^scarded ApR 19 zuüb CSE UNITED STATES REPORTS VOLUME 336 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1948 From January 17, 1949 (Concluded) Through May 9, 1949 WALTER WYATT REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1949 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $3.00 (Buckram) BaZ Un & [/, vZ Erratum. 308 U. S. 189, third line from bottom of page, “28 F. 2d” should be “28 F. Supp.” ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. FRED M. VINSON, Chief Justice. HUGO L. BLACK, Associate Justice. STANLEY REED, Associate Justice. FELIX FRANKFURTER, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. FRANK MURPHY, Associate Justice. ROBERT H. JACKSON, Associate Justice. WILEY RUTLEDGE, Associate Justice. HAROLD H. BURTON, Associate Justice. TOM C. CLARK, Attorney General. PHILIP B. PERLMAN, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. WALTER WYATT, Reporter. THOMAS ENNALLS WAGGAMAN, Marshal. HELEN NEWMAN, Librarian. hi SUPREME COURT OF THE UNITED STATES. Allotment of Justices. It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, agreeably to the Acts of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Felix Frankfurter, Associate Justice. For the Second Circuit, Robert H. Jackson, Associate Justice. For the Third Circuit, Harold H. Burton, Associate Justice. For the Fourth Circuit, Fred M. Vinson, 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 O. Douglas, Associate Justice. For the Tenth Circuit, Wiley Rutledge, Associate Justice. For the District of Columbia, Fred M. Vinson, Chief Justice. October 14,1946. (For next previous allotment, see 328 U. S. p. iv.) IV TABLE OF CASES REPORTED Note: Cases reported before page 901 are those decided with opinions. Those reported on pages 901 et seq. are memorandum decisions and orders. Page A. Cimpi Express Lines, New Amsterdam Co. v... 938 Acme Fast Freight, Chicago, M., St. P. & P. R. Co. v. 465 Adams v. Hiatt............................ 905, 921 Adda v. Commissioner.......................... 952 Administrator. See name of administrator; Surplus Property Administrator; Wage & Hour Administrator; War Assets Administrator. Admiral Corp., Stueber v........................ 961 Aetna Casualty & Surety Co., United States v.. 960 Air Reduction Sales Co. v. Commissioner....... 422 Alburn v. National City Bank.................. 937 Alburn v. Union Trust Co...................... 937 Algoma Plywood Co. v. Wisconsin Board......... 301 Alker v. Federal Deposit Insurance Corp....... 953 Allen v. Allen................................ 956 Allen v. Hudspeth............................. 906 Allen v. McFadden............................. 918 Allied Paper Mills v. Federal Trade Comm’n.... 918 American Foundry Equip. Co., Pangborn Corp. v... 913 American Locomotive Co. v. Chern. Research Corp.. 909 American Locomotive Co. v. Gyro Process Co.... 909 American Safety Table Co. v. Singer Co.......... 915 Anderegg v. United States..................... 967 Anderson v. Michigan.......................... 957 v VI TABLE OF CASES REPORTED. Page Arkansas, Palmer v.............................. 921 Arkansas, Rowland v......................... 918,941 Armstrong v. Howard............................. 902 Aronstam v. New York Central R. Co.............. 966 Ashe, Grierson v................................ 911 A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co. 941 Atkins v. Warden of Texas Prison System......... 946 Atlanta & St. Andrews Bay R. Co., Carter v....... 935 Atlantic Coast Line R. Co., Hill v.............. 911 Atlantic Coast Line R. Co., Reynolds v.......... 207 Atlantic Freight Lines v. Pa. Utility Comm’n..... 925 Attorney General, In re......................... 971 Attorney General, Burall v.................. 902, 932 Attorney General v. Family Life Ins. Co......... 220 Attorney General, McCann v...................... 924 Atwell Building Corp. v. Sound, Inc............. 962 Automobile Workers Union v. Wisconsin Bd... 245, 970 Baden, Jungersen v.......................... 915,932 Badgley v. Indiana.............................. 922 Bailey v. Proctor............................... 972 Bailey v. Stewart............................... 906 Baltimore & O. R. Co., Railroad Trainmen v....... 944 Barcott v. United States........................ 912 Bardell v. Illinois........................... 970 Barkhausen, Metropolis Theatre Co. v............ 945 Barnett v. Ragen................................ 926 Barrett, Beckman v.............................. 970 Barron-Gray Packing Co., Kingsland v............ 944 Bartenders Union v. Wilbank..................... 945 Bassett Estate v. Commissioner.................. 945 Becker v. Webster.............................. 968 Beckman v. Barrett.............................. 970 Benedict, United States v....................... 966 Beneficial Industrial Loan Corp., Cohen v....... 917 Beneficial Industrial Loan Corp. v. Smith....... 917 Ben F. Kelley Co., McEvoy Co. v................. 951 Benton, Callaway v.............................. 132 TABLE OF CASES REPORTED. vu Page Berkman, Spanei v.............................. 968 Berry v. Florida............................... 943 Bertrand v. Ragen........................... 923, 955 Bethea v. Scofield............................. 944 Bevelhymer v. Hudspeth......................... 906 Biberstein, In re.............................. 964 Bickford v. United States...................... 950 Big Slough Drainage Dist. v. Board of Comm’rs.... 957 Binkley v. Hunter........................... 926, 963 Biow Co., Enfield v............................ 934 Birch Securities Co. v. California............. 936 Bird v. Johnson................................ 950 Bird v. Washington............................. 954 Black Diamond S. S. Corp. v. Stewart & Sons...... 386 Blackwell v. Nevada............................ 939 Blair v. Coen.................................. 954 Blauvelt v. New York........................... 940 Blevins v. Hudspeth............................ 940 Blobel, In re.................................. 964 Blume, In re................................... 964 Board of County Comm’rs, Big Slough District v... 957 Bobermin, In re................................ 964 Bomar v. Keyes................................. 909 Bondholders v. New York Central R. Co.......... 919 Bongiorno v. Illinois.......................... 970 Bonham v. Ragen................................ 902 Bonino v. New York............................. 955 Borax Consolidated, Ltd., Burnham Co. v..... 924, 955 Boreman v. Illinois........................... 927 Boston Railroad Holding Co. v. Del. & Hudson Co... 932 Bottone v. Lindsley......................... 944 Brandt, Gibbons v........................... 910, 929 Braune, In re.................................. 964 Bretagna v. New York...................... 919, 922 Broadcasting Service Organization, F. C. C. v.... 950 Brooklyn & Richmond Ferry Co. v. Commissioner... 968 Brotherhood of Electrical Workers v. Wisconsin Bd. 18 VIII TABLE OF CASES REPORTED. Page Brotherhood of Railroad Trainmen v. B. & 0. R. Co. 944 Brotherhood of Teamsters, Riley v.................. 930 Brown v. California................................ 921 Brown v. Hudspeth.................................. 928 Brown v. Hunter.................................... 969 Brown v. Western Railway of Alabama................ 965 Bruce v. Ohio Oil Co............................... 913 Brueckner, In re................................... 964 Bunn v. North Carolina....................... 942, 971 Burall v. Clark................................ 902,932 Burford, Story v.................................. 915 Burke, Fritz v............................... 965 Burke, Kane v................................ 916 Burnett v. Stewart........................... 906 Burnham Chemical Co. v. Borax, Ltd.......... 924, 955 Burns v. Ragen................................... 905 Bush, In re.................................. 971 California, Birch Securities Co. v................. 936 California, Brown v................................ 921 California, De Soto v.............................. 920 California, Klor v................................. 920 California, Mangan v........................... 920 California, O’Neill v.............................. 908 California, Smith v................................ 957 California, Walker v............................ 940 California v. Zook............................... 725 California Division of Labor Law, Goggin v....... 118 California State Bar, Marshall v................... 951 Callaway v. Benton........................... 132 Campbell v. Pennsylvania........................... 927 Canada v. Jones.................................... 921 Canadian River Gas Co., In re.................... 902 Capital Airlines v. Civil Aeronautics Board...... 961 Carpenter v. Erie R. Co................. 904, 929, 947 Carpenter v. Rohm & Haas Co............. 904,929, 947 Carter v. Atlanta & St. Andrews Bay R. Co........ 935 Carter, New York v................................. 328 TABLE OF CASES REPORTED. IX Page Carter, United States v......................... 328 Cassel v. Overholser.............................. 939 Cassell v. Texas.................................. 943 Central Roig Rfg. Co., Porto Rican Refinery v.... 959 Central Roig Rfg. Co., Secretary of Agriculture v.... 959 Chandler v. United States................... 918,947 Chapman, Stewart v............................... 926 Chauffeurs Union, Riley v......................... 930 Chemical Research Corp., Amer. Locomotive Co. v.. 909 Cherney, Eagle v............................. 928, 947 Chesapeake & Ohio R. Co. v. Morris................ 967 Chester & Delaware Bartenders Union v. Wilbank... 945 Chicago, B. & Q. R. Co., Ruan Transport Corp. v.... 953 Chicago, M., St. P. & P. R. Co. v. Acme Fast Freight. 465 Chicago Title & Trust Co., Cleary v........... 904, 921 Christoffel v. United States..................... 934 Church Estate, Commissioner v................... 915 Ciha v. Ragen............................ 910, 947 Cimpi Express Lines, New Amsterdam Co. v......... 938 Cipullo v. United States......................... 946 Circuit Court Judge, Longshoremen’s Union v.. 919, 971 City. See name of city. Civil Aeronautics Board, Capital Airlines v...... 961 Civil Aeronautics Board, T. W. A. v.............. 601 Clark, Burall v.............................. 902,932 Clark, McCann v................................. 924 Clark v. Ragen.................................. 915 Clarke v. Ragen................................... 908 Clayton Mark & Co. v. Trade Comm’n........... 902, 956 Cleary v. Chicago Title & Trust Co........... 904, 921 Coen, Blair v................................... 954 Coffman v. Federal Laboratories, Inc.......... 913 Cohen v. Beneficial Industrial Loan Corp.......... 917 Cohn v. Cohn...................................... 962 Coker v. Illinois Central R. Co...;............... 954 Collector, Bethea v............................... 944 Collector, Friedman v............................. 936 X TABLE OF CASES REPORTED. Page Collector, Gunn v............................. 937 Collector, Henslee v.......................... 915 Collector of Internal Revenue. See Collector. Commanding General, Henry v................... 968 Commanding Officer, Becker v.................. 968 Commanding Officer, U. S. ex rel. Hirshberg v. 210 Commerce Co. v. United States................. 972 Commissioner, Adda v.......................... 952 Commissioner, Air Reduction Sales Co. v....... 422 Commissioner, Bassett Estate v................ 945 Commissioner, Brooklyn & Richmond Ferry Co. v.. 968 Commissioner v. Church Estate................. 915 Commissioner, Fuller Estate v................. 961 Commissioner, Gibb Estate v................... 903 Commissioner v. Jacobson....................... 28 Commissioner, National Carbide Corp, v........ 422 Commissioner, O’Neill v....................... 937 Commissioner v. Phipps........................ 410 Commissioner, Pure Carbonic, Inc. v........... 422 Commissioner, Railway Express Agency v........ 944 Commissioner, Spiegel Estate v................ 915 Commissioner, Universal Atlas Cement Co. v.... 962 Commissioner, Wilson Bros. & Co. v............ 909 Commissioner, Wolfe v........................ 914 Commissioner of Agriculture, Hood & Sons v.... 525 Commissioner of Finance v. Miss. Barge Line... 169, 928 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents v. Barron-Gray Co..... 944 Commonwealth. See name of Commonwealth. Communications Comm’n v. Broadcasting Service.. 950 Communications Comm’n v. WJR, Goodwill Station. 917 Connell, Vermilya-Brown Co. v............... 928 Cook v. United States....................... 926 Cooke v. Overholser........................... 923 Cooke, U. S. ex rel. Hirshberg v.............. 210 Cooper, Kovacs v............................ 77, 921 TABLE OF CASES REPORTED. XI Page Cordts v. Ragen................................ 943 Corrado, Pennsylvania R. Co. v................. 919 Correll v. North Carolina...................... 969 Cosby v. Harts................................. 931 County. See name of county. Crawford v. Ragen.............................. 968 Creutz, In re.................................. 964 Crippen v. Dallas... .•.................. 937, 955 Crystal Lake v. National Yeast Corp............ 952 Cuckovich v. United States..................... 905 Cummings v. Lainson............................ 944 Curtis v. Hiatt................................ 921 Curtis v. Humphrey........................ 941,971 Daddona, United States v....................... 961 Dale v. Heinze................................ 934 Dallas, Crippen v.......................... 937, 955 Dallman, Gunn v.............................. 937 Dammann, In re................................. 922 Daniel v. Family Security Ins. Co............. 220 Darnell v. Hudspeth............................ 915 Daughters of Utah Pioneers, Thomas v........... 930 David v. Sutton................................ 903 Davis v. Ragen................................. 946 Davis, Schnell v............................... 933 Day v. Illinois................................ 927 Defense Supplies Corp. v. Lawrence Co.......... 631 Dehner, In re................................. 964 Delaney, Friedman v............................ 936 Delaware & Hudson Co., Boston R. Holding Co. v... 932 Delaware, L. & W. R., Kelley v................. 939 De Meerleer v. Michigan........................ 946 Dennis, Taylor v............................ 907, 929 Deputy Commissioner v. Suwannee S. S. Co....... 198 De Soto v. California.......................... 920 District Director of Immigration, Houvardas v.... 913 District Director of Immig., Johnson v.... 806, 924, 956 District Director of Immigration, Knauff v..... 966, 971 XII TABLE OF CASES REPORTED. Page District Director of Immigration, Lee Fong Fook v. 914 District Judge. See also U. S. District Judge. District Judge, Moss v......................... 902 Division of Labor Law Enforcement, Goggin v..... 118 Dixie Cup Co. v. Paper Container Mfg. Co.... 909, 929 Doak v. Federal Land Bank...................... 972 Doelie v. Michigan............................. 942 Doll v. Meyer.................................. 967 D’Ostroph v. United States................... 910 Duche & Sons v. United States.................. 931 Duffy, Swain v................................. 928 Du Mond, Hood & Sons v......................... 525 Duncan, Wabash R. Co. v....................... 904 Dunkle v. Illinois.......................... 906, 955 Dunn v. New York............................... 946 Durr, Woods v............................... 912,941 Eagle v. Cherney........................... 928, 947 Eagleston v. United States..................... 952 Edward P. Stahel & Co. v. United States........ 951 Eirenschmalz, In re........................... 964 Electrical Workers Local v. Wisconsin Board..... 18 Elliott v. Howard.............................. 923 Empire Storage & Ice Co., Giboney v............ 490 Employees’ Compensation Comm’n v. Suwannee Co. 198 Enfield v. Biow Co............................. 934 Eppler & Co. v. New York Central R. Co......... 966 Erie R. Co., Carpenter v................. 904, 929, 947 Estate of. See name of estate. Exkano v. Hiatt............................... 905 Ex parte. See name of party. Family Security Life Ins. Co., Daniel v........ 220 Fanslau, In re................................. 964 Farrell v. United States....................... 511 Faulkner v. Gibbs.............................. 935 F. & B. Manufacturing Co., Philco Corp, v....... 945 Federal Communications Comm’n v. Broad. Service. 950 Federal Communications Comm’n v. WJR Station.. 917 TABLE OF CASES REPORTED. XIII Page Federal Deposit Insurance Corp., Alker v........ 953 Federal Laboratories, Inc., Coffman v........... 913 Federal Land Bank, Doak v....................... 972 Federal Power Comm’n v. Interstate Gas Co........ 577 Federal Power Comm’n v. Panhandle Pipe Line Co.. 935 Federal Power Comm’n, South Carolina v.......... 953 Federal Security Administration, In re.......... 971 Federal Trade Comm’n, Allied Paper Mills v....... 918 Federal Trade Comm’n, Clayton Mark & Co. v.. 902, 956 Felmy, In re.................................... 964 Filardo, Foley Bros, v.......................... 281 Filson, Fountain v.............................. 681 Fisher v. Pace.............................. 155, 928 Florida, Berry v................................ 943 Florida, McHugh v............................... 918 Foley Bros. v. Filardo.......................... 281 Foreman v. Ragen............................... 970 Foster v. Hudspeth.............................. 927 Fountain v. Filson.............................. 681 Fox v. Fox...................................... 930 Frank, In re.........................;.......... 964 Frank Bros. Footwear, Inc., Omaha v............. 935 Franklin v. Hudspeth........................ 927, 947 Frazier v. United States.................... 907, 912 Fred P. Weissman Co. v. Labor Board............. 972 Friedman v. Delaney............................. 936 Fries v. United States..........;............... 954 Fritz v. Burke................................. 965 Fuller Estate v. Commissioner.................. 961 Fulton Iron Co. v. Larson....................... 903 Galt, Walker v.................................. 925 Garner v. Ragen.......................,....... 910 Gawron v. Ragen................................ 907 General Electric Co., Shotkin v................. 950 General Motors Corp., Hazeltine Research, Inc. v... 938 Georgia, Jackson v............................. 907 Gibb Estate v. Commissioner..................... 903 XIV TABLE OF CASES REPORTED. Page Gibbons v. Brandt.......................... 910, 929 Gibbs, Faulkner v.............................. 935 Giboney v. Empire Storage & Ice Co............. 490 Gierens v. Illinois........................ 904,932 Glander, Midwest Haulers, Inc. v............... 963 Goggin v. Division of Labor Law Enforcement..... 118 Goodwill Station, WJR, Communications Comm’n v. 917 Gore v. Ragen.................................. 928 Government of Puerto Rico v. Secretary of Agric.... 959 Governor of Hawaii v. Mo Hock Ke Lok Po......... 368 Grant v. United States........................ 916 Graver Tank & Mfg. Co. v. Linde Air Products Co... 271 Gray, Patterson v.......................... 905,941 Great Northern R. Co. v. United States......... 933 Greene, Ex parte............................... 916 Grierson v. Ashe............................... 911 Griffin v. Ragen............................... 946 Griffin v. United States....................... 704 Grigsby v. Swygert............................. 902 Grimm v. Stewart............................... 938 Guggenheim v. United States....................I 911 Gulfstream Park Racing Assn. v. Hialeah Course... 948 Gunn v. Dallman.............................. 937 Guttman, Leiman v............................... 1 Gyro Process Co., American Locomotive Co. v..... 909 Haensch, In re............................... 964 Haley v. Pennsylvania......................... 941 Harris v. National Machine Works........... 905, 929 Harris v. Robinson............................. 947 Harts, Cosby v............................... 931 Hawaii, Governor of, v. Mo Hock Ke Lok Po........ 368 Hawfield, Pollard v........................ 909, 929 Hawthorne v. United States..................... 905 Haynes v. Southern Railway System.......... 943, 964 Hazeltine Research, Inc. v. General Motors Corp... 938 H-C Products Co. v. National Machine Works.. 905, 929 Heinze, Dale v................................ 934 TABLE OF CASES REPORTED. xv Page Heinze, Lilly v............................... 920 Helms, Tucker Products Corp, v............... 938 Helpers’ Union, Riley v....................... 930 Henry v. Hodges............................... 968 Henslee v. Union Planters Bank................ 915 Hensley v. United States...................... 904 Hialeah Race Course, Gulfstream Park Assn, v.... 948 Hiatt, Adams v............................. 905, 921 Hiatt, Curtis v............................. 921 Hiatt, Exkano v.............................. 905 Hiatt, Jackson v.............................. 938 Hiatt v. Smith................................ 908 Hickman v. Taylor.......................... 906, 921 Hill v. Atlantic Coast Line R. Co............. 911 Hill v. Terminal Railroad Assn................ 962 Hinman, Wilson v.............................. 970 Hinton, Seaboard Air Line R. Co. v............ 931 Hirshberg v. Cooke............................ 210 Hodges, Henry v............................... 968 Hoffman, Steinberg v......................... 924 Hofmann, In re................................ 964 Hohberg, In re............................... 964 Holderfield v. Ragen......................... 906 Holiday v. Warden of Maryland Penitentiary...... 928 Home Ins. Co., United States v................ 960 Hood & Sons v. Du Mond........................ 525 Hotel Employees Union v. Wilbank.............. 945 Hoth, In re.................................. 964 Houghton v. Hudspeth.......................... 907 House v. Mayo................................ 901 Housing Expediter v. Durr.................. 912, 941 Houvardas v. Wixon........................... 913 Howard, Armstrong v............................; 902 Howard, Elliott v........................... 923 Howard, Lloyd v............................... 908 Howard, Rash v............................ 959 Howard, Sweet v............................... 950 XVI TABLE OF CASES REPORTED. Page H. P. Hood & Sons v. Du Mond........................ 525 Hudspeth, Allen v................................... 906 Hudspeth, Bevelhymer v.............................. 906 Hudspeth, Blevins v............................ 940 Hudspeth, Brown v.................. ............... 928 Hudspeth, Darnell v................................ 915 Hudspeth, Foster v...................................927 Hudspeth, Franklin v......................... 927, 947 Hudspeth, Houghton v........................... 907 Hudspeth, Marcus v.................................. 911 Hudspeth, Oaks v.................................... 906 Hudspeth, Pyle v................................... 907 Hudspeth, Skelton v................................ 927 Hudspeth, Smith v............................. 940, 962 Hudspeth, Wilson v................................. 911 Huebner, In re. J..... 964 Hughes v. Superior Court........................ 966 Humphrey, Curtis v............................ 941,971 Humphrey v. Smith............................... 695 Hunter, Binkley v............................ 926, 963 Hunter, Brown v..................................... 969 Hunter, Wade v...................................... 684 lannella v. Johnson................................. 932 Illinois, Bardell v............................... 970 Illinois, Bongiorno V-............................. 970 Illinois, Boreman v................................ 927 Illinois, Day v.................................... 927 Illinois, Dunkle v............................ 906, 955 Illinois, Gierens v............................ 904, 932 Illinois, Koblitz v................................. 927 Illinois, Moseley v............................... 923 Illinois, Tabet v................................... 970 Illinois, Weber v................................... 969 Illinois Central R. Co., Coker v.................... 954 Illinois Commerce Comm’n v. Interstate Gas Co.... 577 Illinois ex rel. Marino v. Ragen.................... 969 Illinois Supreme Court, Meyers v.................... 928 TABLE OF CASES REPORTED. XVII Page Immigration Director. See District Director of Immigration. Income Bondholders v. New York Central R. Co.... 919 Indiana, Badgley v............................ 922 Indiana, Johnson v............... i............ ; 927 Indiana, Kallas v............................... 940 Indiana, Rogers v............................... 940 Indiana, Watts v................................ 917 Inland Steel Co. v. Labor Board................. 960 In re. See name of party. Internal Revenue Commissioner. See Commissioner. International Brotherhood of Teamsters, Riley v.... 930 International Electrical Workers Local v. Board.... 18 International Longshoremen’s Union v. Wirtz.. 919, 971 International Union, U. A. W. A., v. Wis. Board. 245, 970 Interstate Natural Gas Co., Ill. Com. Comm’n v... 577 Interstate Natural Gas Co., Memphis Light Div. v.. 577 Interstate Natural Gas Co., Power Comm’n v...... 577 Interstate Natural Gas Co., Pub. Serv. Comm’n v... 577 Interstate Realty Co., Woods v................... 909 Isbrandtsen Co., Ludwig Mowinckels Rederi v...... 941 Jackson v. Georgia.............................. 907 Jackson v. Hiatt................................ 938 Jackson v. Lambert.............................. 904 Jackson, Steele v........................... 939,971 Jacksonville Paper Co., McComb v................ 187 Jacobson, Commissioner v........................ 28 Janiec v. New Jersey............................ 939 J. D. Richardson Co. v. United States........... 936 J. Ludwig Mowinckels Rederi v. Isbrandtsen Co.... 941 Joel, In re..................................... 964 Johnson, Bird v................................. 950 Johnson, lannella v.'........................... 932 Johnson v. Indiana.............................. 927 Johnson, Kelley v............................... 919 Johnson v. Ragen................................ 927 Johnson v. Shaughnessy.......................... 806 823978 0—49--2 XVIII TABLE OF CASES REPORTED. Page Johnson, Stevenson v............................. 904 Johnson, Viles v................................. 921 Johnson v. Watkins.......................... 924, 956 Jones, Canada v.................................. 921 Jones, United States v.......................... 641 Jordan v. Ragen.................................. 905 Jost, In re...................................... 964 Jungersen v. Baden........................... 915,932 Jungersen v. Ostby & Barton Co.............. 915, 931 Justices of Illinois Supreme Court, Meyers v..... 928 Kallas v. Indiana................................ 940 Kane v. Burke.................................... 916 Kelley v. Delaware, L. & W. R.................... 939 Kelley v. Johnson................................ 919 Kelley, McEvoy Co. v............................. 951 Kelly v. Ragen................................... 920 Ketchum, Kozdron v............................... 923 Keyes, Bomar v. 909 Killinger, Lowe v................................ 911 Kingsland v. Barron-Gray Packing Co.............. 944 Kissinger v. United States....................... 907 Klapprott v. United States.................. 942, 949 Klemm, In re..................................... 964 Klingelhoefer, In re............................. 964 Klor v. California............................... 920 Knauff v. Watkins........................... 966, 971 Knight, In re.................................... 924 Knight, United States v.......................... 505 Knowles v. War Damage Corp....................... 914 Kober v. United States........................... 945 Koblitz v. Illinois.............................. 927 Koehne v. Matthews.......................... 924, 947 Kordel v. United States.......................... 911 Kovacs v. Cooper.................................. 77, 921 Kozdron v. Ketchum............................... 923 Krakower v. New York......................... 943,963 Krulewitch v. United States..................... 440 TABLE OF CASES REPORTED. XIX Page Kuehnle-Wilson, Inc., Sharble v................ 914 Kuh v. Ragen................................... 920 Kuntze, In re.................................. 964 Labor Board, Inland Steel Co. v................ 960 Labor Board v. Stowe Spinning Co............... 226 Labor Board, Weissman v........................ 972 Labor Board, Worcester Woolen Mills Corp, v..... 903 Labor Board Regional Director, Printing Union v... 949 Labor Commissioner v. Brotherhood of Teamsters.. 930 Labor Law Enforcement Div., Goggin v........... 118 La Crosse Telephone Corp. v. Wisconsin Board.... 18 Lagemann v. Lagemann....................... 932, 970 Lainson, Cummings v.......................... 944 Lainson, Touche v.............................. 959 Lamb, Union National Bank v.................... 901 Lambert, Jackson v............................. 904 Lang v. Walsh.................................. 959 Lanz, In re.................................... 964 Larson, Fulton Iron Co. v...................... 903 Lautz, In re.................................. 964 Lawrence v. Stewart............................ 940 Lawrence Warehouse Co., Defense Corp, v......... 631 Lawson v. Suwannee S. S. Co.................... 198 LeBaron, Printing Specialties Union v.......... 949 Lee Fong Fook v. Wixon......................... 914 Leiman v. Guttman.............................. 1 Leishman v. Radio Condenser Co................. 921 Leishman v. Richards & Conover Co.............. 952 Le Van v. Stiler.............................. 920 Levine v. United States........................ 936 Leyser, In re.................................. 964 Lilly v. Heinze............................... 920 Linde Air Products Co., Graver Tank Co. v....... 271 Lindsley, Bottone v............................ 944 List, In re................................... 964 Lloyd v. Howard............................... 908 Loerner, In re................................ 964 XX TABLE OF CASES REPORTED. Page Longshoremen’s Union v. Wirtz............. 919,971 Longyear Holding Co. v. Minnesota............. 948 Lorenz, In re................................. 964 Los Angeles County v. Southern California Tel. Co. 929 Louisiana, Peters v........................... 923 Louisiana, United States v............... 958 Louisiana Farmers Protective Union, Ex parte... 934 Louisville & N. R. Co., Oakley v.................. 943 Love v. United States......................... 912 Lowe v. Killinger............................. 911 Lucas v. Texas................................ 950 Ludwig Mowinckels Rederi v. Isbrandtsen Co..... 941 Lundy v. Warden of Michigan Prison............ 950 Mac. See also Me, infra. MacKenna v. New York.......................... 969 Magnolia Petroleum Co., Okla. Tax Comm’n v. 342, 958 Mangan v. California.......................... 920 Marcus v. Hudspeth............................ 911 Marino v. Ragen............................... 969 Mark & Co. v. Federal Trade Comm’n......... 902, 956 Marris v. Sockey.............................. 914 Marshall v. State Bar of California........... 951 Maryland, Smith v............................. 925 Maryland, Zimmerman v......................... 901 Maryland Casualty Co. v. Toups................ 967 Marzani v. United States.................. 910,922 Mathis v. Ragen............................... 928 Matthews, Koehne v......................... 924,947 Mayo, House v................................. 901 Me. See also Mac, supra. McAdam, In re............................. 902, 941 McCann v. Clark............................... 924 McCarthy, Wilkerson v...................... 53, 940 McComb v. Jacksonville Paper Co............... 187 McComb, Shepard Niles Crane Corp, v........... 960 McEvoy Co. v. Kelley.......................... 951 McFadden, Allen v............................. 918 TABLE OF CASES REPORTED. XXI Page McGough v. United States........................ 955 McGregor v. Ragen........................... 939, 963 McHugh v. Florida............................... 918 McIntosh v. Pescor.......................... 926, 955 McIntosh v. United States................... 926, 955 McLaren v. Nierstheimer......................... 969 McLaurin v. Mississippi......................... 933 Memphis Light & Water Div. v. Interstate Gas Co.. 577 Merchants Transfer & Warehouse Co., Ragen v.... 917 Metropolis Theatre Co. v. Barkhausen........... 945 Mettgenberg, In re.......... 964 Meyer, Doll v.................................. 967 Meyers v. United States......................... 912 Meyers v. Wilson................................ 928 Michael v. Ragen.............................. 946 Michigan, Anderson v.................■.......... 957 Michigan, De Meerleer v......................... 946 Michigan, Doelie v............................ 942 Michigan, Quicksail v....................... 916,949 Michigan, Wade v............................ 924,947 Midwest Haulers, Inc. v. Glander................ 963 Midwest-Radiant Corp., Northern Ill. Coal Corp, v.. 952 Miller, Turner County v......................... 925 Minnesota, Longyear Holding Co. v............... 948 Mississippi, McLaurin v......................... 933 Mississippi, Odom v............................. 932 Mississippi, Poore v........................ 922, 947 Mississippi Valley Barge Line, Ott v......... 169,928 Missouri, Ormsby v............................. 906 Mitchell v. White Consolidated, Inc............. 958 Mo Hock Ke Lok Po, Stainback v.................. 368 Momand v. Universal Film Exchanges.............. 967 Moore v. Ragen.................................. 947 Morandy v. United States....................... 938 Morris, Chesapeake & 0. R. Co. v................ 967 Morton v. Steele............................... 942 Moseley v. Illinois............................. 923 XXII TABLE OF CASES REPORTED. Page Moss v. Swygert............................ 902, 943 Mountain Producers Corp., Schoen v............ 937 Muhlbauer, In re.............................. 964 Mummen they, In re............................ 964 National Carbide Corp. v. Commissioner........ 422 National City Bank, Alburn v.................. 937 National Labor Relations Board. See Labor Board. National Machine Works, Harris v........... 905, 929 National Yeast Corp. Crystal Lake v........... 952 Naumann, In re................................ 964 Nevada, Blackwell v........................... 939 New Amsterdam Casualty Co. v. Cimpi Lines....... 938 New Jersey, Janiec v.......................... 939 New Jersey, Stephenson v................... 908, 947 New Orleans Shipwrecking Corp. v. Smith......... 953 New York, Blauvelt v.......................... 940 New York, Bonino v............................ 955 New York, Bretagna v....................... 919, 922 New York v. Carter............................ 328 New York, Dunn v.............................. 946 New York, Krakower v...................... 943,963 New York, MacKenna v.......................... 969 New York, Railway Express Agency v............ 106 New York, Stemmer v........................ 943, 963 New York Central R. Co., Aronstam v........... 966 New York Central R. Co., Eppler & Co. v....... 966 New York Central R. Co., Income Bondholders v... 919 New York City v. Saper........................ 328 Ney v. United States.......................... 967 Nichols v. Ohio.............................. 910 Nierstheimer, McLaren v....................... 969 Nierstheimer, White v........................ 926 North Carolina, Bunn v..................... 942, 971 North Carolina, Correll v..................... 969 Northern Ill. Coal Corp. v. Midwest-Radiant Corp.. 952 Nye & Nissen v. United States................. 613 Oakley v. Louisville & N. R. Co.............. 943 TABLE OF CASES REPORTED. XXIII Page Oaks v. Hudspeth................................ 906 Odom v. Mississippi............................. 932 Oeschey, In re.................................. 964 Ohio, Nichols v............................... 910 Ohio, Williams v................................ 926 Ohio Oil Co., Bruce v........................... 913 Ohlendorf, In re................................ 964 Oklahoma, Wilson v.............................. 965 Oklahoma Tax Comm’n v. Magnolia Co........... 342, 958 Oklahoma Tax Comm’n v. Texas Co............. 342, 958 Omaha v. Frank Bros. Footwear, Inc............. 935 O’Neill v. California........................... 908 O’Neill v. Commissioner......................... 937 Ormsby v. Missouri.............................. 906 Ostby & Barton Co., Jungersen v............ 915, 931 Ott, In re...................................... 964 Ott v. Mississippi Barge Line Co............ 169, 928 Overholser, Cassel v............................ 939 Overholser, Cooke v............................. 923 Overholser, Ruthven v.......................... 923 Overholser, Williams v.......................... 934 Pace, Fisher v............................. 155, 928 Painter v. Southern Transportation Co........... 931 Palmer v. Arkansas............................. 921 Pangborn Corp. v. American Foundry Co........... 913 Panhandle Eastern Pipe Line Co., Power Comm’n v. 935 Paper Container Mfg. Co., Dixie Cup Co. v.... 909, 929 Paper Converters Union v. LeBaron............... 949 Parker, In re................................... 923 Parker v. Ragen................................. 920 Pasadena, Talbot v.............................. 907 Patrick v. United States....................... 925 Patterson v. Gray.......................... 905,941 Pennsylvania, Campbell v........................ 927 Pennsylvania, Haley v........................ 941 Pennsylvania R. Co. v. Corrado................. 919 Pennsylvania Utility Comm’n, Atlantic Lines v..... 925 XXIV TABLE OF CASES REPORTED. Page Perkins, Shotkin v............................. 923 Pescor, McIntosh v.......................... 926, 955 Peters v. Louisiana............................. 923 Petti v. United States.......................... 916 Philco Corp. v. F. & B. Manufacturing Co......... 945 Phillips v. Ragen......................... 902, 965 Phillips v. Saunders............................ 967 Phillips, Wolfe v............................... 968 Phipps, Commissioner v....................... 410 Piscataway Recorder, lannella v................. 932 Pitts v. Ragen.............................. 910,920 Pohl, In re..................................... 964 Pollard v. Hawfield........................ 909, 929 Pook, In re.................................... 964 Poore v. Mississippi....................... 922, 947 Porto Rican American Refinery v. Central Roig Co. 959 Power Comm’n. See Federal Power Comm’n. Printing Specialties & Paper Union v. LeBaron.... 949 Pritt, West Virginia Northern R. Co. v....... 961 Proctor, Bailey v............................... 972 Public Service Comm’n v. Interstate Gas Co....... 577 Puerto Rico v. Secretary of Agriculture......... 959 Puhr, In re................................... 923 Pure Carbonic, Inc. v. Commissioner............. 422 Pyle v. Hudspeth................................ 907 Quicksail v. Michigan..................... 916, 949 Radio Condenser Co., Leishman v................. 921 Ragen, Barnett v................................ 926 Ragen, Bertrand v........................... 923, 955 Ragen, Bonham v................................. 902 Ragen, Burns v.................................. 905 Ragen, Ciha v............................... 910, 947 Ragen, Clark v.................................. 915 Ragen, Clarke v................................ 908 Ragen, Cordts v................................. 943 Ragen, Crawford v.............................. 968 Ragen, Davis v.................................. 946 TABLE OF CASES REPORTED. XXV Page Ragen, Foreman v............................... 970 Ragen, Garner v................................ 910 Ragen, Gawron v................................ 907 Ragen, Gore v.................................. 928 Ragen, Griffin v\..... 946 Ragen, Holderfield v......................... 906 Ragen, Illinois ex rel. Marino v............... 969 Ragen, Johnson v............................... 927 Ragen, Jordan v............................... 905 Ragen, Kelly v................................. 920 Ragen, Kuh v................................... 920 Ragen, Marino v................................ 969 Ragen, Mathis v................................ 928 Ragen, McGregor v.......................... 939, 963 Ragen v. Merchants Transfer Co................. 917 Ragen, Michael v............................. 946 Ragen, Moore v................................. 947 Ragen, Parker v................................ 920 Ragen, Phillips v.......................... 902,965 Ragen, Pitts v............................. 910,920 Ragen, Ross v................................. 962 Ragen, Smith v............................. 962, 966 Ragen, Spicher v.......................... 905, 906 Ragen, U. S. ex rel. Holderfield v............. 906 Ragen, U. S. ex rel. Parker v.................. 920 Ragen, Van Pelt v.............................. 942 Ragen, Williams v........................ .'U. ^.. 910 Ragen, Wiseman v............................... 946 Ragen, Wofford v............................... 915 Ragen, Wrona v................................. 970 Railroad Trainmen v. B. & O. R. Co............. 944 Railway Express Agency v. Commissioner......... 944 Railway Express Agency v. New York............. 106 Ramsey, In re.................................. 923 Rash, In re.................................... 902 Rash v. Howard................................. 959 Recorder of Piscataway, lannella v............. 932 XXVI TABLE OF CASES REPORTED. Page Regional Director of Labor Board, Printing Union v. 949 Rendulic, In re................................ 964 Restaurant Employees Union v. Wilbank........... 945 Reynolds v. Atlantic Coast Line R. Co........... 207 Rice v. Rice.................................... 674 Richards & Conover Co., Leishman v.............. 952 Richardson Co. v. United States................. 936 Riley v. Brotherhood of Teamsters............... 930 Riley, West Virginia Northern R. Co. v.......... 961 Robert Stewart & Sons, Black Diamond S. S. Corp, v. 386 Robert Stewart & Sons, United States v.......... 386 Robinson, Harris v.............................. 947 Roett v. United States.......................... 960 Rogers v. Indiana.............................. 940 Rohm & Haas Co., Carpenter v............ 904, 929, 947 Ross v. Ragen................................... 962 Rothaug, In re................................. 964 Rothenberger, In re............................ 964 Rowland v. Arkansas.......................... 918, 941 Ruan Transport Corp. v. Chicago, B. & Q. R. Co.... 953 Ruthven v. Overholser........................... 923 Rutledge v. United Services Ins. Co............. 953 Ryles v. United States.......................... 949 Sandberger, In re............................... 964 Saper, New York City v.......................... 328 Saunders, Phillips v........................... 967 Schallermair, In re............................. 922 Schlegelberger, In re........................... 964 Schmidt, In re.................................. 923 Schnell v. Davis................................ 933 Schoen v. Mountain Producers Corp............... 937 Schubert, In re................................. 964 Schwalm, In re.................................. 964 Scofield, Bethea v.............................. 944 Seaboard Air Line R. Co. v. Hinton.............. 931 Seatrain Lines v. West India Fruit Co........ 908 Secretary of Agriculture v. Central Roig Co...... 959 TABLE OF CASES REPORTED. XXVII Page Secretary of Agriculture, Puerto Rico v............. 959 Secretary of Defense, Bird v....................... 950 Securities & Exchange Comm’n, South Carolina v.. 953 Seibert, In re..................................... 964 Seidel, In re...................................... 923 Sharble v. Kuehnle-Wilson, Inc...................... 914 Shaughnessy, U. S. ex rei. Johnson v................ 806 Shepard Niles Crane Corp. v. McComb................. 960 Shotkin v. General Electric Co...................... 950 Shotkin v. Perkins.................................. 923 Shotkin v. Westinghouse Electric Co......... 902, 955 Singer Sewing Machine Co., Amer. Table Co. v..... 915 Six, In re.......................................... 964 Skelton v. Hudspeth................................. 927 Smith, Beneficial Industrial Loan Corp, v........... 917 Smith v. California................................ 957 Smith, Hiatt v...................................... 908 Smith v. Hudspeth........................... 940, 962 Smith, Humphrey v................................... 695 Smith v. Maryland................................... 925 Smith, New Orleans Shipwrecking Corp, v.......... 953 Smith v. Ragen.............................. 962, 966 Sockey, Marris v.................................... 914 Sommer, In re....................................... 964 Sound, Inc., Atwell Building Corp, v................ 962 South Carolina Public Service Authority v. F. P. C.. 953 South Carolina Public Service Authority v. S. E. C.. 953 Southern California Tel. Co., Los Angeles County v.. 929 Southern Railway System, Haynes v........... 943,964 Southern Transportation Co., Painter v............. 931 Spanel v. Berkman.................................. 968 Spears v. Spears.................................... 952 Speidel, In re...................................... 964 Spelar, United States v............................ 950 Spicher v. Ragen........................... 905, 906 Spiegel Estate v. Commissioner...................... 915 Stahel & Co. v. United States....................... 951 xxvni TABLE OF CASES REPORTED. Page Stainback v. Mo Hock Ke Lok Po................... 368 Standard Oil Co. v. Superior Court........... 930, 955 Standard-Vacuum Oil Co. v. United States......... 935 State. See name of State. State Bar of California, Marshall v.............. 951 Steele v. Jackson............................ 939,971 Steele, Morton v................................. 942 Steimle, In re................................... 964 Steinberg v. Hoffman............................. 924 Stemmer v. New York.......................... 943,963 Stephenson v. New Jersey..................... 908,947 Stevenson v. Johnson............................. 904 Stewart, Bailey v................................ 906 Stewart, Burnett v............................... 906 Stewart v. Chapman............................... 926 Stewart, Grimm v................................. 938 Stewart, Lawrence v.............................. 940 Stewart & Sons, Black Diamond S. S. Co. v........ 386 Stewart & Sons, United States v.................. 386 Stiler, Le Van v................................. 920 Stinson Canning Co. v. United States............. 951 Stone, Viator v.................................. 948 Story v. Burford................................. 915 Stowe Spinning Co., Labor Board v................ 226 Strauch, In re................................... 964 Stueber v. Admiral Corp.......................... 961 Superintendent of Police, Beckman v.............. 970 Superior Court, Hughes v......................... 966 Superior Court, Standard Oil Co. v........... 930, 955 Superior Court, Verdier v........................ 957 Superior Court, Wilson v......................... 916 Supreme Court of Illinois, Meyers v.............. 928 Surplus Property Adm’r, Fulton Iron Co. v......... 903 Sutton, David v.................................. 903 Suwannee Fruit & Steamship Co., Lawson v.......... 198 Swain v. Duffy................................... 928 Sweet v. Howard.................................. 950 TABLE OF CASES REPORTED. XXIX Page Swygert, Grigsby v............................. 902 Swygert, Moss v............................. 902,943 Tabet v. Illinois............................... 970 Talbot v. Pasadena.............................. 907 Tax Commissioner, Midwest Haulers, Inc. v........ 963 Taylor v. Dennis............................ 907, 929 Taylor, Hickman v........................... 906, 921 Teamsters Union, Riley v........................ 930 Terminal Railroad Assn., Hill v............. J. ... 962 Texas, Cassell v................................ 943 Texas, Lucas v.................................. 950 Texas, United States v.......................... 958 Texas Co., Oklahoma Tax Comm’n v............ 342, 958 Texas Prison System Warden, Atkins v............ 946 Thomas v. Daughters of Utah Pioneers............ 930 Tillman v. Tillman............................ 954 T. M. Duche & Sons v. United States............. 931 Toronto, H. & B. Nav. Co., United States v....... 965 Touche v. Lainson............................... 959 Toups, Maryland Casualty Co. v.................. 967 Trade Comm’n, Allied Paper Mills v.............. 918 Trade Comm’n, Clayton Mark & Co. v.......... 902, 956 Transcontinental & Western Air v. C. A. B........ 601 Tucker Products Corp. v. Helms.................. 938 Turner County v. Miller......................... 925 Union National Bank v. Lamb..................... 901 Union Planters Bank, Henslee v.................. 915 Union Trust Co., Alburn v....................... 937 United Auto. Workers v. Wisconsin Board..... 245, 970 United Services Ins. Co., Rutledge v............ 953 United States. See also U. S. ex rel. United States v. Aetna Casualty Co.............. 960 United States, Anderegg v..................... 967 United States, Barcott v........................ 912 United States v. Benedict....................... 966 United States, Bickford v....................... 950 United States v. Carter......................... 328 XXX TABLE OF CASES REPORTED. Page United States, Chandler v.................... 918,947 United States, Christoffel v..................... 934 United States, Cipullo v......................... 946 United States, Commerce Co. v.................... 972 United States, Cook v............................ 926 United States, Cuckovich v....................... 905 United States v. Daddona......................... 961 United States, D’Ostroph v....................... 910 United States, Duche & Sons v.................... 931 United States, Eagleston v....................... 952 United States, Farrell v......................... 511 United States, Frazier v...................... 907, 912 United States, Fries v........................... 954 United States, Grant v........................... 916 United States, Great Northern R. Co. v........... 933 United States, Griffin v......................... 704 United States, Guggenheim v...................... 911 United States, Hawthorne v....................... 905 United States, Hensley v......................... 904 United States v. Home Ins. Co.................... 960 United States v. Jones........................... 641 United States, Kissinger v....................... 907 United States, Klapprott v.................. 942,949 United States v. Knight.......................... 505 United States, Kober v........................... 945 United States, Kordel v.......................... 911 United States, Krulewitch v...................... 440 United States, Levine v.......................... 936 United States v. Louisiana....................... 958 United States, Love v............................ 912 United States, Marzani v.................... 910, 922 United States, McGough v......................... 955 United States, McIntosh v..................... 926, 955 United States, Meyers v...,..................... 912 United States, Morandy v......................... 938 United States, Ney v............................. 967 TABLE OF CASES REPORTED. XXXI Page United States, Nye & Nissen v.................... 613 United States, Patrick v....................... 925 United States, Petti v.......................... 916 United States, Richardson Co. v.................. 936 United States, Roett v........................... 960 United States, Ryles v........................... 949 United States v. Spelar.......................... 950 United States, Stahel & Co. v.................... 951 United States, Standard-Vacuum Oil Co. v......... 935 United States v. Stewart & Sons.................. 386 United States, Stinson Canning Co. v............. 951 United States v. Texas........................... 958 United States v. Toronto, H. & B. Nav. Co........ 965 United States v. Urbuteit........................ 804 United States v. Wallace & Tiernan Co............ 793 United States v. Westinghouse Electric Co........ 950 United States, Wisconsin Electric Power Co. v.... 176 United States v. Wittek.......................... 931 United States v. Women’s Sportswear Mfrs. Assn... 460 United States v. World Fire & Marine Ins. Co..... 960 United States, World Publishing Co. v............ 915 United States v. Yorkshire Ins. Co............... 960 United States v. Zisblatt........................ 934 U. S. District Judge, Beneficial Loan Corp, v.... 917 U. S. District Judge, Moss v..................... 943 U. S. District Judge, Wabash R. Co. v............ 904 U. S. Employees’ Comp. Comm’n v. Suwannee Co.. 198 U. S. ex rel. Hirshberg v. Cooke................ 210 U. S. ex rel. Holderfield v. Ragen............... 906 U. S. ex rel. Johnson v. Shaughnessy............ 806 U. S. ex rel. Johnson v. Watkins........ 924, 956 U. S. ex rel. Knauff v. Watkins. .......... 966, 971 U. S. ex rel. Parker v. Ragen................... 920 U. S. Marshal, Koehne v................... 924, 947 Universal Atlas Cement Co. v. Commissioner...... 962 Universal Film Exchanges, Momand v............... 967 XXXII TABLE OF CASES REPORTED. Page Universal Oil Products Co. v. Whitman Co........ 915 Urbuteit, United States v................... 804 Van Pelt v. Ragen............................. 942 Verdier v. Superior Court..................... 957 Vermilya-Brown Co. v. Connell................. 928 Viator v. Stone............................. 948 Viles v. Johnson.............................. 921 Volk, In re................................... 964 Von Ammon, In re.............................. 964 Von Radetzky, In re........................... 964 Wabash R. Co. v. Duncan....................... 904 Wade v. Hunter................................ 684 Wade v. Michigan.......................... 924, 947 Wage & Hour Adm’r v. Jacksonville Paper Co...... 187 Wage & Hour Adm’r, Shepard Niles Crane Corp, v... 960 Walker v. California.......................... 940 Walker v. Galt................................ 925 Wallace & Tiernan Co., United States v........ 793 Walsh, Lang v................................. 959 War Assets Adm’r, Fulton Iron Co. v........... 903 War Damage Corp., Knowles v................... 914 Warden of Maryland Penitentiary, Holiday v...... 928 Warden of Southern Michigan Prison, Lundy v..... 950 Warden of Texas Prison System, Atkins v....... 946 Warehousemen’s Union, Riley v................. 930 Warehousemen’s Union v. Wirtz.............. 919, 971 Washington, Bird v............................ 954 Watkins, U. S. ex rel. Johnson v........... 924, 956 Watkins, U. S. ex rel. Knauff v.............. 966,971 Watts v. Indiana.............................. 917 Weber v. Illinois............................ 969 Webster, Becker v............................ 968 Weissman v. Labor Board....................... 972 Western Railway of Alabama, Brown v.......... 965 West India Fruit Co., Seatrain Lines v........ 908 Westinghouse Electric Co., Shotkin v....... 902,955 TABLE OF CASES REPORTED. xxxin Page Westinghouse Electric Co., United States v...... 950 West Virginia Northern R. Co. v. Pritt.......... 961 West Virginia Northern R. Co. v. Riley.............. 961 White v. Nierstheimer............................... 926 White Consolidated, Inc., Mitchell v................ 958 Whitman Co., Universal Oil Products Co. v.......915 Wilbank, Chester & Delaware Bartenders Union v... 945 Wilkerson v. McCarthy........................... 53, 940 Williams v. Ohio.................................... 926 Williams v. Overholser.............................. 934 Williams v. Ragen................................... 910 William Whitman Co., Universal Oil Co. v........ 915 Willis v. Wright.................................... 923 Wilson v. Hinman.................................... 970 Wilson v. Hudspeth.................................. 911 Wilson, Meyers v.................................. 928 Wilson v. Oklahoma.................................. 965 Wilson v. Superior Court............................ 916 Wilson Bros. & Co. v. Commissioner.................. 909 Wirtz, International Longshoremen’s Union v. 919,971 Wisconsin Electric Power Co. v. United States... 176 Wisconsin Employment Board, Algoma Co. v........ 301 Wisconsin Employment Board, Auto. Workers v. 245, 970 Wisconsin Employment Board, Electrical Workers v. 18 Wisconsin Employment Board, La Crosse Corp, v... 18 Wiseman v. Ragen................................ 946 Wittek, United States v......................... 931 Wixon, Houvardas v.................................. 913 Wixon, Lee Fong Fook v........................ 914 WJR, The Goodwill Station, F. C. C. v............... 917 Wofford v. Ragen.................................... 915 Wolfe v. Commissioner............................... 914 Wolfe v. Phillips................................... 968 Women’s Sportswear Mfrs. Assn., United States v... 460 Woods v. Durr................................... 912,941 Woods v. Interstate Realty Co....................... 909 823978 0—49--3 xxxiv TABLE OF CASES REPORTED. Page Worcester Woolen Mills Corp. v. Labor Board... 903 World Fire & Marine Ins. Co., United States v. 960 World Publishing Co. v. United States........ 915 Wright, Willis v............................. 923 Wrona v. Ragen............................. 970 Yorkshire Ins. Co., United States v.......... 960 Zimmerman v. Maryland........................ 901 Zisblatt, United States v.................... 934 Zook, California v........................... 725 TABLE OF CASES Cited in Opinions Page Abbe v. New York, N. H. & H. R. Co., 171 F. 2d 387 382 Acme Fast Freight v. United States, 309 U. S. 638 ; 30 F. Supp. 968 466,476,478 Acme Harvester Co. v. Beekman Co., 222 U. S. 300 126 Adams v. Napa Wineries, 36 Am. B. R. (N. S.) 8 339 Adams Express Co. v. Kentucky, 166 U. S. 171 173 Adams Express Co. v. Ohio, 165 U.S.194 173 Adams Mfg. Co. v. Stören, 304 U. S. 307 551 Addyston Pipe Co. v. United States, 175 U. S. 211 504 Adolf Gobel, Inc., In re, 80 F. 2d 849 148 A. E. Fountain, Inc., In re, 295 F. 873 335 Aero Transit Co. v. Board, 332 U. S. 495 568 Aero Transit Co. v. Comm’n, 295 U. S. 285 116 A. F. of L. v. American Sash Co., 335 U. S. 538 251 A. F. of L. v. Labor Board, 308 U. S. 401 24 A. F. of L. v. Swing, 312 U. S. 321 92 Aguilar v. Standard Oil Co., 318 U. S. 724 515,522 Aikens v. Wisconsin, 195 U. S. 194 63,500 Akins v. Texas, 325 U. S. 398 901 Alabama v. King & Boozer, 314 U. S. 1 359-362 Allegheny Ludlum Corp. v. Kelley, 330 U. S. 767 23 Page Allen v. United States, 4 F. 2d 688 454 Allen Bradley Co. v. Local Union, 325 U. S. 797 464, 496-498 Allen-Bradley Local v. Board, 315 U. S. 740 251-254, 257, 264, 267, 269, 322, 499. Allgeyer v. Louisiana, 165 U. S. 578 556 Altoona Theatres v. Tri- Ergon Corp., 294 U. S. 477 277 Alward v. Johnson, 282 U. S. 509 359,362 American Banana Co. v. United Co., 213 U. S. 347 287,405 American Cigar Co. v. Comm’r, 66 F. 2d 425 435 American Express Co. v. Indiana, 165 U. S. 255 173 American Fed. of Labor v. Am. Sash Co., 335 U. S. 538 251 American Fed. of Labor v. Board, 308 U. S. 401 24 American Fed. of Labor v. Swing, 312 U. S. 321 92 American Iron Co. v. Seaboard Air Line, 233 U. S. 261 330,338 American Mfg. Co. v. St. Louis, 250 U. S. 459 351 American Security Co. v. District of Columbia, 224 U. S. 491 292 Anderson v. A., T. & S. F. R. Co., 333 U. S. 821 71,209 Andres v. United States, 333 U. S. 740 378,712 XXXV XXXVI TABLE OF CASES CITED. Page Anthony v. Hunter, 71 F. Supp. 823 701 Aquitania, The, 20 F. 2d 457 392,393,409 Arant v. Lane, 245 U. S. 166 379 Arkansas Corporation Comm’n v. Thompson, 313 U. S. 132 142,175 Asbell v. Kansas, 209 U. S. 251 731,732,737 Ashland Emery Co., In re, 229 F. 829 335 Ashland Emery Co., In re, 36 Am. B. R. 194 339 Associated Press v. United States, 326 U. S. 1 96,504 Atchison, T. & S. F. R. Co. v. McCurdy, 86 Okla. 148 357 Atkinson v. Comm’n, 303 U. S. 20 359 Atlantic Cleaners, Inc. v. United States, 286 U. S. 427 201 Atlantic Coast Line v. Florida, 295 U. S. 301 583 Atlantic Coast Line v. Georgia, 234 U. S. 280 751 Atlantic Coast Line v. Meeks, 333 U. S. 827 73 Atlantic Coast Line v. Riverside Mills, 219 U. S. 186 482,488 Atlas Ins. Co. v. Southern, Inc., 306 U. S. 563 382 Automobile Workers v. Board, 336 U. S. 245 451 Ayer & Lord Co. v. Kentucky, 202 U. S. 409 173 Ayrshire Collieries Corp. v. United States, 331 U. S. 132 374,375 Badger, Ex parte, 4 Ves. Jr. 165 330 Bailey v. Central Vt. R. Co., 319 U. S. 350 55, 71,74,75,911 Bailey v. Drexel Co., 259 U. S. 20 224 Bailey Dairy Co. v. Anderson, 157 F. 2d 87 543,561 Page Bailey Dairy Co. v. Jones, 61 F. Supp. 209 543,561 Baker v. Comm’r, 80 F. 2d 813 416 Baker v. Schofield, 243 U. S. 114 275 Bakery Drivers Local v. Wohl, 315 U. S. 769 500, 501,503 Baldwin, Ex parte, 291 U. S. 610 142,143,151 Baldwin v. Seelig, Inc., 294 U. S. 511 531-535, 538,555-570,575 Baldwin v. State, 46 Fla. 115 444 Ballard v. United States, 329 U. S. 187 797,798 Baltimore & O. C. T. R. Co. v. Howard, 328 U. S. 867 73 Baltimore & O. R. Co. v. Skidmore, 335 U. S. 816 73 Bare v. Am. Forwarding Co., 146 Ill. App. 388 485 Barnes v. United States, 22 F. Supp.282 416 Barnsdall Refineries v. Comm’n, 171 Okla. 145 347 Barry v. Reading Co., 324 U. S. 867 62,72 Barry v. Reading Co., 147 F. 2d 129 62 Bartels v. Iowa, 262 U. S. 404 91 Bassett v. United States, 137 U. S. 496 714 Bates v. United States, 323 U. S. 15 624 Bath, Ex parte, 22 Ch. Div. 450 330 Beal v. Missouri Pac. R. Corp., 312 U. S. 45 383 Beamer v. Virginian R. Co., 321 U. S. 763 72 Beardsley & Wolcott Co., In re, 82 F. 2d 239 335 Belgenland, The, 114 U. S. 355 397 Bendelari, In re, 82 Okla. 97 356,357 Benedicto v. West India Co., 256 F. 417 380 TABLE OF CASES CITED. XXXVII Page Benefactor, The, 103 U. S. 239 403 Bennet, Ex parte, 2 Atk. 527 330 Benson v. M.-K.-T. R. Co., 332 U. S. 830 72 Benton v. St. Louis-S. F. R. Co., 324 U. S. 843 62,72 Benton v. St. Louis-S. F. R. Co., 182 S. W. 2d 61 62 Bereslavsky v. Caffey, 161 F. 2d 499 382 Bereslavsky v. Kloeb, 162 F. 2d 862 382 Bergin Oil Co. v. Howard, 82 Okla. 176 356 Berkshire Knitting Mills v. Board, 139 F. 2d 134 231 Berry v. Georgia, 10 Ga. 511 724 Bervilacqua v. Clark, 225 App. Div. 190 205 Best & Co. v. Maxwell, 311 U. S. 454 549,556 Bethlehem Steel Co. v. Board, 330 U. S. 767 21,24, 27, 254, 265, 313, 315, 322,543. Betz, Ex parte, 329 U. S. 672 923,965 Bichlmeir v. M., St. P. & S. S. M. R. Co., 159 Wis. 404 488 Bigler v. Waller, 12 Wall. 142 395 Billings v. United States, 232 U. S. 261 340 Blackmer v. United States, 284U. S. 421 284,285 Blair v. B. & O. R. Co., 323 U. S. 600 71,75 Blair v. Oesterlein Co., 275 U. S. 220 819 Blumenthal v. United States, 332 U. S. 539 453 Board of Comm’rs v. Seber, 318 U. S.705 355,365 Board of Education v. Barnette, 319 U. S. 624 93 Board of Trade v. United States, 314 U. S. 534 933 Page Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 553, 556,569 Bogardus v. Comm’r, 302 U. S.34 51 Bolenbach v. United States, 326 U. S. 607 621 Bonacino, In re, 1 Manson 59 330 Borden’s Co. v. Baldwin, 293 U. S. 194 531,574 Borden’s Co. v. Ten Eyck, 297 U. S. 251 530 Boston & Maine R. v. Cabana, 325 U. S. 873 73 Boston & Maine R. v. Meech, 329 U. S. 763 73 Bouker No. 2, The, 241 F. 831 518,522 Bowles v. Beatrice Creamery Co., 146 F. 2d 774 795 Bradley v. Comm’n, 289 U.S. 92 116,735 Bradley Co. v. Local Union, 325 U. S. 797 464,496-498 Brady v. Southern R. Co., 320 U. S. 476 55,72,75 Bramwell v. U. S. Fidelity Co., 269 U. S. 483 126 Brandt v. United States, 333 U. S. 836 923,965 Bridges v. California, 314 U. S. 252 93,163,501 Bromley v. Goodere, 1 Atk. 75 330 Brotherhood of Carpenters, In re, 2 L. R. R. M. 894 23 Brotherhood of Papermakers v. Board, 245 Wis. 541 311 Brown v. Gerdes, 321 U. S. 178 4,9 Brown v. United States, 150 U. S. 93 443 Browne v. Chavez, 181 U. S. 68 640 Brown Holding Co. v. Feldman, 256 U. S. 170 110 Bruner v. McCarthy, 105 Utah 399 62 Bruum v. Katz Drug Co., 351 Mo. 731 634 XXXVIII TABLE OF CASES CITED. Page Bryan v. United States, 17 F. 2d 741 455 Buck v. Kuykendall, 267 U. S. 307 538,571,735,736 Buckstaff Bath House Co. v. McKinley, 308 U. S. 358 362 Buford v. Buford, 81 U. S. App. D. C. 169 715 Burford v. Sun Oil Co., 319 U. S. 315 383 Burnet v. Commonwealth Co., 287 U. S. 415 429,433 Burnet v. Coronado Co., 285 U. S. 393 358,361,362 Burnet v. Jergins Trust, 288 U. S. 508 360 Busby v. Electric Employees Union, 323 U. S. 72 718 Bush & Sons Co. v. Maloy, 267 U. S. 317 571,735 Bute v. Illinois, 333 U. S. 640 932 Buttfield v. Stranahan, 192 U. S. 470 85 Byars v. United States, 273 U. S. 28 796 Byram v. Vaughn, 68 F. Supp. 981 382 Caldarone v. Zoning Board, 74 R. I. 196 819 Calhoun v. Seattle, 215 F. 226 378 California v. Edmondson, 329 U. S. 716 774 California v. Thompson, 313 U. S. 109 552,553,566, 569,734-738,768 Calmar S. S. Corp. v. Taylor, 303 U. S. 525 515,522 Caminetti v. United States, 242 U. S. 470 454 Cannon Mfg. Co. v. Cudahy Co., 267 U. S. 333 439 Cantwell v. Connecticut, 310 U. S. 296 82,86,88 Carlson v. California, 310 U. S. 106 498 Carmichael v. Southern Coal Co., 301 U. S. 495 538 Carolene Products Co. v. United States, 323 U. S. 18 85 Page Carpenter v. Shaw, 280 U. S. 363 351,353 Carpenters & Joiners, In re, 2 L. R. R. M. 894 23 Carpenters Union v. Ritter’s Cafe, 315 U. S. 722 500 Carpenters Union v. Ritter’s Cafe, 138 S. W. 2d 223; 149 S. W. 2d 694 501 Carter v. McClaughry, 183 U. S. 365 688,696 Carter v. State, 106 Ga. 372 444 Carter v. Virginia, 321 U. S. 131 569 Central Greyhound Lines v. Mealey, 334 U. S. 653 568 Central Hanover Bank v. Callaway, 135 F. 2d 592 150 Central Hanover Bank Co. v. Kelly, 319 U. S. 94 109 Central Lumber Co. v. South Dakota, 226 U. S. 157 110 Central Pac. R. Co. v. California, 162 U. S. 91 350 Central R. Co. v. United States, 257 U. S. 247 933 Central States Elec. Co. v. Muscatine, 324 U. S. 138 580, 585,597,600 C. G. Conn, Ltd. v. Board, 108 F. 2d 390 257 Cha plinsky v. New Hampshire, 315 U. S. 568 85,502 Charleston & W. C. R. Co. v. Varnville Co., 237 U. S. 597 729,730,752 Chastleton Corp. v. Sinclair, 264 U. S. 543 574 Chicago v. Fieldcrest Dairies, 316 U. S. 168 142 Chicago, B. & Q. R. Co. v. Comm’rs, 200 U. S. 561 83 Chicago & E. I. R. Co. v. United States, 63 Ct. Cl. 585; 72 Ct. Cl. 407 667 Chicago & E. I. R. Co. v. Waddell, 323 U. S. 732 73 Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S. 472 69 Chicago, R. I. & P. R. Co., In re, 168 F. 2d 587 140 TABLE OF CASES CITED. XXXIX Page Chicago, R. I. & P. R. Co. v. Hardwick Co., 226 U. S. 426 730 Chisholm v. Reading Co., 329 U. S. 807 72 Choctaw, O. & G. R. Co. v. Harrison, 235 U. S. 292 349, 356,365 Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531 350 Choteau v. Bumet, 283 U. S. 691 353 Christenson v. Am. Express Co., 15 Minn. 270 485 Cimiotti Unhairing Co. v. Am. Fur Co., 198 U. S. 399 277 Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319 481 Cincinnati Soap Co. v. United States, 301 U. S. 308 224 City. See name of city. Clark v. Paul Gray, Inc., 306 U. S. 583 569 Clark v. Poor, 274 U. S. 554 735 Clark v. United States, 289 U. S. 1 161 Clarke, Ex parte, 4 Ves. Jr. 676 330 Clark Realty Co., In re, 253 F. 938 335 Clark Realty Co., In re, 42 Am. B. R. 403 339 Clason v. Indiana, 306 U. S. 439 569 Claussen v. Curran, 276 U. S. 590 637-640 Cleveland v. United States, 323 U. S. 329 378 Cloverleaf Butter Co. v. Pat- terson, 315 U. S. 148 552, 730,733,741 Cobbledick v. United States, 309 U. S.323 803 Coder v. Arts, 213 U. S. 223 337 Coe v. Coe, 334 U. S. 378 675 Cogen v. United States, 278 U. S. 221 802,803 Cogswell v. C. & E. I. R. Co., 328 U. S. 820 71 Page Cole v. Arkansas, 333 U. S. 196 99,100 Collins, Ex parte, 277 U. S. 565 378 Collins v. McDonald, 258 U. S. 416 696 Columbia River Packers v. Hinton, 315 U. S. 143 464 Commissioner v. Munter, 331 U. S. 210 415-419 Commissioner v. Sansome, 60 F. 2d 931 411,414 Commissioner v. Sunnen, 333 U. S. 591 436 Commissioner v. Wheeler, 324 U. S. 542 421 Commonwealth. See also name of Commonwealth. Commonwealth v. Smith, 151 Mass. 491 444 Cone v. West Va. Paper Co., 330 U. S. 212 683 Conn, Ltd. v. Board, 108 F. 2d 390 257 Consolidated Edison Co. v. Board, 305 U. S. 197 236 Continental Illinois Bank v. C., R. I. & P. R. Co., 294 U. S. 648 149 Cooke v. United States, 267 U. S. 517 159,160,163,167 Cooley v. Board, 12 How. 299 551,553,566,728 Copeland v. United States, 328 U. S. 841 719 Coray v. Southern Pac. Co., 335 U. S. 520 61,71 Cornero v. United States, 48 F. 2d 69 690 Coudon v. Tait, 61 F. 2d 904 415 County. See name of county. Coverdale v. Ark.-La. Pipe Line Co., 303 U. S. 604 174 Cowdrick v. Penn. R. Co., 323 U. S. 799 72 Cox v. New Hampshire, 312 U. S. 569 85,86 Craig v. Harney, 331 U. S. 367 163 XL TABLE OF CASES CITED. Page Cranson v. United States, 146 F. 2d 871 414 Cross v. Burke, 146 U. S. 82 379 Cuba R. Co. v. Crosby, 222 U. S. 473 396,405 Cudahy Packing Co. v. Board, 118 F. 2d 295 231 Cudahy Packing Co. v. Minnesota, 246 U. S. 450 174 Cumberland Tel. & Tel. Co. v. Memphis, 198 F. 955 378 Cuno Eng. Corp. v. Aut. Devices Corp., 314 U. S. 84 281 Curry v. United States, 314 U. S. 14 359 Curtis Bay Co. v. Tug Kevin Moran, 159 F. 2d 273 392- 395,409 Dallas Elec. St. R. Co. v. McAllister, 41 Tex. Civ. App. 131 167 Davie v. Green, 133 F. 2d 451 329,338,339,341 Davie v. Green, 52 Am. B. R. (N. S.) 603 340 Davis v. Mills, 194 U. S. 451 396 Davis v. New York City, 119 F. 2d 559 125 Davis v. Pringle, 268 U. S. 315 341 Davis v. United States, 328 U. S. 582 796 Davis v. Wakelee, 156 U. S. 680 395 Dayton v. Stanard, 241 U. S. 588 335,336 De Castro v. Board, 322 U. S. 451 377 De Jonge v. Oregon, 299 U. S. 353 91 Delaware, L. & W. R. Co. v. Mostyn, 332 U. S. 770 73 Denver & R. G. R. Co. v. United States, 50 Ct. Cl. 382 668 Des Moines v. Des Moines Gas Co., 264 F. 506 378 De War v. Hunter, 170 F. 2d 993 701 Page Dickson v. Uhlmann Grain Co., 288 U. S. 188 732 Di Santo v. Pennsylvania, 273 U. S.34 552,553,768 District of Columbia v. Pace, 320 U. S. 698 275 Dixie Ohio Express Co. v. Comm’n, 306 U. S. 72 116 Dobbins v. United States, 81 U. S. App. D. C. 218 715 Dorchy v. Kansas, 272 U. S. 306 252,259,500 Dorsey, Matter of, 46 Am. B. R. (N. S.) 146 329,340 D. O. Summers Co., Matter of, 45 Am. B. R. (N. S.) 123 329,340 Douglas v. Jeannette, 319 U.S. 157 112,383 Douglas v. Willcuts, 296 U.S. 1 39 Drake v. United States, see 3 Fed. Carriers Cases 2297 727,773 Duckworth v. Arkansas, 314 U. S. 390 553,554,566,569 Dulaney, Ex parte, 146 Tex. 108 160 Duncan v. Kahanamoku, 327 U. S. 304 215,376 Duplex Print. Press Co. v. Deering, 254 U. S. 443 252, 259,499 Eastern Dawn, The, 25 F. 2d 322 522 Eastern States Lumber Assn. v. United States, 234 U. S. 600 495,500 Eckenrode v. Penn. R. Co., 335 U. S. 329 72 Eichel, In re, 333 U. S. 865 923, 965 Eilenbecker v. District Court, 134 U. S. 31 159 Eisner v. Macomber, 252 U. S. 189 437 Ellis v. Union Pac. R. Co., 329 U. S. 649 71,911 Ellis v. United States, 206 U. S. 246 287 Empire State Dairy Co. v. Sohmer, 218 N. Y. 199 185 TABLE OF CASES CITED. XLI Page Employers’ Liability Corp. v. Monahan, 91 F. 2d 130 205 Enochasson v. Freeport Co., 7 F. 2d 675 521 Erie R. Co. v. New York, 233 U. S. 671 752 Esenwein v. Common- wealth, 325 U. S. 279 675 Estate. See name of estate. Estin v. Estin, 334 U. S. 541 677,679 Ethyl Gasoline Corp. v. United States, 309 U. S. 436 500 Eubanks v. Thompson, 334 U. S. 854 71 Evans v. United States, 122 F. 2d 461 724 Evening Times Co. v. Am. Newspaper Guild, 124 N. J. Eq. 71 83 Everett v. Judson, 228 U. S. 474 125 Everett v. Truman, 334 U. S. 824 923,965 Ex parte. See name of party. Fantini v. Reading Co., 325 U. S. 856 72 Farrington v. Tokushige, 273 U. S. 284 91,373,374,379 Fashion Originators’ Guild v. Comm’n, 312 U. S. 457 495,496,504 Federal Power Comm’n v. Hope Nat. Gas Co., 320 U. S. 591 581,593 Fifth Ave. Coach Co. v. New York, 221 U. S. 467 108 Fisher, Ex parte, 146 Tex. .328 159-162 Fisher v. United States, 326 U. S. 705; 149 F. 2d 28 719 Fisher v. United States, 328 U. S. 463 709,713, 718,719,722 Fisher & Co., In re, 148 F. .907 335 Fiske v. Kansas, 274 U. S. .380 91 Fiswick v. United States, 329 U. S. 211 443 Page Fix v. Philadelphia Barge Co., 290 U. S. 530 634 Flayton, In re, 42 F. Supp. 1002 338 Fleming v. Husted, 333 U. S. 843 73 Fletcher, Town of, v. Hickman, 165 F. 403 639 Follett v. McCormick, 321 U. S. 573 93 Fook v. United States, 333 U. S. 838; 164 F. 2d 716 719 Forbes v. Gracey, 94 U. S. 762 353 Foster-Fountain Co. v. Haydel, 278 U. S. 1 536,575 Fountain, Inc., In re, 295 F. 873 335 Foust v. Munson S. S. Lines, 299 U. S. 77 142 Fox v. Ohio, 5 How. 410 731 Fox v. Washington, 236 U. S. 273 502 Frazier v. United States, 335 U. S. 497 453 Freeman v. Hewit, 329 U. S. 249 567,568 Fulton Market Co. v. United States, 95 Ct. Cl. 710 183 Funk v. United States, 290 U. S. 371 714,715 Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 351 Gandolfi & Co., In Matter of, 51 Am. B. R. (N. S.) 521 339 Gandolfi & Co., In re, 42 F. Supp. 706 338 Gardner v. Griswold, 329 U. S. 725 73 Gardner v. New Jersey, 329 U. S. 565 142,175 Gaynor v. Metals Reserve Co., 166 F. 2d 1011 633 G. & C. Merriam Co. v. Saal-field, 241 U. S. 22 801 Geer v. Connecticut, 161 U. S. 519 574 Geistlinger v. Inti. Marine Co., 295 F. 176 522 General Electric Co. v. Wa- bash Co., 304 U. S. 364 277 XLII TABLE OF CASES CITED. Page General Trading Co. v. Comm’n, 322 U. S. 335 568 General Transp. Co. v. United States, 65 F. Supp. 981 819 Georday Enterprises v. Comm’r, 126 F. 2d 384 415 George W. Bush & Sons Co. v. Maloy, 267 U. S. 317 571,735 George W. Fields, The, 237 F. 403 392,393 Gibbons v. Ogden, 9 Wheat. 1 534,550,739 Gibbs v. Buck, 307 U. S. 66 574 Gillespie v. Oklahoma, 257 U. S. 501 355,357, 360,361,364 Girouard v. United States, 328 U. S. 61 367 Gitlow v. New York, 268 U. S. 652 91 Glasser v. United States, 315 U. S. 60 508 Globe Liquor Co. v. San Roman, 332 U. S. 571 683 Go-Bart Import. Co. v. United States, 282 U. S. 344 796 Gobel, Inc., In re, 80 F. 2d 849 148 Gompers v. Bucks Stove Co., 221 U. S. 418 194 Goodyear Tire Co. v. Ray-O-Vac Co., 321 U. S. 275 275,280 Gouled v. United States, 255 U. S. 298 796 Grafton v. United States, 206 U. S. 333 688 Graham v. United States, 15 F. 2d 740 443 Grauman v. City Co., 31 F. Supp. 172 382 Graves v. O’Keefe, 306 U. S. 466 363,366,367 Gray v. United States, 334 U. S. 853; 168 F. 2d 161 719 Great Lakes Dredge Co. v. Huffman, 319 U. S. 293 175 Great Northern R. Co. v. O’Connor, 232 U. S. 508 476, 481,488 Page Great Northern R. Co. v. Sunburst Co., 287 U. S. . 358 958 Greenbaum v. Lehrenkrauss Corp., 73 F. 2d 285 148 Gregory v. Helvering, 293 U. S. 465 437 Grenada Lumber Co. v. Mississippi, 217 U. S. 433 495 Griffin v. Clemmer, 83 U. S. App. D. C. 351 708 Griffin v. United States, 333 U. S. 857; 164 F. 2d 903 719 Griffin v. United States, 335 U. S. 866 719 Griffin v. United States, 110 Ct. Cl. 330 643,647, 649,662,663,666 Griswold v. Gardner, 155 F. 2d 333 62,74 Gromer v. Standard Co., 224 U. S. 362 350 Grosjean v. Am. Press Co., 297 U. S. 233 91 Gross Tax of Wolverine Co., In re, 53 Okla. 24 356 Group No. 1 Oil Corp. v. Bass, 283 U. S. 279 358,361 Group of Investors v. C., M., St. P. & P. R. Co., 318 U. S. 523 137,139, 145,152,154 Guarantee Title Co. v. Title Co., 224 U. S. 152 341 Guaranty Trust Co. v. Blodgett, 287 U. S. 509 351 Guaranty Trust Co. v. Henwood, 86 F. 2d 347 150 Guaranty Trust Co. v. York, 326 U. S. 99 397 Gulf Oil Co. v. Lewellyn, 248 U. S. 71 432 Gully v. Interstate Gas Co., 292 U. S. 16 381 Habich v. Folger, 20 Wall. 1 640 Habirshaw Cable Co. v. Habirshaw Co., 296 F. 875 6 Hague v. C. I. O., 307 U. S. 496 82 Halback v. Hill, 49 App. D. C. 127 715 Hall v. United States, 334 U. S. 853; 168 F. 2d 161 719 TABLE OF CASES CITED. XLIII Page Hamilton v. Montrose City, 109 Colo. 228 81 Hammer v. Dagenhart, 247 U. S. 251 224,312 Hammer v. Tuffy, 145 F. 2d 447 338 Hammond v. Schappi Bus Line, 275 U. S. 164 574 Hanover Ins. Co. v. Harding, 272 U. S. 494 351 Harden v. Gordon, Fed. Cas. No. 6,047 523,524 Harris v. United States, 331 U. S. 145 796 Harter v. Helvering, 79 F. 2d 12 415-417 Hartford Accident Co. v. Delta Co., 292 U. S. 143 556 Hartford Accident Co. v. Hoage, 66 App. D. C. 154 205 Hartford Accident Co. v. Illinois, 298 U. S. 155 552 Hartford Accident Co. v. Nelson Co., 291 U. S. 352 109,351 Harvester Co. v. Dept, of Treasury, 322 U. S. 340 568 Harvester Co. v. Missouri, 234 U. S. 199 495 Hawkins v. United States, 331 U. S. 830; 158 F. 2d 652 719 Hays v. Pacific M. S. S. Co., 17 How. 596 173 Healy v. Ratta, 289 U. S. 701 375,381 Heath v. Judson Freight Co., 47 Cal. App. 426 485 Hegeman Farms Corp. v. Baldwin, 293 U. S. 163 530, 531 Heisen v. Smith, 138 Cal. 216 639 Heisler v. Thomas Colliery Co., 260 U. S. 245 574 Helvering v. Am. Chicle Co., 291 U. S. 426 40 Helvering v. Am. Dental Co., 318 U. S. 322 31,48,51,52 Helvering v. Clifford, 309 U. S.331 436 Page Helvering v. Davis, 301 U. S. 619 538 Helvering v. Gerhardt, 304 U. S. 405 363 Helvering v. Hallock, 309 U. S. 106 341 Helvering v. Mountain Producers Corp., 303 U. S. 376 343,348,352,360-362 Helvering v. Proctor, 140 F. 2d 87 634 Helvering v. Stockholms Bank, 293 U. S. 84 39 Henderson, Ex parte, 11 Fed. Cas. 1067 214 Hendrick v. Maryland, 235 U. S. 610 735 Hendrix v. United States, 219 U. S. 79 715 Henry v. Hodges, 76 F. Supp. 968 701 Henwood v. Chaney, 329 U. S. 760 73 Herndon v. Lowry, 301 U. S. 242 90,91 Herron v. Southern Pac. Co., 283 U. S. 91 64 Hicklin v. Coney, 290 U. S. 169 116 Hicks v. Hiatt, 64 F. Supp. 238 701 Higgins v. Smith, 308 U. S. 473 437 Highway Freight Co. v. Comm’n, 108 Pa. Super. Ct. 178 485 Hill v. Florida, 325 U. S. 538 254,267,312,315,322,741 Hillsborough v. Cromwell, 326 U. S. 620 175,382 Hines v. Davidowitz, 312 U. S. 52 733 Hirshberg v. Cooke, 336 U. S. 210 696 H i t c h m a n Coal Co. v. Mitchell, 245 U. S. 229 312 Hodge Co. v. Cincinnati, 284 U. S. 335 116 Holden v. Hardy, 169 U. S. 366 500 Home Beneficial Ins. Co. v. Board, 159 F. 2d 280 257 XLIV TABLE OF CASES CITED. Page Hood & Sons v. Du Mond, 336 U. S. 525 741 Hood & Sons v. United States, 307 U. S. 588 541,572 Hooper v. State, 187 Ark. 88 444 Hoopeston Canning Co. v. Cullen, 318 U. S. 313 556 Hope Nat. Gas Co. v. Hall, 274 U. S. 284 351 Hormel v. Helvering, 312 U. S. 552 819 Horne v. Boone County, 44 F. 2d 920 335 Hotel Employees’ Local v. Board, 315 U. S. 437 252,257 Houston v. Moore, 5 Wheat. 1 750 Howard v. Gipsy Oil Co., 247 U. S. 503 343,357 Hoyt v. Commissioner, 145 F. 2d 634 435 H. P. Hood & Sons v. Du Mond, 336 U. S. 525 741 H. P. Hood & Sons v. United States, 307 U. S. 588 541,572 H. P. Welch Co. v. New Hampshire, 306 U. S. 79 569,733 Huddleston v. Dwyer, 322 U. S. 232 718 Hudgings, Ex parte, 249 U. S. 378 160 Hunter v. Texas Elec. R. Co., 332 U. S. 827 72 Hust v. Moore-McCormack Lines, 328 U. S. 707 518 Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153 85 Hyde v. United States, 225 U. 8. 