrath, J. Edward Williams, Roger P. Marquis and A-lvin 0. West. William E. Comer argued the cause and filed a brief for respondents. 258 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Mr. Justice Douglas delivered the opinion of the Court. This is a case of first impression. The problem presented is whether respondents’ property was taken, within the meaning of the Fifth Amendment, by frequent and regular flights of army and navy aircraft over respondents’ land at low altitudes. The Court of Claims held that there was a taking and entered judgment for respondents, one judge dissenting. 104 Ct. Cis. 342, 60 F. Supp. 751. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented. Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It has on it a dwelling house, and also various outbuildings which were mainly used for raising chickens. The end of the airport’s northwest-southeast runway is 2,220 feet from respondents’ barn and 2,275 feet from their house. The path of glide to this runway passes directly over the property—which is 100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle1 approved by the Civil Aeronautics Authority 1 2 passes over this property at 83 feet, which is 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree.3 The use by the United States of this airport is pursuant to a lease executed in May, 1942, for a term commencing June 1,1942 and ending June 30,1942, with a provision for renewals until June 30, 1967, or six 1A 30 to 1 glide angle means one foot of elevation or descent for every 30 feet of horizontal distance. 2 Military planes are subject to the rules of the Civil Aeronautics Board where, as in the present case, there are no Army or Navy regulations to the contrary. Cameron v. Civil Aeronautics Board, 140 F. 2d 482. 3 The house is approximately 16 feet high, the barn 20 feet, and the tallest tree 65 feet. UNITED STATES v. CAUSBY. 259 256 Opinion of the Court. months after the end of the national emergency, whichever is the earlier. Various aircraft of the United States use this airport— bombers, transports and fighters. The direction of the prevailing wind determines when a particular runway is used. The northwest-southeast runway in question is used about four per cent of the time in taking off and about seven per cent of the time in landing. Since the United States began operations in May, 1942, its four-motored heavy bombers, other planes of the heavier type, and its fighter planes have frequently passed over respondents’ land and buildings in considerable numbers and rather close together. They come close enough at times to appear barely to miss the tops of the trees and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling. And at night the glare from the planes brightly lights up the place. As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm. Respondents are frequently deprived of their sleep and the family has become nervous and frightened. Although there have been no airplane accidents on respondents’ property, there have been several accidents near the airport and close to respondents’ place. These are the essential facts found by the Court of Claims. On the basis of these facts, it found that respondents’ property had depreciated in value. It held that the United States had taken an easement over the property on June 1,1942, and that the value of the property destroyed and the easement taken was $2,000. 260 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. I. The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U. S. C. § 171, as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U. S. C. § 401. Under those statutes the United States has “complete and exclusive national sovereignty in the air space” over this country. 49 U. S. C. § 176 (a). They grant any citizen of the United States “a public right of freedom of transit in air commerce4 through the navigable air space of the United States.” 49 U. S. C. § 403. And “navigable air space” is defined as “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.” 49 U. S. C. § 180. And it is provided that “such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation.” Id. It is, therefore, argued that since these flights were within the minimum safe altitudes of flight which had been prescribed, they were an exercise of the declared right of travel through the airspace. The United States concludes that when flights are made within the navigable airspace without any physical invasion of the property of the landowners, there has been no taking of property. It says that at most there was merely incidental damage occurring as a consequence of authorized air navigation. It also argues that the landowner does not own superadjacent airspace which he has not subjected to possession by the erection of structures or other occupancy. Moreover, it is argued that even if the United States took airspace owned by respondents, no compensable damage was shown. Any damages are said to be merely consequential for which no compensation may be obtained under the Fifth Amendment. It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe—Cujus 4 “Air commerce” is defined as including “any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce.” 49 U. S. C. § 401 (3). UNITED STATES v. CAUSBY. 261 256 Opinion of the Court. est solum ejus est usque ad coelum.s But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. But that general principle does not control the present case. For the United States conceded on oral argument that if the flights over respondents’ property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken. United States v. Miller, 317 U. S. 369. Market value fairly determined is the normal measure of the recovery. Id. And that value may reflect the use to which the land could readily be converted, as well as the existing use. United States v. Powelson, 319 U. S. 266, 275, and cases cited. If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete.® It would he as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it. We agree that in those circumstances there would be a taking. Though it would be only an easement of flight 51 Coke, Institutes (19th ed. 1832) ch. 1, § 1 (4a); 2 Blackstone, Commentaries (Lewis ed. 1902) p. 18; 3 Kent, Commentaries (Gould ed. 1896) p. 621. The destruction of all uses of the property by flooding has been held to constitute a taking. Pumpelly v. Green Bay Co., 13 Wall. 166; United States v. Lynah, 188 U. S. 445; United States v. Welch, 217 U. S. 333. 262 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner’s right to possess and exploit the land—that is to say, his beneficial ownership of it—would be destroyed. It would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value.7 That was the philosophy of Portsmouth Co. v. 7 It was stated in United States v. General Motors Corp., 323 U. S. 373, 378, “The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking.” The present case falls short of the General Motors case. This is not a case where the United States has merely UNITED STATES v. CAUSBY. 263 256 Opinion of the Court. United States, 260 U. S. 327. In that case the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner’s land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims, which dismissed the petition on a demurrer, holding that “the specific facts set forth would warrant a finding that a servitude has been imposed.”8 260 U. S. p. 330. And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S. E. 2d 245. Cf. United States n. 357.25 Acres of Land, 55 F. Supp. 461. The fact that the path of glide taken by the planes was that approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain is “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.” 49 U. S. C. § 180. If that agency prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation. But nothing of the sort has been done. The path of glide governs the method of operating—of landing or taking off. The altitude required for that operation is not the minimum safe altitude of flight which is the downward reach of the navigable airspace. The minimum prescribed by the Authority is 500 feet during the day and 1,000 feet at night for air carriers (Civil Air Regulations, Pt. 61, §§ 61.7400, 61.7401, Code Fed. Reg. Cum. Supp., Tit. 14, ch. 1), and from 300 feet to 1,000 feet for destroyed property. It is using a part of it for the flight of its planes. Cf. Warren Township School Dist. v. Detroit, 308 Mich. 460, 14 • W. 2d 134; Smith v. New England Aircraft Co., 270 Mass. 511, N. E. 385; Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42N.E.2d575. On remand the allegations in the petition were found not to be supported by the facts. 64 Ct. Cis. 572. 717466 O—47_21 264 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. other aircraft, depending on the type of plane and the character of the terrain. Id., Pt. 60, §§ 60.350-60.3505, Fed. Reg. Cum. Supp., supra. Hence, the flights in question were not within the navigable airspace which Congress placed within the public domain. If any airspace needed for landing or taking off were included, flights which were so close to the land as to render it uninhabitable would be immune. But the United States concedes, as we have said, that in that event there would be a taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of flight within the meaning of the statute. The Civil Aeronautics Authority has, of course, the power to prescribe air traffic rules. But Congress has defined navigable airspace only in terms of one of them— the minimum safe altitudes of flight. We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land.9 The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 84 F. 2d 755. The fact that he does not occupy it in a physical sense— by the erection of buildings and the like—is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. We would not doubt that, if the United States erected 9Baten’s Case, 9 Coke R. 53b; Meyer n. Metzler, 51 Cal. 142, Codman v. Evans, 89 Mass. 431; Harrington v. McCarthy, 169 Mass. 492, 48 N. E. 278. See Ball, The Vertical Extent of Ownership in Land, 76 U. Pa. L. Rev. 631, 658-671. UNITED STATES v. CAUSBY. 265 256 Opinion of the Court. an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land.10 The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.11 In this case, as in Portsmouth Co. v. United States, supra, the damages were not merely consequential. They were the product of a direct invasion of respondents’ do- * 1 10 It was held in Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716, that ejectment would lie where a telephone wire was strung across the plaintiff’s property, even though it did not touch the soil. The court stated, pp. 491-492: “. . . an owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in Principle. Expand the wire into a beam supported by posts standing upon abutting lots without touching the surface of plaintiff’s land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be disturbed.” 1See Bouve, Private Ownership of Navigable Airspace Under the onunerce Clause, 21 Amer. Bar Assoc. Journ. 416, 421-422; Hise, wnership and Sovereignty of the Air, 16 la. L. Rev. 169; Eubank, e Doctrine of the Airspace Zone of Effective Possession, 12 Boston Univ. L. Rev. 414. 266 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. main. As stated in United States v. Cress, 243 U. S. 316, 328, “. . . it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.” We said in United States v. Powelson, supra, p. 279, that while the meaning of “property” as used in the Fifth Amendment was a federal question, “it will normally obtain its content by reference to local law.” If we look to North Carolina law, we reach the same result. Sovereignty in the airspace rests in the State “except where granted to and assumed by the United States.” Gen. Stats. 1943, § 63-11. The flight of aircraft is lawful “unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.” Id., § 63-13. Subject to that right of flight, “ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath . . • Id., § 63-12. Our holding that there was an invasion of respondents’ property is thus not inconsistent with the local law governing a landowner’s claim to the immediate reaches of the superadjacent airspace. The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court UNITED STATES v. CAUSBY. 267 256 Opinion of the Court. of Claims plainly establish that there was a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land. IL By § 145 (1) of the Judicial Code, 28 U. S. C. § 250 (1), the Court of Claims has jurisdiction to hear and determine “All claims (except for pensions) founded upon the Constitution of the United States or . . . upon any contract, express or implied, with the Government of the United States . . We need not decide whether repeated trespasses might give rise to an implied contract. Cf. Portsmouth Co. v. United States, supra. If there is a taking, the claim is “founded upon the Constitution” and within the jurisdiction of the Court of Claims to hear and determine. See Hollister v. Benedict Mfg. Co., 113 U. S. 59, 67; Hurley v. Kincaid, 285 U. S. 95, 104; Yearsley V. Ross Construction Co., 309 U. S. 18, 21. Thus, the jurisdiction of the Court of Claims in this case is clear. HI. The Court of Claims held, as we have noted, that an easement was taken. But the findings of fact contain no precise description as to its nature. It is not described in terms of frequency of flight, permissible altitude, or type of airplane. Nor is there a finding as to whether the easement taken was temporary or permanent. Yet an accurate description of the property taken is essential, since that interest vests in the United States. United States v. Cress, supra, 328-329 and cases cited. It is true that the Court of Claims stated in its opinion that the easement taken was permanent. But the deficiency in findings cannot be rectified by statements in the opinion. United States v. Esnault-Pelterie, 299 U. S. 201, 205-206; United States v. Seminole Nation, 299 U. S. 417, 422. indmgs of fact on every “material issue” are a statutory 268 OCTOBER TERM, 1945. Black, J., dissenting. 328U.S. requirement. 53 Stat. 752, 28 U. S. C. § 288. The importance of findings of fact based on evidence is emphasized here by the Court of Claims’ treatment of the nature of the easement. It stated in its opinion that the easement was permanent because the United States “no doubt intended to make some sort of arrangement whereby it could use the airport for its military planes whenever it had occasion to do so.” That sounds more like conjecture rather than a conclusion from evidence; and if so, it would not be a proper foundation for liability of the United States. We do not stop to examine the evidence to determine whether it would support such a finding, if made. For that is not our function. United States v. Esnault-Pelterie, supra, p. 206. Since on this record it is not clear whether the easement taken is a permanent or a temporary one, it would be premature for us to consider whether the amount of the award made by the Court of Claims was proper. The judgment is reversed and the cause is remanded to the Court of Claims so that it may make the necessary findings in conformity with this opinion. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Black, dissenting. The Fifth Amendment provides that “private property” shall not “be taken for public use without just compensation.” The Court holds today that the Government has “taken” respondents’ property by repeatedly flying Army bombers directly above respondents’ land at a height of eighty-three feet where the light and noise from these planes caused respondents to lose sleep and their chickens to be killed. Since the effect of the Court’s decision is UNITED STATES v. CAUSBY. 269 256 Black, J., dissenting. to limit, by the imposition of relatively absolute constitutional barriers, possible future adjustments through legislation and regulation which might become necessary with the growth of air transportation, and since in my view the Constitution does not contain such barriers, I dissent. The following is a brief statement of the background and of the events that the Court’s opinion terms a “taking” within the meaning of the Fifth Amendment: Since 1928 there has been an airfield some eight miles from Greensboro, North Carolina. In April, 1942, this airport was taken over by the Greensboro-High Point Municipal Airport Authority and it has since then operated as a municipal airport. In 1942 the Government, by contract, obtained the right to use the field “concurrently, jointly, and in common” with other users. Years before, in 1934, respondents had bought their property, located more than one-third of a mile from the airport. Private planes from the airport flew over their land and farm buildings from 1934 to 1942 and are still doing so. But though these planes disturbed respondents to some extent, Army bombers, which started to fly over the land in 1942 at a height of eighty-three feet, disturbed them more because they were larger, came over more frequently, made a louder noise, and at night a greater glare was caused by their lights. This noise and glare disturbed respondents’ sleep, frightened them, and made them nervous. The noise and light also frightened respondents’ chickens so much that many of them flew against buildings and were killed. The Court’s opinion seems to indicate that the mere flying of planes through the column of air directly above respondents’ land does not constitute a “taking.” Consequently, it appears to be noise and glare, to the extent and under the circumstances shown here, which make the Government a seizer of private property. But the allegation 270 OCTOBER TERM, 1945. Black, J., dissenting. 328U.S. of noise and glare resulting in damages, constitutes at best an action in tort where there might be recovery if the noise and light constituted a nuisance, a violation of a statute,1 or were the result of negligence.1 2 But the Government has not consented to be sued in the Court of Claims except in actions based on express or implied contract. And there is no implied contract here, unless by reason of the noise and glare caused by the bombers the Government can be said to have “taken” respondents’ property in a constitutional sense. The concept of taking property as used in the Constitution has heretofore never been given so sweeping a meaning. The Court’s opinion presents no case where a man who makes noise or shines light onto his neighbor’s property has been ejected from that property for wrongfully taking possession of it. Nor would anyone take seriously a claim that noisy automobiles passing on a highway are taking wrongful possession of the homes located thereon, or that a city elevated train which greatly interferes with the sleep of those who live next to it wrongfully takes their property. Even the one case in this Court which in considering the sufficiency of a complaint gave the most elastic meaning to the phrase “private property be taken” as used in the Fifth Amendment, did not go so far. Portsmouth Co. v. United States, 260 U. S. 1 Neiswonger v. Goodyear Tire & Rubber Co., 35 F. 2d 761. 2 As to the damage to chickens, Judge Madden, dissenting from this judgment against the Government, said, “When railroads were new, cattle in fields in sight and hearing of the trains were alarmed, thinking that the great moving objects would turn aside and harm them. Horses ran away at the sight and sound of a train or a threshing machine engine. The farmer’s chickens have to get over being alarmed at the incredible racket of the tractor starting up suddenly in the shed adjoining the chicken house. These sights and noises are a part of our world, and airplanes are now and will be to a greater degree, likewise a part of it. These disturbances should not be treated as torts, in the case of the airplane, any more than they are so treated in the case of the railroad or public highway.” 104 Ct. Cis. 342, 358. UNITED STATES v. CAUSBY. 271 256 Black, J., dissenting. 327. I am not willing, nor do I think the Constitution and the decisions authorize me, to extend that phrase so as to guarantee an absolute constitutional right to relief not subject to legislative change, which is based on averments that at best show mere torts committed by government agents while flying over land. The future adjustment of the rights and remedies of property owners, which might be found necessary because of the flight of planes at safe altitudes, should, especially in view of the imminent expansion of air navigation, be left where I think the Constitution left it, with Congress. Nor do I reach a different conclusion because of the fact that the particular circumstance which under the Court’s opinion makes the tort here absolutely actionable, is the passing of planes through a column of air at an elevation of eighty-three feet directly over respondents’ property. It is inconceivable to me that the Constitution guarantees that the airspace of this Nation needed for air navigation is owned by the particular persons who happen to own the land beneath to the same degree as they own the surface below.1 No rigid constitutional rule, in my judgment, commands that the air must be considered as marked off into separate compartments by imaginary metes and bounds in order to synchronize air ownership with land ownership. I think that the Constitution entrusts Congress with full power to control all navigable airspace. Congress has already acted under that power. It has by statute, 44 Stat. 568, 52 Stat. 973, provided that the United States of America is ... to possess and exercise complete and exclusive national sovereignty in the 1 The House in its report on the Air Commerce Act of 1926 stated: The public right of flight in the navigable air space owes its source to the same constitutional basis which, under decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil.” H. Rep. No. 572,69th Cong., 1st Sess., p. 10. 272 OCTOBER TERM, 1945. Black, J., dissenting. 328U.S. air space above the United States . . .” This was done under the assumption that the Commerce Clause of the Constitution gave Congress the same plenary power to control navigable airspace as its plenary power over navigable waters. H. Rep. No. 572, 69th Cong., 1st Sess., p. 10; H. Rep. No. 1162, 69th Cong., 1st Sess., p. 14; see United States v. Commodore Park, 324 U. S. 386. To make sure that the airspace used for air navigation would remain free, Congress further declared that “navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation,” and finally stated emphatically that there exists “a public right of freedom of transit . . . through the navigable air space of the United States.” Congress thus declared that the air is free, not subject to private ownership, and not subject to delimitation by the courts. Congress and those acting under its authority were the only ones who had power to control and regulate the flight of planes. “Navigable airspace” was defined as “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority . . .” 49 U. S. C. § 180. Thus, Congress has given the Civil Aeronautics Authority exclusive power to determine what is navigable airspace subject to its exclusive control. This power derives specifically from the Section which authorizes the Authority to prescribe “air traffic rules governing the flight of, and for the navigation, protection, and identification of, aircraft, including rules as to safe altitudes of flight and rules for the prevention of collisions between aircraft, and between aircraft and land or water vehicles.” Here there was no showing that the bombers flying over respondents’ land violated any rule or regulation of the Civil Aeronautics Authority. Yet, unless we hold the Act unconstitutional, at least such a showing would be necessary before the courts could act without interfering with the exclusive authority which Congress gave to the administrative agency. Not even a UNITED STATES v. CAUSBY. 273 256 Black, J., dissenting. showing that the Authority has not acted would be sufficient. For in that event, were the courts to have any authority to act in this case at all, they should stay their hand till the Authority has acted. The broad provisions of the congressional statute cannot properly be circumscribed by making a distinction, as the Court’s opinion does, between rules of safe altitude of flight while on the level of cross-country flight and rules of safe altitude during landing and taking off. First, such a distinction cannot be maintained from the practical standpoint. It is unlikely that Congress intended that the Authority prescribe safe altitudes for planes making cross-country flights, while at the same time it left the more hazardous landing and take-off operations unregulated. The legislative history, moreover, clearly shows that the Authority’s power to prescribe air traffic rules includes the power to make rules governing landing and take-off. Nor is the Court justified in ignoring that history by labeling rules of safe altitude while on the level of cross-country flight as rules prescribing the safe altitude proper and rules governing take-off and landing as rules of operation. For the Conference Report explicitly states that such distinctions were purposely eliminated from the original House Bill in order that the Section on air traffic rules “might be given the broadest possible construction by the . . . [Civil Aeronautics Authority] and the courts.”2 In construing the statute narrowly, the Court 2 The full statement reads: “The substitute provides that the Secretary shall by regulation establish air traffic rules for the navigation, protection, and identification of all aircraft, including rules as to safe altitudes of night and rules for the prevention of collisions between vessels and aircraft. The provision as to rules for taking off and alight-mg, for instance, was eliminated as unnecessary specification, for the reason that such rules are but one class of air traffic rules for the navigation and protection of aircraft. Rules as to marking were eliminated for the reason that such rules were fairly included within the scope of air rules for the identification of air- 274 OCTOBER TERM, 1945. Black, J., dissenting. 328U.S. thwarts the intent of Congress. A proper broad construction, such as Congress commanded, would not permit the Court to decide what it has today without declaring the Act of Congress unconstitutional. I think the Act given the broad construction intended is constitutional. No greater confusion could be brought about in the coming age of air transportation than that which would result were courts by constitutional interpretation to hamper Congress in its efforts to keep the air free. Old concepts of private ownership of land should not be introduced into the field of air regulation. I have no doubt that Congress will, if not handicapped by judicial interpretations of the Constitution, preserve the freedom of the air, and at the same time, satisfy the just claims of aggrieved persons. The noise of newer, larger, and more powerful planes may grow louder and louder and disturb people more and more. But the solution of the problems precipitated by these technological advances and new ways of living cannot come about through the application of rigid constitutional restraints formulated and enforced by the courts. What adjustments may have to be made, only the future can reveal. It seems certain, however, craft. No attempt is made by either the Senate bill or the House amendment to fully define the various classes of rules that would fall within the scope of air traffic traffic [sic] rules, as, for instance, lights and signals along airways and at air-ports and upon emergency landing fields. In general, these rules would relate to the same subjects as those covered by navigation laws and regulations and by the various State motor vehicle traffic codes. As noted above, surplusage was eliminated in specifying particular air traffic rules in order that the term might be given the broadest possible construction by the Department of Commerce and the courts.” H. Rep. No. 1162, 69th Cong., 1st Sess., p. 12. That the rules for landing and take-off are rules prescribing “minimum safe altitudes of flight” is shown by the following further statement in the House Report: “. . . the minimum safe altitudes of flight . . . would vary with the terrene [terrain] and location of cities and would coincide with the surface of the land or water at airports. Id. at p. 14. FISHGOLD v. SULLIVAN CORP. 275 256 Syllabus. that courts do not possess the techniques or the personnel to consider and act upon the complex combinations of factors entering into the problems. The contribution of courts must be made through the awarding of damages for injuries suffered from the flying of planes, or by the granting of injunctions to prohibit their flying. When these two simple remedial devices are elevated to a constitutional level under the Fifth Amendment, as the Court today seems to have done, they can stand as obstacles to better adapted techniques that might be offered by experienced experts and accepted by Congress. Today’s opinion is, I fear, an opening wedge for an unwarranted judicial interference with the power of Congress to develop solutions for new and vital national problems. In my opinion this case should be reversed on the ground that there has been no “taking” in the constitutional sense. Mr. Justice Burton joins in this dissent. FISHGOLD v. SULLIVAN DRYDOCK & REPAIR CORP. ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 970. Argued May 6,1946.—Decided May 27,1946. After serving in the Army and receiving an honorable discharge, petitioner was reinstated in his former position pursuant to § 8 (a) of the Selective Training and Service Act of 1940. Subsequently, when there was not enough work to keep all employees busy, he was laid off temporarily on nine days while non-veterans with higher shop seniorities were permitted to work; but he was given work when enough became available. He sued for a declaratory judgment as to his rights under the Act and to obtain compensation for the days that he was laid off. The union intervened and alleged in its answer that the employer’s action was in accordance with the provisions of a collective bargaining agreement 276 OCTOBER TERM, 1945. Statement of the Case. 328U.S. and was not a violation of the Act. The District Court held that petitioner was laid off in violation of the Act and gave him a money judgment for the loss of wages. Only the union appealed. Held: 1. The Circuit Court of Appeals had jurisdiction of the appeal, since the union’s answer put in issue the question whether there was a conflict between the collective bargaining agreement and the Act and, if so, which one prevailed. That issue being adjudicated with the union and the employer as parties, would have been res judicata as to the union had it not appealed. Pp. 281-284. 2. The temporary “lay-off” of petitioner while other employees with higher shop seniorities were permitted to work did not violate §8 of the Selective Training and Service Act of 1940. Pp. 284r-291. (a) Sections 8 (b) and (c) do not grant a veteran an increase in seniority over what he would have had if he had never entered the armed services. P. 285. (b) An employee who has been laid off in accordance with a seniority system and put on a waiting list for reassignment has not been “discharged” within the meaning of § 8 (c), which forbids the discharge of a reemployed veteran without cause within one year. Pp. 286, 287. (c) Nothing in the legislative history of the Act indicates a purpose to accord a veteran the right to work when by operation of the seniority system there is none available for him. P. 289. (d) The fact that, when Congress amended § 8 of the Act in 1944 and extended the Act in 1945 without any change in § 8, it was apprised of an administrative interpretation by the Director of Selective Service that a veteran was entitled to his job regardless of seniority is not controlling—especially when the National War Labor Board has given § 8 (c) a different construction in handling disputes arising out of the negotiation of collective bargaining agreements. Pp. 289-291. 3. Administrative interpretations of the Act by the Director of Selective Service may be resorted to for guidance; but, not being made in adversary proceedings, they are not entitled to the weight which is accorded administrative interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. P. 290. 154 F. 2d 785, affirmed. Petitioner sued under § 8 (e) of the Selective Training and Service Act to obtain a declaratory judgment as to his FISHGOLD v. SULLIVAN CORP. 277 275 Opinion of the Court. rights under the Act and compensation for the days he was laid off from work. The District Court refused the declaratory judgment but gave petitioner a money judgment for the loss of wages. 62 F. Supp. 25. The Circuit Court of Appeals reversed. 154 F. 2d 785. This Court granted certiorari. 327U. S. 775. Affirmed, p. 291. Assistant Attorney General Sonnett argued the cause for petitioner. With him on the brief were Solicitor General McGrath, Frederick Bernays Wiener, Robert L. Werner, Searcy L. Johnson, Paul A. Sweeney, Abraham J. Harris and Cecelia Goetz. J. Read Smith argued the cause and filed a brief for the Sullivan Dry Dock Corporation, respondent. M. H. Goldstein argued the cause and filed a brief for Roy Granata, respondent. Ralph B. Gregg filed a brief for the American Legion, as amicus curiae, urging reversal. Briefs were filed as amici curiae by Joseph A. Padway and Herbert S. Thatcher for the American Federation of Labor, by Frank L. Mulholland, Clarence M. Mulholland and Willard H. McEwen for the Railway Labor Executives’ Association, and by Lee Pressman, Eugene Cotton, Frank Donner, John J. Abt, Isadore Katz, Lindsay P. Walden, Ben Meyers, William Standard and Leon M. Despres for the Congress of Industrial Organizations and certain affiliated organizations, in support of respondents. Mr. Justice Douglas delivered the opinion of the Court. Petitioner is an employee of the Sullivan Drydock & Repair Corporation. He entered its employ in 1942 and 278 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. worked for it at a shipyard until he was inducted into the Army in 1943. He served in the Army a little over a year and was honorably discharged and received a certificate to that effect. He had worked for the corporation as a welder and, after his tour of duty in the Army ended, he was still qualified to perform the duties of a welder. Within forty days of his discharge, he applied to the corporation, as was his right under the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U. S. C. App. § 301, for restoration to his former position.* 1 He was reemployed as a welder on August 25,1944. 1 The Act provides in part: “Sec. 8 (a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3 (b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. . . . “(b) In the case of any such person who, irr order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service— “(A) if such position was in the employ of the United States Government, its Territories or possessions, or the District of Columbia, such person shall be restored to such position or to a position of like seniority, status, and pay; “(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employers circumstances have so changed as to make it impossible or unreasonable to do so; . . .” The forty-day period has been extended to ninety days. Section 8 (b) as amended in 1944, 58 Stat. 798, gives the veteran a right to be reemployed if he makes application “within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year.” FISHGOLD v. SULLIVAN CORP. 279 275 Opinion of the Court. The corporation and Local 13 of the Industrial Union of Marine and Shipbuilding Workers of America had a collective bargaining agreement which provided:2 “Promotions and reclassifications and increases or decreases in the working force shall be based upon length of service and ability to do the job. Wherever between two or more men, ability is fairly equal, length of service shall be the controlling factor.” As work at the shipyard decreased, men would be laid off. The men selected by the foremen, on the basis of ability and seniority, to be laid off would report to a department head for reassignment on the basis of their relative seniority when work became available. On each of nine days in the spring of 1945 petitioner was laid off although other welders, not veterans of the recent war, possessing the same or similar skill as petitioner, were given work on those days. These men were preferred because they had a higher shop seniority than petitioner. The decision to lay off petitioner followed a decision of an arbitrator who ruled that the seniority provisions of the collective bargaining agreement, which we have quoted, required it and 2 The agreement also provided : “Any employee other than a probationary employee who is drafted or volunteers for the Naval, Military or Merchant Marine Service of the United States, shall retain his seniority standing. In any further determination of said employee’s seniority status, the length of time spent by the employee in such service shall count toward his seniority as if he were actually and continuously employed by the Company. Any such employee who volunteers or is drafted must give the Company notice of his intention to so leave his employment. Any such employee who, within forty (40) days after his release or discharge from said service applies for re-employment, shall be rehired by the Company, provided work is available and the employee is reasonably fit for duty. Availability for work will be determined according to accumulated seniority and ability. If re-employed, said employee shall then receive the then current rate of pay for the job for which he is re-employed.” 717466 O—47-22 280 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. that they were not inconsistent with the provisions of the Selective Training and Service Act of 1940. Thereupon petitioner brought this suit, pursuant to § 8 (e) of the Act,3 to obtain a declaratory judgment as to his rights under the Act and to obtain compensation for the days he was not allowed to work. The corporation answered, justifying its action by the provisions of the collective bargaining agreement and the decision of the arbitrator. The union was permitted to intervene.4 It alleged in its answer that the action of the corporation was warranted by the provisions of the collective bargaining agreement and was not in violation of the Act. The District Court refused the declaratory judgment requested, 3 Section 8 (e) provides: “In case any private employer fails or refuses to comply with the provisions, of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of such employer’s unlawful action. The court shall order a speedy hearing in any such case and shall advance it on the calendar. Upon application to the United States district attorney or comparable official for the district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, such United States district attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof to specifically require such employer to comply with such provisions: Provided, That no fees or court costs shall be taxed against the person so applying for such benefits.” The United States appeared as amicus curiae in the Circuit Court of Appeals. It appears in this Court as representative of petitioner by reason of the provisions of § 8 (e). 4 Permissive intervention is governed by Rule 24 (b) of the Rules of Civil Procedure which allows it on timely application “when an applicant’s claim or defense and the main action have a question of law or fact in common.” FISHGOLD v. SULLIVAN CORP. 281 275 Opinion of the Court. but entered a money judgment for petitioner for the loss of wages during the nine days in question. 62 F. Supp. 25. It held that petitioner was laid off in violation of the Act. It was also of the view that the collective bargaining agreement was not inconsistent with the Act. Only the union appealed. The Circuit Court of Appeals reversed, one judge dissenting. 154 F. 2d 785. It held that the Act did not give petitioner the preference which he claimed and that the terms of the collective bargaining agreement justified the corporation’s action. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented. I. We are met at the outset with the claim that the union had no appealable interest in the judgment entered by the District Court and accordingly that the Circuit Court of Appeals lacked jurisdiction to entertain it. It is pointed out that a money judgment was entered only against the corporation and that no relief was granted against the union. It is therefore argued that the judgment did not affect any substantive right of the union and that at most the union had merely an interest in the outcome of litigation which might establish a precedent adverse to it. Boston Tow Boat Co. v. United States, 321 U. S. 632. It is also pointed out that the statutory guarantee against discharge without cause for one year5 had 8Section 8 (c) of the Act provides: “Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.” Paragraphs (A) and (B) of subsection (b) of § 8 are set forth in note 1, supra. 282 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. expired at the time of the District Court’s judgment, that therefore no declaratory relief was granted, and that petitioner’s rights for the future were not adjudicated. It is contended that the dispute between petitioner and the union has thus become moot. But that argument misses the point. The answer of the corporation and the union put in issue the question whether there was a conflict between the collective bargaining agreement and the Act and, if so, which one prevailed. The parties to the collective bargaining agreement—the union and the corporation—were before the court. A decision on the merits of petitioner’s claim necessarily involved a reconciliation between the Act and the collective bargaining agreement or, if it appeared that they conflicted, an adjudication that one superseded the other. As we have noted, the District Court was of the view that the collective bargaining agreement was not inconsistent with the Act. But, however the result might be rationalized, a decision for or against petitioner necessarily involved a construction of the collective bargaining agreement. That issue was adjudicated, with the union as a party. Hence, if the union had thereafter instituted a separate suit for an interpretation of the agreement, it would be met with the plea of res judicata. And that plea would be sustained, for the prior decision was on the precise point which the union sought to relitigate and was adverse to the union. And both parties to the agreement—the union and the corporation—were parties to the prior suit. This elementary principle has long been recognized. Black, The Law of Judgments (2d ed.), PP-764, 821, 936. As stated in Cromwell v. County of Sac, 94 U. S. 351, 352, a prior judgment “is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter FISHGOLD v. SULLIVAN CORP. 283 275 Opinion of the Court. which might have been offered for that purpose.” And see Rooker v. Fidelity Trust Co., 263 U. S. 413,415; Grubb n. Public Utilities Commission, 281 U. S. 470, 479; Stoll v. Gottlieb, 305 U. S. 165; Chicot County Drainage Dist. n. Baxter State Bank, 308 U. S. 371, 375, 378. The case of Boston Tow Boat Co. v. United States, supra, would be relevant if the collective bargaining agreement in issue was one between different parties.6 Then the union’s interest would be merely the interest of one seeking reversal of an adverse precedent. And its “independent right to relief” would not be increased by reason of its intervention in the cause. Alexander Sprunt & Son v. United States, 281 U. S. 249, 255. But here the rights of the union and its members under a contract with the corporation were adjudicated in a proceeding in which the union was a party. The contract was still in existence at the time of the appeal. Hence the case was not moot. And the only way the union could protect itself against that binding interpretation of the agreement was by an appeal. For then the union found itself in the position where a right of its own {Alexander Sprunt & Son v. United States, supra, p. 255) was adjudicated.7 It is suggested, however, that the result of what we do IS to free the union and the employer from costs and burden Fishgold with them. There are several answers to that. The allowance of costs has no bearing on what 6 In that case Boston Tow Boat Co. intervened in a proceeding before the Interstate Commerce Commission involving the status of another carrier. It sought to appeal from the adverse decision against the other carrier. That right was denied. The order in question was not determinative of the status of Boston Tow Boat Co. That question was involved in another order of the Commission from which oston Tow Boat Co. had an appeal pending. 7 The case is therefore closely analogous to one where the interest o an intervenor in property involved in the litigation was adjudicated. exter Horton National Bank v. Hawkins, 190 F. 924; United States v. Northwestern Development Co., 203 F. 960. 284 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. is or what is not res judicata. Their allowance to the prevailing party is not, moreover, a rigid rule. Under the Rules of Civil Procedure the court can direct otherwise. Rule 54 (d). And finally, Congress has provided in § 8 (e) of this Act that when a veteran applies to the District Court for the benefits of the Act “no fees or court costs shall be taxed” against him. II. We turn then to the merits. The Act was designed to protect the veteran in several ways. He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job. He was, moreover, to gain by his service for his country an advantage which the law withheld from those who stayed behind. These guarantees are contained in § 8 of the Act8 and extend to a veteran, honorably discharged and still qualified to perform the duties of his old position. (1) He has a stated period of time in which to apply for reemployment.9 § 8 (b). He is not pressed for a decision immediately on his discharge but has the opportunity to make plans for the future and readjust himself to civilian life. (2) He must be restored to his former position “or to a position of like seniority, status, and pay.” § 8 (b) (A), (B). He is thus protected against receiving a job inferior to that which he had before entering the armed services. (3) He shall be “restored without loss of seniority” and be considered “as having been on furlough or leave of absence” during the period of his service for his country, with all of the insurance and other benefits accruing to employees on furlough or leave of absence. § 8 (c). Thus he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise 8 Section 8 (b) is set forth in note 1, supra, and § 8 (c) in note 5, supra. 9 As we have noted, the original forty-day period has been extended to ninety days. See note 1, supra. FISHGOLD v. SULLIVAN CORP. 285 275 Opinion of the Court. point he would have occupied had he kept his position continuously during the war. (4) He “shall not be discharged from such position without cause within one year after such restoration.” § 8 (c). Petitioner’s case comes down to the meaning of this guarantee against “discharge.” “Discharge” is construed by him to include “lay-off.” And it is earnestly argued that Congress could not have intended to restore the veteran to his position, prevent his discharge without cause for one year, and yet not intend that he perform actual work if it was available. This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. See Boone v. Lightner, 319 U. S. 561, 575. And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits. We can find no support for petitioner’s position in the provision of § 8 (b) which restores him to his former position or to a “position of like seniority.” Nor can we find it in § 8 (c) which directs that he “shall be so restored without loss of seniority.” As we have said, these provisions guarantee the veteran against loss of position or loss of seniority by reason of his absence. He acquires not only the same seniority he had; his service in the armed services is counted as service in the plant so that he does not lose ground by reason of his absence. But we would distort the language of these provisions if we read it as granting the veteran an increase in seniority over what he would have had if he had never entered the armed serv- 286 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. ices. We agree with the Circuit Court of Appeals that by these provisions Congress made the restoration as nearly a complete substitute for the original job as was possible. No step-up or gain in priority can be fairly implied. Congress protected the veteran against loss of ground or demotion on his return. The provisions for restoration without loss of seniority to his old position or to a position of like seniority mean no more. Nor can we read into the guarantee against discharge “from such position” a gain or step-up in seniority. That guarantee does not in terms deal with the seniority problem. The problem of seniority is covered by the preceding provisions. The guarantee against discharge “from such position” is broad enough to cover demotions. The veteran is entitled to be restored to his old position or to a “position of like seniority, status, and pay.” If within the statutory period he is demoted, his status, which the Act was designed to protect, has been affected and the old employment relationship has been changed. He would then lose his old position and acquire an inferior one. He would within the meaning of § 8 (c) be “discharged from such position.” But the guarantee against discharge does not on its face suggest the grant of a preference to the veteran over and above that which was accorded by the seniority of “such position.” Discharge normally means termination of the employment relationship or loss of a position.10 In common parlance and in industrial parlance a person who has been laid off by operation of a seniority system and put on a waiting list for reassignment would hardly be considered 10 “Release or dismissal from an office, employment, etc.; as, the discharge of a workman.” Webster’s New International Dictionary (2d ed.). “To relieve of a charge or office; (more usually) to dismiss from office, service, or employment; to cashier.” Oxford English Dictionary. FISHGOLD v. SULLIVAN CORP. 287 275 Opinion of the Court. as having been “discharged.”11 There are three terms used in § 8 (c) which relate to various types of cessation of work—a “furlough,” a “leave of absence” and a discharge. A furlough is not considered a discharge. It is a form of lay-off. So is a leave of absence. And whether either results from unilateral action by the employer or otherwise, consequences are quite different from termination of the employment relationship. Section 8 (c) of the Act recognizes that insurance and other benefits may continue to accrue to an employee on furlough or on leave of absence. An employee on furlough or on leave of absence has a continuing relationship with the employer; he retains a right to be restored to work under specified conditions.12 Thus when Congress desired to cover the contingency of a lay-off, it used apt words to describe it. If it had desired to enact that, so long as there was work, no restored veteran, regardless of seniority, could be temporarily laid off during the year following his restoration, when the slackening of work required a reduction in forces, we are bound to believe that it would have used a word of the kind which it had itself recognized as being descriptive of that situation. The “position” to which the veteran is restored is the “position” which he left plus cumulated seniority. Certainly he would not have been discharged from such po- 11 Temporary suspension of an employee’s work commonly does not affect the continuance of his status. See Labor Board v. Waterman 8.8. Co., 309 U. S. 206; North Whittier Heights Citrus Assn. n. Labor Board, 109 F. 2d 76, 82. Lay-off” is defined as “A period during which a workman is temporarily dismissed or allowed to leave his work; that part or season of the year during which activity in a particular business or game is partly or completely suspended; an off-season.” Oxford English Dictionary, Supp. 2 See Union Agreement Provisions, Bureau of Labor Statistics, Department of Labor, H. Doc. No. 723, 77th Cong., 2d Sess., chs. 8,14. 288 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. sition and unable to get it back, if at the time of his induction into the armed services he had been laid off by operation of a seniority system. Plainly he still had his “position” when he was inducted. And in the same sense he retains it though a lay-off interrupts the continuity of work in the statutory period. Moreover, a veteran on his return is entitled to his old “position” or its equivalent even though at the time of his application the plant is closed down, say for retooling, and no work is available, unless of course the private employer’s “circumstances have so changed as to make it impossible or unreasonable” to restore him. § 8 (b) (B). He is entitled to be recalled to work in accordance with his seniority. His “position” exists though no work is then available. The slackening of work which causes him to be laid off by operation of a seniority system is neither a removal or dismissal or discharge from the “position” in any normal sense. Congress recognized in the Act the existence of seniority systems and seniority rights. It sought to preserve the veteran’s rights under those systems and to protect him against loss under them by reason of his absence. There is indeed no suggestion that Congress sought to sweep aside the seniority system. What it undertook to do was to give the veteran protection within the framework of the seniority system plus a guarantee against demotion or termination of the employment relationship without cause for a year. The construction which we have given “discharged” does not rob that guarantee of vitality. As the Circuit Court of Appeals observed, where there is a closed-shop agreement the union would normally afford its members protection against termination of their employment status without cause. But in many situations the guarantee against dismissal without cause for one year is of great FISHGOLD v. SULLIVAN CORP. 289 275 Opinion of the Court. practical importance and is a protection granted veterans only. Our construction of the Act finds support in its legislative history. Representative May had charge of the bill on the floor of the House. He explained an amendment to § 8 (c), which added the words “shall be considered during the period of service in such forces as on furlough or leave of absence” and also elaborated the clause dealing with “insurance or other benefits.” He said : “I may say that the chief purpose of the amendment is to preserve thé seniority rights of the thousands and hundreds of thousands of railroad employees and other employees of that character who have certain seniority privileges on the railroads. In other words, we put them on furlough during the time they are in the service and they will even be permitted to count this time on the question of their retirement.” 86 Cong. Rec. 11702. And before that amendment the Committee Report of the Senate stated : “The Congress, in this bill, has declared as its purpose and intent that every man who leaves his job to participate in this training and service should be reemployed without loss of seniority or other benefits upon his return to civil life.” S. Rep. No. 2002,76th Cong., 3d Sess., p. 8. We have searched the legislative history in vain for any statement of purpose that the protection accorded the veteran was the right to work when by operation of the seniority system there was none then available for him. It is said, however, that when Congress amended § 8 of the Act in 194413 (58 Stat. 798) and extended the Act in 1945 without any change in § 8 (c) (59 Stat. 166), it was apprised of an administrative interpretation of § 8 (c) that 13 See note 1, supra. 