347 452,453 Illinois Cent. R. Co. v. Minnesota, 309 U. S. 157 174 Illinois Nat. Gas Co. v. Cent. Ill. Co., 314 U. S. 498 568,580 Independent Warehouses v. Scheele, 331 U. S. 70 553,568 Indiana Desk Co. v. Board, 149 F. 2d 987 261 Indian Terr. Oil Co. v. Board, 288 U. S. 325 350, 354,362 Page Indian Terr. Oil Co. v. Oklahoma, 240 U. S. 522 355-357,361,364-367 Inland Steel Co. v. United States, 306 U. S. 153 195, 582,598 In Matter of. See name of party. In re. See name of party. Institutional Investors v. C., M., St. P. & P. R. Co., 318 U. S. 523 137,139, 145,152,154 International Garment Workers v. Donnelly Co., 304 U. S. 243 381 International Harvester Co. v. Dept, of Treasury, 322 U. S. 340 568 International Harvester Co. v. Missouri, 234 U. S. 199 495-497 International Papermakers v. Board, 245 Wis. 541 311 International Union, U. A. W. A., v. Board, 336 U. S. 245 451 Interstate Commerce Comm’n v. Delaware, L. & W. R. Co., 220 U. S. 235 476,487 Interstate Nat. Gas Co. v. Comm’n, 331 U. S. 682 581, 596 In the Matter of. See name of party. Irwin v. Gavit, 268 U. S. 161 39 Isaacs v. Hobbs Tie Co., 282 U. S. 734 142 Jackson v. Smietanka, 272 F. 970 640 Jacobs v. United States, 290 U. S. 13 648,650,670 James v. Dravo Co., 302 U. S. 134 357,359,362,365 Jameson & Co. v. Morgenthau, 307 U. S. 171 381 Jaybird Mining Co. v. Weir, 271 U. S. 609 354 Jerome v. United States, 318 U. S. 101 730,740,753 TABLE OF CASES CITED. XLV Page Jesionowski v. B. & M. R. Co., 329 U. S. 452 71 Jin Fuey Moy v. United States, 254 U. S. 189 715 J. Menist & Co., In re, 290 F. 947 335 Johnson v. Haydel, 278 U. S. 16 536 Johnson v. United States, 225 U. S. 405 713,714 Johnson v. United States, 333 U. S. 10 796 Johnson v. Zerbst, 304 U. S. 458 708 Jones v. East Tenn., V. & G. R. Co., 128 U. S. 443 62,71 Jones v. Opelika, 316 U. S. 584 93 Jones v. Waterman S. S. Corp., 155 F. 2d 992 521 Joseph v. Carter & Weekes Co., 330 U. S. 422 568 Josephine & Mary, The, 120 F. 2d 459 519,523 Kallak, In re, 147 F. 276 333 Kallak, In re, 17 Am. B. R. 414 339 Kansas Indians, The, 5 Wall. 737 355 Kearby, Ex parte, 35 Tex. Cr. Rep. 531 159 Keerl v. Montana, 213 U. S. 135 690 Keeton v. Thompson, 326 U. S. 689 71 Keller v. Potomac Elec. Co., 261 U. S. 428 652 Kelly v. Washington, 302 U. S. 1 319,733,735,740 Kentucky Whip Co. v. Ill. Cent. R. Co., 299 U. S. 334 85 Kepner v. United States, 195 U. S. 100 688 Kettenhofen v. Globe Co., 70 Wash. 645 485 Kidd v. Pearson, 128 U. S. 1 546,552 Kline v. Burke Construct. Co., 260 U. S. 226 151 Knights of Pythias v. Meyer, 265 U. S. 30 351 Page Knox-Powell-Stockton Co., In re, 100 F. 2d 979 127 Kotteakos v. United States, 328 U. S. 750 444, 458,459,508 Kovacs v. Cooper, 135 N. J. L. 64 78,83,99 Kovacs v. Cooper, 135 N. J. L. 584 78,83,84,99,100 Krender v. Woolcott, 1 Hilt. (N. Y.) 223 485 Krulewitch v. United States, 336 U. S. 440 626,629 La Belle v. Britton Corp., 247 App. Div. 843 205 Labor Board v. Algoma Co., 121 F. 2d 602 316 Labor Board v. Carlisle Co., 94 F. 2d 138 231 Labor Board v. Condenser Corp., 128 F. 2d 67 257 Labor Board v. Draper Corp., 145 F. 2d 199 257 Labor Board v. Express Pub. Co., 312 U. S. 426 196 Labor Board v. Fansteel Corp., 306 U. S. 240 257, 259,265-269 Labor Board v. Hearst Publications, 322 U. S. Ill 327 Labor Board v. Indiana Desk Co., 149 F. 2d 987 257 Labor Board v. Jones & Laughlin, 301 U. S. 1 259,265 Labor Board v. Lake Superior Lumber Corp., 167 F. 2d 147 232,243 Labor Board v. Lane Cotton Mills, 111 F. 2d 814 231 Labor Board v. Le Tourneau Co, 324 U. S. 793 229-232,243 Labor Board v. Mackay Radio Co, 304 U. S. 333 268 Labor Board v. Newport News Dock Co, 308 U. S. 241 500 Labor Board v. Norfolk Drydock Corp, 109 F. 2d 128 231 Labor Board v. Peter Cailler Kohler Co, 130 F. 2d 503 266 Labor Board v. Reed & Prince Co, 118 F. 2d 874 322 XLVI TABLE OF CASES CITED. Page Labor Board v. Remington Rand, 94 F. 2d 862 266 Labor Board v. Sands Mfg. Co., 306 U. S. 332 257,260,269 Labor Board v. Stackpole Co., 105 F. 2d 167 268 Labor Board v. Stowe Spinning Co., 165 F. 2d 609 238 La Crosse Tel. Corp. v. Board, 336 U. S. 18 254,315 Lane v. Wilson, 307 U. S. 268 932 Langnes v. Green, 282 U. S. 531 395 Large Oil Co. v. Howard, 248 U. S. 549 343,357,456 Large Oil Co. v. Howard, 63 Okla. 143 356 Lasagna v. McCarthy, 332 U. S. 829 72 La Tourette v. McMaster, 248 U. S. 465 225 Lavender v. Kurn, 327 U.S. 645 55,71,75 Layne & Bowler Corp. v. Well Works, 261 U. S. 387 67,385 Leahy v. State Treasurer, 297 U. S. 420 353 LeCrone v. McAdoo, 253 U. S. 217 637 Lehigh Valley R. Co. v. United States, 243 U. S. 444 476 Lehman v. Schmahl, 179 Minn. 388 206 Leiman v. Guttman, 336 U. S. 1 509 Lemke v. Farmers Grain Co., 258 U. S. 50 537,571 Levin v. United States, 319 U. S. 728 727,773 Levin v. United States, 3 Fed. Carriers Cases 2297 727, 773 Lewis v. United States, 279 U. S. 63 818 Lew Moy v. United States, 237 F. 50 442 L. Gandolfi & Co., In Matter of, 51 Am. B. R. (N. S.) 521 339 Page L. Gandolfi & Co., In re, 42 F. Supp. 706 338 License Cases, 5 How. 504 550 Liggett Co. v. Baldridge, 278 U. S. 105 225 Lillie v. Thompson, 332 U. S. 459 71,209 Lincoln Labor Union v. N. W. Iron Co., 335 U. S. 525 225,251,499,734 Lindgren v. Shepard S. S. Co., 108 F. 2d 806 519 Liverpool & G. W. Steam Co. v. Phenix Co., 129 U. S. 397 397 Local Loan Co. v. Hunt, 292 U. S. 234 154 Logan v. United States, 144 U. S. 263 690 Louis K. Liggett Co. v. Bald- ridge, 278 U. S. 105 225 Louisville v. Von-Allmen Co., 268 Ky. 652 184 Louisville Trust Co. v. Knott, 191 U. S. 225 379 Lovato v. New Mexico, 242 U. S. 199 690 Lovell v. Griffin, 303 U. S. 444 78,82,84,91 Lubbock, Ex parte, 9 Jur. (N. S.) 854 330 Lucas v. Earl, 281 U. S. Ill 436 Ludecke v. Watkins, 335 U. S. 160 320 Luksich v. Misetich, 140 F. 2d 812 519 Macon, D. & S. R. Co. v. United States, 78 Ct. Cl. 251; 79 Ct. Cl. 298 667 Maggio v. Zeitz, 333 U. S. 56 191,192 Mahn v. Harwood, 112 U. S. 354 280 Maine v. Grand Trunk R. Co., 142 U. S. 217 174 Mandeville v. Canterbury, 318 U. S. 47 151 Mandeville Island Farms v. Am. Sugar Co., 334 U. S. 219 496 Mansfield v. Chicago Title Co., 199 F. 95 485 TABLE OF CASES CITED. XL VII Page Marcus v. Hess, 317 U. S. 537 214 Marcus Brown Co. v. Feldman, 256 U. S. 170 110 Maricopa County v. Valley Bank, 318 U. S. 357 365 Mars, The, 149 F. 729 522 Marsh v. Alabama, 326 U. S. 501 93,241,242 Martin, In re, 75 F. 2d 618 335 Martin v. Struthers, 319 U. S. 141 86 Mason v. Missouri, 179 U. S. 328 225 Mason Co. v. Comm’n, 302 U. S. 186 359 Matter of. See name of party. Matthews v. Rodgers, 284 U. S. 521 382 Maupin v. Louisville, 284 Ky. 195 81 Maurer v. Hamilton, 309 U.S. 598 111,569,733,735 May Dept. Stores Co. v. Labor Board, 326 U. S. 376 192 Mayflower Farms v. Ten Eyck, 297 U. S. 266 115, 530,531 Mayo v. Lakeland Co., 309 U. S. 310 574 Mayo v. United States, 319 U. S. 441 366 McAffee v. United States, 310 U. S. 643; 111 F. 2d 199 719 McAlester-Edwards Coal Co. v. Trapp, 43 Okla. 510 356 McCarroll v. Dixie Greyhound Lines, 309 U. S. 176 568 McCart v. Indianapolis Water Co., 302 U. S. 419 599 McCarthy v. Bruner, 322 U. S. 718 67 McCarthy v. Bruner, 323 U. S. 673 62,67,72 McCarthy v. Zerbst, 85 F. 2d 640 688 Page McClain v. Ortmayer, 141 U. S. 419 277 McCormick v. Puritan Co., 41 F. 2d 213 335 McCrory Stores Corp., In re, 91 F. 2d 947 4 McCulloch v. Maryland, 4 Wheat. 316 90,91 McDonald v. United States, 335 U. S. 451 798 McFarland v. United States, 326 U. S. 788; 150 F. 2d 593 719 McGoldrick v. Berwind- White Co., 309 U. S. 33 568 McGoldrick v. Compagnie Generale, 309 U. S. 430 568 McGoldrick v. Felt & Tarrant Co., 309 U. S. 70 568 McGoldrick v. Gulf Oil Corp., 309 U. S. 414 568 McLeod v. Dilworth Co., 322 U. S. 327 568 Medley v. United States, 328 U. S. 873; 155 F. 2d 857 719 Meilink v. Comm’n, 314 U. S. 564 333,338 Menist & Co., In re, 290 F. 947 335 Merchant Shippers Assn. v. Kellogg Co., 28 Cal. 2d 594 487,488 Merchants’ Loan Co. v. Smietanka, 255 U. S. 509 437 Meredith v. Winter Haven, 320 U. S. 228 383 Mergner v. United States, 325 U. S. 850; 147 F. 2d 572 719 Meriwether v. Lovett, 166 Okla. 73 356 Merriam Co. v. Saalfield, 241 U. S. 22 801 Metcalf & Eddy v. Mitchell, 269 U. S. 514 359 Metropolitan Ins. Co. v. Brownell, 294 U. S. 580 110 Meyer v. Fleming, 327 U. S. 161 148 Meyer v. Nebraska, 262 U. S. 390 91 XLVIII TABLE OF CASES CITED. Page Michigan Allied Dairy Assn. v. Board, 302 Mich. 643 185 Milch v. United States, 332 U. S. 789 923,965 Milcor Steel Co. v. Fuller Co., 316 U. S. 143 277 Miles v. United States, 103 U. S. 304 714 Milk Control Board v. Eisenberg Products, 306 U. S. 346 530,531,552- 557,566-569,571 Milk Wagon Drivers v. Meadowmoor Dairies, 312 U. S. 287 494 Milligan, Ex parte, 4 Wall. 2 215,451 Mills, Ex parte, 2 Ves. Jr. 295 330 Mintz v. Baldwin, 289 U. S. 346 733 Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613 312 Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412 730 Missouri, K. & T. R. Co. v. Ward, 244 U. S. 383 479 Missouri Pac. R. Co. v. . Aeby, 275 U. S. 426 69 Missouri Pac. R. Co. v. Porter, 273 U. S. 341 729,752 Missouri Pac. R. Co. v. United States, 271 U. S. 603 648,667,669 Mitchell v. Overman, 103 U. S. 62 640 Mitchell v. St. Maxent’s Lessee, 4 Wall. 237 639 Mo Hock Ke Lok Po v. Stainback, 74 F. Supp. 852 371 Moline Properties v. Comm’r, 319 U. S. 436 426-433,438 Montgomery Ward & Co. v. United States, 326 U. S. 690 317 Mookini v. United States, 303 U. S. 201 376 Morgan v. Parham, 16 Wall. 471 173 Morgan v. Virginia, 328 U. S. 373 553,556,569 Page Mugler v. Kansas, 123 U. S. 623 85 Mumforde v. United States, 317 U. S. 656; 130 F. 2d 411 719 Mumma v. Potomac Co., 8 Pet. 281 634,640 Munson S. S. Line v. Comm’r, 77 F. 2d 849 429 Murchison’s Estate v. Comm’r, 76 F. 2d 641 415-417 Murdock v. Pennsylvania, 319 U. S. 105 86,88,93 Murray v. United States, 271 U. S. 673; 10 F. 2d 409 455 Mutual Film Corp. v. Comm’n, 236 U. S. 230 96 Myers v. Bethlehem Corp., 303 U. S. 41 652,819 Myers v. Matley, 318 U. S. 622 126 Myers v. Reading Co., 331 U. S. 477 71 Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362 173,174 National Bank v. Colby, 21 Wall. 609 634 National Broadcasting Co. v. United States, 319 U. S. 190 96,673 National Homeopathic Assn, v. Britton, 325 U. S. 857 199 National Homeopathic Assn, v. Britton, 79 U. S. App. D. C. 309 199,201 National Investors Corp. v. Hoey, 144 F. 2d 466 437 National Labor Relations Board. See Labor Board. National Licorice Co. v. Board, 309 U. S. 350 322 National War Labor Bd. v. Montgomery Ward & Co., 79 U. S. App. D. C. 200 317 Near v. Minnesota, 283 U. S. 697 91,494 Nease v. Hughes Stone Co., 114 Okla. 170 203 Nebbia v. New York, 291 U. S. 502 83,500,530, 546,566,572 TABLE OF CASES CITED. XLIX Page Neely v. United States, 323 U. S. 754; 326 U. S. 768; 144 F. 2d 519; 150 F. 2d 977 719 Negro v. Boston & Maine R., 324 U. S. 862 72 Nelson v. Montgomery Ward & Co., 312 U. S. 373 568 Nelson v. Sears, Roebuck & Co., 312 U. S. 359 568 Nevada County N. G. R. Co. v. United States, 65 Ct. Cl. 327 667 New Brunswick v. United States, 276 U. S. 547 353 New Jersey & N. Y. R. Co. v. United States, 80 Ct. Cl. 243 668 New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344 488 New Orleans Water Works Co. v. New Orleans, 164 U. S. 471 78 New State Ice Co. v. Liebmann, 285 U. S. 262 572 New York, The, 175 U. S. 187 397 New York v. Compagnie Generale, 107 U. S. 59 744 New York v. Jersawit, 263 U. S. 493 336 New York Cent. R. Co. v. Ambrose, 280 U. S. 486 69 New York Cent. R. Co. v. Miller, 202 U. S. 584 173,175 New York Cent. R. Co. v. United States, 65 Ct. Cl. 115 648,649,667 New York City v. Hall, 139 F. 2d 935 125 New York ex rel. Silz v. Hesterberg, 211 U. S. 31 574 New York Indians, The, 5 Wall. 761 355 New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431 174 New York, N. H. & H. R. Co., In re, 102 F. 2d 923 150 New York, N. H. & H. R. Co., In re, 147 F. 2d 40 145 823978 0—49------4 Page New York, N. H. & H. R. Co., In re, 169 F. 2d 337 148 New York, N. H. & H. R. Co., In re, 54 F. Supp. 631 139 New York, N. H. & H. R. Co. v. I. C. C., 200 U. S. 361 196 Nippert v. Richmond, 327 U. S. 416 568 Nixon v. Condon, 286 U. S. 73 91 Nixon v. Herndon, 273 U. S. 536 91 North American Trans. Co. v. United States, 253 U. S. 330 648,670 Northern Pac. R. Co. v. Bimberg, 323 U. S. 752 73 Northern Pac. R. Co. v. Wall, 241 U. S. 87 488 Northern Pac. R. Co. v. Washington, 222 U. S. 370 730 Northwest Airlines v. Minnesota, 322 U. S. 292 175,568 Norton v. Warner Co., 321 U. S. 565 664 Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229 535, 574 Oklahoma ex rel. Tax Comm’n v. Barnsdall Refineries, 296 U. S.521 343,347, 350,357,366 Oklahoma Gas Co. v. Okla. Packing Co., 292 U. S. 386 381 Oklahoma Nat. Gas Co. v. Oklahoma, 273 U. S. 257 634, 635 Oklahoma Press Co. v. Walling, 327 U. S. 186 797,798 Oklahoma Tax Comm’n v. Barnsdall Refineries, 296 U. S. 521 343,347, 350,357,366 Oklahoma Tax Comm’n v. United States, 319 U. S. 598 366 Old Colony Trust Co. v. Comm’r, 279 U. S. 716 39 Old Dominion S. S. Co. v. Virginia, 198 U. S. 299 173 Oliver, In re, 333 U. S. 257 159 L TABLE OF CASES CITED. Page Oliver Iron Mng. Co. v. Lord, 262 U. S. 172 574 Olsen v. Nebraska, 313 U. S. 236 109 Order of Railway Conductors v. Pitney, 326 U. S. 561 142 Oregon-Wash. R. & N. Co. v. Washington, 270 U. S. 87 730 Oriel v. Russell, 278 U. S. 358 194 Osborn v. Ozlin, 310 U. 8. 53 225 Owens v. Union Pac. R. Co., 323 U. 8. 740 72 Pacific Tel. & Tel. Co. v. Comm’n, 297 U. 8. 403 562 Packard v. Banton, 264 U. S. 140 116 Packard Motor Co. v. Board, 330 U. 8. 485 26 Palko v. Connecticut, 302 U. S. 319 87,688 Palmer v. Massachusetts, 308 U. S. 79 141 Palmer v. Webster & Atlas Bank, 312 U. S. 156 149 Panhandle Oil Co. v. Knox, 277 U. 8. 218 364 Parker v. Brown, 317 U. S. 341 536,537,542, 555,562,567,573 Patsone v. Pennsylvania, 232 U. S. 138 110 Patton v. United States, 333 U. S. 830; 165 F. 2d 225 719 Pauly v. McCarthy, 330 U. 8. 802 71 Payne v. Industrial Board, 258 U. 8. 613 637,638 Pease v. Rathbun-Jones Co., 243 U. S. 273 635,640 Pendleton v. Russell, 144 U. S. 640 634,638 Penfield Co. v. 8. E. C., 330 U. S. 585 191,194 Penfold, Ex parte, 4 De G. & Sm. 282 330 Peninsula & O. S. S. Co. v. Board, 98 F. 2d 411 322 Penn v. C. & N. W. R. Co., 335 U. 8. 849 71 Page Pennekamp v. Florida, 328 U. S. 331 93,163 Pennsylvania v. West Virginia, 262 U. S. 553 536, 574,575 Pennsylvania R. Co. v. Comm’n, 250 U. S. 566 729, 731 Pennsylvania R. Co. v. McCarthy, 329 U. S. 812 73 People v. Compagnie Generale, 107 U. 8. 59 730 People v. Edmondson, 1946 L. A. Crim. App. 2160 774 People v. Mol, 137 Mich. 692 444 People v. Phillips, 147 N. Y. Mise. 11 81 People v. Reed, 13 Cal. App. 2d 39 728 People v. Van Horn, 76 Cal. App. 2d 753 770,774 People v. Zook, 197 P. 2d 851 744 People ex rel. Empire State Dairy Co. v. Sohmer, 218 N. Y. 199 185 People ex rel. N. Y. Cent. R. Co. v. Miller, 202 U. S. 584 173,175 Peora Coal Co. v. Ashcraft, 123 W. Va. 586 634 Pere Marquette R. Co. v. United States, 59 Ct. Cl. 538 668 Peteet v. Carmichael, 191 Okla. 593 356 Peterson, Ex parte, 253 U. S. 300 589 Peterson v. C., R. I. & P. R. Co., 205 U. S. 364 439 Petrogradsky Bank v. Nat. City Bank, 253 N. Y. 23 634 Phelps Dodge Corp. v. Board, 313 U. S. 177 269 Phillips v. United States, 312 U. S. 246 375,378 Pierce v. Society of Sisters, 268 U. S. 510 91 Pinkerton v. United States, 328 U. S. 640 447,451,616, 618-621,628,629 Pittman v. Home Owners’ Loan Corp., 308 U. S. 21 365 TABLE OF CASES CITED. LI Page Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421 173 Pittsburgh Terminal Coal Corp., In re, 69 F. Supp. 656 4 Point Fermin, The, 70 F. 2d 602 518 Polk Co. v. Glover, 305 U. S. 5 574 Pollock v. Williams, 322 U. S. 4 251 Porter v. Warner Holding Co., 328 U. S. 395 193 Porto Rico Light Co. v. Colom, 106 F. 2d 345 380 Postum Cereal Co. v. Calif. Fig Co., 272 U. S. 693 652 Powell v. Pennsylvania, 127 U. S. 678 85 Powell v. United States, 300 U. S. 276 649 Prentis v. Atlantic Coast Line, 211 U.S. 210 652 Price v. Illinois, 238 U. S. 446 109 Prigg v. Pennsylvania, 16 Pet. 539 750 Prince v. Massachusetts, 321 U. S. 158 86,93,112 Pritchard v. Norton, 106 U. S. 124 396 Protest of Bendelari, In re, 82 Okla. 97 356,357 Providence & N. Y. S. S. Co. v. Hill Co., 109 U. S. 578 394 Prudential Ins. Co. v. Ben- jamin, 328 U. S. 408 225, 562,728 Public National Bank v. Keating, 29 F. 2d 621 378 Public Serv. Comm’n v. Brashear Lines, 312 U. S. 621 195,381 Pullman’s Car Co. v. Penn- sylvania, 141U. S.18 172,175 Putnam v. United States, 149 F. 2d 721 415,417,421 Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 117 Quartermaine’s Case, [1892] 1 Ch. 639 330 Page Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 83 Quon Quon Poy v. Johnson, 273 U. S. 352 640 Railroad Co. v. Peniston, 18 Wall. 5 350,362 Railroad Comm’n v. Pullman Co., 312 U. S. 496 142 Railroad Comm’n v. Rowan & Nichols Co., 310 U. S. 573 351 Railway Conductors v. Pitney, 326 U. S. 561 142 Ramirez v. Acker, 134 Tex. 647 161 Ramsbottom, Ex parte, 2 Mont. & Ayr. 79 330 Ray, Ex parte, 101 Tex. Cr. Rep. 432 159 Reading Co. v. Comm’r, 132 F. 2d 306 435 Reed, Ex parte, 100 U. S. 13 214,218 Reed v. Canfield, Fed. Cas. No. 11,641 513,522 Reed Drug Co. v. Comm’r, 130 F. 2d 288 415,416 Regal Knitwear Co. v. Labor Board, 324 U. S. 9 192 Reisberg v. Board, 81 N. Y. S. 2d 511 819 Republic Aviation Corp. v. Board, 324 U. S. 793 229- 232,243,244 Republic Gas Co. v. Okla- homa, 334 U. S. 62 351 Republic Steel Corp. v. Board, 311 U. S. 7 236 Reynolds v. United States, 98 U. S. 145 86 R. H. Stearns Co. v. United States, 291 U. S. 54 818 Rice v. Board of Trade, 331 U. S. 247 562 Rice v. Santa Fe Elev. Corp., 331 U. S. 218 267,757 Richelieu & Ont. Nav. Co. v. Boston Ins. Co., 136 U. S. 408 397 Richmond v. Bird, 249 U. S. 174 127 Richmond v. Bird, 43 A. B. R. 260 128 LII TABLE OF CASES CITED. Page Richmond v. Richmond Dairy Co., 156 Ya. 63 185 Robbins v. Hennessey, 86 Ohio St. 181 223 Robertson v. California, 328 U. S. 440 546,566,569 Robinette v. Comm’r, 148 F. 2d 513 411,415 Rochester Tel. Corp. v. United States, 307 U. S. 125 21,647,652 Rorick v. Board of Comm’rs, 307 U. S. 208 376,381 Rowley v. C. & N. W. R. Co., 293 U. S. 102 173 Ruehlow v. Comm’n, 213 Wis. 240 206 Runkle v. United States, 122 U. S. 543 214 Sage Stores Co. v. Kansas, 323 U. S. 32 85 Saia v. New York, 334 U. S. 558 82,85-89,93, 97-101,112,117 St. Louis v. Ferry Co., 11 Wall. 423 173 St. Louis & E. St. L. R. Co. v. Hagerman, 256 U. S. 314 173 St. Louis Refrigerating Co. v. United States, 95 Ct. Cl. 694 183 Santa Rita Oil Co. v. Board, 112 Mont. 359 365 Saunders v. Luckenbach Co., 262 F. 845 523 Savage v. Jones, 225 U. S. 501 751 Savin, Ex parte, 131 U. S. 267 159 Savin, In re, L. R. 7 Ch. 760 330 Scarborough v. Penn. R. Co., 326 U. S. 755 72 Schenck v. United States, 249 U. S. 47 86 Schneider v. State, 308 U. S. 147 87,88,92,93,502 Schwabacher v. United States, 334 U. S. 182 141 Scotia, The, 14 Wall. 170 397 Scripps-Howard Radio v. F. C. C., 316 U. S. 4 399 Page Seaboard Air Line v. Daniel, 333 U. S. 118 141 Seaboard Air Line v. Hor- ton, 233 U. S. 492 69 Second Employers’ Liability Cases, 223 U. S. 1 752 Semon, In re, 80 F. 2d 81; 11 F. Supp. 18 335 Senn v. Tile Layers Union, 301 U. S. 468 500 Sexton v. Dreyfus, 219 U. S. 339 330,338 Shafer v. Farmers Grain Co., 268 U. S. 189 537,571 Shakman v. U. S. Credit Co., 92 Wis. 366 640 Shaw v. Gibson-Zahniser Corp., 276 U. S. 575 355 Shayne v. Evening Post Co., 168 N. Y. 70 634 Sheldon Bldg. Corp. v. Comm’r, 118 F. 2d 835 438 Sherrer v. Sherrer, 334 U. S. 343 675,678 Shields v. United States, 73 F. Supp. 862 521 Shields v. Utah Idaho R. Co., 305 U. S. 177 664,673 Sibbach v. Wilson & Co., 312 U. S. 1 382 Siebold, Ex parte, 100 U. S. 371 731 Silas Mason Co. v. Comm’n, 302 U. S. 186 359 Silver v. Silver, 280 U. S. 117 116 Silverthorne Lumber Co. v. United States, 251 U. S. 385 795 Silz v. Hesterberg, 211 U. S. 31 574 Simmons v. United States, 142 U. S. 148 689,690 Sinnot v. Davenport, 22 How. 227 312 Skelton Lead Co.’s Gross Tax, In re, 81 Okla. 134 356, 357 Skidmore v. B. & O. R. Co., 167 F. 2d 54 453 Skolar v. Lehigh Valley R. Co., 60 F. 2d 893 518 TABLE OF CASES CITED. LIII Page Slater v. Mexican Nat. R. Co., 194 U. S. 120 396, 397,404 Smith v. Cahoon, 283 U. S. 553 115,117 Smith v. Condry, 1 How. 28 396,404 Smith v. Davis, 323 U. S. Ill 366 Smith v. Hoboken R., W. & S. S. C. Co., 328 U. S. 123 150 Snow v. United States, 118 U. S. 346 379 Snowden v. Hughes, 321 U. S. 1 381 South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177 91,111,552, 556,566,567,735 Southern Pac. Co. v. Arizona, 325 U. S. 761 552-556, 569,728,729 Southern Pac. Co. v. Dar-nell-Taenzer Co., 245 U. S. 531 585 Southern Pac. Co. v. Jester, 323 U. S. 716 73 Southern Pac. Co. v. Kentucky, 222 U. S. 63 173 Southern Pac. Co. v. Lowe, 247 U. S. 330 426-432 Southern R. Co. v. Comm’n, 236 U. S. 439 730,735, 737,750,751 Southern R. Co. v. King, 217 U. S. 524 568 Southern R. Co. v. Watts, 260 U. S. 519 173 Southern S. S. Co. v. Board, 316 U. S. 31 257,259,269 Southwestern Bell Tel. Co. v. Comm’n, 262 U. S. 276 587 Spector Motor Co. v. Mc- Laughlin, 323 U. S. 101 383, a 583 Spelar v. United States, 171 F. 2d 208 293 Spielman Motor Co. v. Dodge, 295 U. S. 89 378,383 Sproles v. Binford, 286 U. S. 374 116 Page Stanley v. Comm’n, 295 U. S. 76 116 Stark v. Wickard, 321 U. S. 288 541 State. See also name of State. State v. Carter, 197 La. 155 711 State v. Emory, 116 Kan. 381 444 State v. Gauthier, 113 Ore. 297 444 State v. Indian Royalty Co., 177 Okla. 238 356 State v. Strait, 279 S. W. 109 444 State v. Waldo Bank, 20 Me. 470 640 Stearns Co. v. United States, 291 U. S. 54 818 Stephenson v. Binford, 287 U. S. 251 116 Steward Machine Co. v. Davis, 301 U. S. 548 224,538 Stodder v. Rosen Mach. Co., 241 Mass. 245; 247 Mass. 60 81 Stratton v. St. Louis S. W. R. Co., 282 U. S. 10 375,380 Stromberg v. California, 283 U. S. 359 91 Summers, Matter of, 45 Am. B. R. (N. S.) 123 329,340 Sunal v. Large, 332 U. S. 174 688 Sunshine Coal Co. v. Adkins, 310 U. S. 381 224,566 Superintendent of Five Tribes v. Comm’r, 295 U. S. 418 353 Supreme Lodge v. Meyer, 265 U. S. 30 351 Swift & Co. v. United States, 196 U. S. 375 196 Taber v. Indian Terr. Oil Co., 300 U. S. 1 354 Tagg Bros. & Moorhead v. United States, 280 U. S. 420 673 Talbot v. Seeman, 1 Cranch 1 397 Talbott v. Silver Bow County, 139 U. S. 438 379 LIV TABLE OF CASES CITED. Page Tax Comm’n v. Barnsdall Refineries, 296 U. S. 521 343, 347,350,357,366 Tennant v. Peoria & P. U. R. Co., 321 U. S. 29 71,75 Terminal R. Assn. v. Copeland, 323 U. S. 799 73 Terminal R. Assn. v. Mooney, 326 U. S. 723 73 Terminal R. Assn. v. Railroad Trainmen, 318 U. S. 1 569 Terminal R. Assn. v. Schorb, 326 U. S. 786 73 Terry, Ex parte, 128 U. S. 289 159-163,167 Testard, Ex parte, 101 Tex. 250 160 Texas v. United States, 292 U. S. 522 141 Texas & Pac. R. Co. v. Abilene Co., 204 U. S. 426 652 Texas & Pac. R. Co. v. Riley, 325 U. S. 873 73 Thomas v. Collins, 323 U. S. 516 88,92,94,502,503 Thomas v. Gay, 169 U. S. 264 354 Thomas v. Thomas, 14 Cal. 2d 355 639 Thomas v. United States, 57 F. 2d 1039 629 Thomas v. Western Car Co., 149 U. S. 95 338 Thompson v. Godsy, 323 U. S. 719 73 Thompson v. Magnolia Co., 309 U. S. 478 142,143,583 Thompson v. Terminal Shares, 104 F. 2d 1 142 Thompson v. Texas Mex. R. Co., 328 U. S. 134 150,153 Thompson v. United States, 155 U. S. 271 689 Thomson v. Pacific R. Co., 9 Wall. 579 350 Thornhill v. Alabama, 310 U. S. 88 92,252,259,498-503 Tigner v. Texas, 310 U. S. 141 496 Tiller v. Atlantic Coast Line, 318 U. S. 54 55, 61, 62,69,74,911 Page Tiller v. Atlantic Coast Line, 323 U. S. 574 71 Tiller v. Atlantic Coast Line, 128 F. 2d 420 74 Titanic, The, 233 U. S. 718 395 Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165 69 Toomer v. Witsell, 334 U. S. 385 537,575 Tot v. United States, 319 U. S. 463 457 Toucey v. N. Y. Life Ins. Co., 314 U. S. 118 154 Town. See name of town. Townsend v. Yeomans, 301 U. S. 441 562 Trapp v. New Mexico, 225 F. 968 721 Tri-State Broadcasting Co. v. F. C. C.r 107 F. 2d 956 819 Troy, The, 121 F. 901 522 Trupiano v. United States, 334 U. S. 699 796,798 Trust Co. of Chicago v. Erie R. Co., 334 U. S. 845 72 Tucker v. Ferguson, 22 Wall. 527 353 Tumey v. Ohio, 273 U. S. 510 166 Unemployment Compensation Comm’n v. Aragon, 329 U. S. 143 819 Union Beverage Co., In Matter of, 50 Am. B. R. (N. S.) 825 338 Union Brokerage Co. v. Jen- sen, 322 U. S. 202 562,566-569,731,738 Union Fabrics, Inc., In re, 73 F. Supp. 685 340 Union of Auto. Workers v. Board, 336 U. S. 245 451 Union Tool Co. v. Wilson, 259 U. S. 107 191 Union Transit Co. v. Ken- tucky, 199 U. S. 194 173,175 United Auto. Workers v. Board, 336 U. S. 245 451 United Brotherhood of Carpenters, In re, 2 L. R. R. M. 894 23 United R. & W. D. S. E. v. Board, 245 Wis. 636 22 TABLE OF CASES CITED. lv Page United States. See also U. S. ex rel. United States v. American Union Transport, 327 U. S. 437 486 United States v. Bathgate, 246 U. S. 220 457 United States v. Boston & M. R. Co., 279 U. S. 732 39 United States v. Bowman, 260 U. S. 94 284 United States v. Butler, 297 U. S.1 224 United States v. Carolene Products Co., 304 U. S. 144 90 United States v. Chemical Foundation, 272 U. S. 1 818 United States v. Chicago Heights Trucking Co., 310 U. S. 344 466,467,476 United States v. Childs, 266 U. S. 304 332,335,336,339 United States v. C. I. O., 335 U. S.106 85,244 United States v. Constantine, 296 U. S.287 224 United States v. Coolidge, 1 Wheat. 415 457 United States v. Crescent Amusement Co., 323 U. S. 173 192 United States v. Darby, 312 U. S. 100 85,224 United States v. Dotter-weich, 320 U. S. 277 619 United States v. Eaton, 144 U. S. 677 457 United States v. Falcone, 109 F. 2d 579 446 United States v. Goldstein, 135 F. 2d 359 455 United States v. Great Falls Mfg. Co., 112 U. S. 645 648, 670 United States v. Griffin, 303 U. S. 226 643-649, T . 667,668,670 United States v. Griffith, 334 U. S. 100 452 United States v. Hark, 320 U. S. 531 800 Page United States v. Hudson, 7 Cranch 32 457 United States v. Hutcheson, 312 U. S. 219 496 United States v. Illinois Cent. R. Co., 291 U. S. 457 652 United States v. Johnson, 319 U. S. 503 619 United States v. Johnson, 327 U. S. 106 708,724 United States v. Joliet & C. R. Co., 315 U. S. 44 436 United States v. Kauffmann, 62 F. 2d 1045 415,416 United States v. Kelly, 15 Wall. 34 218 United States v. Kirby Lumber Co., 284 U. S. 1 32,40 United States v. Kissel, 218 U. S. 601 446 United States v. Kissel, 173 F. 823 626 United States v. Lanza, 260 U. S. 377 731 United States v. Lefkowitz, 285 U. S. 452 796 United States v. Lowden, 308 U. S. 225 140 United States v. Mack, 112 F. 2d 290 629 United States v. Marigold, 9 How. 560 731,740 United States v. Marxen, 307 U. S.200 126 United States v. Masonite Corp., 316 U. S. 265 452 United States v. Mitchell, 137 F. 2d 1006 714 United States v. Montgomery Ward & Co., 150 F. 2d 369 317 United States v. Montgomery Ward & Co., 58 F. Supp. 408 317 United States v. More, 3 Cranch 159 379 United States v. Morgan, 307 U. S. 183 195, 582,583,598 United States v. National City Lines, 334 U. S. 573 795 LVI TABLE OF CASES CITED. Page United States v.New York Cent. R. Co., 279 U. S. 73 605,648,649,667,669 United States v. Payne, 147 U. S. 687 640 United States v. Peoni, 100 F. 2d 401 619,629,630 United States v. Perez, 9 Wheat. 579 689,690 United States v. Public Serv. Co., 143 F. 2d 79 180,185 United States v. Rickert, 188 U. S. 432 344,355 United States v. Rock Royal Co-op., 307 U. S. 533 541, 566,572,573 United States v. Rosen-wasser, 145 F. 2d 1015 803 United States v. Roth, 164 F. 2d 575 338 United States v. Sall, 116 F. 2d 745 629 United States v. Socony-Vacuum Co., 310 U. S. 150 496 United States v. South-Eastern Underwriters Assn., 322 U. S. 533 552 United States v. Symonds, 120 U. S. 46 218 United States v. Trans-Mo. Freight Assn., 166 U. S. 290 495 United States v. United Mine Workers, 330 U. S. 258 162,191,260 United States v. Worrall, 2 Dall. 384 457 United States v. Wrightwood Dairy Co., 315 U. S. 110 572 U. S. Express Co. v. Minnesota, 223 U. S. 335 174 U. S. ex rel. Arant v. Lane, 245 U. S. 166 379 U. S. ex rel. Claussen v. Curran, 276 U. S. 590 637,640 U. S. ex rel. Hirshberg v. Cooke, 336 U. S. 210 696 U. S. ex rel. Marcus v. Hess, 317 U. S. 537 214 Page Unity R. Co. v. Kurimsky, 333 U. S. 855 73 Utah Power & L. Co. v. Pfost, 286 U. S. 165 174,351 Van Clief v. Helvering, 135 F. 2d 254 435 Van Huffel v. Harkelrode, 284 U. S. 225 130 Van Winkle, In re, 49 F. Supp. 711 127 Vermilya-Brown Co. v. Connell, 335 U. S. 377 285, 291-297 Virginia Elec. & P. Co. v. Board, 319 U. S. 533 231,502 Virginian R. Co. v. United States, 272 U. S. 658 933 Wabash R. Co. v. Hampton, 333 U. S. 833 73 Wabash R. Co. v. Williamson, 330 U. S. 824 70 Wagner v. United States, 118 F. 2d 801 724 Waialua Agricultural Co. v. Christian, 305 U. S. 91 377, 383 Waite v. Overlade, 164 F. 2d 722 701 Waller v. Northern Pac. T. Co., 329 U. S. 742 72 Walling v. Jacksonville Paper Co., 317 U. S. 564 189 Walling v. Reuter, Inc., 321 U. S. 671 639 War Labor Bd. v. Montgomery Ward & Co., 79 U. S. App. D. C. 200 317 Warren v. Palmer, 310 U. S. 132 143 Washington & G. R. Co. v. McDade, 135 U. S. 554 62,71 Watson v. Buck, 313 U. S. 387 383,495 Watson v. State, 166 Miss. 194 444 Weber v. Mann, 42 S. W. 2d 492 81 Wecker v. Nat. Enameling Co., 204 U. S. 176 795 Weeks v. United States, 232 U. S. 383 796,798 TABLE OF CASES CITED. LVII Page Weiss v. United States, 122 F. 2d 675 724 Welch Co. v. New Hampshire, 306 U. S. 79 569, 733,735 Wells Fargo & Co. v. Nevada, 248 U. S. 165 173 Wensleydale, The, 41 F. 829 518 West v. Kansas Nat. Gas Co., 221 U. S. 229 535,574 West Coast Hotel Co. v. Parrish, 300 U. S. 379 500 Western Live Stock v. Bureau, 303 U. S. 250 174,567 Western Union Tel. Co. v. Brown, 234 U. S. 542 396 Weston v. Charleston, 2 Pet. 449 354 West Va. Bd. of Education v. Barnette, 319 U. S. 624 93 Wheeler v. United States, 333 U. S. 829; 165 F. 2d 225 719 Wheeling & L. E. R. Co. v. Keith, 332 U. S. 763 73 Whitaker v. North Carolina, 335 U. S. 525 251 Whitney v. California, 274 U. S. 357 86,91,93 Wiggins v. Utah, 93 U. S. 465 712,721,722 Wilentz v. Sovereign Camp, 306 U. S. 573 381 Wilkerson v. McCarthy, 336 U. S. 53 71,209,911 Willcuts v. Bunn, 282 U. S. 216 359,361 William F. Fisher & Co., In re, 148 F. 907 335 Page William Jameson & Co. v. Morgenthau, 307 U. S. 171 381 Williams v. Fanning, 332 U. S. 490 671 Williams v. Mississippi, 170 U. S. 213 933 Williams v. North Carolina, 317 U. S. 287 677,678 Williams v. North Carolina, 325 U. S. 226 675,677 Williams v. Talladega, 226 U. S. 404 358 Williams Mfg. Co. v. United Corp., 316 U. S. 364 275,280 Wilson v. Cook, 327 U. S. 474 353,359,362 Winters v. New York, 333 U. S. 507 79,80,85 Wisconsin v. Penney Co., 311 U. S. 435 174 Wisconsin & M. R. Co. v. Powers, 191 U. S. 379 174 Wolfe v. Henwood, 332 U. S. 773 72 Woods v. City Bank Co., 312 U. S. 262 4 Woods v. Miller Co., 333 U. S. 138 320 Wynne v. United States, 217 U. S. 234 379 Yamashita, In re, 327 U. S. 1 696 Yeung v. Hawaii, 132 F. 2d 374 379 Yick Wo v. Hopkins, 118 U. S. 356 933 Zap v. United States, 328 U. S. 624 796 Ziffrin, Inc. v. Reeves, 308 U. S. 132 566,569 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page 1789, Sept. 24, c. 20, 1 Stat. 73 ......................... 368 1790, May 26, c. 11, 1 Stat. 122 ........................ 674 1863, Mar. 2, c. 67, 12 Stat. 696 ........................ 210 1868, June 25, c. 72, 15 Stat. 77 ......................... 281 1887, Feb. 8, c. 119, 24 Stat. 388 342 1890, July 2, ’ c.’ 647,’ § 1, 26 Stat. 209................440,793 §2........................ 793 § 4 ...................... 440 1891, Mar. 3, c. 543, 26 Stat. 989 ........................ 342 1892, Aug. 1, c. 352, 27 Stat. 340 ........................ 281 1898, July 1, c. 541, 30 Stat. 544 ........................ 505 §64 .................. 118,328 §67 ...................... 118 1899, Feb. 8, c. 121, 30 Stat. 822 631 1900, Apr. 30, c.’339,’ §5, 31 Stat. 141................... 368 June 6, c. 813, 31 Stat. R79 249 1901, Mar. 3, c. 854, 31 Stat. 1189 ....................... 704 1903, Feb. 2, c. 349, 32 Stat. 791 ........................ 725 Feb. 11, c. 544, §2, 32 Stat. 823........ 793 1906, June 29, c. 3591, 34 Stat. 584 .................. 465 1907, Mar. 1, c. 2285, 34 Stat. 1015.................. 342 1908, Apr. 22, c. 149, 35 Stat. 65.................... 53 Page 1909, Mar. 3, c. 263, 35 Stat. 781 ....................... 342 Mar. 4, c. 321, 35 Stat. 1088 ................ 704 1910, Apr. 5, c. 143, 36 Stat. 291 ......................... 53 June 18, c. 309,36 Stat. 539 ................. 368 1912, June 19, c. 174, 37 Stat. 137.................. 281 1913, Mar. 3, c. 106, 37 Stat. 726 ........................ 281 Oct. 3, c. 16, § 11B, 38 Stat. 114.......... 28 1915, Mar. 4, c. 176, 38 Stat. 1196................. 465 1916, Aug. 9, c. 301, 39 Stat. 441 ........................ 465 Aug. 11, c. 313,39 Stat. 446 ................. 245 Sept. 8, c. 463, §§ 2, 4, 39 Stat. 756.......... 28 1917, Feb. 5, c. 29, §§ 3, 16, 17,39 Stat. 874 ........... 806 1919, Feb. 26, c. 48, § 269, 40 Stat. 1181................. 440 1920, Feb. 28, c. 91, 41 Stat. 456 ........................ 525 Mar. 9, c. 95, §3, 41 Stat. 525............ 386 Apr. 19, c. 153, 41 Stat. 555 704 June 4, c. 227, 41 Stat. 759 .................... 684,695 June 5, c. 250, 41 Stat. 988 ................. 511 1921, Mar. 3, c. 119, 41 Stat. 1225 ....................... 342 Mar. 3, c. 120, 41 Stat. 1249 ...................... 342 LIX LX TABLE OF STATUTES CITED. Page 1921, Nov. 23, c. 136, §§ 201, 202,42 Stat.227.... 410 §§213, 1303........ 28 1924, May 27, c. 200,43 Stat. 176 ....................... 342 1925, Jan. 30, c. 115, 43 Stat. 799 .................. 704 Feb. 13, c. 229,43 Stat. 936 ......................... 18 §11 ..................... 631 1926, May 27, c. 406, § 15, 44 Stat. 662................ 328 1927, Mar. 4, c. 509, 44 Stat. 1424 ....................... 511 §§ 2, 8, 21, 44.... 198 1928, Jan. 31, c. 14, 45 Stat. 54 .......................... 18 May 10, e. 517,45 Stat. 495 ........................ 342 1929, Feb. 18, c. 257, § 17, 45 Stat. 1225 ................. 725 1931, Mar. 2, c. 366, 46 Stat. 1463 ....................... 245 1932, June 6, c. 209, 47 Stat. 169 ........................ 176 1933, May 12, c. 25, 48 Stat. 31 ......................... 525 May 27, c. 38, § 18, 48 Stat. 74.................... 245 June 16, c. 90, § 7, 48 Stat. 195................... 301 June 16, c. 96, 48 Stat. 254 ........................ 176 1934, June 6, c. 404, § 28, 48 Stat. 881................... 245 June 7, c. 424, § 77B, 48 Stat. 911........... 1 June 12, c. 466,48 Stat. 933 ........................ 601 June 19, c. 651, §§ 1, 2, 48 Stat. 1064........ 368 1935, July 5, c. 372, § 1, 49 Stat. 449 ................ 227 §2.................... 18,227 §7 227,245,301 §8 227,301 §9....................... 301 § 10.. 18,227,245,301 §13 ........ 227,245 § 14........... 18 Aug. 9, c. 498, §§ 202-204, 211, 222, 49 Stat. 543............ 725 1935, Aug. 14, c. 530, 49 Stat. 614................... 601 Aug. 24, c. 64, 49 Stat. 750 ........................ 525 Aug. 27, c. 774, §§ 29, 77, 49 Stat. 911.... 132 1936, May 1, c. 251, § 12, 49 Stat. 1248.................. 725 June 5, c. 521, 49 Stat. 1479 ....................... 386 June 20, c. 622, 49 Stat. 1542 ................. 342 June 22, c. 690, §§ 26, 112, 115, 49 Stat. 1648 ................. 410 1937, Feb. 11, c. 10, 50 Stat. 19 ......................... 631 Apr. 17, c. 108,50 Stat. 68 ......................... 342 May 19, c. 227, 50 Stat. 188................... 342 June 3, c. 296, 50 Stat. 246................... 525 Aug. 17, c. 690,50 Stat. 673 .................... 525,793 Aug. 20, c. 716, 50 Stat. 724 .................. 695 Aug. 24, c. 754, § 3, 50 Stat. 751................... 368 1938, May 11, c. 198, 52 Stat. 347 ........................ 342 May 28, c. 289,52 Stat. 447 ........................ 410 § 22........................ 28 June 21, c. 556, 52 Stat. 821................... 577 June 22, c. 575, 52 Stat. 840................... 118 §2......................... 132 §§57, 63, 64.............. 328 §§211, 212.................. 1 §221 .....................1,505 §222 ...................... 505 §228 ........................ 1 8 241 ..................... 505 §242 .................... 1,505 §§243, 244 ............... 505 June 23, c. 601, 52 Stat. 973................... 725 88 2, 403, 406, 88 1002 .................. 601 June 25, c. 675, 52 Stat. 1040 ................. 804 TABLE OF STATUTES CITED. LXI Page 1938, June 25, c. 676, §§ 6-8, 11, 13, 14, 16, 17, 52 Stat. 1060................. 187 June 29, c. 810, 52 Stat. 1235................... 725 1939, Feb. 10, c. 2, 53 Stat. 9 ........................... 28 Apr. 12, c. 59, 53 Stat. 574 ................... 28 June 29, c. 247, § 215, 53 Stat. 862........... 28 July 28, c. 393, § 735, 53 Stat. 1134.......... 28 Aug. 11, c. 685, 53 Stat. 1404............. 53 1940, June 25, c. 215, 54 Stat. 572 ................. 631 June 30, 54 Stat. 1234. 601 Sept. 9, c. 717, 54 Stat. 872 ......................... 281 Sept. 18, c. 722, § 1, 54 Stat. 898 ................... 601 §5........................ 132 §§202, 203, 211... 725 Oct. 8, c. 757, §711, 54 Stat. 974........... 28 1941, Sept. 20, c. 412, §521, 55 Stat. 687............... 176 1942, May 16, c. 318,56 Stat. 284 ......................... 465 Oct. 21, c. 619, 56 Stat. 798.......... 28,410 1943, June 25, c. 144, 57 Stat. 163.................. 301 1945, June 30, c. 215, §§ 1-3, 59 Stat. 310............... 631 Nov. 8, c. 453, 59 Stat. 556 .......................... 28 1946, Feb. 20, c. 32, 60 Stat. 21 .......................... 465 June 11, c. 324, §§ 7, 8, 10, 60 Stat. 237.. 806 June 28, c. 512, 60 Stat. 323............. 118 July 31, c. 717, 60 Stat. 749 .......................... 28 1947, June 23, c. 120, 61 Stat. 136..................... 18 §7 245 §§ 8, 10, 13... 245,301 § 14.......... 301 §501 ..................... 245 June 25, c. 143, 61 Stat. 178..................... 28 Page 1947, June 30, c. 163, § 209, 61 Stat 193............... 941 1948, June 24, c. 625, §§ 222, 231, 244, 62 Stat. 604 ...................... 695 June 25, c. 645, 62 Stat. 683................... 440 June 25, c. 646, § 8, 62 Stat. 869................... 368 § 17..................... 793 1949, Mar. 30, c. 42, §206, 63 Stat. 18............... 941 Constitution. See Index at end of volume. Criminal Code. §§35, 37, 332............. 613 Internal Revenue Code. §§22, 113.............. 28 §115 410 §711 28 §3411 ...................... 176 Judicial Code. §§24, 128............. 368 §§ 145, 177................ 641 §237 .... 18,77,106,342 §238 368 §240 169 §§262, 265................. 132 §266 368 §269 440 Revised Statutes. §§4283, 4285.......... 386 §§4886, 4888 .............. 271 U. S. Code. Title 5, §1001 ............ 641,806 §§ 1002-1011 ............. 641 §1004 ................... 806 Title 7, §269 ................. 245 §499b.................... 725 §§ 601 et seq., 608c, 610 .......... 525 Title 8, §§41-43 .............. 368 §47 ..................... 440 §§ 136, 152, 153... 806 Title 10, §1511 ............ 684 § 1542 .................. 695 § 1564 ............... 684,695 § 1565 .................. 695 § 1566 .............. 210,440 LXII TABLE OF STATUTES CITED. Page U. S. Code—Continued. Title 11, § 1 et seq.. 328 §11 ................. 132 §35 ................. 328 §52 ................. 505 §§93, 103............. 328 § 104 .... 118,328 § 107................ 118 §205 ........ 132 § 501 et seq....505 §621 .......... 1 Title 12, § 1138d.... 440 Title 15, § 1.. 440,460,525,793 §2 ........ 440,793 §§ 3, 8.............. 440 §29 ............ 460,793 §77r ........... 245,725 §78bb............... 245 § 601 et seq......... 631 §717................ 577 Title 16, §§ 715p, 912.. 725 Title 18, §§ 2, 80.......... 613 §88 ............ 440,613 §§241, 286........ 440 §331 ............... 725 §371 ........... 440,613 §§ 372, 398, 399... 440 §466 ............... 704 §§472, 479........ 725 §516............. 704 §550 ............... 613 §567 ............... 704 §§659, 660 .......... 725 §752 ............... 440 §875 ............... 725 §1001 .............. 613 §1111 .............. 704 §§ 1201, 1501-1506, 1792 ........ 440 § 1951 ......... 440,725 § 1992 725 §§2031, 2032, 2111 704 §2117 .............. 725 §§ 2192, 2271, 2314, 2384, 2385, 2387, 2421, 2422... 440 Title 21, §334...... 804 Title 22, §234...... 440 Title 25, §§ 331 et seq., 348, 349, 396,396d, 405, 412a........... 342 Page U. S. Code—Continued. Title 26, §22....................... 28 §45 ..................... 422 § 113..................... 28 §3411 ....... 176 Title 28, §41 ................. 368,641 §47 ..................... 641 §§91, 225................. 368 §250 .................... 641 §344 . 18,77,106,342 §347 .................... 169 §380 ................ 220,368 §384 .................... 368 §391 .................... 440 §§451, 604..... 368 § 1253 .... 220,368 § 1254 .. 169,368,704 § 1257 .. 77,106,301, 490,922,933, 948,957,963 §§ 1291, 1292, 1294, 1331 et seq., 1332-1359 .... 368 §§ 1339, 1491.... 641 §2072 .......... 368 §2101 .. 368,460,914 §2103 .. 342,948,963 §2281 ...... 220,368 §2283 .......... 132 §2284 ............... 220,368 §2408 ................... 386 1946 ed., Supp. II, pp. 1444, 1453. 368 Title 29, § 141 et seq... 18,301 §§ 141-197, 142... 245 § 151 ...........226 § 151 et seq.... 18 §§ 152, 157...... 245 § 158 ... 226,245,301 § 160 ... 245,301,725 § 163 245 § 164 301 §201 187 Title 31, §231........... 440 Title 33, §901etseq......... 198 §§901-950 ....... 511 Title 34, §591 .....................210 §749a ................... 440 § 1200 ........ 210 TABLE OF STATUTES CITED. Lxin Page U. S. Code—Continued. Title 35, §§31, 33...... 271 Title 38, § 715..........440 Title 39, §§523-568... 641 Title 40, §§321-326... 281 Title 41, Appendix, § 12.23, pp. 4520, 4522 .......................... 281 Title 45, §§ 51-59..... 53 Title 46, §§ 183, 185 ...... 386 §688 ....................... 511 §743 ....................... 386 Title 48, §§ 495, 631 et seq., 642, 645, 646... 368 Title 49, § 1 (note preced- ing) .............. 601,725 § 1 ................. 465,525 §5 .................. 132,525 §15...................... 525 §20 ..................... 465 §§ 301-303, 305, 311, 322.... 725 §486 .................... 601 §§ 1001 et seq., 1002, 1004, 1008, 1009, 1013, 1017 465 Title 50, §34........... 440 Appendix, §311 ........440 §§ 1501-1511 . 301 Administrative Procedure Agricultural Adjustment Act ...................... 525 Agricultural Marketing Act. 725 Agricultural Marketing Agreement Act............. 525 Air Mail Act.............. 601 Anti-Racketeering Act...... 440 w nxiupuuj ........• • A AO, 132,328,505 Carmack Amendment........ 465 Chandler Act........ 118,328 Chandler Act Amendments. 328 Civil Aeronautics Act.... 601 Clayton Act............ 577 Cummins Amendments.......465 Eight Hour Act......... 281 Employers’ Liability Act 53,207 Evarts Act............. 613 Expediting Act......... 793 Page Fair Labor Standards Act. 187, 281 Federal Employers’ Liability Act............... 53,207 Federal Food, Drug, & Cosmetic Act................ 804 Federal Motor Carrier Act. 465, 725 Federal Safety Appliance Act ................ 53,725 Federal Tort Claims Act... 281 Five Civilized Tribes Act.. 342 Freight Forwarder Act....465 General Allotment Act....342 Housing & Rent Act.......941 Immigration Act...........806 Income Tax Act, 1913......422 Interstate Commerce Act. 132, 465,525,725 Jones Act................ 511 Judiciary Act......... 368,613 Kaw Act.................. 342 Labor Management Rela- tions Act.... 18,245,301,725 Longshoremen’s & Harbor Workers’ Compensation Act ............... 198,511 Mann Act................. 440 Mann-Elkins Act.......... 368 Migratory Bird Conservation Act................. 725 Miller-Tydings Act....... 525 Motor Carrier Act.... 465,725 National Industrial Recovery Act.................. 301 National Labor Relations Act ........ 18,226,245,301 National War Labor Board Act ................... 301 Natural Gas Act.......... 577 Norris-LaGuardia Act..... 187 Organic Act for Hawaii.... 368 Osage Act................ 342 Quapaw Act............. 342 Railway Mail Pay Act..... 641 Revenue Act, 1916...... 28 Revenue Act, 1918...... 28 Revenue Act, 1921...... 28 Revenue Act, 1924..... 28,328 Revenue Act, 1926...... 28 Revenue Act, 1928..... 28,328 Revenue Act, 1932...... 176 Revenue Act, 1936...... 410 Revenue Act, 1938.. 28,410,422 LXIV TABLE OF STATUTES CITED. Page Revenue Act, 1939 ........ 28 Revenue Act, 1940 (Second) ................. 28,410 Revenue Act, 1941........ 176 Revenue Act, 1942..... 28,410 Revenue Act, 1945......... 28 Safety Appliance Act... 53,725 Second Revenue Act, 1940. 28, 410 Securities Act........ 245,725 Securities Exchange Act.... 245 Selective Service Act..... 440 Page Sherman Act........... 460,793 Suits in Admiralty Act.... 386 Taft-Hartley Act...... 18,245, 301,725 Transportation Act........ 601 Tucker Act.............. 641 United States Warehouse Act .....................245 Urgent Deficiencies Act.... 641 Wagner Act........ 226,245,301 War Labor Disputes Act... 301 Whaling Treaty Act........ 725 (B) Statutes of the States and Territories. California. Constitution, Art. VI, §§4, 4b................... 725 1931 Stats., c. 638, § 1. 725 1933 Stats., c. 390, § 1. 725 1941 Stats., c. 539, § 2.. 725 1947 Stats., c. 1215, §§2,4................ 725 Deering’s Penal Code (1947 Supp.), §§654.1 to 654.3.... 725 District of Columbia. Code, §§ 1-4-306,22-301, 22-2201, 22-2404, 22-2801, 22-2901.... 704 Florida. 1941 Stats., §§639.02, 639.04 .............. 220 Georgia. Code Ann., § 56-9920.. 220 Hawaii. 1943 Session Laws, Act No. 104.................... 368 Rev. Laws, 1945, c. 31, §§ 1871-1876 ......... 368 Illinois. Rev. Stats., 1947, c. 73, §956 ................. 220 Kentucky. Rev. Stats., 1946, §303.120 ............. 220 Louisiana. 6 Dart’s Gen. Stats., §§8370 (a), (f), (g). 169 Maine. Rev. Stats., 1944, c. 56, § 138............. 220 Maryland. Code Ann., 1939, Art. 48A, § 110................. 220 Missouri. Rev. Stat. Ann., 1939, §§8301, 8305, 8308.. 490 New Jersey. Stat. Ann., Title 40, § 48-1 (8) ........ 77 Trenton Ordinance No. 430, §4............. 77 New York. 1934 Laws, c. 126, Art. 21, § 258-c........ 525 1937 Laws, c. 798, § 258-n............. 525 30 McKinney’s Cons. Laws, §§704-706.... 18 Agriculture & Markets Law ................ 525 Insurance Law, § 165 (c) ................ 220 Lockport Ordinance, § 3.................. 77 New York City Charter, §435........... 106 New York City Traffic Regulations, §124... 106 Ohio. Page’s Gen. Code, 1946, § 666 .............. 220 Oklahoma. 1908 Laws, c. 71, Art. II, §6............. 342 1910 Laws, c. 44, § 6.. 342 1915 Laws, c. 107, Art. 2, subd. A......... 342 TABLE OF STATUTES CITED. LXV Page Oklahoma—Continued. 1916 Laws, c. 39........... 342 1933 Laws, cc. 103, 131, 132 ................ 342 1935 Laws, c. 66, Art. 4; c. 59, Art. 2......... 342 1937 Laws, c. 59 Art. 2. 342 1939 Laws, c. 66, Art. 7. 342 1941 Laws, Title 68, c. 26 ...................... 342 1943 Laws, Title 68, c. 26 ...................... 342 1945 Laws, Title 68, c. 26 ...................... 342 1947 Laws, Title 68, c. 26 ...................... 342 Stats. Ann., Title 52, §§ 81 et seq., 81-286.17, 291-303..... 342 Stats. Ann., Title 68, §§ 821, 827, 832, 833, 836, 1220.1 et seq., 1220.3 ............. 342 South Carolina. 1929 Acts, Act No. 205. 220 Page South Carolina—Continued. 1947 Acts, Act No. 232, §65 ................ 220 1948 Acts, Act No. 787, §§1-4............... 220 Code, 1942, §7984.... 220 Washington. Rev. Stat. Ann., 1940, §2266 .............. 725 Rev. Stat. Ann. (1941 Supp.), §§6397-19, 6397-20 ............ 725 Wisconsin. Stats., c. Ill, § 111.02 .................. 18 §§111.03, 111.04... 245 § 111.05 .................. 18 § 111.06 .. 18,245,301 § 111.07 .............. 18,245 §§227.15, 227.16... 18 Employment Peace Act ................. 245,301 Wyoming. Comp. Stat. Ann., 1945, . §§60-1309, 60-1362. 725 (C) Treaties. 1904, Feb. 26, 33 Stat. 2234 (Panama) ................. 281 1939, Sept. 29, 54 Stat. 1693 (International Labor Organization) ............ 511 Brussels Limitation of Liability of Owners of Seagoing Vessels Convention (Belgian) ................. 386 (D) Foreign Statutes. English. 7 Edw. VII, c. 23......... 704 Criminal Appeal Act.. 704 823978 0—49-----------5 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1948. LEIMAN et al. v. GUTTMAN et al. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 88. Argued December 13, 1948.—Decided January 17, 1949. 1. Under § 221 (4) of Ch. X of the Bankruptcy Act, 11 U. S. C. § 621, the bankruptcy court has exclusive jurisdiction over claims for services as attorneys for a stockholders’ protective committee in a corporate reorganization proceeding—including claims under a private escrow agreement for services which benefited a single class of security holders and are compensable by them and not from the estate. Pp. 2-10. (a) The control of the bankruptcy court is not limited to fees and allowances payable out of the estate. P. 5. (b) Section 221 (4) applies to “all payments” for services “in connection with” the proceeding or “in connection with” the plan and “incident to” the reorganization, whoever pays them. Pp. 5-8. (c) Payments under a private arrangement expressed in an escrow agreement with a committee representing a smaller or more intimate group than a conventional committee are not excepted. P. 8. 2. Since the determination of allowances has been made an integral part of the process of confirmation of a corporate reorganization which is exclusively entrusted to the bankruptcy court under Chapter X, it may not be delegated to a state court. P. 9. 3. In a reorganization proceeding under Chapter X, the bankruptcy court erroneously ruled that it had no jurisdiction over legal fees arising out of private arrangements with a stockholders’ protective committee and not payable out of the estate. No appeal was taken and the time allowed for appeal had expired. Held: The 1 2 OCTOBER TERM, 1948. Opinion- of the Court. 336 U. S. claimants may still apply to the bankruptcy court for an allowance, whether or not the final decree under §228 has been entered. Pp. 9-10. 297 N. Y. 201,78 N. E. 2d 472, affirmed. In a corporate reorganization proceeding under Chapter X of the Bankruptcy Act, the bankruptcy court allowed petitioners certain fees for legal services rendered to and payable out of the estate but held that it had no jurisdiction over certain additional fees to be paid under the terms of a private escrow agreement between them and a committee representing a group of stockholders. 69 F. Supp. 656. Without appealing from this ruling, petitioners sued in a state court for specific performance of the escrow agreement. The trial court denied a motion to dismiss for lack of jurisdiction. 71 N. Y. S. 2d 200. The Appellate Division affirmed. 272 App. Div. 896, 72 N. Y. S. 2d 406. The Court of Appeals reversed. 297 N. Y. 201, 78 N. E. 2d 472. This Court granted certiorari. 335 U. S. 808. Affirmed, p. 10. Samuel Marion argued the cause and filed a brief for petitioners. Leo Praeger and Barney Rosenstein argued the cause and filed a brief for respondents. Solicitor General Perlman, Roger S. Foster and George Zolotar filed a brief for the Securities & Exchange Commission, as amicus curiae, urging affirmance. Mr. Justice Douglas delivered the opinion of the Court. Section 221 of Ch. X of the Bankruptcy Act, 52 Stat. 897, 11 U. S. C. § 621, provides: “The judge shall confirm a plan if satisfied that .... “(4) all payments made or promised by the debtor or by a corporation issuing securities or acquiring LEIMAN v. GUTTMAN. 3 1 Opinion of the Court. property under the plan or by any other person, for services and for costs and expenses in, or in connection with, the proceeding or in connection with the plan and incident to the reorganization, have been fully disclosed to the judge and are reasonable or, if to be fixed after confirmation of the plan, will be subject to the approval of the judge . . . .” The question presented by this case is whether that provision gives the bankruptcy court exclusive jurisdiction over petitioners’ claim for services as attorneys in the reorganization of Pittsburgh Terminal Coal Corp., the debtor. Petitioners were attorneys for a protective committee representing public holders of the preferred stock of the debtor. The committee had on deposit 584 shares of the preferred stock from four stockholders. The committee agreed to hold those shares in escrow for the purpose of affording petitioners “additional compensation” for their services in the reorganization proceedings of the debtor.1 Petitioners rendered valuable service in connection with the reorganization. When the plan was confirmed, they applied to the bankruptcy court for an allowance. That 1 The relevant part of the escrow agreement provided: “These shares are held in escrow by this Committee pending the termination of all proceedings in the matter of the Pittsburgh Terminal Coal Corporation. “This Committee has secured these shares from the stockholders listed above for the purpose of affording to you additional compensation for your services in the above matter. They have been obtained and are held in escrow on the condition that they be delivered to you only at such time as the reorganization proceedings in the matter of Pittsburgh Terminal Coal Corporation are finally terminated and a final settlement of all suits and claims made by this Committee in behalf of the preferred stockholders have been settled. It is further conditioned upon faithful and satisfactory performance of your duties as counsel to this Committee until the termination of all proceedings.” 4 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. court allowed them $37,500 out of the estate. It concluded that, while that amount was all the estate should bear, their services were worth more than the allowance. But it held that it had no jurisdiction to pass on the amount of the allowance which should be paid under the escrow agreement. In re Pittsburgh Terminal Coal Corp., 69 F. Supp. 656. Since in their view that court did not have jurisdiction of the claim, petitioners did not appeal from that order but brought instead the present suit in the New York courts for specific performance of the escrow agreement and for delivery of the deposited stock in accordance with the terms of that agreement. The Court of Appeals answered in the negative the following certified question: “Has the Supreme Court of the State of New York jurisdiction over the subject matter of this action to recover for legal services rendered to the stockholders committee which are not compensable out of the assets of the Debtor’s estate, in a Chapter X reorganization proceeding under the United States Bankruptcy Act?” 297 N. Y. at 204. The case is here on a petition for certiorari which we granted because of the importance of the question in administration of the Act. We reviewed in Woods v. City Bank Co., 312 U. S. 262, and Brown v. Gerdes, 321 U. S. 178, the design of Ch. X insofar as fees and allowances are concerned. There we were dealing with fees and allowances payable out of the estate. Here we are dealing with fees which are incident to the reorganization but not payable out of the estate. Under the less comprehensive language of § 77B the leading authority was that the bankruptcy court had jurisdiction over the latter claims as well. In re McCrory Stores Corp., 91 F. 2d 947. We would be unmindful of history and heedless of statutory language if we held LEIMAN v. GUTTMAN. 5 1 Opinion of the Court. that the power of the bankruptcy court in this respect had been contracted2 as a result of Ch. X. The control of the judge is not limited to fees and allowances payable out of the estate. Section 221 (4) places under his control “all payments made or promised” (1) by “the debtor” or (2) “by a corporation issuing securities or acquiring property under the plan” or (3) “by any other person” for services rendered “in connection with” the proceeding or “in connection with” the plan and “incident to” the reorganization. The services of petitioners concededly met those requirements; and the committee against whose stock a lien is sought to be asserted would plainly be included within the words “any other person.” Moreover, these petitioners are included in the classes of claimants to whom the judge is empowered to allow reasonable compensation.3 To lift petitioners’ claim from § 221 (4) would therefore be to rewrite it or to hold that when extended so far it was unconstitutional. The latter has not even been intimated. The former is not permissible. 2 The indicated purpose was to strengthen, not to impair, the existing controls which § 77B established in regard to allowances. See Sen. Rep. No. 1916, 75th Cong., 3d Sess. 22 (1938); H. R. Rep. No. 1409,75th Cong., 1st Sess. 45 (1937). 3 Section 242 provides: “The judge may allow reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred in connection with the administration of an estate in a proceeding under this chapter or in connection with a plan approved by the judge, whether or not accepted by creditors and stockholders or finally confirmed by the judge— “(1) by indenture trustees, depositaries, reorganization managers, and committees or representatives of creditors or stockholders; “(2) by any other parties in interest except the Securities and Exchange Commission; and “(3) by the attorneys or agents for any of the foregoing except the Securities and Exchange Commission.” 6 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. The aim of the expanded controls over reorganization fees and expenses is clear. The practice had been to fix them by private arrangement outside of court.4 The deposit agreement under which committees commonly functioned was viewed as a private contract,5 which granted the committee a lien on the deposited securities for its fees and expenses. By terms of the agreement the committee was normally the sole judge of their amount.6 4 See Part VIII, Protective Committee Report, Securities and Exchange Commission (1940), pp. 232 et seq. 5 See Habirshaw Elec. Cable Co. n. Habirshaw Electric Cable Co., Inc., 296 F. 875, 879. 6 See Part I, Protective Committee Report, Securities and Exchange Commission (1937), pp. 642,644,645,646-647: “An examination of the 846 deposit agreements received with replies to the Commission’s questionnaire reveals that 841 agreements, or 99.4 percent, provided that the committee should be entitled to fees or expenses or both. Of those 841 deposit agreements, 672 agreements, or 79.9 percent, gave the committee an express lien upon the deposited securities, for expenses or compensation, or both. 742, or 88.2 percent, clothed the committee with power to pledge deposited securities to secure loans to finance its activities. These powers commonly may be exercised by the committee in its sole discretion free from supervision by any independent agency or by the depositors.” “The deposit agreements provide little check upon the amounts the committees may charge for fees and expenses. As we have stated above, 841 of the 846 deposit agreements that we examined provided that the committee should be entitled to payment of its fees or expenses or both. In 469 the amount of compensation and expenses which the committee might charge against the deposited securities was unlimited. That is to say, in 55.4 percent of the cases neither the aggregate amount nor the amount per unit of securities which committees could claim for their expenses and services was limited. “in the 705 cases not associated with Section 77 or Section 77B proceedings machinery was provided for having some independent LEIMAN v. GUTTMAN. 7 1 Opinion of the Court. This gave rise to serious abuses. There was the spectacle of fiduciaries fixing the worth of their own services and exacting fees which often had no relation to the value of services rendered.7 The result was that the effective amount received by creditors and stockholders under the plan was determined not by the court but by reorganization managers and committees. Hence Congress instituted controls, controls which became more pervasive as § 77B was evolved into Ch. X. Section 211 requires that a committee file with the court a statement disclosing specified information, including the agreement under which it operates.8 The scrutiny clause of § 212 gives the court power to set aside any of person or agency review the amount of the fees and expenses of these committees in only 2.13 percent of the cases. In the balance of the cases, numbering 690, the committee had reserved to itself the right to determine, within the limits prescribed by the agreement, the amount which it could charge for fees and expenses. And in 403 of these 690 cases, the agreements prescribed no limitations. These fiduciaries, therefore, had in the vast majority of the cases provided machinery whereby they became the sole arbiters of the worth of their own services and of the propriety of their expenses. As we have pointed out, it was usually provided that the compensation to be fixed by the committee must be ‘reasonable.’ But this restriction in and of itself would mean little, since the committee and the committee alone was to determine what was ‘reasonable.’ And it is no answer to say that a court of equity would review these fees on complaint of a depositor and disallow stuns beyond a ‘reasonable’ amount or disallow improper items of expense. Such relief would necessitate litigation by the depositors. Considering the time, expense, and difficulty of legal questions involved, such a remedy would for all practical purposes furnish no check whatsoever on the extravagance of committee members.” 7 See Part II, Protective Committee Report, Securities and Exchange Commission (1937), pp. 351 et seq. 8 It is to be noted that while this provision only applies to committees representing more than twelve creditors or stockholders, the scrutiny clause contained in § 212 and the power to control allowances contained in § 221 (4) is not so restricted. 8 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. the provisions of such an agreement which it finds to be “unfair or not consistent with public policy.” And § 221 (4) is written in pervasive terms—it applies to “all payments” for services “in connection with” the proceeding or “in connection with” the plan and “incident to” the reorganization, whoever pays them.9 A statute establishing such broad supervision over committees cannot be presumed to be niggardly in its grant of authority when it deals with the matter which of all the others has the most direct impact on those whom it aims to protect. We can find in this language no exemption for the kind of committee that petitioners represented. The fact that the committee may have represented a smaller or more intimate group than a conventional committee is irrelevant. The statute was designed to police the return which all security holders obtain from reorganization plans. The net return cannot be kept under supervision if private arrangements expressed in escrow agreements are to control. For the impact of excessive fee claims is the same whether they are charged directly against the estate or against the claim which represents a proportionate interest in the estate. 9 Sen. Rep. No. 1916, supra, note 2, at 36, explains §221 (4) as follows: “Subsection (4) of section 221, derived from section 77B (f) (5), requires full disclosure and the approval by the judge of all payments for services, and for costs and expenses, in connection with the plan or the proceedings, whether such payments are made or promised by the debtor, or by any corporation succeeding to it, or by any other person.” Section 77B (f) (5) provided that “the judge shall confirm the plan if satisfied that . . . (5) all amounts to be paid by the debtor or by any corporation or corporations acquiring the debtor’s assets, and all amounts to be paid to committees or reorganization managers, whether or not by the debtor or any such corporation for services or expenses incident to the reorganization, have been fully disclosed and are reasonable, or are to be subject to the approval of the judge . . . .” 48 Stat. 919. LEIMAN v. GUTTMAN. 9 1 Opinion of the Court. Nor is it an answer to say that state courts can supervise allowances of this nature if the bankruptcy court is, disallowed authority to do so. The happenstance of litigation in the state courts is not the equivalent of the administrative rule adopted by Congress when it asked that committee claimants submit their requests to the bankruptcy court. The incidence of fees on reorganization plans is so great that control over them is deemed indispensable to the court’s determination whether the plan should be confirmed. Section 221 (4) provides, indeed, one of the standards by which the court makes that determination. Since the determination of allowances has been made an integral part of the process of confirmation which is exclusively entrusted to the bankruptcy court, we cannot infer that it may be delegated to a state court. Moreover, it is the bankruptcy court that is in the best position to know what work was done by the fee claimant, how important and involved it was, how much it benefited the whole group of security holders and how much it benefited the one class alone, how much of it was necessary, how much of it was effective. That court has already determined what the estate should pay. The question that remains is how much of a charge should be made against the escrowed stock and whether the state court or the bankruptcy court should determine what that charge should be. Certainly where, as in this case, the services benefited in part the estate and in part one class of security holders, it is the bankruptcy court that is in the position to weigh the interrelated issues of fact and make a fair allocation between the two. These practical considerations support the literal reading of § 221 (4) that it is the bankruptcy court that has jurisdiction to pass on these fees. Its jurisdiction is therefore exclusive. See Brown v. Gerdes, supra. Petitioners did not appeal from the order of the District Court holding that it had no jurisdiction over these 10 OCTOBER TERM, 1948. Jackson, J., dissenting in part. 336 U. S. claims. But no reason is apparent why the petitioners may not apply to the District Court for an allowance even at this date. We were advised during the course of argument that the final decree under § 228 has not been entered.10 Yet though it has been, there is no reason in view of the special circumstances of this case why application cannot be made at the foot of the decree. Affirmed. Mr. Justice Jackson, dissenting in part. I agree with the opinion of the Court insofar as it holds that a committee of stockholders constituted under the Bankruptcy Act may not disburse or commit fiduciary funds in its own hands under general deposit agreement, nor funds of the estate, to pay attorneys’ fees except as allowed by the federal court, and a contract to pay more from such funds would not be enforceable. But the opinion goes beyond that. As to agreements between stockholders and counsel which do not affect funds of the estate or of the committee, I see no reason to say that such contracts are subject to control by the Bankruptcy Court, or indeed, that in such a case as this, that there is any practical way in which the Bankruptcy Court can effectively assert such a jurisdiction as the opinion bestows upon it. 10 Section 228 provides: “Upon the consummation of the plan, the judge shall enter a final decree— “(1) discharging the debtor from all its debts and liabilities and terminating all rights and interests of stockholders of the debtor, except as provided in the plan or in the order confirming the plan or in the order directing or authorizing the transfer or retention of property; “ (2) discharging the trustee, if any; “(3) making such provisions by way of injunction or otherwise as may be equitable; and “ (4) closing the estate.” LEIMAN v. GUTTMAN. 11 1 Jackson, J., dissenting in part. It seems to me that the Court is converting a provision of the Bankruptcy Act designed to prevent lawyers from overreaching stockholders into an authority for stockholders to swindle lawyers. It may appear like an instance of man biting dog, but the case before us is actually one of client snaring lawyer. The Court’s opinion is a rather abstract declaration and my difficulty with it can be understood only from fuller recital of the facts. This case has not been tried nor even been at issue. It was decided on motion to dismiss in the trial and intermediate appellate courts of New York State. All that was before the New York Court of Appeals was a certified abstract question to which I think it returned a correct abstract answer. But that question was not the only or the basic question presented by the case. From a record that is unsatisfactory for decision of issues so important to the bar and to those interested in reorganizations, the following facts appear. Pittsburgh Terminal Coal Corporation, as debtor, was in reorganization under Chapter X of the Bankruptcy Act. Three of these defendants, in a manner and with powers and duties not disclosed, became a “Committee for Preferred Stockholders.” Whether any stock was deposited with them as such does not appear and the Committee seems to have represented only the interests of a family group, heavily interested in preferred stock, which comprised and dominated the Committee. The Committee originally retained these lawyers. The situation appears to have been one of those in which existence of any estate, and hence of any value to the preferred stock, depended upon the outcome of a lawsuit for “uncovering mismanagement and malfeasance.” Remuneration for the lawyers who were to press the suit was contingent upon their creating an estate; but in such cases courts are properly reluctant after the event 12 OCTOBER TERM, 1948. Jackson, J., dissenting in part. 336 U. S. to include in allowances, compensation for the risk of doing much work for nothing. These lawyers faced so slim a chance of fair compensation that they proposed to withdraw. To induce them to continue, four individual stockholders put 20% of their preferred stock in escrow with the defendant Committee under a separate written contract. This stock does not appear to have been previously deposited with the Committee, nor was it deposited at this time under the general stockholders’ agreement but only under the special escrow agreement. The agreement with the lawyers recited, “This Committee has secured these shares from the stockholders listed above for the purpose of affording to you additional compensation for your services in the above matter. They have been obtained and are held in escrow on the condition that they be delivered to you only at such time as the reorganization proceedings” are terminated and final settlement of claims made, and delivery was conditioned on faithful and satisfactory service by the lawyers. After an estate was created by the efforts of the lawyers, the stockholders repudiated the agreement and contended that counsel’s services were only compensable from the estate without resort to the escrow contract. The attorneys thereupon sought compensation by an allowance from the estate. Judge Gibson’s final opinion on the application recites facts among which are the following: The chairman of the Committee for Preferred Stockholders, “while not denying that claimants had rendered services which could not be charged against the Debtor, and which were rendered at a time when any such compensation from the debtor’s estate seemed improbable, asserted that the deposit of stock in escrow was to be effective only in case no considerable award should be made from the debtor’s estate.” He indicates that the mismanagement litigation was “the source of the LEIMAN v. GUTTMAN. 13 1 Jackson, J., dissenting in part. ultimate fortunate recovery of the fund for distribution.” But he finds “that the claimants rendered services to the preferred stockholders named in the escrow agreement which were not compensable from the fund distributed by order of the court. Among such services were those rendered in connection with the sinking fund claims, Guttman’s criticism of the Trustee’s sales of machinery and his management of the real estate, his rent collections and the repair of the debtor’s houses and other property.” The Debtor, the Committee and the Securities and Exchange Commission joined and “contended that in a Chapter X proceeding the court has the duty of determining the reasonableness of all fees, whether compensable fees chargeable to the estate or for those which are non-compensable and which cannot be so charged.” But Judge Gibson held otherwise and I think very properly concluded, “In the instant case no sufficient fund has been credited to the depositing stockholders against which any allowance to claimants could be charged. The judgment, if any were entered, would be directly against the stockholders.” [All emphasis supplied.] This he thought “seems to stretch the interpretative powers of the court too far.” Thus denied compensation on a quantum meruit basis for services admittedly rendered for and of value to these stockholders, and the Bankruptcy Court holding itself without jurisdiction to enforce their contract, these lawyers then went into the courts of the State of New York to enforce it. They named members of the Committee as such as defendants. This was quite proper, for it was the “Committee” which, as escrow agent, held the stock in question. The complaint asked judgment that the Committee deliver up the property of which it was stakeholder but asked no judgment against the Committee that would be payable from any other fund or property in its hands. The suit also made parties defendant 14 OCTOBER TERM, 1948. Jackson, J., dissenting in part. 336 U. S. the individual preferred stockholders in whose behalf the agreement was made and who became parties to it individually by putting up their stocks and against whom Judge Gibson held he had no power in the bankruptcy proceeding to enter judgment. This action is thus against both individuals and the Committee. However, the question which was certified to the Court of Appeals, and which is all that we took for review on certiorari to that court, ignores any question of individual liability and only asks, “Has the Supreme Court of the State of New York jurisdiction over the subject matter of this action to recover for legal services rendered to the stockholders committee which are not compensable out of the assets of the Debtor’s estate, in a Chapter X reorganization proceeding under the United States Bankruptcy Act?” Read literally, I agree that the answer to that abstract question is “No.” A committee organized under the Act is a fiduciary whose commitments are made subject to the supervision of the court. I do not think it can undertake, out of its trust funds or out of stocks deposited only under the general agreement provided for by the Act, to pay for services that are beyond the power of the court to supervise. But this Court, if I read aright, holds that no contract between any person and a lawyer for services in a reorganization proceeding can fix the basis or amount of the fee even if such fees are not payable out of the estate or out of any funds in the court’s control, because “The statute was designed to police the return which all security holders obtain from reorganization plans. The net return cannot be kept under supervision if private arrangements expressed in escrow agreements are to control.” I had not understood that the Bankruptcy Act in reorganization cases disables anybody, even if a stock- LEIMAN v. GUTTMAN. 15 1 Jackson, J., dissenting in part. holder, from employing his own lawyer on such terms as he sees fit to fix by contract or that it disables lawyers from accepting such retainers. To invalidate them, so far as compensation is concerned, is the effect and, as I understand it, the intent of this decision. If one privately may retain a lawyer, I know of no reason why he may not fix his fee, contingent or otherwise, and secure the promised compensation by pledge of stock in the company being reorganized, or pay the fee in such stock. I am unaware of any public interests protected by this denial of the right to hire one’s own counsel for a fixed or determinable fee in such cases. The good served by court supervision in preventing lawyer raids on fiduciary funds is not advanced by this ruling. These shares were put up by individual stockholders, presumably mentally competent adults, in what proved to be a good bargain, even if they have to perform it, and a windfall if they do not. Are people situated as they were to be disabled from agreeing upon a fee that will induce counsel to expose mismanagement of the bankrupt or the trustee in cases where, as here, the chances of compensation otherwise are doubtful? This Court seems to recognize unfairness in the situation it is creating and suggests that it may be remedied by a new application for larger fees to the Bankruptcy Court. But we do not tell the court what to do with the new application nor where it went wrong as to the former one. Indeed, we could not tell it of its mistake, if any, for we have only scattered bits of information about the evidence on which the previous order was made. If we would but put ourselves in the position of that court, I think it will at once appear how impractical is today’s decision. Judge Gibson apparently agreed that the services for which either the estate or the Committee, as such, should pay are adequately compensated by the allowance of 823978 0—49---6 16 OCTOBER TERM, 1948. Jackson, J., dissenting in part. 336 U. S. $37,500. The reason he did not allow more was that services above that value were performed for neither the estate nor the Committee but for the individual stockholders who employed and agreed to pay the lawyers. Do we, without seeing the record, reverse this finding? If so, do we hold that the services Judge Gibson enumerated as not rendered for benefit of the estate or the Committee were rendered for one or the other instead of for the individuals? Or do we say that, even if such services were rendered to individuals, the estate should pay for them? From what fund is the additional compensation we are suggesting to be paid? Would not other parties in interest have a just grievance if the estate of the bankrupt is burdened with paying for extra-estate services? And what other fund is there in reach of the court’s order? What we seem to be saying is that an Act whose purpose is to give the Bankruptcy Court ample powers to see that no improper fees are charged on the estate really compels it to make the estate pay fees of lawyers for private parties in connection with reorganization. I cannot follow this. But if we do not mean they shall be paid from the estate or the Committee, Judge Gibson has already pointed out that there is no other fund. Can this Court say he is wrong and that we know of one? It is suggested that the Bankruptcy Court may make an allowance to counsel for the individual services and charge them against the escrowed stock. I am not aware of anything which gives the Bankruptcy Court power to adjudicate the controversy, which is essentially a contract action between the individual stockholders and their lawyers, merely because the services involved appearing in the reorganization case. Clearly the Court is holding that the contract is not valid insofar as it fixed the fee. Is it then valid as basis for allowing some fee, but invalid as to the one agreed upon? If on quantum meruit basis LEIMAN v. GUTTMAN. 17 1 Jackson, J., dissenting in part. the allowed fee exceeds the present value of the stock, may the Bankruptcy Court grant a personal judgment for the deficiency? If not, the contract is good to limit the lawyer’s fee but not good to assure payment of it. And if valuable services have been rendered under the contract for which an allowance might otherwise be proper, should it be denied if other conditions of the contract are not fulfilled? I am unable to find any basis in law for saying that the Bankruptcy Court has anything whatever to do with a private contract to employ and pay a lawyer to guard personal interests in a reorganization case, unless it is sought to charge the fee against the estate, or against stock deposited under a general agreement with the Committee formed under the Act. This situation involves neither, but only stock specially placed in a stakeholder’s hands under the escrow contract with counsel. An experienced and able District Judge knew all the facts and we do not. The lawyers involved made a complete disclosure, as should any lawyer who applies to the court for an allowance. Judge Gibson approved the fees so fixed that the estate paid its share and only its share, which seems to fulfill the purposes of the Federal Act. But he set apart certain items of services for which he made no allowance because they were rendered for private parties. Those parties had a contract as to what, under the peculiar circumstances, should be paid for those services. Judge Gibson left the controversy as to that contract to the state courts to adjudicate. An action has been brought to require delivery of the stock put in escrow by the individuals to compensate their lawyers. The action seeks no money judgment and no relief that would affect or could affect the estate in the hands of the Bankruptcy Court. I should remand the case to the courts of New York for such further proceedings as state law provides for 18 OCTOBER TERM, 1948. Syllabus. 336 U. S. its adjudication and not inconsistent with our holding that fiduciary funds cannot be committed except by the Bankruptcy Court. The Chief Justice and Mr. Justice Frankfurter join in this opinion. * La CROSSE TELEPHONE CORP. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al. NO. 38. APPEAL FROM THE SUPREME COURT OF WISCONSIN.* Argued November 18-19, 1948.—Decided January 17, 1949. 1. A certification by the Wisconsin Employment Relations Board of a union as the collective bargaining representative of the employees of an employer engaged in interstate commerce, which certification has been reviewed and sustained by the highest court of the State, held, in view of the effect of the certification under the state law, a “final judgment” within the meaning of § 237 (a) of the Judicial Code and reviewable here, although the certification was not in the form of a command. Pp. 21-24. 