290 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. a veteran was entitled to his former job regardless of seniority; and that therefore congressional approval of or acquiescence in the administrative construction would be inferred. See Massachusetts Mutual Life Ins. Co. v. United States, 288 U. S. 269, 273, and cases cited. An administrative interpretation was rendered by the Director of Selective Service who was authorized to administer the Act.14 He had ruled that the Act required reinstatement of a veteran to “his former position or one of like seniority, status, and pay even though such reinstatement necessitates the discharge of a nonveteran with a greater seniority.”15 But a different construction was given to § 8 (c) by the National War Labor Board in its handling of disputes arising out of the negotiation of collective bargaining agreements.16 The Board read the Act as we read it. The ruling of the Director may be resorted to for guidance. See Skidmore v. Swift & Co., 323 U. S. 134, 140; Mabee v. White Plains Pub. Co., 327 U. S. 178. But his rulings are not made in adversary proceedings and are not entitled to the weight which is accorded interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. Skidmore v. Swift & Co., supra, p. 139. The history and language of the Act would need be far less clear for us to give his rulings persuasive weight. Moreover, as the Circuit Court of Appeals pointed out, the contrariety of administrative rulings17 lends less credence to the contention that Congress by the amendment in 1944 and the extension in 1945 showed a preference for one over the other. In view of the language of the Act and the nature of the 14 Executive Order 8545, September 23, 1940, 5 Fed. Reg. 3779. 15 Local Board Memorandum 190-A, May 20,1944, Part IV, § 1 (C). 16 See Scovill Mfg. Co., 21 War Labor Rep. 200, 201, 202. 17 See Note 54 Yale L. Journ. 417. FISHGOLD v. SULLIVAN CORP. 291 275 Black, J., dissenting. administrative findings, we would want explicit indication by Congress that it chose the Director’s interpretation before we concluded that Congress had adopted it. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Black, dissenting. I believe we should reverse the judgment of the Circuit Court of Appeals and remand the cause to it with directions to dismiss the appeal for want of jurisdiction because the Union was not a proper party to appeal. The money judgment was in favor of Fishgold and against the Sullivan Dry Dock and Repair Company. Had the Company paid the judgment, I see no way in which the Union would have been “aggrieved.” The only reason advanced by the Court for holding that the Union was “aggrieved” is that, had the District Court judgment remained on the books, the judicially formulated doctrine of res judicata would have barred the Union in any future proceedings from challenging the District Court’s application of the federal statute to the particular collective bargaining agreement. A fair application of res judicata bars a party in a second litigation only if that proceeding involves the same issues as the first litigation between the same adverse parties or privies. This means that res judicata could bar the Union only in a new proceeding between it and Fishgold or his privies. But there is no possibility of such litigation since the seniority right which the District Court held Fishgold had under the statute had under its provisions expired by the time the Union appealed. Res judicata would not have barred the Union in a proceeding between it and any other party, since no other party was 292 OCTOBER TERM, 1945. Black, J., dissenting. 328U.S. a party adverse to the Union in the present suit. And this includes any possible proceeding between the Union and the Sullivan Dry Dock Company since that Company, though a party, was not an adverse party in the trial court. None of the cases cited by the Court’s opinion support the proposition that a party is bound in a future litigation against a party that was not an adverse party, but on the same side, in the earlier litigation. Nor do these cases, or any other decision of this Court of which I am aware, formulate as the rule of this Court the harsh doctrine of collateral estoppel, adopted in a few state jurisdictions, which always bars a losing party, so long as the issue is the same, even though the later litigation involves different adverse parties. It is unlikely that this harsh doctrine, never adopted by this Court, would in the future have been applied to bar the Union in any further proceedings involving interpretation of the scope of its collective bargaining agreement in the light of the federal statute. In my opinion the Union would not have been barred by the trial court’s judgment. It was therefore not an aggrieved party and not entitled to appeal. The result of permitting parties not adversely affected to appeal a judgment is to impose burdens upon litigants actually interested when those litigants may themselves be fully satisfied with the judgment. The scope of res judicata should not be extended to produce such a result. This case illustrates the wisdom of the practice which permits parties to settle their own lawsuits without intervention by others interested only in precedents. Boston Tow Boat Co. v. United States, 321 U. S. 632. S. E. C. v. HOWEY CO. 293 Statement of the Case. SECURITIES & EXCHANGE COMMISSION v. W. J. HOWEY CO. et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 843. Argued May 2, 1946.—Decided May 27, 1946. 1. Upon the facts of this case, an offering of units of a citrus grove development coupled with a contract for cultivating, marketing and remitting the net proceeds to the investor, was an offering of an “investment contract” within the meaning of that term as used in the provision of §2 (1) of the Securities Act of 1933 defining “security” as including any “investment contract,” and was therefore subject to the registration requirements of the Act. Pp. 294-297, 299. 2. For purposes of the Securities Act, an investment contract (undefined by the Act) means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise. Pp. 298-299. 3. The fact that some purchasers, by declining to enter into the service contract, chose not to accept the offer of the investment contract in its entirety, does not require a different result, since the Securities Act prohibits the offer as well as the sale of unregistered, nonexempt securities. P. 300. 4. The test of whether there is an “investment contract” under the Securities Act is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others; and, if that test be satisfied, it is immaterial whether the enterprise is speculative or non-speculative or whether there is a sale of property with or without intrinsic value. P. 301. 5. The policy of the Securities Act of affording broad protection to investors is not to be thwarted by unrealistic and irrelevant formulae. P. 301. 151 F. 2d 714, reversed. The Securities & Exchange Commission sued in the District Court to enjoin respondents from using the mails and instrumentalities of interstate commerce in the offer 294 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. and sale of unregistered and non-exempt securities in violation of the Securities Act of 1933. The District Court denied the injunction. 60 F. Supp. 440. The Circuit Court of Appeals affirmed. 151 F. 2d 714. This Court granted certiorari. 327 U. S. 773. Reversed, p. 301. Roger S. Foster argued the cause for petitioner. With him on the brief were Solicitor General McGrath, Robert S. Rubin and Alexander Cohen. C. E. Duncan and George C. Bedell argued the cause and filed a brief for respondents. Mr. Justice Murphy delivered the opinion of the Court. This case involves the application of § 2 (1) of the Securities Act of 19331 to an offering of units of a citrus grove development coupled with a contract for cultivating, marketing and remitting the net proceeds to the investor. The Securities and Exchange Commission instituted this action to restrain the respondents from using the mails and instrumentalities of interstate commerce in the offer and sale of unregistered and non-exempt securities in violation of § 5 (a) of the Act. The District Court denied the injunction, 60 F. Supp. 440, and the Fifth Circuit Court of Appeals affirmed the judgment, 151 F. 2d 714. We granted certiorari on a petition alleging that the ruling of the Circuit Court of Appeals conflicted with other federal and state decisions and that it introduced a novel and unwarranted test under the statute which the Commission regarded as administratively impractical. Most of the facts are stipulated. The respondents, W. J. Howey Company and Howey-in-the-Hills Service, * *48 Stat. 74,15 U. S. C. § 77b (1). S. E. C. v. HOWEY CO. 295 293 Opinion of the Court. Inc., are Florida corporations under direct common control and management. The Howey Company owns large tracts of citrus acreage in Lake County, Florida. During the past several years it has planted about 500 acres annually, keeping half of the groves itself and offering the other half to the public “to help us finance additional development.” Howey-in-the-Hills Service, Inc., is a service company engaged in cultivating and developing many of these groves, including the harvesting and marketing of the crops. Each prospective customer is offered both a land sales contract and a service contract, after having been told that it is not feasible to invest in a grove unless service arrangements are made. While the purchaser is free to make arrangements with other service companies, the superiority of Howey-in-the-Hills Service, Inc., is stressed. Indeed, 85% of the acreage sold during the 3-year period ending May 31, 1943, was covered by service contracts with Howey-in-the-Hills Service, Inc. The land sales contract with the Howey Company provides for a uniform purchase price per acre or fraction thereof, varying in amount only in accordance with the number of years the particular plot has been planted with citrus trees. Upon full payment of the purchase price the land is conveyed to the purchaser by warranty deed. Purchases are usually made in narrow strips of land arranged so that an acre consists of a row of 48 trees. During the period between February 1, 1941, and May 31, 1943, 31 of the 42 persons making purchases bought less than 5 acres each. The average holding of these 31 persons was 1.33 acres and sales of as little as 0.65, 0.7 and 0-73 of an acre were made. These tracts are not separately fenced and the sole indication of several ownership is found in small land marks intelligible only through a plat book record. 717466 O—47-23 296 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. The service contract, generally of a 10-year duration, without option of cancellation, gives Howey-in-the-Hills Service, Inc., a leasehold interest and “full and complete” possession of the acreage. For a specified fee plus the cost of labor and materials, the company is given full discretion and authority over the cultivation of the groves and the harvest and marketing of the crops. The company is well established in the citrus business and maintains a large force of skilled personnel and a great deal of equipment, including 75 tractors, sprayer wagons, fertilizer trucks and the like. Without the consent of the company, the land owner or purchaser has no right of entry to market the crop;2 thus there is ordinarily no right to specific fruit. The company is accountable only for an allocation of the net profits based upon a check made at the time of picking. All the produce is pooled by the respondent companies, which do business under their own names. The purchasers for the most part are non-residents of Florida. They are predominantly business and professional people who lack the knowledge, skill and equipment necessary for the care and cultivation of citrus trees. They are attracted by the expectation of substantial profits. It was represented, for example, that profits during the 1943-1944 season amounted to 20% and that even greater profits might be expected during the 1944-1945 season, although only a 10% annual return was to be expected over a 10-year period. Many of these purchasers are patrons of a resort hotel owned and operated by the Howey Company in a scenic section adjacent to the groves. The hotel’s advertising mentions the fine groves in the vicinity and the attention of the patrons is drawn to the 2 Some investors visited their particular plots annually, making suggestions as to care and cultivation, but without any legal rights in the matters. S. E. C. v. HOWEY CO. 297 293 Opinion of the Court. groves as they are being escorted about the surrounding countryside. They are told that the groves are for sale; if they indicate an interest in the matter they are then given a sales talk. It is admitted that the mails and instrumentalities of interstate commerce are used in the sale of the land and service contracts and that no registration statement or letter of notification has ever been filed with the Commission in accordance with the Securities Act of 1933 and the rules and regulations thereunder. Section 2 (1) of the Act defines the term “security” to include the commonly known documents traded for speculation or investment.3 This definition also includes “securities” of a more variable character, designated by such descriptive terms as “certificate of interest or participation in any profit-sharing agreement,” “investment contract” and “in general, any interest or instrument commonly known as a ‘security.’ ” The legal issue in this case turns upon a determination of whether, under the circumstances, the land sales contract, the warranty deed and the service contract together constitute an “investment contract” within the meaning of § 2 (1). An affirmative answer brings into operation the registration requirements of §5 (a), unless the security is granted an exemption under § 3 (b). The lower courts, in reaching a negative answer to this problem, treated the contracts and deeds 3 “The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a secunty,’ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or nght to subscribe to or purchase, any of the foregoing.” 298 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. as separate transactions involving no more than an ordinary real estate sale and an agreement by the seller to manage the property for the buyer. The term “investment contract” is undefined by the Securities Act or by relevant legislative reports. But the term was common in many state “blue sky” laws in existence prior to the adoption of the federal statute and, although the term was also undefined by the state laws, it had been broadly construed by state courts so as to afford the investing public a full measure of protection. Form was disregarded for substance and emphasis was placed upon economic reality. An investment contract thus came to mean a contract or scheme for “the placing of capital or laying out of money in a way intended to secure income or profit from its employment.” State v. Gopher Tire & Rubber Co., 146 Minn. 52, 56, 177 N. W. 937, 938. This definition was uniformly applied by state courts to a variety of situations where individuals were led to invest money in a common enterprise with the expectation that they would earn a profit solely through the efforts of the promoter or of some one other than themselves.4 By including an investment contract within the scope of § 2 (1) of the Securities Act, Congress was using a term the meaning of which had been crystallized by this prior judicial interpretation. It is therefore reasonable to attach that meaning to the term as used by Congress, especially since such a definition is consistent with the statutory aims. In other words, an investment contract for purposes of the Securities Act means a contract, trans- * State n. Evans, 154 Minn. 95, 191 N. W. 425; Klatt v. Guaranteed Bond Co., 213 Wis. 12, 250 N. W. 825; State v. Heath, 199 N. C. 135, 153 S. E. 855; Prohaska v. Hemmer-Miller Development Co., 256 Ill. App. 331; People v. White, 124 Cal. App. 548, 12 P. 2d 1078; Stevens n. Liberty Packing Corp., Ill N.J. Eq. 61, 161 A. 193. See also Moore v. Stella, 52 Cal. App. 2d 766,127 P. 2d 300. S. E. C. v. HOWEY CO. 299 293 Opinion of the Court. action or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise. Such a definition necessarily underlies this Court’s decision in 8. E. C. v. Joiner Corp., 320 U. S. 344, and has been enunciated and applied many times by lower federal courts.* 5 It permits the fulfillment of the statutory purpose of compelling full and fair disclosure relative to the issuance of “the many types of instruments that in our commercial world fall within the ordinary concept of a security.” H. Rep. No. 85, 73d Cong., 1st Sess., p. 11. It embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits. The transactions in this case clearly involve investment contracts as so defined. The respondent companies are offering something more than fee simple interests in land, something different from a farm or orchard coupled with management services. They are offering an opportunity to contribute money and to share in the profits of a large citrus fruit enterprise managed and partly owned by respondents. They are offering this opportunity to persons who reside in distant localities and who lack the equip- 5 Atherton v. United States, 128 F. 2d 463; Penfield Co. v. 8. E. C., 143 F. 2d 746; 8. E. C. v. Universal Service Assn., 106 F. 2d 232; S- E. C. v. Crude Oil Corp., 93 F. 2d 844 ; 8. E. C. v. Bailey, 41 F. Supp. 647; 8. E. C. v. Payne, 35 F. Supp. 873; 8. E. C. v. Bourbon Sales Corp., 47 F. Supp. 70; 8. E. C. v. Wickham, 12 F. Supp. 245; -E. C. v. Timet rust, Inc., 28 F. Supp. 34; 8. E. C. v. Pyne, 33 F. Supp. 988. The Commission has followed the same definition in its own administrative proceedings. In re Natural Resources Corp., 8 S. E. C. 635. 300 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. ment and experience requisite to the cultivation, harvesting and marketing of the citrus products. Such persons have no desire to occupy the land or to develop it themselves; they are attracted solely by the prospects of a return on their investment. Indeed, individual development of the plots of land that are offered and sold would seldom be economically feasible due to their small size. Such tracts gain utility as citrus groves only when cultivated and developed as component parts of a larger area. A common enterprise managed by respondents or third parties with adequate personnel and equipment is therefore essential if the investors are to achieve their paramount aim of a return on their investments. Their respective shares in this enterprise are evidenced by land sales contracts and warranty deeds, which serve as a convenient method of determining the investors’ allocable shares of the profits. The resulting transfer of rights in land is purely incidental. Thus all the elements of a profit-seeking business venture are present here. The investors provide the capital and share in the earnings and profits; the promoters manage, control and operate the enterprise. It follows that the arrangements whereby the investors’ interests are made manifest involve investment contracts, regardless of the legal terminology in which such contracts are clothed. The investment contracts in this instance take the form of land sales contracts, warranty deeds and service contracts which respondents offer to prospective investors. And respondents’ failure to abide by the statutory and administrative rules in making such offerings, even though the failure result from a bona fide mistake as to the law, cannot be sanctioned under the Act. This conclusion is unaffected by the fact that some purchasers choose not to accept the full offer of an investment contract by declining to enter into a service contract with S. E. C. v. HOWEY CO. 301 293 Frankfurter, J., dissenting. the respondents. The Securities Act prohibits the offer as well as the sale of unregistered, non-exempt securities.6 Hence it is enough that the respondents merely offer the essential ingredients of an investment contract. We reject the suggestion of the Circuit Court of Appeals, 151F. 2d at 717, that an investment contract is necessarily missing where the enterprise is not speculative or promotional in character and where the tangible interest which is sold has intrinsic value independent of the success of the enterprise as a whole. The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. If that test be satisfied, it is immaterial whether the enterprise is speculative or non-speculative or whether there is a sale of property with or without intrinsic value. See S. E. C. v. Joiner Corp., supra, 352. The statutory policy of affording broad protection to investors is not to be thwarted by unrealistic and irrelevant formulae. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting. “Investment contract” is not a term of art; it is a conception dependent upon the circumstances of a particular situation. If this case came before us on a finding authorized by Congress that the facts disclosed an “investment contract” within the general scope of § 2 (1) of the Securities Act, 48 Stat. 74,15 U. S. C. § 77b (1), the Securities and Exchange Commission’s finding would govern, unless, on the record, it was wholly unsupported. But The registration requirements of § 5 refer to sales of securities, ction 2 (3) defines “sale” to include every “attempt or offer to dispose of, or solicitation of an offer to buy,” a security for value. 302 OCTOBER TERM, 1945. Frankfurter, J., dissenting. 328U.S. that is not the case before us. Here the ascertainment of the existence of an “investment contract” had to be made independently by the District Court and it found against its existence. 60 F. Supp. 440. The Circuit Court of Appeals for the Fifth Circuit sustained that finding. 151 F. 2d 714. If respect is to be paid to the wise rule of judicial administration under which this Court does not upset concurrent findings of two lower courts in the ascertainment of facts and the relevant inferences to be drawn from them, this case clearly calls for its application. See Allen v. Trust Company of Georgia, 326 U. S. 630. For the crucial issue in this case turns on whether the contracts for the land and the contracts for the management of the property were in reality separate agreements or merely parts of a single transaction. It is clear from its opinion that the District Court was warranted in its conclusion that the record does not establish the existence of an investment contract: “. . . the record in this case shows that not a single sale of citrus grove property was made by the Howey Company during the period involved in this suit, except to purchasers who actually inspected the property before purchasing the same. The record further discloses that no purchaser is required to engage the Service Company to care for his property and that of the fifty-one purchasers acquiring property during this period, only forty-two entered into contracts with the Service Company for the care of the property.’ 60 F. Supp. at 442. Simply because other arrangements may have the appearances of this transaction but are employed as an evasion of the Securities Act does not mean that the present contracts were evasive. I find nothing in the Securities Act to indicate that Congress meant to bring every innocent transaction within the scope of the Act simply because a perversion of them is covered by the Act. UNITED STATES v. LOVETT. 303 Syllabus. UNITED STATES v. LOVETT. NO. 809. CERTIORARI TO THE COURT OF CLAIMS.* Argued May 3, 6, 1946.—Decided June 3, 1946. 1. The issue as to the validity of § 304 of the Urgent Deficiency Appropriation Act of 1943, providing that, after November 15,1943, no salary or other compensation shall be paid to certain employees of the Government (specified by name) out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were again appointed by the President with the advice and consent of the Senate prior to such date, is not a mere political issue over which Congress has final say; and a challenge to its constitutionality presents a justiciable question to the courts. P. 313. (a) It is not a mere appropriation measure over which Congress has complete control. P. 313. (b) Its purpose was not merely to cut off the employees’ compensation through regular disbursing channels but permanently to bar them from government service, except as jurors or soldiers— because of what Congress thought of their political beliefs. P. 313. (c) The Constitution did not contemplate that congressional action aimed at three individuals, which stigmatized their reputations and seriously impaired their chances to earn a living, could never be challenged in court. P. 314. 2. Section 304 violates Article I, § 3, cl. 9 of the Constitution, which forbids the enactment of any bill of attainder or ex post facto law. P. 315. (a) Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. P. 315. (b) Section 304 clearly accomplishes the punishment of named individuals without a judicial trial. P. 316. ^Together with Nfl. 810, United States v. Watson, and No. 811, rated States v. Dodd, on certiorari to the same court, argued and decided on the same dates. 304 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. (c) The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found by Congress to be guilty of disloyalty makes it no less effective than if it had been done by an Act which designated the conduct as criminal. P. 316. 104 Ct. Cis. 557,66 F. Supp. 142, affirmed. The Court of Claims entered judgments in favor of certain government employees for services rendered after November 15, 1943, to whom § 304 of the Urgent Deficiency Appropriation Act of 1943, 57 Stat. 431, 450, forbade payment of any compensation after that date from appropriated funds. 104 Ct. Cis. 557, 66 F. Supp. 142. This Court granted certiorari. v 327 U. S. 773. Affirmed, p. 318. Ralph F. Fuchs argued the cause for the United States. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett, David L. Kreeger and Joseph B. Goldman. Charles A. Hor sky argued the cause for respondents. With him on the brief were Edward B. Burling and Amy Ruth Mahin. By special leave of Court, John C. Gall argued the cause for the Congress of the United States, as amicus curiae, urging reversal. With him on the brief were Dean Hill Stanley and Clark M. Robertson. Robert W. Kenny filed a brief for the National Lawyers Guild, as amicus curiae, urging affirmance. Mr. Justice Black delivered the opinion of the Court. In 1943 the respondents, Lovett, Watson, and Dodd, were and had been for several years working for the Government. The government agencies which had lawfully UNITED STATES v. LOVETT. 305 303 Opinion of the Court. employed them were fully satisfied with the quality of their work and wished to keep them employed on their jobs. Over the protest of those employing agencies, Congress provided in § 304 of the Urgent Deficiency Appropriation Act of 1943, by way of an amendment attached to the House bill, that after November 15,1943, no salary or compensation should be paid respondents out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were prior to November 15, 1943 again appointed to jobs by the President with the advice and consent of the Senate.1 57 Stat. 431, 450. Notwithstanding the congressional enactment, and the failure of the President to reappoint respondents, the agencies kept all the respondents at work on their jobs for varying periods after November 15,1943; but their compensation was discontinued after that date. To secure compensation for this post-November 15th work, respondents brought these actions in the Court of 1 Section 304 provides: “No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15,1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate: Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943: Provided further, That this section shall not operate to deprive any such person of payment for services performed as a member of a jury or as a member of the armed forces of the United States nor any benefit, pension, or emolument resulting therefrom.” As we shall point out, the President signed the bill because he had to do so since the appropriated funds were imperatively needed to carry on the war. He felt, however, that § 304 of the bill was unconstitutional, and failed to reappoint respondents. 