2. In a proceeding under state law, the Wisconsin Employment Relations Board certified that the employees in the plant and traffic departments of a telephone company had elected to combine in a single bargaining unit and had chosen a certain labor organization as their collective bargaining representative, and that the employees in the office department had elected to constitute themselves as a separate unit and had chosen not to have any collective bargaining representative. The National Labor Relations Board had not undertaken, under the National Labor Relations Act, to determine the appropriate bargaining representative or unit of representation of the employees. The company concededly was engaged in interstate commerce and the industry was one over which the National Labor Relations Board had consistently exercised jurisdiction. Held: The State Board’s certification is invalid as in conflict with the National Labor Relations Act. Bethlehem Steel Co. v. New *Together with No. 39, International Brotherhood of Electrical Workers, Local B-953, A. F. of L. v. Wisconsin Employment Relations Board Ct al., also on appeal from the same court. La CROSSE TEL. CORP. v. WIS. BOARD. 19 18 Counsel for Parties. York State Labor Relations Board, 330 U. S. 767, followed. Pp. 24-26. 3. The Labor Management Relations Act of 1947, which authorizes the National Board under specified conditions to cede its jurisdiction to a state agency, does not require a result different from that here reached. Pp. 26-27. 251 Wis. 583,30 N. W. 2d 241, reversed. The appellant telephone company and the appellant union each brought an action in a state court to set aside a certification by the Wisconsin Employment Relations Board. The State Circuit Court held that the State Board was without jurisdiction to issue the certification. The State Supreme Court reversed. 251 Wis. 583, 30 N. W. 2d 241. On appeals to this Court, reversed, p. 27. Thomas H. Skemp argued the cause for appellant in No. 38. With him on the brief was Quincy H. Hale. Louis Sherman argued the cause for appellant in No. 39. With him on the brief was Philip R. Collins. Beatrice Lampert, Assistant Attorney General of Wisconsin, argued the cause for appellees. With her on the brief were Grover L. Broadfoot, Attorney General, and Stewart G. Honeck, Deputy Attorney General. John E. Martin, then Attorney General, was on a statement opposing jurisdiction. Solicitor General Perlman, David P. Findling, Ruth Weyand and Mozart G. Ratner filed a brief for the United States, as amicus curiae, supporting appellants. T. McKeen Chidsey, Attorney General, M. Louise Rutherford, Deputy Attorney General, and George L. Reed, Solicitor, Labor Relations Board, filed a brief for the Commonwealth of Pennsylvania, as amicus curiae, in No. 39, urging affirmance. Donald J. Martin filed a brief for the Communication Workers of America, Division 23, supporting appellees. 20 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. Mr. Justice Douglas delivered the opinion of the Court. These cases, here on appeal from the Wisconsin Supreme Court, 28 U. S. C. § 344 (a), 43 Stat. 937, 45 Stat. 54, present the question whether a certification of a union by the Wisconsin Employment Relations Board, Wis. Stats. 1947, ch. Ill, as the collective bargaining representative of the employees of appellant company, conflicts with the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. §§ 151 et seq. Prior to 1945 the appellant company recognized the appellant union as the collective bargaining representative of its plant and traffic department employees. The company and the union entered into a collective bargaining agreement which by its terms was to continue from year to year unless terminated by either party on a specified notice. At a time when certain provisions of that agreement were being renegotiated a rival union, the Telephone Guild, filed a petition with the National Board asking that it certify the collective bargaining representative of these employees. Before the National Board acted, the Guild withdrew its petition and filed a petition with the Wisconsin Board seeking the same relief. The Wisconsin Board held a hearing and directed that separate elections be held among the employees in the plant, traffic, and office departments of the company to determine whether they desired to be grouped in a single unit or in departmental units and what representative, if any, they desired to elect. After the election the Wisconsin Board certified that the employees in the plant and traffic departments had elected to combine in a single bargaining unit and had chosen the Guild as their collective bargaining representative, and that the employees in the office department had elected to constitute themselves as a separate unit and had chosen not to have any collective bargaining representative. La CROSSE TEL. CORP. v. WIS. BOARD. 21 18 Opinion of the Court. Each appellant brought an action in the Wisconsin courts to have the certification set aside. The Circuit Court, relying on Bethlehem Steel Co. v. New York Labor Relations Board, 330 U. S. 767, held that the Wisconsin Board was without jurisdiction to issue the certification. The Supreme Court of Wisconsin reversed. 251 Wis. 583, 30 N. W. 2d 241. First. We are met at the outset with a contention that the certification of the Wisconsin Board which has been sustained by the Wisconsin Supreme Court is not a “final judgment” within the meaning of § 237 (a) of the Judicial Code, 28 U. S. C. § 344. The argument is that under Wisconsin law the certification is no more than a report on the results of an investigation made known to the parties for such use as they may desire, that nothing can be done by any state agency to enforce observance of the certification, that the company cannot be required to bargain with the certified union until and unless an unfair practice charge is lodged against it, and that in such proceeding all the issues involved in the certification proceeding can be relitigated. If that contention is correct, the case is of course not ripe for the intervention of the federal judicial power. See Rochester Telephone Corp. v. United States, 307 U. S. 125, 130-131 and cases cited. But it has not been shown that the Wisconsin law gives such slight force to the certification. The statute provides that the representative chosen by the employees shall be the exclusive one for purposes of collective bargaining. § 111.05 (1). Provision is made for the board to take a secret ballot of the employees and to certify the results thereof, whenever a question arises concerning the representation of employees in a collective bargaining unit. §111.05(3). And the statute contains, the following direction: “The board’s certification of the results of any election shall be conclusive as to the findings in- 22 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. eluded therein unless reviewed in the same manner as provided by subsection (8) of section 111.07 for review of orders of the board.”1 § 111.05 (3). The certification in these cases has been reviewed and sustained by the highest court of Wisconsin. While that certification is not irrevocable for all time,2 it fixes a status to which Wisconsin provides a sanction. For it is an unfair labor practice for an employer to refuse to bargain with the representative of a majority of the employees.3 § 111.06 (d). And since § 111.05 (3) makes the certification, subject to judicial review, “conclusive as to the findings included therein,” it would seem that the certification cannot be collaterally attacked in that proceeding or heard de novo. We are pointed to no Wisconsin authority to the effect that it can be. On this phase of the case we are, indeed, referred to only one Wisconsin authority and that is United R. & W. D. S. E. v. Wisconsin Board, 245 Wis. 636, 15 N. W. 2d 844. But that case merely held that an order of the Wisconsin Board that a referendum of employees by secret ballot be held to determine whether an “all union” agreement was desired was not reviewable. It did not 1 That review extends to administrative decisions affecting legal rights, duties, and privileges whether affirmative or negative in form, § 227.15, and is allowed any person aggrieved and directly affected by the administrative decision. § 227.16. 2 Section 111.05 (4) provides “The fact that one election has been held shall not prevent the holding of another election among the same group of employes, provided that it appears to the board that sufficient reason therefor exists.” 3 Section 111.06(d) also provides that where an employer files with the board a petition requesting a determination as to majority representation “he shall not be deemed to have refused to bargain until an election has been held and the result thereof has been certified to him by the board.” But we are pointed to no authority holding that where a certification has already been made, a recertification can be demanded. Section 111.05 (3), indeed, makes the certification “conclusive.” La CROSSE TEL. CORP. v. WIS. BOARD. 23 18 Opinion of the Court. deal with a certificate which was in fact reviewed and sustained by the same court as in the present cases. It is true that in the opinion below, the Wisconsin Supreme Court said that the “mere fact-finding procedure” of the Wisconsin Board in ascertaining the facts, in ordering an election, and in certifying the result “constitutes action in merely its ministerial capacity.” 251 Wis. at 592, 30 N. W. 2d at 245. But that comment was directed to the lack of discretion which the state statute had left the Wisconsin Board. It had no relevance to the effect of the certification under Wisconsin law. While the Wisconsin Employment Relations Board seems readier than some to reexamine the status of a bargaining representative on the ground that it has lost the support of a majority,4 it nevertheless appears to be Wisconsin law that a certification is binding upon an employer so long as it stands.5 We assumed in Allegheny Ludlum Steel Corp. v. Kelley, 330 U. S. 767, that the certification of a collective bargaining representative, sustained by the highest court of the state, was a final judgment, although it did not of itself command action but like the certification here was enforcible in law only by another proceeding.6 We think that is the correct view. The fact that Wisconsin’s certification was not in the form of a command 4 See § 111.05 (4), supra, note 2; Rydahl’s Launderers & Cleaners, Wis. E. R. B. Decision No. 677 (1944); UAW-CIO and Four Wheel Drive Auto Co., Wis. E. R. B. Decision No. 687 (1944); cf. AU A and Garton Toy Co., Wis. E. R. B. Decision No. 1238 (1947); Kill-ingsworth, State Labor Relations Acts 161-62 (1948). 5 See In re United Brotherhood of Carpenters & Joiners, 2 L. R. R. M. 894 (Wis. County Cir. Ct., 1938); In re Charles Abresch Co., 3 L. R. R. M. 639 (Wis. E. R. B. Decision No. 744, 1938); cf. Wisconsin Board v. Hall Garage Corp., 18 L. R. R. M. 2419 (Wis. County Cir. Ct., 1946). 6 In Allegheny Ludlum Steel Corp. v. Kelley, supra, suit had been brought in the state court for a declaratory judgment to restrain 24 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. is immaterial. See American Federation of Labor v. Labor Board, 308 U. S. 401, 408. It was not an abstract determination of status. Nor was it merely an interim adjudication in an uncompleted administrative process. It established legal rights and relationships. It told the employer, subject to judicial review, with whom he could not refuse to negotiate without risk of sanctions. The character of the certification was therefore such as to make it reviewable under the appropriate standards for exercise of the federal judicial power. Second. The Wisconsin Supreme Court concluded that the Wisconsin Board could exercise jurisdiction here until and unless the National Board undertook to determine the appropriate bargaining representative or unit of representation of these employees. That view was urged on us in the like cases coming here under a New York statute. In Bethlehem Steel Co. v. New York Labor Relations Board, supra, at 776, we rejected that argument, saying: “The State argues for a rule that would enable it to act until the federal board had acted in the same case. But we do not think that a case by case test of federal supremacy is permissible here.” the state labor board from determining a representative of plaintiff’s supervisory employees to bargain collectively with the plaintiff. Under New York law the labor board had authority to hold elections to determine employee representation and to certify the results. 30 McKinney’s Cons. Laws § 705. Certification in itself, as in the instant case, did not impose a legal penalty. Suit had to be brought in an unfair labor practice proceeding to accomplish such result. 30 Ibid. § 706. Refusal to bargain with the representative of the employees was an unfair labor practice. 30 Ibid. §704 (6). Even though the New York law did not state, as does the Wisconsin law, that certification by the board was conclusive, we considered a decision of the New York court approving the jurisdiction of the state board to conduct a representative proceeding a final judgment ripe for our consideration. La CROSSE TEL. CORP. v. WIS. BOARD. 25 18 Opinion of the Court. We went on to point out that the National Board had jurisdiction of the industry in which those particular employers were engaged and had asserted control of their labor relations in general. Both the state and the federal statutes had laid hold of the same relationship and had provided different standards for its regulation. Since the employers in question were subject to regulation by the National Board, we thought the situation too fraught with potential conflict to permit the intrusion of the state agency, even though the National Board had not acted in the particular cases before us. Those considerations control the present cases. This employer is concededly engaged in interstate commerce; and the industry is one over which the National Board has consistently exercised jurisdiction.7 The Wisconsin Act provides that a majority of employees in a single craft, division, department or plant of an employer may elect to constitute that group a separate bargaining unit. § 111.02 (6). The federal act leaves that matter to the discretion of the board.8 When under those circumstances the state board puts its imprimatur on a particular group as the collective bargaining agent of employees, it freezes into a pattern that which the federal act has left 7 See Elyria Telephone Co., 58 N. L. R. B. 402; Newark Telephone Co., 59 N. L. R. B. 1408; People’s Telephone Corp., 69 N. L. R. B. 540; Ohio Telephone Service Co., 72 N. L. R. B. 488. The appellant company operates a telephone business in La Crosse County, Wisconsin. It is a subsidiary of the Central Telephone Co., whose subsidiaries operate telephone businesses in many states. The concession that the company is engaged in interstate commerce is based on the interstate telephone calls which it handles. 8 “The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” 26 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. fluid.9 In practical effect the true measure of conflict between the state and federal scheme of regulation may not be found only in the collision between the formal orders that the two boards may issue. We know that administrative practice also disposes of cases in which no order has been entered. Disposition of controversies on an administrative as distinguished from a formal basis will often reflect the attitudes of the National Board which have not been reduced to orders in those specific cases. A certification by a state board under a different or conflicting theory of representation may therefore be as readily disruptive of the practice under the federal act as if the orders of the two boards made a head-on collision. These are the very real potentials of conflict which lead us to allow supremacy10 to the federal scheme even though it has not yet been applied in any formal way to this particular employer. The problem of employee representation is a sensitive and delicate one in industrial relations. The uncertainty as to which board is master and how long it will remain such can be as disruptive of peace between various industrial factions as actual competition between two boards for supremacy. We are satisfied with the wisdom of the policy underlying the Bethlehem case and adhere to it. The result we have reached is not changed by the Labor Management Relations Act of 1947, 61 Stat. 136, 29 9 Moreover, the Wisconsin Act excludes from the definition of employee those working in a supervisory capacity. § 111.02 (3). They were, however, included under the protection of the federal act as then written. Packard Motor Co. n. Labor Board, 330 U. S. 485. The definition of employee under the Wisconsin Act also excludes certain strikers and others who have not been at work for certain periods. § 111.02 (3). These latter exceptions likewise do not in the main square with the definition of employee contained in § 2 (3) of the federal act. 10 IT. S. Const. Art. VI. La CROSSE TEL. CORP. v. WIS. BOARD. 27 18 Opinion of the Court. U. S. C. Supp. I, §§ 141 et seq. That Act grants the National Board authority under specified conditions to cede its jurisdiction to a state agency.11 But it does not appear that there has been any cession of jurisdiction to Wisconsin by the National Board in representation proceedings.12 Reversed. Mr. Justice Rutledge, having joined in the dissent in Bethlehem Steel Co. v. New York Labor Relations Board, 330 U. S. 767, see p. 777, acquiesces in the Court’s opinion and judgment in this case. 11 Section 10 (a) of the National Labor Relations Act, as amended, now provides in part: “the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith.” 12 The agreement of August 27, 1948, between the National Board and the Wisconsin Board is restricted to the implementation of § 14 (b) of the federal act. See 22 L. R. R. 268. 28 OCTOBER TERM, 1948. Syllabus. 336 U. S. COMMISSIONER OF INTERNAL REVENUE v. JACOBSON. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Nos. 32 and 33. Argued November 8, 1948.—Decided January 17, 1949. In 1938, 1939 and 1940, an individual taxpayer, in straitened financial circumstances but solvent, purchased at less than their face amount certain secured negotiable bonds originally issued by him at face value for cash. Some of the purchases were directly from the bondholders, others were through agents of the taxpayer or of the bondholders. Although each seller knew that the bonds were being bought by or for the maker, there was nothing to indicate that any seller intended to transfer or release something for nothing or to make a gift of any part of his claim, as distinguished from making a sale and assignment of his whole claim for the highest available price. Held: Under §22 (a) of the Revenue Act of 1938 and of the Internal Revenue Code, the gain to the taxpayer from each purchase was includible in gross income for the year in which he made the purchase, and was not excludible as a “gift” under § 22 (b) (3) of that Act and Code. Pp. 29-52. 1. The taxpayer’s gains from such transactions must be included in his gross income under § 22 (a). Pp. 38-47. (a) On the facts of this case, the taxpayer realized an immediate financial gain from his purchase of these bonds at a discount. Pp. 38-41. (b) The amendments to § 22 (b) of the Internal Revenue Code by the Revenue Act of 1939, though relating to corporate taxpayers, are persuasive that a natural person is obliged to include in his gross income under § 22 (a) gains of the kind here involved. Pp. 41-47. 2. Gains of this type are not excluded from the taxpayer’s gross income by the general exemption of “gifts” from taxation prescribed by § 22 (b) (3). Pp. 47-52. (a) The provision of the Internal Revenue Code for the exclusion of “gifts” from gross income is to be construed with restraint in the light of the purpose of Congress to tax income comprehensively. Pp. 47-49. COMMISSIONER v. JACOBSON. 29 28 Opinion of the Court. (b) On the facts of this case, there is nothing to indicate that the bondholders intended to transfer or did transfer something for nothing. Pp. 50-51. (c) The decision in this case is not rested on the fact that the sale was made before maturity or that the seller may have received valid consideration for a total release of his claim because the debtor’s payment was made before maturity. P. 51. (d) Helvering v. American Dental Co., 318 U. S. 322, distinguished. P. 51. 3. The situation in each transaction is a factual one, turning upon whether the transaction is in fact a transfer of something for the best price available or is a transfer or release of only a part of a claim for cash and of the balance “for nothing.” Pp. 51-52. 164 F. 2d 594, reversed. From a decision of the Tax Court redetermining deficiencies in income tax of the respondent, 6 T. C. 1048, the Commissioner and the respondent both petitioned for review. The Court of Appeals decided against the Commissioner on both petitions. 164 F. 2d 594. This Court granted certiorari. 333 U. S. 866. Reversed, p. 52. Arnold Raum argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jack-son, Hilbert P. Zarky, Morton K. Rothschild and Philip Elman. Theodore R. Colborn argued the cause for respondent. With him on the brief were Wm. B. Cockley and Walter A. Marting. Mr. Justice Burton delivered the opinion of the Court. This decision applies the federal income tax to gains derived by a debtor from his purchase of his own obligations at a discount and his consequent control over their discharge. It presents the specific question whether a 30 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. solvent natural person, in straitened financial circumstances, must include in his gross income for federal income tax purposes the difference between (1) the face amount of his personal indebtedness as the maker of secured bonds, originally issued by him at face value for cash, and (2) a lesser amount paid by him for their purchase. The debtor’s obligations were not unpaid balances of purchase prices which could be readjusted by the discharge of the obligations. The proceeds of the obligations were not traced into identifiable losses offsetting the debtor’s realized gains from the discharge of these obligations. Each seller knew that the bonds he sold were being bought by or for the maker of them. In each sale the bondholder sought to minimize his probable loss by getting as much as possible, directly or indirectly, from the maker of the bonds as the one available purchaser of them. The maker of the bonds, at the same time, sought to reduce his obligations as much as possible by buying the bonds as cheaply as he could. While each seller thus knew that he was receiving from the maker of the bonds less than their face amount, there is no finding that any seller intended to transfer or release something for nothing or to make a gift of any part of his claim, as distinguished from making a sale and assignment of his whole claim for the highest available price. The maker thus realized a gain from each purchase and the Commissioner of Internal Revenue found correctly that, for federal income tax purposes, the maker must include that gain in his gross income for the tax year in which he made the purchase. The respondent, Lewis F. Jacobson, in 1938, 1939 and 1940 resided, practiced law and owned or controlled substantial property interests in Chicago, Illinois. In 1943 the petitioner, Commissioner of Internal Revenue, found deficiencies in the income taxes paid by the respondent for COMMISSIONER v. JACOBSON. 31 28 Opinion of the Court. each of those years. Those deficiencies totaled $3,967.97, of which about $2,500 are now before us. This case arose from the Commissioner’s addition to the reported gross income of the respondent of the differences between (1) the principal face amounts of certain leasehold bonds executed by the respondent and (2) the lesser amounts paid by him for their purchase. Such purchases were made by or for him substantially as follows: Date of purchase Purchased D—Direct B—Through broker C—Through bondholders’ committee Principal face amount Purchase price Percentage of face amount paid by purchasermaker-taxpayer 1938 Apr. 9, 1938 D $450.00 $202.50 45 lune 9,1938 D 3,600.00 1,620.00 45 Aug. 17,1938 D 900.00 405.00 45 1939 Feb. 15, 1939 B 1,800.00 900.00 50 lune 16, 1939 D 450.00 225.00 50 Oct. 23,1939 B 180.00 86.50 48 1940 Apr. 4,1940 C 270.00 130.00 48 May 21, 1940 c 450.00 210.00 47 May 23,1940 C 2,700.00 1,080.00 40 lune 19,1940 C 1,800.00 720.00 40 July 1,1940 B 450.00 200.00 45 July 3,1940 B 450.00 200.00 45 July 10,1940_ B 450.00 184.50 41 8ept. 23, 1940 B 450.00 185.00 41 Total $14,400.00 $6,348. 50 Upon the respondent’s petition, the Tax Court reviewed the Commissioner’s findings and— “Held that, as to the bonds acquired by petitioner [Jacobson, the respondent here] through direct negotiations with the bondholders, he is not taxable on the gain therefrom under the doctrine of Helvering v. American Dental Co., 318 U. S. 322; held, further, that petitioner is taxable on the gain realized 823978 0—49-7 32 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. in the purchases from bondholders through the secretary of the bondholders’ committee and the security dealers, under the doctrine of the Supreme Court in United States n. Kirby Lumber Co., 284 U. S. 1, he being at all times solvent.” 6 T. C. 1048. Six of the sixteen judges dissented and five of those six voted to uphold the Commissioner completely, on the ground that none of the transactions were gratuitous. 6 T. C. 1048, 1057-1059. The Commissioner petitioned the Court of Appeals for the Seventh Circuit to review that part of the judgment which was unfavorable to him. The respondent did the same as to the remainder of the judgment. That court decided against the Commissioner on both petitions. It held that, because the respective sellers knew that the bonds they sold were being bought by or for the respondent, as the maker of them, any excess of the face values of the bonds over their sales prices should be treated as gifts to the respondent and as exempt from income tax. 164 F. 2d 594. Due to the importance of the issues in the unsettled field of the taxability of gains derived by a debtor from his discharge of his own obligations at a discount, we granted certiorari in both cases. 333 U. S. 866. We have heard and decided them together. The further material facts, as found by the Tax Court or as shown by undisputed evidence, are as follows: By purchases made in 1922 and 1923 the respondent acquired a 99-year lease, running from May 1, 1914, together with a two-story store, office and apartment building on the leased premises in Chicago. On or about May 1, 1925, he borrowed $90,000 from a nearby bank and, together with his wife, executed in return 200 bonds secured by a trust deed mortgaging to that bank the leasehold and the improvements thereon. The bonds bore interest at 6^2 per cent per annum and were for COMMISSIONER v. JACOBSON. 33 28 Opinion of the Court. the total principal amount of $90,000, with $2,500 maturing semiannually up to and including November 1, 1931. The balance of the bonds, totalling $57,500, were to mature May 1, 1932. The original proceeds were used by the respondent to retire the existing encumbrance, of an undisclosed amount, on the property, pay for a $16,250 addition made by him to the building on the leasehold and pay the necessary brokerage commission of approximately 10 per cent of the loan, plus the cost of printing the bonds and other expenses in connection with the loan. A remaining “small surplus” was paid to the respondent. In 1925 the respondent, for the purposes of computing depreciation, allocated $76,580.56 to the improvements, including the new addition, and $40,000 to the leasehold, out of their total cost to him of $116,580.56. The bonds due on or before November 1, 1931, were paid at or about their maturities. The debtor has never been in default on any interest payment. However, after the trustee bank closed on June 8, 1931, a committee was formed to represent the holders of this issue of bonds. May 1, 1932, the respondent secured from the committee and individual bondholders a five-year extension of the maturity on all of the bonds and a reduction in the interest rate from 6^ to 5 per cent. During this extension the respondent issued his checks in the names of the respective bondholders to cover interest due them. The checks were delivered by the secretary of the bondholders’ committee, the respondent kept himself fully informed as to the identity and location of the respective bondholders and they, in turn, frequently visited him to learn about his financial condition and that of the trusteed property. In 1937 he procured a further extension of the maturity of the bonds to May 1, 1942, and, in that connection, paid 10 per cent on 34 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. the principal of each bond, leaving a total outstanding balance of $51,750 payable on these bonds. The Tax Court found that in 1938 the fair market value of the leasehold and the improvements thereon was $80,000 and that in 1939 and 1940 it was the same, less accrued depreciation. The respondent testified that he valued it at considerably less, even as low as twice the amount of its gross income, or about $32,000. The gross and net income from the trusteed property, after deduction of expenses, depreciation and also the interest on the bonds, was: Year Gross income Net income 1938................. $16,550.00 $1,233.95 1939.................. 16,520.75 1,107.11 1940.................. 15,578.50 1,719.41 The respondent received from his law practice and other sources the following additional gross income: 1938, $38,390.85; 1939, $35,644.78; and 1940, $35,279.59. The Tax Court said that: “On the strength of the showing of petitioner’s assets and liabilities, we find petitioner was solvent during each of the taxable years 1938, 1939, and 1940.” 6 T. C. at p. 1053. The Court of Appeals said: “The Tax Court found that the taxpayer was solvent during each of the taxable years 1938, 1939 and 1940, and we accept the finding, although a perusal of the record makes it quite apparent that he was in straitened financial circumstances.” 164 F. 2d at p. 596. In his petition to the Tax Court the respondent stated, and it has not been disputed, that the value of the leasehold and building had sharply depreciated since his acquisition of them. The neighborhood had changed, stores were vacant or paid less than half of their previous rents, from 1932 to 1938 the value of the property was substantially less than its cost to him, conditions were COMMISSIONER v. JACOBSON. 35 28 Opinion of the Court. getting worse and he felt certain that he would sustain a large loss in connection with the property.1 The Tax Court’s findings describe each bond sale that is material. Some were to the respondent personally and some to his law partner, acting on his behalf. The rest were made indirectly to the respondent through brokers or through the bondholders’ committee. The Tax Court said that each sale that was made through a broker or 1 In his petition to the Tax Court, the respondent, in describing the sale of bonds to him at a discount in 1939, said: “It was self interest and good business judgment exercised by all prudent persons to take cash settlements, when otherwise greater losses might be incurred. I have done that very thing myself, and have advised clients to do so in similar circumstances. Most real estate bonds in Chicago were selling from 5c to 25c on the dollar in 1932 to 1940.” In the instant case the respondent was found to have been solvent before, as well as after, his realization of the gains in question. The payment of the bonds purchased by him was secured by the mortgage of his leasehold property which property had a fair market value substantially in excess of the face amount of the bonds. The record fails to establish any sufficient basis for a claim that the respondent had suffered losses which, for tax purposes, offset his gains from his purchase of the bonds. Little of the $90,000 originally received by him for the bonds was used to purchase property. There is no finding or substantial evidence showing specifically how those funds were invested. Even if they are traced, in part, into the addition made to the building on the leasehold premises and into the discharge of the then existing encumbrance on those premises, the total so used is not shown and the shrinkage in the value of those investments is not clearly ascertained in the taxable years in question. The ratio of the loss in value of the leasehold property indicated by the Tax Court findings is about 32 per cent of its cost in 1925 but this loss is merely based upon estimates. The respondent claims a larger shrinkage but there is not a sufficient ascertainment of it to permit consideration of its use as an offset to the respondent’s gains in 1938, 1939 or 1940. See 2 Mertens, Law of Federal Income Taxation, § 11.20 and n. 99 (1942). 36 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. the committee was closely akin to an open market transaction. It made no finding that any seller intended to transfer or release something for nothing. It referred to all of the respondent’s acquisitions of bonds as purchases. Apparently the bonds were payable to bearer and the Tax Court referred to them as negotiable bonds. Each seller made a complete transfer to the respondent of all the seller’s rights to or under the bonds. Each seller thus determined the amount of his own loss on his investment. Each knew that the maker of the bond would acquire or secure control over it and would thus be enabled to reduce his liabilities by its face amount. Except for the 10 per cent paid on each bond in 1937, there is no evidence that any bondholder at any time received any partial payment on any bond or consented to a reduction of the indebtedness evidenced by the bond. There is no suggestion that any of the respondent’s payments made in 1938, 1939 or 1940 were made specifically in partial reduction of the respondent’s obligation as evidenced by a bond or that any bondholder specifically discharged him from any part of the balance of that obligation. On the other hand, it does appear that each of such payments was made in consideration of the transfer to the respondent of title to the entire bond. Each bond was delivered to the respondent evidencing his obligation for its full original face amount, less only the 10 per cent payment made, on account, in 1937. At the time of the trial, the respondent apparently still held the purchased bonds “intact.” The Court of Appeals repudiated any distinction made by the Tax Court for present purposes between the direct and indirect sales to the respondent. The Court of Appeals based its decision on each seller’s knowledge that he was transferring his bond to the maker of it. Thus far we agree. The Court of Appeals, however, without any finding of intent by the respective sellers to transfer or release something COMMISSIONER v. JACOBSON. 37 28 Opinion of the Court. for nothing, as distinguished from an intent to get the highest available price for their entire claims, treated the respondent’s gain from each purchase as exempt from the taxation imposed by § 22 (a) of the Revenue Act of 19382 and of the Internal Revenue Code, because that court felt itself obliged by precedent to classify each such gain as a “gift” under § 22 (b) (3) of that Act3 and Code. We hold, however, that those Sections do not, in the light of the decisions of this Court, permit that result. 2 “SEC. 22. GROSS INCOME. “(a) General Definition.—'Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. . . .” 52 Stat. 457. This was re-enacted as § 22 (a), I. R. C., 53 Stat. 9, and amended in a manner not material here in 53 Stat. 574-575, 26 U. S. C. (1940 ed.) § 22 (a). The Revenue Act of 1938 applied to the respondent’s income in 1938 and the Internal Revenue Code to that in 1939 and 1940. 3 “SEC. 22. GROSS INCOME. “(b) Exclusions from Gross Income.—The following items shall not be included in gross income and shall be exempt from taxation under this title: “(3) Gifts, bequests, and devises.—The value of property acquired by gift, bequest, devise, or inheritance (but the income from such property shall be included in gross income) 52 Stat. 458. This was re-enacted as § 22(b) (3), I. R. C., 53 Stat. 10, 26 U. S. C. (1940 ed.) §22 (b) (3), without material change. 38 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. The first test of the taxability of such gains relates to their inclusion within the gross income of the taxpayer under § 22 (a), without reference to the specific exclusions made from it by § 22 (b). The other test consists of the application to such gains of any of those specific exclusions. We hold that these gains come within § 22 (a) but not within any of the exclusions from gross income stated in § 22 (b). The respondent realized an immediate financial gain from his purchase of these bonds at a discount. By that acquisition he was enabled, at will, to cancel them and thus discharge himself from liability to pay them. While the record indicates that he held them “intact,” apparently without crediting released indebtedness on them or otherwise physically cancelling them in whole or in part (except for the 10 per cent payments made by him on each bond in 1937), his possession of them and control over them is not disputed and the petitioner has properly treated their acquisition as constituting a reduction of the respondent’s debts to the extent of their face amount. At the time of their purchase the respondent was unconditionally and primarily bound to pay their face amounts on May 1, 1942, with interest. Although in straitened financial circumstances he was solvent, both before and after his acquisition of the bonds, and the bonds apparently were collectible from him in full through appropriate enforcement proceedings. His acquisition, and consequent control over the discharge of these bonds, therefore, improved his net worth by the difference between their face amount and the price he paid for them. It also relieved him of the semiannual interest payments on them of 5 per cent per annum. His acquisition of them likewise reduced the face amount of the lien held by others upon his leasehold property. In the first instance he had received the full face amount in cash for these bonds so that his repurchase of them for 50 per COMMISSIONER v. JACOBSON. 39 28 Opinion of the Court. cent, or less, of that amount reflected a substantial benefit which he had derived from the use of that borrowed money.4 These were not purchase money bonds. The gains from their cancellation were not akin to reductions in balances due on the prices of previously acquired property. The respective sellers of the bonds bore no relation to the respondent other than that of creditors. The gains derived by the respondent through these purchases were comparable to those he would have realized if he had purchased, at the same discount, like bonds issued by a third party and had resold them at full face value or had turned them in at full value as a credit upon some other indebtedness of the respondent. His gains were comparable in their nature to those which he would have realized if a third party, pursuant to a contract, had paid off his indebtedness on these bonds for him to the extent of the discount at which he purchased them.5 The nature 4 See note 1, supra, showing the varied uses to which the respondent applied these proceeds and showing that it is not practicable in this case to determine his losses from his resulting investments, and much less to offset them against his gains now at issue. His tax benefits from those losses are thus postponed until some such occasion as the sale of the properties reflecting them makes it possible to ascertain the losses clearly. 5 Such discharges of a taxpayer’s debts by payments made for his benefit are realizable income to him. In Douglas v. Willcuts, 296 U. S. 1, 9, this Court said: “The question is one of statutory construction. We think that the definitions of gross income (Revenue Acts, 1926, §213; 1928, §22) are broad enough to cover income of that description. They are to be considered in the light of the evident intent of the Congress ‘to use its power to the full extent.’ Irwin v. Gavit, 268 U. S. 161; Helvering v. Stockholms Bank, 293 U. S. 84, 89. We have held that income was received by a taxpayer, when, pursuant to a contract, a debt or other obligation was discharged by another for his benefit. The transaction was regarded as being the same in substance as if the money had been paid to the taxpayer and he had transmitted it to his creditor. Old Colony Trust Co. v. Commissioner, 279 U. S. 716; United States v. Boston & Maine Railroad, 279 U. S. 732.” 40 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. of the gain derived by a debtor from his purchase of his own obligations at a discount is the same whether the debtor is a corporation or a natural person. That such a gain comes within the meaning of gross income as used in federal income tax laws was long ago recognized by the Treasury Department’s Regulations and by this Court in the leading cases in this field.6 United States n. Kirby Lumber Co., 284 U. S. 1; Helvering v. American Chicle Co., 291 U. S. 426. Similar provisions appeared in the Regulations in effect in 1938-1940.7 6“. . . By the Revenue Act of (November 23,) 1921, c. 136, §213 (a) gross income includes ‘gains or profits and income derived from any source whatever,’ and by the Treasury Regulations authorized by § 1303, that have been in force through repeated reenactments, ‘If the corporation purchases and retires any of such bonds at a price less than the issuing price or face value, the excess of the issuing price or face value over the purchase price is gain or income for the taxable year.’ Article 545 (1) (c) of Regulations 62, under Revenue Act of 1921. See Article 544 (1) (c) of Regulations 45, under Revenue Act of 1918; Article 545 (1) (c) of Regulations 65, under Revenue Act of 1924; Article 545 (1) (c) of Regulations 69, under Revenue Act of 1926; Article 68 (1) (c) of Regulations 74, under Revenue Act of 1928. We see no reason why the Regulations should not be accepted as a correct statement of the law. “. . . The defendant in error has realized within the year an accession to income, if we take words in their plain popular meaning, as they should be taken here.” United States v. Kirby Lumber Co., 284 U. S. 1, 2-3. 7 “Art. 22 (a)-14. Cancellation of indebtedness.—(a) In general.—The cancellation of indebtedness, in whole or in part, may result in the realization of income. If, for example, an individual performs services for a creditor, who in consideration thereof cancels the debt, income in the amount of the debt is realized by the debtor as compensation for his services. A taxpayer realizes income by the payment or purchase of his obligations at less than their face value. . . . “Art. 22 (a)-18. Sale and purchase by corporation of its bonds.—(1) (a) If bonds are issued by a corporation at their face COMMISSIONER v. JACOBSON. 41 28 Opinion of the Court. If § 22 (a) stood alone, without the exclusions stated in § 22 (b), the gain realized by the respondent in this case unquestionably would constitute gross income for income tax purposes. The provisions of § 22 (b) and the decisions of this Court do not change that result. On the contrary, they confirm it. A striking demonstration of the meaning given by Congress to § 22 (a) appears in its Amendments to § 22 (b) of the Internal Revenue Code by the Revenue Act of 1939, c. 247, 53 Stat. 862, approved June 29, 1939.8 These Amendments then applied only to taxable years beginning after December 31,1938, and only to discharges of indebtedness occurring on or after June 29, 1939. The value of these Amendments for the purposes of the instant case is not so much in the exclusions which value, the corporation realizes no gain or loss, (b) If the corporation purchases any of such bonds at a price in excess of the issuing price or face value, the excess of the purchase price over the issuing price or face value is a deductible expense for the taxable year, (c) If, however, the corporation purchases any of such bonds at a price less than the issuing price or face value, the excess of the issuing price or face value over the purchase price is gain or income for the taxable year.” Treasury Regulations 101, promulgated under the Revenue Act of 1938. In Treasury Regulations 103, promulgated under the Internal Revenue Code, §§ 19.22 (a)-14 and 19.22 (a)-18 were identical with the above. Even today they are the same in Treasury Regulations 111, promulgated under the Internal Revenue Code, as §§29.22 (a)-13 and 29.22 (a)-17. 8 These Amendments are contained in § 215 of the Internal Revenue Act of 1939, c. 247, 53 Stat. 862, 875-876, 26 U. S. C. (1940 ed.) §§ 22(b) (9), 113(b) (3). They added to the Internal Revenue Code § 22 (b) (9) and § 113 (b) (3), both relating to the discharge of indebtedness. A cross reference is made to the latter in the former. Such § 215, in its entirety, is as follows: “SEC. 215. DISCHARGE OF INDEBTEDNESS. “(a) Income From Discharge of Indebtedness.—Section 22 (b) of the Internal Revenue Code (relating to exclusions from gross 42 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. they prescribe, as in the clear light which their own limitations shed upon §§22 (a) and 22 (b) to the extent that those Sections remain unchanged. Unless those Sections as they stood in 1938 meant that the gains derived by a debtor corporation from its purchases of its own obligations at a discount resulted in gross income under § 22 (a), there was no need for these 1939 Amendments. Furthermore, as the status of income) is amended by adding at the end thereof the following new paragraph: “(9) Income from discharge of indebtedness.—In the case of a corporation, the amount of any income of the taxpayer attributable to the discharge, within the taxable year, of any indebtedness of the taxpayer or for which the taxpayer is liable evidenced by a security (as hereinafter in this paragraph defined) if— (A) it is established to the satisfaction of the Commissioner, or (B) it is certified to the Commissioner by any Federal agency authorized to make loans on behalf of the United States to such corporation or by any Federal agency authorized to exercise regulatory power over such corporation, that at the time of such discharge the taxpayer was in an unsound financial condition, and if the taxpayer makes and files at the time of filing the return, in such manner as the Commissioner, with the approval of the Secretary, by regulations prescribes, its consent to the regulations prescribed under section 113 (b) (3) then in effect. In such case the amount of any income of the taxpayer attributable to any unamortized premium (computed as of the first day of the taxable year in which such discharge occurred) with respect to such indebtedness shall not be included in gross income and the amount of the deduction attributable to any unamortized discount (computed as of the first day of the taxable year in which such discharge occurred) with respect to such indebtedness shall not be allowed as a deduction. As used in this paragraph the term ‘security’ means any bond, debenture, note, or certificate, or other evidence of indebtedness, issued by any corporation, in existence on June 1, 1939. This paragraph shall not apply to any discharge occur- COMMISSIONER v. JACOBSON. 43 28 Opinion of the Court. natural persons and corporations is not differentiated in § 22 (a), the new Amendments make it equally clear that, inasmuch as they relieve only certain corporations from the taxability of gains derived from their purchases of their own obligations at a discount, it must be that similar gains derived by natural persons also remain taxable under §22 (a). The strength of this reflection of the ring before the date of the enactment of the Revenue Act of 1939, or in a taxable year beginning after December 31, 1942. “(b) Basis Reduced.—Section 113 (b) of the Internal Revenue Code (relating to the adjusted basis of property) is amended by adding at the end thereof the following new paragraph: “(3) Discharge of indebtedness.—Where in the case of a corporation any amount is excluded from gross income under section 22 (b) (9) on account of the discharge of indebtedness the whole or a part of the amount so excluded from gross income shall be applied in reduction of the basis of any property held (whether before or after the time of the discharge) by the taxpayer during any portion of the taxable year in which such discharge occurred. The amount to be so applied (not in excess of the amount so excluded from gross income, reduced by the amount of any deduction disallowed under section 22 (b) (9)) and the particular properties to which the reduction shall be allocated, shall be determined under regulations (prescribed by the Commissioner with the approval of the Secretary) in effect at the time of the filing of the consent by the taxpayer referred to in section 22 (b) (9). The reduction shall be made as of the first day of the taxable year in which the discharge occurred except in the case of property not held by the taxpayer on such first day, in which case it shall take effect as of the time the holding of the taxpayer began. “(c) Taxable Years to Which Applicable.—The amendments made by this section shall be applicable to taxable years beginning after December 31,1938.” 53 Stat. 87fi-876. See also, Treasury Regulations 103, promulgated under the Internal Revenue Code: § 19.22 (b) (9)-l, Income from discharge of indebtedness; § 19.22 (b) (9)-2, Making and filing of consent; § 19.113 (b) (3)-l, Adjusted basis: Discharge of corporate indebtedness: General rule; § 19.113 (b) (3)-2, Adjusted basis: Discharge of corporate indebtedness: Special cases. 44 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. Amendments upon the unamended Sections is emphasized by their temporary character. The Amendments expressly provide that they shall not apply to a taxable year beginning after December 31, 1942. This indicates that, for its permanent program, Congress regarded such gains as properly taxable and it indicates that the Amendments were intended to authorize temporary changes in policy and were not clarifications of existing or continuing tax policies. While the time limit originally prescribed has been subsequently extended, the extensions have been made by separate Acts, each for a period of one to three years.9 This repeated emphasis upon their temporary character increases the contrast which they make with the permanent policy of Congress as to the general taxability of this kind of gains under § 22 (a). These Amendments describe gains corresponding almost precisely with those derived by the respondent from his transactions in the instant case but the Amendments apply only to corporate gains. They thus indicate that such gains were recognized as not having been excluded from gross income by § 22 (b) (3) or by any other Section. If they had been so excluded there would have been no need for the new Amendments to exclude those which they did, even temporarily. Furthermore, those gains are not excluded from gross income for all purposes of the income tax laws. Section 22 (b) (9) excludes them only from the ordinary income taxes for the taxable year in which the taxpaying corporation purchases its own securities at a discount.10 Furthermore, the exclusion under 9 While § 22 (b) (9) originally did not apply to any discharge occurring in a taxable year beginning after December 31, 1942, 53 Stat. 875, this date was changed to December 31, 1945, 56 Stat. 811; December 31, 1946, 59 Stat. 574; December 31, 1947, 60 Stat. 749; and December 31, 1949, 61 Stat. 179. 10 The exclusions made by § 22 (b) apply to the taxes imposed by the Income Tax Chapter of the Internal Revenue Code. These COMMISSIONER v. JACOBSON. 45 28 Opinion of the Court. § 22 (b) (9), as distinguished from other exclusions under § 22 (b), is available only upon the express condition that the taxpayer makes and files at the time of filing the return its consent to the Regulations11 prescribed under § 113 (b) (3)12 then in effect. That Section and such Regulations require that, where any amount is excluded by a corporation from its gross income under §22(b)(9) on account of its discharge of its own indebtedness, the whole or a part of such amount shall be applied to the reduction of the basis of property held by the taxpayer during any portion of the taxable year in which such discharge occurs. The amount to be so applied and the properties to which the reduction shall be allocated are to be determined by Regulations approved by the Secretary of the Treasury. This means that such a gain, include the ordinary income taxes but not the additional income taxes such as those imposed on personal holding companies or the excess-profits taxes. 11 Treasury Regulations 103, supra, §§ 19.113 (b) (3)-l and 2 cover the subject. They provide a comprehensive procedure for decreasing the cost or other basis of a taxpaying corporation’s properties as a condition of its taking advantage of §22(b) (9). This procedure applies not only in “the case of indebtedness incurred to purchase specific property” but also in “the case of specific property (other than inventory or notes or accounts receivable) against which, at the time of the discharge of the indebtedness, there is a lien (other than a lien securing indebtedness incurred to purchase such property) . . . .” It even provides that if any excess of amount excluded from gross income under § 22 (b) (9) exceeds those two adjustments, the cost or other basis of all the property of the debtor other than inventory and notes and accounts receivable shall be reduced proportionately and, finally, the balance, if any, of the amount excluded from the debtor’s gross income is applied to the reduction of the cost or other basis of the debtor’s inventory or notes or accounts receivable. It thus offers affirmatively a broad alternative plan for reaching the corporate debtor’s gains from its discharge of its indebtedness at a discount. 12 See note 8, supra. 46 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. instead of being completely excluded as exempt from taxation, is postponed, for income tax purposes, until a later date when the property is disposed of in a way which will permit another form of ascertainment of the taxpayer’s gain or loss in its disposition.13 These provisions therefore demonstrate that Congress, at least since 1939, has prescribed that, in order for a corporate taxpayer to exclude from its gross income under § 22 (a) certain gains attributable to the discharge within the taxable year of the taxpayer’s indebtedness evidenced by bonds, the taxpayer must consent to the subsequent use of those gains in reducing the basis of property held by the taxpayer during any portion of the taxable year in which such discharge occurred. A corporate taxpayer with gains meeting these specifications but not filing the required consent would be obliged to include those gains in its gross income, unless additional facts brought them 13 Subsequent Amendments have altered these provisions but have not changed their general effect nor their reflection upon the meaning of §22 (a). For the extension of the temporary nature of the provisions, see note 9, supra. The requirement of a specially certified “unsound financial condition” for a corporate taxpayer in order to make § 22 (b) (9) applicable was eliminated by the Revenue Act of 1942. That Act also eliminated the limitation to securities in existence on June 1,1939. 56 Stat. 811. In making these temporary provisions Congress had in mind especially the conditions presented by railroads and other corporations then seeking to liquidate heavy indebtedness. The Committees reporting the bills for passage emphasized the limitations that were imposed by these Amendments upon corporations seeking to exclude from taxable income the gains derived from their acquisition of their own securities at a discount. H. R. Rep. No. 855, 76th Cong., 1st Sess. 5, 23-25 (1939); Sen. Rep. No. 648, 76th Cong., 1st Sess. 2-3, 5 (1939). Obviously it was expected that these provisions would decrease the existing burdens of income taxation. It certainly was not intended to impose a burden of postponed taxability upon gains which otherwise would have been completely exempted from taxation by §22 (b) (3). COMMISSIONER v. JACOBSON. 47 28 Opinion of the Court. under some other exemption. A fortiori, a natural person, such as the respondent in the instant case, who has derived gains precisely within these specifications but who, as a natural person, is ineligible to file the required consent is obliged to include those gains in his gross income under §22 (a). It remains, therefore, to consider whether there are facts in this case which bring this respondent’s transactions within any exclusion other than that stated in § 22 (b) (9).14 The only provision for the exclusion of these types of gains from the respondent’s gross income that is presented for our consideration is the general exemption of 14 Several provisions have extended comparable relief to other taxpayers. None of them apply to the respondent. They emphasize, however, the understanding of Congress that, without special provision for their exclusion, the gains of a taxpayer from the discharge of his indebtedness at a discount are required by § 22 (a) to be included in his gross income. They recognize that the mere exclusion of “gifts” under § 22 (b) (3) is not enough to cover factual situations like those presented in § 22 (b) (9) or in the other relief provisions above mentioned. Among these relief provisions are the following: Exclusion, from excess profits credit, of income derived from the retirement or discharge by the taxpayer of the taxpayer’s own obligations if they have been outstanding more than 18 months. Internal Revenue Code, §§711 (a) (1) (C), 711 (a) (2) (E), and §711 (b) (1) (C) added by the Second Revenue Act of 1940, c. 757, 54 Stat. 976-978, repealed by the Revenue Act of 1945, c. 453, 59 Stat. 568. Exclusion, from gross income, for income tax purposes, of the income of railroad corporations attributable to their discharge of their indebtedness to the extent realized from a modification or cancellation of indebtedness, pursuant to an order of court. Internal Revenue Code, §22 (b) (10), added by the Revenue Act of 1942, c. 619, 56 Stat. 812, applicable to taxable years beginning after December 31, 1939, but not applicable to any discharge in a taxable year beginning after December 31, 1945; this latter date extended to December 31, 1946, 59 Stat. 574; December 31, 1947, 60 Stat. 749; and December 31,1949,61 Stat. 179. 823978 0—49-----8 48 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. gifts from taxation prescribed by § 22 (b) (3).15 This was applied by this Court in favor of a taxpayer in Helvering n. American Dental Co., 318 U. S. 322, as well as by the court below in the instant case. Both the general provision for taxation of income and this provision for the exclusion of gifts from gross income, for income tax purposes, have been in the Federal Income Tax Acts in substantially their present form since the Revenue Act of 1916.16 The contrast between the provi- 15 See note 3, supra. 16 “Sec. 2. (a) That, subject only to such exemptions and deductions as are hereinafter allowed, the net income of a taxable person shall include gains, profits, and income derived from salaries, wages, or compensation for personal service of whatever kind and in whatever form paid, or from professions, vocations, businesses, trade, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in real or personal property, also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever: . . . . “Sec. 4. The following income shall be exempt from the provisions of this title [Title I.—Income Tax]: “The proceeds of life insurance policies paid to individual beneficiaries upon the death of the insured; the amount received by the insured, as a return of premium or premiums paid by him under life insurance, endowment, or annuity contracts, either during the term or at the maturity of the term mentioned in the contract or upon the surrender of the contract; the value of property acquired by gift, bequest, devise, or descent (but the income from such property shall be included as income); interest upon the obligations of a State or any political subdivision thereof or upon the obligations of the United States or its possessions or securities issued under the provisions of the Federal farm loan Act of July seventeenth, nineteen hundred and sixteen; the compensation of the present President of the United States during the term for which he has been elected, and the judges of the Supreme and inferior courts of the United States now in office, and the compensation of all officers and employees of a State, or any political subdivision thereof, except when COMMISSIONER v. JACOBSON. 49 28 Opinion of the Court. sions is striking. The income taxed is described in sweeping terms and should be broadly construed in accordance with an obvious purpose to tax income comprehensively. The exemptions, on the other hand, are specifically stated and should be construed with restraint in the light of the same policy. Congress could have excluded from the gross income of all taxpayers the gains derived by debtors either from their acquisitions of their own obligations at a discount and their consequent control over them, or from their respective releases from all or part of such obligations by their respective creditors upon the debtor’s payment to the creditor of something less than the full amount of the debt. Congress, especially since the Revenue Act of 1938, has been cognizant of this issue and of its power to meet it as stated, but it has chosen to extend such relief only on the above described restricted and temporary basis and only in the case of corporations. In its treatment of the issue Congress also has required the corporate taxpayer’s consent to an alternative plan for a reduction of the corporation’s basis of property values to be used in later determinations of its gains or losses. This special treatment is far different from the total exclusion of a gain resulting from an exempt gift. If such gains were already exempted as gifts under § 22 (b) (3), as representing something transferred to the debtor for nothing, there would have been no need for § 22 (b) (9). The conclusion to be drawn is that such transfers as are described in§22(b)(9) could not, without more, qualify as exempt gifts under § 22 (b) (3). The same may be said of the acquisition, by a natural person, of his own obligations as debtor. The facts in the instant case pre- such compensation is paid by the United States Government.” (Italics supplied.) Revenue Act of 1916, c. 463, 39 Stat. 756, 757, 758-759. See also, An Act To reduce tariff duties and to provide revenue for the Government, and for other purposes. (October 3, 1913.) 38 Stat. 114,167, § II B. 50 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. sent a situation quite similar to one contemplated by § 22 (b) (9) except that the taxpayer here is a natural person. This emphasizes the taxability of the gains before us. In the instant case the relation between the bondholder and the respondent may be assumed in each transaction to have been one in which the ultimate parties were known to each other to be such. There was no suggestion in the evidence or the findings that any bondholder was acting from any interest other than his own. Each transaction was a sale. The seller sought to get as high a price as he could for the bond and the buyer sought to pay as low a price as he could for the same bond. If the transaction had been completely on the open market through a stock exchange, the conduct and intent of each party could have been the same and there would have been little, if any, basis for any claim that the respondent’s gain was not taxable income. The mere fact that the seller knew that he was selling to the maker of the bond as his only available market did not change the sale into a gift. In the absence of proof to the contrary, the intent of the seller may be assumed to have been to get all he could for his entire claim. Although the sales price was less than the face of the bond and less than the original issuing price of the bond, there was nothing to indicate that the seller was not getting all that he could for all that he had. There is nothing in the evidence or findings to indicate that he intended to transfer or did transfer something for nothing. The form of the transaction emphasized this relationship. The seller assigned the entire bond to his purchaser. The seller did not first release the maker from a part of the maker’s obligation and, having made the maker a gift of that release, then sell him the balance of the bond or vice versa. If the seller actually had intended to give the maker some gift the natural reflection of that gift would have been a credit on the face of the bond or at least some record or COMMISSIONER v. JACOBSON. 51 28 Opinion of the Court. testimony evidencing the release. This is not saying that the form of the transaction is conclusive. Assuming that the extension of the maturity of the bonds in the instant case was binding on the creditor, we do not rest this case upon the fact that the sale was made before maturity or that the seller may have received valid consideration for a total release of his claim because the debtor’s payment was made before maturity. It is quite possible that a bondholder might make a gift of an entire bond to anyone, including the maker of it. The facts and findings in this case do not establish any such intent of the seller to make a gift in contradiction of the natural implications arising from the sales and assignments which he made. It is conceivable, although hardly likely, that a bondholder, in the ordinary course of business and without any express release of his debtor, might have sold part of his claims on the bonds he held at the full face value of those parts and then have made a gift of the rest of his claims on those bonds to the same debtor “for nothing.” It is that kind of extraordinary transaction that the respondent asks us, as a matter of law, to read into the simple sales which actually took place and from which he derived financial gains. We are unable to do so on the findings before us. Cf. Bogardus v. Commissioner, 302 U. S. 34. The situation in each transaction is a factual one. It turns upon whether the transaction is in fact a transfer of something for the best price available or is a transfer or release of only a part of a claim for cash and of the balance “for nothing.” The latter situation is more likely to arise in connection with a release of an open account for rent or for interest, as was found to have occurred in Helvering v. American Dental Co., supra, than in the sale of outstanding securities, either of a corporation as described in § 22 (b) (9), or of a natural person as presented in this case. For these reasons we hold that the Commissioner was 52 OCTOBER TERM, 1948. Reed, J., dissenting. 336 U.S. justified in finding a taxable gain, rather than an exempt gift, in each of the transactions before us. The judgment of the Court of Appeals accordingly is reversed and the cause is remanded for further action in accordance with this opinion. It is so ordered. Mr. Justice Rutledge, although joining in the Court’s judgment and opinion, is of the view that the result is essentially in conflict with that reached in Helvering n. American Dental Co., 318 U. S. 322. Mr. Justice Reed, with whom Mr. Justice Douglas joins, dissenting. As detailed in Helvering v. American Dental Company, 318 U. S. 322, the problems of the tax results to the debtor of the release of indebtedness have been difficult. That opinion shows that both Congress and Internal Revenue Regulations have taken varying views as to whether a taxpayer should pay an income tax on such balance sheet improvements.1 We held in the American Dental case in 1943 that the “receipt of financial advantages gratuitously” was a gift under Int. Rev. Code § 22. Congress has made no change in the law since that time, nor has it been requested to do so. For the reasons discussed at length in that case, we are of the opinion that the judgment of the Court of Appeals should be affirmed. 1 Helvering v. American Dental Co., supra, p. 326, note 5; p. 328, note 9, particularly tax free railroad adjustments under c. XV, § 735, 53 Stat. 1140. WILKERSON v. McCARTHY. 53 Syllabus. WILKERSON v. McCARTHY et al, TRUSTEES. CERTIORARI TO THE SUPREME COURT OF UTAH. No. 53. Argued December 6, 1948.—Decided January 31, 1949. 1. In this action under the Federal Employers’ Liability Act, there was evidence (detailed in the opinion) which would support a jury finding of negligence on the part of the defendants, and it was error for the trial court to direct a verdict against the plaintiff. Pp. 54r-61, 63-64. 2. In determining whether there is sufficient evidence to submit an issue of negligence to the jury, it is necessary to look only to the evidence and reasonable inferences therefrom which tend to support the case of the litigant against whom a peremptory instruction has been given. P. 57. 3. Under the Federal Employers’ Liability Act, contributory negligence of the plaintiff does not bar recovery for an injury which was “in part” the result of the defendant’s negligence, but the damages in such case “shall be diminished by the jury in proportion to the amount of negligence attributable” to the plaintiff. P. 61. 4. The Federal Employers’ Liability Act does not make the railroad an absolute insurer of the safety of its employees, but imposes liability only for negligence. P. 61. 5. The issue of negligence under the Act is to be determined by the jury according to whether an employer’s conduct measures up to what a reasonable and prudent person would have done under the same circumstances. P. 61. 6. The employer is liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances, having in mind that the standard of care must be commensurate to the dangers of the business. P. 61. 7. The assumption that, where the issue of negligence under the Act is left to the jury, railroads practically are made insurers of the safety of their employees, is inadmissible, since courts should not assume that, in determining these questions of negligence, juries will fall short of a fair performance of their constitutional function. Pp. 61-63. — Utah —, 187 P. 2d 188, reversed. 54 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. In an action brought by petitioner under the Federal Employers’ Liability Act, to recover damages for personal injuries, the trial court directed a verdict for the defendants. The State Supreme Court affirmed. Utah—, 187 P. 2d 188. This Court granted certiorari. 335 U. S. 807. Reversed, p. 64. Parnell Black argued the cause for petitioner. With him on the brief were Calvin W. Rawlings and Harold E. Wallace. Dennis McCarthy argued the cause for respondents. With him on the brief was Waldemar Q. Van Cott. Mr. Justice Black delivered the opinion of the Court. The petitioner, a railroad switchman, was injured while performing duties as an employee of respondents in their railroad coach yard at Denver, Colorado. He brought this action for damages under the Federal Employers’ Liability A-ct.1 The complaint alleged that in the performance of his duties in the railroad yard it became necessary for him to walk over a wheel-pit on a narrow boardway, and that due to negligence of respondents, petitioner fell into the pit and suffered grievous personal injuries. The complaint further alleged that respondents had failed to furnish him a safe place to work in several detailed particulars, namely, that the pit boardway (1) was not firmly set, (2) was not securely attached, and (3) although only about 20 inches wide, the boardway had been permitted to become greasy, oily, and slippery, thereby causing petitioner to lose his balance, slip, and fall into the pit. 135 Stat. 65 as amended by 36 Stat. 291 and 53 Stat. 1404, 45 U. S. C. §§ 51-59. WILKERSON v. McCARTHY. 55 53 Opinion of the Court. The respondents in their answer to this complaint admitted the existence of the pit and petitioner’s injuries as a result of falling into it. They denied, however, that the injury resulted from the railroad’s negligence, charging that plaintiff’s own negligence was the sole proximate cause of his injuries. On motion of the railroad the trial judge directed the jury to return a verdict in its favor. The Supreme Court of Utah affirmed, one judge dissenting. ----Utah------, 187 P. 2d 188. The opinion of the Utah Supreme Court strongly indicated, as the dissenting judge pointed out, that its finding of an absence of negligence on the part of the railroad rested on that court’s independent resolution of conflicting testimony. This Court has previously held in many cases that where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on those issues. See, e. g., Lavender n. Kurn, 327 U. S. 645, 652-653; Bailey v. Central Vermont R. Co., 319 U. S. 350, 354; Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54,68; and see Brady v. Southern R. Co., 320 U. S. 476, 479. It was because of the importance of preserving for litigants in FELA cases their right to a jury trial that we granted certiorari in this case. The evidence showed the following facts without dispute: Petitioner fell into the pit July 26, 1945. The pit, constructed in 1942, ran approximately 40 feet east and west underneath three or more parallel tracks which crossed the pit from north to south. The pit was 11 feet deep and 4 feet 2y2 inches wide with cement walls and floor. Car wheels in need of repair were brought to the pit, lowered into it, there repaired, and then lifted from the pit for return to use. When not in use the pit was kept solidly covered with heavy boards. These 56 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. boards were used as a walkway by all employees. When the pit was in use the cover boards were removed except one 75 pound “permanent board” 22 inches wide and 4 feet 2^ inches long. While the solid covering was off, this “permanent board,” built to fit snugly and firmly, was unquestionably used as a walkway by all employees up to about May 1, 1945. On this latter date, the railroad put up “safety chains” fastened to guard posts, inclosing 16^ feet of the pit, on its north, south and west sides. The posts, 42 inches high, fitted into tubes imbedded in the ground, the tubes being larger than the posts—enough larger to allow the posts to work freely. The chains, attached 2 inches from the top of the posts, were to be kept up while the pit was in use and taken down when the pit was not in use. They were up when plaintiff slipped from the “permanent board” into the pit. At that time a tourist car was standing over the pit on track “23^.” This track “23^” was east of the two east chain posts, its west rail being about 36 inches, and the tourist car overhang about 7 inches from the two east chain supporting posts.2 The floor of the “overhang” was about 51 inches above the ground, or 9 inches above the top of the posts, thus allowing an unobstructed clearance of 51 inches under the overhang. The “permanent board” was inside the chain enclosure, the board’s east side being about 9^ inches from the two eastern chain posts. Despite the proximity of the tourist car to the posts there was sufficient space east of each chain post so that pit workers had access to and used the board as a walkway. One of the 2 There was evidence that other types of cars had a wider overhang thereby reducing the space available for passage between the posts and the car. This evidence bore directly on the fact question as to the practice of employees generally in using the boardway as petitioner did here. WILKERSON v. MCCARTHY. 57 53 Opinion of the Court. defendant’s witnesses, a very large man weighing 250 pounds, passed through it, though according to his testimony, with “very bad discomfort.” Petitioner was a much smaller man, weighing 145 pounds, and it was by passing between one of these posts and the tourist car that petitioner reached the “permanent board” which bridged the pit. Oil from wheels would sometimes accumulate at the bottom of the pit, and as stated by the Utah Supreme Court the “permanent board” was “almost certain to become greasy or oily” from use by the pit-men. Neither before nor after the chains were put up had the railroad ever forbidden pit workers or any other workers to walk across the pit on the “permanent board.” Neither written rules nor spoken instructions had forbidden any employees to use the board. And witnesses for both sides testified that pit workers were supposed to, and did, continue to use the board as a walkway after the chains and posts were installed. The Utah Supreme Court nevertheless held that erection of the chain and post enclosure was itself the equivalent of company orders that no employees other than pit workers should walk across the permanent board when the chains were up. And the Utah Supreme Court also concluded that there was insufficient evidence to authorize a jury finding that employees generally, as well as pit workers, had continued their long-standing and open practice of crossing the pit on the permanent board between the time the chains were put up and the time petitioner was injured. It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given. Viewing the evidence here in that way it was sufficient to show the following: 58 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. Switchmen and other employees, just as pit workers, continued to use the permanent board to walk across the pit after the chains were put up as they had used it before. Petitioner3 and another wit- 3 Petitioner testified in part as follows: “Q. Mr. Wilkerson, I will ask you to state whether or not you have ever observed other switchmen or workmen working in the yards there in passing over that pit while cars were standing on 23% since the safety chains were up ? “A. Yes, sir, I have. “Q. What has that practice been, the practice of crossing over the pit ? “A. Men that work around there, regardless of whether switchmen or car men that wanted to go that way went through there. “Q. Went through—you mean over the pit? “A. Over that pit, as I just described, from either side. “Q. I will ask you to state whether or not you observed any practice with reference to crossing over the pit when men were working on the cars there in the daytime before these chains were installed ? “A. Walked right straight across the board. “Q. Was there a board usually there to walk over? “A. Yes, sir. “Q. Was there any change in that practice after the chains were installed ? “A. None, only they had to walk around the chains. “Q. What did you observe with reference to the number of times the occasions when men would cross over the pit. “A. Oh, I couldn’t say; I suppose maybe a hundred times; varies, men, both switchmen and car men or others working there in the yard necessary, pullman, employees and so forth. “Q. Crossed over the pit ? “A. Yes, sir, it was a common practice for everybody to use that that way. “Q. Did you ever see—did you ever notice the board ever being used for any other purpose except men walking across ? “A. No, sir, I haven’t. “Q. Ask you to state whether or not you experience any difficulty WILKERSON v. McCARTHY. 