306 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. Claims. They urged that § 304 is unconstitutional and void on the grounds that: (1) The section, properly interpreted, shows a congressional purpose to exercise the power to remove executive employees, a power not entrusted to Congress but to the Executive Branch of Government under Article II, §§ 1, 2, 3, and 4 of the Constitution; (2) the section violates Article I, § 9, Clause 3, of the Constitution which provides that “No Bill of Attainder or ex post facto Law shall be passed”; (3) the section violates the Fifth Amendment, in that it singles out these three respondents and deprives them of their liberty and property without due process of law. The Solicitor General, appearing for the Government, joined in the first two of respondents’ contentions but took no position on the third. House Resolution 386, 89 Cong. Rec. 10882, and Joint Resolution No. 230, 78th Congress, 58 Stat. 113, authorized a special counsel to appear on behalf of the Congress. This counsel denied all three of respondents’ contentions. He urged that § 304 was a valid exercise of congressional power under Article I, § 8, Clause 1; § 8, Clause 18; and § 9, Clause 7 of the Constitution, which sections empower Congress “To lay and collect Taxes ... to pay the Debts and provide for the common Defence and general Welfare of the United States,” and “To make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” and provide that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . .” Counsel for Congress also urged that § 304 did not purport to terminate respondents’ employment. According to him, it merely cut off respondents’ pay and deprived governmental agencies of any power to make enforceable contracts with respondents for any further compensation. The contention was that this involved UNITED STATES v. LOVETT. 307 303 Opinion of the Court. simply an exercise of congressional powers over appropriations, which, according to the argument, are plenary and not subject to judicial review. On this premise counsel for Congress urged that the challenge of the constitutionality of § 304 raised no justiciable controversy. The Court of Claims entered judgments in favor of respondents. Some of the judges were of the opinion that § 304, properly interpreted, did not terminate respondents’ employment, but only prohibited payment of compensation out of funds generally appropriated, and that, consequently, the continued employment of respondents was valid, and justified their bringing actions for pay in the Court of Claims. Other members of the Court thought § 304 unconstitutional and void, either as a bill of attainder, an encroachment on exclusive executive authority, or a denial of due process. 104 Ct. Cis. 557, 66 F. Supp. 142. We granted certiorari because of the manifest importance of the questions involved. In this Court the parties and counsel for Congress have urged the same points as they did in the Court of Claims. According to the view we take we need not decide whether S 304 is an unconstitutional encroachment on executive power or a denial of due process of law, and the section is not challenged on the ground that it violates the First Amendment. Our inquiry is thus confined to whether the actions in the light of a proper construction of the Act present justiciable controversies; and, if so, whether § 304 is a bill of attainder against these respondents, involving a use of power which the Constitution unequivocally declares Congress can never exercise. These questions require an interpretation of the meaning and purpose of the section, which in turn requires an understanding of the circumstances leading to its passage. We, consequently, find it necessary to set out these circumstances somewhat in detail. 308 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. In the background of the statute here challenged lies the House of Representatives’ feeling in the late thirties that many “subversives” were occupying influential positions in the Government and elsewhere and that their influence must not remain unchallenged. As part of its program against “subversive” activities the House in May 1938 created a Committee on Un-American Activities, which became known as the Dies Committee, after its Chairman, Congressman Martin Dies. H. Res. 282, 83 Cong. Rec. 7568-7587. This Committee conducted a series of investigations and made lists of people and organizations it thought “subversive.” See e. g. : H. Rep. No. 1, 77th Cong., 1st Sess.; H. Rep. No. 2748, 77th Cong., 2d Sess. The creation of the Dies Committee was followed by provisions such as § 9A of the Hatch Act, 53 Stat. 1148, 1149, and §§15 (f) and 17 (b) of the Emergency Relief Appropriation Act of 1941, 54 Stat. 611, which forbade the holding of a federal job by anyone who was a member of a political party or organization that advocated the overthrow of our constitutional form of Government in the United States. It became the practice to include a similar prohibition in all appropriations acts, together with criminal penalties for its violation.2 Under these provisions the Federal Bureau of Investigation began wholesale investigations of federal employees, which investigations were financed by special congressional appropriations. 55 Stat. 292, 56 Stat. 468, 482. Thousands were investigated. While all this was happening, Mr. Dies on February 1, 1943, in a long speech on the floor of the House attacked thirty-nine named government employees as “irresponsible, unrepresentative, crackpot, radical bureaucrats” and 2 55 Stat. 92, § 5; 55 Stat. 265, § 504 ; 55 Stat. 303, § 7; 55 Stat. 366, § 10; 55 Stat. 408, § 3; 55 Stat. 446, § 5; 55 Stat. 466, § 704 ; 55 Stat. 499, § 10; House Doc. 833, 77th Cong., 2d Sess. UNITED STATES v. LOVETT. 309 303 Opinion of the Court. affiliates of “Communist front organizations.” Among these named individuals were the three respondents. Congressman Dies told the House that respondents, as well as the other thirty-six individuals he named, were because of their beliefs and past associations unfit to “hold a Government position” and urged Congress to refuse “to appropriate money for their salaries.” In this connection he proposed that the Committee on Appropriations “take immediate and vigorous steps to eliminate these people from public office.” 89 Cong. Rec. 474, 479, 486. Four days later an amendment was offered to the Treasury-Post Office Appropriation Bill which provided that “no part of any appropriation contained in this act shall be used to pay the compensation of” the thirty-nine individuals Dies had attacked. 89 Cong. Rec. 645. The Congressional Record shows that this amendment precipitated a debate that continued for several days. Id. 645-742. All of those participating agreed that the “charges” against the thirty-nine individuals were serious. Some wanted to accept Congressman Dies’ statements as sufficient proof of “guilt,” while others referred to such proposed action as “legislative lynching,” id. at 651, smacking “of the procedure in the French Chamber of Deputies, during the Reign of Terror.” Id. at 654. The Dies charges were referred to as “indictments,” and many claimed this made it necessary that the named federal employees be given a hearing and a chance to prove themselves innocent. Id. at 711. Congressman Dies then suggested that the Appropriations Committee “weigh the evidence and . . . take immediate steps to dismiss these people from the Federal service.” Id. at 651. Eventually a resolution was proposed to defer action until the Appropriations Committee could investigate, so that accused federal employees would get a chance to prove themselves “innocent” of communism or disloyalty, and so that each “man would 310 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. have his day in court,” and “There would be no star chamber proceedings.” Id. at 711 and 713; but see id. at 715. The resolution which was finally passed authorized the Appropriations Committee acting through a special subcommittee “. . . to examine into any and all allegations or charges that certain persons in the employ of the several executive departments and other executive agencies are unfit to continue in such employment by reason of their present association or membership or past association or membership in or with organizations whose aims or purposes are or have been subversive to the Government of the United States.” Id. at 734, 742. The Committee was to have full plenary powers, including the right to summon witnesses and papers, and was to report its “findings and determination” to the House. It was authorized to attach legislation recommended by it to any general or special appropriation measure, notwithstanding general House rules against such practice. Id. at 734. The purpose of the resolution was thus described by the Chairman of the Committee on Appropriations in his closing remarks in favor of its passage: “The third and the really important effect is that we will expedite adjudication and disposition of these cases and thereby serve both the accused and the Government. These men against whom charges are pending are faced with a serious situation. If they are not guilty they are entitled to prompt exoneration ; on the other hand, if they are guilty, then the quicker the Government removes them the sooner and the more certainly will we protect the Nation against sabotage and fifth-column activity.” Id. at 741. After the resolution was passed, a special subcommittee of the Appropriations Committee held hearings in secret executive session. Those charged with “subversive” beliefs and “subversive” associations were permitted to testify, but lawyers, including those representing the agen- UNITED STATES v. LOVETT. 311 303 Opinion of the Court. cies by which the accused were employed, were not permitted to be present. At the hearings, committee members, the committee staff, and whatever witness was under examination were the only ones present. The evidence, aside from that given by the accused employees, appears to have been largely that of reports made by the Dies Committee, its investigators, and Federal Bureau of Investigation reports, the latter being treated as too confidential to be made public. After this hearing, the subcommittee’s reports and recommendations were submitted to the House as part of the Appropriation Committee’s report. The subcommittee stated that it had regarded the investigations “as in the nature of an inquest of office” with the ultimate purpose of purging the public service of anyone found guilty of “subversive activity.” The committee, stating that “subversive activity” had not before been defined by Congress or by the courts, formulated its own definition of “subversive activity” which we set out in the margin.3 Respondents Watson, Dodd, and Lovett were, according to the subcommittee, guilty of having engaged in “subversive activity within the definition adopted by the committee.” H. Rep. No. 448, 78th Cong., 1st Sess., 5-7, 9. The ultimate finding and recommendation as to respondent Watson, which was substantially similar to the findings with respect to Lovett and Dodd, read as follows: Upon consideration of all of the evidence, your committee finds that the membership and association of Dr. Goodwin B. Watson with the organizations mentioned, 'Subversive activity in this country derives from conduct intentionally destructive of or inimical to the Government of the United States—that which seeks to undermine its institutions, or to distort its functions, or to impede its projects, or to lessen its efforts, the ultimate end being to overturn it all. Such activity may be open and direct as by effort to overthrow, or subtle and indirect as by sabotage.” H. Rep. No. 448,78th Cong., 1st Sess., p. 5. 717466 O—47--24 312 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. and his views and philosophies as expressed in various statements and writings constitute subversive activity within the definition adopted by your committee, and that he is, therefore, unfit for the present to continue in Government employment.” H. Rep. No. 448, 78th Cong., 1st Sess., p. 6. As to Lovett the Committee further reported that it had rejected a “strong appeal” from the Secretary of the Interior for permission to retain Lovett in government service, because as the Committee stated, it could not “escape the conviction that this official is unfit to hold a position of trust with this Government by reason of his membership, association, and affiliation with organizations whose aims and purposes are subversive to the Government of the United States.” Id. at 12. Section 304 was submitted to the House along with the Committee Report. Congressman Kerr, who was chairman of the subcommittee, stated that the issue before the House was simply: “. . . whether or not the people of this country want men who are not in sympathy with the institutions of this country to run it.” He said further: . . these people under investigation have no property rights in these offices. One Congress can take away their rights given them by another.” 89 Cong. Rec. 4583. Other members of the House during several days of debate bitterly attacked the measure as unconstitutional and unwise. Id. at 4482-4487, 4546-4556, 4581-4605. Finally § 304 was passed by the House. The Senate Appropriation Committee eliminated § 304 and its action was sustained by the Senate. 89 Cong. Rec. 5024. After the first conference report which left the matter still in disagreement the Senate voted 69 to 0 against the conference report which left § 304 in the bill. The House, however, insisted on the amendment and indicated that it would not approve any appropriation bill without § 304. Finally, after the fifth conference report UNITED STATES v. LOVETT. 313 303 Opinion of the Court. showed that the House would not yield, the Senate adopted §304. When the President signed the bill he stated: “The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional.” H. Doc. 264, 78th Cong., 1st Sess. I. In view of the facts just set out, we cannot agree with the two judges of the Court of Claims who held that § 304 required “a mere stoppage of disbursing routine, nothing more,” and left the employer governmental agencies free to continue employing respondents and to incur contractual obligations by virtue of such continued work which respondents could enforce in the Court of Claims. Nor can we agree with counsel for Congress that the section did not provide for the dismissal of respondents but merely forbade governmental agencies to compensate respondents for their work or to incur obligations for such compensation at any and all times. We therefore cannot conclude, as he urges, that § 304 is a mere appropriation measure, and that, since Congress under the Constitution has complete control over appropriations, a challenge to the measure s constitutionality does not present a justiciable question in the courts, but is merely a political issue over which Congress has final say. We hold that the purpose of § 304 was not merely to cut off respondents’ compensation through regular disbursing channels but permanently to bar them from government service, and that the issue of whether it is constitutional is justiciable. The section’s language as well as the circumstances of its passage which we have Just described show that no mere question of compensation procedure or of appropriations was involved, but that it 314 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency. Cf. United States v. Dickerson, 310 U. S. 554. Any other interpretation of the section would completely frustrate the purpose of all who sponsored § 304, which clearly was to “purge” the then existing and all future lists of government employees of those whom Congress deemed guilty of “subversive activities” and therefore “unfit” to hold a federal job. What was challenged, therefore, is a statute which, because of what Congress thought to be their political beliefs, prohibited respondents from ever engaging in any government work, except as jurors or soldiers. Respondents claimed that their discharge was unconstitutional; that they consequently rightfully continued to work for the Government and that the Government owes them compensation for services performed under contracts of employment. Congress has established the Court of Claims to try just such controversies. What is involved here is a congressional proscription of Lovett, Watson, and Dodd, prohibiting their ever holding a government job. Were this case to be not justiciable, congressional action, aimed at three named individuals, which stigmatized their reputation and seriously impaired their chance to earn a living, could never be challenged in any court. Our Constitution did not contemplate such a result. To quote Alexander Hamilton, “. . . a limited constitution . . . [is] one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Federalist Paper No. 78. UNITED STATES v. LOVETT. 315 303 Opinion of the Court. II. We hold that § 304 falls precisely within the category of congressional actions which the Constitution barred by providing that “No Bill of Attainder or ex post facto Law shall be passed.” In Cummings v. Missouri, 4 Wall. 277, 323, this Court said, “A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.” The Cummings decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummings, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath. The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States and had never been a member of, or connected with, any order, society, or organization, inimical to the government of the United States . . In an illuminating opinion which gave the historical background of the constitutional prohibition against bills of attainder, this Court invalidated the Missouri constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation. On the same day the Cummings case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group m such a way as to inflict punishment on them without a Jn icial trial are bills of attainder prohibited by the Con- 316 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. stitution. Adherence to this principle requires invalidation of § 304. We do adhere to it. Section 304 was designed to apply to particular individuals.4 Just as the statute in the two cases mentioned, it “operates as a legislative decree of perpetual exclusion” from a chosen vocation. Ex parte Garland, supra, at 377. This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U. S. C. 2; acceptance of bribes by members of Congress, 18 U. S. C. 199, 202, 203; or by other government officials, 18 U. S. C. 207; and interference with elections by Army and Navy officers, 18 U. S. C. 58. Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of disloyalty, makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal.5 No one would think that Congress could have passed a valid law, stating that after investigation it had found Lovett, Dodd, and Watson “guilty” of the crime of engaging in “subversive activities,” defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result. The effect was to inflict punishment without the safeguards of a judicial trial and 4 This is of course one of the usual characteristics of bills of attainder. See Wooddeson, Law Lectures: A Systematical View of the Laws of England (1792), No. 41, 622. 5 See Cummings v. Missouri, supra, 4 Wall, at 325, 329; see also Fletcher v. Peck, 6 Cranch 87, 138-139; Burgess v. Salmon, 97 U. S. 381,385. UNITED STATES v. LOVETT. 317 303 Opinion of the Court. “determined by no previous law or fixed rule.” 6 The Constitution declares that that cannot be done either by a State or by the United States. Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U. S. 304. And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction 6 See dissent of Mr. Justice Miller in Cummings v. Missouri, supra, 4 Wall, at 388; see also Wooddeson, supra, at 624, 638 et seq. Section 304 has all the characteristics of bills of attainder, even as they axe set out by Justice Miller’s dissent, except the corruption of blood. 4 Wall, at 387. The American precedents do not consider corruption of blood a necessary element. Originally a judgment of death was necessary to attaint and the consequences of attainder were forfeiture and corruption of blood. Coke, First Institute (on Littleton) (Thomas Ed. 1818) Vol. Ill, 559, 563, 565. If the judgment was lesser punishment than death, there was no attaint and the bill was one of pains and penalties. Practically all the American precedents are bills of pams and penalties. See Thompson, Anti-Loyalist Legislation During the American Revolution (1908) 3 Ill. L. Rev. 81, 153 et passim; John C. Hamilton, History of the Republic of the United States (1859) HI, 23-40. The Constitution in prohibiting bills of attainder undoubtedly included bills of pains and penalties, as the majority in the Cummings case held. 318 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U. S. 227, 235-238. When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder. Section 304 is one. Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here. Section 304 therefore does not stand as an obstacle to payment of compensation to Lovett, Watson, and Dodd. The judgment in their favor is Affirmed. Mr. Justice Jackson took no part in the consideration or decision of these cases. Mr. Justice Frankfurter, whom Mr. Justice Reed joins, concurring. Nothing would be easier than personal condemnation of the provision of the Urgent Deficiency Appropriation Act of 1943 here challenged. § 304, 57 Stat. 431, 450? 1 “Sec. 304. No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15, 1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate. Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943. Provided further, That this section shall not operate to deprive any such person of payment for services performed as a member of a jury or as a member of the armed forces of the United States nor any benefit, pension, or emolument resulting therefrom.” UNITED STATES v. LOVETT. 319 303 Frankfurter, J., concurring. But the judicial function exacts considerations very different from those which may determine a vote in Congress for or against a measure. And what may be decisive for a Presidential disapproval may not at all satisfy the established criteria which alone justify this Court’s striking down an act of Congress. It is not for us to find unconstitutionality in what Congress enacted although it may imply notions that are abhorrent to us as individuals or policies we deem harmful to the country’s well-being. Although it was proposed at the Constitutional Convention to have this Court share in the legislative process, the Framers saw fit to exclude it. And so “it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 270. This admonition was uttered by Mr. Justice Holmes in one of his earliest opinions and it needs to be recalled whenever an exceptionally offensive enactment tempts the Court beyond its strict confinements. Not to exercise by indirection authority which the Constitution denied to this Court calls for the severest intellectual detachment and the most alert self-restraint. The scrupulous observance, with some deviations, of the professed limits of this Court’s power to strike down legislation has been, perhaps, the one quality the great judges of the Court have had in common. Particularly when Congressional legislation is under scrutiny, every rational trail must be pursued to prevent collision between Congress and Court. For Congress can readily mend its ways, or the people may express disapproval by choosing different representatives. But a decree of unconstitutionality by this Court is fraught with consequences so enduring and far-reaching as to be avoided unless no choice is left reason. 320 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. The inclusion of § 304 in the Appropriation Bill undoubtedly raises serious constitutional questions. But the most fundamental principle of constitutional adjudication is not to face constitutional questions but to avoid them, if at all possible. And so the “Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Brandeis, J., concurring, in Ash wander v. Tennessee Valley Authority, 297 U. S. 288, 341, at 346. That a piece of legislation under scrutiny may be widely unpopular is as irrelevant to the observance of these rules for abstention from avoidable adjudications as that it is widely popular. Some of these rules may well appear over-refined or evasive to the laity. But they have the support not only of the profoundest wisdom. They have been vindicated, in conspicuous instances of disregard, by the most painful lessons of our constitutional history. Such are the guiding considerations enjoined by constitutional principles and the best practice for dealing with the various claims of unconstitutionality so ably pressed upon us at the bar. The Court reads § 304 as though it expressly discharged respondents from office which they held and prohibited them from holding any office under the Government in the future. On the basis of this reading the Court holds that the provision is a bill of attainder in that it “inflicts punishment without a judicial trial,” Cummings n. Missouri, 4 Wall. 277, 323, and is therefore forbidden by Article I, § 9 of the Constitution. Congress is said to have inflicted this punishment upon respondents because it disapproved the beliefs they were thought to hold. Such a colloquial treatment of the statute neglects the relevant canons of constitutional adjudication and disregards those UNITED STATES v. LOVETT. 