59 53 Opinion of the Court. ness4 employed on work around the pit, testified positively that such practice continued. It is true that witnesses for the respondents testified that after the chains were put up, only the car men in removing and in passing between the car and the post and onto the board and over the board and between the car and the north post at the time you passed it, the first time in the morning ? “A. No.” 4 Another witness testified in part as follows f “Q. And what have you noticed with reference to the practice of men passing between the standing cars on 23^ and the posts that hold the safety chains? “A. Well, they would walk through and get on the board and walk to and from each side, and the men that work on the pit work on that board, and sometimes set on the board next to the— in next to the car there to perform their work, you know, like where they are up under, or working on the car, they use the board over from it to work on. “Q. What has been your practice in passing between cars that are standing on 23^ and the posts that hold the stakes and chains when they have been in place ? “A. When I have occasion to pass through there, I put my hand on the post, step over on the board, and go around the other post, and that is the way I pass to and from on the pit. “Q. Have you observed other men passing over the pit under similar circumstances ? “A. Yes, sir, I have. “Q. And what can you say with reference to the—such occurrences, as to how often they happen? “A. 0, I would judge that I saw the men pass through there dozens of times. . . . “Q. Have you seen any other switchman working there in the yards act similarly; that is, go around the post, between the post and the car and pass over the board ? “A. Yes, sir, I have saw my helpers at different times and before the chains were placed, we used the board at all times, you know, just to cross the pit. I have walked across the pit a number of times that way, and also my helpers.” This witness later gave the names of two switchmen he had seen 60 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. applying wheels used the board “to walk from one side of the pit to the other . . . .” Thus the conflict as to continued use of the board as a walkway after erection of the chains was whether the pit workers alone continued to use it as a walkway, or whether employees generally so used it. While this left only a very narrow conflict in the evidence, it was for the jury, not the court, to resolve the conflict. It was only as a result of its inappropriate resolution of this conflicting evidence that the State Supreme Court affirmed the action of the trial court in directing the verdict. Following its determination of fact, the Utah Supreme Court acted on the assumption that the respondents “had no knowledge, actual or constructive, that switchmen were using the plank to carry out their tasks,” and the railroad had “no reason to suspect” that employees generally would so use the walkway. From this, the Court went on to say that respondents “were only required to keep the board safe for the purposes of the pit crewmen . . . and not for all the employees in the yard.” But the court emphasized that under different facts, maintenance of “a 22-inch board for a walkway, which is almost certain to become greasy or oily, constitutes negligence.” And under the evidence in this case as to the board, grease and oil, the court added: “It must be conceded that if defendants knew or were charged with knowledge that switchmen and other workmen generally in the yard were habitually using the plank as a walkway in the manner claimed by plaintiff, then the safety enclosure might be entirely inadequate, and a jury question would have been presented on the condition of the board and the adequacy of the enclosure.” cross after chains were put up, but he did not thereby qualify his testimony previously given as to the practice of employees generally to use the walkway. WILKERSON v. McCARTHY. 61 53 Opinion of the Court. We agree with this last quoted statement of the Utah court, and since there was evidence to support a jury finding that employees generally had habitually used the board as a walkway, it was error for the trial judge to direct a verdict in favor of respondents. There was, as the state court pointed out, evidence to show that petitioner could have taken a slightly longer route and walked around the pit, thus avoiding the use of the board. This fact, however, under the terms of the Federal Employers’ Liability Act, would not completely immunize the respondents from liability if the injury was “in part” the result of respondents’ negligence. For while petitioner’s failure to use a safer method of crossing might be found by the jury to be contributory negligence, the Act provides that “contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee . . . Much of respondents’ argument here is devoted to the proposition that the Federal Act does not make the railroad an absolute insurer against personal injury damages suffered by its employees. That proposition is correct, since the Act imposes liability only for negligent injuries. Cf. Coray v. Southern Pac. Co., 335 U. S. 520. But the issue of negligence is one for juries to determine according to their finding of whether an employer’s conduct measures up to what a reasonable and prudent person would have done under the same circumstances. And a jury should hold a master “liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances,” bearing in mind that “the standard of care must be commensurate to the dangers of the business.” Tiller v. Atlantic C. L. R. Co., 318 U. S. 54, 67. There are some who think that recent decisions of this Court which have required submission of negligence ques- 62 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. tions to a jury make, “for all practical purposes, a railroad an insurer of its employees.” See individual opinion of Judge Major, Griswold v. Gardner, 155 F. 2d 333, 334. But see Judge Kerner’s dissent from this view at p. 337 and Judge Lindley’s dissenting opinion, pp. 337-338. This assumption, that railroads are made insurers where the issue of negligence is left to the jury, is inadmissible. It rests on another assumption, this one unarticulated, that juries will invariably decide negligence questions against railroads. This is contrary to fact, as shown for illustration by other Federal Employers’ Liability cases, Barry n. Reading Co., 147 F. 2d 129, cert, denied, 324 U. S. 867; Benton v. St. Louis-San Francisco R. Co., 182 S. W. 2d 61, cert.* denied, 324 U. S. 843. And cj. Bruner v. McCarthy, 105 Utah 399, 142 P. 2d 649, cert, dismissed for reasons stated, 323 U. S. 673. Moreover, this Court stated some sixty years ago when considering the proper tribunal for determining questions of negligence : “We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.” Jones n. East Tennessee R. Co., 128 U. S. 443, 445. And peremptory instructions should not be given in negligence cases “where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences.” Washington & G. R. Co. v. McDade, 135 U. S. 554, 572. Such has ever since been the established rule for trial and appellate courts. See Tiller v. Atlantic C. L. R. Co., 318 U. S. 54, 67, 68. Courts should not assume that in determining these questions of negligence juries will fall short of a fair performance of their constitutional function. In rejecting a contention that juries could be expected to determine certain disputed questions on whim, this Court, speaking WILKERSON v. McCARTHY. 63 53 Opinion of the Court. through Mr. Justice Holmes, said: “But it must be assumed that the constitutional tribunal does its duty and finds facts only because they are proved.” Aikens v. Wisconsin, 195 U. S. 194, 206. In reaching its conclusion as to negligence, a jury is frequently called upon to consider many separate strands of circumstances, and from these circumstances to draw its ultimate conclusion on the issue of negligence. Here there are many arguments that could have been presented to the jury in an effort to persuade it that the railroad’s conduct was not negligent, and many counter arguments which might have persuaded the jury that the railroad was negligent. The same thing is true as to whether petitioner was guilty of contributory negligence. Many of such arguments were advanced by the Utah Supreme Court to support its finding that the petitioner was negligent and that the railroad was not.5 But the arguments 5 The state court argued that “other and safer routes were open” to the petitioner. But contributory negligence does not exempt a railroad from liability for its own negligence. The state court also advanced the following argument: “In this particular case, the board appears adequate for the use of the pit crewmen, but entirely inadequate if intended to be a cross-walk for other employees. Employees climbing in and out of the pit approach more deliberately, use other and different hand holds, and are more careful of their footing, while employees swinging on to the plank in a hurry are apt to forget about the slippery condition of an oily board and forget about the dangers incident to crossing, as did the plaintiff, who swung himself around the chain post and onto the plank.” Aside from the apparent absence of direct evidence that pit crewmen would exercise greater care to protect themselves than would other employees, whether they would or not is patently a jury question. The state court also said: “Had they not intended to preclude the use of the board as a walk-way, the defendants would not have installed the chain posts so as to block an open straight approach to the board.” This argument of the state court ignores the absence 823978 0—49----9 64 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U. S. made by the State Supreme Court are relevant and appropriate only for consideration by the jury, the tribunal selected to pass on the issues. For these reasons, the trial court should have submitted the case to the jury, and it was error for the Utah Supreme Court to affirm its action in taking the case from the jury. It is urged by petitioner that other fact issues should have been submitted to the jury in addition to those we have specifically pointed out. We need not consider these contentions now since they may not arise on another trial of the case. The judgment of the Supreme Court of Utah is reversed and the cause is remanded for further action not inconsistent with this opinion. It is so ordered. Mr. Justice Frankfurter, concurring. Trial by jury as guaranteed by the Constitution of the United States and by the several States presupposes a jury under proper guidance of a disinterested and competent trial judge. Herron v. Southern Pacific Co., 283 U. S. 91. It is an important element of trial by jury which puts upon the judge the exacting duty of determining whether there is solid evidence on which a jury’s of any direct evidence to show that the chains were erected to keep people from walking over the old “permanent board” walkway. Petitioner testified that it was his understanding that the chains were erected “to keep people from walking directly into the open pit.” Another argument of the State Supreme Court was: “Also, a sign not to cross would have afforded plaintiff no additional security or warning, for he disregarded the chain and he would no doubt have ignored another form of warning.” If such an inference was justifiable and was relevant at all on the question of railroad negligence, it was an inference to be drawn from facts by the jury, not by the court. WILKERSON v. McCARTHY. 65 53 Frankfurter, J., concurring. verdict could be fairly based. When a plaintiff claims that an injury which he has suffered is attributable to a defendant’s negligence—want of care in the discharge of a duty which the defendant owed to him—it is the trial judge’s function to determine whether the evidence in its entirety would rationally support a verdict for the plaintiff, assuming that the jury took, as it would be entitled to take, a view of the evidence most favorable to the plaintiff. If there were a bright line dividing negligence from non-negligence, there would be no problem. Only an incompetent or a wilful judge would take a case from the jury when the issue should be left to the jury. But since questions of negligence are questions of degree, often very nice differences of degree, judges of competence and conscience have in the past, and will in the future, disagree as to whether proof in a case is sufficient to demand submission to the jury. The fact that a third court thinks there was enough to leave the case to the jury does not indicate that the other two courts were unmindful of the jury’s function. The easy but timid way out for a trial judge is to leave all cases tried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge. These observations are especially pertinent to suits under the Federal Employers’ Liability Act. The difficulties in these cases derive largely from the outmoded concept of “negligence” as a working principle for the adjustments of injuries inevitable under the technological circumstances of modern industry. This cruel and wasteful mode of dealing with industrial injuries has long been displaced in industry generally by the insurance principle that underlies workmen’s compensation laws. For reasons that hardly reflect due regard for the interests 66 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U. S. of railroad employees, “negligence” remains the basis of liability for injuries to them. It is, of course, the duty of courts to enforce the Federal Employers’ Liability Act, however outmoded and unjust in operation it may be. But so long as negligence rather than workmen’s compensation is the basis of recovery, just so long will suits under the Federal Employers’ Liability Act lead to conflicting opinions about “fault” and “proximate cause.” The law reports are full of unedifying proof of these conflicting views, and that too by judges who seek conscientiously to perform their duty by neither leaving everything to a jury nor, on the other hand, turning the Federal Employers’ Liability Act into a workmen’s compensation law. Considering the volume and complexity of the cases which obviously call for decision by this Court, and considering the time and thought that the proper disposition of such cases demands, I do not think we should take cases merely to review facts already canvassed by two and sometimes three courts even though those facts may have* been erroneously appraised. The division in this Court would seem to demonstrate beyond peradventure that nothing is involved in this case except the drawing of allowable inferences from a necessarily unique set of circumstances. For this Court to take a case which turns merely on such an appraisal of evidence, however much hardship in the fallible application of an archaic system of compensation for injuries to railroad employees may touch our private sympathy, is to deny due regard to the considerations which led the Court to ask and Congress to give the power to control the Court’s docket. Such power carries with it the responsibility of granting review only in cases that demand adjudication on the basis of importance to the operation of our federal system; importance of the outcome merely to the parties is WILKERSON v. McCARTHY. 67 53 Frankfurter, J., concurring. not enough. It has been our practice to dismiss a writ of certiorari even after it was granted where argument exposed a want of conflict or revealed that the case involved no more than its particular facts.1 I believe we should adhere to this practice in the present case. But the importance of adhering to this practice cannot be seen in the perspective of a single case. Despite the mounting burden of the Court’s business, this is the thirtieth occasion in which a petition for certiorari has been granted during the past decade to review a judgment denying recovery under the Federal Employers’ Liability Act in a case turning solely on jury issues. The only petition on behalf of a carrier that brought such a case here during this period was dismissed, and rightly, as improvidently granted. McCarthy n. Bruner, 322 U. S. 718; 323 U. S. 673. Nor does what the United States Reports disclose regarding the disposition of petitions for certiorari tell the whole story of the Court’s exercise of discretion in granting or denying them. This is so because of adherence, on the whole, to the wise practice of not publicly recording the vote of the Justices. Of course, some light on the situation is derivatively shed by the disclosed position of the Justices on the merits of the cases. But the unavailable data are, as can readily 1The reasons for this practice were indicated by Chief Justice Taft for a unanimous Court in Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387,393: “If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal. The present case certainly comes under neither head.” 68 OCTOBER TERM, 1948. Douglas, J., concurring. 336 U. S. be imagined, especially relevant in the case of such a recurring problem as granting or denying certiorari under a particular statute. I would, therefore, dismiss the petition as having been improvidently granted. Since, however, that is not to be done, I too have been obliged to recanvass the record and likewise think that there was here enough evidence to go to the jury. Mr. Justice Burton, having concurred in the Court’s opinion, also joins in this opinion. Mr. Justice Douglas, concurring. While I join in the opinion of the Court, I think it appropriate to take this occasion to account for our stewardship in this group of cases. The Federal Employers’ Liability Act was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations. Not all these costs were imposed, for the Act did not make the employer an insurer. The liability which it imposed was the liability for negligence. But judges had created numerous defenses—fellow-servant rule, assumption of risk, contributory negligence—so that the employer was often effectively insulated from liability even though it was responsible for maintenance of unsafe conditions of work. The purpose of the Act was to change that strict rule of liability, to lift from employees the “prodigious burden” of personal injuries which that system had placed upon them, and to relieve men “who by the exigencies and necessities of life are bound to labor” from the risks and hazards that could be avoided or lessened “by the exercise of proper care on the part of the employer in providing safe and proper machinery and equipment with which the employee does his work.”1 1H. R. Rep. No. 1386, 60th Cong., 1st Sess. 2 (1908). WILKERSON v. MCCARTHY. 69 53 Douglas, J., concurring. That purpose was not given a friendly reception in the courts. In the first place, a great maze of restrictive interpretations were engrafted on the Act, constructions that deprived the beneficiaries of many of the intended benefits of the legislation. See Seaboard Air Line n. Horton, 233 U. S. 492; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165; and the review of the cases in Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 62-67. In the second place, doubtful questions of fact were taken from the jury and resolved by the courts in favor of the employer. This Court led the way in overturning jury verdicts rendered for employees. See Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S. 472; Missouri Pac. R. Co. v. Aeby, 275 U. S. 426; New York Central R. Co. v. Ambrose, 280 U. S. 486. And so it was that a goodly portion of the relief which Congress had provided employees was withheld from them. The first of these obstacles which the courts had created could be removed by Congress. In 1939 Congress did indeed move to release the employees from the burden of assumption of risk which the Court had reimposed on them. 53 Stat. 1404, 45 U. S. C. § 54; Tiller v. Atlantic Coast Line R. Co., supra. The second evil was not so readily susceptible of Congressional correction under a system where liability is bottomed on negligence. Since the condition was one created by the Court and beyond effective control by Congress, it was appropriate and fitting that the Court correct it. In fact, a decision not to correct it was to let the administration of this law be governed not by the aim of the legislation to safeguard employees but by a hostile philosophy that permeated its interpretation. The basis of liability under the Act is and remains negligence. Judges will not always agree as to what facts are necessary to establish negligence. We are not in agreement in all cases. But the review of the cases com- 70 OCTOBER TERM, 1948. Douglas, J., concurring 336U.S. ing to the Court from the 1943 Term to date2 and set forth in the Appendix to this opinion shows, I think, a record more faithful to the design of the Act than previously prevailed. Of the 55 petitions for certiorari filed during this period, 20 have been granted. Of these one was granted at the instance of the employer, 19 at the instance of an employee. In 16 of these cases the lower court was reversed for setting aside a jury verdict for an employee or taking the case from the jury. In 3 the lower court was sustained in taking the case from the jury. In the one case granted at the instance of the employer we held that it had received the jury trial on contributory negligence to which it was entitled. In these 20 cases we were unanimous in 10 of the decisions which we rendered on the merits. Of the 35 petitions denied, 21 were by employers claiming that jury verdicts were erroneous or that new trials should not have been ordered. The remaining 14 were filed by employees. In 10 of these the lower court had withheld the case from the jury and rendered judgment for the employer, in 3 it had sustained jury verdicts for the employer, and in 1 reversed a jury verdict for the employee and directed a new trial. From this group of cases three observations can be made: (1) The basis of liability has not been shifted from negligence to absolute liability. (2) The criterion governing the exercise of our discretion in granting or denying certiorari is not who loses 2 Cases where petitions for certiorari were granted this Term but which have not yet been decided on the merits have not been included. Nor have cases been included which though arising under the Act present issues other than those of negligence. Moreover, Wabash R. Co. v. Williamson, certiorari denied, 330 U. S. 824, has been omitted since negligence was admitted by the employer, the case turning on the construction of a railroad rule. WILKERSON v. McCARTHY. 71 53 Appendix to Opinion of Douglas, J. below but whether the jury function in passing on disputed questions of fact and in drawing inferences from proven facts has been respected. (3) The historic role of the jury in performing that function, see Jones v. East Tennessee, V. & G. R. Co., 128 U. S. 443, 445; W ashington & G. R. Co. v. McDade, 135 U. S. 554, 572; Bailey v. Central Vermont R. Co., 319 U. S. 350, 353-354, is being restored in this important class of cases. Mr. Justice Murphy and Mr. Justice Rutledge join in this opinion. APPENDIX TO OPINION OF DOUGLAS, J. I. Cases in which certiorari was granted: A. Where lower court which took the case from the jury or set aside a jury verdict for an employee was reversed: Tennant v. Peoria & P. U. R. Co., 321 U. S. 29. Tiller v. Atlantic Coast Line, 323 U. S. 574. Blair v. B. & 0. R. Co., 323 U. S. 600. Keeton v. Thompson, 326 U. S. 689. Lavender v. Kurn, 327 U. S. 645. Cogswell v. Chicago & E. III. R. Co., 328 U. S. 820. Jesionowski v. Boston & M. R. Co., 329 U. S. 452. Ellis v. Union P. R. Co., 329 U. S. 649. Pauly n. McCarthy, 330 U. S. 802. Myers n. Reading Co., 331 U. S. 477 (Safety Appliance Act). Lillie v. Thompson, 332 U. S. 459. Anderson n. Atchison, T. & S. F. R. Co., 333 U. S. 821. Eubanks v. Thompson, 334 U. S. 854. Penn v. Chicago & N. W. R. Co., 335 U. S. 849. Coray n. Southern Pacific Co., 335 U. S. 520. Wilkerson v. McCarthy, 336 U. S. 53. 72 OCTOBER TERM, 1948. Appendix to Opinion of Douglas, J. 336 U. S. I. Cases in which certiorari was granted—Continued. B. Where lower court which set aside a jury verdict for an employee or rendered judgment for the employer on questions of law was sustained: Brady v. Southern R. Co., 320 U. S. 476. Hunter v. Texas Electric R. Co., 332 U. S. 827. Eckenrode v. Penn. R. Co., 335 U. S. 329. C. Where lower court which upheld the jury’s verdict on the issues of negligence and contributory negligence was sustained: McCarthy v. Bruner, 323 U. S. 673. II. Cases in which certiorari was denied: A. Where lower court withheld case from jury and rendered judgment for the employer: Beamer n. Virginian R. Co., 321 U. S. 763. Cowdrick v. Penn. R. Co, 323 U. S. 799. Negro n. Boston & Maine R., 324 U. S. 862. Fantini v. Reading Co., 325 U. S. 856. Scarborough v. Pennsylvania R. Co., 326 U. S. 755. Chisholm v. Reading Co., 329 U. S. 807. Waller n. Northern P. T. Co., 329 U. S. 742. Wolfe v. Henwood, 332 U. S. 773. Lasagna n. McCarthy, 332 U. S. 829. Trust Co. of Chicago v. Erie R. Co., 334 U. S. 845. B. Where lower court sustained a jury verdict for the employer: Barry v. Reading Co., 324 U. S. 867. Benton y. St. Louis-S. F. R. Co., 324 U. S. 843. Benson v. Missouri-Kansas-Texas R. Co., 332 U. S. 830. C. Where lower court reversed a jury verdict for the employee and directed a new trial: Owens v. Union P. R. Co., 323 U. S. 740. WILKERSON v. McCARTHY. 73 53 Vinson, C. J., dissenting. IL Cases in which certiorari was denied—Continued. D. Where lower court sustained jury verdict for the employee or held that the employee’s case should have gone to the jury: Southern Pacific Co. v. Jester, 323 U. S. 716. Thompson v. Godsy, 323 U. S. 719. Northern P. R. Co. v. Bimberg, 323 U. S. 752. Terminal R. Assn. v. Copeland, 323 U. S. 799. Chicago & E. III. R. Co. v. Waddell, 323 U. S. 732. Boston & M. R.v. Cabana, 325 U. S. 873. Texas & P. R. Co. v. Riley, 325 U. S. 873. Terminal R. Assn. n. Mooney, 326 U. S. 723. Terminal R. Assn. v. Schorb, 326 U. S. 786. Baltimore & 0. C. T. R. Co. v. Howard, 328 U. S. 867. Gardner n. Griswold, 329 U. S. 725. Henwood n. Chaney, 329 U. S. 760. Boston & Maine R. v. Meech, 329 U. S. 763. Wheeling & L. E. R. Co. v. Keith, 332 U. S. 763. Delaware, Lackawanna & W. R. Co. v. Mostyn, 332 U. S. 770. Atlantic Coast Line v. Meeks, 333 U. S. 827. Wabash R. Co. v. Hampton, 333 U. S. 833. Fleming v. Husted, 333 U. S. 843. Unity R. Co. v. Kurimsky, 333 U. S. 855. Baltimore & O. R. Co. v. Skidmore, 335 U. S. 816. E. Where lower court set aside a jury verdict for the employer because of erroneous instructions and ordered a new trial: Pennsylvania R. Co. v. McCarthy, 329 U. S. 812. Mr. Chief Justice Vinson, dissenting. In my view of the record, there is no evidence, nor any inference which reasonably may be drawn from the evidence when viewed in the light most favorable to the 74 OCTOBER TERM, 1948. Jackson, J., dissenting. 336U.S. petitioner, which could sustain a verdict for him. This leads me to conclude that the trial court properly directed a verdict for the respondents, and I would affirm. Mr. Justice Jackson, dissenting. The trial court, after hearing all the evidence and seeing the witnesses, directed a verdict of no cause of action. The Utah Supreme Court, in a careful opinion, decided two propositions: First, whether this Court still holds that a plaintiff “in order to recover must still show negligence on the part of the employer.” It resolved its doubts by relying upon statements of this Court to the effect that it still does adhere to that requirement.1 Second, whether there is any evidence of negligence. On 1 The Supreme Court of Utah considered and rejected the opinion in Griswold v. Gardner, 155 F. 2d 333, in which it was said: “Any detailed review of the evidence in a case of this character for the purpose of determining the propriety of the trial court’s refusal to direct a verdict would be an idle and useless ceremony in the light of the recent decisions of the Supreme Court. This is so regardless of what we might think of the sufficiency of the evidence in this respect. The fact is, so we think, that the Supreme Court has in effect converted this negligence statute into a compensation law thereby making, for all practical purposes, a railroad an insurer of its employees. (See dissent of Mr. Justice Roberts in Bailey v. Central Vermont Ry., 319 U. S. 350, 358, 63 S. Ct. 1062, 1066,87 L. Ed. 1444.) “The Supreme Court, commencing with Tiller v. Atlantic Coastline R. Co., 318 U. S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A. L. R. 967, in a succession of cases has reversed every court (with one exception hereinafter noted) which has held that a defendant was entitled to a directed verdict. In the Tiller case, the Supreme Court reversed the Court of Appeals for the Fourth Circuit, 128 F. 2d 420, which had affirmed the District Court in directing a verdict. The case, upon remand, was again tried in the court below, where a directed verdict was denied. For this denial the Court of Appeals reversed and again the Supreme Court reversed the Court of Appeals, WILKERSON v. MCCARTHY. 75 53 Jackson, J., dissenting. a careful analysis, it found no evidence whatever of negligence in this case. Following established principles of law, it concluded that it would have been error to let such a case go to the jury, and therefore affirmed the trial court’s refusal so to do. This Court now reverses and, to my mind at least, espouses the doctrine that any time a trial or appellate court weighs evidence or examines facts it is usurping the jury’s function. But under that rule every claim of injury would require jury trial, even if the evidence showed no possible basis for a finding of negligence. Determination of whether there could be such a basis is a function of the trial court, even though it involves weighing evidence and examining facts. I think we are under a duty to examine the record impartially if we take such cases and to sustain the lower courts where, holding that the District Court properly submitted the case to the jury. In Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 64 S. Ct. 409, 88 L. Ed. 520, this court reversed the District Court on account of its refusal to direct a verdict, and our decision, 134 F. 2d 860, was reversed by the Supreme Court. In Bailey v. Central Vermont Ry., 319 U. S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444, the Supreme Court of Vermont held that there should have been a directed verdict for the defendant, and the Supreme Court reversed the decision of that court. In Blair v. Baltimore & O. R. Co., 323 U. S. 600, 65 S. Ct. 545, 89 L. Ed. 490, the Supreme Court reversed the Supreme Court of Pennsylvania which had held that there should have been a directed verdict. In the recent case of Lavender, Administrator, etc., v. Kurn et al., [327 U. S. 645] 66 S. Ct. 740, the Supreme Court reversed the Supreme Court of Missouri which had held that there should have been a directed verdict for each of the defendants. “The only exception to this unbroken line of decisions is Brady v. Southern R. Co., 320 U. S. 476, 64 S. Ct. 232, 88 L. Ed. 239, where the Supreme Court of North Carolina was affirmed in its holding that there should have been a directed verdict. This exception, however, is of little consequence in view of the fact that four members of the court dissented.” 76 OCTOBER TERM, 1948. Jackson, J., dissenting. 336 U. S. as here, a finding of negligence would obviously be without basis in fact. I am not unaware that even in this opinion the Court continues to pay lip service to the doctrine that liability in these cases is to be based only upon fault. But its standard of fault is such in this case as to indicate that the principle is without much practical meaning. This record shows that both the wheel pit into which plaintiff fell and the board on which he was trying to cross over the pit were blocked off by safety chains strung between posts. Plaintiff admits he knew the chains were there to keep him from crossing over the pit and to require him to go a few feet farther to walk around it. After the chains were put up, any person undertaking to use the board as a cross walk had to complete involved contortions and gymnastics, particularly when, as was the case with petitioner, a car was on the track 23^/2. A casual examination of the model filed as an exhibit in this Court shows how difficult was such a passage. Nevertheless, the Court holds that if employees succeeded in disregarding the chains and forced passage frequently enough to be considered “customary,” and the railroad took no further action, its failure so to do was negligence. The same rule would no doubt apply if the railroad’s precautions had consisted of a barricade, or an armed guard. I think the railroad here could not fairly be found guilty of negligence and that there was no jury question. If in this class of cases, which forms a growing proportion of its total, this Court really is applying accepted principles of an old body of liability law in which lower courts are generally experienced, I do not see why they are so baffled and confused at what goes on here. On the other hand, if this Court considers a reform of this law appropriate and within the judicial power to promulgate, I do not see why it should constantly deny that it is doing just that. KOVACS v. COOPER. 77 53 Syllabus. I think a comparison of the State Supreme Court’s opinion,------Utah-------, 187 P. 2d 188, with the opinion of this Court will fairly raise, in the minds of courts below and of the profession, the question I leave to their perspicacity to answer: In which proposition did the Supreme Court of Utah really err? KOVACS v. COOPER, JUDGE. APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. No. 9. Submitted October 11, 1948.—Decided January 31,1949. An ordinance of Trenton, New Jersey, forbids the use or operation on the public streets of a “sound truck” or of any instrument which emits “loud and raucous noises” and is attached to a vehicle on the public streets. Held: As applied to the defendant in this case, it does not infringe the right of free speech in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 78-79, 89. 135 N. J. L. 584, 52 A. 2d 806, affirmed. Appellant was convicted in Police Court for violation of an ordinance of Trenton, New Jersey. The New Jersey Supreme Court upheld the conviction, 135 N. J. L. 64, 50 A. 2d 451, and the Court of Errors and Appeals affirmed by an equally divided court. 135 N. J. L. 584, 52 A. 2d 806. On appeal to this Court, affirmed, p. 89. George Pellettieri submitted on brief for appellant. Louis Josephson submitted on brief for appellee. Briefs of amici curiae urging reversal were filed by Osmond K. Fraenkel and Samuel Rothbard for the American Civil Liberties Union; and Lee Pressman, Frank Donner, M. H. Goldstein, Isadora Katz, Irving J. Levy, David Rein and Benjamin C. Sigal for the Congress of Industrial Organizations et al. 78 OCTOBER TERM, 1948. Opinion of Reed, J. 336 U.S. Mr. Justice Reed announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice Burton join. This appeal involves the validity of a provision of Ordinance No. 430 of the City of Trenton, New Jersey. It reads as follows: “4. That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument known as a calliope or any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned.” The appellant was found guilty of violating this ordinance by the appellee, a police judge of the City of Trenton. His conviction was upheld by the New Jersey Supreme Court, Kovacs v. Cooper, 135 N. J. L. 64, 50 A. 2d 451, and the judgment was affirmed without a majority opinion by the New Jersey Court of Errors and Appeals in an equally divided court. The dissents are printed. 135 N. J. L. 584, 52 A. 2d 806. We took jurisdiction1 to consider the challenge made to the constitutionality of the section on its face and as applied on the ground that § 1 of the Fourteenth Amendment of the United States Constitution was violated because the section and the conviction are in con 1 See Judicial Code § 237 (a), 28 U. S. C. § 344 (a), now 28 U. S. C. §1257 (2); Lovell v. City of Griffin, 303 U. S. 444; New Orleans Water Works Co. v. New Orleans, 164 U. S. 471. KOVACS v. COOPER. 79 77 Opinion of Reed, J. travention of rights of freedom of speech, freedom of assemblage and freedom to communicate information and opinions to others. The ordinance is also challenged as violative of the Due Process Clause of the Fourteenth Amendment on the ground that it is So obscure, vague, and indefinite as to be impossible of reasonably accurate interpretation. No question was raised as to the sufficiency of the complaint. At the trial in the Trenton police court, a city patrolman testified that while on his post he heard a sound truck broadcasting music. Upon going in the direction of said sound, he located the truck on a public street near the municipal building. As he approached the truck, the music stopped and he heard a man’s voice broadcasting from the truck. The appellant admitted that he operated the mechanism for the music and spoke into the amplifier. The record from the police court does not show the purpose of the broadcasting but the opinion in the Supreme Court suggests that the appellant was using the sound apparatus to comment on a labor dispute then in progress in Trenton. The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words “loud and raucous.” While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden. Last term, after thorough consideration of the problem of vagueness in legislation affecting liberty of speech, this Court invalidated a conviction under a New York statute construed and applied to punish the distribution of magazines “principally made up of criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes against the person.” Winters v. New York, 333 U. S. 507, 518. As thus con-823978 0—49—10 80 OCTOBER TERM, 1948. Opinion of Reed, J." 336 U. S. strued we said that the statute was so vague that an honest distributor of tales of war horrors could not know whether he was violating the statute. P. 520. But in the Winters case we pointed out that prosecutions might be brought under statutes punishing the distribution of “obscene, lewd, lascivious, filthy, indecent or disgusting” magazines. P. 511. We said, p. 518: “The impossibility of defining the precise line between permissible uncertainty in statutes caused by describing crimes by words well understood through long use in the criminal law—obscene, lewd, lascivious, filthy, indecent or disgusting—and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct—massing stories to incite crime—has resulted in three arguments of this case in this Court.” We used the words quoted above from page 511 as examples of permissible standards of statutes for criminal prosecution. P. 520. There we said: “To say that a state may not punish by such a vague statute carries no implication that it may not punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications. ... Neither the states nor Congress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise.” We think the words of § 4 of this Trenton ordinance comply with the requirements of definiteness and clarity, set out above. The scope of the protection afforded by the Fourteenth Amendment, for the right of a citizen to play music and express his views on matters which he considers to be KOVACS v. COOPER. 81 77 Opinion of Reed, J. of interest to himself and others on a public street through sound amplification devices mounted on vehicles, must be considered. Freedom of speech, freedom of assembly and freedom to communicate information and opinion to others are all comprehended on this appeal in the claimed right of free speech. They will be so treated in this opinion. The use of sound trucks and other peripatetic or stationary broadcasting devices for advertising, for religious exercises and for discussion of issues or controversies has brought forth numerous municipal ordinances. The avowed and obvious purpose of these ordinances is to prohibit or minimize such sounds on or near the streets since some citizens find the noise objectionable and to some degree an interference with the business or social activities in which they are engaged or the quiet that they would like to enjoy.2 A satisfactory adjustment of the conflicting interests is difficult as those who desire to broadcast can hardly acquiesce in a requirement to modulate their sounds to a pitch that would not rise above other street noises nor would they deem a restriction to sparsely used localities or to hours after work and before sleep—say 6 to 9 p. m.—sufficient for the exercise of their claimed privilege. Municipalities are seeking actively a solution. National Institute of Municipal Law Officers, Report No. 123, 1948. Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable. Absolute prohibition within 2 Ordinances regulating or prohibiting sound devices were upheld in People n. Phillips, 147 N. Y. Mise. 11, 263 N. Y. Supp. 158; Maupin v. City of Louisville, 284 Ky. 195, 144 S. W. 2d 237; Hamilton v. City of Montrose, 109 Colo. 228,124 P. 2d 757. Injunctions have also dealt with nuisances from the playing of mechanical music for advertising purposes. Weber v. Mann, 42 S. W. 2d 492 (Tex. Ct. of Civ. App.); Stodder v. Rosen Talking Machine Co., 241 Mass. 245, 135 N. E. 251; 247 Mass. 60, 141 N. E. 569. 82 OCTOBER TERM, 1948. Opinion of Reed, J. 336U.S. municipal limits of all sound amplification, even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities. We have had recently before us an ordinance of the City of Lockport, New York, prohibiting sound amplification whereby the sound was cast on public places so as to attract the attention of the passing public to the annoyance of those within the radius of the sounds. The ordinance contained this exception: “Section 3. Exception. Public dissemination, through radio loudspeakers, of items of news and matters of public concern and athletic activities shall not be deemed a violation of this section provided that the same be done under permission obtained from the Chief of Police.” This Court held the ordinance “unconstitutional on its face,” Saia v. New York, 334 U. S. 558, because the quoted section established a “previous restraint” on free speech with “no standards prescribed for the exercise” of discretion by the Chief of Police. When ordinances undertake censorship of speech or religious practices before permitting their exercise, the Constitution forbids their enforcement.3 The Court said in the Saia case at 560-61: “The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine.” This ordinance is not of that character. It contains nothing comparable to the above-quoted § 3 of the ordi 3 Lovell v. City of Griffin, 303 U. S. 444; Hague v. C. I. 0., 307 U. S. 496; Cantwell v. Connecticut, 310 U. S. 296. KOVACS v. COOPER. 83 77 Opinion of Reed, J. nance in the Saia case. It is an exercise of the authority granted to the city by New Jersey “to prevent disturbing noises,” N. J. Stat. Ann., tit. 40, § 48-1 (8), nuisances well within the municipality’s power to control. The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community.4 A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people. In this case, New Jersey necessarily has construed this very ordinance as applied to sound amplification.5 The Supreme Court said, 135 N. J. L. 64, 66, 50 A. 2d 451, 452: “The relevant provisions of the ordinance apply only to (1) vehicles (2) containing an instrument in the nature of a sound amplifier or any other instrument emitting loud and raucous noises and (3) such vehicle operated or standing upon the public streets, alleys or thoroughfares of the city.” If that means that only amplifiers that emit, in the language of the ordinance, “loud and raucous noises” are barred from the streets, we have a problem of regulation. The dissents accept that view.6 So did the appellant 4 Chicago, B. & Q. R. Co. v. Drainage Comm’rs, 200 U. S. 561, 592; Nebbia v. New York, 291 U. S. 502, 525; Queenside Hills Realty Co. v. Saxl, 328 U. S. 80, 82. 5 The Court of Errors and Appeals was cognizant of the difficulties. Evening Times Printing Co. v. American Newspaper Guild, 124 N. J. Eq. 71, 78,199 A. 598,602-603. 6135 N. J. L. 584,52 A. 2d 809 : “Colie, J. (For reversal.) I am of the opinion that the judgment under review should be reversed but I do not agree that section 4 of the ordinance is an unconstitutional exercise of the police power. The privilege of a citizen to use the streets for the communication of ideas is not absolute but must be exercised in subordination to the general comfort and convenience. Most assuredly the prohibi 84 OCTOBER TERM, 1948. Opinion of Reed, J. 336 U. S. in his Statement as to Jurisdiction and his brief.7 Although this Court must decide for itself whether federal questions are presented and decided,8 we must accept the tion against making ‘loud and raucous’ noises is a reasonable regulation.” Id., at 585: “There is not a scintilla of evidence that the music or voice was loud or raucous, and under the wording of section 4 such proof is an essential prerequisite to a finding of guilt of a violation.” The New Jersey courts may have concluded that the necessity of search by the patrolman to locate the sound truck on a street was sufficient evidence of loudness and raucousness. 135 N. J. L. 584, 52 A. 2d 808, Eastwood, J., for reversal, speaking for himself and three other members, said, pp. 588-89: “It appears to us, and we so hold, that the primary aim of section 4 of the ordinance, under review, is to prohibit ‘loud and raucous noises,’ at all times and in all places in the City of Trenton, emanating from sound trucks, loud speakers, sound amplifiers, radios or phonographs, equipped with loud speakers or sound amplifiers, or other similar instruments. It is thus clear that section 4 of the ordinance is not regulatory within a proper exercise of the police power of the municipality.” Id., at 590: “We conclude that section 4 of the ordinance under attack represents an attempt by the municipality under the guise of regulation, to prohibit and outlaw, under all circumstances and conditions, the use of sound amplifying systems.” Perhaps the last-quoted paragraph assumes that all sound trucks emit loud and raucous noises. 7He wrote: “Section 4 of the Ordinance, under which appellant was charged, prohibits any person from using for any purpose whatsoever, a loud speaker or sound amplifier which emits therefrom ‘loud and raucous noises’ and is attached to any vehicle operated or standing upon the streets of the City of Trenton.” In the brief this appears: “This ordinance does not purport to prohibit loud and raucous noises. It attempts to prohibit sound devices which emit therefrom loud and raucous noises. This does not validate the ordinance or save it. In order to be a valid regulation the law must deal with the abuse and not with the use of the thing.” 8 Lovell n. City of Griffin, 303 U. S. 444, 450. KOVACS v. COOPER. 85 77 Opinion of Reed, J. state courts’ conclusion as to the scope of the ordinance.9 We accept the determination of New Jersey that § 4 applies only to vehicles with sound amplifiers emitting loud and raucous noises. Courts are inclined to adopt that reasonable interpretation of a statute which removes it farthest from possible constitutional infirmity. Cox v. New Hampshire, 312 U. S. 569, 575-76; cf. United States v. C. I. 0., 335 U. S. 106, 120. We need not determine whether this ordinance so construed is "regulatory or prohibitory. All regulatory enactments are prohibitory so far as their restrictions are concerned, and the prohibition of this ordinance as to a use of streets is merely regulatory. Sound trucks may be utilized in places such as parks or other open spaces off the streets. The constitutionality of the challenged ordinance as violative of appellant’s right of free speech does not depend upon so narrow an issue as to whether its provisions are cast in the words of prohibition or regulation.10 The question is whether or not there is a real abridgment of the rights of free speech. Of course, even the fundamental rights of the Bill of Rights are not absolute. The Saia case recognized that in this field by stating “The hours and place of public 9 Saia v. New York, 334 U. S. 558; Cox v. New Hampshire, 312 U. S. 569,574; Winters n. New York, 333 U. S. 507,514. 10 In the exercise of the police power acts or things which could not be barred completely from use may be prohibited under some conditions and circumstances when they interfere with the rights of others. Cox v. New Hampshire, 312 U. S. 569, 574; Chaplin sky v. New Hampshire, 315 U. S. 568; Sage Stores Co. v. Kansas, 323 U. S. 32, 36; Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 159, compare 160; Powell v. Pennsylvania, 127 U. S. 678, 682-83; Mugler V. Kansas, 123 U. S. 623, 657-663. For examples of federal prohibitions, see Carolene Products Co. v. United States, 323 U. S. 18, 27, Third; United States v. Darby, 312 U. S. 100, 113, 116; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334, 348; Buttfield v. Stranahan, 192 U. S. 470,492-93. 86 OCTOBER TERM, 1948. Opinion of Reed, J. 336 U. S. discussion can be controlled.”11 It was said decades ago in an opinion of this Court delivered by Mr. Justice Holmes, Schenck v. United States, 249 U. S. 47, 52, that: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” Hecklers may be expelled from assemblies and religious worship may not be disturbed by those anxious to preach a doctrine of atheism. The right to speak one’s mind would often be an empty privilege in a place and at a time beyond the protecting hand of the guardians of public order. While this Court, in enforcing the broad protection the Constitution gives to the dissemination of ideas, has invalidated an ordinance forbidding a distributor of pamphlets or handbills from summoning householders to their doors to receive the distributor’s writings, this was on the ground that the home owner could protect himself from such intrusion by an appropriate sign “that he is unwilling to be disturbed.” The Court never intimated that the visitor could insert a foot in the door and insist on a hearing. Martin n. Struthers, 319 U. S. 141, 143, 148. We do not think that the Struthers case requires us to expand this interdiction of legislation to include ordinances against obtaining an audience for the broadcaster’s ideas by way of sound trucks with loud and raucous noises on city streets. The unwilling listener is 11 Saia v. New York, 334 U. S. 558, 562; Prince n. Massachusetts, 321 U. S. 158, 166; Murdock n. Pennsylvania, 319 U. S. 105, 109; Cox n. New Hampshire, 312 U. S. 569; Cantwell v. Connecticut, 310 U. S. 296, 303; Whitney n. California, 274 U. S. 357, 371, 373; Reynolds n. United States, 98 U. S. 145,166. KOVACS v. COOPER. 87 77 Opinion of Reed, J. not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it.12 In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality. City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this does not mean the freedom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities. On the business streets of cities like Trenton, with its more than 125,000 people, such distractions would be dangerous to traffic at all hours useful for the dissemination of information, and in the residential thoroughfares the quiet and tranquility so desirable for city dwellers would likewise be at the mercy of advocates of particular religious, social or political persuasions. We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets. The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention. This is the phase of freedom of speech that is involved here. We do not think the Trenton ordinance abridges that freedom. It is an extravagant extension of due process to say that because of it a city cannot forbid talking on the streets through a loud speaker in a loud and raucous tone. Surely such an ordinance does not violate our people’s “concept of ordered liberty” so as to require federal intervention to protect a citizen from the action of his own local government. Cf. Palko v. Connecticut, 302 U. S. 319, 325. Opportunity to gain the 12 See Schneider v. State, 308 U. S. 147,162. 88 OCTOBER TERM, 1948. Opinion of Reed, J. 336 U. S. public’s ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets.13 The preferred position14 of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself. That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to 13 Schneider n. State, 308 U. S. 147,160-61: “Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.” Cantwell n. Connecticut, 310 U. S. 296, 308: “When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.” 14 Thomas v. Collins, 323 U. S. 516, 527, note 12, 530; Murdock v. Pennsylvania, 319 U. S. 105. KOVACS v. COOPER. 89 77 Frankfurter, J., concurring. call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open. Section 4 of the ordinance bars sound trucks from broadcasting in a loud and raucous manner on the streets. There is no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers. We think that the need for reasonable protection in the homes or business houses from the distracting noises of vehicles equipped with such sound amplifying devices justifies the ordinance. Affirmed. Mr. Justice Murphy dissents. Mr. Justice Frankfurter, concurring. Wise accommodation between liberty and order always has been, and ever will be, indispensable for a democratic society. Insofar as the Constitution commits the duty of making this accommodation to this Court, it demands vigilant judicial self-restraint. A single decision by a closely divided court, unsupported by the confirmation of time, cannot check the living process of striking a wise balance between liberty and order as new cases come here for adjudication. To dispose of this case on the assumption that the Saia case, 334 U. S. 558, decided only the other day, was rightly decided, would be for me to start with an unreality. While I am not unaware of the circumstances that differentiate this case from what was ruled in Saia, further reflection has only served to reinforce the dissenting views I expressed in that case. Id. at 562. In the light of them I conclude that there is nothing in the Constitution of the United States to bar New Jersey from authorizing the City of Trenton to deal in the manner chosen by the City with the aural aggressions implicit in the use of sound trucks. 90 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U. S. The opinions in this case prompt me to make some additional observations. My brother Reed speaks of “the preferred position of freedom of speech,” though, to be sure, he finds that the Trenton ordinance does not disregard it. This is a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity. It is not the first time in the history of constitutional adjudication that such a doctrinaire attitude has disregarded the admonition most to be observed in exercising the Court’s reviewing power over legislation, “that it is a constitution we are expounding,” M’Culloch v. Maryland, 4 Wheat. 316, 407. I say the phrase is mischievous because it radiates a constitutional doctrine without avowing it. Clarity and candor in these matters, so as to avoid gliding unwittingly into error, make it appropriate to trace the history of the phrase “preferred position.” The following is a chronological account of the evolution of talk about “preferred position” except where the thread of derivation is plain enough to be indicated. 1. Herndon v. Lowry, 301 U. S. 242, 258: “The power of a state to abridge freedom of speech and of assembly is the exception rather than the rule and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government. The judgment of the legislature is not unfettered. The limitation upon individual liberty must have appropriate relation to the safety of the state.” 2. United States v. Carotene Products Co., 304 U. S. 144, 152, n. 4, set forth in the margin.1 A footnote hardly 1 “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to KOVACS v. COOPER. 91 77 Frankfurter, J., concurring. seems to be an appropriate way of announcing a new constitutional doctrine, and the Carotene footnote did not purport to announce any new doctrine; incidentally, it did not have the concurrence of a majority of the Court. It merely rephrased and expanded what was said in Herndon v. Lowry, supra, and elsewhere. It certainly did not assert a presumption of invalidity against all legislation touching matters related to liberties protected by the Bill of Rights and the Fourteenth Amendment. It merely stirred inquiry whether as to such matters there be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359, 369-370; Lovell v. Griffin, 303 U. S. 444,452. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon n. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske n. Kansas, 274 U. S. 380; Whitney v. California, 274 U. S. 357, 373-378; Herndon n. Lowry, 301 U. S. 242; and see Holmes, J., in Gitlow n. New York, 268 U. S. 652, 673; as to prohibition of peaceable assembly, see De Jonge n. Oregon, 299 U. S. 353, 365. “Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels n. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U. S. 177, 184, n. 2, and cases cited.” 92 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U. S. may be “narrower scope for operation of the presumption of constitutionality” and legislation regarding them is therefore “to be subjected to more exacting judicial scrutiny.” The Carotene footnote is cited in Thornhill v. Alabama, 310 U. S. 88, 95, in an opinion which thus proceeds: “Mere legislative preference for one rather than another means for combatting substantive evils, therefore, may well prove an inadequate foundation on which to rest regulations which are aimed at or in their operation diminish the effective exercise of rights so necessary to the maintenance of democratic institutions. It is imperative that, when the effective exercise of these rights is claimed to be abridged, the courts should ‘weigh the circumstances’ and ‘appraise the substantiality of the reasons advanced’ in support of the challenged regulations. Schneider n. State . . . It is cited again in the opinion of the Court in A. F. of L. v. Swing, 312 U. S. 321, 325, together with the Herndon and Schneider cases, in support of the statement that the “right to free discussion” “is to be guarded with a jealous eye.” The Carotene footnote was last cited in an opinion of this Court in the passage of Thomas v. Collins, 323 U. S. 516, 530, quoted below. (3) Schneider v. State, 308 U. S. 147, 161: “In every case, therefore, where legislative abridgment of the rights [freedom of speech and of the press] is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances KOVACS v. COOPER. 93 77 Frankfurter, J., concurring. and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.” (4) Bridges v. California, 314 U. S. 252,262-63: “Moreover, the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be ‘substantial,’ Brandeis, J., concurring in Whitney v. California, supra, [274 U. S. 357] 374; it must be ‘serious,’ id. 376. And even the expression of ‘legislative preferences or beliefs’ cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression. Schneider n. State .... “What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” This formulation of the “clear-and-present-danger” test was quoted and endorsed in Pennekamp v. Florida, 328 U. S. 331, 334. (5) A number of Jehovah’s Witnesses cases refer to the freedoms specified by the First Amendment as in a “preferred position.” The phrase was apparently first used in the dissent of Chief Justice Stone in Jones v. Opelika, 316 U. S. 584, 600, 608. It reappears in Murdock n. Pennsylvania, 319 U. S. 105, 115; Prince v. Massachusetts, 321 U. S. 158, 164; Follett v. McCormick, 321 U. S. 573, 575 ; Marsh v. Alabama, 326 U. S. 501, 509; Saia n. New York, 334 U. S. 558, 562. (6) West Virginia State Board of Education v. Barnette, 319 U. S. 624, 639: “The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disap- 94 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U. S. pears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a ‘rational basis’ for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.” (7) Thomas v. Collins, 323 U. S. 516, 530: “For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” This is perhaps the strongest language dealing with the constitutional aspect of legislation touching utterance. But it was the opinion of only four members of the Court, since Mr. Justice Jackson, in a separate concurring opinion, referred to the opinion of Mr. Justice Rutledge only to say that he agreed that the case fell into “the category of a public speech, rather than that of practicing a vocation as solicitor.” Id. at 548. In short, the claim that any legislation is presumptively unconstitutional which touches the field of the First Amendment and the Fourteenth Amendment, insofar as the latter’s concept of “liberty” contains what is specifi KOVACS v. COOPER. 95 77 Frankfurter, J., concurring. cally protected by the First, has never commended itself to a majority of this Court. Behind the notion sought to be expressed by the formula as to “the preferred position of freedom of speech” lies a relevant consideration in determining whether an enactment relating to the liberties protected by the Due Process Clause of the Fourteenth Amendment is violative of it. In law also, doctrine is illuminated by history. The ideas now governing the constitutional protection of freedom of speech derive essentially from the opinions of Mr. Justice Holmes. The philosophy of his opinions on that subject arose from a deep awareness of the extent to which sociological conclusions are conditioned by time and circumstance. Because of this awareness Mr. Justice Holmes seldom felt justified in opposing his own opinion to economic views which the legislature embodied in law. But since he also realized that the progress of civilization is to a considerable extent the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other beliefs, for him the right to search for truth was of a different order than some transient economic dogma. And without freedom of expression, thought becomes checked and atrophied. Therefore, in considering what interests are so fundamental as to be enshrined in the Due Process Clause, those liberties of the individual which history has attested as the indispensable conditions of an open as against a closed society come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements. Accordingly, Mr. Justice Holmes was far more ready to find legislative invasion where free inquiry was involved than in the debatable area of economics. See my Mr. Justice Holmes and the Supreme Court, 58 et seq. 823978 0—49----11 96 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U. S. The objection to summarizing this line of thought by the phrase “the preferred position of freedom of speech” is that it expresses a complicated process of constitutional adjudication by a deceptive formula. And it was Mr. Justice Holmes who admonished us that “To rest upon a formula is a slumber that, prolonged, means death.” Collected Legal Papers, 306. Such a formula makes for mechanical jurisprudence. Some of the arguments made in this case strikingly illustrate how easy it is to fall into the ways of mechanical jurisprudence through the use of oversimplified formulas. It is argued that the Constitution protects freedom of speech: freedom of speech means the right to communicate, whatever the physical means for so doing; sound trucks are one form of communication; ergo that form is entitled to the same protection as any other means of communication, whether by tongue or pen. Such sterile argumentation treats society as though it consisted of bloodless categories. The various forms of modern so-called “mass communications” raise issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison. Cf. Associated Press v. United States, 326 U. S. 1. Movies have created problems not presented by the circulation of books, pamphlets, or newspapers, and so the movies have been constitutionally regulated. Mutual Film Corporation v. Industrial Commission, 236 U. S. 230. Broadcasting in turn has produced its brood of complicated problems hardly to be solved by an easy formula about the preferred position of free speech. See National Broadcasting Co. n. United States, 319 U. S. 190. Only a disregard of vital differences between natural speech, even of the loudest spellbinders, and the noise of sound trucks would give sound trucks the constitutional rights accorded to the unaided human voice. Nor is it for this Court to devise the terms on which sound trucks KOVACS v. COOPER. 97 77 Jackson, J., concurring. should be allowed to operate, if at all. These are matters for the legislative judgment controlled by public opinion. So long as a legislature does not prescribe what ideas may be noisily expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection. Without such opportunities freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society. Mr. Justice Jackson, concurring. I join the judgment sustaining the Trenton ordinance because I believe that operation of mechanical soundamplifying devices conflicts with quiet enjoyment of home and park and with safe and legitimate use of street and market place, and that it is constitutionally subject to regulation or prohibition by the state or municipal authority. No violation of the Due Process Clause of the Fourteenth Amendment by reason of infringement of free speech arises unless such regulation or prohibition undertakes to censor the contents of the broadcasting. Freedom of speech for Kovacs does not, in my view, include freedom to use sound amplifiers to drown out the natural speech of others. I do not agree that, if we sustain regulations or prohibitions of sound trucks, they must therefore be valid if applied to other methods of “communication of ideas.” The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself, and all we are dealing with now is the sound truck. But I agree with Mr. Justice Black that this decision is a repudiation of that in Saia v. New York, 334 U. S. 98 OCTOBER TERM, 1948. Black, J., dissenting. 336 U. S. 558. Like him, I am unable to find anything in this record to warrant a distinction because of “loud and raucous” tones of this machine. The Saia decision struck down a more moderate exercise of the state’s police power than the one now sustained. Trenton, as the ordinance reads to me, unconditionally bans all sound trucks from the city streets. Lockport relaxed its prohibition with a proviso to allow their use, even in areas set aside for public recreation, when and where the Chief of Police saw no objection. Comparison of this our 1949 decision with our 1948 decision, I think, will pretty hopelessly confuse municipal authorities as to what they may or may not do. I concur in the present result only for the reasons stated in dissent in Saia v. New York, 334 U. S. 558, 566. Mr. Justice Black, with whom Mr. Justice Douglas and Mr. Justice Rutledge concur, dissenting. The question in this case is not whether appellant may constitutionally be convicted of operating a sound truck that emits “loud and raucous noises.” The appellant was neither charged with nor convicted of operating a sound truck that emitted “loud and raucous noises.” The charge against him in the police court was that he violated the city ordinance “in that he did, on South Stockton Street, in said City, play, use and operate a device known as a sound truck.” The record reflects not even a shadow of evidence to prove that the noise was either “loud or raucous,” unless these words of the ordinance refer to any noise coming from an amplifier, whatever its volume or tone. After appellant’s conviction in the- police court, the case was taken to the Supreme Court of New Jersey for review. That court, composed of three judges, stated with reference to the ordinance and charge: “In simple, KOVACS v. COOPER. 99 77 Black, J., dissenting. unambiguous language it prohibits the use upon the public streets of any device known as a sound truck, loud speaker or sound amplifier. This is the only charge made against the defendant in the complaint.” Kovacs v. Cooper, 135 N. J. L. 64, 69, 50 A. 2d 451, 453-454. That this court construed the ordinance as an absolute prohibition of all amplifiers on any public street at any time and without regard to volume of sound is emphasized by its further statement that “the ordinance leaves untouched the right of the prosecutor to express his views orally without the aid of an amplifier.” Id. at 66. (Emphasis supplied.) Thus the New Jersey Supreme Court affirmed the conviction on the ground that the appellant was shown guilty of the only offense of which he was charged—speaking through an amplifier on a public street. If as some members of this Court now assume, he was actually convicted for operating a machine that emitted “loud and raucous noises,” then he was convicted on a charge for which he was never tried. “It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U. S. 196, 201. Furthermore, when the conviction was later affirmed in the New Jersey Court of Errors and Appeals by an equally divided court, no one of that court’s judges who voted to affirm expressed any doubt as to the correctness of the New Jersey Supreme Court’s interpretation; indeed those judges wrote no opinion at all. One of the six who voted to reverse did base his judgment on the fact that there was not “a scintilla of evidence that the music or voice was loud or raucous” and that under the wording of the ordinance such proof was essential. Kovacs v. Cooper, 135 N. J. L. 584, 585, 52 A. 2d 806, 809. In construing the statute as requiring a proof of loud and 100 OCTOBER TERM, 1948. Black, J., dissenting. 336 U. S. raucous noises, the dissenting judge made the initial mistake of the majority of this Court, but he conceded that under this construction of the statute there was a fatal absence of proof to convict. The other five judges who were for reversal concluded that the ordinance represented “an attempt by the municipality under the guise of regulation, to prohibit and outlaw, under all circumstances and conditions, the use of sound amplifying systems.” Kovacs n. Cooper, supra at 590. It thus appears that the appellant was charged and convicted by interpreting the ordinance as an absolute prohibition against the use of sound amplifying devices. The New Jersey Supreme Court affirmed only on that interpretation of the ordinance. There is no indication whatever that there was a different view entertained by the six judges of the Court of Errors and Appeals who affirmed the conviction. And it strains the imagination to say that the ordinance itself would warrant any other interpretation. Nevertheless, in this Court the requisite majority for affirmance of appellant’s conviction is composed in part of Justices who give the New Jersey ordinance a construction different from that given it by the state courts. That is not all. Affirmance here means that the appellant will be punished for an offense with which he was not charged, to prove which no evidence was offered, and of which he was not convicted, according to the only New Jersey court which affirmed with opinion. At the last term of court we held that the Arkansas Supreme Court had denied an appellant due process because it had failed to appraise the validity of a conviction “on consideration of the case as it was tried and as the issues were determined in the trial court.” Cole v. Arkansas, supra at 202. I am unable to distinguish the action taken by this Court today from the action of the Arkansas Supreme Court which we declared denied a defendant due process of law. KOVACS v. COOPER. 101 77 Black, J., dissenting. The New Jersey ordinance is on its face, and as construed and applied in this case by that state’s courts, an absolute and unqualified prohibition of amplifying devices on any of Trenton’s streets at any time, at any place, for any purpose, and without regard to how noisy they may be. In Saia v. New York, 334 U. S. 558, we had before us an ordinance of the City of Lockport, New York, which forbade the use of sound amplification devices except with permission of the chief of police. The ordinance was applied to keep a minister from using an amplifier while preaching in a public park. We held that the ordinance, aimed at the use of an amplifying device, invaded the area of free speech guaranteed the people by the First and Fourteenth Amendments. The ordinance, so we decided, amounted to censorship in its baldest form. And our conclusion rested on the fact that the chief of police was given arbitrary power to prevent the use of speech amplifying devices at all times and places in the city without regard to the volume of the sound. We pointed out the indispensable function performed by loud speakers in modern public speaking. We then placed use of loud speakers in public streets and parks on the same constitutional level as freedom to speak on streets without such devices, freedom to speak over radio, and freedom to distribute literature. In this case the Court denies speech amplifiers the constitutional shelter recognized by our decisions and holding in the Saia case. This is true because the Trenton, New Jersey, ordinance here sustained goes beyond a mere prior censorship of all loud speakers with authority in the censor to prohibit some of them. This Trenton ordinance wholly bars the use of all loud speakers mounted upon any vehicle in any of the city’s public streets. In my view this repudiation of the prior Saia opinion makes a dangerous and unjustifiable breach in the consti- 102 OCTOBER TERM, 1948. Black, J., dissenting. 336 U. S. tutional barriers designed to insure freedom of expression. Ideas and beliefs are today chiefly disseminated to the masses of people through the press, radio, moving pictures, and public address systems. To some extent at least there is competition of ideas between and within these groups. The basic premise of the First Amendment is that all present instruments of communication, as well as others that inventive genius may bring into being, shall be free from governmental censorship or prohibition. Laws which hamper the free use of some instruments of communication thereby favor competing channels. Thus, unless constitutionally prohibited, laws like this Trenton ordinance can give an overpowering influence to views of owners of legally favored instruments of communication. This favoritism, it seems to me, is the inevitable result of today’s decision. For the result of today’s opinion in upholding this statutory prohibition of amplifiers would surely not be reached by this Court if such channels of communication as the press, radio, or moving pictures were similarly attacked. There are many people who have ideas that they wish to disseminate but who do not have enough money to own or control publishing plants, newspapers, radios, moving picture studios, or chains of show places. Yet everybody knows the vast reaches of these powerful channels of communication which from the very nature of our economic system must be under the control and guidance of comparatively few people. On the other hand, public speaking is done by many men of divergent minds with no centralized control over the ideas they entertain so as to limit the causes they espouse. It is no reflection on the value of preserving freedom for dissemination of the ideas of publishers of newspapers, magazines, and other literature, to believe that transmission of ideas through public speaking is also essential to the sound thinking of a fully informed citizenry. KOVACS v. COOPER. 103 77 Black, J., dissenting. It is of particular importance in a government where people elect their officials that the fullest opportunity be afforded candidates to express and voters to hear their views. It is of equal importance that criticism of governmental action not be limited to criticisms by press, radio, and moving pictures. In no other way except public speaking can the desirable objective of widespread public discussion be assured. For the press, the radio, and the moving picture owners have their favorites, and it assumes the impossible to suppose that these agencies will at all times be equally fair as between the candidates and officials they favor and those whom they vigorously oppose. And it is an obvious fact that public speaking today without sound amplifiers is a wholly inadequate way to reach the people on a large scale. Consequently, to tip the scales against transmission of ideas through public speaking, as the Court does today, is to deprive the people of a large part of the basic advantages of the receipt of ideas that the First Amendment was designed to protect. There is no more reason that I can see for wholly prohibiting one useful instrument of communication than another. If Trenton can completely bar the streets to the advantageous use of loud speakers, all cities can do the same. In that event preference in the dissemination of ideas is given those who can obtain the support of newspapers, etc., or those who have money enough to buy advertising from newspapers, radios, or moving pictures. This Court should no more permit this invidious prohibition against the dissemination of ideas by speaking than it would permit a complete blackout of the press, the radio, or moving pictures. It is wise for all who cherish freedom of expression to reflect upon the plain fact that a holding that the audiences of public speakers can be constitutionally prohibited is not unrelated to a like prohibition in other fields. And the right to freedom 104 OCTOBER TERM, 1948. Rutledge, J., dissenting. 336 U. S. of expression should be protected from absolute censorship for persons without, as for persons with, wealth and power. At least, such is the theory of our society. I am aware that the “blare” of this new method of carrying ideas is susceptible of abuse and may under certain circumstances constitute an intolerable nuisance. But ordinances can be drawn which adequately protect a community from unreasonable use of public speaking devices without absolutely denying to the community’s citizens all information that may be disseminated or received through this new avenue for trade in ideas. I would agree without reservation to the sentiment that “unrestrained use throughout a municipality of all sound amplifying devices would be intolerable.” And of course cities may restrict or absolutely ban the use of amplifiers on busy streets in the business area. A city ordinance that reasonably restricts the volume of sound, or the hours during which an amplifier may be used, does not, in my mind, infringe the constitutionally protected area of free speech. It is because this ordinance does none of these things, but is instead an absolute prohibition of all uses of an amplifier on any of the streets of Trenton at any time that I must dissent. I would reverse the judgment. Mr. Justice Rutledge, dissenting. I am in accord with the views expressed by my brother Black. I think it important, however, to point out that a majority here agree with him that the issue presented is whether a state (here a municipality) may forbid all use of sound trucks or amplifying devices in public streets, without reference to whether “loud and raucous noises” are emitted. Only a minority take the view that the Trenton ordinance merely forbids using amplifying instruments emitting loud and raucous noises. KOVACS v. COOPER. 105 77 Rutledge, J., dissenting. Yet a different majority, one including that minority and two other justices, sustain the ordinance and its application. In effect Kovacs stands convicted, but of what it is impossible to tell, because the majority upholding the conviction do not agree upon what constituted the crime. How, on such a hashing of different views of the thing forbidden, Kovacs could have known with what he was charged or could have prepared a defense, I am unable to see. How anyone can do either in the future, under this decision, I am equally at loss to say. In my view an ordinance drawn so ambiguously and inconsistently as to reflect the differing views of its meaning taken by the two groups who compose the majority sustaining it, would violate Fourteenth Amendment due process even if no question of free speech were involved. No man should be subject to punishment under a statute when even a bare majority of judges upholding the conviction cannot agree upon what acts the statute denounces. What the effect of this decision may be I cannot foretell, except that Kovacs will stand convicted and the division among the majority voting to affirm leaves open for future determination whether absolute and total state prohibition of sound trucks in public places can stand consistently with the First Amendment. For myself, I have no doubt of state power to regulate their abuse in reasonable accommodation, by narrowly drawn statutes, to other interests concerned in use of the streets and in freedom from public nuisance. But that the First Amendment limited its protections of speech to the natural range of the human voice as it existed in 1790 would be, for me, like saying that the commerce power remains limited to navigation by sail and travel by the use of horses and oxen in accordance with the principal modes of carrying on commerce in 1789. The Constitution was not drawn with any such limited vision of time, space 106 OCTOBER TERM, 1948. Syllabus. 