321 303 Frankfurter, J., concurring. features of the legislation which call its validity into question on grounds other than inconsistency with the prohibition against bills of attainder. To characterize an act of Congress as a bill of attainder readily enlists, however, the instincts of a free people who are committed to a fair judicial process for the determination of issues affecting life, liberty, or property and naturally abhor anything that resembles legislative determination of guilt and legislative punishment. As I see it, our duty precludes reading § 304 as the Court reads it. But even if it were to be so read the provision is not within the constitutional conception of a bill of attainder. Broadly speaking, two types of constitutional claims come before this Court. Most constitutional issues derive from the broad standards of fairness written into the Constitution (e. g. “due process,” “equal protection of the laws,” “just compensation”), and the division of power as between States and Nation. Such questions, by their very nature, allow a relatively wide play for individual legal judgment. The other class gives no such scope. For this second class of constitutional issues derives from very specific provisions of the Constitution. These had their source in definite grievances and led the Fathers to proscribe against recurrence of their experience. These specific grievances and the safeguards against their recurrence were not defined by the Constitution. They were defined by history. Their meaning was so settled by history that definition was superfluous. Judicial enforcement of the Constitution must respect these historic limits. The prohibition of bills of attainder falls of course among these very specific constitutional provisions. The distinguishing characteristic of a bill of attainder is the substitution of legislative determination of guilt and legislative imposition of punishment for judicial finding and 322 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. sentence. “A bill of attainder, by the common law, as our fathers imported it from England and practised it themselves, before the adoption of the Constitution, was an act of sovereign power, in the form of a special statute ... by which a man was pronounced guilty or attainted of some crime, and punished by deprivation of his vested rights, without trial or judgment per legem terrae.” Farrar, Manual of the Constitution (1867) 419. And see 2 Story, Commentaries on the Constitution (5th ed., 1891) 216; 1 Cooley, Constitutional Limitations (8th ed., 1927) 536. It was this very special, narrowly restricted, intervention by the legislature, in matters for which a decent regard for men’s interests indicated a judicial trial, that the Constitution prohibited. It must be recalled that the Constitution was framed in an era when dispensing justice was a well-established function of the legislature. The prohibition against bills of attainder must be viewed in the background of the historic situation when moves in specific litigation that are now the conventional and, for the most part, the exclusive concern of courts were commonplace legislative practices. See Calder n. Bull, 3 Dall. 386; Wilkinson v. Leland, 2 Pet. 627, 660; Baltimore & Susquehanna R. Co. v. Nesbit, 10 How. 395; Pound, Justice According to Law, II (1914) 14 Col. L. Rev. 1-12; Woodruff, Chancery in Massachusetts (1889) 5 L. Q. Rev. 370. Cf. Sinking-Fund Cases, 99 U. S. 700. Bills of attainder were part of what now are staple judicial functions which legislatures then exercised. It was this part of their recognized authority which the Constitution prohibited when it provided that “No Bill of Attainder . . • shall be passed.” Section 304 lacks the characteristics of the enactments in the Statutes of the Realm and the Colonial Laws that bear the hallmarks of bills of attainder. All bills of attainder specify the offense for which the attainted person was deemed guilty and for which the UNITED STATES v. LOVETT. 323 303 Frankfurter, J., concurring. punishment was imposed. There was always a declaration of guilt either of the individual or the class to which he belonged. The offense might be a pre-existing crime or an act made punishable ex post facto. Frequently a bill of attainder was thus doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause—“No Bill of Attainder or ex post facto Law shall be passed.” No one claims that § 304 is an ex post facto law. If it is in substance a punishment for acts deemed “subversive” (the statute, of course, makes no such charge) for which no punishment had previously been provided, it would clearly be ex post facto. Therefore, if § 304 is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder. No offense is specified and no declaration of guilt is made. When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchical England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder. “Upon this point a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349. Nor should resentment against an injustice displace controlling history in judicial construction of the Constitution. Not only does § 304 lack the essential declaration of guilt. It likewise lacks the imposition of punishment in the sense appropriate for bills of attainder. The punishment imposed by the most dreaded bill of attainder was of course death; lesser punishments were imposed by similar bills more technically called bills of pains and pen- 324 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. alties. The Constitution outlaws this entire category of punitive measures. Fletcher v. Peck, 6 Cranch 87, 138; Cummings v. Missouri, 4 Wall. 277. The amount of punishment is immaterial to the classification of a challenged statute. But punishment is a prerequisite. Punishment presupposes an offense, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony, Hawker v. New York, 170 U. S. 189, or because he is no longer qualified, Dent v. West Virginia, 129 U. S. 114. “The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.” Cummings v. Missouri, 4 Wall. 277,320. Is it clear then that the respondents were removed from office, still accepting the Court’s reading of the statute, as a punishment for past acts? Is it clear, that is, to that degree of certitude which is required before this Court declares legislation by Congress unconstitutional? The disputed section does not say so. So far as the House of Representatives is concerned, the Kerr Committee, which proposed the measure, and many of those who voted in favor of the Bill (assuming it is appropriate to go behind the terms of a statute to ascertain the unexpressed motive of its members), no doubt considered the respondents “subversive” and wished to exclude them from the Government because of their past associations and their present views. But the legislation upon which we now pass judgment is the product of both Houses of Congress UNITED STATES v. LOVETT. 325 303 Frankfurter, J., concurring. and the President. The Senate five times rejected the substance of § 304. It finally prevailed, not because the Senate joined in an unexpressed declaration of guilt and retribution for it, but because the provision was included in an important appropriation bill. The stiffest interpretation that can be placed upon the Senate’s action is that it agreed to remove the respondents from office (still assuming the Court’s interpretation of § 304) without passing any judgment on their past conduct or present views. Section 304 became law by the President’s signature. His motive in allowing it to become law is free from doubt. He rejected the notion that the respondents were “subversive,” and explicitly stated that he wished to retain them in the service of the Government. H. Doc. No. 264, 78th Cong., 1st Sess. Historically, Parliament passed bills of attainder at the behest of the monarch. See Adams, Constitutional History of England (Rev. ed., 1935) 228-29. The Constitution, of course, provides for the enactment of legislation even against disapproval by the Executive. But to hold that a measure which did not express a judgment of condemnation by the Senate and carried an affirmative disavowal of such condemnation by the President constitutes a bill of attainder, disregards the historic tests for determining what is a bill of attainder. At the least, there are such serious objections to finding § 304 a bill of attainder that it can be declared unconstitutional only by a failure to observe that this Court reaches constitutional invalidation only through inescapable necessity. “It must be evident to anyone that the power to declare a legislative enactment void is one which fbe judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.” 1 Cooley, Constitutional Limitations (8th ed., 1927) 332. 326 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. But even if it be agreed, for purposes of characterizing the deprivation of the statute as punishment, that the motive of Congress was past action of the respondents, presumed motive cannot supplant expressed legislative judgment. “The expectations of those who sought the enactment of legislation may not be used for the purpose of affixing to legislation when enacted a meaning which it does not express.” United States v. Goelet, 232 U. S. 293, 298. Congress omitted from § 304 any condemnation for which the presumed punishment was a sanction. Thereby it negatived the essential notion of a bill of attainder. It may be said that such a view of a bill of attainder offers Congress too easy a mode of evading the prohibition of the Constitution. Congress need merely omit its ground of condemnation and legislate the penalty ! But the prohibition against a “Bill of Attainder” is only one of the safeguards of liberty in the arsenal of the Constitution. There are other provisions in the Constitution, specific and comprehensive, effectively designed to assure the liberties of our citizens. The restrictive function of this clause against bills of attainder was to take from the legislature a judicial function which the legislature once possessed. If Congress adopted, as it did, a form of statute so lacking in any pretension to the very quality which gave a bill of attainder its significance, that of a declaration of guilt under circumstances which made its determination grossly unfair, it simply passed an act which this Court ought not to denounce as a bill of attainder. And not the less so because Congress may have been conscious of the limitations which the Constitution has placed upon it against passing bills of attainder. If Congress chooses to say that men shall not be paid, or even that they shall be removed from their jobs, we cannot decide that Congress also said that they are guilty of an offense. And particularly we cannot so decide as a UNITED STATES v. LOVETT. 327 303 Frankfurter, J., concurring. necessary assumption for declaring an act of Congress invalid. Congress has not legislated that which is attributed to it, for the simple fact is that Congress has said nothing. The words Congress used are not susceptible of being read as a legislative verdict of guilt against the respondents no matter what dictionary, or what form of argumentation, we use as aids. This analysis accords with our prior course of decision. In Cummings v. Missouri, supra, and Ex parte Garland, 4 Wall. 333, the Court dealt with legislation of very different scope and significance from that now before us. While the provisions involved in those cases did not condemn or punish specific persons by name, they proscribed all guilty of designated offenses. Refusal to take a prescribed oath operated as an admission of guilt and automatically resulted in the disqualifying punishment. Avoidance of legislative proscription for guilt under the provisions in the Cummings and Garland cases required positive exculpation. That the persons legislatively punished were not named was a mere detail of identification. Congress and the Missouri legislature, respectively, had provided the most effective method for insuring identification. These enactments followed the example of English bills of attainder which condemned a named person and “his adherents.” Section 304 presents a situation wholly outside the ingredients of the enactments that furnished the basis for the Cummings and Garland decisions.2 While §304 is not a bill of attainder, as the gloss of history defines that phrase in the Constitution, acceptance of the Court’s reading of § 304 would raise other serious 2 Even against the holding that such enactments were bills of attainder, Mr. Justice Miller wrote the powerful dissent concurred in y Mr. Chief Justice Chase, Mr. Justice Swayne, and Mr. Justice Davis. 4 Wall. 333, 382. 717466 O—47-25 328 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. constitutional questions. The first in magnitude and difficulty derives from the constitutional distribution of power over removal. For about a century this Court astutely avoided adjudication of the power of control as between Congress and the Executive of those serving in the Executive branch of the Government “until it should be inevitably presented.” Myers v. United States, 272 U. S. 52, 173. The Court then gave the fullest consideration to the problem. The case was twice argued and was under consideration for nearly three years. So far as the issues could be foreseen they were elaborately dealt with in opinions aggregating nearly two hundred pages. Within less than a decade an opinion of fifteen pages largely qualified what the Myers case had apparently so voluminously settled. Humphrey’s Executor n. United States, 295 U. S. 602. This experience serves as a powerful reminder of the Court’s duty so to deal with Congressional enactments as to avoid their invalidation unless a road to any other decision is barred. The other serious problem the Court’s interpretation of § 304 raises is that of due process. In one aspect this is another phase of the constitutional issue of the removal power. For, if § 304 is to be construed as a removal from office, it cannot be determined whether singling out three government employees for removal violated the Fifth Amendment until it is decided whether Congress has a removal power at all over such employees and how extensive it is. Even if the statute be read as a mere stoppage of disbursement, the question arises whether Congress can treat three employees of the Government differently from all others. But that question we do not have to answer. In any event, respondents are entitled to recover in this suit and their remedy—a suit in the Court of Claims—is the same whatever view one takes of the legal significance of § 304. To be sure, § 304 also purports to prescribe con- UNITED STATES v. LOVETT. 329 303 Frankfurter, J., concurring. ditions relating to future employment of respondents by the Government. This too is a question not now open for decision. Reemployment by any agency of the Government, or the desire for reemployment, is not now in controversy, “and consequently the subject may well be postponed until it actually arises for decision.” Wilson v. New, 243 U. S. 332, 354. The “great gravity and delicacy” of this Court’s function in passing upon the validity of an act of Congress is called into action only when absolutely necessary. Steamship Co. v. Emigration Commissioners, 113 U. S. 33, 39. It should not be exercised on the basis of imaginary and non-existent facts. See Bran-deis, J., concurring, in Ash wander v. Tennessee Valley Authority, supra, at 338-45. Since it is apparent that grave constitutional doubts will arise if we adopt the construction the Court puts on § 304, we ought to follow the practice which this Court has established from the time of Chief Justice Marshall. The approach appropriate to such a case as the one before us was thus summarized by Mr. Justice Holmes in a similar situation: “. . . the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same. United States v. Delaware & Hudson Co., 213 U. S. 366, 407, 408. United States v. Standard Brewery, 251 U. S. 210, 220. Texas v. Eastern Texas R. R. Co., 258 U. S. 204, 217. Bratton v. Chandler, 260 U. S. 110, 114. Panama R. R. Co. v. Johnson, 264 U. S. 375, 390. Words have been strained more than they need to be strained here in order to avoid that doubt. United States v. Jin Fuey Moy, 241 U. 8. 394, 401, 402.” Blodgett v. Holden, 275 U. S. 142, 148. “ ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of con- 330 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. stitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ Crowell v. Benson, 285 U. S. 22, 62.” Bran-deis, J., concurring, in Ashwander v. Tennessee Valley Authority, supra, at 348. We are not faced inescapably with the necessity of adjudicating these serious constitutional questions. The obvious or, at the least, the one certain construction of § 304 is that it forbids the disbursing agents of the Treasury to pay out of specifically appropriated moneys sums to compensate respondents for their services. We have noted the cloud cast upon this interpretation by manifestations by committees and members of the House of Representatives before the passage of this section. On the other hand, there is also much in the debates not only in the Senate but also in the House which supports the mere fiscal scope to be given to the statute. That such a construction is tenable settles our duty to adopt it and to avoid determination of constitutional questions of great seriousness. Accordingly, I feel compelled to construe § 304 as did Mr. Chief Justice Whaley below, 104 Ct. Cis. 557, 584, 66 F. Supp. 142, 147-148, whereby it merely prevented the ordinary disbursal of money to pay respondents’ salaries. It did not cut off the obligation of the Government to pay for services rendered and the respondents are, therefore, entitled to recover the judgment which they obtained from the Court of Claims. PENNEKAMP v. FLORIDA. 331 Syllabus. PENNEKAMP et al. v. FLORIDA. CERTIORARI TO THE SUPREME COURT OF FLORIDA. No. 473. Argued February 8, 1946.—Decided June 3, 1946. Petitioners, the publisher and the associate editor of a newspaper, were responsible for the publication of two editorials and a cartoon criticizing certain actions previously taken by a Florida trial court of general jurisdiction in certain non-jury proceedings as being too favorable to criminals and gambling establishments. Two of the cases involved had been dismissed. In the third, a rape case, an indictment had been quashed for technical defects, but a new indictment had been obtained and trial was pending. Petitioners were cited for contempt, the citation charging, inter alia, that the publications reflected upon and impugned the integrity of the court, tended to create a distrust for the court, wilfully withheld and suppressed the truth, and tended to obstruct the fair and impartial administration of justice in pending cases. In their answer, petitioners denied any intent to interfere with fair and impartial justice and claimed, inter alia, that it was their intent to condemn and criticize the system of pleading and practice created by the laws of Florida, that the publications were legitimate criticism and comment within the federal guaranties of a free press, and that they created no clear and present danger to the administration of justice. The court found the facts recited and the charges made in the citation to be true and well founded, adjudged petitioners guilty of contempt, and fined them. This judgment was sustained by the Supreme Court of Florida as being in accordance with Florida law. Held: 1- On this record, the danger to fair judicial administration has not the clearness and immediacy necessary to close the door of permissible public comment; and the judgment is reversed as violative of petitioners’ right of free expression in the press under the First and Fourteenth Amendments. Bridges v. California, 314 U. S. 252. Pp. 334, 346-350. 2. This Court has final authority to determine the meaning and application of those words of the Constitution which require interpretation to resolve judicial issues. P. 335. In cases of this type, it must examine for itself the statements ln lssue an(f the circumstances under which they were made to see 332 OCTOBER TERM, 1945. Syllabus. 328 U.S. whether or not they carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character protected by the principles of the First and Fourteenth Amendments. Pp. 335,336,346. 4. When the highest court of a State has reached a determination upon such an issue, this Court gives most respectful attention to its reasoning and conclusion; but the state court’s authority is not final. P.335. 5. This Court agrees with the Supreme Court of Florida that the rape case was pending at the time of the publication. P. 344. 6. This Court may accept the conclusion of the Florida courts upon intent and motive as a determination of fact; but it is for this Court to determine federal constitutional rights in the setting of the facts. P. 345. 7. Discussion that follows the termination of a case may be inadequate to emphasize the danger to public welfare of supposedly wrongful judicial conduct, but it does not follow that public comment of every character upon pending trials or legal proceedings may be as free as similar comment after complete disposal of the litigation. P. 346. 8. In borderline cases where it is difficult to say upon which side the alleged offense falls, the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest possible range compatible with the essential requirement of the fair and orderly administration of justice. P. 347. 9. Since the publications concerned the attitude of the judges toward those charged with crime, not comments on evidence or rulings during a jury trial, their effect on juries that might eventually try the alleged offenders is too remote to be considered a clear and present danger to justice. P. 348. 10. This criticism of the judge’s inclinations or actions in pending non-jury proceedings could not directly affect the administration of justice, although the cases were still pending on other points or might be revived by rehearings. P. 348. 11. That a judge might be influenced by a desire to placate the accusing newspaper to retain public esteem and secure reelection at the cost of unfair rulings against an accused is too remote a possibility to be considered a clear and present danger to justice. P. 349. 156 Fla. 227, 22 So. 2d 875, reversed. PENNEKAMP v. FLORIDA. 333 331 Opinion of the Court. Petitioners were adjudged guilty of contempt of a state court. The Supreme Court of Florida affirmed. 156 Fla. 227, 22 So. 2d 875. This Court granted certiorari. 326 U. 8.709. Reversed, p. 350. Robert R. Milam and Elisha Hanson argued the cause for petitioners. With them on the brief were E. T. Mc-Ilvaine and Edward E. Fleming. J. Tom Watson, Attorney General of Florida, James M. Carson and Giles J. Patterson argued the cause for respondent. With Messrs. Watson and Carson on the brief was Sumter Leitner, Assistant Attorney General. William Harrison Mizell and Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. Mr. Justice Reed delivered the opinion of the Court. This proceeding brings here for review a judgment of the Supreme Court of Florida, 156 Fla. 227, 22 So. 2d 875, which affirmed a judgment of guilt in contempt of the Circuit Court of Dade County, Florida, on a citation of petitioners by that Circuit Court. The individual petitioner was the associate editor of the Miami Herald, a newspaper of general circulation, published in Dade County, Florida, and within the jurisdiction of the trial court. The corporate petitioner was the publisher of the Miami Herald. Together petitioners were responsible for the publication of two editorials charged by the citation to be contemptuous of the Circuit Court and its judges in that they were unlawfully critical of the administration of criminal justice in certain cases then pending before the Court. Certiorari was granted to review petitioners’ contention t at the editorials did not present “a clear and present anger of high imminence to the administration of justice 334 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. by the court” or judges who were criticized and therefore the judgment of contempt was invalid as violative of the petitioners’ right of free expression in the press. The importance of the issue in the administration of justice at this time, in view of this Court’s decision in Bridges n. California, 314 U. S. 252, three years prior to this judgment in contempt, is apparent. Bridges v. California fixed reasonably well-marked limits around the power of courts to punish newspapers and others for comments upon or criticism of pending litigation. The case placed orderly operation of courts as the primary and dominant requirement in the administration of justice. Pages 263, 265, 266. This essential right of the courts to be free of intimidation and coercion was held to be consonant with a recognition that freedom of the press must be allowed in the broadest scope compatible with the supremacy of order. A theoretical determinant of the limit for open discussion was adopted from experience with other adjustments of the conflict between freedom of expression and maintenance of order. This was the clear and present danger rule. The evil consequence of comment must be “extremely serious and the degree of imminence extremely high before utterances can be punished.” Page 263. It was, of course, recognized that this formula, as would any other, inevitably had the vice of uncertainty, page 261, but it was expected that, from a decent self-restraint on the part of the press and from the formula’s repeated application by the courts, standards of permissible comment would emerge which would guarantee the courts against interference and allow fair play to the good influences of open discussion. As a step toward the marking of the line, we held that the publications there involved were within the permissible limits of free discussion. In the Bridges case the clear and present danger rule was applied to the stated issue of whether the expressions there PENNEKAMP v. FLORIDA. 335 331 Opinion of the Court. under consideration prevented “fair judicial trials free from coercion or intimidation.” Page 259. There was, of course, no question as to the power to punish for disturbances and disorder in the court room. Page 266. The danger to be guarded against is the “substantive evil” sought to be prevented. Pages 261, 262, 263. In the Bridges case that “substantive evil” was primarily the “disorderly and unfair administration of justice.” Pages 270,271,278.1 The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.1 2 When the highest court of a state has reached a determination upon such an issue, we give most respectful attention to its reasoning and conclusion but its authority is not final. Were it otherwise the constitutional limits of free expression in the Nation would vary with state lines.3 While there was a division of the Court in the Bridges case as to whether some of the public expressions by edi- 1 Compare Schenck v. United States, 249 U. S. 47, 52; Thornhill v. Alabama, 310 U. S. 88, 105; Carlson v. California, 310 U. S. 106, 113; Board of Education v. Barnette, 319 U. S. 624,633. 2Gitlow v. New York, 268 U. S. 652, 666; Near v. Minnesota, 283 U.S. 697,707. 2 Bridges v. California, 314 U. S. 252, 267. Compare Chambers v. Florida, 309 U. S. 227, 228; Hooven & Allison Co. v. Evatt, 324 u. S. 652,659. 336 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. tonal comment transgressed the boundaries of a free press and as to the phrasing of the test, there was unanimous recognition that California’s power to punish for contempt was limited by this Court’s interpretation of the extent of protection afforded by the First Amendment. Bridges v. California, supra, at 297. Whether the threat to the impartial and orderly administration of justice must be a clear and present or a grave and immediate danger, a real and substantial threat, one which is close and direct or one which disturbs the court’s sense of fairness depends upon a choice of words. Under any one of the phrases, reviewing courts are brought in cases of this type to appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes. The editorials of November 2d and 7th, 1944, which caused the court to issue the citation are set out below.4 4 November 2, 1944: “Courts Are Established— For the People “The courts belong to the people. The people have established them to promote justice, insure obedience to the law and to Punish Those Who Willfully Violate It. “The people maintain the courts by providing the salaries of officials and setting up costly chambers and courtrooms for the orderly and dignified procedure of the tribunals. “Upon the judges the people must depend for the decisions and the judicial conduct that will insure society—as a whole and in its individuals—against those who would undermine or destroy the peace, the morality and the orderly living of the community. “In Order that the courts should not be amenable to political or other pressures in their determination of matters placed before them, Florida Circuit judges are called upon to face the electorate less often than are other elective office holders. “So long are their terms, in fact, that in Dade county no Circuit judge, and only one judge of another court, has come to the bench by public choice in the first instance. All the others have been named PENNEKAMP v. FLORIDA. 337 331 Opinion of the Court. Accompanying the first editorial was a cartoon which held up the law to public obloquy. It caricatured a court by a robed compliant figure as a judge on the bench tossing by a governor to fill a vacancy caused by death or resignation, or similar circumstance. “Judicial terms in Dade county run: 1— Six years each for six Circuit judges. 