336 U. S. and mechanics. It is one thing to hold that the states may regulate the use of sound trucks by appropriately limited measures. It is entirely another to say their use can be forbidden altogether. To what has been said above and by Mr. Justice Black, I would add only that I think my brother Frankfurter demonstrates the conclusion opposite to that which he draws, namely, that the First Amendment guaranties of the freedoms of speech, press, assembly and religion occupy preferred position not only in the Bill of Rights but also in the repeated decisions of this Court. RAILWAY EXPRESS AGENCY, INC. et al. v. NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 51. Argued December 6, 1948.—Decided January 31, 1949. A New York City traffic regulation forbids the operation of any advertising vehicle on the streets, but excepts vehicles which have upon them business notices or advertisements of the products of the owner and which are not used merely or mainly for advertising. An express company, which sold space on the exterior sides of its trucks for advertising and which operated such trucks on the streets, was convicted and fined for violating the ordinance. Upon review here of the state court judgment, held: 1. The regulation does not violate the due process clause of the Fourteenth Amendment. Pp. 108-109. (a) The function of this Court upon such review is not to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate, nor to pass judgment on the wisdom of the regulation. P. 109. (b) This Court can not say that the regulation has no relation to the traffic problem of the City. P. 109. 2. The exemption of vehicles having upon them advertisements of products sold by the owner does not render the regulation a denial of the equal protection of the laws. Pp. 109-110. RAILWAY EXPRESS v. NEW YORK. 107 106 Opinion of the Court. (a) This Court can not say that the advertising which is forbidden has less incidence on traffic than that which is exempted. P. 110. (b) The regulation is not rendered invalid by the fact that it does not extend to what may be even greater distractions affecting traffic safety, such as the spectacular displays at Times Square. P. 110. 3. The regulation does not burden interstate commerce in violation of Art. I, § 8 of the Federal Constitution. P. 111. (a) Where traffic control and the use of highways are involved, and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce. P. 111. 297 N. Y. 703, 77 N. E. 2d 13, affirmed. Appellant was convicted and fined for violation of a traffic regulation of the City of New York. The conviction was sustained by the Court of Special Sessions. 188 Mise. 342, 67 N. Y. S. 2d 732. The Court of Appeals affirmed. 297 N Y. 703, 77 N. E. 2d 13. On appeal to this Court, affirmed, p. 111. Ralph M. Carson argued the cause for appellants. With him on the brief were William R. Meagher and James V. Lione. Stanley Buchsbaum argued the cause for appellee. With him on the brief were John P. McGrath and Seymour B. Quel. Mr. Justice Douglas delivered the opinion of the Court. Section 124 of the Traffic Regulations of the City of New York1 promulgated by the Police Commissioner provides: “No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; pro 1This regulation was promulgated by the Police Commissioner pursuant to the power granted the police department under § 435 108 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. vided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used merely or mainly for advertising.” Appellant is engaged in a nation-wide express business. It operates about 1,900 trucks in New York City and sells the space on the exterior sides of these trucks for advertising. That advertising is for the most part unconnected with its own business.2 It was convicted in the magistrate’s court and fined. The judgment of conviction was sustained in the Court of Special Sessions. 188 Mise. 342, 67 N. Y. S. 2d 732. The Court of Appeals affirmed without opinion by a divided vote. 297 N. Y. 703, 77 N. E. 2d 13. The case is here on appeal. Judicial Code § 237 (a), 28 U. S. C. § 344 (a), as amended, now 28 U. S. C. § 1257. The Court in Fifth Ave. Coach Co. V. New York, 221 U. S. 467, sustained the predecessor ordinance to the present regulation over the objection that it violated the due process and equal protection clauses of the Fourteenth Amendment. It is true that that was a municipal of the New York City Charter which provides as follows: “The police department and force shall have the power and it shall be their duty to . . . regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; . . . The commissioner shall make such rules and regulations for the conduct of pedestrian and vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary . . . .” 2 The advertisements for which appellant was convicted consisted of posters from three by seven feet to four by ten feet portraying Camel Cigarettes, Ringling Brothers and Barnum & Bailey Circus, and radio station WOR. Drivers of appellant’s trucks carrying advertisements of Prince Albert Smoking Tobacco and the United States Navy were also convicted. RAILWAY EXPRESS v. NEW YORK. 109 106 Opinion of the Court. ordinance resting on the broad base of the police power, while the present regulation stands or falls merely as a traffic regulation. But we do not believe that distinction warrants a different result in the two cases. The Court of Special Sessions concluded that advertising on vehicles using the streets of New York City constitutes a distraction to vehicle drivers and to pedestrians alike and therefore affects the safety of the public in the use of the streets.3 We do not sit to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom. See Olsen v. Nebraska, 313 U. S. 236. We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false. The question of equal protection of the laws is pressed more strenuously on us. It is pointed out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. It is argued that unequal treatment on the basis of such a distinction is not justified by the aim and purpose of the regulation. It is said, for example, that one of appellant’s trucks carrying the advertisement of a commercial house would not cause any greater distraction of pedestrians and vehicle drivers than if the 3 The element of safety was held to be one of the standards by which the regulations of the Police Commissioner were to be judged. We accept that construction of the authority of the Police Commissioner under § 435 of the Charter, note 1, supra. See Price v. Illinois, 238 U. S. 446, 451; Hartford Accident Co. v. Nelson Co., 291 U. S. 352, 358; Central Hanover Bank Co. v. Kelly, 319 U. S. 94, 97. 110 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. commercial house carried the same advertisement on its own truck. Yet the regulation allows the latter to do what the former is forbidden from doing. It is therefore contended that the classification which the regulation makes has no relation to the traffic problem since a violation turns not on what kind of advertisements are carried on trucks but on whose trucks they are carried. That, however, is a superficial way of analydng the problem, even if we assume that it is premised on the correct construction of the regulation. The local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case. If that judgment is correct, the advertising displays that are exempt have less incidence on traffic than those of appellants. We cannot say that that judgment is not an allowable one. Yet if it is, the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. Patsone v. Pennsylvania, 232 U. S. 138, 144; Marcus Brown Co. v. Feldman, 256 U. S. 170, 198-199; Metropolitan Co. v. Brownell, 294 U. S. 580, 585-586. And the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. Central Lumber Co. v. South Dakota, 226 U. S. 157, 160. RAILWAY EXPRESS v. NEW YORK. Ill 106 Jackson, J., concurring. It is finally contended that the regulation is a burden on interstate commerce in violation of Art. I, § 8 of the Constitution. Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce. The case in that posture is controlled by S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177, 187 et seq. And see Maurer v. Hamilton, 309 U. S. 598. Affirmed. Mr. Justice Rutledge acquiesces in the Court’s opinion and judgment, dubitante on the question of equal protection of the laws. Mr. Justice Jackson, concurring. There are two clauses of the Fourteenth Amendment which this Court may invoke to invalidate ordinances by which municipal governments seek to solve their local problems. One says that no state shall “deprive any person of life, liberty, or property, without due process of law.” The other declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” My philosophy as to the relative readiness with which we should resort to these two clauses is almost diametrically opposed to the philosophy which prevails on this Court. While claims of denial of equal protection are frequently asserted, they are rarely sustained. But the Court frequently uses the due process clause to strike down measures taken by municipalities to deal with activities in their streets and public places which the local 823978 0—49---12 112 OCTOBER TERM, 1948. Jackson, J., concurring. 336 U. 8. authorities consider as creating hazards, annoyances or discomforts to their inhabitants. And I have frequently dissented when I thought local power was improperly denied. See, for example, opinion in Douglas n. Jeannette and companion cases, 319 U. S. 157, 166; and dissents in Saia v. New York, 334 U. S. 558, 566; Prince v. Massachusetts, 321U. S. 158,176. The burden should rest heavily upon one who would persuade us to use the due process clause to strike down a substantive law or ordinance. Even its provident use against municipal regulations frequently disables all government—state, municipal and federal—from dealing with the conduct in question because the requirement of due process is also applicable to State and Federal Governments. Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable. Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and/thus to escape the political retribution that might be visited upon them if larger numbers were af- RAILWAY EXPRESS v, NEW YORK. 113 106 Jackson, J., concurring. fected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. This case affords an illustration. Even casual observations from the sidewalks of New York will show that an ordinance which would forbid all advertising on vehicles would Tun into conflict with many interests, including some, if not all, of the great metropolitan newspapers, which use that advertising extensively. Their blandishment of the latest sensations is not less a cause of diverted attention and traffic hazard than the commonplace cigarette advertisement which this truck-owner is forbidden to display. But any regulation applicable to all such advertising would require much clearer justification in local conditions to enable its enactment than does some regulation applicable to a few. I do not mention this to criticize the motives of those who enacted this ordinance, but it dramatizes the point that we are much more likely to find arbitrariness in the regulation of the few than of the many. Hence, for my part, I am more receptive to attack on local ordinances for denial of equal protection than for denial of due process, while the Court has more often used the latter clause. In this case, if the City of New York should assume that display of any advertising on vehicles tends and intends to distract the attention of persons using the highways and to increase the dangers of its traffic, I should think it fully within its constitutional powers to forbid it all. The same would be true if the City should undertake to eliminate or minimize the hazard by any generally applicable restraint, such as limiting the size, color, shape or perhaps to some extent the contents of vehicular advertising. Instead of such general regulation of advertising, however, the City seeks to reduce the hazard only by saying that while some may, others may not exhibit such appeals. The same display, for exam- 114 OCTOBER TERM, 1948. Jackson, J., concurring. 336 U. S. pie, advertising cigarettes, which this appellant is forbidden to carry on its trucks, may be carried on the trucks of a cigarette dealer and might on the trucks of this appellant if it dealt in cigarettes. And almost an identical advertisement, certainly one of equal size, shape, color and appearance, may be carried by this appellant if it proclaims its own offer to transport cigarettes. But it may not be carried so long as the message is not its own but a cigarette dealer’s offer to sell the same cigarettes. The City urges that this applies equally to all persons of a permissible classification, because all that it does is (1) forbid all inhabitants of New York City from engaging in the business of selling advertising space on trucks which move as part of the city traffic; (2) forbid all truck owners from incidentally employing their vehicles for such purpose, with the exception that all truck owners can advertise their own business on their own trucks. It is argued that, while this does not eliminate vehicular advertising, it does eliminate such advertising for hire and to this extent cuts down the hazard sought to be controlled. That the difference between carrying on any business for hire and engaging in the same activity on one’s own is a sufficient one to sustain some types of regulations of the one that is not applied to the other, is almost elementary. But it is usual to find such regulations applied to the very incidents wherein the two classes present different problems, such as in charges, liability and quality of service. The difference, however, is invoked here to sustain a discrimination in a problem in which the two classes present identical dangers. The courts of New York have declared that the sole nature and purpose of the regulation before us is to reduce traffic hazards. There is not even a pretense here that the traffic hazard created RAILWAY EXPRESS v. NEW YORK. 115 106 Jackson, J., concurring. by the advertising which is forbidden is in any manner or degree more hazardous than that which is permitted. It is urged with considerable force that this local regulation does not comply with the equal protection clause because it applies unequally upon classes whose differentiation is in no way relevant to the objects of the regulation. As a matter of principle and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purpose. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance. See, for example, Mayflower Farms v. Ten Eyck, 297 U. S. 266; Smith v. Cahoon, 283 U. S. 553. In the latter case a motor vehicle regulation was struck down upon citation of many authorities because “such a classification is not based on anything having relation to the purpose for which it is made.” 283 U. S. 553, 567. If that were the situation here, I should think we should reach a similar conclusion. The question in my mind comes to this. Where individuals contribute to an evil or danger in the same way and to the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends but not for hire be allowed to continue? I think the answer has to be that the hireling may be put in a class by himself and may be dealt with differently than those who act on their own. But this is not merely because such a discrimination will enable the lawmaker to diminish the evil. That might be done by many classifications, which I should think wholly unsustainable. 116 OCTOBER TERM, 1948. Jackson, J., concurring. 336 U. S. It is rather because there is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price. Certainly the presence or absence of hire has been the hook by which much highway regulation has been supported. Rights usual to passengers may be denied to the nonpaying guest in an automobile to limit vexatious litigation. Silver v. Silver, 280 U. S. 117. A state may require security against injuries from one using the highways for hire that it does not exact from others because, as Mr. Justice Sutherland put it, “The streets belong to the public and are primarily for the use of the public in the ordinary way. Their use for the purposes of gain is special and extraordinary and, generally at least, may be prohibited or conditioned as the legislature deems proper.” Packard v. Banton, 264 U. S. 140, 144. In the case of those who let out automobiles to those who drive them, the Court, through Mr. Justice Butler, said of the State, “It may prohibit or condition as it deems proper the use of city streets as a place for the carrying on of private business.” Hodge Co. v. Cincinnati, 284 U. S. 335, 337. See also Sproles v. Binford, 286 U. S. 374,393; Stephenson v. Binford, 287 U. S. 251, 278; Hicklin v. Coney, 290 U. S. 169; Stanley v. Public Utilities Commission, 295 U. S. 76; Aero Transit Co. v. Georgia Commission, 295 U. S. 285; Dixie Ohio Express Co. v. State Revenue Commission, 306 U. S. 72. The rule was flatly stated for the Court by Mr. Justice Brandeis: “In dealing with the problem of safety of the highways, as in other problems of motor transportation, the State may adopt measures which favor vehicles used solely in the business of their owners, as distinguished from those which are operated for hire by carriers who use the highways as their place of business.” Bradley v. Public Utilities Commission, 289 RAILWAY EXPRESS v. NEW YORK. 117 106 Jackson, J., concurring. U. S. 92, 97. However, it is otherwise if the discriminations within the regulated class are based on arbitrary-differences as to commodities carried having no relation to the object of the regulation. Smith v. Cahoon, 283 U. S. 553. See also Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389. Of course, this appellant did not hold itself out to carry or display everybody’s advertising, and its rental of space on the sides of its trucks was only incidental to the main business which brought its trucks into the streets. But it is not difficult to see that, in a day of extravagant advertising more or less subsidized by tax deduction, the rental of truck space could become an obnoxious enterprise. While I do not think highly of this type of regulation, that is not my business, and in view of the control I would concede to cities to protect citizens in quiet and orderly use for their proper purposes of the highways and public places (see dissent in Saia v. New York, 334 U. S. 558, 566), I think the judgment below must be affirmed. 118 OCTOBER TERM, 1948. Syllabus. 336 U. S. GOGGIN, TRUSTEE IN BANKRUPTCY, v. DIVISION OF LABOR LAW ENFORCEMENT OF CALIFORNIA. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 35. Argued November 15, 1948.—Decided January 31, 1949. 1. A tax claim of the United States which, at the time of the filing of a petition in bankruptcy, was secured by a perfected lien and accompanied by a Collector of Internal Revenue’s possession of personal property of the bankrupt is entitled to priority of payment out of the proceeds of that property, over claims for wages of the kind specified in § 64a (2) of the Bankruptcy Act, and is not required by § 67c to be postponed in payment to such claims by reason of the Collector’s subsequent relinquishment of possession of the property to the trustee in bankruptcy for sale by him. Pp. 119-131. 2. The priority of the tax lien over the wage claims must be determined as of the time of the filing of the petition in bankruptcy and is unaffected by an arrangement under which possession of the property is subsequently relinquished to the trustee for sale by him. Pp. 124-126. 3. Although § 67c was added to the Bankruptcy Act by the Chandler Act in 1938, there is nothing in it or in its legislative history to suggest an abandonment of the underlying point of view as to the time as of which it speaks and the general purpose of Congress to continue to safeguard interests under liens perfected before bankruptcy. Pp. 126-130. 165 F. 2d 155, reversed. The Division of Labor Law Enforcement of the State of California, as assignee of certain claims for wages, petitioned the District Court for review of an order of the referee in bankruptcy which gave certain tax liens of the United States priority over all other claimants against the estate of a bankrupt after payment of the expenses of administration. The District Court adopted the findings of fact and conclusions of the referee and GOGGIN v. CALIFORNIA LABOR DIV. 119 118 Opinion of the Court. entered judgment thereon. The Court of Appeals reversed. 165 F. 2d 155. This Court granted certiorari. 333 U. S. 860. Reversed, p. 131. Martin Gendel argued the cause and filed a brief for petitioner. By special leave of Court, Robert W. Ginnane argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle and A. F. Prescott. Edward M. Belasco argued the cause for respondent. With him on the brief were Fred M. Howser, Attorney General of California, and Frank W. Richards, Deputy Attorney General. Mr. Justice Burton delivered the opinion of the Court. This case deals with the question whether § 67c of the Bankruptcy Act,1 in determining priorities in the payment of claims, speaks as of the time of filing the petition 1 As § 67b is referred to in § 67c and is material to its interpretation, both subdivisions of § 67 are quoted below: “Sec. 67. Liens and Fraudulent Transfers.— . . . “b. The provisions of section 60 of this Act to the contrary notwithstanding, statutory liens in favor of employees, contractors, mechanics, landlords, or other classes of persons, and statutory liens for taxes and debts owing to the United States or any State or subdivision thereof, created or recognized by the laws of the United States or of any State, may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition in bankruptcy or of the original petition under chapter X, XI, XII, or XIII of this Act, by or against him. Where by such laws such liens are required to be perfected and arise but are not perfected before bankruptcy, they may nevertheless be valid, if perfected within the time permitted by and in accordance with the requirements of such laws, except that if such 120 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. in bankruptcy. The precise issue presented is whether a tax claim of the United States, secured by a lien perfected before the bankruptcy of the taxpayer and accompanied, at the time of the filing of the petition in bankruptcy, by the Collector of Internal Revenue’s actual possession of the bankrupt’s personal property, is required by § 67c of the Bankruptcy Act to be postponed in payment to debts owed by the bankrupt for wages to claimants specified in clause (2) of § 64a of that Act,2 because the Col-laws require the liens to be perfected by the seizure of property, they shall instead be perfected by filing notice thereof with the court. “c. Where not enforced by sale before the filing of a petition in bankruptcy or of an original petition under chapter X, XI, XII, or XIII of this Act, though valid under subdivision b of this section, statutory liens, including liens for taxes or debts owing to the United States or to any State or subdivision thereof, on personal property not accompanied by possession of such property, and liens whether statutory or not, of distress for rent shall be postponed in payment to the debts specified in clauses (1) and (2) of subdivision a of section 64 of this Act, and, except as against other liens, such liens for wages or for rent shall be restricted in the amount of their payment to the same extent as provided for wages and rent respectively in subdivision a of section 64 of this Act.” (Italics supplied.) Bankruptcy Act of 1898, c. 541, 30 Stat. 544, 564, as amended by the Chandler Act of June 22, 1938, c. 575, 52 Stat. 840, 875-877, 11 U. S. C.§ 107 (b) and (c). 2 Not only the portions of § 64a specifying the wages here in controversy but those otherwise related to the issues of this case are quoted below: “Sec. 64. Debts Which Have Priority.—a. The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition; the fees for the referees’ salary fund and for the referees’ expense fund; the filing fees paid by creditors in involuntary cases; where property of the bankrupt, transferred or concealed by him either before or after the filing of the petition, shall have been recovered for the benefit of the estate of the GOGGIN v. CALIFORNIA LABOR DIV. 121 118 Opinion of the Court. lector later relinquished possession of such property to the trustee of the bankrupt’s estate for sale by him. We hold that the lien was valid and entitled to priority of payment as against the wage claims at the date of bankruptcy and that the Collector’s relinquishment of possession of the bankrupt’s property did not change the result. The facts are undisputed. Before March 26, 1946, a Collector of Internal Revenue of the United States per- bankrupt by the efforts and at the cost and expense of one or more creditors, the reasonable costs and expenses of such recovery; the costs and expenses of administration, including the trustee’s expenses in opposing the bankrupt’s discharge, the fees and mileage payable to witnesses as now or hereafter provided by the laws of the United States, and one reasonable attorney’s fee, for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases and to the bankrupt in voluntary and involuntary cases, as the court may allow; (2) wages, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; ... (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof: Provided, That no order shall be made for the payment of a tax assessed against any property of the bankrupt in excess of the value of the interest of the bankrupt estate therein as determined by the court: And provided further, That, in case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court; and (5) debts owing to any person, inchiding the United States, who by the laws of the United States in [is] entitled to priority, and rent owing to a landlord who is entitled to priority by applicable State law: Provided, however, That such priority for rent to a landlord shall be restricted to the rent which is legally due and owing for the actual use and occupancy of the premises affected, and which accrued within three months before the date of bankruptcy.” (Italics supplied.) Bankruptcy Act of 1898, c. 541, 30 Stat. 544, 563, as amended by the Chandler Act of June 22, 1938, c. 575, 52 Stat. 840, 874, and 60 Stat. 323,330,llU.S.C.§104(a). 122 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. fected a statutory lien upon the personal property of the Kessco Engineering Corporation, a California corporation, and took actual possession of such property pursuant to that lien. He attempted to sell such assets and received bids for them but did not complete the sale because the price obtainable was unsatisfactory to him. He instituted a second sale but abandoned it when he relinquished possession of the property to the trustee of the bankrupt’s estate. On March 26, 1946, the corporation filed its voluntary petition in bankruptcy in the United States District Court for the Southern District of California, was adjudicated a bankrupt and George T. Goggin (who later became the trustee of the bankrupt’s estate and is the petitioner herein) was appointed receiver. Having qualified as receiver on March 28, 1946, he communicated with counsel for the Collector as to the Collector’s turning over to him the bankrupt’s personal property. In this connection, the referee in bankruptcy later made a finding of fact which was adopted by the District Court and is as follows : . . the personal property of the bankrupt in the hands of the Collector of Internal Revenue, . . . was turned over to the said George T. Goggin, who accepted the terms and conditions of a telegram from J. P. Wench el, Chief Counsel of the Bureau of Internal Revenue, reading as follows: “ ‘Reference to telephone conversation today with Mr. Webb [member of the Los Angeles office of Internal Revenue] relative to Kessco Engineering Corporation, Bankrupt, no objection by this office to Collector relinquishing personal property to Trustee for sale. Government’s lien to attach to proceeds from sale subject to Trustee’s expenses including costs of sale. J. P. Wenchel, Chief Counsel.’ ” GOGGIN v. CALIFORNIA LABOR DIV. 123 118 Opinion of the Court. Goggin, in his final capacity as trustee for the bankrupt, caused these assets to be sold at public auction, pursuant to order of court. Having liquidated all assets which had come into his possession, he had on hand, on December 12, 1946, about $31,206.20, which the referee certified was insufficient to pay in full the expenses of administration, the lien claims, the prior labor claims and prior tax claims in the case. The gross amount of the amended claim of the Collector for taxes, penalties and interest was $78,865.03. The prior wage claims totaled $3,424.87. The Department of Employment of the State of California also filed a tax claim for $15,135, which was recorded as a lien on or about December 24, 1945. Neither the validity nor the amount of any of these claims is in issue here.3 The present proceeding originated in a petition filed with the referee in bankruptcy by the trustee, seeking an order to show cause why the order of priority of the payment of the tax and prior wage claims and the expenses of administration should not be determined by the District Court. The referee made findings of fact and reached conclusions of law upon the basis of which he ordered that, from the monies in the possession of the trustee, 3 There is no issue here as to the amount of penalties or interest included in the Collector’s claim for taxes or as to the date to which interest on such claim shall be computed. There is no issue here as to any difference between statutory liens which were perfected more than four months before the filing of the petition in bankruptcy or those perfected within less than that time. As the lien claimed by the United States exceeds the funds available, it has filed its brief in this Court as the sole real party in interest and in opposition to the wage claims. The respondent, Division of Labor Law Enforcement of the State of California, appears on behalf of all of the labor claimants. There also is no issue here as to the amount to be paid for the expenses of administration or the items which such expenses may include in addition to the costs of the sale made by the trustee. 124 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. there first be paid the expenses of administration and that the balance of such funds then in the hands of the trustee be paid to the Collector of Internal Revenue in partial payment of the Government’s tax claims and the interest thereon as prescribed by law.4 The District Court adopted the findings of fact and conclusions of law of the referee and entered judgment thereon. The Court of Appeals for the Ninth Circuit reversed that judgment and held that, by virtue of the Collector’s relinquishment of his possession of the personal property of the bankrupt, the taxes due to the United States must be postponed, in payment, to the debts of the bankrupt for certain wage claims, pursuant to § 67c of the Bankruptcy Act. 165 F. 2d 155. Because of the importance of the issue in the administration of the Bankruptcy Act, we granted certiorari. 333 U. S. 860. The bankrupt filed its petition and was adjudicated a bankrupt on March 26, 1946. The personal property of the bankrupt was then subject to the perfected statutory lien of the United States for taxes and that lien was accompanied by the actual physical possession of the property by a Collector of Internal Revenue on behalf of the United States. Those facts completely satisfy § 67c of the Bankruptcy Act.5 Subsequent events, such as the relinquishment of his possession by the Collector in favor of the trustee of the bankrupt’s estate for the purpose of facilitating a sale of the property by the trustee, are not material to the determination of the 4 Provision, not material here, was made that, if additional money came into the possession of the trustee, the court, upon notice to all necessary and proper parties, should determine the respective liens or priorities, if any there be, of the Collector of Internal Revenue, the prior labor claimants, the Department of Employment of the State of California and other tax claimants entitled to be heard. 5 See note 1, supra. GOGGIN v. CALIFORNIA LABOR DIV. 125 118 Opinion of the Court. issue before us.6 The terms under which the Collector’s possession was relinquished are consistent with and support this result but the Government’s right to payment ahead of the wage claims was determined at the time of bankruptcy and did not arise out of the arrangement under which possession was relinquished to the trustee. This general point of view in interpreting the Bankruptcy Act is one of long standing. In Everett v. Judson, 228 U. S. 474, 479, this Court said: “We think that the purpose of the law was to fix the line of cleavage with reference to the condition 8 See Davis v. City of New York, 119 F. 2d 559. In that case the City perfected its lien for retail sales taxes by seizure of assets of the taxpayer, May 16, 1939. An involuntary petition in bankruptcy was filed, June 7, 1939, against the taxpayer and it was adjudicated a bankrupt, June 17,1939. The assets were thereafter sold in execution of the warrant issued by the city treasurer. The levy was held to be a valid statutory levy as against the trustee of the bankrupt’s estate and the City was allowed to retain the proceeds of the sale, under §§ 67b and 67c of the Bankruptcy Act, as amended in 1938. For a converse situation see City of New York v. Hall, 139 F. 2d 935. In that case the City perfected its lien on personal property of the taxpayer, arising out of long delinquent business and sales taxes, by the delivery of warrants on January 14, 1943, at 10:15 a. m., to the city’s warrant agent for execution and levy on the property. The actual levy on, and inventory of, the property and the posting of notices of sale were not effected until shortly after 4:30 p. m. In the meantime, at 4:22 p. m., an involuntary petition in bankruptcy was filed against the taxpayer and upon this he was adjudicated a bankrupt. Pursuant to an order of the bankruptcy court, a receiver sold the property and the court declined to order the net proceeds to be turned over to the City. The City was the holder of a statutory lien but, at the time of the filing of the petition in bankruptcy, the lien was not accompanied by actual possession of the personal property to which it attached. It, therefore, was subordinated, under § 67c of the Bankruptcy Act, to the administration expenses and wages covered by clauses (1) and (2) of § 64a. “Notwithstanding the admonition of Section 67, sub. c, the City chose to slumber on its rights. Congress intended to penalize such somnolence.” Id. at p. 936. 126 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. of the bankrupt estate as of the time at which the petition was filed and that the property which vests in the trustee at the time of adjudication is that which the bankrupt owned at the time of the filing of the petition.” See also, Myers n. Matley, 318 U. S. 622, 626; United States v. Marxen, 307 U. S. 200,207-208; Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 307.7 While § 67c was added to the Bankruptcy Act by the Chandler Act in 1938, we find nothing in it or in its legislative history to suggest an abandonment of the underlying point of view as to the time as of which it speaks and the general purpose of Congress to continue to safe- 7 “Section 1. Meaning of Words and Phrases.—The words and phrases used in this Act and in proceedings pursuant hereto shall, unless the same be inconsistent with the context, be construed as follows: “(13) ‘Date of bankruptcy’, ‘time of bankruptcy’, ‘commencement of proceedings’, or ‘bankruptcy’, with reference to time, shall mean the date when the petition was filed; . . . .” 30 Stat. 544, as amended by 52 Stat. 840-841. “. . . the rights of creditors are fixed by the Bankruptcy Act as of the filing of the petition in bankruptcy. This is true both as to the bankrupt and among themselves. The assets at that time are segregated for the benefit of creditors. The transfer of the assets to someone for application to ‘the debts of the insolvent, as the rights and priorities of creditors may be made to appear’ [citing Bramwell n. U. S. Fidelity & Guaranty Co., 269 U. S. 483, 490], takes place as of that time.” United States v. Marxen, 307 U. S. 200, 207-208. “The general rule in bankruptcy is that the filing of the petition freezes the rights of all parties interested in the bankrupt estate. Exceptions only emphasize the rule. Whatever disagreement in opinion there may have been on the matter prior to the Act of 1938, it is now clear that statutory liens may be valid if they arise before bankruptcy although they are perfected after bankruptcy, if the perfection is within the time permitted by and in accordance with the requirements of applicable law.” 4 Collier on Bankruptcy 228-229 (14th ed. 1942). GOGGIN v. CALIFORNIA LABOR DIV. 127 118 Opinion of the Court. guard interests under liens perfected before bankruptcy. City of Richmond v. Bird, 249 U. S. 174; In re Knox-Powell-Stockton Co., 100 F. 2d 979; In re Van Winkle, 49 F. Supp. 711. While § 64, as amended, somewhat readjusts priorities among unsecured claims, § 67 continues to recognize the validity of liens perfected before bankruptcy as against unsecured claims. Section 67b has clarified the validity of statutory liens, including those for taxes, even though arising or perfected while the debtor is insolvent and within four months of the filing of the petition in bankruptcy. It expressly recognizes that the validity of liens existing at the time of filing a petition in bankruptcy may be perfected under some circumstances after bankruptcy. Section 67c, as amended in 1938, does, however, introduce a new postponement in the payment of certain claims secured by liens to the payment of other claims specified in clauses (1) (for certain administrative expenses, etc.) and (2) (for certain wages) of § 64a. This subordination is, however, sharply limited. For example, it does not apply to statutory liens on real property, or to those actually enforced by sale before bankruptcy, or, in general, to liens on personal property when accompanied by actual possession of such property. The background of § 67c suggests a conscious purpose to give a narrowly limited priority to administrative expenses and to certain wage claims, at least in instances disclosing accumulations of unpaid taxes the priority of which wage earners had no good reason to suspect, and which might absorb the entire estate of the bankrupt unless postponed by these provisions.8 The 8 These provisions apparently originated in Amendments proposed by the National Bankruptcy Conference which were before Congress in a Committee Report Analysis of H. R. 12889, 74th Cong., 2d Sess. (1936). This report states that the bill was introduced by Mr. Chandler, May 28, 1936, containing Amendments proposed by the National Bankruptcy Conference, and the several Sections are ac-823978 0-49--13 128 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. purpose of § 67 in requiring a public warning of the existence of an enforceable statutory lien for taxes was served in the instant case not only by the steps taken to perfect companied by explanatory notes. Section 67c, as there proposed, resembles substantially the Section as finally enacted. The note explanatory of it, attributed to Jacob I. Weinstein, a member of the Conference, includes the following statement : “Section 64 [of the Bankruptcy Act before amendment by the Chandler Act] is declaratory of a policy that the costs and expenses in connection with a bankruptcy proceeding and its administration shall be first paid in distribution. It is a sound policy and is in accordance with the general principles well established in liquidation proceedings. But Section 67 of the Act does not apply the same limitation with respect to valid liens. The Supreme Court, in the case of City of Richmond v. Bird, [249 U. S. 174,] 43 A. B. R. 260 (1919), resolved the conflict in the lower court decisions by holding that the priority provisions of Section 64 do not apply to liens valid under Section 67. . . . “It is significant that in recent years state legislatures have been enacting special legislation in favor of tax claims, public debts, and a variety of private claims. Statistics in the bankruptcy cases show that the effective administration of the bankruptcy law has seriously suffered therefrom. Such claims, particularly tax liens, often consume the entire estate, leaving nothing for the payment of the costs and expenses of administration incurred in reducing the assets to cash. In many such cases the tax liens represent an accumulation of delinquent items covering a long period of time, without any attempt on the part of tax collectors to enforce payment prior to the bankruptcy proceeding. “There is therefore need for a provision to protect the administration costs and expenses; and similar considerations apply to wage claims. Accordingly we have selected, from among the priorities fixed by Section 64 (as revised), these particular items for protection. However, by reason of the historical development and the inherent differences existing in the incidents attaching to real and personal property, it would seem advisable to restrict the remedy thus provided to liens on personal property, where such liens have not been enforced by sale prior to bankruptcy.” (Italics supplied.) Id. at p. 212 n. 1. At that time the bill did not also except from subordination statutory tax liens on personal property “accompanied by possession of GOGGIN v. CALIFORNIA LABOR DIV. 129 118 Opinion of the Court. the Government’s lien but by the Collector’s seizure and actual possession of the personal property of the taxpayer before the filing of the taxpayer’s petition in bankruptcy. such property.” The addition of that clause gives it special emphasis and suggests its appropriate effect as a warning to other claimants that the property, so possessed, will not be available in the first instance for the administrative expenses and wage claims specified in clauses (1) and (2) of § 64a. The report filed by Mr. Chandler for the Committee on the Judiciary, July 29, 1937, to accompany the bill then known as H. R. 8046 merely stated: “In subdivisions b and c statutory liens are protected and permitted to be perfected if the time allowed by law for perfecting them has not expired.” H. R. Rep. No. 1409, 75th Cong., 1st Sess. 34 (1937), and see references to §§64 and 67c on pp. 9, 15-16. See also, Weinstein, The Bankruptcy Law of 1938 (1938): “This subdivision is new and is designed to correct an inequitable condition which existed under the old Act, particularly with respect to tax liens allowed, through the inaction of tax authorities, to be accumulated over a long period of time. Frequently, such liens consumed the entire estate, even to the exclusion of the costs and expenses incurred in the proceeding. While subd. a of sec. 64 provides for priority of payment of such costs and expenses, such payment is prior only to the other unsecured debts and does not affect or impair valid liens, whether statutory or otherwise. But tax claims may take the form of unsecured debts due to the sovereign, and thus payable by way of priority in the order as provided in sec. 64, or the form of liens created by local statutes. As indicated, if the tax claim takes the form of a lien, or is reduced to the form of a lien, it is not affected by the provisions of sec. 64. In view of the inequitable condition above referred to, there was need for a provision to protect the administration costs and expenses, and like considerations of public policy required a similar protection for wage claimants. However, the historical development, and the inherent differences in the incidents attaching to real and personal property, made it advisable to restrict the remedy provided by this paragraph to liens on personal property; but, in respect even to personal property, the provisions are applicable only where the property has not been reduced to possession or where the liens have not been enforced by sale prior to bankruptcy.” (Italics supplied in the second instance.) (At pp. 144-145.) 130 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. The validity of the lien for taxes as against the wage claimants was thus established at the time of the filing of the petition in bankruptcy and the Collector’s possession of the personal property of the bankrupt excluded the application of § 67c which otherwise would have postponed the payment of the tax claims to the payment of the claims for administrative expenses and wages specified in clauses (1) and (2) of § 64a. By his subsequent arrangement with the trustee for the sale of the bankrupt’s property, the Collector did not lose the right to priority of payment accorded to the perfected tax liens, at the time of bankruptcy, as against the wage claims. The arrangement between the Collector and the trustee was a natural and proper one. While the amended claim for taxes, penalties and interest, dated August 28, 1946, amounted to $78,865.03, the original claim, filed with the notices of lien prior to March 26, 1946, amounted to only $40,921.94 (even including the interest and costs later computed to August 21, 1946). Of this sum the taxes themselves amounted only to $34,848.04. To meet this, the trustee of the bankrupt’s estate, on December 12, 1946, had on hand $31,206.20, evidently derived from the sale of the property originally held by the Collector. These figures, accordingly, suggest the possibility that, in March, 1946, it reasonably may have been supposed that a surplus above the amount of the Government’s tax claim might be realized from the sale of the assets then in the possession of the Collector. In that event, it would have been the obviously appropriate procedure for the trustee to sell that property free and clear of liens and encumbrances and then distribute the proceeds to the rightful claimants. Even though there was little or no prospect of realizing such a surplus, it was reasonable and appropriate for the trustee, with the consent of the lien holder, thus to sell the property and distribute its proceeds. See Van Huff el v. Harkelrode, 284 U. S. 225; 6 GOGGIN v. CALIFORNIA LABOR DIV. 131 118 Opinion of the Court. Remington on Bankruptcy §§ 2577-2578 (4th ed. 1937).9 The propriety of the present conclusion is emphasized by the fact that the opposite conclusion would, in many other cases, operate to the detriment both of unsecured creditors and of the statutory lien holders. It would compel a lien holder to retain his actual possession of the property in order to be sure of his full priority in the payment of his tax claim. He would be compelled to do this, even though by doing so the bankrupt’s property probably would yield a smaller sales price than if sold by the trustee. Furthermore, the lien holder would be brought into sharp conflict with the trustee whenever there was reason to suppose that the proceeds of the sale might equal or exceed the tax claims secured by the lien. Under such circumstances the bankruptcy court generally may order the sale of the bankrupt’s property by the trustee, free and clear of liens and encumbrances. See 4 Collier on Bankruptcy § § 70.97, 70.99 (14th ed. 1942) ; 6 Remington on Bankruptcy § 2583 (4th ed. 1937). Accordingly, we find no substantial support for the argument that the lien holder’s voluntary relinquishment of his possession of the bankrupt’s property, in favor of the bankrupt’s trustee, for the purpose of permitting the trustee to sell the property in this case, must carry with it, as a matter of law, a postponement of the payment of the lien holder’s tax claim to that of the claims for wages here presented. For these reasons the judgment of the Court of Appeals is Reversed. 9 The only question then arising would be as to the extent to which the trustee might deduct from those proceeds his general expenses of administration, as well as the costs of the sale itself. This question was touched upon in the agreement with the trustee but no issue is presented here as to it. 132 OCTOBER TERM, 1948. Syllabus. 336 U. S. CALLAWAY, TRUSTEE, et al. v. BENTON et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 21. Argued October 19, 1948.—Decided February 7, 1949. A railroad in reorganization under § 77 of the Bankruptcy Act had for many years leased and operated the property of another railroad, which was solvent and not in reorganization. Under the plan of reorganization approved by the Interstate Commerce Commission and the bankruptcy court, the lessor was given the alternative of selling all of its property to the reorganized company on specified terms or having its lease disaffirmed and its property returned. A majority of the lessor’s stockholders voted to accept the offer, but a substantial minority voted to reject it. In a suit brought by minority stockholders, a state court issued a temporary injunction restraining the officers and directors from selling the property or certifying the company’s acceptance of the offer to the Commission, on the ground that state law required unanimous consent of the stockholders to such a sale. The bankruptcy court enjoined further prosecution of the state action and declared the state court’s temporary injunction null and void as in excess of its jurisdiction. Held: Under the narrow facts presented here, the bankruptcy court erred in enjoining the state court suit leading to a determination of the requirements of state law with respect to the sale of the entire assets of the lessor. Pp. 134-151. 1. Since the lessor was not being reorganized along with the lessee and the plan of reorganization gave the lessor the unfettered right to accept or reject the offer to purchase all its property, the question whether the offer could be accepted by less than a unanimous vote of the lessor’s shareholders was a question of state, not federal, law. Pp. 136-141. (a) The Bankruptcy Act gives no clue as to what proportion of the lessor’s stockholders must vote to accept the offer if state law is not controlling. P. 139. (b) The majority vote provision of § 5 (11) of the Interstate Commerce Act is not applicable in this case, since this is not a proceeding under that Act. Pp. 139-140. (c) The Bankruptcy Act does not give the Commission or the court the right to require acceptance by a lessor not in reorganiza- CALLAWAY v. BENTON. 133 132 Statement of the Case. tion of an offer for the purchase of its property, and no such power was asserted by the Commission in this case. P. 141. 2. The bankruptcy court did not have exclusive jurisdiction to decide this question of state law. Pp. 141-149. (a) While § 77 (a) of the Bankruptcy Act gives the bankruptcy court exclusive jurisdiction of the debtor and its property, it does not give the bankruptcy court exclusive jurisdiction over all controversies that in some way affect the debtor’s estate. P. 142. (b) The interest here involved was not a part of the property of the debtor but the lessor’s reversion in fee; and the issue concerned the rights of the lessor’s stockholders inter sese to sell their reversionary interest in the property. Pp. 142-143. (c) The lessor not being in reorganization, its internal management was not subject to the control of the bankruptcy court. Pp. 144-146. (d) The purchase of formerly leased properties does not involve rights asserted by the lessor against the debtor; it is a creditor in the proceedings only by virtue of its claims against the debtor under the lease and for breach of the lease. Pp. 146-147. (e) The jurisdiction asserted by the district court over a solvent lessor not in reorganization was not justified by any provision of §77. Pp. 146-148. 3. In the circumstances of this case, Continental Illinois Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648, and other cases dealing with the power of an equity court to prevent the defeat or impairment of its jurisdiction do not support the bankruptcy court’s injunction against the state court action and its determination of the issue there involved. Pp. 149-151. 165 F. 2d 877, affirmed. A federal district court having jurisdiction of a proceeding to reorganize a railroad under § 77 of the Bankruptcy Act enjoined further proceedings in a state court to determine the rights inter sese under state law of stockholders of another railroad not in reorganization to sell to the railroad being reorganized certain property leased to and operated by the latter. The Court of Appeals reversed. 165 F. 2d 877. This Court granted certiorari. 333 U. S. 853. Affirmed, p. 151. 134 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. T. M. Cunningham argued the cause for petitioners. With him on the brief were A. R. Lawton, Jr., Walter A. Harris and Wallace Miller. Charles J. Bloch argued the cause for respondents. With him on the brief was Ellsworth Hall, Jr. Mr. Chief Justice Vinson delivered the opinion of the Court. The Central of Georgia Railway Company, whose Trustee is the petitioner here, and its predecessor have leased and operated the property of the South Western Railroad Company since 1869. The Central went into receivership in 1932, and in 1940 entered reorganization under § 77 of the Bankruptcy Act. 49 Stat. 911, 11 U. S. C. § 205. South Western’s lease was adopted successively by Central’s Receiver and Trustees. It has, in consequence, remained solvent, and no petition for reorganization has ever been filed in its behalf. Under the plan of reorganization of the Central approved by the Interstate Commerce Commission and by the district court, South Western is given the alternative of selling its property to the reorganized company in return for a fixed amount of bonds of the latter, or of having the lease disaffirmed by the debtor and its property returned.1 South Western appeared specially 1 With respect to South Western’s property, the plan reads as follows: “Prior to or upon consummation of the plan the debtor shall also acquire, if they can be acquired on the terms hereinafter set forth, properties at present leased to the debtor by the South Western Railroad Company .... If any of these properties shall not be acquired as a result of the acceptance of the plan by the leased-line security holders, then and in that event the lease or leases of any line or lines not so acquired shall be disaffirmed as of such time at or prior to the consummation of the plan as the court may direct. The method of acquisition, whether through purchase, merger, or consolidation, shall, subject to the approval of the Commission and the CALLAWAY v. BENTON. 135 132 Opinion of the Court. in the reorganization proceedings and asked that its lease be adopted by the reorganized company, but on the basis of studies and estimates not now open to challenge, the Commission rejected the proposal and found that the amount offered for its properties appears “fair and equitable and to equal the value of the transportation property, and [is] approved.”2 Following Commission and court approval of the plan, South Western’s officers, reversing their previous stand, urged acceptance of the offer by its stockholders and signified their intention of conveying the company’s property to the Central if a majority of the stockholders voted to accept. Thereupon the respondents, who are individual stockholders of South Western, brought an action in the Superior Court of Bibb County, Georgia, where South Western’s principal office is located, asking for an injunction against South Western, its officers and directors, restraining them from certifying the company’s acceptance of the offer to the Interstate Commerce Commission or from selling the railroad’s property to the reorganized debtor if, upon a vote of the stockholders, a “mere majority” of the stock was voted in favor of the plan. The basis of the petition for injunction was the contention that under the laws of Georgia, where South Western was in- court, be determined by the trustee or by the reorganization managers when they begin to function. “If the leased lines are acquired, the railroads of each of the three and the personal property appurtenant thereto and all of the real estate owned by each lessor shall be conveyed to the reorganized company; each of said lessors shall waive any damages to which it has become or shall become entitled on account of any breach of lease; and the South Western Railroad Company shall waive all claims in respect to equipment. Such conveyances and waivers shall in each instance be on the sole consideration of the delivery to each of the respective lessors of the securities proposed to be allocated to it, as hereinafter specified.” 261 I. C. C. 501, 515. 2 261 I. C. C. 263, 309. 136 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. corporated, the entire assets of the company cannot be sold except upon unanimous approval of the stockholders. Before a decision was reached in the state court action, a meeting of South Western’s stockholders was held at which the offer of purchase incorporated in the Central’s plan of reorganization was considered. 30,137 shares were voted in favor of acceptance against 9,057 shares favoring rejection. Petitioner, acting as Trustee of the Central, which was not a party to the state court suit, then filed a petition in the bankruptcy court asking that respondents and other stockholders of South Western be enjoined from further prosecution of the state court action, and a temporary restraining order was entered as prayed. Thereupon the state court, of its own motion, entered an interlocutory injunction restraining the officers and directors of South Western from selling its property, on the ground that such a sale under Georgia law requires unanimous consent of the stockholders. Petitioner then amended his petition in the bankruptcy court by bringing to its attention the injunctive order of the state court, and, after holding hearings, the federal district court granted a permanent injunction restraining further prosecution of the state action and declared the state court’s temporary injunction null and void as in excess of its jurisdiction. Upon appeal, the Court of Appeals for the Fifth Circuit, one judge dissenting, reversed the order of the district court. 165 F. 2d 877. We granted the petition for a writ of certiorari3 because of the conflict between state and federal authority and the importance of the question in the administration of the Bankruptcy Act. First. The district court’s injunction was based primarily on the premise that the plan of reorganization requires the inclusion of South Western’s lines within the 3 333 U.S.853. CALLAWAY v. BENTON. 137 132 Opinion of the Court. system of the reorganized company. The state action is said to be an attempt on the part of respondents “to prevent the consummation of the plan as respects South Western.” Again, the court held that “the question of the consolidation, merger and sale, and under what conditions South Western may convey its property to the reorganized Company, in consummation of the plan, is not a question of State law; it is a question of Bankruptcy law—a question which arises under the Bankruptcy Act and the Interstate Commerce Act.” The court’s conclusion was, therefore, that although the question whether a Georgia railroad corporation can convey all of its properties without unanimous consent of its stockholders would ordinarily be one of state law cognizable in the state’s courts, under these circumstances the decision was one for the bankruptcy court applying federal law. We do not agree. The language of the plan and the factors which the Commission took into consideration in arriving at the amount offered South Western for its properties indicate clearly that, so far as the reorganization plan contemplates acquisition of the lessor railroad, the ordinary rules of offer and acceptance were intended to apply. That has invariably been the practice. As a consequence, we have held that the amount which may be offered a lessor is a question of “business judgment”; that “if the Commission deems it desirable to keep the leased line in the system, it must necessarily have rather broad discretion in providing modifications of the lease where, as here, the lessor is not being reorganized along with the debtor. For under that assumption the modification must be sufficiently attractive to insure acceptance by the lessor or its creditors.” Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523, 550 (1943). The plan itself recites that the leased lines are to be acquired only “if they can be acquired on the 138 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. terms hereinafter set forth.”4 Otherwise, the lease is to be disaffirmed and the property returned to the lessor. In addition, the record is replete with statements by the Commission, the court, and the parties that South Western’s stockholders are to have the choice open to any offeree: an unfettered right to accept or reject.5 Under these circumstances, we can see no reason why the ordinary incidents of a sale of the assets of a corporation should not be applicable. One of the most important of these is, of course, the question of the proportion of a corporation’s stock which must be voted in favor of accepting the offer of purchase in order to make its acceptance effective. Since, as the district court held, this would ordinarily be a question of Georgia law, we believe that substitution of any other rule of law is erroneous.6 4 261 I. C. C. 515. 5 In its report approving the plan, the Commission said (261 I. C. C. at p. 308): “The lessor [South Western] insists that it has the right to severance if it cares to exercise it, and such a right will be recognized in the approved plan.” The district court, in approving the plan, commented that “If the lessors do not accept the proposal to acquire their lines they are, on disaffirmance, at liberty to take their properties back,” while counsel for the Trustee stated at a meeting of South Western’s stockholders, “The plan makes an offer to you gentlemen; that is all it does.” 0 This precise problem has received little attention from commentators. It was not mentioned in the Committee reports or in debate when § 77 and its 1935 amendments were passed. However, the position of the leased line, a majority of whose stock is not owned by the debtor and which is not in reorganization, is analyzed by Meek, The Problems of the Leased Line, 7 Law and Contemp. Prob. 509, 518, as follows: “Upon rejection of the lease, although the leased line remains in the custody of the lessee’s trustees, it is not part of the lessee’s estate and security holders having interests in it cannot be bound in the lessee’s reorganization. Consequently, if the lessee’s plan provides for a modified lease or merger or consolidation, such a provision is little more than an offer to the lessor. Acceptance of this offer will be determined, not by submitting the lessee’s plan to the lessor's security holders, pursuant to Section 77, but according to the law CALLAWAY v. BENTON. 139 132 Opinion of the Court. Not the least of the difficulties with a contrary result is the fact that the Bankruptcy Act gives no clue to what proportion of the lessor’s stockholders must vote to accept the offer if state law is not controlling. Section 77 (e) provides that confirmation of a plan requires acceptance by creditors holding two-thirds in amount of the total allowed claims of each class voting on the plan, but that the judge may confirm the plan in any event “if he is satisfied and finds, after hearing, that it makes adequate provision for fair and equitable treatment for the interests or claims of those rejecting it.” But neither the two-thirds vote provision nor the so-called “cram-down” provision applies to a lessor not in reorganization or its stockholders. They apply to “creditors of each class whose claims have been filed and allowed in accordance with the requirements of subsection (c) of this section,” which obviously does not include a lessor-offeree.7 And, although South Western is a “creditor” under the specific terms of § 77 (b), its stockholders, individually, are not. The district court sought to find a federal rule permitting acceptance by a simple majority vote of the shareholders in the provisions of § 5 (11) of the Interstate Commerce Act.8 But that section relates to voluntary merg- of the state where the lessor is incorporated.” It is also pointed out that when the rights of bondholders of the lessor may be affected, as was the case with Terre Haute bondholders in the Milwaukee Railroad reorganization (see Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523, and discussion infra), nearly unanimous consent of such bondholders may be required before the changes can be made effective. The Interstate Commerce Commission took that position in the Milwaukee case and provided that the offer to Terre Haute should not be deemed accepted unless substantially all of its bondholders voted to accept. Chicago, M., St. P. & P. R. Co. Reorganization, 239 I. C. C. 485, 536-538; 240 I. C. C. 257, 270-271. See also 318 U. S. at 532-533. 7 See In re New York, N. H. & H. R. Co., 54 F. Supp. 631, at 638. 8 54 Stat. 905,49 U. S. C§5(11). 140 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. ers, not to the purchase of a leased line as part of a plan of reorganization. The Commission can undoubtedly carry on § 5 proceedings simultaneously with § 77 reorganization proceedings, see United States n. Lowden, 308 U. S. 225 (1939), but that procedure was not followed in this case. The Commission preferred, instead, to carry out the consolidation under the authority of § 77 (b) (5) of the Bankruptcy Act, which provides that the plan of reorganization may include “the merger or consolidation of the debtor with another corporation or corporations.” That power flows from a different source than the power over consolidations under the Interstate Commerce Act. While some of the findings required of the Commission under the two Acts are similar, and § 77 (f) provides that consolidation and merger of the debtor’s property shall not be inconsistent with the provisions and purposes of chapter 1 of the Interstate Commerce Act, their procedural and jurisdictional requirements do not overlap.9 It may be noted, in addition, that §5(11) contains a proviso that the majority vote provision shall not apply if “a different vote is required under applicable State law, in which case the number so required shall assent.” Whether that proviso is operative when a state’s law requires unanimous consent of the shareholders is a question we need not decide. Nothing that we have said derogates in any way from decisions of this Court upholding the power of the Interstate Commerce Commission, in the exercise of its statutory obligations, to override state laws interposing 9 See In re Chicago, R. I. & P. R. Co., 168 F. 2d 587, where the State of Texas made the argument that the findings required by the Interstate Commerce Commission under subsections 2 (b), (c), and (f) of § 5 of the Interstate Commerce Act in proceedings for merger or consolidation of railroads are mandatory in proceedings under § 77 of the Bankruptcy Act. CALLAWAY v. BENTON. 141 132 Opinion of the Court. obstacles in the path of otherwise lawful plans of reorganization. We have recently reaffirmed that power in cases arising under the Interstate Commerce Act.10 Nor is the ambit of federal power less broad in cases arising under the bankruptcy laws of the United States. Section 77 (f) of the Bankruptcy Act specifically provides that the plan of reorganization shall be put into effect, “the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” The statute does not, however, give the Commission or court the right to require acceptance by a lessor not in reorganization of an offer for the purchase of its property, and no such power has been asserted by the Commission in this case. The plan of reorganization in effect hands South Western a contract of sale. Whether or not South Western signs the contract must depend not only upon its business judgment, but also upon the charter of the company and the laws of the state of its incorporation. There is therefore no occasion to override state law. The plan implicitly accepts it as controlling. The fact that the law may make acceptance of the offer less likely than would be the case if the offeree were incorporated elsewhere does not change the picture. We do not believe that Congress intended to leave to individual judges the question of whether state laws should be accepted or disregarded, Palmer v. Massachusetts, 308 U. S. 79 (1939), or to make the criterion to be applied the effect of the law upon the prospects of acceptance by the offeree. Second. The district court further held that even if Georgia law governs the question of the authority of South Western’s officers to sell its properties the bankruptcy court has exclusive jurisdiction to decide the state 10 Seaboard Air Line R. Co. v. Daniel, 333 U. S. 118; Schwabacher v. United States, 334 U. S. 182; Texas v. United States, 292 U. S. 522. 142 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. law question. We have held that a court of bankruptcy has exclusive and nondelegable control over the administration of an estate in its possession. Thompson n. Magnolia Petroleum Co., 309 U. S. 478 (1940); Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734 (1931). There can be no question, however, that Congress did not give the bankruptcy court exclusive jurisdiction over all controversies that in some way affect the debtor’s estate.11 One exception is found in the express language of the statute.12 What it did give is exclusive jurisdiction of the debtor and its property wherever located. § 77 (a). The interest held by the debtor in South Western’s lines was a leasehold estate. Such an estate is the debtor’s “property” within the meaning of the Act. Any controversy involving that estate would have been within the exclusive jurisdiction of the bankruptcy court. Here, however, the question involves not the debtor’s leasehold, but the reversion in fee held by South Western as lessor. South Western was not in reorganization jointly with its lessee, nor could it have been reorganized in the Central’s proceedings.13 The controversy which 11 Arkansas Corporation Commission v. Thompson, 313 U. S. 132; Gardner v. New Jersey, 329 U. S. 565. See Thompson v. Terminal Shares, Inc., 104 F. 2d 1. Even when the controversy involves property within the exclusive jurisdiction of the bankruptcy court, that court may, in its discretion, postpone action pending adjudication of the question in another court. Ex parte Baldwin, 291 U. S. 610; Thompson v. Magnolia Petroleum Co., 309 U. S. 478; Order of Railway Conductors v. Pitney, 326 U. S. 561. See Foust v. Munson S. S. Lines, 299 U. S. 77. Cf. Railroad Commission v. Pullman Co., 312 U. S. 496; Chicago n. Fieldcrest Dairies, 316 U. S. 168. Whether, if the bankruptcy court had had exclusive jurisdiction in this case, it should have withheld decision of the state law question pending the outcome of the state court action, we need not decide. 12§77 (j). 13 Under the provisions of § 77, as amended in 1935, a lessor railroad can be reorganized in connection with, or as a part of the plan of reorganization of the debtor-lessee only if a majority of its capital CALLAWAY v. BENTON. 143 132 Opinion of the Court. respondents initiated in the state court, and which the district court decided after having enjoined the state proceedings, requires a determination of the rights of the stockholders of South Western inter se to sell their reversionary interest in the property. We think that the interest here involved is not part of the property of the debtor, and that the district court’s assertion of exclusive jurisdiction was error. In Ex parte Baldwin, 291 U. S. 610 (1934), we said (at p. 615): “All property in the possession of a bankrupt of which he claims the ownership passes, upon the filing of a petition in bankruptcy, into the custody of the court of bankruptcy. To protect its jurisdiction from interference, that court may issue an injunction.” In the Baldwin case this Court upheld the bankruptcy court’s exclusive jurisdiction under § 77 to adjudicate the question of forfeiture by the debtor of an easement of right of way—clearly a part of the property of the debtor of which it claimed ownership. See Thompson v. Magnolia Petroleum Co., supra. In Warren v. Palmer, 310 U. S. 132 (1940), where the debtor under § 77, the New Haven Railroad, was lessee of property but had rejected the lease and was operating the property for the account of the lessor under § 77 (c) (6), we held that the bankruptcy court had exclusive jurisdiction to fix the amount of the deficit resulting from such operation and to declare it a stock is owned by the debtor. § 77 (a). When § 77 was first enacted in 1933, a lessor could also be reorganized in the lessee’s proceedings if the debtor operated substantially all of the properties of the lessor, but this provision was not reenacted, even though it was proposed in the draft amendments submitted by the Federal Coordinator of Transportation, whose proposals formed the basis of the 1935 amendments. Report of the Federal Coordinator of Transportation, 1934. H. R. Doc. No. 89, 74th Cong., 1st Sess., p. 230. See Friendly, Amendment of the Railroad Reorganization Act, 36 Col. L. Rev. 27, 49; Meek and Masten, Railroad Leases and Reorganization, 49 Yale L. J. 626,653. 823978 0—49----14 144 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. lien upon the property of the lessor. Since the physical property covered by the rejected lease was within the custody of the bankruptcy court, the fact that legal title remained in the lessor was thought to be immaterial. Clearly, control of the physical property must remain -in the court which has the ultimate responsibility for operating it. And in order to protect the estate of the debtor from dissipation through losses suffered in the operation of the lessor’s property, responsibility for the determination of the amount of the losses and provision for their recoupment from the lessor was properly lodged in the court supervising the reorganization of the debtor. Equally clear, however, is the fact that the internal management of the lessor is not properly subject to the court’s control. The anomaly of petitioner’s position is demonstrated by the facts of the case just discussed. The New Haven reorganization was proceeding in a Connecticut federal district court, while the lessor railroad, the Boston & Providence, was in reorganization under § 77 in a Massachusetts district court. The plan of reorganization of the New Haven, like the Central’s plan in this case, contemplated the purchase of the lessor’s property. Since the Boston & Providence reorganization court had exclusive jurisdiction of its property, it can hardly be contended that the New Haven reorganization court could assume exclusive jurisdiction to decide questions arising, for example, between different classes of creditors of the Boston & Providence as to whether the New Haven’s offer should be accepted. Such a result would be incompatible with the Massachusetts district court’s exclusive jurisdiction over the property of the Boston & Providence under § 77 (a).14 Insofar as the power of the court re- 14 A similar question arose in another phase of the New Haven reorganization proceedings, in connection with the use by the debtor of the Boston Terminal, which was in reorganization under § 77 in CALLAWAY v. BENTON. 145 132 Opinion of the Court. organizing the lessee rests on its jurisdiction over the property of the debtor, the fact that the lessor here is not in reorganization in another court is immaterial. Further support for this position is found in our decision in Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., supra. The Milwaukee reorganization, in one of its aspects, presented a situation analogous to the one now before us: the lessee was in reorganization under § 77, but no proceedings had been instituted for the reorganization of the lessor of some of its lines, the Chicago, Terre Haute & Southeastern Railway Company. The reorganization plan provided for a new lease to be offered the Terre Haute, which required that the latter scale down its bonded indebtedness so that the interest thereon, which was the rental under the lease, would be substantially reduced. The plan did not, however, differentiate another court. The obligations owed by the New Haven to the Terminal Company were fixed by a Massachusetts statute, but these obligations were repudiated by the New Haven’s plan of reorganization, which offered the Terminal new terms for the use of its facilities by the debtor. In considering the argument made by the Terminal’s bondholders that the plan violated the New Haven’s obligations under the state law, the Court of Appeals for the Second Circuit made this statement: “The plan enables New Haven to reject what in effect amounts to a burdensome lease. The plan, however, does not compel Boston Terminal to furnish the service at the rental offered; if Boston Terminal does not choose to accept the offer, it can, as a creditor, file proof of claim against New Haven for any damages to which it may be entitled. It is argued that Boston Terminal has no power under its charter to accept the offer. This seems irrelevant to the problem whether the Commission has power to approve a plan making the offer. Moreover, the reorganization trustee of Boston Terminal may be able to obtain authority to accept either from the bankruptcy court in Massachusetts or through an amendment of the Boston Terminal Act. The plan could not, and does not attempt to, amend the charter of the Terminal Company; but it does amend, as it can, the charter of the New Haven.” In re New York, N. H. & H. R. Co., 147 F. 2d 40,52. 146 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. between the four classes of bonds of the lessor with respect to the earning power and character of the security of each, as is required in the reorganization of properties of the debtor. Certain bondholders accordingly attacked the plan as unfair, because it did not attempt to preserve the respective priorities of these bond issues. But we said (p. 546): “The short answer to that objection is that the Terre Haute properties have not been treated by the Commission or the District Court as a part of the properties of the debtor for reorganization purposes. Nor has any question been raised or argued here as to the power of the Commission or the District Court so to treat them. The Commission and the District Court considered the problem solely as one of rejection or affirmance of a lease.” It is abundantly clear that in the case before us, the interest of South Western was similarly considered.15 Other provisions of § 77 lend no support to petitioner’s contentions. Section 77 (b), which makes South Western a creditor in the proceedings, does not, as we have pointed out, give the bankruptcy court any control over its internal organization. It is not a creditor which can 15 It may also be noted that the Terre Haute could have been reorganized in the Milwaukee proceedings if insolvent or unable to meet its debts, since the Milwaukee owned substantially all of the Terre Haute’s stock. See note 13, supra. The lessor’s bondholders were therefore more like holders of the debtor’s bonds than are stockholders of an independently owned lessor. This argument was made before the Commission by an institutional investors group committee, which contended that the assets of Terre Haute should be treated as assets of the debtor for purposes of reorganization. The Commission rejected the argument, saying: “We agree with the group of Terre Haute bondholders that they are not such creditors of the debtor as would be bound as a class by a confirmed plan of reorganization which divested them of their existing liens upon the Terre Haute properties.” 239 I. C. C. 485, 535. See Swaine, A Decade of Railroad Reorganization Under Section 77 of the Federal Bankruptcy Act, 56 Harv. L. Rev. 1193, 1217. CALLAWAY v. BENTON. 