2— Four years each for two Civil Court of Record judges. 3— Four years for the judge of the Criminal Court of Record. 4— Four years for the judge of the Court of Crimes. 5— Four years for County judge. 6— Four years for Juvenile court judge. “These twelve judges represent the majesty and the sanctity of the law. They are the first line of defense locally of organized society against vice, corruption and crime, and the sinister machinations of the underworld. “It Is beyond question that American courts are of, by and for the people. “Every accused person has a right to his day in court. But when judicial instance and interpretative procedure recognize and accept, even go out to find, every possible technicality of the law to protect the defendant, to block, thwart, hinder, embarrass and nullify prosecution, then the people’s rights are jeopardized and the basic reason for courts stultified. “The seeming ease and pat facility with which the criminally charged have been given technical safeguard have set people to wondering whether their courts are being subverted into refuges for lawbreakers. ‘This Week the people, through their grand jury, brought into court eight indictments for rape. Judge Paul D. Barns agreed with the defense that the indictments were not properly drawn. Back they went to the grand jury for re-presentation to the court. Only in the gravest emergency does a judge take over a case from another court of equal jurisdiction. A padlock action against the Brook Club was initiated last spring before Judge George E. Holt, who granted a temporary injunction. After five months, the case appeared Tuesday out of blue sky before Judge Marshall C . Wiseheart at the time State Attorney Stanley illedge was engaged with the grand jury. Speedy decision was asked by defense counsel despite months of 338 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. aside formal charges to hand a document, marked “Defendant dismissed,” to a powerful figure close at his left arm and of an intentionally drawn criminal type. At the stalling. The State Attorney had to choose between the grand jury and Judge Wiseheart’s court. “The judge dismissed the injunction against the club and its operators. The defense got delay when it wanted and prompt decision from the court when it profited it. “On Oct. 10 Judge Holt had before him a suit by the state to abate a nuisance (bookmaking) at the Tepee Club. “Five affidavits of persons who allegedly visited the premises for the purpose of placing bets were introduced by the state over the objection of the defendants. “Judge Holt ruled them out, explaining in denying the injunction against the Tepee Club: “ ‘The defendant cannot cross-examine an affidavit. The court cannot determine who is testifying and whether belief can be placed upon such testimony . . . The fact that such affidavits were taken before the State Attorney does not give them any additional weight or value.’ “This may be good law, exact judicial evaluation of the statutes. It is, however, the character of legal interpretation which causes people to raise questioning eyebrows and shake confused heads in futile wonderment. “If Technicalities are to be the order and the way for the criminally charged either to avoid justice altogether or so to delay prosecution as to cripple it, then it behooves our courts and the legal profession to cut away the deadwood and the entanglements. “Make it possible for the state’s case, the people’s case, to be seen with equal clarity of judicial vision as that accorded accused lawbreakers. Otherwise technicalities and the courts make the law, no matter what the will of the people and of their legislators.” November 7, 1944: “Why People Wonder “Here is an example of why people wonder about the law’s delays and obstructing technicalities operating to the disadvantage of the state—which is the people—in prosecutions. “After stalling along for months, the defense in the padlock case against the Brook Club appeared before Judge Marshall C. Wiseheart PENNEKAMP v. FLORIDA. 339 331 Opinion of the Court. right of the bench, a futile individual, labeled “Public Interest” vainly protests. The citation charges that the editorials “did reflect upon and impugn the integrity of said Court and the Judges thereof in imputing that the Judges of said Court ‘do recognize and accept, even go out to find, every possible technicality of the law to protect the defendant, to block, thwart, Kinder, embarrass and nullify prosecution,’ which said acts by you tend to create a distrust for said court and the judges thereof in the minds of the people of this county and state and tend to prevent and prejudice a fair and impartial action of the said Court and the Judges thereof in respect to the said pending case [s].” After setting out details of alleged willful withholding and suppression of the whole truth in the publications, the citation further charges that “you, by said cartoon and editorial, have caused to be represented unto the public that concerning the cases of (A) the eight indictments for rape, (B) the said Brook Club case, and (C) the Teepee Club case, that the Judges of this Court [had not] fairly and impartially heard and decided the matters in said editorial mentioned and have thereby represented unto the general public that notwithstanding the for a decision. The State Attorney was working with the grand jury. The court knocked out the injunction. There was speed, dispatch, immediate attention and action for those charged with violation of the law. So fast that the people didn’t get in a peep. That’s one way of gumming up prosecution. Another is to delay action. On March 29, Coy L. Jaggears, bus driver, was sentenced to fifteen days in city jail by Judge Cecil C. Curry on conviction of beat-mg up a taxicab operator. The arrest precipitated the notorious bus strike. As a result, aggears walked out of jail after posting a $200 appeal bond. The appeal never got further. There you have the legal paradox, working two ways, but to the same purpose against prosecution. Speed when needed. Month after month of delay when that serves the better.” 340 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. great public trust vested in the Judges of this Court that they have not discharged their duties honorably and fairly in respect to said pending cases as hereinbefore set forth, all of which tends to obstruct and interfere with the said Judges as such in fairly and impartially administering justice and in the discharging of their duties in conformity with the true principles which you have so properly recognized in the forepart of said editorial above quoted as being incumbent upon them and each of them; . . .” Petitioners were required to show cause why they should not be held in contempt. Petitioners answered that the publications were legitimate criticism and comment within the federal guaranties of free press and created no clear and present danger to the administration of justice. They sought to justify the publications by stating in their return to the rule that the facts stated in the editorials were correct, that two of the cases used as examples were not pending when the comments were made, since orders of dismissal had been previously entered by the Circuit Court, and that they as editors “had the right if not the duty openly and forcefully to discuss these conditions to the end that these evils that are profoundly disturbing to the citizens of this county, might be remedied. The publications complained of did nothing more than discuss the generally recognized weakness and breakdown in the system of law enforcement and call for its improvement.” It is not practicable to comment at length on each of the challenged items. To make our decision as clear as possible, we shall refer in detail only to the comments concerning the “Rape Cases.” These we think fairly illustrate the issues and are the most difficult comments for the petitioners to defend. PENNEKAMP v. FLORIDA. 341 331 Opinion of the Court. As to these cases, the editorial said: “This Week the people, through their grand jury, brought into court eight indictments for rape. Judge Paul D. Barns agreed with the defense that the indictments were not properly drawn. Back they went to the grand jury for re-presentation to the court.” We shall assume that the statement, “judicial instance and interpretative procedure . . . even go out to find, every possible technicality of the law to protect the defendant . . . and nullify prosecution,” refers to the quashing of the rape indictments as well as other condemned steps. The comment of the last two paragraphs evidently includes these dismissals as so-called legal technicalities. See Note 4. The citation charged that the prosecuting officer in open court agreed that the indictments were so defective as to make reindictment advisable. Reindictments were returned the next day and before the editorial. It was charged that these omissions were a wanton withholding of the full truth. As to this charge, the petitioners made this return: “That as averred in the citation, a motion was made to quash the indictment in Case 856, the ruling upon which would control in the other cases mentioned. Whereupon the representative of the State Attorney’s Office stated in effect that he believed the original indictment was in proper form, but to eliminate any question he would have these defendants immediately re-indicted by the Grand Jury which was still then in session. And thereupon, the Judge of said Court did sustain the motion to quash with respect to Case No. 856.” The record of the Criminal Division of the Circuit Court, set out in the findings of fact at the hearing on the citation in contempt, shows that in case No. 856 the court upheld the defendants’ motion to quash “with the ap- 342 OCTOBER TERM, 1945. Opinion of the Court. 328U.S. proval of the Assistant State Attorney” and quashed the remaining indictments on his recommendation. Reindictment of the accused on the next day, prompt arraignment and setting for trial also appears. We accept the record as conclusive of the facts. We read the Circuit Court’s judgment to find that the comment on the Rape Cases contained only “half-truths,” that it did not “fairly report the proceedings” of the court, that it contained “misinformation.” The judgment said: “To report on court proceedings is a voluntary undertaking but when undertaken the publisher who fails to fairly report does so at his own peril. “We find the facts recited and the charges made in the citation to be true and well founded; . . .” This finding included the fact that reindictments were then pending in the Rape Cases. Defendants’ assignments of error challenged the ruling that the matters referred to in the editorials were pending and the Supreme Court of Florida ruled that the cases were pending. 156 Fla. at 241,22 So. 2d at 883: “We also agree that publications about a case that is closed no matter how scandalous, are not punishable as contempt. This is the general rule but the Florida Statute is more liberal than the rule.” Cf. Florida Statutes 1941, § 38.23 and § 932.03; see also 156 Fla. at 248,249,22 So. 2d at 886. In Bridges v. California, 314 U. S. 252, 271-78, dissent 297-302, this Court looked upon cases as pending following completed interlocutory actions of the courts but awaiting other steps. In one instance it was sentence after verdict. In another, a motion for a new trial. Pennekamp was fined $250 and the corporation, $1,000.00. The Supreme Court of Florida restated the facts as to the Rape Cases from the record. 156 Fla. at 238, 22 So. PENNEKAMP v. FLORIDA. 343 331 Opinion of the Court. 2d at 881. It then reached a conclusion as to all of the charges and so as to the Rape Cases in the words set out below.5 After further discussion of the facts, the Court said, 156 Fla. at 241,22 So. 2d at 883: “In the light of this factual recitation, it is utter folly to suggest that the object of these publications was other than to abase and destroy the efficiency of the court.” To focus attention on the critical issue, we quote below from the decision of the Supreme Court of Florida certain excerpts which we believe fairly illustrate its position as to the applicable law.6 5156 Fla. 227,239,240,22 So. 2d 875,882: “So the vice in both the editorials was the distorted, inaccurate statement of the facts and with that statement were scrambled false insinuations that amounted to unwarranted charges of partisanship and unfairness on the part of the judges. “The record was available in all these cases and it does not reveal a breath of suspicion on which to predicate partisanship and unfairness on the part of the judges. It is shown rather that they acted in good faith and handled each case to the very best advantage possible. There was no judgment that could have been entered in any of them except the one that was entered. If the editorials had stated the facts correctly, nothing but a correct conclusion could have been deduced and there would have been no basis for contempt but here they elected to publish as truth a mixture of factual misstatement and omission and impose on that false insinuation, distortion, and deception and then contend that freedom of the press immunizes them from punishment.” ( 6156 Fla. 227,244-249,22 So. 2d 875,884-886: A newspaper may criticize, harass, irritate, or vent its spleen against a person who holds the office of judge in the same manner that it does a member of the Legislature and other elective officers, but it may not publish scurrilous or libelous criticisms of a presiding judge as such or his judgments for the purpose of discrediting the Court in the eyes of the public. Respect for courts is not inspired by shielding them from criticism. This is a responsibility of the judge, acquired over the years by the spirit in which he approaches the judicial process, his ability to humanize the law and square it with reason, the level 717466 O—47--26 344 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. From the editorials, the explanations of the petitioners and the records of the court, it is clear that the full truth in regard to the quashing of the indictments was not published. We agree with the Supreme Court that the Rape of his thinking, the consistency of his adherence to right and justice, and the degree to which he holds himself aloof from blocs, groups, and techniques that would sacrifice justice for expediency.” “Courts cannot function in a free country when the atmosphere is charged with the effusions of a press designed to poison the mind of the public against the presiding judges rather than to clarify the issues and propagate the truth about them. The latter was the press that Mr. Jefferson visioned when he promulgated the thesis, 'Our liberty depends on the freedom of the press and that cannot be limited without being lost.’ ” “Freedom to publish one’s views is a principle of universal practice, but when the press deliberately abandons the proprieties and sets out to poison its pabulum or to sow dragons’ teeth and dispense canards for the purpose of doing another a wrong, it is no different category from a free man that does likewise. The most rigid safeguard thrown around a free press would not protect appellants from falsely publishing or announcing to the world that the clergy of Miami were in sympathy with the practice of polygamy or were fostering other doctrines equally obnoxious to approved moral standards.” “The theory of our system of fair trial is that the determination of every case should be induced solely by evidence and argument in open court and the law applicable thereto and not by any outside influence, whether of private talk or public print.” “The State Courts touch the public much more frequently than the Federal Courts and they have many reasons to enforce orderly administration that would not arise in the Federal Courts. If that power is to be construed by what appellants contend to be the pattern in the Bridges and Nye cases, then more than one hundred years of state law and decisions on the subject are turned into confusion or set at naught. . . . “We do not think this can be the law. The Bridges case was disposed of on authority of the ' “clear and present danger” cases,’ which are not analogous to most of the state cases because they arise from a different state of the law. The ultimate test in the Bridges case requires that the ‘substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.’ Even if this test is to [be] the rule in the State Courts, they PENNEKAMP v. FLORIDA. 345 331 Opinion of the Court. Cases were pending at the time of the editorials. We agree that the editorials did not state objectively the attitude of the judges. We accept the statement of the Supreme Court that under Florida law, “There was no judgment that could have been entered in any of them except the one that was entered.” 156 Fla. at 240, 22 So. 2d at 882. And, although we may feel that this record scarcely justifies the harsh inference that the truth was willfully or wantonly or recklessly withheld from the public or that the motive behind the publication was to abase and destroy the efficiency of the courts, we may accept in this case that conclusion of the Florida courts upon intent and motive as a determination of fact.7 While the ultimate power is here to ransack the record for facts in constitutional controversies, we are accustomed to adopt the result of the state court’s examination.8 It is the findings of the state courts on undisputed facts or the undisputed facts themselves which ordinarily furnish the basis for our appraisal of claimed violations of federal constitutional rights.9 The acceptance of the conclusion of a state court as to the facts of a situation leaves open to this Court the determination of federal constitutional rights in the setting of are authorized to apply it by their own law and standards and unless the application is shown to be arbitrary and unreasonable, their judgment should not be disturbed. The law in Florida permits the most liberal exercise possible of freedom of the press but holds to account those who abuse it. We therefore hold that the cartoon and the editorials afford ample support for the judgment imposed and that the issues were properly adjudicated under Florida law.” ’See IX Wigmore, Evidence (3d Ed.) § 2557. Crawford v. United States, 212 U. S. 183,203. drivers Union v. Meadowmoor Co., 312 U. S. 287, 293-94; Lisenba v. California, 314 U. S. 219, 238. Chambers v. Florida, 309 U. S. 227, 239; Ashcraft v. Tennessee, 22 U. S. 143, 152, 153, 154; Malinski n. New York, 324 U. S. 401, 404. 346 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. those facts.10 11 When the Bridges case was here, there was necessarily involved a determination by the California state court that all of the editorials had, at least, a tendency to interfere with the fair administration of criminal justice in pending cases in a court of that state. Yet this Court was unanimous in saying that two of those editorials had no such impact upon a court as to justify a conviction of contempt in the face of the principles of the First Amendment. We must, therefore, weigh the right of free speech which is claimed by the petitioners against the danger of the coercion and intimidation of courts in the factual situation presented by this record. Free discussion of the problems of society is a cardinal principle of Americanism—a principle which all are zealous to preserve.11 Discussion that follows the termination of a case may be inadequate to emphasize the danger to public welfare of supposedly wrongful judicial conduct.12 It does not follow that public comment of every character upon pending trials or legal proceedings may be as free as a similar comment after complete disposal of the litigation. Between the extremes there are areas of discussion which an understanding writer will appraise in the 10 See the cases in the preceding paragraph, note 8. 11 Murdock n. Pennsylvania, 319 U. S. 105,115; Board of Education v. Barnette, 319 U. S. 624, 639; Thomas v. Collins, 323 U. S. 516, 527, 530. 12 Bridges v. California, 314 U. S. at 269: “No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression. Yet, it would follow as a practical result of the decisions below that anyone who might wish to give public expression to his views on a pending case involving no matter what problem of public interest, just at the time his audience would be most receptive, would be as effectively discouraged as if a deliberate statutory scheme of censorship had been adopted.” PENNEKAMP v. FLORIDA. 347 331 Opinion of the Court. light of the effect on himself and on the public of creating a clear and present danger to fair and orderly judicial administration. Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. While a disclaimer of intention does not purge a contempt, we may at this point call attention to the sworn answer of petitioners that their purpose was not to influence the court. An excerpt appears below.13 For circumstances to create a clear and present danger to judicial administration, a solidity of evidence should be required which it would be difficult to find in this record. Com- 13 “These respondents deny any intent by either said editorial or said cartoon either in words or otherwise to interfere with fair and impartial justice in the State of Florida and deny that the large character in the cartoon was beside the judge and on the bench and being heard, recognized and favored, but, on the contrary, these respondents respectfully show that it was the intention of said editorial and said cartoon to condemn and criticise the system of pleading and practice and procedure created by the laws of Florida, whereby such cases could long be delayed and then could be dismissed upon technical grounds in the manner herein shown.” We add Mr. Pennekamp’s statement of the editorial policy of the Miami Herald: “ ‘We are ourselves Free—Free as the Constitution we enjoy—Free to truth, good manners and good sense. We shall be for whatever measure is best adapted to defending the rights and liberties of the people and advancing useful knowledge. We shall labor at all times to inspire the people with a just and proper sense of their condition, to point out to them their true interest and rouse them to pursue it.’ ” 348 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. pare Baumgartner v. United States, 322 U. S. 665, 670; Schneiderman v. United States, 320 U. S. 118. The comments were made about judges of courts of general jurisdiction—judges selected by the people of a populous and educated community. They concerned the attitude of the judges toward those who were charged with crime, not comments on evidence or rulings during a jury trial. Their effect on juries that might eventually try the alleged offenders against the criminal laws of Florida is too remote for discussion. Comment on pending cases may affect judges differently. It may influence some judges more than others. Some are of a more sensitive fiber than their colleagues. The law deals in generalities and external standards and cannot depend on the varying degrees of moral courage or stability in the face of criticism which individual judges may possess any more than it generally can depend on the personal equations or individual idiosyncrasies of the tort-feasor. The Germanic, 196 U. S. 589, 596; Arizona Employers’ Liability Cases, 250 U. S. 400, 422, 432. We are not willing to say under the circumstances of this case that these editorials are a clear and present danger to the fair administration of justice in Florida. Cf. Near v. Minnesota, 283 U. S. 697, 714-15. What is meant by clear and present danger to a fair administration of justice? No definition could give an answer. Certainly this criticism of the judges’ inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues. Here there is only criticism of judicial action already taken, although the cases were still pending on other points or might be revived by rehearings. For such injuries, when the statements amount to defamation, a PENNEKAMP v. FLORIDA. 349 331 Opinion of the Court. judge has such remedy in damages for libel as do other public servants. It is suggested, however, that even though his intellectual processes cannot be affected by reflections on his purposes, a judge may be influenced by a desire to placate the accusing newspaper to retain public esteem and secure reelection presumably at the cost of unfair rulings against an accused. In this case too many fine-drawn assumptions against the independence of judicial action must be made to call such a possibility a clear and present danger to justice. For this to follow, there must be a judge of less than ordinary fortitude without friends or support or a powerful and vindictive newspaper bent upon a rule or ruin policy, and a public unconcerned with or uninterested in the truth or the protection of their judicial institutions. If, as the Florida courts have held and as we have assumed, the petitioners deliberately distorted the facts to abase and destroy the efficiency of the court, those misrepresentations with the indicated motives manifested themselves in the language employed by petitioners in their editorials. The Florida courts see in this objectionable language an open effort to use purposely the power of the press to destroy without reason the reputation of judges and the competence of courts. This is the clear and present danger they fear to justice. Although we realize that we do not have the same close relations with the people of Florida that are enjoyed by the Florida courts, we have no doubt that Floridians in general would react to these editorials in substantially the same way as citizens of other parts of our common country. As we have pointed out, we must weigh the impact of t e words against the protection given by the principles of the First Amendment, as adopted by the Fourteenth, to public comment on pending court cases. We conclude 350 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. that the danger under this record to fair judicial administration has not the clearness and immediacy necessary to close the door of permissible public comment. When that door is closed, it closes all doors behind it. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, concurring. On the basis of two editorials and a cartoon, the Circuit Court of Florida for the County of Dade found the publisher of the Miami Herald and one of its editors guilty of contempt of court.1 The editor, Pennekamp, was fined $250 and the Publishing Company, $1,000. Deeming Bridges v. California, 314 U. S. 252, not controlling, the Supreme Court of Florida, with two judges dissenting, sustained the convictions. 156 Fla. 227, 22 So. 2d 875. In the Bridges case this Court recently canvassed constitutional aspects of contempt of court by publication. But it was hardly to be expected that other problems in the large field within which the Bridges case moved would not recur. This Court sits to interpret, in appropriate judicial controversies, a Constitution which in its Bill of Rights formulates the conditions of a democracy. But democracy is the least static form of society. Its basis 1 The judges who tried the contempt cases were the same judges who were criticized by the editorials. The words of caution of Mr. Chief Justice Taft become relevant: “The delicacy there is in the judge’s deciding whether an attack upon his own judicial action is mere criticism or real obstruction, and the possibility that impulse may incline his view to personal vindication, are manifest.” Craig v. Hecht, 263 U. S. 255, 279 (concurring). But the judges who tried petitioners were sensible of the delicacy of their position, and offered to retire from the case if petitioners felt they would prefer to be tried by another judge. PENNEKAMP v. FLORIDA. 