147 132 Opinion of the Court. be bound by the plan without its assent, except to the extent of its claim for damages for breach of the lease and for amounts due it from the lessee.16 Section 77 (b) (1) provides that the plan may alter the rights of creditors, while § 77 (b) (5) requires that the plan provide adequate means for its execution, which may include merger or consolidation of the debtor with another corporation. This subsection also permits rejection of executory contracts and unexpired leases. The bankruptcy power unquestionably gives the Commission and court, working within the framework of the Act, full and complete power not only over the debtor and its property, but also, as a corollary, over any rights that may be asserted against it. These rights may be altered in any way thought necessary to achieve sound financial and operating conditions for the reorganized company, subject to the requirements of the Act. The purchase of formerly leased properties does not involve rights asserted against the debtor, however.17 This Court has said that “The exclusive jurisdiction granted 16 The dual status of a lessor whose lease has been, or will be, rejected and to whom an offer of purchase or modification is made is explained by Meek, The Problems of the Leased Line, 7 Law and Contemp. Prob. 509, 516, as follows: “The plan in theory must deal with the lessor in at least two capacities: as an unsecured creditor and as owner of the leased line. In the former capacity the lessor will receive the same treatment as other unsecured creditors. In the latter, however, the lessor will be treated in accordance with the value of the line to the lessee.” See note 6, supra. 17 The offer of purchase may, as was true in this case, include a provision requiring the lessor-offeree to renounce the claims it could otherwise assert against the debtor, including claims for breach of the lease and for amounts due the lessor under the lease or other agreements between the parties. 261 I. C. C. 515. These factors are taken into consideration in determining the amount to be offered under the plan. See 261 I. C. C. at 272 and 295. 148 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. the reorganization court by § 77 (a) is that which bankruptcy courts have customarily possessed.” Meyer n. Fleming, 327 U. S. 161, 164 (1946).18 We conceive the jurisdiction asserted by the district court over a solvent lessor not in reorganization to be an extension of these traditional powers not justified by any provisions of the Bankruptcy Act. A serious practical problem would arise if the consequence of rejection of the offer and return of the properties to South Western would be cessation of railroad service on the formerly leased lines. Congress has foreseen that difficulty, however. Under § 77 (c) (6), if the lessor is unable to operate the leased lines following rejection of the lease, the duty devolves upon the lessee to continue to operate the leased lines for the account of the lessor,19 and such operation may continue after completion of the reorganization of the lessee.20 We need not speculate upon the eventual disposition of South Western’s properties. Until some final disposition is made, however, we 18 Cf. In re Adolf Gobel, Inc., 80 F. 2d 849, involving § 77B proceedings, and Greenbaum v. Lehrenkrauss Corp., 73 F. 2d 285, an equity receivership. 19 Section 77 (c) (6) provides: “If a lease of a line of railroad is rejected, and if the lessee, with the approval of the judge, shall elect no longer to operate the leased line, it shall be the duty of the lessor at the end of a period to be fixed by the judge to begin the operation of such line, unless the judge, upon the petition of the lessor, shall decree after hearing that it would be impracticable and contrary to the public interest for the lessor to operate the said line, in which event it shall be the duty of the lessee to continue operation on or for the account of the lessor until the abandonment of such line is authorized by the Commission in accordance with the provisions of section 1 of Title 49, as amended.” 20 Operation of the Boston & Providence Railroad for its account is now being carried on by the reorganized New Haven pending completion of reorganization of the Boston & Providence. See In re New York, N. H. & H. R. Co., 169 F. 2d 337. CALLAWAY v. BENTON. 149 132 Opinion of the Court. are assured that service will be maintained on its lines, and that the debtor will not be prejudiced because of the duty thrust upon it. Palmer v. Webster & Atlas National Bank, 312 U.S. 156(1941). Third. It is argued that Continental Illinois National Bank n. Chicago, R. I. & P. R. Co., 294 U. S. 648 (1935), and other cases applying similar principles support the district court’s injunction of the state action and its determination of the issue there involved. The question specifically before the Court in the Rock Island case was this: “Under § 77 does the bankruptcy court have authority to enjoin the sale of the collateral here in question if a sale would so hinder, obstruct and delay the preparation and consummation of a plan of reorganization as probably to defeat it?” The affirmative answer given by the Court rested upon the inherent powers of a court of equity to prevent the defeat or impairment of its jurisdiction, upon § 262 of the old Judicial Code, which authorized United States courts “to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions,” and upon § 2 (15) of the Bankruptcy Act, 11U. S. C. § 11 (15), which gives bankruptcy courts the power to “Make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this Act.” 52 Stat. 843. Reliance upon these cases is based, however, upon the fallacy previously adverted to. The action in the Georgia courts in this case does not embarrass or delay the formulation or promulgation of a plan of reorganization. The plan has been formulated and approved. It leaves open to South Western the alternative of selling its properties to the reorganized debtor or of facing disaffirmance of the lease and the risks of separate operation of its lines. No 150 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. suggestion has been made that a final decision of the state law question will be unreasonably delayed. Under these circumstances, we do not believe that the Rock Island decision provides any support for the district court’s action.21 As we held in Thompson N. Texas Mexican R. Co., 328 U. S. 134 (1946) at 142: “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.” See also Smith v. Hoboken R. Co., 328 U. S. 123 (1946). The same considerations do not prevail at a later stage of the proceedings, however, when, pursuant to a plan formulated by the Commission, the lease is forfeited and an offer of purchase substituted in lieu thereof. Unless the offer is a sham and the lessor’s discretion illusory, the plan may be effectively consummated whether the offeree accepts or not. The district court did not merely postpone action which would have hindered the development of the plan; it took to itself the decision of a question which the plan left open for decision elsewhere. We conclude that, under the narrow facts presented here, the bankruptcy court erred in enjoining the state court suit leading to a determination of the requirements of Georgia law with respect to sale of the entire assets of South Western. This question was already in litigation in the state court when first raised in the federal court. Title 28 U. S. C. § 2283 forbids this exercise of power, since, as we hold, the controversy does not involve property of the debtor within the jurisdiction of the bank- 21 Cf. In re New York, N. H. & H. R. Co., 102 F. 2d 923; Guaranty Trust Co. v. Henwood, 86 F. 2d 347; Central Hanover Bank v. Callaway, 135 F. 2d 592. CALLAWAY v. BENTON. 151 132 Douglas, J., dissenting. ruptcy court, and the assertion of jurisdiction by the state court is not inconsistent with the provisions of the Bankruptcy Act.22 Affirmed. Mr. Justice Douglas, with whom Mr. Justice Rutledge concurs, dissenting. This decision permits control over the plan of reorganization to be taken from the Interstate Commerce Commission and the District Court contrary to the provisions of § 77 and allows a state court to undo what those federal agencies have approved. The plan approved by the Commission and by the District Court provides for the “consolidation, merger or purchase” of the properties of South Western in lieu of continued operation under the lease, “if the leased properties can be acquired on the terms set forth in the Plan.” The terms of the acquisition are set forth in the plan. If the leased lines are acquired, South Western shall waive any damages on account of breach of the lease and in respect of equipment. Securities allocated to South Western shall not bear interest or dividends for any period prior to the acquisition. The plan also determines the amount of the allotment to South Western which the Commission and the court approved as “fair and equitable” and “equal the value of the transportation property.” On February 11, 1947, the Commission submitted the plan to all creditors, including South Western, for acceptance or rejection on or before midnight March 28, 1947. On March 13, 1947, the directors of South Western accepted the plan subject to the assent of the holders of 22 Kline v. Burke Construction Co., 260 U. S. 226; Ex parte Baldwin, 291 U. S. 610; Mandeville v. Canterbury, 318 U. S. 47. 152 OCTOBER TERM, 1948. Douglas, J., dissenting. 336 U. S. a majority of its stock. The stockholders met on March 28, 1947, and accepted the plan by a vote of 30,137 to 9,057. Accordingly South Western mailed its ballot approving the plan to the Commission. The result of the balloting was certified by the Commission to the court. Thereafter the court had a hearing and confirmed the plan, specifically reserving for later adjudication the question whether it had power to enjoin action in a state court which attempted to annul the acceptance of the plan by South Western. Subsequently it held a hearing, overruled objections of the minority of South Western’s stockholders and held that the acceptance by South Western was valid under Georgia law. It accordingly issued the injunction involved in this case. It seems plain to me that the Commission and the reorganization court had exclusive jurisdiction, subject to judicial review, to determine the question of the validity of the acceptance of the plan tendered by the officers of South Western. The validity of the acceptance is, of course, a question of state law. But it has been entrusted by Congress to these federal agencies. The plan must first be approved by the Commission and then certified to the court. § 77 (d) (e). The court, after hearing, passes on the plan; and if the court approves the plan, it certifies that fact to the Commission. § 77 (e). The Commission then submits the plan to creditors and stockholders (§ 77 (e)), the lessor and its security holders being included in the definition of creditor. § 77 (b). See Group of Investors n. Milwaukee R. Co., 318 U. S. 523, 549. The Commission must then determine the result of the balloting and certify to the judge “the results of such submission.” § 77 (e). The court then “shall confirm” the plan if satisfied (1) that the requisite percentage of each class of creditors and stockholders has been obtained and (2) “that such acceptances have not been made or procured by any means CALLAWAY v. BENTON. 153 132 Douglas, J., dissenting. forbidden by law.” § 77 (e). (Italics added.) On confirmation of the plan by the court, the plan and order of confirmation “shall, subject to the right of judicial review,” be binding upon the debtor and stockholders and “all creditors secured or unsecured, whether or not adversely affected by the plan, and whether or not their claims shall have been filed, and, if filed, whether or not approved, including creditors who have not, as well as those who have, accepted it.” § 77 (f). Section 77 (f) also provides that on confirmation of the plan the debtor or any other corporation organized to carry out the plan “shall have full power and authority to, and shall put into effect and carry out the plan and the orders of the judge relative thereto, under and subject to the supervision and the control of the judge, the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” (Italics added.) And § 77 (j), with exceptions not material here, gives the court power to enjoin or stay the commencement of any suit against the debtor until after final decree.1 The control of the court over the acceptance of the plan and over its confirmation is one of the historic instances of the “exclusive jurisdiction” vested in the court by § 77 (a). The exclusive jurisdiction of the reorganization court is one which heretofore we have zealously guarded against encroachments by state courts. See Thompson v. Texas Mexican R. Co., 328 U. S. 134. That exclusive jurisdiction is not restricted to protection of the court’s possession of the property and operation of the business. Section 77 (e) gives the reorganization court the sole authority to determine whether the accept- 1 This subsection provides in part: “In addition to the provisions of section 29 of this title for the staying of pending suits against the debtor, the judge may enjoin or stay the commencement or continuation of suits against the debtor until after final decree . . . .” 154 OCTOBER TERM, 1948. Douglas, J., dissenting. 336 U. S. ances of the plan have been made or procured “by any means forbidden by law.” In this case that plainly means that the reorganization court alone had the power to ascertain whether the requisite vote of the directors and stockholders of South Western had been cast in favor of the plan. Once it determined that lawful corporate action had been taken by South Western, then § 77 (f) bound all of South Western’s stockholders, since they are included in the definition of creditors for the purposes of the Act. See Group of Investors n. Milwaukee R. Co., supra. And then the reorganization court had the express power under § 77 (f) to put the plan into effect— “the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” This is precisely one of those situations where the bankruptcy court, if its exclusive jurisdiction is to be maintained, must have the power to enjoin action in state courts. It has long been recognized to have that authority in order to protect its decree. See Local Loan Co. n. Hunt, 292 U. S. 234. And the policy reflected in old § 265 of the Judicial Code—now 28 U. S. C. § 2283— which frowned on the stay of state proceedings by federal courts, has for years recognized bankruptcy jurisdiction as an exception. See Toucey v. N. Y. Life Ins. Co., 314 U. S. 118, 132. It was in recognition of the necessity for that power that Congress wrote subdivision (j) into § 77. If a state court can hold invalid acceptances whose validity has been approved by the Commission and the District Court, then the federal agencies have lost much of the exclusive jurisdiction which Congress granted them. There are myriad questions of state law underlying the consummation of every plan of reorganization. There is the question whether the new company is validly organized; whether proxies are executed in pursuance of the provisions of the state code; whether the charter of a FISHER v. PACE. 155 132 Syllabus. corporation can contain certain kinds of provisions, authorize certain types of securities, etc., etc. If state courts can intrude with injunctions on such state law questions, the exclusive command of the federal agencies over the reorganization process is lost, its efficiency is undermined, and minorities are given leverages which the scheme of § 77 explicitly denies. FISHER v. PACE, SHERIFF. CERTIORARI TO THE SUPREME COURT OF TEXAS. No. 45. Argued December 9, 1948.—Decided February 7, 1949. 1. In a workmen’s compensation proceeding in a Texas state court, counsel for the claimant, in his argument to the jury, persisted in referring to matters which, under Texas law and as the judge twice admonished him, were outside the issues for the jury, and he was summarily fined $25 for contempt. An altercation between counsel and the judge followed, during which the fine was increased to $50, then a 3-day jail sentence was added, and finally a sentence of $100 fine and 3 days in jail was imposed. The State Supreme Court upheld the sentence. Held: Upon the record in this case, counsel was not denied due process of law under the Fourteenth Amendment of the Federal Constitution. Pp. 156-163. 2. The inherent power of courts to punish summarily for contempts committed in their presence is essential to preserve their authority and to prevent the administration of justice from falling into disrepute; and such summary procedure affords due process of law. Pp. 159-160. 3. The mildly provocative language of the trial judge did not excuse counsel’s show of contempt for judge and court which the record in this case manifests. P. 163. 146 Tex. 328, 206 S. W. 2d 1000, affirmed. In a state court in which he was participating as counsel in the trial of a workmen’s compensation case, petitioner was summarily convicted and sentenced for a contempt of court. In a habeas corpus proceeding, the State Supreme Court upheld the conviction. 146 Tex. 328, 206 156 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. S. W. 2d 1000. This Court granted certiorari. 334 U. S. 827. Affirmed, p. 163. R. Dean Moorhead argued the cause for petitioner. With him on the brief were Dan Moody, Chas. L. Black, Everett L. Looney and Edward Clark. Quentin Keith submitted on brief for respondent. Mr. Justice Reed delivered the opinion of the Court. While participating as counsel in the trial of a cause the petitioner, Joe J. Fisher, was adjudged guilty of contempt committed in the presence of the court by the District Court of Jasper County, Texas. The petitioner’s client was the plaintiff in an action under the state workmen’s compensation law. The case was being tried before a jury and the parties had stipulated as to the average weekly wage of the claimant and the rate of compensation per week. The only remaining questions to be determined were as to the extent and duration of the incapacity resulting from an injury to the claimant’s foot. Seven special issues, designed to furnish an answer to these problems and limited to them, were submitted to the jury. Thereafter petitioner began his opening argument to the jury during which the following occurrence took place, as shown by the trial court’s order of contempt and commitment: “Opening argument to Jury of Plaintiff’s Attorney, Joe J. Fisher “Now, bear in mind, gentlemen, that this is what we call a specific injury. A general injury is an injury to the entire body. This is what is known as a specific injury, and it is confined to the left foot. We have specific injuries where you have injuries FISHER v. PACE. 157 155 Opinion of the Court. to the eye, to your hand, and to your foot; this is an injury to the foot, to the left foot; and the law states the amount of maximum compensation which a person can receive for such an injury, that is, one hundred and twenty-five weeks. That is the most compensation Anderson Godfrey could receive, would be one hundred and twenty-five weeks, because his injury is confined to his left foot. That is all we are asking. Now, that means one hundred and twenty-five weeks times the average weekly compensation rate. “By Mr. Cox: Your Honor please— “By the Court: Wait a minute. “By Mr. Cox: The jury is not concerned with the computation; it has only one series of issues. That is not before the jury. “By the Court: That has all been agreed upon. “By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so they can tell where he is. “By the Court: They are not interested in dollars and cents. “By Mr. Fisher: They are interested to this extent— “By the Court: Don’t argue with me. Go ahead. I will give you your exception to it. “By Mr. Fisher: Note our exception. “By the Court: All right. “[By Mr. Fisher:] This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law. “By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover. 158 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. “By the Court: Gentlemen! Mr. Fisher, you know the rule, and I have sustained his objection. “By Mr. Fisher: I am asking— “By the Court: Don’t argue with me. Gentlemen, don’t give any consideration to the statement of Mr. Fisher. “By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury. “By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides. “By Mr. Fisher: That is all right. We take exception to the conduct of the Court. “By the Court: That is all right; I will fine you $25.00. “By Mr. Fisher: If that will give you any satisfaction. “By the Court: That is $50.00; that is $25.00 more. Mr. Sheriff come get it. Pay the clerk $50.00. “By Mr. Fisher: You mean for trying to represent my client? “By the Court: No, sir; for contempt of Court. Don’t argue with me. “By Mr. Fisher: I am making no effort to commit contempt, but merely trying to represent the plaintiff and stating in the argument— “By the Court: Don’t tell me. Mr. Sheriff, take him out of the courtroom. Go on out of the courtroom. I fine you three days in jail. “By Mr. Fisher: If that will give you any satisfaction; you know you have all the advantage by you being on the bench. “By the Court: That will be a hundred dollar fine and three days in jail. Take him out. FISHER v. PACE. 159 155 Opinion of the Court. “By Mr. Fisher: I demand a right to state my position before the audience. “By the Court: Don’t let him stand there. Take him out.” The sheriff held the petitioner in custody upon the verbal order of the court until an amended order in conformity with Texas law,1 setting forth in full the above proceedings together with a formal commitment, was filed later the same day. Upon his application for a writ of habeas corpus from the Supreme Court of Texas to secure his release from the commitment, the judgment for contempt was upheld and the petitioner was denied any relief by that court and was remanded to the custody of the sheriff to undergo the punishment adjudged by the trial court. Ex parte Fisher, 146 Tex. 328, 206 S. W. 2d 1000. As the application alleged a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States, we granted certiorari to consider its application to this conviction for contempt. 334 U. S. 827. The claimed denial of due process consists of an alleged refusal to review the facts to ascertain whether a contempt was committed and in the alternative, if the facts were reviewed, due process was denied because no facts constituting contempt appear. Historically and rationally the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question.2 This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such 1 Ex parte Kearby, 35 Tex. Crim. Rep. 531, 34 S. W. 635; Ex parte Ray, 101 Tex. Crim. Rep. 432, 276 S. W. 709. 2 4 Bl. Comm. 286; Ex parte Terry, 128 U. S. 289, 302-304, 313-14; Ex parte Savin, 131 U. S. 267, 277; Eilenbecker v. District Court, 134 U. S. 31, 36-37; Cooke v. United States, 267 U. S. 517, 534-36; In re Oliver, 333 U. S. 257, 274-75. 823978 0—49----15 160 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. summary conviction and punishment accords due process of law.3 There must be adequate facts to support an order for contempt in the face of the court. Contrary to the contention of the petitioner the state Supreme Court evaluated the facts to decide whether there was sufficient evidence to support the judgment of the trial court and held that there was. The opinion of the Texas Supreme Court states that the court set out to review the facts “for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court” to enter the contempt order.4 In other words, the highest court of the state proposed to satisfy itself that there was substantial evidence to validate the judgment of contempt and to insure that petitioner was not “restrained of his liberty without due process of law.” After a careful analysis of the facts as disclosed by the judgment of the 3 Ex parte Terry, 128 U. S. 289, 313: “We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.” See also Cooke v. United States, supra, 534; Ex parte Hudgings, 249 U. S. 378, 383. 4 This rule is well established in Texas. Ex parte Testard, 101 Tex. 250,106 S. W. 319; Ex parte Dulaney, 146 Tex. 108,203 S. W. 2d 203. For other cases see the opinion in the instant case, Ex parte Fisher, 146 Tex. 328,333, 206 S. W. 2d 1000,1003. FISHER v. PACE. 161 155 Opinion of the Court. trial court, the conclusion was reached that the conduct of the petitioner was clearly sufficient to support the power of the court to punish summarily the contempt committed in its presence. The judgment of the Supreme Court of Texas must be affirmed. In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the petitioner. Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of.5 The state Supreme Court pointed out that its practice of submitting special issues to the jury was adopted in order to remove from the jury’s consideration the effect on the ultimate outcome of the case of their answers to questions of disputed facts.6 In this case, the jury might be tempted to find a long incapacity or a severe injury if they knew the amount of recovery was limited by the employee’s wage and rate of compensation. Counsel are required to confine their arguments to the evidence and must not touch upon matters withdrawn from the consideration of the jury.7 Yet here, petitioner, a member of the Texas bar, ignored this rule and at the outset of his address to the jury exceeded the bounds of permissible argument by trying to tell the jury the maximum compensation which their answers to the special issues would allow his client. On objection of the opposing counsel peti- 5 Clark v. United States, 289 U. S. 1, 12. 6 Ex parte Fisher, 146 Tex. 328, 334-335, 206 S. W. 2d 1000, 1004-1005. 7Rule 269, Vernon’s Texas Rules of Civil Procedure; Ramirez v. Acker, 134 Tex. 647, 138 S. W. 2d 1054. 162 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. tioner was stopped by the trial judge, but in the face of the court’s decision he persisted in trying to tell the jury the effect of their answers. He switched his explanation of the stipulated amount of recovery from the words “one hundred and twenty-five weeks times the average weekly compensation rate” to “one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.” The change obviously brought before the jury information on the limitation to the amount of recovery—a factor held by the trial judge inadmissible under the special issues. In addition to this stubborn effort to bring excluded matter to the knowledge of the jury, the petitioner twice refused to heed the court’s admonition not to argue the point. As the Supreme Court said, “It was the duty and power of the trial judge in the trial of the compensation suit to determine the type, manner and character of the argument before the jury. Of course his rulings thereon were subject to review in the appellate courts, but he has the power to make them whether right or wrong. If they are erroneous the injured party has the plain, simple and adequate remedy of appeal. It was thus the duty of counsel to abide by his decisions even if erroneous; and if any rights of his clients were violated the remedy was by exception and appeal. Any other procedure would result in mockery of our trial courts and would destroy every concept of orderly process in the administration of justice.”8 This judgment of the Supreme Court turned on their understanding of Texas law and practice. We see nothing in their opinion or conclusion that indicates any disregard of petitioner’s rights. The conduct of a judge 8 146 Tex. 328, 335, 206 S. W. 2d 1000, 1005; cf. United States v. United Mine Workers, 330 U. S. 258, 293, 302-303. FISHER v. PACE. 163 155 Douglas, J., dissenting. should be such as to command respect for himself as well as for his office. We cannot say, however, that mildly provocative language from the bench puts a constitutional protection around an attorney so as to allow him to show the contempt for judge and court manifested by this record, particularly the last few sentences of the altercation. The judgment of the Supreme Court of Texas accordingly is Affirmed. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. The power to punish for contempt committed in open court was recognized long ago as a means of vindicating the dignity and authority of the court. See Ex parte Terry, 128 U. S. 289, 301-304 and cases cited. But its exercise must be narrowly confined lest it become an instrument of tyranny. Chief Justice Taft in Cooke v. United States, 267 U. S. 517, 539, warned that its exercise by a federal court is “a delicate one and care is needed to avoid arbitrary or oppressive conclusions.” The same restraint is necessary under our constitutional scheme when state courts are claiming the right to take a person by the heels and fine or imprison him for contempt without a trial or an opportunity to defend. In Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331; and Craig v. Harney, 331 U. S. 367, we narrowly restricted the power to punish summarily for constructive contempts in order to maintain freedom of press and of speech in their preferred position. Freedom of speech in the courtroom deserves the same protection. Fisher’s conviction is sustained because it is said that he persisted in trying to tell the jury what the judge held to be improper. I do not so read the record. The judge sustained an objection to Fisher’s attempt to get 164 OCTOBER TERM. 1948. Douglas, J., dissenting. 336U.S. the average weekly compensation of the injured person before the jury, as appears from the following colloquy: “By Mr. Cox: The jury is not concerned with the computation; it has only one series of issues. That is not before the jury. “By the Court: That has all been agreed upon. “By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so they can tell where he is. “By the Court: They are not interested in dollars and cents. “By Mr. Fisher: They are interested to this extent— “By the Court: Don’t argue with me. Go ahead. I will give you your exception to it. “By Mr. Fisher: Note our exception. “By the Court: All right.” Fisher never again tried to get the amount of weekly compensation of the injured person into the record. He abided by the ruling of the judge. What next happened was as follows: “By Mr. Fisher: This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law. “By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover. “By the Court: Gentlemen! Mr. Fisher, you know the rule, and I have sustained his objection. “By Mr. Fisher: I am asking— “By the Court: Don’t argue with me. Gentlemen, don’t give any consideration to the statement of Mr. Fisher. “By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury.” FISHER v. PACE. 165 155 Douglas, J., dissenting. Fisher’s statement that, “This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law,” did not mention the matter of “dollars and cents” that the judge held irrelevant. It was not a new attempt by Fisher to get the “average weekly compensation” before the jury. Yet the record can be read as meaning that they were the only specific matters on which the judge had ruled. As Justice Sharp, dissenting in the Texas Supreme Court, stated, “This statement does not indicate that relator was disobeying the ruling of the court, but, on the contrary, shows that he was trying to obey same.” It also means to me that he was seeking to perfect the record so as to preserve all of his points. It is said that the statement was improper under Texas practice. But it took a ruling of the Texas Supreme Court to make it so, and even then Justice Sharp dissented. If Texas law on the point is so uncertain that the highest judges of the State disagree as to what is the permissible practice, is a lawyer to be laid by the heels for pressing the point? Yet it was for pressing the point of law on which the Supreme Court of Texas divided that Fisher was held in contempt. It is said, however, that such elements of misbehavior as expression, manner of speaking, bearing, and attitude of Fisher may have given the words a contemptuous flavor that the cold record does not reveal. I do not think freedom of speech should be so readily sacrificed, even in a courtroom. If that were the offense, it is not too much to ask that the judge make it the ground of his ruling. Certainly the judge did not purport to fine and imprison Fisher for the manner of making the objection, for the tone of his voice, or for his facial expression. The dispute was merely over the bounds of permissible comment before a jury. Fisher having been stopped at one point tried another strategy. He was 166 OCTOBER TERM, 1948. Murphy, J., dissenting. 336 U. S. acting the role of a resourceful lawyer. The decision which penalizes him for that zeal sanctions censorship inside a courthouse where the ideals of freedom of speech should flourish. There is for me only one fair inference from the record— that the judge picked a quarrel with this lawyer and used his high position to wreak vengeance on him. It is shown, I think, by the commencement of the critical colloquy: “By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides. “By Mr. Fisher: That is all right. We take exception to the conduct of the Court. “By the Court: That is all right; I will fine you $25.00.” This lawyer was the victim of the pique and hotheadedness of a judicial officer who is supposed to have a serenity that keeps him above the battle and the crowd. That is as much a perversion of the judicial function as if the judge who sat had a pecuniary interest in the outcome of the litigation. Tumey v. Ohio, 273 U. S. 510. Mr. Justice Murphy, dissenting. Petitioner told the jury three times, without objection, that his client was entitled to compensation for one hundred and twenty-five weeks. He then began discussion of the “average weekly compensation,” and the Court told him that the jury was “not interested in dollars and cents.” To this ruling he excepted, believing that the amount of possible recovery should be considered by the jury. He then repeated what he had said three times before, without objection, on a different subject, and was told that he should not “mess with” the court. Quite naturally, he objected to the court’s conduct; Texas FISHER v. PACE. 167 155 Murphy, J., dissenting. decisions make it clear that remarks “calculated to reflect upon the counsel and prejudice his client’s case with the jury . . . constitute reversible error.” Dallas Consol. Electric St. R. Co. v. McAllister, 41 Tex. Civ. App. 131, 137, 90 S. W. 933. But petitioner was held in contempt. And as he objected, his penalty was successively raised. Finally the court told the sheriff: “Don’t let him stand there. Take him out.” A trial judge must be given wide latitude in punishing interference with the orderly administration of justice. See Ex parte Terry, 128 U. S. 289; Cooke v. United States, 267 U. S. 517. But the summary nature of contempt proceedings, the risk of imprisonment without jury, trial, or full hearing, make this the most drastic weapon entrusted to the trial judge. To sanction the procedure when it is patent that there has been no substantial interference with the trial, when a judge has used his position and power to successively increase the penalty for simple objections, is, I believe, a denial of due process of law. The contempt power is an extraordinary remedy, an exception to our tradition of fair and complete hearings. Its use should be carefully restricted to cases of actual obstruction. In my opinion, this record of petty disagreement does not approach that serious interference with the judicial process which justifies use of the contempt weapon. Whatever the situations making this weapon necessary, it is plain to me that this is not one of them. An appellate court can rarely correct abuse such as this. “If the judge intends to be unfair, the trial will be a farce no matter how many detailed rules we provide for him.” McElroy, Some Observations Concerning the Discretions Reposed in Trial Judges by the American Law Institute’s Code of Evidence, Model Code of Evidence, pp. 356, 358. A printed record cannot reveal 168 OCTOBER TERM, 1948. Rutledge, J., dissenting. 336U.S. inflections and gestures, the tenor of a judge’s conduct of a trial—matters which make his position the most responsible in the daily administration of a fair judicial system. See Rheinstein, Who Watches the Watchmen? in Interpretations of Modern Legal Philosophies (New York, 1947), p. 589. In recent years we have seen a pronounced tendency to leave many matters in the discretion of the trial judge. McElroy, supra; Yankwich, Increasing Judicial Discretion in Criminal Proceedings, 1 F. R. D. 746. The movement, which rests on the assumption that the judge is wise and impartial, should make us quick to upset his determinations in the few cases which clearly demonstrate light regard for the principles that should guide a responsible jurist. I would reverse the judgment. Mr. Justice Rutledge, dissenting. Without recounting further than is done in other opinions the facts of this unfortunate episode, I have concluded that the record here discloses answers or remarks made by petitioner to the court which, in some instances, may well have justified punishment for contempt, but for one circumstance. That is, I regret to say, the conclusion to which I have been forced from the record as a whole that in the course of the colloquy and especially in the rapid succession of fines, commitment to jail, and order for removal from the courtroom, as well as in the unjudicial language employed by the judge, the trial court acted in the heat of temper and not with that calm control which the fair administration of judicial office commands under all circumstances. Lawyers owe a large, but not an obsequious, duty of respect to the court in its presence. But their breach of this obligation in no case justifies correction by an act or acts from the bench intemperate in character, over- OTT v. MISSISSIPPI BARGE LINE. 169 155 Syllabus. riding judgment. Since the case comes here upon the sequence of events taken as an entirety, I do not undertake to separate one portion of the judgment from another. Accordingly, as the case stands here, I must take the entire sentence as infected with the fault I have noted. It follows, in my view, that the judgment should be reversed. Whatever the provocation, there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench. OTT, COMMISSIONER OF PUBLIC FINANCE, et al. v. MISSISSIPPI VALLEY BARGE LINE CO. ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 244. Argued January 5, 1949.—Decided February 7, 1949. 1. A state and a city levied ad valorem taxes on foreign corporations operating barge lines in interstate commerce on inland waters. The assessments were based on the ratio between the number of miles of line within the State and the total number «of miles of the entire line. The vessels engaged in the service were enrolled at ports outside of the State and were only within the State for such time as was required to load and unload cargo and to make necessary repairs. Held: The taxes did not violate either the Due Process Clause of the Fourteenth Amendment or the Commerce Clause of the Federal Constitution. Pp. 170-175. 2. The rule of tax apportionment for rolling stock of railroads in interstate commerce, formulated in Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, is applicable here. Pp. 172-174. 3. So far as due process is concerned, the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State; and those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State. P. 174. 170 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. 4. Claims of errors in the amount of the assessment need not here be resolved in the absence of any suggestion that the State affords no administrative or judicial remedy to correct them. P. 175. 166 F. 2d 509, reversed. Appellees instituted suits in the District Court, based on diversity of citizenship, to recover allegedly unconstitutional state taxes which they had paid under protest. The District Court gave judgment for appellees. 68 F. Supp. 30. The Court of Appeals affirmed. 166 F. 2d 509. On appeal to this Court, reversed, p. 175. Howard W. Lenfant argued the cause for appellants. With him on the brief were Bolivar E. Kemp, Attorney General of Louisiana, Henry G. McCall and Henry B. Curtis. Arthur A. Moreno argued the cause for appellees. With him on the brief was Selim B. Lemle. Mr. Justice Douglas delivered the opinion of the Court. Appellees are foreign corporations which transport freight in interstate commerce up and down the Mississippi and Ohio Rivers under certificates of public convenience and necessity issued by the Interstate Commerce Commission. Each has an office or agent in Louisiana but its principal place of business is elsewhere. The barges and towboats which they use in this commerce are enrolled at ports outside Louisiana; but they are not taxed by the States of incorporation. In the trips to Louisiana a tugboat brings a line of barges to New Orleans where the barges are left for unloading and reloading. Then the tugboat picks up loaded barges for return trips to ports outside that State. There is no fixed schedule for movement of the barges. But the turn-arounds are accomplished as quickly as pos- OTT v. MISSISSIPPI BARGE LINE. 171 169 Opinion of the Court. sible with the result that the vessels are within Louisiana for such comparatively short periods of time as are required to discharge and take on cargo and to make necessary and temporary repairs.1 Louisiana and the City of New Orleans levied ad valorem taxes under assessments based on the ratio between the total number of miles of appellees’ lines in Louisiana and the total number of miles of the entire line.2 The taxes were paid under protest and various 1 The District Court found that of the total time covered by appellees’ interstate commerce operations in 1943, the amount spent by their vessels in Louisiana or in New Orleans was approximately as follows: Per cent American’s tugboats....................................... 3.8 Mississippi Valley’s tugboats....................... 17.25 Mississippi Valley’s barges......................... 12.7 Similar findings for 1944 were: Mississippi Valley’s tugboats....................... 10.2 Mississippi Valley’s barges......................... 17.5 Union’s tugboats.......................................... 2.2 Union’s barges............................................ 4.3 2 The statute, 6 Dart’s La. Gen. Stat. § 8370, provides in part as follows: “(a) . . . All movable and regularly moved locomotives, cars, vehicles, craft, barges, boats and similar things, which have not the character of immovables by their nature or by the disposition of law, either owned or leased for a definite and specific term stated and operated (such, illustratively but not exclusively, as the engines, cars and all rolling stocks of railroads; the boats, barges and other water-craft and floating equipment of water transportation lines); . . . . “(f). The ‘movable personal property’ of such persons, firms, or corporations, whose line, route, or system is partly within this state and partly within another state or states, shall be by the commission valued for the purposes of taxation and by it assessed; and such assessment by it fairly divided, allocated and certified to each such 172 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. suits, which have been consolidated, were instituted in the District Court by reason of diversity of citizenship for their return, the contention being that the taxes violated the Due Process Clause of the Fourteenth Amendment and the Commerce Clause. The District Court gave judgment for the appellees, holding that the taxes violated the Due Process Clause of the Fourteenth Amendment because the vessels had acquired no tax situs in Louisiana. 68 F. Supp. 30. The Court of Appeals affirmed. 166 F. 2d 509. Certiorari having been denied, 334 U. S. 859, the case was brought here by appeal. Judicial Code § 240, 28 U. S. C. § 347 (b), now 28 U. S. C. § 1254. It is argued that the rule of tax apportionment for rolling stock of railroads in interstate commerce which was introduced by Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, should be applied here. In that case a non-domiciliary State was allowed to tax an interstate rail parish and municipality as herein defined, within this state, within, through or under which same be operated; said division,.allocation and certification to be determined in the following manner and according to the following method; such assessment to be there subject to all state taxes and to all parish taxes and to all municipal taxes, as same are herein defined and to none other. “1. The portion of all of such property, of such person, firm or corporation shall be assessed in the state of Louisiana, wheresoever, in the ratio which the number of miles of the line, within the state bears to the total number of miles of the entire line, route or system, here and elsewhere, over which such movable personal property is so operated or so used by such person, firm or corporation. “(g). For the purposes of such valuation, assessment and taxation in Louisiana such parishes and municipalities shall be hereby fixed and declared, respectively, to be a taxable situs in this state of such movable personal property, whether same be operated entirely within or partly within and partly without this state and whether said taxpayer be a resident or a nonresident of Louisiana and irrespective of whether or not here domiciled locally or otherwise.” OTT v. MISSISSIPPI BARGE LINE. 173 169 Opinion of the Court. carrier by taking as the basis of assessment such proportion of its capital stock as the number of miles of railroad over which its cars ran within the State bore to the total number of miles in all the States.3 The Court of Appeals thought that case and its offspring inapplicable because of our decisions in Hays v. Pacific Mail S. S. Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409; and Southern Pacific Co. v. Kentucky, 222 U. S. 63. Some of these cases involved vessels which moved on the high seas. Hays n. Pacific Mail S. S. Co., supra; Morgan v. Parham, supra; Southern Pacific Co. v. Kentucky, supra. Others involved vessels moving in our inland waters, St. Louis v. Ferry Co., supra; Ayer & Lord Tie Co. v. Kentucky, supra. In each situation the Court evolved the rule that the vessels were taxable solely at the domicile of the owner, save where they had acquired an actual situs elsewhere as they did when they operated wholly on waters within one State. Old Dominion S. S. Co. v. Virginia, 198 U. S. 299. So far as ships of American ownership and registry sailing the high seas are concerned, it was thought that if they were not taxable at the domicile they might not be taxable at all. See Southern Pacific Co. v. Kentucky, supra, at 75. But in neither situation was the element of apportionment involved or considered. We do not reach the question of taxability of ocean carriage but confine our decision to transportation on 3 And see Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421; Adams Express Co. N. Ohio, 165 U. S. 194, 166 U. S. 185; American Express Co. v. Indiana, 165 U. S. 255; Adams Express Co. v. Kentucky, 166 U. S. 171; Union Transit Co. v. Kentucky, 199 U. S. 194; New York Central R. Co. n. Miller, 202 U. S. 584; Wells, Fargo & Co. v. Nevada, 248 U. S. 165; St. Louis & E. St. L. R. Co. v. Hagerman, 256 U. S. 314; Southern R. Co. v. Watts, 260 U. S. 519; Rowley v. Chicago & N. W. R. Co., 293 U. S. 102; Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362. 174 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. inland waters. We see no practical difference so far as either the Due Process Clause or the Commerce Clause is concerned whether it is vessels or railroad cars that are moving in interstate commerce. The problem under the Commerce Clause is to determine “what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.” Nashville, C. & St. L. R. Co. n. Browning, 310 U. S. 362, 365. So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. See Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State. There is such an apportionment under the formula of the Pullman case. Moreover, that tax, like taxes on property, taxes on activities confined solely to the taxing State,4 or taxes on gross receipts apportioned to the business carried on there,5 has no cumulative effect caused by the interstate character of the business. Hence there is no risk of multiple taxation. Finally, there is no claim in this case that Louisiana’s tax discriminates against interstate commerce. It seems therefore to square with our decisions holding that interstate commerce can be made to pay its way by bearing a nondiscriminatory share of the tax burden which each State may impose on the activities or property within its borders. See Western Live Stock v. Bureau, 303 U. S. 250, 254-255, and cases cited. 4 New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431; Utah Power & L. Co. v. Pjost, 286 U. S. 165; Coverdale v. Arkansas-Louisiana Pipe L. Co., 303 U. S. 604. 8 Maine n. Grand Trunk R. Co., 142 U. S. 217; Wisconsin & M. R. Co. v. Powers, 191 U. S. 379; United States Express Co. v. Minnesota, 223 U. S. 335; Cudahy Packing Co. n. Minnesota, 246 U. S. 450; Illinois Central R. Co. v. Minnesota, 309 U. S. 157. OTT v. MISSISSIPPI BARGE LINE. 175 169 Opinion of the Court. We can see no reason which should put water transportation on a different constitutional footing than other interstate enterprises. It is argued that the doctrine of the Pullman case is inapplicable here because its basis is the continuous protection afforded by the taxing State throughout the tax year to a portion of the commerce. See 141 U. S. at 26; Union Transit Co. n. Kentucky, 199 U. S. 194, 206; New York Central R. Co. v. Miller, 202 U. S. 584, 597-598; Northwest Airlines v. Minnesota, 322 U. S. 292, 297. It is said in this case that the visits of the vessels to Louisiana were sporadic and for fractional periods of the year only and that there was no average number of vessels in the State every day. The District Court indeed said that there was no showing that the particular portion of the property sought to be taxed was regularly and habitually used and employed in Louisiana for the whole of the taxable year. We do not stop to resolve the question. Louisiana’s Attorney General states in his brief that the statute “was intended to cover and actually covers here, an average portion of property permanently within the State—and by permanently is meant throughout the taxing year.” Appellees do not suggest an absence of any administrative or judicial remedy in Louisiana to correct errors in the assessment. Cf. Hillsborough n. Cromwell, 326 U. S. 620. The District Court does not sit to police them. See Great Lakes Co. n. Huffman, 319 U. S. 293; Arkansas Commission v. Thompson, 313 U. S. 132; Gardner n. New Jersey, 329 U. S. 565, 578-579. Reversed. Mr. Justice Jackson dissents. 823978 0—49------------16 176 OCTOBER TERM, 1948. Syllabus. 336 U. S. WISCONSIN ELECTRIC POWER CO. v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 237. Argued January 7, 1949.—Decided February 14, 1949. 1. Dairies, engaged primarily in the collection, pasteurization and distribution of fresh milk, purchased and used electricity in various ways in their general operations, including an undetermined amount used in pasteurizing milk. Held: Electricity supplied to these dairies through single meters, or through more than one meter but without differentiation as to use, is sold for “commercial consumption” (and not for industrial purposes), within the meaning of § 3411 of the Internal Revenue Code, and is taxable against the vendor under that section. Pp. 177-187. 2. The legislative history of this section indicates that the term “commercial” was meant to apply to the nature of the business in which the energy is consumed, and not to the specific purpose to which each measurable unit of electricity is devoted. Pp. 181-182. 3. The controlling factor in determining the applicability of the tax is the general nature of the business carried on at a given location. Pp. 182-184. 4. Though the process of pasteurizing, separately viewed, may be assumed to be industrial, the general nature of the business conducted by the dairy plants here involved was essentially commercial, notwithstanding the inclusion of pasteurization among their many activities. Pp. 184-185. 5. The conclusion here reached as to the applicability of the tax is supported by the legislative history and the administrative interpretation. Pp. 181-187. 168 F. 2d 285, affirmed. Petitioner sued in the District Court for a refund of taxes alleged to have been erroneously collected under § 3411 of the Internal Revenue Code. The District Court denied recovery. 69 F. Supp. 743. The Court of Appeals affirmed. 168 F. 2d 285. This Court granted certiorari. 335 U. S. 842. Affirmed, p. 187. WIS. POWER CO. v. UNITED STATES. 177 176 Opinion of the Court. Van B. Wake argued the cause and filed a brief for petitioner. By special leave of Court, William L. Ransom argued the cause for the Consolidated Edison Company of New York, as amicus curiae, in support of petitioner. With him on the brief were James K. Polk and Laurence W. Fairfax. Lee A. Jackson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack. Mr. Justice Reed delivered the opinion of the Court. Petitioner, engaged in the business of supplying electric energy to the public, seeks the refund of taxes paid by it pursuant to § 3411 of the Internal Revenue Code. That section, in pertinent part, provides for a tax . . upon electrical energy sold for domestic or commercial consumption . . . equivalent to 3 per centum1 of the price for which so sold, to be paid by the vendor under such rules and regulations as the Commissioner, with the approval of the Secretary, shall prescribe.”2 Note that the statute taxes energy for domestic or commercial consumption. There is no provision for taxation of electrical energy used for industrial purposes.3 The purchasers of the electric power here involved are 27 dairy plants which are engaged primarily in the collection, pasteurization, and distribution of fresh milk. The sole question presented by the case is whether the use of electricity by these dairies is commercial con- 1 Amended by the Revenue Act of 1941, c. 412, 55 Stat. 687, 707, § 521 (a) (19), to change the three percent tax to three and one-third percent. 2 26 U. S. C. §3411. 3 See, infra, p. 180, et seq. 178 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. sumption within the meaning of the statute or industrial consumption, a use not covered by the statute. The functions of the dairy plants are sufficiently similar so that they can be treated as one for the purpose of describing their methods of operation. The plants are buildings equipped with milk-handling machinery and facilities located either off the dairy farms, or on the dairy farm itself as an activity apart from milk production. Contracts for the purchase of raw milk are negotiated with nearby farms.4 This milk is delivered in trucks of the producers or of the dairy plant, as the case may be, to the plant where it is received, weighed, tested for butterfat content, cooled, and mixed and standardized so as to achieve the proper butterfat content. Next it is pasteurized. Pasteurization consists of heating the milk to 143°-145° F., maintaining it at that level for about thirty minutes, and then subjecting it to sudden cooling to a point between 38° and 40° F.5 The process is designed to kill pathogenic bacteria without destroying the natural creaming properties or the taste of the milk. Then the milk is drawn into bottles or cans which have been washed, sterilized, and cooled. Finally it is stored in refrigerated rooms to permit the cream line to form and to await delivery.6 Most of it is delivered to customers in the dairy plant’s trucks or wagons. In some instances a small proportion is sold at the plant itself. 4 A few of the consumers of electricity here involved produce their own milk. 5 One of the plants pasteurizes by the so-called “flash method,” heating the milk to 161° F. for 16 seconds and rapidly cooling it to 32° F. 6 A minor proportion of the milk purchased by these plants is manufactured into butter, cheese, or other by-products. An undisclosed amount of this milk is separated from the cream it contains; some is also homogenized. WIS. POWER CO. v. UNITED STATES. 179 176 Opinion of the Court. Electric power is employed by the purchasing dairy plants in a number of ways. It is used to light the plants, including the garage space for the collecting and distributing trucks. It drives electric motors which pump refrigerants, deliver milk to and from the pasteurizer and to the bottling machines, operate the homogenizer, the bottling machine, the cream separator, and the machinery used in washing, sterilizing and conveying bottles. The electricity used by some of the plants is measured through a single meter, that of others through two or more meters, but in no case are the meters so connected to the incoming power line as to enable the energy supplied for one purpose to be differentiated from that supplied for another. We do not have before us a situation where pasteurization utilizes electrical energy that is measured by a meter exclusively used for pasteurization. Pasteurization is accomplished by the use of special equipment designed for that purpose. Most of the electricity attributable to the process is devoted to the ice machines which perform the rapid cooling of the milk after the initial heating. Since the same cooling units perform the cooling which is necessary before and after pasteurization, however, the electricity which they consume for pasteurization alone cannot be ascertained. Pasteurization equipment, including the increased cooling equipment necessary therefor, accounts for about 15 or 20 percent of the total cost of plant equipment, excluding trucks and other vehicles. About one-tenth of the cost of plant operation, excluding the cost of the raw milk and costs attributable to distribution, is attributable to pasteurization. Petitioner paid the tax on electrical energy sold to the dairy plants during the period from April, 1940, to July, 1943, and then brought suit to recover it on the ground that such energy was sold not for commercial but for 180 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. industrial consumption. The United States District Court for the Eastern District of Wisconsin held that the sales were for commercial consumption within the meaning of the statute, and therefore that the tax was valid. 69 F. Supp. 743. The United States Court of Appeals for the Seventh Circuit affirmed. 168 F. 2d 285. It summarized its views as follows : “We agree with [District] Judge Duffy that the wording and legislative history of the Act make it clear that the predominant character of the business carried on by a consumer of electrical energy is what determines whether the electricity sold has been sold for ‘commercial consumption’; hence we are content to adopt his opinion as that of this court.” Id. at 286. The United States Court of Appeals for the Tenth Circuit had held in United States v. Public Service Co. of Colorado, 143 F. 2d 79, that electrical energy sold to dairy plants operating substantially as these was sold for industrial rather than commercial consumption, and consequently was not taxable under § 3411. We granted certiorari in this case in order to resolve the apparent conflict between circuits and to settle the meaning of the statute as it applies to the business of this general type of dairy plant. 335 U. S. 842. The tax now embodied in § 3411 was originally imposed upon the consumer of electricity by the Revenue Act of 1932, 47 Stat. 169, 266. This Act was amended in 1933 to make the burden of the tax fall directly upon the vendor. 48 Stat. 254, 256. No change of any significance for our purposes has occurred since the original enactment of this provision. Although the language of the section does not include the word “industrial,” it is clear from the legislative history that “commercial” was used in contradistinction to WIS. POWER CO. v. UNITED STATES. 181 176 Opinion of the Court. “industrial.”7 While electricity sold for commercial consumption is taxed, that sold for industrial consumption is not. Thus our task resolves itself to a determination of the category in which the consumption of electricity by these dairy plants should be classified. We shall not undertake the difficult and here needless task of general definition which differentiates for this statutory clause between industrial and commercial in other lines of business activity. That is a problem primarily for the administrators of the section, with knowledge of the specific and varying facts. The legislative history indicates that the term “commercial” was meant to apply to the nature of the business in which the energy is consumed, and not to the specific purpose to which each measurable unit of electricity is devoted.8 Where it is delivered through a single meter at one location, energy utilized to operate sewing ma- 7H. R. Conference Rep. No. 1492, 72d Cong., 1st Sess., p. 22; Senator Harrison, 77 Cong. Rec. 3212-14,3215. 8 The legislative explanations treat of business consumers as units and do not differentiate as to use within the units. Senator Harrison, Chairman of the Senate Finance Committee, which reported the bill, said: “I am telling Senators nothing new when I remind them that we had a fight here in 1932 over the imposition of this tax. The Senate imposed a 3-percent electric-energy tax, and it was finally adopted, to be collected from the consumer of electric energy. We applied that only on domestic and commercial energy ; that is, electric energy used in stores and dwellings that are classified as commercial and domestic. There was no tax in the 1932 act imposed upon energy employed in industry.” 77 Cong. Rec. 3212-13. Senator Couzens, a member of a subcommittee of the Senate Finance Committee, which was constituted to consider the electrical energy tax, said: “I mean they eliminated that feature of the tax; they eliminated the tax on electrical energy sold to manufacturing plants and left the tax on electricity used commercially, that is by stores and on electricity used for domestic purposes . . . .” 77 Cong. Rec. 3218. 182 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. chines for a minor manufacturing unit, e. g., shirts, in a department store, would be deemed power sold for commercial consumption, although it might fall within the industrial category if sold to a consumer who did nothing but manufacture shirts. Since any other interpretation of the section would entail the almost insurmountable administrative difficulty of classifying all the electricity sold to a plant according to the specific operations to which such power was devoted by the consumer, the conclusion that the controlling factor is the general nature of a business at a location accords with the natural meaning to be given the words employed by Congress to express its purpose. The regulations interpret the section in line with the legislative history. U. S. Treas. Reg. 46 (1940 ed.) § 316.190 [as amended by T. D. 5099], presently applicable, provides in pertinent part : “Scope of tax.—The tax imposed by section 3411 (a) of the Internal Revenue Code, as amended, applies, except as provided hereinafter, to all electrical energy sold for domestic or commercial consumption and not for resale. “The term ‘electrical energy sold for domestic or commercial consumption’ does not include (1) electrical energy sold for industrial consumption, e. g., for use in manufacturing, mining, refining, shipbuilding, building construction, irrigation, etc., or (2) that sold for other uses which likewise can not be classed as domestic or commercial, such as the electrical energy used by electric and gas companies, waterworks, telegraph, telephone, and radio communication companies, railroads, other similar common carriers, educational institutions not operated for private profit, churches, and charitable institutions in their operations as such. However, electrical energy is subject WIS. POWER CO. v. UNITED STATES. 183 176 Opinion of the Court. to tax if sold for consumption in commercial phases of industrial or other businesses, such as in office buildings, sales and display rooms, retail stores, etc., or in domestic phases, such as in dormitories or living quarters maintained by educational institutions, churches, charitable institutions, or others. “Where electrical energy is sold to a consumer for two or more purposes, through separate meters, the specific use for which the energy is sold through each meter, i. e., whether for domestic or commercial consumption, or for other use, shall determine its taxable status. Where the consumer has all the electrical energy consumed at a given location furnished through one meter, the predominant character of the business carried on at such location shall determine the classification of consumption for the purposes of this tax.”9 The last sentence of this regulation makes it clear that all electrical energy furnished to a predominantly commercial establishment through a single meter is subject to the tax although portions of such energy are devoted to purposes which, considered separately, might be classified as industrial.10 While the regulation does not deal with the point, we think it obvious from the last quoted paragraph that where the energy is furnished at a single location through various meters, although none of them 9 This regulation was substantially the same in its earlier versions. U. S. Treas. Reg. 42, Art. 40 (1932); T. D. 4342, XI-2 Cum. Bull. 495 (1932) ; T. D. 4393, XH-2 Cum. Bull. 322 (1933). The quoted version, however, omitted the word “processing,” which was formerly included in the list of activities exemplifying industrial consumption. We do not consider this deletion significant for purposes of this case. 10 Cf. St. Louis Refrigerating & Cold Storage Co. v. United States, 95 Ct. Cl. 694, 43 F. Supp. 476; Fulton Market Cold Storage Co. v. United States, 95 Ct. Cl. 710,43 F. Supp. 485. 184 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. are shown to carry current for predominantly industrial uses, the same rule would be applied. The last sentence of the regulation adds a qualification, however, which directs our attention, not necessarily to the nature of a business as a whole, but to the nature as a whole of the activities carried on “at a given location.” We accept the last sentence of the quoted regulation as proper under the statute.11 As applied to these plants we think that the electricity furnished by the petitioner was “sold for commercial consumption” and consequently was properly taxed. Admittedly the activities of these consumers would be considered commercial if they didjiot pasteurize the milk prior to its sale. Such business would accurately be called the distribution of fresh milk. The butter and cream extraction appears incidental. We are not dealing with a “creamery” in the sense of a butter or cheese factory. We agree with the courts below that the addition of pasteurization to the other activities described above does not change the nature of the dairy plants’ business from commercial to industrial any more than would the cooking of food for sale in a restaurant, or the cleaning of raw food products prior to distribution or sale. The District Court found that “pasteurization plays a minor part in the total business of the dairies,” and that “the predominant business of the dairies here involved ... is, and was, that of fluid milk dealers and distributors.”12 11 We do not intend by these words of limitation to approve or disapprove other provisions. There are ambiguities in this section of the regulation. In the second paragraph, without reference to separate meters, it holds that energy used in the commercial phases of an industrial business is taxable. The reverse would seem to follow as to industrial phases of a commercial business. Yet the third paragraph allows the avoidance of such a tax on industrial use only by the employment of separate meters. 12 For state cases to the effect that this business is primarily com-merical, see e. g. City of Louisville v. Ewing Von-Allmen D. Co., 268 WIS. POWER CO. v. UNITED STATES. 185 176 Opinion of the Court. Petitioner argues that the test applied by the Court of Appeals, “whether the predominant character of the enterprise carried on by such consumer is commercial,” is erroneous and contrary to the regulation in that it directs attention to the business as a whole rather than to the activities at a given location. While the language quoted is susceptible to this criticism, the variation is harmless because the plant itself is the location or the focal point of all the relevant activities of each of these consumers of electricity. Pasteurization does not occur at a separate location, but at the same plant where the milk is received, weighed, tested, cooled, homogenized, separated and bottled. The milk is brought to this plant when purchased, and from the plant it is distributed to customers. The fact that most of the sales or deliveries occur off the premises does not alter the essential fact that all activities occur in or pivot around the plant. Thus, though pasteurizing, we assume, is processing and though processing separately viewed may be conceded to be industrial,13 we conclude that the business conducted by these dairy plants is essentially commercial. The contrary conclusion reached in United States v. Public Service Co. of Colorado, 143 F. 2d 79, may be ascribed to the fact that there the court apparently looked to the use to which the electrical energy was devoted rather than to the nature of the business at a given location.14 Ky. 652, 105 S. W. 2d 801; People ex rel. E. S. Dairy Co. v. Sohmer, 218 N. Y. 199, 112 N. E. 755; Richmond v. Dairy Co., 156 Ya. 63, 157 S. E. 728. But see Dairy Assn. n. Bd. of Tax Admin., 302 Mich. 643,5 N. W. 2d 516. 13 See note 9, supra. 14 “The electrical energy was not used in the commercial phase of the dairying enterprise, but in the processing or industrial phase of the enterprise.” 143 F. 2d 79, 82. 186 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. Rulings of the Bureau of Internal Revenue support our conclusion. In 1932, S. T. 518 stated that, “Electrical energy furnished for consumption by bottling works, milk companies, or creameries engaged in the pasteurization and bottling of milk, and in the manufacture of butter, buttermilk, chocolate milk, and cottage cheese, is not furnished for domestic or commercial consumption . . . .”15 Apparently, however, the Bureau intended this ruling to apply only to those plants whose business was predominantly pasteurization and the manufacture of milk by-products, because S. T. 637, issued the following year, contained the following statement: “A dairy which obtains milk and converts it into use for retail purposes is held to be engaged in a business commercial in character. Electrical energy used in such operations will be subject to tax.”16 In clarification of these two rulings the Bureau explained: “Electrical energy furnished a commercial dairy or milk company which merely produces or purchases raw milk in bulk and pasteurizes it for sale either in bulk or bottled quantities, whose activities consist principally in the handling, distribution and sale of milk, is also subject to the tax. “It is only electrical energy that is furnished for direct consumption by dairies which in addition to pasteurizing and bottling milk are also engaged in all the essential manufacturing processes necessary for the production of dairy products, such as the 15 XI-2 Cum. Bull. 498 (1932). 18XII-1 Cum. Bull. 409, 410 (1933). McCOMB v. JACKSONVILLE PAPER CO. 187 176 Syllabus. manufacturing of butter, cheese and other dairy-products, for sale on the open market as an article of commerce, that is not subject to the tax.”17 Thus we hold that electrical energy supplied to these dairy plants through single meters, or through more than one but without differentiation as to use, is energy sold for commercial consumption. Affirmed. McCOMB, WAGE AND HOUR ADMINISTRATOR, v. JACKSONVILLE PAPER CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 110. Argued December 14-15,1948.—Decided February 14,1949. A decree of the District Court in a proceeding under the Fair Labor Standards Act enjoined respondents from violating the minimum wage, overtime, and record-keeping provisions of the Act. Respondents took no appeal. Three years later the Administrator instituted a civil contempt proceeding alleging violations of the decree and praying that respondents, in order to purge themselves of contempt, be required to make payment of unpaid statutory wages to the employees affected. Held: 1. The fact that the violations of the decree were not “willful” does not absolve respondents from liability for civil contempt. P. 191. (a) The grant or withholding of relief in a civil contempt proceeding is not wholly discretionary. The private or public rights that the decree sought to protect are an important measure of the remedy. P. 191. 2. The fact that the unlawful plan or scheme which respondents adopted was not specifically enjoined by the decree does not render them immune from liability in a civil contempt proceeding. Pp. 191-193. 17Bureau Letter, dated May 13, 1933 (symbols MT: ST: BHF) (333 C. C. H. IF 6266), 4 C. C. H. Standard Federal Tax Reporter 1F2633G .175 (1949). 188 OCTOBER TERM, 1948. Counsel for Parties. 336 U. S. 3. The District Court had power to order respondents, in order to purge their contempt, to pay to the affected employees amounts of wages which were unpaid in violation of the Act. Pp. 193-195. (a) Although the decree did not compute the weekly and monthly amount due each employee under the correct construction of the Act, and did not contain the names of the payees, it did provide a formula, couched in terms of the Act, whereby the amounts could readily be ascertained. P. 194. (b) It is immaterial that a suit could have been brought by the employees to collect the amounts due; or that in this proceeding the Administrator is the complainant and the back wages go to the employees. Pp. 194-195. 167 F. 2d 448, reversed. The Wage and Hour Administrator instituted in the District Court a civil contempt proceeding against respondents, alleging violations of a decree which enjoined respondents from violating the minimum wage, overtime, and record-keeping provisions of the Fair Labor Standards Act. The District Court held that there was no proof of civil contempt because there was no “willful” violation of the decree, and that it had no power on the application of the Administrator to enforce compliance with its former decree by ordering the payment of unpaid statutory wages. It considered the application of the Administrator as an amended complaint seeking a broadening of the previous decree and entered such an injunction. 69 F. Supp. 599. The Court of Appeals affirmed. 167 F. 2d 448. This Court granted certiorari. 335 U. S. 809. Reversed, p. 195. Bessie Margolin argued the cause for petitioner. With her on the brief were Solicitor General Perlman, Robert L. Stern and William S. Tyson. Louis Kurz argued the cause and filed a brief for respondents. McCOMB v. JACKSONVILLE PAPER CO. 189 187 Opinion of the Court. Mr. Justice Douglas delivered the opinion of the Court. This is a civil contempt proceeding arising out of Walling v. Jacksonville Paper Co., 317 U. S. 564, which we decided January 18, 1943. The District Court had held that none of respondents’ employees in specified classes were covered by the Fair Labor Standards Act. 52 Stat. 1060, 29 U. S. C. § 201. We sustained a judgment of the United States Court of Appeals which reversed the District Court, modifying it slightly to include a larger class of employees than the United States Court of Appeals had held to be covered. On remand the District Court, without a further hearing, entered a decree enjoining respondents from violating the Act in any of the following particulars: (1) by paying the designated classes of employees less than 300 an hour from the date of the judgment to October 24, 1945, or less than 400 an hour thereafter, except as permitted by orders of the Administrator under § 8 or § 14 of the Act; (2) by employing such employees for a workweek longer than 40 hours unless they receive compensation for employment in excess of 40 hours in the workweek at a rate not less than one and one-half times the regular rate at which they are employed; and (3) by failing to keep and preserve records as prescribed by the Administrator, particularly records of the hours worked each workday and each workweek by each of the employees and of the total wages paid to each for each workweek. Respondent took no appeal from this order. This was in 1943. In 1946 the Administrator instituted this contempt proceeding alleging that respondents had not complied with the minimum wage, overtime, and recordkeeping provisions of the judgment in many specified respects. He prayed that respondents be required to ter- 190 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. minate their continuing violations and in order to purge themselves of their contempts to make payment of the amounts of unpaid wages due the affected employees. The District Court found violations of the provisions of the decree. It found that (1) respondents had set up a completely false and fictitious method of computing compensation without regard to the hours actually worked which were unlawful under the Act; (2) respondents had adopted a plan which gave the employees a wage increase in the guise of a bonus and yet excluded that increase from the regular rate of pay for the purpose of computing overtime; (3) respondents had classified some employees as executive or administrative employees in plain violation of the regulations of the Administrator adopted under § 13 (a) (1) of the Act; and (4) one of the respondents had employed pieceworkers in excess of the maximum workweek without paying them overtime compensation.1 The District Court held that a civil contempt required a “wilful” violation of a decree; and that there was in this case no showing of any “wilful” violation of any “specific” provision of the former decree “prohibiting the doing of any specific thing.” The District Court further held that it had no power on the application of the Administrator to enforce compliance with its former decree by ordering the payment of unpaid statutory wages. It accordingly considered the application of the Administrator as an amended complaint seeking a broadening of the previous decree and entered such an injunction. 69 F. Supp. 599. All parties appealed. The United States Court of Appeals affirmed the judgment. It ruled that respond- 1 It also found violations of the record-keeping provisions of the decree, some of which it held to be trivial and others of which had been discontinued. McCOMB v. JACKSONVILLE PAPER CO. 191 187 Opinion of the Court. ents had violated the provisions of the decree couched in terms of the Act in the respects found by the District Court. It also held that the District Court was warranted in concluding that there was no “wilful contempt” since neither the law nor the injunction specifically referred to or condemned the practices which were found to violate the Act. 167 F. 2d 448. 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 Act. First. The absence of wilfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance. See United States v. United Mine Workers, 330 U. S. 258, 303-304; Penfield Co. v. Securities & Exchange Commission, 330 U. S. 585, 590; Maggio v. Zeitz, 333 U. S. 56, 68. Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act.2 The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. And the grant or withholding of remedial relief is not wholly discretionary with the judge, as Mr. Justice Brandeis wrote for a unanimous Court in Union Tool Co. v. Wilson, 259 U. S. 107, 111-112. The private or public rights that the decree sought to protect are an important measure of the remedy. Second. As we have noted, the decree directed respondents to obey the provisions of the Act dealing with mini- 2 See 2 High on Injunctions (4th ed., 1905) §§ 1416 et seq. 823978 0—49-----------17 192 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. mum wages, overtime, and the keeping of records. There was no appeal from it. By its terms it enjoined any practices which were violations of those statutory provisions. Decrees of that generality are often necessary to prevent further violations where a proclivity for unlawful conduct has been shown. See May Stores Co. v. Labor Board, 326 U. S. 376, 390, 391; United States n. Crescent Amusement Co., 323 U. S. 173, 186. Respondents’ record of continuing and persistent violations of the Act would indicate that that kind of a decree was wholly warranted in this case. Yet if there were extenuating circumstances or if the decree was too burdensome in operation, there was a method of relief apart from an appeal. Respondents could have petitioned the District Court for a modification, clarification or construction of the order. See Regal Knitwear Co. v. Labor Board, 324 U. S. 9, 15. But respondents did not take that course either. They undertook to make their own determination of what the decree meant. They knew they acted at their peril. For they were alerted by the decree against any violation of specified provisions of the Act. It does not lie in their mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law which we condemned in Maggio n. Zeitz, supra, at 69. The instant case is an excellent illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not spe- McCOMB v. JACKSONVILLE PAPER CO. 193 187 Opinion of the Court. cifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught. That result not only proclaims the necessity of decrees that are not so narrow as to invite easy evasion; it also emphasizes the danger in the attitude expressed by the courts below that the remedial benefits of a decree will be withheld where the precise arrangement worked out to discharge the duty to pay which both the statute and the decree imposed was not specifically enjoined. We need not impeach the findings of the lower courts that respondents had no purpose to evade the decree, in order to hold that their violations of it warrant the imposition of sanctions. They took a calculated risk when under the threat of contempt they adopted measures designed to avoid the legal consequences of the Act. Respondents are not unwitting victims of the law. Having been caught in its toils, they were endeavoring to extricate themselves. They knew full well the risk of crossing the forbidden line. Accordingly where as here the aim is remedial and not punitive, there can be no complaint that the burden of any uncertainty in the decree is on respondents’ shoulders. Third. We have no doubts concerning the power of the District Court to order respondents, in order to purge themselves of contempt, to pay the damages caused by their violations of the decree. We can lay to one side the question whether the Administrator, when suing to restrain violations of the Act, is entitled to a decree of restitution for unpaid wages. Cf. Porter n. Warner Holding Co., 328 U. S. 395. We are dealing here with the power of a court to grant the relief that is necessary to effect compliance with its decree. The measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief. They may entail the doing of a variety of acts, such as the produc- 194 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. tion of books. Penfield Co. v. Securities & Exchange Commission, supra. They may also require the payment of money as in the alimony cases. See Gompers v. Bucks S. & R. Co., 221 U. S. 418, 442; Oriel v. Russell, 278 U. S. 358, 364—365. The decree that was violated in the present case relates to the payment of wages and overtime pay required by §§ 6 and 7 of the Act. It does not, however, compute the weekly and monthly amount that is due each employee under the correct construction of the Act. Nor does it contain the names of the payees. But it provides the formula by which the amounts can be simply computed. If it had gone one step further and made the computation, listing the amounts due each employee, the case would then be on all fours with the alimony cases. Yet the circumstance that changing payrolls and fluctuating rates of pay make that impractical in this type of case does not mark a material difference. The direction of the court was that respondents make payments of wages to their employees pursuant to a prescribed formula. If the court is powerless to require the prescribed payments to be made, it has lost the most effective sanction for its decree and a premium has been placed on violations. The fact that another suit might be brought to collect the payments3 is, of course, immaterial. For the court need not sit supinely by waiting for some litigant to take the initiative. Vindication of its authority through enforcement of its decree does not depend on such whimsical or fortuitous circumstances. The fact that the Administrator is the complainant4 and that the back wages go to the employees is not material. It is 3 Section 16 (b) authorizes suits by employees to recover wages and overtime unlawfully withheld. 4 It is the Administrator who is directed and authorized by § 11 (a) of the Act to bring actions to restrain violations of the Act of the McCOMB v. JACKSONVILLE PAPER CO. 195 187 Frankfurter, J., dissenting. the power of the court with which we are dealing—the power of the court to enforce compliance with the injunction which the Act authorizes,5 which the court has issued, and which respondents have long disobeyed. Reversed. Mr. Justice Rutledge concurs in the result. Mr. Justice Frankfurter, with whom Mr. Justice Jackson concurs, dissenting. Obedience must of course be secured for the command of a court. To secure such obedience is the function of a proceeding for contempt. But courts should be explicit and precise in their commands and should only then be strict in exacting compliance. To be both strict and indefinite is a kind of judicial tyranny. In such a case as this, only after an administrative order has been formulated and a court has adjudicated that the order is within the administrator’s statutory authority does the command of a court come into existence, disobedience of which may be punished as contempt. For violation of the Fair Labor Standards Act as such, one may be made to suffer civil penalties or imprisonment, but the latter only after conviction by a jury. For violation of the command of an injunction issued under the Act, however, he may not only be exposed to more severe civil penalties than the Act by its own terms imposes, but made to suffer imprisonment without benefit of jury trial. It is for such reasons that this Court has indicated again and again that a statute cannot properly be made the basis of contempt proceedings merely by incorporat- character involved here. Cf. Inland Steel Co. v. United States, 306 U- S. 153, 157; United States v. Morgan, 307 U. S. 183, 193-194; Commission v. Brashear Lines, 312 U. S. 621, 628-630. 5 See § 17. 196 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 336 U. S. ing a reference to its broad terms into a court order. See, e. g., Swijt & Co. n. United States, 196 U. S. 375, 396; New York, N. H. & H. R. Co. v. Interstate Commerce Comm’n, 200 U. S. 361, 404; Labor Board v. Express Publishing Company, 312 U. S. 426, 435. These considerations become increasingly important as there is increasing use of injunctions for the enforcement of administrative orders and statutory duties. These are general principles but their application governed the decisions of the District Court and of the Court of Appeals; they should control the decision here. The two lower courts found that while the practices now complained of by the Administrator of the Wage and Hour Division of the Department of Labor constituted violations of the Fair Labor Standards Act, they were not on any fair consideration covered by the injunction, contempt of which is now charged. The injunction underlying this proceeding takes eight pages of a printed record and particularizes in great detail the violations which were enjoined. It also contains omnibus clauses prohibiting violations of the Fair Labor Standards Act. On full consideration, the District Court treated the application for an adjudication of civil contempt “as an amended complaint seeking a broadening of the injunctive orders heretofore entered in this case, and will enter an amended judgment enjoining defendants from violating the provisions of the Fair Labor Standards Act as adjudicated in this Memorandum Opinion.” 69 F. Supp. 599, 608. The Court of Appeals agreed with this view of the District Court (with a minor modification not here relevant). 167 F. 2d 448. In short, both courts found no contempt. They did so because there was lacking that clearness of command in the court’s order which warranted a finding of its disobedience, if due regard were paid to the proper construction of the injunction as the starting point of the contempt proceedings. At McCOMB v. JACKSONVILLE PAPER CO. 197 187 Frankfurter, J., dissenting. the least, such was a warrantable interpretation of the circumstances of this case, and we are disentitled to set our interpretation against theirs. In reversing the conclusion of the two lower courts that there was no contempt because there was no disobedience of the injunction, the Court is rendering a decision of far-reaching import to the law of injunctions. Today’s ruling happens to concern an injunction against an employer. Tomorrow it may be an injunction against employees, as it was yesterday and too often in the past. One of the grievances which led to the Norris-LaGuardia Act was the generality of the terms of labor injunctions. Ambiguity lurks in generality and may thus become an instrument of severity. Behind the vague inclusiveness of an injunction like the one before us is the hazard of retrospective interpretation as the basis of punishment through contempt proceedings. The two lower courts, in finding that generally to enjoin obedience to a law is too vague a foundation for proceedings in contempt, were avoiding the very evil with which labor injunctions were justly charged. And of course it is not to be assumed that the allowable vagueness of an injunction varies with the use to which the injunction is put. This Court ought not to encourage injunctions couched in such indefinite terms by setting aside the findings of the courts below that the injunction did not forbid with explicitness sufficient to justify a finding of contempt. I would affirm the judgment of the Court of Appeals. 198 OCTOBER TERM, 1948. Syllabus. 336 U. S. LAWSON, DEPUTY COMMISSIONER, UNITED STATES EMPLOYEES’ COMPENSATION COMMISSION, v. SUWANNEE FRUIT & STEAMSHIP CO. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 56. Argued December 7,1948.—Decided February 14,1949. 1. An employee, who had previously lost the sight of his right eye through causes unconnected with industry or his employment, suffered an injury in the course of his employment as a result whereof he lost the sight of his left eye, and thereby became totally disabled within the meaning of the Longshoremen’s and Harbor Workers’ Compensation Act. Held: Under § 8 (f) (1) of the Act, the employer was liable only for permanent partial disability (loss of the left eye), and the remainder of the compensation due for permanent total disability was payable out of the special fund established by § 44 of the Act. Pp. 199-206. 2. The term “disability” in §8 (f) (1) is not to be construed as a term of art but rather in a broader and more usual concept. Pp. 200-202. 3. Section 8 (f) (1) is not to be read as creating a distinction between a worker previously injured in industry and one handicapped by a non-industrial cause. Pp. 202-206. 4. The contention against the conclusion here reached, that the statutory fund will soon be insolvent if burdened with liability in the case of non-industrial previous injury, can not be sustained. Pp. 205-206. 166 F. 2d 13, affirmed. An award by the Deputy Commissioner under the Longshoremen’s and Harbor Workers’ Compensation Act required respondent to pay compensation for permanent total disability of an employee. On review the District Court held that respondent was liable only for permanent partial disability. 68 F. Supp. 616. The Court of Appeals affirmed. 166 F. 2d 13. This Court granted certiorari. 334 U. S. 857. Affirmed, p. 206. LAWSON v. SUWANNEE S. S. CO. 199 198 Opinion of the Court. Newell A. Clapp argued the cause for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Philip Elman, Paul A. Sweeney and Morton Liftin filed a brief for petitioner. Harry T. Gray argued the cause for respondents. With him on the brief was Sam R. Marks. Mr. Justice Murphy delivered the opinion of the Court. This is a workmen’s compensation case, under the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, 33 U. S. C. § 901 et seq. A narrow and difficult question of statutory construction confronts us. John Davis lost the sight of his right eye in an accident unconnected with industry or his employment. He was later hired by respondent. An injury occurred during this employment, and he is now blind in both eyes. The parties agree that he is totally disabled within the meaning of the Act; they also agree that the employer is liable for compensation for the loss of the left eye. The dispute is narrowed to this question: should the employer or the statutory second injury fund, administered by petitioner, be liable for the balance of payments to equal compensation for total disability? Petitioner concluded that the employer was liable. The employer secured a reversal of this determination in the District Court for the Southern District of Florida, 68 F. Supp. 616/ and the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. 166 F. 2d 13. Because this decision conflicted with that of the Court of Appeals for the District of Columbia in National Homeopathic Hospital Association v. Britton, 79 U. S. App. D. C. 309, 147 F. 2d 561, cert, denied 325 U. S. 857, we granted certiorari. 1 Under § 21 of the statute. 200 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. Section 8 (f) (1) of the Act provides that “if an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous disability,2 does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury: Provided, however, That in addition to compensation for such permanent partial disability, and after the cessation of the payments for the prescribed period of weeks, the employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such additional compensation shall be paid out of the special fund established in section 44.” The court below held that this section is “clear and unambiguous, and therefore needs no construction. When read in its ordinary sense it can have but one meaning”: liability for the second injury fund. But the word “disability” is defined in the statute. Section 2 provides that “when used in this Act . . . ,(10) ‘Disability’ means incapacity because of injury . . . •” (Emphasis supplied.) The word “injury” is, in turn, defined as “accidental injury or death arising out of and in the course of employment . . . .” § 2 (2). If these definitions are read into the second injury provision, then, it reads as follows: “If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous incapacity because of accidental injury or death arising out of and in the course of employment, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury.’ Because Davis’ previous injury was nonindustrial, this reading points to liability for the employer. 2 Emphasis supplied. LAWSON v. SUWANNEE S. S. CO. 201 198 Opinion, of the Court. If Congress intended to use the term “disability” as a term of art, a shorthand way of referring to the statutory definition, the employer must pay total compensation. If Congress intended a broader and more usual concept of the word, the judgment below must be affirmed. Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case. If we read the definition into §8(f)(l)ina mechanical fashion, we create obvious incongruities in the language, and we destroy one of the major purposes of the second injury provision : the prevention of employer discrimination against handicapped workers. We have concluded that Congress would not have intended such a result. Chief Justice Groner, dissenting in the National Homeopathic case, 79 U. S. App. D. C. at 313, 147 F. 2d at 565, noticed that the “inter-replacements of words” we have set out above “produces a manifest incongruity, for . . . it would literally result in this: ‘. . . previous incapacity because of accidental injury or death'—And if to avoid this it be argued that only a portion of the definition of injury should be inserted, the result would be to change or at least to limit the statutory definition only to produce a desired result, which no one would urge or defend. It is evident, therefore,” that the definition of disability was “not made with watch-like precision” and should not be so applied in § 8 (f) (1). If the intent of Congress had been to limit the applicability of this subsection in the fashion for which petitioner contends, “it could easily have accomplished this by the insertion of the word ‘compensable’ between the words ‘previous’ and ‘disability’. . . .” And see Atlantic Cleaners and Dyers n. United States, 286 U. S. 427. More important, perhaps, is the disservice we would do to the purpose of the second injury provision. We must look to the explanation of congressional intent behind 202 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. the subsection. A witness at a hearing on the measure outlined his reasons for favoring the provision in the following manner: “The second injury proposition is as much to the advantage of the employer and his interests as it is for the benefit of the employee. It protects that employer who has hired, say, a one-eyed worker who goes and loses his other eye and becomes a total disability. The employer without this sort of thing would have to pay total permanent disability compensation. Then, on the other hand, this also protects the worker with one eye from being denied employment on account of his being an extra risk. Now, by simply taking this up in this way it is possible to protect both the employer and to protect the one-eyed employee also.”3 Petitioner relies on the statement of another witness before the Senate Committee, who favored inclusion of the second injury provisions because “they have become a commonplace ... in State compensation legislation and ought to be included in the act.”4 And petitioner states that “we may appropriately refer, therefore, to the second injury provisions in other statutes and to the evaluations made by administrative experts in the field for guidance with respect to the manner in which opposing policy considerations have been resolved.” But our search for guidance in the sources suggested by petitioner convinces us that petitioner’s theories are not well-founded. From the attitude of experts in the field, one would not expect Congress to distinguish between two types of handicapped workers. The annual conventions of the International Association of Industrial Accident Boards 3 Hearings before Committee on the Judiciary, House of Representatives on S. 3170, 69th Cong., 1st Sess. (1926), p. 208. 4 Hearings before Subcommittee of the Senate Committee on the Judiciary on S. 3170,69th Cong., 1st Sess. (1926) p. 43. LAWSON v. SUWANNEE S. S. CO. 203 198 Opinion of the Court. and Commissions provide the most helpful considerations of the problem. At the 1931 convention, Mr. Joseph Parks of the Massachusetts Commission spoke as follows of workmen’s compensation legislation without a second injury provision: “I little knew that this great piece of legislation . . . would become an instrument of persecution, as I may call it, of men who are physically handicapped, but that is what it has become. Men who are physically handicapped are being discriminated against in our Commonwealth.”5 This attitude has been echoed by Mr. Charles Sharkey of the United States Bureau of Labor Statistics;6 Miss Frances Perkins, then Industrial Commissioner in New York;7 and others.8 Perhaps the most impressive evidence of the force behind these statements is that offered by Mr. I. K. Huber of Oklahoma. Nease v. Hughes Stone Co., 114 Okla. 170, 244 P. 778, held the employer liable for total compensation for loss of the second eye. After the decision, Mr. Huber reports, “thousands of one-eyed, 5 United States Bureau of Labor Statistics, Bull. No. 564 (1932), p. 278. 6 United States Bureau of Labor Statistics, Bull. No. 577 (1933), p. 146. 7 United States Bureau of Labor Statistics, Bull. No. 536 (1931), p. 254. 8 “We are dealing with a condition and not a theory. If the man is found with some defect which, if he meets with an accident, is likely to be aggravated and made more severe and thus increase the cost to the employer whose experience rating goes up as a result, then he does not want to accept that risk; and that poor fellow is met with the alternative of being deprived of a means of earning a livelihood or of waiving his rights to compensation.” Ibid., p. 256. And see Discussion of Industrial Accidents and Diseases, United States Division of Labor Standards, Bull. No. 94 (1948), p. 104; United States Bureau of Labor Statistics, Bull. No. 602 (1934), p. 11, ff., especially p. 15; United States Bureau of Labor Statistics, Bull. No. 577 (1933), pp. 154, 155. 204 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. one-legged, one-armed, one-handed men in the State of Oklahoma were let out and can not get employment coming under the workmen’s compensation law of Oklahoma. . . . Those . . . court decisions put us in bad shape. . . . The decision displaced between seven and eight thousand men in less than 30 days in Oklahoma.”9 A distinction between a worker previously injured in industry and one handicapped by a cause outside of industry has no logical foundation if we accept the premise that the purpose of the fund is that of aid to the handicapped. This is the conclusion of Mr. Fred Wilcox, then Chairman of the Wisconsin Commission:10 “Wisconsin takes no account of where the injured man may have gotten his first injury. It makes no difference where he got it. It is just as serious to him, when he has the second injury, as if he had gotten the first one in industry.” We cannot attribute the illogic of petitioner’s position to Congress. 9 United States Bureau of Labor Statistics, Bull. No. 536 (1931), pp. 268, 272. Mr. Fred Wilcox, former Chairman of the Wisconsin Commission, said: “Fundamentally, there is no moral reason why the employer of a man, when he gets his second injury, should not pay the full cumulative effect of that injury . . . but that is not the way things work out. The employer escapes the burden and lets the injured man bear it, and he sits at home without a job. . . . The employer is going to be afraid to take them on because of some added responsibility. . . . We allowed the employee who lost his second eye to have twice as much compensation for the loss of the second eye as for the loss of the first eye. But what about it ? Did anyone ever get any compensation for the loss of a second eye? No; he never got a job. He never got a chance to lose his second eye in an industry—to be blunt in stating the facts. Employers would not hire him, because they would take on twice as much liability as they had before.” United States Bureau of Labor Statistics, Bull. No. 577 (1933), pp. 157, 158. 10 Id. LAWSON v. SUWANNEE S. S. CO. 205 198 Opinion of the Court. Our conclusion is reinforced by the administrative practice under the New York statute. The federal statute is based upon New York law.11 In New York “the commission holds that if the man loses his second eye in an industrial accident it is immaterial how he lost the first eye. The loss of eyesight in one eye may have been congenital; it may have occurred when the child was two years old, or it may have occurred after he was grown, but not in an industrial accident. Nevertheless, at the time he loses his second eye, he has suffered total disability.”12 Petitioner argues that New York law is to the contrary, citing La Belle v. Britton Stone & Supply Corp., 247 App. Div. 843, 286 N. Y. S. 347, and Bervilacqua n. Clark, 225 App. Div. 190, 232 N. Y. S. 502. The La Belle case is inadequately reported; the Bervilacqua case did not consider the precise point involved in this case, and was distinguished by the New York Attorney-General in 1937 when he advised the Department of Labor to continue its established practice. Annual Report of the Attorney-General, State of New York, for 1937 (Albany, 1938), p. 270. Petitioner’s most strenuous argument is that the fund will soon be insolvent if we open liability to a nonindustrial previous injury, and that therefore Congress could not have contemplated the result we reach.13 Petitioner’s 11H. R. Rep. No. 1190, 69th Cong., 1st Sess., p. 2. See Employers’ Liability Assurance Corp., Ltd. v. Monahan, 91 F. 2d 130; Hartjord Accident & Indemnity Co. v. Hoage, 66 App. D. C. 154, 85 F. 2d 411. 12 United States Bureau of Labor Statistics, Bull. No. 577 (1933), P- 154. 13 Payments are made from the special fund established in § 44 of the Act. Employers pay $1,000 into the fund for noncompensable deaths, half of which is available for second injuries. All penalties and fines collected are also paid into the fund. § 44 (c). 206 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. worries seem exaggerated in the light of Wisconsin and New York experience. From 1919 to 1933,14 Wisconsin’s fund had only 50 second injury cases charged against it. Second-Injury Funds as Employment Aids to the Handicapped, U. S. Division of Labor Standards (1944), p. 7. From 1919 to 1943, only 99 cases were charged against the New York fund. Id., p. 5. In 1930 Miss Frances Perkins told her associates that the problem is “not so large ... as it appears.”15 On the basis of the incongruity involved in applying the definition mechanically, the unmistakable purpose of the second injury fund, and the interpretation of the State statute on which the federal act is based, we conclude that the term “disability” was not used as a term of art in § 8 (f) (1), and that the judgment must be affirmed. Affirmed. Mr. Justice Douglas dissents. 14 In 1933 the Wisconsin Supreme Court decided Ruehlow v. Industrial Commission, 213 Wis. 240, 251 N. W. 451, which reversed the administrative practice outlined by Mr. Wilcox, supra. Compare Lehman v. Schmahl, 179 Minn. 388, 229 N. W. 553. 15 United States Bureau of Labor Statistics, Bull. No. 536 (1931), p. 260. At p. 259, Mr. L. W. Hatch of New York is reported as follows: “Many people have said, ‘Oh, well, if you make a second-injury fund take care of every case in which a prior condition was a material factor in the man’s disability you will bankrupt the State or the taxpayers will be called upon to bear an enormous burden. The evidence so far as we have gone does not indicate any such situation.” REYNOLDS v. ATLANTIC COAST LINE. 207 Opinion of the Court. REYNOLDS, ADMINISTRATRIX, v. ATLANTIC COAST LINE RAILROAD CO. CERTIORARI TO THE SUPREME COURT OF ALABAMA. No. 234. Argued January 10, 1949.—Decided February 14, 1949. A complaint in a suit brought in a state court under the Federal Employers’ Liability Act charged that the defendant’s negligence caused the deceased to perform additional work of the same kind as he normally performed. It was not alleged that this additional work contained any hazards other than those usual to the occupation. The state court sustained a demurrer to the complaint on the ground that the injury did not result proximately, in whole or in part, from the defendant’s negligence. Held: Judgment affirmed. Pp. 207-209. 251 Ala. 27, 36 So. 2d 102, affirmed. The state trial court sustained respondent’s demurrer to the complaint in a suit brought by petitioner under the Federal Employers’ Liability Act. The State Supreme Court affirmed. 251 Ala. 27, 36 So. 2d 102. This Court granted certiorari. 335 U. S. 852. Affirmed, p. 209. J. Kirkman Jackson argued the cause and filed a brief for petitioner. Peyton D. Bibb argued the cause for respondent. With him on the brief was Charles Cook Howell. Per Curiam. The petitioner brought this suit under the Federal Employers’ Liability Act in an Alabama state court. As permitted by the practice in that state, all the facts which the petitioner expected to prove to establish her 823978 0-49------------18 208 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. cause of action were set forth in the complaint so that any objections to a verdict in her favor based on evidence of those facts could be disposed of prior to trial. The respondent demurred to the complaint on the ground that the facts as thus set forth did not constitute a cause of action. The demurrer was sustained by the trial court and its action was affirmed by the Supreme Court of Alabama.1 We granted certiorari.2 It appears from the complaint that the petitioner’s husband was a brakeman whose duties customarily required him to cross between cars on moving freight trains. On one such crossing he fell and was killed. This crossing occurred as part of a required journey from the caboose to a car from which a signal was to be given. The signal ordinarily would have been given from the sixth car from the caboose. The complaint charged, however, that because the railroad had negligently allowed canes to grow alongside the roadbed the deceased could not safely signal from the sixth car and so had to cross to the seventh in order to give the required signal. On this additional crossing he was killed. The complaint also charged that the deceased would not have had to make this particular journey at all if the railroad had provided a competent assistant brakeman. Neither the journey nor the crossing on which the accident occurred was alleged to be any more hazardous than that usually undertaken by railroad brakemen. The Alabama Supreme Court conceded that the complaint adequately charged negligence in the failure to remove the canes and in the failure to provide a competent fellow servant. It held, however, that the facts alleged did not show that the accident resulted proxi- x251 Ala. 27, 36 So. 2d 102 (1948). 2335U. S. 852 (1948). REYNOLDS v. ATLANTIC COAST LINE. 209 207 Dissent. mately, in whole or in part, from that negligence. We cannot say that the Supreme Court of Alabama erred. Affirmed. Mr. Justice Frankfurter is of opinion that this is also a case in which the petition for certiorari should not have been granted. See Wilkerson n. McCarthy, 336 U. S. 53, 64 (concurring opinion). However, inasmuch as the case does not call for an independent examination of the record in order to appraise conflicting testimony, but merely turns on the facts presented in the pleadings, he joins in the Court’s disposition of it. Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy and Mr. Justice Rutledge dissent. See Lillie v. Thompson, 332 U. S. 459; Anderson n. Atchison, T. & S. F. R. Co., 333 U. S. 821. 210 OCTOBER TERM, 1948. Syllabus. 336 U. S. UNITED STATES ex rel. HIRSHBERG v. COOKE, COMMANDING OFFICER. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 231. Argued January 13, 1949.—Decided February 28, 1949. 1. A Navy court-martial has no jurisdiction to try an enlisted man for a violation of Art. 8 of the Articles for the Government of the Navy, 34 U. S. C. § 1200, Art. 8, committed during a prior enlistment terminated by an honorable discharge, even though he reenlisted on the day following his discharge. Pp. 211-219. 2. This conclusion is supported by the language and legislative history of 34 U. S. C. § 1200, Art. 14 (Eleventh), specifically authorizing trial after discharge of offenders against Art. 14. Pp. 214r-216. 3. It is also supported by long-standing administrative interpretation, including 31 Op. Atty. Gen. 521. Pp. 216-217. 4. 34 U. S. C. § 591, authorizing the Secretary of the Navy, with the approval of the President, to adopt and alter regulations and orders for the control of the Navy, does not authorize the Navy to extend its court-martial jurisdiction beyond the limits Congress had fixed. Pp. 217-218. 5. Nor can a Navy regulation claimed to grant jurisdiction in cases such as this be sustained as a revision of the long-standing administrative interpretation of Art. 8. Pp. 218-219. 168 F. 2d 503, reversed. Petitioner was convicted by a Naval court-martial for an offense committed during a prior enlistment. In a habeas corpus proceeding, a federal district court held the judgment void and ordered his release from custody. 73 F. Supp. 990. The Court of Appeals reversed. 168 F. 2d 503. This Court granted certiorari. 335 U. S. 842. Cooke was substituted as the party respondent. 335 U. S. 882. Reversed, p. 219. John J. O’Neil argued the cause for petitioner. With him on the brief was Harold Rosenwald. HIRSHBERG v. COOKE. 211 210 Opinion of the Court. Peyton Ford, The Assistant to the Attorney General, argued the cause for respondent. With him on the brief were Solicitor General Perlman, Robert W. Ginnane, Robert S. Erdahl and Philip R. Monahan. Mr. Justice Black delivered the opinion of the Court. This case raises important questions concerning the statutory jurisdiction of general courts-martial of the Navy. In 1942 the petitioner was serving a second enlistment in the Navy. Upon the surrender of the United States forces on Corregidor petitioner became a war prisoner of Japan. After liberation in September, 1945, petitioner was brought back to the United States and hospitalized. He was restored to duty in January, 1946. March 26, 1946, he was granted an honorable discharge because of expiration of his prior enlistment. The next day he re-enlisted, obligating himself to serve four years “subject to such laws, regulations, and articles for the government of the Navy as are or shall be established by the Congress ... or other competent authority . . . .” About a year later, petitioner was served with charges directing his trial by a general court-martial of the Navy. The specifications included charges that during his prior enlistment the petitioner had maltreated two other naval enlisted men who were also Japanese prisoners of war and who were members of groups of prisoners working under petitioner’s charge. Petitioner filed a plea in bar of the trial, one ground being that the court-martial was without jurisdiction to try him for alleged offenses committed during a prior enlistment at the end of which he had received an honorable discharge. His plea was overruled. He was acquitted on some specifications but was convicted on others that charged maltreatment. His sentence was ten months confinement, reduction from 212 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. chief signalman to apprentice seaman, and dishonorable discharge from the Navy. Petitioner then brought this habeas corpus proceeding in a federal district court charging that the court-martial judgment was void because of want of statutory power to convict him for an offense committed if at all during his prior enlistment.1 That court sustained petitioner’s contention and ordered his release from custody. 73 F. Supp. 990. The Court of Appeals reversed, one judge dissenting. 168 F. 2d 503. The importance of the statutory construction, which appeared to affect the court-martial powers of the Army as well as the Navy, caused us to grant certiorari. 335 U. S. 842. Aside from naval regulations to which reference will later be made, court-martial authority to try and to punish petitioner for his prior enlistment conduct primarily depends on the language in Article 8 (Second) of the Articles for the Government of the Navy (34 U. S. C. § 1200, Art. 8), which particularly provides that “such punishment as a court-martial may adjudge may be inflicted on any person in the Navy . . . guilty of . . . maltreatment of, any person subject to his orders . . . .” The Government contends that this language given its literal meaning authorized the court-martial to try and 1 Court-martial jurisdiction to try petitioner depends on a part of Article 8 (Second), which reaches only conduct of an offender charged with “maltreatment of, any person subject to his orders.” Before the court-martial and in the District Court petitioner contended that the court-martial was without jurisdiction in his case because the alleged maltreatment was of naval enlisted men who were not “subject to his orders” by virtue of his United States Navy obligations, but that whatever authority he then had over the other Navy men came from duties assigned him by the Japanese as a prisoner of war. Both the District Court and the Court of Appeals rejected this suggested interpretation of the Article, and the contention is not urged here. HIRSHBERG v. COOKE. 213 210 Opinion of the Court. to punish petitioner for conduct during a prior enlistment. It is pointed out that petitioner was “in the Navy” when the offense was committed and when he was tried; this language it is argued brings his case under the Article. In aid of this interpretation the Government emphasizes that during the whole period of time involved, petitioner was continuously “in the Navy” except for an interval of a few hours between his honorable discharge and his re-enlistment. This latter circumstance we think cannot justify the statutory interpretation urged. For if that interpretation is correct, court-martial jurisdiction would be satisfied if a sailor was merely “in the Navy” when the offense was committed and when brought before the court-martial, regardless of the duration of any interim period out of the naval service, provided the prosecution was not barred by the two-year limitation period provided by 34 U. S. C. § 1200, Art. 61. The concessions made by the Government in urging such a literal construction of this Article expose the whimsical and uncertain nature of the distinctions that would mark the boundaries of court-martial powers. It is conceded that had petitioner not re-enlisted in the Navy after his 1946 discharge, no Navy court-martial could have tried him for offenses committed during his prior naval service. Thus, under the construction here urged, naval court-martial jurisdiction for a prior enlistment offense is made wholly to depend on whether the naval offender either voluntarily re-enters the Navy or is drafted into its service. And punishment of the gravest nature might be imposed on a naval volunteer or draftee which no court-martial could have imposed but for such a voluntary or forced entry into the Navy. For under this interpretation had the same naval offender re-entered his country’s service by way of the Army rather than the Navy, either by choice or by accident of draft 214 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. assignment, no court-martial, either Navy or Army, could have punished him. Jurisdiction to punish rarely, if ever, rests upon such illogical and fortuitous contingencies. We therefore must look beyond the literal language of the Article, ambiguous at best, in order to determine whether this court-martial acted within its power. See Runkle v. United States, 122 U. S. 543, 555, 556; Ex parte Reed, 100 U. S. 13, 23. While not itself determinative of the question here, 34 U. S. C. § 1200, Art. 14 (Eleventh), has greatly influenced the Army and Navy in determining their court-martial jurisdiction to try service personnel for offenses committed in prior enlistments. That Article provides that where any person previously discharged or dismissed from the Navy has “while in the naval service” been guilty of certain types of fraud against the Government, such person “shall continue to be liable to be arrested and held for trial and sentence by a court martial, in the same manner and to the same extent as if he had not received such discharge nor been dismissed.” Article 14 (Eleventh) stems from an Act of Congress passed in 1863, particularly designed to punish frauds against the military branches of the Government in connection with the procurement of supplies for war activities. 12 Stat. 696. That the attention of the 1863 Congress was directly focused upon the powers that could and should be vested in courts-martial is made clear by the debates and by the fact that Congress deleted from the bill as proposed specific provisions which would have made civilian government contractors subject to trial before military and naval courts-martial. Cong. Globe, 37th Cong., 3d Sess. 952-958 (1863), and Appendix to Cong. Globe, 37th Cong., 3d Sess. 199 (1863). See Ex parte Henderson, 11 Fed. Cas. 1067, No. 6,349 (C. C. D. Ky. 1878). And see United States ex rel. Marcus v. Hess, HIRSHBERG v. COOKE. 215 210 Opinion of the Court. 317 U. S. 537, 539-545. But after elimination of certain provisions which would further have expanded court-martial jurisdiction, Congress left in the bill § 3, now Naval Article 14 (Eleventh), which makes naval personnel guilty of service frauds subject to court-martial after discharge or dismissal. The same 1863 provision has also been made applicable to Army personnel by Article of War 94, 10 U. S. C. § 1566. Congress in this 1863 Act plainly recognized that there was a significant difference between court-martial power to try men in the service and to try former servicemen after their discharge. The Government correctly argues that the attention of the 1863 Congress was not focused on the precise question here, namely, the extent of a military court’s statutory power to punish a man presently “in the service” for an offense committed in a prior enlistment period from which he has been discharged. But the fact remains that the 1863 Congress did act on the implicit assumption that without a grant of congressional authority military courts were without power to try discharged or dismissed soldiers for any offenses committed while in the service. Acting on this assumption, Congress granted such a power to courts-martial but only in the very limited category of offenses there defined—frauds against the Government.2 Since the 1863 Act, Congress has not passed any measure that 2 The discussion of the 1863 Act showed that Congress rather grudgingly conceded this comparatively slight expansion of the court-martial power apparently prompted by reports of particularly abhorrent recent frauds by war contractors, such as the supply of shells to the Army “filled not with the proper explosive materials for use, but with saw-dust.” Cong. Globe, 37th Cong., 3d Sess. 955 (1863). This action of the 1863 Congress does not support an argument that Congress has been quick in response to appeals for expansion of court-martial jurisdiction. See Duncan v. Kahanamoku, U. S. 304; Ex parte Milligan, 4 Wall. 2. 216 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. directly expanded court-martial powers over discharged servicemen, whether they re-enlisted or not. Obviously Article 8 (Second), which subjects to court-martial jurisdiction persons “in the Navy,” supports an argument that petitioner was subject to trial by this court-martial. It is equally obvious that the language of Article 8 (Second) particularly in view of Article 14 (Eleventh) supports an argument that this court-martial could not try petitioner for an offense committed prior to his honorable discharge. Under these circumstances the manner in which court-martial jurisdiction has long been exercised by the Army and Navy is entitled to great weight in interpreting the Articles. The question of the jurisdiction of a naval court-martial over discharged personnel was submitted by the Secretary of the Navy to the Attorney General in 1919. The precise question of whether re-enlistment could revive jurisdiction of a military court was not considered, but as to the power of military courts over discharged personnel in general the Attorney General reached the conclusion that a person discharged from the Navy before proceedings were instituted against him “for violations of the Articles Governing the Navy, excepting article 14” could not “thereafter be brought to trial ... for such violations, though committed while he was in the service.” 31 Op. Atty. Gen. 521, 529. This conclusion of the Attorney General relied on statements of the Judge Advocate Generals of the Army and Navy that their offices had “from the beginning and uniformly held that a person separated from the service ceases to be amenable” to military and naval jurisdiction. Previous to the Attorney General’s 1919 opinion neither the Navy nor Army had ever claimed court-martial power to try their personnel for offenses committed prior to an honorable discharge where proceedings had not been instituted before dis- HIRSHBERG v. COOKE. 217 210 Opinion of the Court. charge. See Winthrop, Military Law and Precedents 93 (2d ed. 1920). The Government concedes that the Army has always so construed its court-martial jurisdiction whenever the question arose. And the Government concedes that the Navy also followed this view of its jurisdiction until 1932.3 Many holdings and opinions of Army and Navy authorities are cited to support these concessions. The Government’s brief quotes the following language by the Navy Department in one of the cases which considered the precise issue raised here. The case appears in CMO 12-1921, p. 11. “Except in cases of offenses in violation of Article 14 of the Articles for the Government of the Navy, there is no authority of law giving jurisdiction to a court-martial to try an enlisted man for an offense committed in a prior enlistment from which he has an honorable discharge, regardless of the fact that he has subsequently reenlisted in the naval service and was serving under such reenlistment at the time the jurisdiction of the court was asserted.” Accepting as we do the long-standing Army and Navy interpretation of the Articles previously referred to, an interpretation which necessarily would deny jurisdiction to the court-martial here, there remains the contention that the Navy has by a recent congressionally authorized regulation acquired such jurisdiction for its courts-martial. 34 U. S. C. § 591 authorizes the Secretary of the Navy, with the approval of the President, to adopt and alter regulations and orders for control of the Navy. 3 Since 1932 the Navy has consistently adhered to its revised interpretation of Art. 8 (Second). In 1934 the Navy Department incorporated this revised interpretation in an official Navy publication, Naval Courts and Boards, and this interpretation became §334 (a) of Naval Courts and Boards (1937 ed.). 218 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. The Government claims that a regulation adopted pursuant to this authority has been promulgated,4 and that it vested the necessary power in this court-martial to try petitioner. This authorized regulation, it is contended, had the force of law, Ex parte Reed, 100 U. S. 13, 22, and consequently supplants the prior statutes which, as interpreted, had denied the jurisdiction here asserted. There has been considerable argument as to whether the language of the Navy regulation was sufficiently precise to endow it with the force of law. Passing over this argument, however, we are not able to agree that the Navy could in this manner acquire the expanded court-martial jurisdiction it claimed. For we cannot construe 34 U. S. C. § 591 as permitting the Navy to extend its court-martial jurisdiction beyond the limits Congress had fixed. United States v. Symonds, 120 U. S. 46,49-50. The regulation stands no better if it be considered merely as an evidence of a revised naval interpretation of the Article. This revised naval interpretation was given in 1932. Before that time, both Army and Navy had for more than half a century acted on the implicit assumption that discharged servicemen, whether reenlisted or not, were no longer subject to court-martial power. The Attorney General of the United States had proceeded on the same assumption. And see United 4 The regulation appearing in the 1937 Naval Courts and Boards § 334 contained the following language: “. . . Except for offenses provided for in article 14, A. G. N., a court martial may not try an individual who has been formally separated from the Navy and is no longer in the service unless proceedings were instituted against him while he was in the service. . . . Similarly, the Navy Department has passed cases as legal in which enlisted men have been convicted by court martial of offenses committed in a previous enlistment, although such offenses were not provided for in article 14, A. G. N.” HIRSHBERG v. COOKE. 219 210 Opinion of the Court. States v. Kelly, 15 Wall. 34, 36. Under these circumstances, little weight can be given to the 1932 separate effort of the Navy to change the long-accepted understanding of its statutory court-martial power. For should this belated naval interpretation be accepted as correct, there would be left outstanding an Army interpretation of its statutory court-martial powers directly opposed to that of the Navy. Since the Army and Navy court-martial powers depend on substantially the same statutory foundations, the opposing interpretations cannot both be right, unless it be assumed that Congress has left each free to determine its own court-martial boundaries. We cannot assume that Congress intended a delegation of such broad power in an area which so vitally affects the rights and liberties of those who are now, have been, or may be associated with the Nation’s armed forces. Reversed. 220 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. DANIEL, ATTORNEY GENERAL, et al. v. FAMILY SECURITY LIFE INSURANCE CO. et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH CAROLINA. No. 297. Argued February 2, 1949.—Decided February 28, 1949. 1. As applied in this case, a South Carolina statute forbidding life insurance companies and their agents to engage in the undertaking business and forbidding undertakers to serve as agents for life insurance companies does not contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Pp. 220-225. 2. That an “insurance lobby” may have secured the enactment of the statute has no bearing on its constitutionality. P. 224. 3. It cannot be said that South Carolina is not entitled to call the funeral insurance business an evil nor that the statute has no relation to such an evil. Pp. 224-225. 79 F. Supp. 62, reversed. A three-judge federal district court enjoined enforcement of a South Carolina statute forbidding a combination of the life insurance and undertaking businesses, on the ground that it contravened the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 79 F. Supp. 62. On direct appeal to this Court, reversed, p. 225. David W. Robinson argued the cause for appellants. With him on the brief were John M. Daniel, Attorney General of South Carolina, T. C. Callison, J. Monroe Fulmer, Assistant Attorneys General, Edgar A. Brown, Nathaniel A. Turner and R. Hoke Robinson. Donald Russell argued the cause for appellees. With him on the brief were C. Erskine Daniel and E. W. Johnson. Opinion of the Court by Mr. Justice Murphy, announced by Mr. Justice Rutledge. A South Carolina statute provides that life insurance companies and their agents may not operate an under- DANIEL v. FAMILY INS. CO. 221 220 Opinion of the Court. taking business, and undertakers may not serve as agents for life insurance companies. Criminal sanctions are provided. Act No. 787, S. C. Acts of 1948, p. 1947? Respondents brought action before a three-judge District Court in the Eastern District of South Carolina, seeking an injunction forbidding the enforcement of the statute. 28 U. S. C. § 380, now 28 U. S. C. §§ 2281, 2284. The court, one judge dissenting, upheld respondents’ contentions that the statute, as applied in this case, did not provide that due process of law and equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. A permanent injunction issued, 79 F. Supp. 62, and the South Caro- 1 “SECTION 1: Life insurance companies and their employees not own or operate undertaking business.—It shall be unlawful for any life insurance company, corporation, or association, except fraternal benefit societies licensed to do business in this State to own, manage, supervise, or operate or maintain a mortuary or undertaking establishment, or to permit its officers, agents or employees to own, operate or maintain any such funeral or undertaking business. “SECTION 2: Life insurance company or sick or funeral benefit company not contract with undertaker conduct funeral of person insured by it.—It shall be unlawful for any life insurance company, sick or funeral benefit company, or any company, corporation or association engaged in a similar business to contract or agree with any funeral director, undertaker or mortuary to the effect that such funeral director, undertaker, or mortuary shall conduct the funeral of any person insured by such company, corporation or association. “SECTION 3: Undertaker and his employees not act as agent for life insurance company.—It shall be unlawful for any funeral director, undertaker, or mortuary, or any agent, officer or employee thereof to be licensed as agent, solicitor or salesman for any life insurance company, corporation or association doing business in this State. ‘SECTION 4: Penalties.—Any person violating any of the provisions of this Act shall be deemed guilty of a misdemeanor, and each violation thereof shall be a separate offense, and upon conviction shall be punished by fine not exceeding One Thousand ($1,000.00) Dollars or by imprisonment at hard labor for not exceeding six (6) months, °r both such fine and imprisonment within the discretion of the courts. . . 222 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. lina Attorney General has appealed to this Court. 28 U. S. C. § 380, now 28 U. S. C. §§ 1253, 2281. The respondent insurance company is incorporated and licensed to do business in South Carolina, and conforms with the comprehensive code of insurance regulations established by Act No. 232, S. C. Acts of 1947, p. 322. The other respondents are its officers and directors. It issues life insurance with cash benefits ranging from $125 to $750. The amount of outstanding policies had reached a total of $838,375 in May of 1948, compared to nothing in February of the same year. Most of the company’s agents are undertakers. Parties to the insurance contract contemplate use of the policy’s proceeds to pay funeral expenses. A “facility of payment” clause might justify payment of proceeds to an undertaker for the insured’s funeral. At the time of the trial, respondent company was the only concern in South Carolina selling “funeral insurance” as an established practice. For many years South Carolina has prohibited the payment of insurance proceeds in merchandise or services. Act No. 205, S. C. Acts of 1929, p. 234; S. C. Code of 1942, § 7984; Act No. 232, S. C. Acts of 1947, § 65, p. 350. Possibilities of fraud, misunderstanding in valuation, and the comparatively useless character of the merchandise delivered or services rendered make respondents readily concede the desirability of this ban. Other states have similar statutes.2 The South Carolina legislature might well have concluded that funeral insurance, although paid in cash, carries the same evils that are present in policies payable in merchandise or services: the beneficiary’s tendency to deliver the policy’s proceeds to the agent-undertaker for whatever funeral the money will buy, whether or not an 2 See Fla. Stat. (1941), § 639.04; Me. Rev. Stat., c. 56, § 138 (1944) ; Ky. Rev. Stat., § 303.120 (1946) ; Ill. Rev. Stat., c. 73, § 956 (1947). DANIEL v. FAMILY INS. CO. 223 220 Opinion of the Court. expensive ceremony is consistent with the needs of the survivors.3 Considerations which might have been influential include the likelihood of overreach on the part of insurance companies, and the possibilities of monopoly control detailed in affidavits introduced in the court below. The South Carolina legislature is not alone in seeing evils in this kind of insurance, and in invoking its police powers to combat them. See the similar provisions in N. Y. Insurance Law, § 165 (c); Fla. Stat. (1941), § 639.02; Ga. Code Ann. § 56-9920; Page’s Ohio General Code, § 666 (1946) (see Robbins v. Hennessey, 86 Ohio St. 181, 99 N. E. 319); Md. Ann. Code, Art. 48A, § 110 (1939). And see the summary of critical arguments in Business Week, October 20, 1945, pp. 48, 51. Yet the court below held that the statute is “arbitrary and discriminative and designed to destroy, and will destroy, the plaintiff insurance company and its business . . . .” “It seems obvious from the record that this legislation had its genesis in the desire of the existing insurance companies to eliminate the plaintiff company as a competitor. . . .” 79 F. Supp. at 70, 65. The court found that the respondent’s policies are actuarially sound; that funeral insurance is desirable; and that the other South Carolina insurance regulations are “ample” to correct any evils resulting from respondents’ business. 3 “You come to the place of business, the mortuary, to pay it. Month in and month out. The inducement for a funeral director to align himself with this is the fact that it will freeze this business to him. He doesn’t have to, let me hasten to say. You don’t have to call that funeral director, but if he continuously beats a path to his door to pay his insurance, there is no question about it that U he has any decent employees, they are going to convince the man the thing to do is to come to them. Now, is that a healthy situation?” Proceedings of the Senate Banking and Insurance Committee, State of South Carolina, March 31, 1948, No. 1382, In re “The Mortuary Bill.” R. 85. 823978 0—49-----19 224 OCTOBER TERM, 1948. e Opinion of the Court. 336U.S. The Court concluded that the statute now before us is so unreasonable that it offends the Due Process Clause. First. It is said that the “insurance lobby” obtained this statute from the South Carolina legislature. But a judiciary must judge by results, not by the varied factors which may have determined legislators’ votes. We cannot undertake a search for motive in testing constitutionality. See Hammer v. Dagenhart, 247 U. S. 251, overruled in United States v. Darby, 312 U. S. 100. Compare Bailey v. Drexel Furniture Co., 259 U. S. 20, and United States v. Constantine, 296 U. S. 287, with Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 393. Compare United States v. Butler, 297 U. S. 1, with Steward Machine Co. v. Davis, 301 U. S. 548, 592, and Cincinnati Soap Co. v. United States, 301 U. S. 308. Second. Despite evidence to the contrary, respondents see no evil to be corrected by this legislation. We are asked to agree with respondents and call the statute arbitrary and unreasonable. Looking through the form of this plea to its essential basis, we cannot fail to recognize it as an argument for invalidity because this Court disagrees with the desirability of the legislation. We rehearse the obvious when we say that our function is thus misconceived. We are not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature. We cannot say that South Carolina is not entitled to call the funeral insurance business an evil. Nor can we say that the statute has no relation to the elimination of those evils. There our inquiry must stop.4 4 Our deference to the legislative judgment is particularly pronounced in a field as traditionally well regulated as insurance. See DANIEL v. FAMILY INS. CO. 225 220 Opinion of the Court. This rationale did not find expression in Liggett Co. v. Baldridge, 278 U. S. 105, on which respondents rely. According to the majority in Liggett, “a state cannot, ‘under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.’ ” 278 U. S. at 113. But a pronounced shift of emphasis since the Liggett case has deprived the words “unreasonable” and “arbitrary” of the content for which respondents contend. See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, where the cases are reviewed. The Liggett case, however, was concerned with a statute far different from the one we are considering now. Pennsylvania required drug store owners to be licensed pharmacists. Because the statute was directed at owners, who might have no connection with the pharmaceutical branches of modern drug stores, a divided Court thought the measure unreasonable. The Pennsylvania statute was clearly less adapted to the recognized evil than the provision now before us. The Liggett case, on its facts, is not authority for the invalidation of the South Carolina Mortuary Act. The South Carolina statute, on its face, does not contravene the provisions of the Fourteenth Amendment. Neither does it offend the Amendment as applied to these respondents.5 We reverse the judgment below. Reversed. Osborn v. Ozlin, 310 U. S. 53, 65, 66; La Tourette v. McMaster, 248 U. S. 465, 467, 468; Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 416, n. 13. 5 That respondent company is the only concern now affected by the statute does not, of course, mean a denial of equal protection. The statute is drawn in general terms; the company’s success might well induce others to enter the business. See the dissenting opinion below, 79 F. Supp. at 73, 74. And see Mason v. Missouri, 179 U. S. 328. 226 OCTOBER TERM, 1948. Syllabus. 336 U. S. NATIONAL LABOR RELATIONS BOARD v. STOWE SPINNING CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 46. Argued December 9-10, 1948.—Decided February 28, 1949. 1. In the circumstances of this case, the National Labor Relations Board could properly find that it was an unfair labor practice violative of §8 (1) of the National Labor Relations Act, for an employer to discriminate against a labor organization by denying it the use of a company-owned meeting hall which was the only available meeting hall in a company town. The Board had found that the use of the hall had been freely given to other groups and that the employer’s sole purpose in denying the use of it to the labor organization was to impede self-organization and collective bargaining by its employees. Pp. 227-233. (a) In the setting of this case, it can not be said as a matter of law that the grant of the use of the meeting hall to the labor organization would violate the provision of § 8 (2) forbidding employer interference with the formation or administration of any labor organization. Pp. 230-232. (b) Such interference with the employer’s property rights as is contemplated by the result in this case does not deny any right of the employer under the Fifth Amendment of the Federal Constitution. P.232. 2. The order of the National Labor Relations Board in this case, requiring the employer to cease and desist from refusing the use of the meeting hall to the complainant or any other labor organization, is too broad and is not supported by the findings of the Board; and it must be modified so as to restrain the employer from treating a labor organization’s application for use of the hall on a different basis from those of others similarly situated. Pp. 232-233. 165 F. 2d 609, reversed. The Court of Appeals refused enforcement of that part of an order of the National Labor Relations Board, 70 N. L. R. B. 614, which required an employer to grant to a labor organization the use of a meeting hall in a LABOR BOARD v. STOWE SPINNING CO. 227 226 Opinion of the Court. company town. 165 F. 2d 609. This Court granted certiorari. 334 U. S. 831. Reversed and remanded, p. 233. Mozart G. Ratner argued the cause for petitioner. With him on the brief were Solicitor General Perlman, David P. Findling and Ruth Weyand. Paul C. Whitlock argued the cause and filed a brief for respondents. Opinion of the Court by Mr. Justice Murphy, announced by Mr. Justice Rutledge. The principal question for decision is whether the circumstances justified the finding of an unfair labor practice. A union organizer was refused the use of a company-owned meeting hall, and the union complained to the Board. After the usual proceedings, the Board found an unfair labor practice had been committed, 70 N. L. R. B. 614. The Court of Appeals refused to enforce the Board’s order, 165 F. 2d 609, and the case is here on certiorari. A subsidiary problem is the breadth of the order we are asked to enforce. First. We are asked to overrule the Board’s finding that it is an unfair labor practice1 to discriminate against a union by denying it the only available meeting hall in a company town when the Board finds that the “sole purpose” of the discriminatory denial is “to impede, prevent, and discourage self-organization and collective bargaining by the [company’s] employees within the meaning of Section 7 of the Act.” North Belmont, North Carolina, is the home of the four respondents’ mills. Interlocking directorates and family ties make the four equal one for our purposes.2 1 Under the Wagner Act, 49 Stat. 449, 29 U. S. C. §§ 151, 158 (1). 2 The Board found that “A. C. Lineberger is president of the respondents Perfection, Acme, and Linford; J. Harold Lineberger 228 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. Each of the mills owns a large number of houses in North Belmont which are rented to employees. At a central location are a school, a theatre, and a building housing a post office, all owned or controlled by the mill owners. In sum, North Belmont is a company town. In December, 1944, Harris, a union organizer, appeared in North Belmont and began the first organization drive since the textile strike ten years earlier. He decided to begin with employees of respondent Stowe. A meeting hall was needed for the activity, and the post office building was the only choice open to the organizer—he was refused permission to use the school building, and was told that the theatre could be used only for motion pictures. Most of the post office building was erected by respondents for the Patriotic Order Sons of America, a “patriotic secret order to which any male citizen of the United States of good moral character” can belong. Many of respondents’ employees are members; respondents check off monthly dues. The Order’s president, Baxter Black, told Harris that the proposed meeting might be held in the hall on the payment of a janitor’s fee. Harris emphasized that he was willing to pay for the use of the hall. It is clear he was not asking special favors. Circulars were printed announcing the time and place of the meeting. Thereupon D. P. Stowe, for the four employer-owners, rescinded the permission granted—because Harris was a textile organizer. While the building seems to have been erected on the understanding that only the Patriotic Order might use it, that condition was never enforced is vice president of the respondents Perfection and Linford, and secretary-treasurer of the respondent Acme; D. P. Stowe is vice president of the respondent Acme and secretary-treasurer of the respondent Perfection. The officers of the respondent Stowe are C. T. Stowe, president; C. P. Stowe, vice president; and R. L. Stowe, secretary-treasurer, all of whom are cousins of D. P. Stowe.” LABOR BOARD v. STOWE SPINNING CO. 229 226 Opinion of the Court. until Harris’ union affiliation reached the ears of the owners. Until then the Order had handled its own affairs; Black had been sure that his permission was the final word on the matter. The Board found that the refusal “to permit use of the hall . . . under the circumstances, constituted unlawful disparity of treatment and discrimination against the Union.” The union’s complaint also charged that several employees had been discharged because of union activity, and again the Board found for the union. The Court of Appeals enforced the reinstatement order, but refused enforcement of the order relating to the use of the hall. On the latter determination we granted certiorari 3 to resolve an asserted conflict with prior decisions of this Court. Company rules in Republic Aviation Corp. n. Labor Board and Labor Board v. Le Tourneau Company of Georgia, 324 U. S. 793, forbade union solicitation on company property. Under the circumstances the Board found that these rules offended the Act, and we upheld the Board. Stowe tells us that its case is far removed from the principles established in those decisions: the Board is now invading private property unconnected with the plant, for a private purpose, in the very teeth of the Fifth Amendment. “From Magna Charta on down,” we are warned, “the individual has been guaranteed against disseisin of his property.” A privately owned hall is different from the parking lot involved in Le Tourneau’s case. In the sense suggested by Stowe, the Board finding goes further than those upheld previously by this Court. But in a larger sense it does not. We mention nothing new when we notice that union organization in a com- 3 Stowe’s petition was denied, 334 U. S. 831; the reinstatement order is not being reviewed in this Court. 230 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. pany town must depend, even more than usual, on a hands-off attitude on the part of management.4 And it is clear that one of management’s chief weapons, in attempting to stifle organization, is the denial of a place to meet.5 We cannot equate a company-dominated North Carolina mill town with the vast metropolitan centers where a number of halls are available within easy reach of prospective union members. We would be ignoring the obvious were we to hold that a common meeting place in a company town is not an important part of the company’s business. The question is of course one of degree. But isolated plants must draw labor, and an element in that drawing power is a community hall of some kind.6 In the background of discrimination found by the Board in this case, we cannot say that its conclusion should be upset.7 As we will point out below, the Board may weigh the employer’s expressed motive in determining the effect on employees of management’s otherwise equivocal act. Stowe contends that its denial of facilities to the union was in accord with § 8 (2) of the Act, prohibiting employer interference with the formation or administration of a labor organization. One Board member agreed, citing a number of cases in which the Board had made a grant of company facilities the basis for unfair practice findings. But Stowe would have the cases hold more than they do. In each of them, granting such facilities 4 See Lahne, The Cotton Mill Worker (New York, 1944), pp-50-51. 5 See MacDonald, Southern Mill Hills (New York, 1928), p. 34; Blanshard, Labor in Southern Cotton Mills (New York, 1927), p. 64. 6 See notes 4 and 5. 7 Respondents do not contest the Board finding that antiunion bias was the cause for their refusal of the hall. And four employees were discharged for union activity. See 165 F. 2d 609, 614. Even in the Republic and Le Tourneau cases no such discrimination was shown. 324 U. S. at 797, 801. LABOR BOARD v. STOWE SPINNING CO. 231 226 Opinion of the Court. to the union was only one facet in a pattern of domination found by the Board.8 The opinion of the Board in this case states that the “mere granting of a meeting place to a union by an employer under the conditions present here would not ... in and of itself constitute unlawful assistance to that union . . . .” We have said that the Wagner Act “left to the Board the work of applying the Act’s general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms.” Republic Aviation Corp. v. Labor Board, supra, 324 U. S. at 798. Sections 8(1) and 8 (2) of the Act would seem to run into each other in the situation before us, were we to forget that the Board is the agency which weighs the relevance of factual data. Presumptions such as those employed in the Peyton Packing Company case, 49 N. L. R. B. 828, at 843-844,9 may be important in cases like this one. While the Wagner Act does not ask punishment for evil intent, repeated acts of discrimination may establish a natural tendency to view justifications of other labor practices with some skepticism. Calculating a cumulative effect on employees is not a job for this Court. We cannot 8 See, for example, Berkshire Knitting Mills v. Labor Board, 139 F. 2d 134 (company union given use of hall denied to outside union); Labor Board v. Carlisle Lumber Co., 94 F. 2d 138 (company union given preference over Board-certified bargaining representative); Labor Board v. Norfolk Shipbuilding & Drydock Corp., 109 F. 2d 128 (recognition of inside union without ascertaining employees’ wishes—inside union given use of company rooms); Labor Board v. Lane Cotton Mills, 111 F. 2d 814 (refusal to bargain with certified union coupled with use of recreation room by company union). And see Cudahy Packing Co. n. Labor Board, 118 F. 2d 295; Matter of Standard Oil of California, 61 N. L. R. B. 1251; Matter of Virginia Electric & Power Co., 44 N. L. R. B. 404, enforced 319 U. S. 533. 9 Cited and quoted with approval in the Republic case at 803, 804. 232 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. say that the Board was wrong as a matter of law in view of the setting. The philosophy expressed in the Fifth Amendment does not affect the view we take. The Wagner Act was adopted pursuant to the commerce clause, and certainly can authorize the Board to stop an unfair labor practice as important as the one we are considering. Respondents are unquestionably engaged in interstate commerce within the meaning of the Act. It is not “ ‘every interference with property rights that is within the Fifth Amendment .... Inconvenience, or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining.’ ” 324 U. S. at 802.10 Accordingly, we think the Court of Appeals should have upheld the Board’s unfair practice charge. Second. Stowe’s final contention, that the Board’s order is too broad, is more serious. Stowe is ordered to “cease and desist from . . . refusing to permit the use of the Patriotic Order Sons of America hall by its employees or employees of [the other respondents] or by Textile Workers Union of America, C. I. 0., or any other labor organization, for the purpose of self-organization or collective bargaining.” There are none of the usual qualifications on the face of the order;11 one construction would permit unions to use the hall at all times, whatever the legitimate activity of the Patriotic Order. We are asked to read the decree in its background, and reject what is called a strained construction. Implicit in the order, we are told, is the word “reasonable.’ 10 We pointed out that neither the Republic nor Le Tourneau cases “is like a mining or lumber camp where the employees pass their rest as well as their work time on the employer’s premises, so that union organization must proceed upon the employer’s premises or be seriously handicapped.” 324 U. S. at 799. 11 Compare Labor Board n. Lake Superior Lumber Corp., 167 F. 2d 147, 150, where the Board recognized that the employer might impose “lawful and reasonable conditions.” LABOR BOARD v. STOWE SPINNING CO. 233 226 Jackson, J., dissenting in part. Perhaps this is true. The words of even a judicial decree must be read in their setting. But violation of the order brings the swift retribution of contempt, without the normal safeguards of a full-dress proceeding. Some notice of the prior proceeding must be taken in a contempt action—the very word “reasonable” invites a glance at what has gone before. But too great dependence on the former action places defendants under a restraint that makes the order itself a useless formality. Again the question is of degree. In this case, however, the Board did not find that the very denial of the hall was an unfair labor practice. It found that the refusal by these respondents was unreasonable because the hall had been given freely to others, and because no other halls were available for organization. Now the Board asks us to enforce an order that simply does not mean what it says. We must require explicit language making it clear that the mere denial of facilities will not subject respondents to punishment for contempt. What the Board found, and all we are considering here, is discrimination. The decree should be modified to order respondents to refrain from any activity which would cause a union’s application to be treated on a different basis than those of others similarly situated. We therefore direct the Court of Appeals to remand the case to the Board for amendment of its order to conform to the Board’s findings and this opinion. Reversed and remanded. Mr. Justice Jackson, dissenting in part. I find myself unable to join the Court’s opinion because I have a different view as to the nature of the unfair labor practice involved which leads me to a different conclusion as to the remedy that the Board may prescribe. The employers’ plant was located in a company-owned town. It contained only three buildings suitable for use 234 OCTOBER TERM, 1948. Jackson, J., dissenting in part. 336 U. S. for a public meeting. The Union needed a meeting place and sought to use any one of the three. One is a motion picture theater owned and controlled by the employers but operated by a lessee. The Union was refused its use upon the ground that it was available only for motion pictures. Another was a school building publicly owned but controlled by a school board composed entirely from officers of the employers. The Union sought to use the schoolhouse but, after some negotiations, was told by its custodian that an officer of one of the employers had issued instructions not to permit such use. The third was a building owned and controlled by the employers, occupied by the post office and a grocery store on the first floor and by a meeting hall on the second. This hall for some time had been the quarters of the Patriotic Order Sons of America, a fraternal organization which in practice had exercised full control over it and had permitted various other organizations to use it for community purposes. Its officers consented to the Union’s use of the hall on the payment of a nominal janitor’s fee. Before the scheduled meeting, however, an officer of the employers told the head of the fraternal order that he should not have allowed the use of the hall and caused the permission to be withdrawn. While the tenure of the fraternal organization is somewhat shadowy, it appears that it had been given at least such control of the use of the hall that its consent would have constituted a license so that the Union would not have been trespassing. But for the interference of the employers, either the schoolhouse or the Patriotic Sons hall might have been obtained. I agree with the Court that the Board was justified in finding that the employers’ action in preventing the Union from obtaining this place of assembly constituted an unfair labor practice. But I do not think this finding is or can be based on discrimination. The LABOR BOARD v. STOWE SPINNING CO. 235 226 Jackson, J., dissenting in part. employers, having permitted the Patriotic Sons to control use of the hall, could not properly interfere and command reversal of the Sons’ approval of the Union’s application. On these facts, such conduct would amount to an unfair labor practice, even though no other organization had ever been allowed to use the hall. The interference to oust the Union was enough without a discrimination, which could hardly occur unless some other union had been allowed to use the hall. Consequently, I think the Board could require the employer to notify the Patriotic Sons that it has been unfair in the objections heretofore made and that it will make no objections in the future, and that the Patriotic Sons are free to allow such temporary use if they see fit. But the Board’s order goes beyond this. It has ordered that the employers take affirmative action to place the hall of the Patriotic Sons at the disposal of the Union. It is one thing to forbid the employers to bring pressure on the custodian of the hall to shut out the Union; it is another thing to order them to bring pressure on the custodian to admit the Union, or to order the employers to repossess the hall and turn it over to the Union. If the employers were controlling the hall directly, I would have serious doubts whether denial of union use of the hall could be an unfair labor practice, and equally serious doubts whether it would not be an unfair labor practice under § 8 (2) of the Act to allow it. Neither the complaining Union nor any other has yet been chosen as bargaining agent for these employees. For the employers to provide this Union a hall, by direct permission or by indirect pressure on the Patriotic Sons, may readily convey to employees an impression of favoring the Union thus indulged. As the court below pointed out, the policy of the Act as heretofore applied is one of preventing the employer from extending financial aid or support to any union. I think, in the long run, interpretation of the Act 236 OCTOBER TERM, 1948. Reed, J., dissenting. 336 U. S; to require a complete hands-off attitude on the part of employers will better effectuate the purposes of the Act than an occasional departure from it to require some kind of aid to a union as an expedient for correcting or punishing an unfair labor practice. If the Act permitted imposing such a penalty upon the employers, it would perhaps be appropriate to compel them to provide a meeting hall in lieu of those it kept the Union from obtaining. However, it is well established by decisions of this Court that § 10 (c) of the Act is remedial, not punitive. Consolidated Edison Co. v. Labor Board, 305 U. S. 197; Republic Steel Corp. v. Labor Board, 311 U. S. 7. In both cases, Chief Justice Hughes said for the Court “this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.” 305 U. S. 197, 235, and 311 U. S. 7, 11. Consequently, I think the order should be modified to provide that the employer shall cease and desist from interfering in any manner with the discretion of the Patriotic Sons with respect to use of the hall and that appropriate notices shall be posted. Mr. Justice Reed, with whom The Chief Justice joins, dissenting. The controlling point for decision in this case is whether the Board was justified in concluding that the four respondent companies interfered with rights guaranteed by § 7 of the Wagner Act. Section 7 provides that “Employees shall have the right to self-organization, to form, join, or assist labor organizations . . . .” 