351 331 Frankfurter, J., concurring. is reason not authority. Formulas embodying vague and uncritical generalizations offer tempting opportunities to evade the need for continuous thought. But so long as men want freedom they resist this temptation. Such formulas are most beguiling and most mischievous when contending claims are those not of right and wrong but of two rights, each highly important to the well-being of society. Seldom is there available a pat formula that adequately analyzes such a problem, least of all solves it. Certainly no such formula furnishes a ready answer to the question now here for decision or even exposes its true elements. The precise issue is whether, and to what extent, a State can protect the administration of justice by authorizing prompt punishment, without the intervention of a jury, of publications out of court that may interfere with a court’s disposition of pending litigation. The decision in the Bridges case did not explicitly deny to the States the right to protect the judicial process from interference by means of a publication bearing on a pending litigation. The atmosphere and emanations of the Court’s opinion, however, were calculated to sanction anything to be said or written outside the courtroom even though it may hurt or embarrass the just outcome of a proceeding. But in a series of decisions which presented most sharply the constitutional extent of freedom of speech, this Court had held that the Constitution did not allow absolute freedom of expression—a freedom unrestricted by the duty to respect other needs fulfillment of which makes for the dignity and security of man. Schenck v. United States, 249 U. S. 47; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211. No Justice thought more deeply about the nature of a free society or was more zealous to safeguard its conditions by the most abundant regard for civil liberty than Mr. Justice Holmes. He left no doubt that judicial protection 352 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. of freedom of utterance is necessarily qualified by the requirements of the Constitution as an entirety for the maintenance of a free society. It does an ill-service to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical analysis by being turned into dogma. “It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” Holmes, J., dissenting, in Hyde v. United States, 225 U. S. 347, 384, at 391. Words which “are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” Schenck v. United States, 249 U. S. 47, 52, speak their own condemnation. But it does violence to the juristic philosophy and the judicial practice of Mr. Justice Holmes to assume that in using the phrase “a clear and present danger” he was expressing even remotely an absolutist test or had in mind a danger in the abstract. He followed the observation just quoted by the emphatic statement that the question is one “of proximity and degree,” as he conceived to be most questions in connection with the large, undefined rights guaranteed by the Constitution. And Mr. Justice Brandeis, co-architect of the great constitutional structure of civil liberties, also recognized that “the permissible curtailment of free speech is . . . one of degree. And because it is a question of degree the field in which the jury may exercise its judgment is, necessarily, a wide one.” Schaefer v. United States, 251 U. S. 466, 482, at 483 (dissenting). If Mr. Justice Brandeis’ constitutional philosophy means anything, it is clear beyond peradventure that he would not deny to a State, exercising its judgment as to the mode by which speech may be curtailed by punishment PENNEKAMP v. FLORIDA. 353 331 Frankfurter, J., concurring. subsequent to its utterance, a field less wide than that which he permitted a jury in a federal court. “Clear and present danger” was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech, the Constitution does not deny power to the States to curb it. “The clear and present danger” to be arrested may be danger short of a threat as comprehensive and vague as a threat to the safety of the Republic or “the American way of life.” Neither Mr. Justice Holmes nor Mr. Justice Brandeis nor this Court ever suggested in all the cases that arose in connection with the First World War, that only imminent threats to the immediate security of the country would authorize courts to sustain legislation curtailing utterance. Such forces of destruction are of an order of magnitude which courts are hardly designed to counter. “The clear and present danger” with which its two great judicial exponents were concerned was a clear and present danger that utterance “would bring about the evil which Congress sought and had a right to prevent.” Schaefer v. United States, supra. Among “the substantive evils” with which legislation may deal is the hampering of a court in a pending controversy, because the fair administration of justice is one of the chief tests of a true democracy. And since men equally devoted to the vital importance of freedom of speech may fairly differ in an estimate of this danger in a particular case, the field in which a State “may exercise its judgment is, necessarily, a wide one.” Therefore, 354 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. every time a situation like the present one comes here the precise problem before us is to determine whether the State court went beyond the allowable limits of judgment in holding that conduct which has been punished as a contempt was reasonably calculated to endanger a State’s duty to administer impartial justice in a pending controversy. Without a free press there can be no free society.2 Freedom of the press, however, is not an end in itself but a 2 . . the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” Near v. Minnesota, 283 U. S. 697, 719-20. Not unrelated to this whole problem, however, are the technological and economic influences that have vastly transformed the actual operation of the right to a free, in the sense of a governmentally uncensored, press. Bigness and concentration of interest have put their impress also on this industry. “Today ideas are still flowing freely, but the sources from which they rise have shown a tendency to evaporate. . . . The controlling fact in the free flow of thought is not diversity of opinion, it is diversity of the sources of opinion—that is, diversity of ownership. . . . There are probably a lot more words written and spoken in America today than ever before, and on more subjects; but if it is true, as this book suggests, that these words and ideas are flowing through fewer channels, then our first freedom has been diminished, not enlarged.” E. B. White, in the New Yorker, March 16, 1946, p. 97, reviewing Ernst, The First Freedom (1946). There are today incomparably more effective and more widespread means for the dissemination of ideas and information than in the past. But a steady shrinkage of a diffused ownership raises far reaching questions regarding the meaning of the “freedom” of a free press. PENNEKAMP v. FLORIDA. 355 331 Frankfurter, J., concurring. means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied. The independence of the judiciary is no less a means to the end of a free society, and the proper functioning of an independent judiciary puts the freedom of the press in its proper perspective. For the judiciary cannot function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the court. A judiciary is not independent unless courts of justice are enabled to administer law by absence of pressure from without, whether exerted through the blandishments of reward or the menace of disfavor. In the noble words, penned by John Adams, of the First Constitution of Massachusetts: “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”3 A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press. A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institution in a democracy, either governmental or private, can have absolute Article XXIX of the Declaration of Rights of the Constitution of Massachusetts, 1780. 356 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328 U. S. power.4 Nor can the limits of power which enforce responsibility be finally determined by the limited power itself. See Carl L. Becker, Freedom and Responsibility in the American Way of Life (1945). In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Most State constitutions expressly provide for liability for abuse of the press’s freedom. That there was such legal liability was so taken for granted by the framers of the First Amendment that it was not spelled out. Responsibility for its abuse was imbedded in the law.5 The First Amendment safeguarded the right. These are generalities. But they are generalities of the most practical importance in achieving a proper adjustment between a free press and an independent judiciary. Especially in the administration of the criminal law— that most awesome aspect of government—society needs independent courts of justice. This means judges free from control by the executive, free from all ties with political interests, free from all fears of reprisal or hopes of 4 That this indispensable condition for a free society was well known to the framers of the Constitution, is the theme of Mr. Justice Brandeis in his dissenting opinion in Myers v. United States, 272 U. S. 52, 240, at 293: “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” And see Mr. Chief Justice Taft, in Ex parte Grossman, 267 U. S. 87, 119-22. 5 The State constitutions make it clear that the freedom of speech and press they guarantee is not absolute. All, with the exception only of Massachusetts, New Hampshire, South Carolina, Vermont, and West Virginia, explicitly provide in practically identical language for the right to speak, write and publish freely, every one, however, “being responsible for the abuse of that right.” PENNEKAMP v. FLORIDA. 357 331 Frankfurter, J., concurring. reward. The safety of society and the security of the innocent alike depend upon wise and impartial criminal justice. Misuse of its machinery may undermine the safety of the State; its misuse may deprive the individual of all that makes a free man’s life dear.6 Criticism therefore must not feel cramped, even criticism of the administration of criminal justice. Weak characters ought not to be judges, and the scope allowed to the press for society’s sake may assume that they are not. No judge fit to be one is likely to be influenced consciously except by what he sees and hears in court and by what is judicially appropriate for his deliberations. However, judges are also human, and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process. While the ramparts of reason have been found to be more fragile than the Age of Enlightenment had supposed, the means for arousing passion and confusing judgment have been reinforced. And since judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The English bench is justly noted for its sturdiness, and it was no weak-kneed judge who recently analyzed the mis- 6 See, e. g., the disturbing record in the case of Campbell, New York County Criminal Courts Bar Association, In the Matter of the Investigation of the Conviction of Bertram M. Campbell (Feb. 22, 1946), and the decision of the New York Court of Claims, on June 17, 1946, awarding Campbell $115,000 for wrongful conviction, including damages for loss of earnings, after his pardon by Governor Dewey following the confession by another of the crimes for which Campbell had een convicted. “He was the victim of a miscarriage of justice but fortunately for him the State has undertaken to rectify the mistake as far as possible. . . . Seven years, six months and five days elapsed jom claimant’s arrest until he was pardoned.” Campbell v. New York, 186 Misc. 586, 591. 358 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. chief of exposing even the hardiest nature to extraneous influencethink it is a fallacy to say or to assume that the presiding judge is a person who cannot be affected by outside information. He is a human being, and while I do not suggest that it is likely that any judge, as the result of information which had been improperly conveyed to him, would give a decision which otherwise he would not have given, it is embarrassing to a judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty. To repeat the words I have already read from the judgment of Wills J. in Rex v. Parke [(1903) 2 K. B. 432]. ‘The reason why the publication of articles like those with which we have to deal is treated as a contempt of court is because their tendency and sometimes their object is to deprive the court of the power of doing that which is the end for which it exists—namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it.’ . . . I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred has had the effect of making the task of a judge extremely difficult, and no one has the right to publish matter which will have that effect.” Humphreys, J., in Rex v. Davies, [1945] 1 K. B. 435, 442-43. The observations of another judge in the same case bear quoting: “. . . jurors are not the only people whose minds can be affected by prejudice. One of the evils of inadmissible matter being disseminated is that no one can tell what effect a particular piece of information may have on his mind. Why, as my Lord has asked, and I can think of no better word, should a judge be ‘embarrassed’ by having matters put into his mind, the effect of which it is impossible to estimate or assess? As an illustration of this proposition, the Court of Criminal PENNEKAMP v. FLORIDA. 359 331 Frankfurter, J., concurring. Appeal has expressed, not once but many times, its thorough disapproval of evidence which is sometimes given by police officers at the end of a case when a man has been convicted. On such occasions all sorts of allegations are frequently made against a man’s character, sometimes in the nature of hearsay and sometimes not supported by evidence at all. What is the ground for the disapproval of the Court of Criminal Appeal regarding such statements? It can only be that the judge who, after hearing the statements, has to pronounce sentence, may, quite unconsciously, have his judgment influenced by matters which he has no right to consider. . . . Not all defamatory matter can amount to contempt of court. . . . Whether defamatory matter amounts to contempt in any particular case is a question in each case of fact, of degree and of circumstances.” Oliver, J., in Rex v. Davies, supra, at 445-46. Cf. Parashuram Detaram Shamdasani v. King-Emperor, [1945] A. C. 264. To deny that bludgeoning or poisonous comment has power to influence, or at least to disturb, the task of judging is to play make-believe and to assume that men in gowns are angels. The psychological aspects of this problem become particularly pertinent in the case of elected judges with short tenure. Trial by newspaper,” like all catch phrases, may be loosely used but it summarizes an evil influence upon the administration of criminal justice in this country. Its absence in England, at least its narrow confinement there, furnishes an illuminating commentary. It will hardly be claimed that the press is less free in England than in the United States. Nor will any informed person deny that the administration of criminal justice is more effective there than here. This is so despite the commonly accepted view that English standards of criminal justice are more civilized, or, at the least, that recognized standards of fair conduct in the prosecution of crime are better ob- 717466 O—47-27 360 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328 U. S. served. Thus, “the third degree” is not unjustly called “the American method.” 7 This is not the occasion to enlarge upon the reasons for the greater effectiveness of English criminal justice but it may be confidently asserted that it is more effective partly because its standards are so civilized.8 There are those who will resent such a statement as praise of another country and dispraise of one’s 7 Compare Inquiry in Regard to the Interrogation by the Police of Miss Savidge, Cmd. 3147 (1928); Report of the Royal Commission on Police Powers and Procedure, Cmd. 3297 (1929), with Report on Lawlessness in Law Enforcement, in 4 National Commission on Law Observance and Enforcement Reports (1931). See also Wan v. United States, 266 U. S. 1; Brown v. Mississippi, 297 U. S. 278; Chambers n. Florida, 309 U. S. 227. 8 The recent ruling by the Speaker of the House of Commons regarding the limitation on the right to comment even in Parliament on the pending proceedings against the accused Nazis before the Nuremberg tribunal bears significantly on the attitude and controlling standards deemed appropriate in England in order to protect the judicial process from extraneous influences: “The Rule to which the Noble Lord has drawn my attention that reflections cannot be made on judges of the High Court and certain other courts, except by way of a substantive Motion, applies only to the courts of this country. In terms, therefore, it only covers the two British members of this tribunal. I feel that it would be worse than invidious—indeed improper—not to extend the same protection to their colleagues on this tribunal who represent the three other Allied Nations. “There is, however, another of our Rules of Debate which is relevant to this case, the Rule that matters which are sub judice should not be the subject of discussion in this House. This Rule again, in terms, applies only to British courts. The court in Nuremberg is a court in which British judges participate, and we have the same interest in seeing that nothing is done here to disturb its judicial atmosphere as we have in the case of British courts—indeed, perhaps a greater interest, since the eyes of the world are upon this new and difficult procedure of international justice, and the consequences of ill-advised interference might be incalculably mischievous. “I think that the intention of both the Rules to which I have referred, is to preserve the House from even the appearance of inter PENNEKAMP v. FLORIDA. 361 331 Frankfurter, J., concurring. own. What it really means is that one covets for his own country a quality of public conduct not surpassed elsewhere. Certain features of American criminal justice have long been diagnosed by those best qualified to judge as serious and remediable defects. On the other hand, some mischievous accompaniments of our system have been so pervasive that they are too often regarded as part of the exuberant American spirit. Thus, “trial by newspapers” has sometimes been explained as a concession to our peculiar interest in criminal trials. Such interest might be an innocent enough pastime were it not for the fact that the stimulation of such curiosity by the press and the response to such stimulated interest have not failed to cause grievous tragedies committed under the forms of law. Of course trials must be public and the public have a deep interest in trials. The public’s legitimate interest, however, precludes distortion of what goes on inside the courtroom, dissemination of matters that do not come before the court, or other trafficking with truth intended to influence proceedings or inevitably calculated to disturb the course of justice. The atmosphere in a courtroom may be subtly influenced from without.9 See dissenting fering in the administration of British justice—and this should include trials for which this country has some responsibility; and I rule, therefore, that all the members of this International Court are protected to the same extent as British judges, and that discussion of its proceedings is out of Order, in the same way as matters under adjudication in a British court of law.” 416 Parliamentary Debates (Hansard) 599-600, Nov. 22, 1945. 9 The manner in which the Hauptmann trial was reported led to a searching inquiry by a special committee of the American Bar Association and it reported the following recommendations: In the foregoing report we have tried to make a fair presentation o salient facts. We have been moved less by spirit of censure than y hope of remedial action. The excesses we have described differ rom practices in many other cases mainly in degree. The trial of a criminal case is a business that has for its sole purpose 362 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. opinion of Mr. Justice Holmes, in Frank v. Mangum, 237 U. S. 309, 345, at 349. Cases are too often tried in news- the administration of justice, and it should be carried on without distracting influences. “Passing from the general to the specific we recommend: “That attendance in the courtroom during the progress of a criminal trial be limited to the seating capacity of the room. “That the process of subpoena or any other process of the court should never be used to secure preferential admission of any person or spectator; that such abuse of process be punished as contempt. “That approaches to the courtroom be kept clear, to the end that free access to the courtroom be maintained. “That no use of cameras or photographic appliances be permitted in the courtroom, either during the session of the court or otherwise. “That no sound registering devices for publicity use be permitted to operate in the courtroom at any time. “That the surreptitious procurement of pictures or sound records be considered contempt of court and be punished as such. “That the courtroom and the court house be kept free from news distributing devices and equipment. “That newspaper accounts of criminal proceedings be limited to accounts of occurrences in court without argument of the case to the public. “That no popular referendum be taken during the pendency of the litigation as to the guilt or innocence of the accused. “That broadcasting of arguments, giving out of argumentive press bulletins, and every other form of argument or discussion addressed to the public, by lawyers in the case during the progress of the litigation be definitely forbidden. “That bulletins by the defendant issued to the public during the progress of the trial be definitely forbidden. “That public criticism of the court or jury by lawyers in the case during the progress of the litigation be not tolerated. “That featuring in vaudeville of jurors or other court officers, either during or after the trial, be forbidden. “That the giving of paid interviews or the writing of paid articles by jurors, either during or after the trial, be forbidden. “That the atmosphere of the courtroom and adjacent premises be maintained as one of dignity and calm.” (1936) 22 A. B. A. Journal 79-80. PENNEKAMP v. FLORIDA. 363 331 Frankfurter, J., concurring. papers before they are tried in court, and the cast of characters in the newspaper trial too often differs greatly from the real persons who appear at the trial in court and who may have to suffer its distorted consequences.10 11 Newspapers and newspaper men themselves have acknowledged these practices, deplored their evils, and urged reform.11 See The Attorney General’s Conference on Crime (1934) 82-111. One of the most zealous claimants of the prerogatives of the press, the Chicago Tribune, has even proposed legal means for the correction of these in- 10 See, e.g., Gilman, The Truth Behind the News (June, 1933) 29 American Mercury 139. “It is idle for such newspapers to claim that they adopt such practices in the public interest. Their motive is the sordid one of increasing their profits, unmindful of the result to the unfortunate wretch who may ultimately have to stand his trial for murder.” Mr. Justice Blair, in Attorney-General v. Tonks [1934] N. Z. L. R. 141, 148, at 150. Cf. Pratt, How the Censors Rigged the News (Feb., 1946) 192 Harper’s Magazine, 97, 105. 11A professional defense of crime reporting has this bit of refreshing candor: “I will concede, however, that had it not been for popular feeling developed to fever heat by the newspapers, Hickman might be living today behind the walls of some madhouse instead of having met death in the electric chair.” Dewey, Crime and the Press (Dec. 30, 1931) 15 Commonweal 231, 233. Compare the statement by one of the most experienced criminal lawyers, Clarence Darrow: Trial by jury is rapidly being destroyed in America by the manner in which the newspapers handle all sensational cases. I don’t know what should be done about it. The truth is that the courts and the lawyers don’t like to proceed against newspapers. They are too powerful. As the law stands today there is no important criminal case where the newspapers are not guilty of contempt of court day after day. All lawyers know it, all judges know it, and all newspapers know it. But nothing is done about it. No new laws are necessary. The court has full jurisdiction to see that no one influences a verdict or a decision. But everyone is afraid to act.” Quoted by Perry, in The Courts, the Press, and the Public (Trial by Newspaper) (1931) 30 Mich. L. Rev. 228, 234; (1932) 66 U. S. Law Rev. 374, 379; (1932) 11 Phil. L. J. 277,282. 364 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328U.S. roads upon the province of criminal justice: “ ‘The Tribune advocates and will accept drastic restriction of this preliminary publicity. The penetration of the police system and the courts by journalists must stop. With such a law there would be no motivation for it. Though such a law will be revolutionary in American journalism, though it is not financially advisable for newspapers, it still is necessary. Restrictions must come.’ ”12 It is not for me to express approval of these views, still less, judgment on the constitutional issues that would arise if they were translated into legislation. But they are relevant to an understanding of the nature of our problem. They serve also to emphasize that the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. “. . . the liberty of the press is no greater and no less than the liberty of every subject of the Queen,” Regina N. Gray, [1900] 2 Q. B. 36, 40, and, in the United States, it is no greater than the liberty of every citizen of the Republic. The right to undermine proceedings in court is not a special prerogative of the press. 12 30 Mich. L. Rev. at 232; 66 U. S. Law Rev. at 377; 11 Phil. L. J. at 280. In an address before the 1936 meeting of the American Bar Association Delegates, Sir Willmott Lewis, the veteran Washington correspondent of The Times (London) expressed these views: “The point I would make is that neither the tradition of orderly legal procedure, nor the obligation which the press should recognize to the maintenance of that tradition, can, in themselves, be enough amid the pressure and vulgarity of the modern world. “Tradition and obligation must be buttressed by rules, and those rules must be enforced in the domain of their immediate application, by the court itself. . . . “I think it intolerable, and I cannot think that it should not be punishable, that a charge lying against any citizen should be irresponsibly tried in the public prints, whose plain duty is the reporting, and not the hearing, of causes. . . .” (1936) 20 J. Am. Jud. Soc. 84,86. PENNEKAMP v. FLORIDA. 365 331 Frankfurter, J., concurring. The press does have the right, which is its professional function, to criticize and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not least the administration of justice. But the public function which belongs to the press makes it an obligation of honor to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a powerful instrument of injustice.13 It should not and may not attempt to influence judges or juries before they have made up their minds on pending controversies. Such a restriction, which merely bars the operation of extraneous influence specifically directed to a concrete case, in no wise curtails the fullest discussion of public issues generally. It is not suggested that generalized discussion of a particular topic should be forbidden, or run 13 See the skeptical remarks of H. L. Mencken, a stout libertarian, on the efficacy of journalistic self-restraint: “Journalistic codes of ethics are all moonshine. Essentially, they are as absurd as would be codes of street-car conductors, barbers or public jobholders. If American journalism is to be purged of its present swinishness and brought up to a decent level of repute—and God knows that such an improvement is needed— it must be accomplished by the devices of morals, not by those of honor. That is to say, it must be accomplished by external forces, and through the medium of penalties exteriorly inflicted.” Quoted by LeViness, in Law and the Press, The Daily Record, Baltimore, March 11,1932, p. 3, col. 1,4. The author of the article, Mr. LeViness, a Baltimore Sun reporter turned lawyer, followed the quotation from Mr. Mencken with this comment: ‘This puts the problem, as far as Court and police news goes, squarely back where it belongs: in the lap of the judiciary. The Courts must set the standards; the better journals will follow joyously and the gumchewers’ sheets must be whipped into line. The solution is fearless jurists, not afraid of the double-edged sword of contempt process; intelligent jurists, able to exercise this power in the best, enlightened public interest.” Ibid. 366 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328 U. S. the hazard of contempt proceedings, merely because some phases of such a general topic may be involved in a pending litigation. It is the focused attempt to influence a particular decision that may have a corroding effect on the process of justice, and it is such comment that justifies the corrective process. The administration of law, particularly that of the criminal law, normally operates in an environment that is not universal or even general but individual. The distinctive circumstances of a particular case determine whether law is fairly administered in that case, through a disinterested judgment on the basis of what has been formally presented inside the courtroom on explicit considerations, instead of being subjected to extraneous factors psychologically calculated to disturb the exercise of an impartial and equitable judgment. If men, including judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. It is a condition of that function—indispensable for a free society—that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertow of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote. PENNEKAMP v. FLORIDA. 367 331 Frankfurter, J., concurring. Due regard for these general considerations must dispose of the present controversy. Since at the core of our problem is a proper balance between two basic conditions of our constitutional democracy—freedom of utterance and impartial justice—we cannot escape the exercise of judgment on the particular circumstances of the particular case. And we must always bear in mind that since a judgment from a State court comes here as the voice of the State, it must be accorded every fair intendment that in reason belongs to action by a State. According to the Florida Supreme Court, the charge against petitioners was that “both the editorials and the cartoon were predicated on inaccurate, distorted, incomplete and biased reports of pending litigation, that the purpose and effect of the editorials and the cartoon were to impute partisanship and favor on the part of the circuit judges to those charged with crime and that such partisanship was so pronounced that they refused to heed the voice of the people’s representatives. ... So the vice in both the editorials was the distorted, inaccurate statement of the facts and with that statement were scrambled false insinuations that amounted to unwarranted charges of partisanship and unfairness on the part of the judges.”14 The tenor of the first editorial was complaint of the technicalities and delays of the law which seem to give excessive protection to defendants. It makes no suggestion which could be construed as an attempt to influence the court’s decision in a matter actually pending before it. All the questions discussed in the editorial had been acted on by the trial judges. The editor merely indulged in general criticism of those acts as exemplifying an over-solicitous concern for defendants by the law and by the judges who interpreted it. Nor was the cartoon directed toward a particular pending case. Indeed, it partly serves 14 Pennekamp v. State, 156 Fla. 227,239,240,22 So. 2d 875,881,882. 368 OCTOBER TERM, 1945. Frankfurter, J., concurring. 328 U. S. to interpret the editorial as one concerned with a general situation. One suspects that only judicial hypersensitiveness would find in it an animus specifically directed. The opinion of the court illustrates the danger of confusing correction of interference with judicial action with concern over a court’s dignity. Instead of treating lightly a cartoon indistinguishable in type from scores of such ephemeral products, the court saw in it wholly undeserved significance. Again, the second editorial referred to a particular case only as an example. In that case, too, the court had made its decision. What the editor criticized was the speed of disposition and other features of procedure which attended the case. His allowable concern was that the people have a chance to give their argument, that the prosecution in criminal cases be treated as fairly as the defense. Inaccurate and even false comment on litigation no longer pending may not be dealt with by punishing for contempt as a means of assuring the just exercise of the judicial process. The Florida .Supreme Court referred to the cases criticized as “pending.” But it did not define the scope of “pending” nor did the grounds of its decision have any particular dependence on the requirement that a case be pending. The finding by a State court that a case is “pending” in the sense relevant to the power to punish for contempt does not, of course, bar its review here. Otherwise a State court could foreclose our protection of the constitutional right of free speech by putting forth as a non-federal ground of decision that which is an essential aspect of the federal question. Union Pacific R. Co. v. Public Service Comm’n, 248 U. S. 67, 69-70; Ward n. Love County, 253 U. S. 17,22; Davis v. Wechsler, 263 U. S. 22. If it is contemptuous to bring the courts of a State into disrepute and generally to impair their efficiency, then it PENNEKAMP v. FLORIDA. 369 331 Murphy, J., concurring. can make no difference on what occasion or with reference to what event that effect is achieved or attempted. But when it is understood what is meant by a “pending” case, it becomes plain that for purposes of punishing for contempt as interference, the cases were not actively pending. “Pending” is not used with the technical inclusiveness that it has in the phrase lis pendens. In the situations in which that phrase has meaning and applicability, the important considerations are whether any proceedings have been taken to put the issue into court and whether it is still there. Where the power to punish for contempt is asserted, it is not important that the case is technically in court or that further proceedings, such as the possibility of a rehearing, are available. “When a case is pending is not a technical, lawyer’s problem, but is to be determined by the substantial realities of the specific situation.” Bridges v. California, 314 U. S. 252, 279, at 303-304 (dissent). The decisive consideration is whether the judge or the jury is, or presently will be, pondering a decision that comment seeks to affect. Forbidden comment is such as will or may throw psychological weight into scales which the court is immediately balancing. Cf. L. Hand, J., in Ex parte Craig, 282 F. 138, 159-60. In the situation before us, the scales had come to rest. The petitioners offended the trial court by criticizing what the court had already put in the scales, not by attempting themselves to insert weights. The petitioners here could not have disturbed the trial court in its sense of fairness but only in its sense of perspective. The judgment must, I agree, be reversed. Mr. Justice Murphy, concurring. Were we to sanction the judgment rendered by the court below we would be approving, in effect, an unwarranted restriction upon the freedom of the press. That freedom 370 OCTOBER TERM, 1945. Rutledge, J., concurring. 328U.S. covers something more than the right to approve and condone insofar as the judiciary and the judicial process are concerned. It also includes the right to criticize and disparage, even though the terms be vitriolic, scurrilous or erroneous. To talk of a clear and present danger arising out of such criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice. That situation is not even remotely present in this case. Judges should be foremost in their vigilance to protect the freedom of others to rebuke and castigate the bench and in their refusal to be influenced by unfair or misinformed censure. Otherwise freedom may rest upon the precarious base of judicial sensitiveness and caprice. And a chain reaction may be set up, resulting in countless restrictions and limitations upon liberty. Mr. Justice Rutledge, concurring. One can have no respect for a newspaper which is careless with facts and with insinuations founded in its carelessness. Such a disregard for the truth not only flouts standards of journalistic activity1 observed too often by 1 See the following codes of ethics published in Crawford, The Ethics of Journalism (1924) App. A.: Canons of Journalism, adopted by the American Society of Newspaper Editors in 1923, Art. IV; The Oregon Code of Ethics, adopted by the Oregon State Editorial Association in 1922, Art. I; South Dakota Code of Ethics, adopted by the South Dakota Press Association in 1922, “Truth and Honesty”; Missouri Declaration of Principles and Code of Practice, adopted by the Missouri Press Association in 1921, “Editorial.” And see in the same volume the extracts from rules and suggestions prepared by the following newspapers for the guidance of their staffs: The Brooklyn Eagle, The Christian Science Monitor, The Springfield Union, The Detroit News, The Hearst Newspapers (personal instructions given by William Randolph Hearst to his newspapers), The Sacramento Bee, The Kansas City Journal-Post, The Marion Star (written PENNEKAMP v. FLORIDA. 371 331 Rutledge, J., concurring. breach, but in fact tends to bring the courts and those who administer them into undeserved public obloquy. But if every newspaper which prints critical comment about courts without justifiable basis in fact, or withholds the full truth in reporting their proceedings or decisions, or goes even further and misstates what they have done, were subject on these accounts to punishment for contempt, there would be few not frequently involved in such proceedings. There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news. Some part of this is due to carelessness, often induced by the haste with which news is gathered and published, a smaller portion to bias or more blameworthy causes. But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blameworthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities. In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule can obtain. There must be by President Harding when editing The Star). See also Sharkey, The Ethics of Journalism, An Address Delivered before the Press Conference of the World, Geneva, Switzerland, September 15, 1926, p. 10; Wicks, Ideals and Methods of English Newspapers, published in Journalistic Ethics and World Affairs, Addresses Delivered at the Fifteenth Annual Journalism Week at the University of Missouri, 1924, 25 U. of Mo. Bull. (No. 32) 25, 26; Gibbons, Newspaper Ethics (1926) 16 et seq. 372 OCTOBER TERM, 1945. Rutledge, J., concurring. 328U.S. some room for misstatement of fact, as well as for misjudgment, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government. Courts and judges therefore cannot be put altogether beyond the reach of misrepresentation and misstatement. That is true in any case, but perhaps more obviously where the judiciary is elective, as it is in most of our states, including Florida. See Storey v. Illinois, 79 Ill. 45, 52; (1927) 41 Harv. L. Rev. 254, 255. The question, and the standard, must be one of degree and effects. It cannot be placed at mere falsity, either in representation or in judgment. The statement, whether of fact or of opinion, must be of such a character, whether true or false, as to obstruct in some clear and substantial way the functioning of the judicial process in pending matters. Bridges n. California, 314 U. S. 252.2 It is not enough that the judge’s sensibilities are affected or that in some way he is brought generally into obloquy. After all, it is to be remembered that it is judges who apply the law of contempt, and the offender is their critic. The statements in question are clearly fair comment in large part. Portions exceed that boundary. But the record does not disclose that they tended in any way to block or obstruct the functioning of the judicial process. Accordingly I concur in the Court’s opinion and judgment. 2 “Nor does the fact that the letter was false, while it greatly affects the moral quality of the act, determine its criminality. It is punishable only if it interferes with justice, and in that respect truth is harder to meet than falsehood.” L. Hand, dissenting in Ex parte Craig, 282 F. 138, 161, aff’d sub nom. Craig v. Hecht, 263 U. S. 255. See also the dissenting opinion of Mr. Justice Holmes, 263 U. S. at 281. But cf. In re Providence Journal Co., 28 R. I. 489, 68 A. 428; In re San Francisco Chronicle, 1 Cal. 2d 630,36 P. 2d 369. MORGAN v. VIRGINIA. 373 Counsel for Parties. MORGAN v. VIRGINIA. APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. No. 704. Argued March 27, 1946.—Decided June 3, 1946. 1. Provisions of the Virginia Code, 1942, §§ 4097z to 4097dd, which require the separation of white and colored passengers on both interstate and intrastate motor carriers are invalid as applied to interstate passengers in vehicles moving interstate, because they burden interstate commerce contrary to Art. I, §8, cl. 3 of the Constitution of the United States, even though Congress has enacted no legislation on the subject. Pp. 374,380,386. 2. If a state statute unlawfully burdens interstate commerce, the powers reserved to the State by the Tenth Amendment will not validate it. P. 376. 3. An interstate passenger, charged in a criminal proceeding with violation of the statute, is a proper person to challenge its validity as a burden on interstate commerce. P. 376. 4. State legislation is invalid if it unduly burdens interstate commerce where uniformity is necessary in the constitutional sense of useful in accomplishing a permitted purpose. Pp. 377, 380. 5. A State cannot impose undue burdens on interstate commerce by simply invoking the convenient apologetics of the police power. P. 380. 6. Seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. P. 386. 184 Va. 24,34 S. E. 2d 491, reversed. Appellant, an interstate passenger, was convicted of a violation of Virginia Code, 1942, § 4097dd, relating to the segregation of white and colored passengers on motor buses. The Supreme Court of Appeals of Virginia affirmed. 184 Va. 24, 34 S. E. 2d 491. On appeal to this Court, reversed, p. 386. William H. Hastie and Thurgood Marshall argued the cause for appellant. With them on the brief was Leon A. Ransom. 374 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. Abram P. Staples, Attorney General of Virginia, argued the cause and filed a brief for appellee. Briefs were filed as amici curiae by Gregory Hankin, Osmond K. Fraenkel and Arthur Garfield Hays for the American Civil Liberties Union, and by Harold A. Stevens for the Workers Defense League, in support of appellant. Mr. Justice Reed delivered the opinion of the Court. This appeal brings to this Court the question of the constitutionality of an act of Virginia,1 which requires all passenger motor vehicle carriers, both interstate and intrastate,1 2 to separate without discrimination3 the white and colored passengers in their motor buses so that contiguous seats will not be occupied by persons of different races at the same time. A violation of the requirement of separation by the carrier is a misdemeanor.4 The driver or other person in charge is directed and required to increase or decrease the space allotted to the respective races as may be necessary or proper and may require passengers to change their seats to comply with the allocation. The operator’s failure to enforce the provisions is made a misdemeanor.5 These regulations were applied to an interstate passenger, this appellant, on a motor vehicle then making an interstate run or trip. According to the statement of fact by the Supreme Court of Appeals of Virginia, appellant, who is a Negro, was traveling on a motor common car- 1 Virginia Code of 1942, §§ 4097z to 4097dd inclusive. The sections are derived from an act of General Assembly of Virginia of 1930. Acts of Assembly, Va. 1930, p. 343. 2Id., §§ 4097z, 4097m, 4097s; Morgan v. Commonwealth, 184 Va. 24,39,34 S. E. 2d 491. 3 Id., § 4097aa. 4 Id., §4097z; §4097bb. 0 Zd., § 4O97bb. MORGAN v. VIRGINIA. 375 373 Opinion of the Court. rier, operating under the above-mentioned statute, from Gloucester County, Virginia, through the District of Columbia, to Baltimore, Maryland, the destination of the bus. There were other passengers, both white and colored. On her refusal to accede to a request of the driver to move to a back seat, which was partly occupied by other colored passengers, so as to permit the seat that she vacated to be used by white passengers, a warrant was obtained and appellant was arrested, tried and convicted of a violation of § 4097dd of the Virginia Code.6 On a writ of error the conviction was affirmed by the Supreme Court of Appeals of Virginia. 184 Va. 24. The Court of Appeals interpreted the Virginia statute as applicable to appellant since the statute “embraces all motor vehicles and all 6 “4097dd. Violation by passengers; misdemeanor; ejection.—All persons who fail while on any motor vehicle carrier, to take and occupy the seat or seats or other space assigned to them by the driver, operator or other person in charge of such vehicle, or by the person whose duty it is to take up tickets or collect fares from passengers therein, or who fail to obey the directions of any such driver, operator or other person in charge, as aforesaid, to change their seats from time to time as occasions require, pursuant to any lawful rule, regulation or custom in force by such lines as to assigning separate seats or other space to white and colored persons, respectively, having been first advised of the fact of such regulation and requested to conform thereto, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five dollars nor more than twenty-five dollars for each offense. Furthermore, such persons may be ejected from such vehicle by any driver, operator or person in charge of said vehicle, or by any police officer or other conservator of the peace; and in case such persons ejected shall have paid their fares upon said vehicle, they shall not be entitled to the return of any part of same. For the refusal of any such passenger to abide by the request of the person in charge of said vehicle as aforesaid, and his consequent ejection from said vehicle, neither the driver, operator, person in charge, owner, manager nor bus company operating said vehicle shall be liable for damages in any court.” 717466 O—47-28 376 OCTOBER TERM, 1945. Opinion of the Court. 328 U. S. passengers, both interstate and intrastate.” 7 The Court of Appeals refused to accept appellant’s contention that the statute applied was invalid as a delegation of legislative power to the carrier by a concurrent holding “that no power is delegated to the carrier to legislate .... The statute itself condemns the defendant’s conduct as a violation of law and not the rule of the carrier.” Id., at 38. No complaint is made as to these interpretations of the Virginia statute by the Virginia court.8 The errors of the Court of Appeals that are assigned and relied upon by appellant are in form only two. The first is that the decision is repugnant to Clause 3, § 8, Article I of the Constitution of the United States,9 and the second the holding that powers reserved to the states by the Tenth Amendment include the power to require an interstate motor passenger to occupy a seat restricted for the use of his race. Actually, the first question alone needs consideration for, if the statute unlawfully burdens interstate commerce, the reserved powers of the state will not validate it.10 11 We think, as the Court of Appeals apparently did, that the appellant is a proper person to challenge the validity of this statute as a burden on commerce.11 If it is an invalid burden, the conviction under it would fail. The statute affects appellant as well as the transportation company. Constitutional protection against burdens on com- 7 Morgan n. Commonwealth, supra, 37. Cf. Smith v. State, 100 Tenn. 494, 46 S. W. 566; Alabama & Vicksburg R. Co. v. Morris, 103 Miss. 511, 60 So. 11; Southern R. Co. v. Norton, 112 Miss. 302, 73 So. 1. 8 Compare Hebert v. Louisiana, 272 U. S. 312,317; General Trading Co. v. Tax Comm’n, 322 U. S. 335,337. 9 “Section 8. The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 10 Case v. Bowles, 327 U. S. 92,101-102. 11 Cf. Edwards v. California, 314 U. S. 160, 172, n. 1. MORGAN v. VIRGINIA. 377 373. Opinion of the Court. merce is for her benefit on a criminal trial for violation of the challenged statute. Hatch v. Reardon, 204 U. S. 152, 160; Federation of Labor v. McAdory, 325 U. S. 450,463. This Court frequently must determine the validity of state statutes that are attacked as unconstitutional interferences with the national power over interstate commerce. This appeal presents that question as to a statute that compels racial segregation of interstate passengers in vehicles moving interstate.12 The precise degree of a permissible restriction on state power cannot be fixed generally or indeed not even for one kind of state legislation, such as taxation or health or safety.13 There is a recognized abstract principle, however, that may be taken as a postulate for testing whether particular state legislation in the absence of action by Congress is beyond state power. This is that the state legislation is invalid if it unduly burdens that commerce in matters where uniformity is necessary—necessary in the constitutional sense of useful in accomplishing a permitted purpose.14 Where uniformity is essential for the functioning of commerce, a state may not interpose its local regulation.15 Too true it is that the principle lacks in precision. Although the quality of such a principle is abstract, its application to the facts of a situation created by the attempted enforcement of a statute brings about a specific determination as to whether or not the statute 12 When passing upon a rule of a carrier that required segregation of an interstate passenger, this Court said, “And we must keep in mind that we are not dealing with the law of a State attempting a regulation of interstate commerce beyond its power to make.” Chiles v. Chesapeake & Ohio R. Co., 218 U. S. 71, 75. 13 Cf. Gwin, White & Prince v. Hennef ord, 305 U. S. 434,439; Mintz v. Baldwin, 289 U. S. 346,352; Welch Co. v. New Hampshire, 306 U. S. 79, 84. 14 Southern Pacific Co. v. Arizona, 325 U. S. 761, 766-71. 5 Cooley v. Board of Wardens, 12 How. 299, 319; Minnesota Rate Cases, 230 U. S. 352, 402; Kelly v. Washington, 302 U. S. 1,10. 378 OCTOBER TERM, 1945. Opinion of the Court. 328 U. 8. in question is a burden on commerce. Within the broad limits of the principle, the cases turn on their own facts. In the field of transportation, there has been a series of decisions which hold that where Congress has not acted and although the state statute affects interstate commerce, a state may validly enact legislation which has predominantly only a local influence on the course of commerce.16 It is equally well settled that, even where Con- 16 Statutes or orders dealing with safety of operations: Smith v. Alabama, 124 U. S. 465 (Alabama statute requiring an examination and license of train engineers before operating in the state); Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96 (statute requiring examination of railroad employees as to vision and color blindness); New York, N. H. & H. R. Co. v. New York, 165 U. S. 628 (New York statute forbidding the use of furnaces or stoves in passenger cars and requiring guard-posts on railroad bridges); Erb v. Morasch, 177 U. S. 584 (municipal ordinance limiting speed of trains in city to 6 miles an hour); Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280 (Georgia statute requiring electric headlights on locomotives); Morris v. Duby, 274 U. S. 135 (weight restrictions on motor carriers imposed by order of Oregon highway commission); Sproles v. Binford, 286 U. S. 374 (size and weight restrictions on trucks imposed by Texas statute); South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177 (statute restricting weight and size of motor carriers); Maurer v. Hamilton, 309 U. S. 598 (Pennsylvania statute forbidding the use of its highways to any vehicle carrying any other vehicle over the head of the operator of the vehicle); Terminal Assn. v. Trainmen, 318 U. S. 1 (Illinois statute requiring cabooses on freight trains). Statutes or orders requiring local train service: Gladson v. Minnesota, 166 U. S. 427 (state statute requiring intrastate train to stop at county seat to take on and discharge passengers); Lake Shore & Michigan Southern R. Co. v. Ohio, 173 U. S. 285 (statute requiring three trains daily, if so many are run, to stop at each city containing over 3,000 inhabitants as applied to interstate trains); Atlantic Coast Line R. Co. v. North Carolina Corporation Comm’n, 206 U. S. 1 (order regulating train service, particularly requiring train to permit connection with through trains at junction point); Missouri Pacific R. Co. MORGAN v. VIRGINIA. 379 373 Opinion of the Court. gress has not acted, state legislation or a final court order is invalid which materially affects interstate commerce.17 v. Kansas, 216 U. S. 262 (order directing the operation of intrastate passenger train service over specified route). Statutes dealing with employment of labor—full crew laws: Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453 (Arkansas full crew law applied to interstate trains); St. Louis, I. M. & S. R. Co. v. Arkansas, 240 U. S. 518 (Arkansas full crew laws applied to switching crews); Missouri Pacific R. Co. v. Norwood, 283 U. S. 249 (Arkansas full crew laws applied to freight and switching crews). 17 Statutes or orders dealing with safety of operations: Kansas City Southern R. Co. v. Kaw Valley Dist., 233 U. S. 75 (order requiring railroad to remove its bridges over river for flood control purposes); South Covington & Cincinnati R. Co. v. Covington, 235 U. S. 537 (ordinances regulating the number of passengers to be carried in, the number of cars to be run and the temperature of an interstate street railway car invalid; those requiring rails on front and rear platform, ventilation and cleaning valid); Seaboard Air Line R. Co. v. Blackwell, 244 U. S. 310 (Georgia Blow Post Law requiring train to blow whistle and slow down almost to a stop at each grade crossing where numerous grade crossings were involved. Cf. Southern R. Co. v. King, 217 U. S. 524, where answer held insufficient to permit proof of burden of the statute on interstate commerce); Southern Pacific Co. v. Arizona, 325 U. S. 761 (statute limiting number of cars in freight train to 70 and passenger cars to 14). Statutes or orders requiring local train service: Illinois Central R. Co. v. Illinois, 163 U. S. 142 (statute applied to require fast mail train to detour from main line in order to stop at station for the taking on and discharge of passengers); Cleveland, C., C.