49 Stat. 452. The Board’s complaint charged an unfair labor practice under §8(1) against the four, respondent companies by LABOR BOARD v. STOWE SPINNING CO. 237 226 Reed, J., dissenting. their interference with the rights guaranteed by § 7. The form of interference was the refusal of the use of a hall jointly owned by respondents to employees of one of them for the purpose of self-organization. If the four respondents violated § 7, did the Board have power to redress that violation by entering § 1 (b) and § 2 (c) of its order against Stowe and similar orders against the other three respondents? Section 1 (b) ordered the respondents to cease and desist from “Refusing to permit the use of the Patriotic Order Sons of America hall by its employees or employees of Acme Spinning Company, Perfection Spinning Company or Linford Mills, Inc., or by Textile Workers Union of America, C. I. 0., or any other labor organization, for the purpose of self-organization or collective bargaining;” And § 2 (c) ordered respondents to “Upon request, grant to its employees and employees of Acme Spinning Company, Perfection Spinning Company, or Linford Mills, Inc., and to Textile Workers of America, C. I. O., or any other labor organization, the use of the Patriotic Order Sons of America hall for the purposes of self-organi-zation or collective bargaining;” The Board decided that the refusal of the hall violated § 7 and concluded as a matter of law: “3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents Stowe Spinning Company, Acme Spinning Company, Perfection Spinning Company, and Linford Mills, Inc., have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act.” 238 OCTOBER TERM, 1948. Reed, J., dissenting. 336U.S. The Court of Appeals accurately summarized the Board’s action in these words: “It [the Board] made the finding that the owner’s refusal ‘to permit use of the hall for purposes of self organization in a labor union under the circumstances constituted unlawful disparity of treatment and discrimination against the Union.’ It pointed out that foremost among the methods universally utilized by employees in self organization is the exercise of the constitutional right of peaceable assembly. It held that the sole purpose of the respondents’ action was to impede, prevent and discourage the employees in the exercise of this basic right and that by refusing the union permission to use the only available meeting place in the community, the respondents in fact deprived the employees of Stowe of the right.” Labor Board v. Stowe Spinning Co., 165 F. 2d 609, 611. In reversing the Board the Court of Appeals said: “. . . the employer has not interfered with, restrained or coerced its employees in the exercise of their rights. Even though it was evident to the workers that the action of the owners of the hall was inspired by hostility to the union, the refusal did not amount to unlawful interference, restraint or coercion.” Id., 611. A determination that as a matter of law it is or it is not an unfair labor practice for respondents to refuse the use of their hall for union organization purposes will decide this case. The findings show that the center of the village of North Belmont is approximately 2% miles from the center of the town of Belmont. In the village there are four textile mills and about each textile mill a number of houses that belong to the corporations that own the LABOR BOARD v. STOWE SPINNING CO. 239 226 Reed, J., dissenting. respective mills. At a central location in the village, reached by what we assume are public roads and streets, are the school, a theater, and a combined post office and store; above the post office and store is the meeting hall in question. These facilities, except the school, are owned jointly by the four corporations that own the mills. Neither the record nor the findings show whether or not there is privately owned realty in the village belonging to others than the textile mills, but we assume that there is none. Respondents provided the hall as a meeting place for the Patriotic Order Sons of America. The Board found, 70 N. L. R. B. 614, 621: “As to the arrangements under which the P. 0. S. of A. was permitted use of this company-owned property, Stowe credibly testified without contradiction that fit was built especially for the Patriotic Sons of America to hold their meetings in and was not to be rented to anybody else.’ He also testified: ‘. . . we told the Patriotic Sons of America that we were going to let them use the building free of rent, but were not going to allow it to be rented for any [other] purposes.’ ” Under such an arrangement the members of the fraternal order were licensees, who were permitted to use the hall only by virtue of the owner’s consent. There was the further Board statement, quoted below, as to the use of the hall.1 1“As a matter of practice, since 1937, the hall has been used, according to the credible testimony of Black, on numerous occasions for community and employee meetings. Various churches have used the hall for banquets; ‘Ladies Aid’ societies have gathered there; the North Belmont School had the use of the hall for at least one Christmas party; and for several weeks employees of the respondents attended a ‘Safety school’ held in the hall. That no other fraternal order met there is explained by the fact, established by Stowe’s 823978 0—49---20 240 OCTOBER TERM, 1948. Reed, J., dissenting. 336 U. S. It does not appear from the record how far this village center is from the respective mills. It is clear, however, that the Patriotic Order Sons of America hall is not connected with the mill operations, nor is its use open to employees because of their employment by any of the mills. There is a distinct line of cleavage as to the rights of employees between facilities and means of production open to the use of employees through their employment contract and other property of the employer that may be used by any person other than the owner only through some contract, license, or permission, not a part of an employment contract. The undisputed evidence discloses that membership in the fraternal order is not restricted to the employees of the mills, and that it includes others. The error into which the Board fell concerning the right to use the Patriotic Order Sons of America hall is, it seems to us, that it thought the “disparity of treatment and discrimination against the Union” involved in the refusal of the hall was a violation of the employees’ “right to self-organization, to form, join, or assist labor organizations.” 2 § 7. It is only when there is a violation testimony, that the P. 0. S. of A. is the only such organization in North Belmont. Furthermore, Black’s credible testimony is undisputed that it was the practice, when any other organization wanted to use the hall, for the P. 0. S. of A. 'lodge’ itself to pass upon the request. There is no evidence that any other organization, except the Union, was ever refused use of the hall, either by the P. 0. S. of A. or by the respondents.” 70 N. L. R. B. 614, 621. 2 The Board said: “Moreover, irrespective of the respondents’ motive, we are convinced, and find upon the consideration stated above, that by refusing to permit their employees to exercise the right to meet on company-owned property for the purpose of holding a union meeting, when no other suitable property in the community was available for the purpose, under the circumstances set forth above, the respondents have placed an unreasonable impediment on freedom of communication and of assembly essential to the exercise of employees’ rights guaranteed by Section 7 of the Act. By their conduct LABOR BOARD v. STOWE SPINNING CO. 241 226 Reed, J., dissenting. through an interference with or a restraining or coercion of employees’ rights under § 7 that an unfair labor practice finding may be predicated on the employer’s acts. The employer is not required to aid employees to organize. The law forbids only interference. Employment in a business enterprise gives an employee no rights in the employer’s other property, disconnected from that enterprise. As to such property, the employer stands on the same footing as any other property owner. As indicated above, that is the condition as to the Patriotic Order Sons of America hall. The refusal of this owner to allow the hall’s use for union organization is not an unfair labor practice under §§ 7 and 8 any more than a refusal by any other private owner would be. As far as the hall is concerned, the relation of employeremployee does not exist between the mill owners and the mill workers. There cannot be an unfair labor practice as to the use of this hall under the applicable sections of the National Labor Relations Act. Perhaps the ruling of this Court in Marsh v. Alabama, 326 U. S. 501, approaches closer to this problem than any other case. There Alabama punished a distributor of religious literature for trespass when she insisted on passing out the pamphlets on a private sidewalk, used by the owners’ permission to enter stores and the post office. This Court reversed and held the application of the state law of trespass violated the Fourteenth Amendment. This Court held, p. 509: “Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand.” Certain ex- m revoking the grant of privilege to use the hall and thus denying the use of the hall to the Union, the respondents Stowe, Acme, Perfection, and Linford interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(1) thereof.” Id., 624. 242 OCTOBER TERM, 1948. Reed, J., dissenting. 336 U. S. pressions, set out below,3 occur in the opinion as to the right to use private property for speech, press and assembly but they must be read in the light of the facts in the Marsh case. So read, or however read, they cannot be construed as a holding that the natural right of free expression or of assembly, guaranteed by our Constitution, is a delusion unless organizers and evangelists can commandeer private buildings for use in the propagation of their ideas. The Marsh case, in my view, goes no further than to say that the public has the same rights of discussion on the sidewalks of company towns that it has on the sidewalks of municipalities. 3 “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. . . . Had the corporation here owned the segment of the four-lane highway which runs parallel to the 'business block’ and operated the same under a state franchise, doubtless no one would have seriously contended that the corporation’s property interest in the highway gave it power to obstruct through traffic or to discriminate against interstate commerce. . . . And even had there been no express franchise but mere acquiescence by the State in the corporation’s use of its property as a segment of the four-lane highway, operation of all the highway, including the segment owned by the corporation, would still have been performance of a public function and discrimination would certainly have been illegal. “We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a 'business block’ in the town and a street and sidewalk on that business block.” P. 506-507. “In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute.” P. 509. LABOR BOARD v. STOWE SPINNING CO. 243 226 Reed, J., dissenting. There is nothing in this record that indicates a situation such as exists in employer-owned lumber camps or mining properties. Where an employer maintains living, recreation and work places on such business premises open to employees by virtue of their employment, it has been held that exclusion of union organizers from contact with the employees is an unfair labor practice and that the Board’s ordering the employer to grant union representatives access in non-working hours to the employees under reasonable regulations is a proper means to effectuate the purposes of the Act. Labor Board n. Lake Superior Lumber Corp., 167 F. 2d 147. It has never been held that where the employees do not live on the premises of their employer a union organizer has to be admitted to those premises. The present situation differs from the employer-controlled areas where employees both live and work in that here union organizers may solicit the employees on the streets or in their homes or at public meeting houses within a few miles of their employment. Employees are not isolated beyond the hours of labor from an organizer nor is an organizer denied access to the employees. After an organizer has convinced an employee of the value of union organization, that employee can discuss union relations with his fellow-employees during non-working hours in the mill. This gives opportunity for union membership proliferation. Republic Aviation Corp. v. Labor Board and Labor Board v. Le Tourneau Company of Georgia, 324 U. S. 793. The present case differs from the Le Tourneau and Republic cases in that in those cases the problem concerned the right of an employer to maintain discipline by forbidding employees to foster by personal solicitation union organization on the grounds or in the plant of the company during the employees’ non-working time. We held that, unless there were particular circumstances that justified such a regulation to secure discipline and pro- 244 OCTOBER TERM, 1948. Reed, J., dissenting. 336 U. S. duction, the employer must allow such discussion. Republic Aviation Corp. v. Labor Board, supra. The Board now seeks an extension of this rule. It is argued that where the only readily available meeting place is a piece of property belonging to the employer, the Board may require him to permit his employees to use that meeting place for presentation of arguments for unionization. Even where the employer has allowed other organizations to use his property, I do not think that the words of the statute guaranteeing employees the right to organize and to form labor unions permit such an extension. Employment furnishes no basis for employee rights to the control of property for union organization when the property is not a part of the premises of the employer, used in his business. So to construe the statute raises serious problems under the Fifth Amendment. Would the theater, also owned by the mill proprietors, be subject to the union’s user? Would that construction as applied in the finding and particularly in the earlier quoted sections of the order deprive respondents of their property without just compensation or force private owners to devote their property to private purposes, i. e., union organization? Definite legislative language only would authorize such a construction of this statute. United States v. C. I. 0., 335 U. S. 106, 120-21. Labor unions do not have the same right to utilize the property of an employer not directly a part of the employment facilities, that an employer has. The Board cannot require that such meeting places be furnished for employees by an employer under the terms of the Act. To require the employer to allow labor union meetings in or on property entirely disconnected in space and use from the business of the employer and employees is too extravagant an extension of the meaning of the Act for me to believe it is within its language or the purpose of Congress. I would affirm the Court of Appeals. AUTO. WORKERS v. WIS. BOARD. 245 Syllabus. INTERNATIONAL UNION, U. A. W. A., A. F. of L., LOCAL 232, et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al. CERTIORARI TO THE SUPREME COURT OF WISCONSIN. Nos. 14 and 15. Argued November 17-18, 1948.—Decided February 28, 1949. Negotiations for a collective bargaining agreement between an employer, engaged in interstate commerce, and a labor union, certified under the National Labor Relations Act as collective bargaining representative of the employees, became deadlocked. In order to bring pressure on the employer, the union adopted a plan whereby union meetings were called at irregular times during working hours, without advance notice to the employer or any notice as to whether or when the employees would return. In a period of less than 5 months, 27 such work stoppages occurred. The employer was not informed during this period of any specific demands which these tactics were designed to enforce nor what concessions it could make to avoid them. In a proceeding under the Wisconsin Employment Peace Act, the Wisconsin Employment Relations Board issued an order which was construed and upheld by the State Supreme Court as forbidding the individual defendants and members of the union from engaging in concerted effort to interfere with production by those methods. Held: It was within the power of the State to prohibit the particular course of conduct described. Pp. 247-265. 1. Upon review here, the construction placed upon the State Board’s order by the State Supreme Court is conclusive. Pp. 250-251. 2. As thus applied, the state statute does not have the purpose or effect of imposing any form of involuntary servitude in violation of the Thirteenth Amendment. P. 251. 3. The statute as applied does not invade rights of free speech and public assemblage guaranteed by the Fourteenth Amendment. Lincoln Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525; American Federation of Labor v. American Sash & Door Co., 335 U. S. 538. Pp. 251-252. 4. The statute as applied does not violate the Commerce Clause of the Federal Constitution. P. 252. 5. This recurrent or intermittent unannounced stoppage of work to win unstated ends was neither forbidden by federal statute nor was it legalized and approved thereby, and there is no basis for 246 OCTOBER TERM, 1948. Counsel for Parties. 336U.S. denying to the State the power, in governing her internal affairs, to regulate an activity having such an obviously coercive effect. Pp. 252-265. (a) Neither by the National Labor Relations Act nor by the Labor Management Relations Act has Congress clearly manifested an intention to exclude the state power sought to be exercised in this case. Pp. 252-254. (b) There is no existing or possible conflict or overlapping between the authority of the Federal and State Boards, because the Federal Board has no authority to investigate, approve or forbid the union conduct in question. Pp. 252-254. (c) The order of the State Board does not conflict with the provision of § 7 of the National Labor Relations Act that employees shall have the right to engage in “concerted activities” for the purpose of “collective bargaining or other mutual aid or protection.” Pp. 254-258. (d) Nor does the order of the State Board conflict with § 13 of the National Labor Relations Act, which provides that nothing in that Act shall be construed so as to “interfere with or impede or diminish” the right to strike—even when read in connection with the definition of “strike” in the Labor Management Relations Act. Pp. 258-265. 250 Wis. 550, 27 N. W. 2d 875, affirmed. In a proceeding under state law, the Wisconsin Employment Relations Board ordered a labor union and members thereof to cease and desist from instigating certain intermittent and unannounced work stoppages in the plants of an employer engaged in interstate commerce. Separate proceedings were instituted in the state courts by the Board to enforce the order and by the union and individual defendants to obtain review. The State Supreme Court, reversing judgments of the trial court, upheld the validity of the order. 250 Wis. 550, 27 N. W. 2d 875. This Court granted certiorari. 333 U. S. 853. Affirmed, p. 265. David Previant argued the cause and filed a brief for petitioners. Beatrice Lampert, Assistant Attorney General of Wisconsin, argued the cause for the Wisconsin Employment AUTO. WORKERS v. WIS. BOARD. 247 245 Opinion of the Court. Relations Board, respondent. With her on the brief were Grover L. Broadfoot, Attorney General, and Stewart G. Honeck, Deputy Attorney General. Jackson M. Bruce argued the cause for the Briggs & Stratton Corp., respondent. With him on the brief were Edgar L. Wood and Bernard V. Brady. Max Raskin filed a brief for the Wisconsin State Industrial Union Council, as amicus curiae, in support of petitioners. Briefs urging affirmance were filed as amici curiae by the following: A joint brief by Guy E. Williams, Attorney General, for the State of Arkansas, J. Tom Watson, Attorney General, for the State of Florida, Robert L. Larson, Attorney General, for the State of Iowa, Eugene F. Black, Attorney General, and Edmund E. Shepherd, Solicitor General, for the State of Michigan, Walter R. Johnson, Attorney General, for the State of Nebraska, P. 0. Sathre, Attorney General, for the State of North Dakota, Roy H. Beeler, Attorney General, for the State of Tennessee, and Grover A. Giles, Attorney General, for the State of Utah; by T. McKeen Chidsey, Attorney General, M. Louise Rutherford, Deputy Attorney General, and George L. Reed, Solicitor, State Labor Relations Board, for the State of Pennsylvania; by Leon B. Lamfrom for the Employers Association of Milwaukee; and by Howard Johnson for the Wisconsin Manufacturers’ Association et al. Mr. Justice Jackson delivered the opinion of the Court. Certain labor legislation of the State of Wisconsin,1 as applied by its Supreme Court, is challenged because is said to transgress constitutional limitations imposed xThe Wisconsin Employment Peace Act provides in part as follows: “It shall be an unfair labor practice for an employe individually or in concert with others: (a) To coerce or intimidate an employe 248 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. by the Thirteenth and Fourteenth Amendments and by the Commerce Clause2 as implemented by the National Labor Relations Act3 and the Labor Management Relations Act of 1947/ The Supreme Court of Wisconsin held5 that its Act authorizes the State Employment Relations Board to order a labor union to cease and desist from instigating certain intermittent and unannounced work stoppages which it had caused under the following circumstances: Briggs & Stratton Corporation operates two manufacturing plants in the State of Wisconsin engaging approximately 2,000 employees. These are represented by the International Union, Automobile Workers of America, A. F. of L., Local No. 232, as collective bargaining agent, it having been duly certified as such by the National Labor Relations Board in proceedings under the National Labor Relations Act. Under such certification, the Union had in the enjoyment of his legal rights, including those guaranteed in section 111.04, or to intimidate his family, picket his domicile, dr injure the person or property of such employe or his family. . . . (e) To co-operate in engaging in, promoting or inducing picketing (not constituting an exercise of constitutionally guaranteed free speech), boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employes of an employer against whom such acts are primarily directed have voted by secret ballot to call a strike. . . . (h) To take unauthorized possession of property of the employer or to engage in any concerted effort to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike.” Wis. Stat. (1947) c. Ill, § 111.06 (2). 2 U. S. Const., Art. 1, § 8, Cl. 3, giving the Congress power “To regulate Commerce . . . among the several States . . . .” 3 49 Stat. 449 ; 29 U. S. C. §§ 151-166. 4 61 Stat. 136; 29 U. S. C. §§ 141-197. 5 250 Wis. 550, 27 N. W. 2d 875. The State Supreme Court concluded that petitioners were guilty of unfair labor practices as defined in §§ 111.06 (2) (a), (e) and (h) of the Wisconsin statutes. Those provisions are set out in note 1. AUTO. WORKERS v. WIS. BOARD. 249 245 Opinion of the Court. negotiated collective bargaining agreements, the last of which expired on July 1, 1944. Negotiation of a new one reached a deadlock and bargaining sessions continued for some time without success. On November 3, 1945, its leaders submitted to the Union membership a plan for a new method of putting pressure upon the employer. The stratagem consisted of calling repeated special meetings of the Union during working hours at any time the Union saw fit, which the employees would leave work to attend. It was an essential part of the plan that this should be without warning to the employer or notice as to when or whether the employees would return. The device was adopted and the first surprise cessation of work was called on November 6, 1945; thereafter, and until March 22, 1946, such action was repeated on twenty-six occasions. The employer was not informed during this period of any specific demands which these tactics were designed to enforce nor what concessions it could make to avoid them.6 This procedure was publicly described by the Union leaders as a new technique for bringing pressure upon the employer. It was, and is, candidly admitted that these tactics were intended to and did interfere with production and put strong economic pressure on the employer, who was disabled thereby from making any dependable production plans or delivery commitments. And it was said that “this can’t be said for the strike. After the initial surprise of the walkout, the company knows what it has to do and plans accordingly.” It was 6 Petitioners suggest that the stoppages were initiated to force the employer to comply with a War Labor Board directive. However, the stoppages began several weeks before that directive reached either the Union or the employer. By the latter date, the National board had been abolished. Consequently the issuance of the directive would not seem to throw any light on the Union’s motives or to have any effect on the State Board’s jurisdiction. 250 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. commended as a procedure which would avoid hardships that a strike imposes on employees and was considered “a better weapon than a strike.” The employer did not resort to any private disciplinary measures such as discharge of the employees; instead, it sought a much less drastic remedy by plea to the appropriate public authority under Wisconsin law7 to investigate and adjudge the Union’s conduct under the law of the State. After the prescribed procedures, the Board ordered the Union to cease and desist from “(a) engaging in any concerted efforts to interfere with production by arbitrarily calling union meetings and inducing work stoppages during regularly scheduled working hours; or engaging in any other concerted effort to interfere with production of the complainant except by leaving the premises in an orderly manner for the purpose of going on strike.”8 Two court proceedings resulted from the Board’s order: one by the Board to obtain enforcement and the other by the Union to obtain review. They are here considered, as they were below, together. The Supreme Court of Wisconsin sustained the Board’s order but significantly limited the effect of its otherwise general prohibitions. It held that what the order does, and all that it does, is to forbid individual defendants and members of the Union from engaging in concerted effort to interfere with production by doing the acts in- 7 The Employment Relations Board was created by the 1939 Act. See Wis. Stat. (1947) c. Ill, §111.03. The Board’s jurisdiction over unfair labor practices is delineated in § 111.07. 8 The Board also ordered petitioners to cease and desist from “(b) Coercing or intimidating employes by threats of violence or other punishment to engage in any activities for the purpose of interfering with production or that will interfere with the legal rights of the employes.” This provision of the order, based on evidence of some violence and threats, is not challenged here. AUTO. WORKERS v. WIS. BOARD. 251 245 Opinion of the Court. stantly involved. As we have heretofore pointed out, the construction placed upon such an order by the State Supreme Court is conclusive on us. Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740. Our only question is, therefore, whether it is beyond the power of the State to prohibit the particular course of conduct described.9 The Union contends that the statute as thus applied violates the Thirteenth Amendment in that it imposes a form of compulsory service or involuntary servitude. However, nothing in the statute or the order makes it a crime to abandon work individually (compare Pollock v. Williams, 322 U. S. 4) or collectively. Nor does either undertake to prohibit or restrict any employee from leaving the service of the employer, either for reason or without reason, either with or without notice. The facts afford no foundation for the contention that any action of the State has the purpose or effect of imposing any form of involuntary servitude. It is further contended that the statute as applied invades rights of free speech and public assemblage guaranteed by the Fourteenth Amendment. We recently considered a similar contention in connection with other state action concerning labor relations. Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., and Whitaker v. North Carolina, 335 U. S. 525, and American Federation of Labor v. American Sash & Door Co., 335 9 In the consolidated case before the Circuit Court of Milwaukee County, that court denied enforcement of paragraph (a) of the Board’s order forbidding the work stoppages, but upheld paragraph (b) enjoining violence and threats. See note 8. The Supreme Court approved the order in its entirety. Review of that court’s action in upholding paragraph (a) is sought in these petitions by the Union and nine of its officers, seven of whom are employees of respondent corporation, and all of whom are members of the Union’s Bargaining Committee. 252 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. U. S. 538. For reasons there stated, these contentions are without merit. No serious question is presented by the Commerce Clause of the Constitution standing alone. It never has been thought to prevent the state legislatures from limiting “individual and group rights of aggression and defense” or from substituting “processes of justice for the more primitive method of trial by combat.” Mr. Justice Brandeis, dissenting, Duplex Co. v. Deering, 254 U. S. 443, 488; see also Dorchy v. Kansas, 272 U. S. 306, 311, cited with approval, Thornhill v. Alabama, 310 U. S. 88, 103; and see Hotel & Restaurant Employees’ Local v. Wisconsin Employment Relations Board, 315 U. S. 437. The substantial issue is whether Congress has protected the union conduct which the State has forbidden, and hence the state legislation must yield. When the order of the State Board and the decision of the State Supreme Court were made, the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. §§ 151-166, was in effect and questions of conflict between state and federal law were raised and decided with reference to it. However, the order imposes a continuing restraint which it is contended now conflicts with the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U. S. C. §§ 141-197, which amended the earlier statute. We therefore consider the state action in relation to both Federal Acts. Congress has not seen fit in either of these Acts to declare either a general policy or to state specific rules as to their effects on state regulation of various phases of labor relations over which the several states traditionally have exercised control. Cf. Securities Act of 1933, § 18, 48 Stat. 74, 85, 15 U. S. C. § 77r; Securities Exchange Act of 1934, § 28, 48 Stat. 881, 903, 15 U. S. C. § 78bb; United States Warehouse Act, before and after 1931 Amendment, 39 Stat. 486, 490, 46 Stat. 1465, 7 AUTO. WORKERS v. WIS. BOARD. 253 245 Opinion of the Court. U. S. C. § 269. However, as to coercive tactics in labor controversies, we have said of the National Labor Relations Act what is equally true of the Labor Management Relations Act of 1947, that “Congress designedly left open an area for state control” and that the “intention of Congress to exclude States from exercising their police power must be clearly manifested.” Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 750, 749. We therefore turn to its legislation for evidence that Congress has clearly manifested an exclusion of the state power sought to be exercised in this case. Congress made in the National Labor Relations Act no express delegation of power to the Board to permit or forbid this particular union conduct, from which an exclusion of state power could be implied. The Labor Management Relations Act declared it to be an unfair labor practice for a union to induce or engage in a strike or concerted refusal to work where an object thereof is any of certain enumerated ones. § 8 (b) (4), 61 Stat. 140, 141; 29 U. S. C. § 158 (b) (4). Nevertheless the conduct here described is not forbidden by this Act and no proceeding is authorized by which the Federal Board may deal with it in any manner. While the Federal Board is empowered to forbid a strike, when and because its purpose is one that the Federal Act made illegal, it has been given no power to forbid one because its method is illegal—even if the illegality were to consist of actual or threatened violence to persons or destruction of property. Policing of such conduct is left wholly to the states. In this case there was also evidence of considerable injury to property and intimidation of other employees by threats and no one questions the State’s power to police coercion by those methods.10 10 See notes 8 and 9. 254 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. It seems to us clear that this case falls within the rule announced in Allen-Bradley11 that the state may police these strike activities as it could police the strike activities there, because “Congress has not made such employee and union conduct as is involved in this case subject to regulation by the federal Board.” There is no existing or possible conflict or overlapping between the authority of the Federal and State Boards, because the Federal Board has no authority either to investigate, approve or forbid the union conduct in question. This conduct is governable by the State or it is entirely ungoverned. This case is not analogous to Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U. S. 767, on which petitioners rely. There the State Board undertook to determine the bargaining unit in an industry, an identical question which the Federal Board was authorized to determine, and the two had deliberately laid down contrary policies to govern decisions of this same matter. In that case, of course, the federal policy was necessarily given effect as the supreme law of the land. See also La Crosse Telephone Corporation v. Wisconsin Employment Relations Board, ante, p. 18. But it is claimed that the congressional labor legislation confers upon or recognizes and declares in unions and employees certain rights, privileges or immunities in connection with strikes and concerted activities, and that these are denied by the State’s prohibition as laid down in this case. It is elementary that what Congress constitutionally has given, the state may not constitutionally take away. Hill v. Florida, 325 U. S. 538. The argument is that two provisions, found in § § 7 and 13 of the National Labor Relations Act, not relevantly changed by the Labor Management Relations Act of 11 Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 749. AUTO. WORKERS v. WIS. BOARD. 255 245 Opinion of the Court. 1947, grant to the Union and its members the right to put pressure upon the employer by the recurrent and unannounced stoppage of work. Both Acts provide that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”12 Because the acts forbidden by the Wisconsin judgment are concerted activities and had a purpose to assist labor organizations in collective bargaining, it is said to follow that they are federally authorized and thereby immunized from state control. It is urged here that we are bound to hold these activities protected by § 7 because that has become the settled interpretation of the Act by the Board charged with its administration. This contention is based on decisions by the Board in American Mfg. Concern, 7 N. L. R. B. 753; Harnischfeger Corp., 9 N. L. R. B., 676; The Good Coal Co., 12 N. L. R. B. 136; Armour & Co., 25 N. L. R. B. 989; Cudahy Packing Co., 29 N. L. R. B. 837; and Mt. Clemens Pottery Company, 46 N. L. R. B. 714. We do not think it can fairly be said that even the cumulative effect of those cases amounts to a fixed Board interpretation that all work stoppages are federally protected concerted activities. In those cases, but in a context of antiunion animus on the employer’s part, the Board condemned as unfair labor practices summary discharges attempted in retaliation for isolated work stoppages re- 12 § 7 of National Labor Relations Act, 49 Stat. 449, 452. The Labor Management Relations Act of 1947 added a proviso that employees also have the right to refrain from any or all activities mentioned in this section, except to the extent that the right to refrain might conflict with an agreement requiring membership in a union as a condition of employment as authorized by the Act. 61 Stat. 140. 823978 0—49--21 256 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. fleeting temporary rebellion over rules or conditions of work. The drastic remedy of discharge, so outweighing any possible damage in those cases to the employer and so tainted by antiunion motives, led to the Board’s conclusion of unfair labor practices proscribed by the Act. The Board, however, made it clear in the Harnischjeger and Armour cases that such a conclusion does not necessarily follow a finding that the employees’ activities were concerted: “. . . Section 7 of the Act expressly guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We do not interpret this to mean that it is unlawful for an employer to discharge an employee for any activity sanctioned by a union or otherwise in the nature of collective activity. The question before us is, we think, whether this particular activity was so indefensible, under the circumstances, as to warrant the respondent, under the Act, in discharging the stewards for this type of union activity. We do not think it was.”13 In view of that statement, the facts of the present case do not bring it within the protection of the Act as administered by the Board. Here the employer has resorted to no retaliatory measures and its motive in asking help from the State is not even alleged to be antiunion but merely a desire to keep its plant in operation. The remedy sought against repeated disruption of production is not summary dismissal but invocation of a statutory procedure made available by the State, for the adjudication and resolution of such difficulties. Consequently, we do not find any fixed Board policy to apply the Act to such facts as we have here. The quoted state- 13 9 N. L. R. B. 676,686; 25 N. L. R. B. 989,996. AUTO. WORKERS v. WIS. BOARD. 257 245 Opinion of the Court. ment from the Board’s two opinions indicates lack of belief that it was creating any such rule. However, in no event could the Board adopt such a binding practice as to the scope of § 7 in the light of the construction, with which we agree, given to § 7 by the Courts of Appeals, authorized to review Board orders. In similar cases they have denied comparable work stoppages the protection of that section. C. G. Conn, Ltd. v. Labor Board, 108 F. 2d 390; Labor Board v. Condenser Corp., 128 F. 2d 67; Home Beneficial Life Ins. Co. v. Labor Board, 159 F. 2d 280; and see Labor Board v. Draper Corp., 145 F. 2d 199; Labor Board v. Indiana Desk Co., 149 F. 2d 987. To hold that the alleged fixed Board interpretation has irrevocably labeled all concerted activities “protected” would be in the teeth of the Board’s own language and would deny any effect to the Courts of Appeals’ decisions. The latter decisions and our own, Labor Board n. Fansteel Corp., 306 U. S. 240; Southern & S. Co. v. Labor Board, 316 U. S. 31; Labor Board N. Sands Mfg. Co., 306 U. S. 332; Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740; and see Hotel & Restaurant Employees’ Local v. Wisconsin Employment Relations Board, 315 U. S. 437, clearly interdict any rule by the Board that every type of concerted activity is beyond the reach of the states’ adjudicatory machinery. The bare language of § 7 cannot be construed to immunize the conduct forbidden by the judgment below and therefore the injunction as construed by the Wisconsin Supreme Court does not conflict with § 7 of the Federal Act. In the light of labor movement history, the purpose of the quoted provision of the statute becomes clear. The most effective legal weapon against the struggling labor union was the doctrine that concerted activities were conspiracies, and for that reason illegal. Sec- 258 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. tion 7 of the National Labor Relations Act took this conspiracy weapon away from the employer in employment relations which affect interstate commerce. No longer can any state, as to relations within reach of the Act, treat otherwise lawful activities to aid unionization as an illegal conspiracy merely because they are undertaken by many persons acting in concert.14 But because legal conduct may not be made illegal by concert, it does not mean that otherwise illegal action is made legal by concert. Reliance also is placed upon § 13 of the National Labor Relations Act, which provided, “Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike.” 49 Stat. 449, 457. The 1947 Amendment carries the same provision but that Act includes a definition. Section 501 (2) says that when used in the Act “The term ‘strike’ includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by employees.” 61 Stat. 161. This provision, as carried over into the Labor Management Relations Act, does not purport to create, establish or define the right to strike. On its face it is narrower in scope than § 7—the latter would be of little significance if “strike” is a broader term than “concerted activity.” Unless we read into § 13 words which Congress omitted 14 With respect to activities subject to state control, §111.04 of the Wisconsin statutes provides that employees shall have the right of self-organization, the right to form, join and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 111.06 (1) makes it an unfair labor practice for an employer to interfere with, restrain or coerce his employees in the exercise of the rights guaranteed in § 111.04, and lists other unfair labor practices which the Board is also empowered to prevent. AUTO. WORKERS v. WIS. BOARD. 259 245 Opinion of the Court. and a sense which Congress showed no intention of including, all that this provision does is to declare a rule of interpretation for the Act itself which would prevent any use of what originally was a novel piece of legislation to qualify or impede whatever right to strike exists under other laws. It did not purport to modify the body of law as to the legality of strikes as it then existed. This Court less than a decade earlier had stated that law to be that the state constitutionally could prohibit strikes and make a violation criminal. It had unanimously adopted the language of Mr. Justice Brandeis that “Neither the common law, nor the Fourteenth Amendment, confers the absolute right to strike.” Dorchy v. Kansas, 272 U. S. 306, 311. Dissenting views most favorable to labor in other cases had conceded the right of the state legislature to mark the limits of tolerable industrial conflict in the public interest. Duplex Co. v. Deering, 254 U. S. 443, 488. This Court has adhered to that view. Thornhill v. Alabama, 310 U. S. 88, 103. The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a “fundamental right” and which, as the Court has pointed out, was recognized as such in its decisions long before it was given protection by the National Labor Relations Act. Labor Board v. Jones & Laughlin, 301 U. S. 1, 33. As to the right to strike, however, this Court, quoting the language of § 13, has said, 306 U. S. 240, 256, “But this recognition of ‘the right to strike’ plainly contemplates a lawful strike,—the exercise of the unquestioned right to quit work,” and it did not operate to legalize the sit-down strike, which state law made illegal and state authorities punished. Labor Board v. Fansteel Corp., 306 U. S. 240. Nor, for example, did it make legal a strike that ran afoul of federal law, Southern S. S. Co. n. Labor Board, 260 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. 316 U. S. 31; nor one in violation of a contract made pursuant thereto, Labor Board v. Sands Mjg. Co., 306 U. S. 332; nor one creating a national emergency, United States v. United Mine Workers, 330 U. S. 258. That Congress has concurred in the view that neither § 7 nor § 13 confers absolute right to engage in every kind of strike or other concerted activity does not rest upon mere inference; indeed the record indicates that, had the courts not made these interpretations, the Congress would have gone as far or farther in the direction of limiting the right to engage in concerted activities including the right to strike. The House Committee of Conference handling the bill which became the Labor Management Relations Act, on June 3, 1947 advised the House to recede from its disagreement with the Senate and to accept the present text upon grounds there stated under the rubric “Rights of Employees.” H. R. Rep. No. 510, 80th Cong., 1st Sess., p. 38. The Committee pointed out that “the courts have firmly established the rule that under the existing provisions of section 7 of the National Labor Relations Act, employees are not given any right to engage in unlawful or other improper conduct. In its most recent decisions the Board has been consistently applying the principles established by the courts. . . And “it was believed that the specific provisions in the House bill excepting unfair labor practices, unlawful concerted activities, and violation of collective bargaining agreements from the protection of section 7 were unnecessary. Moreover, there was real concern that the inclusion of such a provision might have a limiting effect and make improper conduct not specifically mentioned subject to the protection of the act.” The full text of this section of the report is printed in the margin.15 15 “Both the House bill and the Senate amendment in amending the National Labor Relations Act preserved the right under section 7 of that act of employees to self-organization, to form, join, or assist AUTO. WORKERS v. WIS. BOARD. 261 245 Opinion of the Court. Thus, the obvious purpose of the Labor Management Amendments was not to grant a dispensation for the strike but to outlaw strikes when undertaken to enforce any labor organization, and to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The House bill, however, made two changes in that section of the act. First, it was stated specifically that the rights set forth were not to be considered as including the right to commit or participate in unfair labor practices, unlawful concerted activities, or violations of collective bargaining contracts. Second, it was specifically set forth that employees were also to have the right to refrain from self-organization, etc., if they chose to do so. “The first change in section 7 of the act made by the House bill was inserted by reason of early decisions of the Board to the effect that the language of section 7 protected concerted activities regardless of their nature or objectives. An outstanding decision of this sort was the one involving a ‘sit down’ strike wherein the Board ordered the reinstatement of employees who engaged in this unlawful activity. Later the Board ordered the reinstatement of certain employees whose concerted activities constituted mutiny. In both of the above instances, however, the decision of the Board was reversed by the Supreme Court. More recently, a decision of the Board ordering the reinstatement of individuals who had engaged in mass picketing was reversed by the Circuit Court of Appeals (Indiana Desk Co. v. N. L. R. B., 149 Fed. (2d) 987) (1944). “Thus the courts have firmly established the rule that under the existing provisions of section 7 of the National Labor Relations Act, employees are not given any right to engage in unlawful or other improper conduct. In its most recent decisions the Board has been consistently applying the principles established by the courts. For example, in the American News Company case (55 N. L. R. B. 1302) (1944) the Board held that employees had no right which was protected under the act to strike to compel an employer to violate the wage stabilization laws. Again, in the Scullin Steel case (65 N. L. R. B. 1294) and in the Dyson case (decided February 7, 1947), the Board held that strikes in violation of collective bargaining contracts were not concerted activities protected by the act, and refused to reinstate employees discharged for engaging in such activities. In the second Thompson Products case (decided February 21, 1947) the Board held that strikes to compel the employer to vio- 262 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. what the Act calls unfair labor practices, an end which would be defeated if we sustain the Union’s claim in this respect. By § 8 (b) (4), strikes to attain named oblate the act and rulings of the Board thereunder were not concerted activities protected by the provisions of section 7. The reasoning of these recent decisions appears to have had the effect of overruling such decisions of the Board as that in Matter of Berkshire Knitting Mills (46 N. L. R. B. 955 (1943)), wherein the Board attempted to distinguish between what it considered as major crimes and minor crimes for the purpose of determining what employees were entitled to reinstatement. “By reason of the foregoing, it was believed that the specific provisions in the House bill excepting unfair labor practices, unlawful concerted activities, and violation of collective bargaining agreements from the protection of section 7 were unnecessary. Moreover, there was real concern that the inclusion of such a provision might have a limiting effect and make improper conduct not specifically mentioned subject to the protection of the act. “In addition, other provisions of the conference agreement deal with this particular problem in general terms. For example, in the declaration of policy to the amended National Labor Relations Act adopted by the conference committee, it is stated in the new paragraph dealing with improper practices of labor organizations, their officers, and members, that the ‘elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.’ This in and of itself demonstrates a clear intention that these undesirable concerted activities are not to have any protection under the act, and to the extent that the Board in the past has accorded protection to such activities, the conference agreement makes such protection no longer possible. Furthermore, in section 10 (c) of the amended act, as proposed in the conference agreement, it is specifically provided that no order of the Board shall require the reinstatement of any individual or the payment to him of any back pay if such individual was suspended or discharged for cause, and this, of course, applies with equal force whether or not the acts constituting the cause for discharge were committed in connection with a concerted activity. Again, inasmuch as section 10 (b) of the act, as proposed to be amended by the conference agreement, requires that the rules of evidence applicable in the district courts shall, so far as practicable, be followed and applied by the Board, AUTO. WORKERS v. WIS. BOARD. 263 245 Opinion of the Court. jectives are made unfair labor practices; and by § 10 (a),16 the Board is authorized to prevent them. The definition plainly enough was designed to enable the Board to order a union to cease and desist from a strike so made illegal, whether it consisted of a strike in the usual or conventional meaning or consisted of some of the other practices mentioned in the definition. However, if we add the definition to § 13, it does not change the effect of the Act on state powers. It still gives the Federal Board no authority to prohibit or to supervise the activity which the State Board has here stopped nor to entertain any proceeding concerning it, because it is the objectives only and not the tactics of a strike which bring it within the power of the Federal Board. And § 13 plus the definition only provides that “Nothing in this Act . . . shall be construed so as either to interfere with or impede” the right to engage in these activities. What other Acts or other state laws might do is not attempted to be regu- proof of acts of unlawful conduct cannot hereafter be limited to proof of confession or conviction thereof. “The second change made by the House bill in section 7 of the act (which is carried into the conference agreement) also has an important bearing on the kinds of concerted activities which are protected by section 7. That provision, as heretofore stated, provides that employees are also to have the right to refrain from joining in concerted activities with their fellow employees if they choose to do so. Taken in conjunction with the provisions of section 8(b)(1) of the conference agreement (which will be hereafter discussed), wherein it is made an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of rights guaranteed in section 7, it is apparent that many forms and varieties of concerted activities which the Board, particularly in its early days, regarded as protected by the act will no longer be treated as having that protection, since obviously persons who engage in or support unfair labor practices will not enjoy immunity under the act.” 1661 Stat. 136, 146, 29 U. S. C. § 160 (a). 264 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. lated by this section. Since reading the definition into § 13 confers neither federal power to control the activities in question nor any immunity from the exercise of state power in reference to them, it can have no effect on the right of the State to resort to its own reserved power over coercive conduct as it has done in this instance. If we were to read § 13 as we are urged to do, to make the strike an absolute right and the definition to extend the right to all other variations of the strike,17 the effect would be to legalize beyond the power of any state or federal authorities to control not only the intermittent stoppages such as we have here but also the slowdown and perhaps the sit-down strike as well. Cf. Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 751. And this is not all; the management also would be disabled from any kind of self-help to cope with these coercive tactics of the union except to submit to its undeclared demands. To dismiss or discipline employees for exercising a right given them under the Act or to interfere with them or the union in pursuing it is made an unfair labor practice and if the rights here asserted are rights conferred by the Labor Management Relations Act, it is hard to see how the management can take any steps to resist or combat them without incurring the sanctions of the Act. It is certain that such a result would be inconsistent with the whole purpose disclosed by the Labor Management Relations Act amendments to the National Labor Relations Act. Nor do we think such is the result of any fair interpretation of the text of the Act. We think that this recurrent or intermittent unannounced stoppage of work to win unstated ends was 17 To call these stoppages a strike we would have to ignore petitioners’ own conception of this activity. As we have shown, they adopted this technique precisely because it was believed to be “better than a strike.” See text, pp. 249-250. AUTO. WORKERS v. WIS. BOARD. 265 245 Douglas, J., dissenting. neither forbidden by federal statute nor was it legalized and approved thereby. Such being the case, the state police power was not superseded by congressional Act over a subject normally within its exclusive power and reachable by federal regulation only because of its effects on that interstate commerce which Congress may regulate. Labor Board v. Jones & Laughlin, 301 U. S. 1; Bethlehem Steel Co. v. Board, 330 U. S. 767. We find no basis for denying to Wisconsin the power, in governing her internal affairs, to regulate a course of conduct neither made a right under federal law nor a violation of it and which has the coercive effect obvious in this device. The judgments are Affirmed. Mr. Justice Douglas, with whom Mr. Justice Black and Mr. Justice Rutledge concur, dissenting. This strike was legal under the Wagner Act in 1945 and 1946 and its legality was not affected by the Labor Management Relations Act of 1947. I think, therefore, that the effort of Wisconsin to make it unlawful must fail because it conflicts with the national policy. Section 13 of the Wagner Act is written in language too plain to admit of doubt or ambiguity: “Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike.” The Court held in Labor Board v. Fansteel Corp., 306 U. S. 240, 256, that by this provision Congress “recognized the right to strike,—that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands.” The congressional policy of protection of strikes as economic sanctions is now converted into a congressional policy of hands-off. If the States can outlaw this strike, I see no reason why they cannot adopt regulations which determine the manner in which strikes may be called in these interstate 266 OCTOBER TERM, 1948. Douglas, J., dissenting. 336 U.S. industries. Can they in practical effect outlaw strikes by requiring a unanimous vote of the workers in order to call one? The federal Board is not authorized, it is said, to forbid or control strikes because of the method by which they are called or the way in which they are utilized. If that is the criterion, as the Court declares, then the manner of calling of strikes is left wholly to the States. The right to strike, which Congress has sanctioned, can in that way be undermined by state action. The federal policy thus becomes a formula of empty words. That conclusion is made all the more surprising when § 13 of the Act is read in conjunction with § 7 which provides, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”1 (Italics added.) Section 7 read in conjunction with § 13 must mean that one of the “concerted activities” in which employees may engage is to strike in these interstate industries. In all of labor’s history no “concerted activity” has been more conspicuous and important than the strike; and none was thought to be more essential to recognition of the right to collective bargaining. Moreover, the strike historically and in the present cases was used to make effective the collective bargaining power which § 7 of the Wagner Act guarantees. The right to 1 It was held in Labor Board n. Peter C. K. Swiss Choc. Co., 130 F. 2d 503, 505, 506, that the right to engage in a sympathetic strike or a secondary boycott was a concerted activity protected by §7 prior to the 1947 amendments. It was also held in Labor Board v. Remington Rand, Inc., 94 F. 2d 862, 871, that a strike because of an employer’s refusal to negotiate was protected by § 13, and employees so engaged could recover their positions even at the expense of workers hired to replace them during the strike. AUTO. WORKERS v. WIS. BOARD. 267 245 Douglas, J., dissenting. strike, recognized by § 13, is thus an integral part of the federal labor-management policy. Section 7 was invoked in Allen-Bradley Local n. Wisconsin Employment Relations Board, 315 U. S. 740, 750, to challenge as unconstitutional Wisconsin’s regulation of picketing, threats, and violence in connection with labor disputes. We disallowed the defense, holding that those matters were problems within the reach of the traditional police power of the States and remained there after passage of the federal Act because it had not undertaken to regulate them. The Wagner Act, to be sure, did not undertake to give the federal agency control over the manner of calling strikes or the purpose for which they may be called. To that extent these cases have common ground with the Allen-Bradley decision. But there the similarity ends. In Allen-Bradley the Congress had not expressed a policy on picketing, threats or violence in connection with labor disputes. In this case, as § 13 read in conjunction with § 7 makes plain, it has adopted a policy on strikes. It is the presence of a conflicting federal policy that determines whether state action must give way under the Supremacy Clause,2 even though there may be no actual or potential collision between federal and state administrative agencies. Rice v. Santa Fe Elevator Corp., 331 U. S. 218. In Hill v. Florida, 325 U. S. 538, a state regulation of the licensing of business agents of unions subject to the federal Act was held to be in conflict with the Wagner Act not because the federal Board had any licensing jurisdiction but because the state law interfered with the freedom of collective bargaining guaranteed by § 7 of the Act. The present cases follow a fortiori, if the strike is included in the “concerted activities” guaranteed by § 7. 2 Article VI, Clause 2 of the Constitution. 268 OCTOBER TERM, 1948. Murphy, J., dissenting. 336U.S. The concerted activities in these cases were as old as labor’s struggle for existence and were aimed at (as well as a part of) the purposes which § 7 of the federal Act was designed to protect.3 Therefore the legality of the methods used is exclusively a question of federal law.4 Mr. Justice Murphy, with whom Mr. Justice Rutledge concurs, dissenting. To interfere with production and to enforce their bargaining demands, employees of Briggs and Stratton called twenty-seven union meetings during working hours with- 3 Although this litigation is controlled by the Wagner Act, there is nothing in the Labor Management Relations Act of 1947 that suggests that Congress wished to withdraw its protection from the right to strike except to the extent specially provided by the amendments to the Act. See S. Rep. No. 105, 80th Cong., 1st Sess. 28 (1947). It makes some strikes unfair labor practices. 61 Stat. 141,29 U. S. C. § 158 (b). But the strikes so condemned concededly do not include the kind we have in the present cases. The amendments to §§7 and 13, 29 U. S. C. §§ 157, 163, do not restrict the right as it previously existed. Moreover, the 1947 legislation comprehensively defines a strike, 29 U. S. C. § 142, as “any concerted slow-down or other concerted interruption of operations by employees,” which is broad enough to include the activity which Wisconsin has condemned here. 4 The Court heretofore has held that the measure of the right to strike in these interstate industries is a question of federal law. Labor Board n. Fansteel Corp., 306 U. S. at 255-257. Thus § 2 (3) of the Wagner Act defined employee to “include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute . . . .” 49 Stat. 450, 29 U. S. C. § 152 (3). In accordance with this section the Court has held that participation in a strike did not remove workers from the protection of the Act and that they retained the status of employees. See Labor Board v. Mackay Co., 304 U. S. 333, 345-347. The question of what is a “labor dispute” within the meaning of § 2 (3) necessarily involves a consideration of whether the strike was or was not justified. See Labor Board v. Stackpole Carbon Co., 105 F. 2d 167, 176. Determination of the legality of strikes in interstate industries by federal law is necessary if the administration of the federal system AUTO. WORKERS v. WIS. BOARD. 269 245 Murphy, J., dissenting. out advance notice to the employer. Employees left their work and returned later in the day, or the following day. Wisconsin has made this concerted activity unlawful. The question is whether the State’s action violates the federal guarantee contained in § 7 of the Wagner and Taft-Hartley Acts: “Employees shall have the right to . . . engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” We have recognized that the phrase “concerted activities” does not make every union activity a federal right. We have held that violence by strikers is not protected, Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740; that a sit-down strike, Labor Board v. Fansteel Corp., 306 U. S. 240, a mutiny, Southern S. S. Co. v. Labor Board, 316 U. S. 31, and a strike in violation of a contract, Labor Board v. Sands Mjg. Co., 306 U. S. 332, must be withdrawn from the literal language of § 7. But the Court, by its reasoning and its quotation from a Congressional report, now makes intermittent work stoppages the equivalent of mutiny, contract-breaking, and the sit-down strike. It stretches the “objectives and means” test to include a form of pressure which is peaceful and direct. In effect, it adopts the employer’s plea that it cannot plan production schedules, cannot notify its customers and suppliers, cannot determine its output with any degree of certainty and that these inconveniences withdraw this activity from § 7 of the national statutes. The majority and the Wisconsin court call the weapon objectionable, then, only because it is effective. of labor-management relations is to be uniform and harmonious. The status of workers as employees will determine what relief they may be entitled to under the federal Act. See Phelps Dodge Corp. v. Labor Board, 313 U. S. 177. Reinstatement rights may indeed depend on whether a worker has lost his status as an employee through activities not comprehended in the federal protection of the right to strike. Labor Board v. Fansteel Corp., supra. 270 OCTOBER TERM, 1948. Murphy, J., dissenting. 336 U.S. To impute this rationale to the Congress which enacted the Wagner Act is, in my opinion, judicial legislation of an extreme form. The Court chooses to ignore the consistent policy of the agency charged with primary responsibility in interpreting and administering § 7. The National Board has repeatedly held that work stoppages of this nature are “partial strikes” and “concerted activities” within the meaning of § 7. Cudahy Packing Company, 29 N. L. R. B. 837, 863; Armour & Company, 25 N. L. R. B. 989; The Good Coal Company, 12 N. L. R. B. 136,146; American Mjg. Concern, 7 N. L. R. B. 753, 758; Harnischjeger Corporation, 9 N. L. R. B. 676, 685; Mt. Clemens Pottery Company, 46 N. L. R. B. 714, 716. In each of these six cases, the Board’s interpretation of § 7 is directly contrary to that reached by the Court in the case before us. In each case the Board concluded that work stoppages or “partial strikes” cannot be withdrawn from the language of § 7. To ignore the Board’s consistent rulings in this case is a new and unique departure from the rule of deference to settled administrative interpretation. The fact that the stoppages in the Board cases were fewer in number than those at Briggs and Stratton is not, of course, a controlling difference—unless we are to say that the stoppages are not protected by § 7 because they are effective from the union’s point of view. Wisconsin’s action clearly conflicts with § 7, and accordingly, I would reverse the judgment. GRAVER MEG. CO. v. LINDE CO. 271 Syllabus. GRAVER TANK & MEG. CO., INC. et al. v. LINDE AIR PRODUCTS CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Nos. 184 and 185. Argued January 5-6, 1949.—Decided February 28, 1949. 1. Certain flux claims of Jones patent No. 2,043,960, for an electric welding process and for fluxes, or compositions, to be used therewith, held valid and infringed. Pp. 273-276. (a) This Court, being a court of law rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error. Pp. 274—275. (b) While the ultimate question of patentability is one of meeting the requirements of the statute, the facts found by the two courts below with respect to these claims warrant a conclusion by this Court as a matter of law that those statutory requirements have been met. P. 275. (c) The two courts below found that these claims were infringed and this Court finds no cause for reversal. Pp. 275-276. 2. Certain other flux claims of the same patent held invalid as being too broad and comprehending more than the invention. Pp. 276-277. (a) While vain repetition is no more to be encouraged in patents than in other documents, and claims like other statements may incorporate other matters by reference, their text must be sufficient to “particularly point out and distinctly claim” an identifiable invention or discovery. P. 277. (b) When claims overclaim the invention to the point of invalidity and are free from ambiguity which might justify resort to the specifications, they are not to be saved because the latter are less inclusive. P. 277. 3. All process claims of the same patent held invalid. Pp. 277-279. 4. Both courts below having found that the patent had not been abused so as to forfeit the right to maintain an infringement suit based on the claims held valid, this Court affirms their judgment on that point. Pp. 279-280. 167 F. 2d 531, affirmed in part and reversed in part. 823978 0—49----22 212 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. In a suit for infringement of a patent, the District Court held that certain claims were valid and infringed and had not been forfeited by misuse, but that certain other claims were invalid. 75 U. S. P. Q. 231. The Court of Appeals affirmed in part and reversed in part. 167 F. 2d 531. This Court granted certiorari. 335 U. S. 810. Judgment of the Court of Appeals reversed insofar as it reverses that of the District Court and judgment of the District Court reinstated in toto. P. 280. Thomas V. Koykka argued the cause for petitioners. With him on the brief were John F. Oberlin, Ashley M Van Duzer, James R. Stewart and Charles L. Byron. John T. Cahill and Richard R. Wolfe argued the cause for respondent. With him on the brief were James A. Fowler, Jr. and Loftus E. Becker. Mr. Justice Jackson delivered the opinion of the Court. Writs of certiorari have been granted, 335 U. S. 810, to review two judgments of the Court of Appeals for the Seventh Circuit involving the same patent. What we shall call the Jones patent was No. 2,043,960, issued to Lloyd Theodore Jones and others, for an electric welding process and for fluxes, or compositions, to be used therewith. The patent is now owned by The Linde Air Products Company, which brought an action for infringement against the Lincoln and two Graver companies. The District Court held four of the flux claims valid and infringed and concluded that the patent owner had not misused the patent so as to forfeit its claims to relief therefor. It held certain other flux claims and all of the process claims invalid. 75 U. S. P. Q. 231. GRAVER MEG. CO. v. LINDE CO. 273 271 Opinion of the Court. The Court of Appeals affirmed the findings that four flux claims were valid and infringed and that the patent had not been abused, but reversed the trial court and held valid the process claims and the remaining contested flux claims. 167 F. 2d 531. The petitioners contend not only that the Court of Appeals’ judgment should be reversed, but that we should also reverse the District Court’s finding of partial validity and should declare the patent entirely invalid and not infringed. At the trial the electric welding prior art and the nature of the Jones invention were explored at length, and opinions of the two courts below, already in the books, adequately discuss the technology of that art and the scientific features of the claims involved. We shall confine this opinion to a statement of the legal principles which lead to our decision. I. Flux Claims 18, 20, 22 and 23, Held Valid, and Infringed, By Two Courts Below. Electric welding was an established art before this invention but one with serious limitations which the industry sought to overcome. The known method was slow and laborious and permitted welding of only relatively thin plates. It was of different types, but each had such deficiencies as a dazzling open arc, smoke and splatter, which made operation unpleasant and somewhat hazardous. Three scientifically trained individuals, Jones, Kennedy and Rotermund, set out purposely to discover a cure for the deficiencies and inadequacies in the method of flux welding, then the most successful method known. They collaborated for some six months in conducting a series of about 500 experiments in the course of which they compounded 75 different flux compositions. They finally produced the invention for which a patent was sought. 274 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. The trial court noted that the results produced by their invention contrasted with those possible under all prior methods in that “there is no glare, no open arc, no splatter, and very little, if any, smoke in the Jones, et al. method.” “The truly remarkable difference, however, between what Jones, Kennedy and Rotermund invented and what had gone on before is perhaps best manifested by the performance achievements of their invention. For instance, only through its use can plates as thick as two and one-half inches be welded in a single pass. Furthermore, the welding speeds made possible by it dwarf those of any other method, and the welds produced by it are of the highest quality in contrast to the great amount of porosity contained in the welds produced by the so-called clay flux process.” The trial court continued: “Since the patentees did invent something patentable over the prior art of electric welding, the collateral questions of what constitutes then’ invention, and what are its boundaries, become pertinent.” He concluded that what was really invented was that which was claimed and bounded by the composition claims Nos. 18, 20, 22 and 23. His findings and conclusion were affirmed by the Court of Appeals. We are now asked to hold that there has been no such invention. Rule 52 (a) of the Federal Rules of Civil Procedure provides in part: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” To no type of case is this last clause more appropriately applicable than to the one before us, where the evidence is largely the testimony of experts as to which a trial court may be enlightened by scientific demonstrations. This trial occupied some three weeks, during which, as the record shows, the trial judge GRAVER MEG. CO. v. LINDE CO. 275 271 Opinion of the Court. visited laboratories with counsel and experts to observe actual demonstrations of welding as taught by the patent and of the welding accused of infringing it, and of various stages of the prior art. He viewed motion pictures of various welding operations and tests and heard many experts and other witnesses. He wrote a careful and succinct opinion and made findings covering all the factual issues. The rule requires that an appellate court make allowance for the advantages possessed by the trial court in appraising the significance of conflicting testimony and reverse only “clearly erroneous” findings. These are manifestly supported by substantial evidence and the Court of Appeals found them supported by the weight of the evidence—indeed found the evidence to warrant support of the patent even in matters not found by the trial court. A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error. Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U. S. 275; District of Columbia v. Pace, 320 U. S. 698; Williams Mfg. Co. v. United Shoe Machinery Corp., 316 U. S. 364; Baker v. Schofield, 243 U. S. 114, 118. No such showing is made. While the ultimate question of patentability is one of meeting the requirements of the statute, R. S. § 4886, as amended, 35 U. S. C. § 31, the facts as found with respect to these four flux claims warrant a conclusion here that as matter of law those statutory requirements have been met. Accordingly, we affirm the judgment insofar as it holds claims numbered 18, 20, 22 and 23 define an invention for which patent has validly issued. Turning to the question of infringement, the District Court found that the Lincoln Electric Co. made, and the 276 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. other petitioners used and sold, a flux substantially identical with that set forth in the valid composition claims of the patent in suit and which could be made by a person skilled in the art merely by following its teachings. The petitioners introduced no evidence to show that their accused flux was derived either from the prior art, by independent experiment or from any source other than the teachings of the patent in suit. The court found infringement of each of the four claims and concluded that the respondent was entitled to a permanent injunction against future infringement and to an accounting for profits and damages. These findings and conclusions were affirmed by the Court of Appeals and we find no cause for reversal. II. Flux Claims Held Invalid By the District Court and Valid By the Court of Appeals. The District Court held invalid claims to a flux for use in the process, numbered 24, 26 and 27. The Court of Appeals reversed as to these and held them valid. Remaining flux claims, numbered 19, 21, 25, 28 and 29, were not in issue, and claim 27 we consider along with the process claims. The difference between the District Court and the Court of Appeals as to these findings comes to this: The trial court looked at claims 24 and 26 alone and declined to interpret the terms “silicates” and “metallic silicates” therein as being limited or qualified by specifications to mean only the nine metallic silicates which had been proved operative. The District Court considered that the claims therefore were too broad and comprehended more than the invention. The Court of Appeals considered that because there was nothing in the record to show that the applicants for the patent intended by these claims to assert a monopoly broader than nine metallic silicates named in the specifications, the court should have con- GRAVER MEG. CO. v. LINDE CO. 277 271 Opinion of the Court. strued the claims as thus narrowed and limited by the specifications. The statute makes provision for specification separately from the claims and requires that the latter “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” R. S. § 4888, as amended, 35 U. S. C. § 33. It would accomplish little to require that claims be separately written if they are not to be separately read. While vain repetition is no more to be encouraged in patents than in other documents, and claims like other statements may incorporate other matter by reference, their text must be sufficient to “particularly point out and distinctly claim” an identifiable invention or discovery. We have frequently held that it is the claim which measures the grant to the patentee. See, for example, Milcor Steel Co. v. Fuller Co., 316 U. S. 143, 145; General Electric Co. v. Wabash Co., 304 U. S. 364, 369; Altoona Theatres v. Tri-Ergon Corp., 294 U. S. 477, 487. While the cases more often have dealt with efforts to resort to specifications to expand claims, it is clear that the latter fail equally to perform their function as a measure of the grant when they overclaim the invention. When they do so to the point of invalidity and are free from ambiguity which might justify resort to the specifications, we agree with the District Court that they are not to be saved because the latter are less inclusive. Cf. General Electric Co. v. Wabash Co., 304 U. S. 364, 373-374; see McClain v. Ortmayer, 141 U. S. 419, 424-425; Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U. S. 399, 410. We think the District Court correctly applied this Principle to claims 24 and 26. III. Process Claims. All process claims were held invalid by the District Court; those numbered 1, 3, 4, 7, 8 and 9, because they 278 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. make no specific reference to the essential chemical constituents of the welding composition to be used in the claimed welding process, a conclusion with which we agree. Process claim 2 was held invalid for the reason applicable to flux claims 24 and 26, with which we also agree. Others, namely 5, 6, 11, 12, 13, 14, 15, 16 and 17, and composition claim 27 were held invalid because they erroneously import that the sole conductive medium through which electric current passes from the electrode to the base metal is the welding composition, which is in a molten state, and that no electric arc phenomenon is present. The court found that the procedural steps in the process taught by the patent are identical in all respects with those followed in prior automatic electric welding processes and that the only invention or discovery resides in the use of a different welding composition. It sustained the patent for the composition, as we have shown, but denied its validity insofar as it claimed the old procedure. The trial court gave extensive consideration to the process claims. It agreed that a radically new process would have been discovered if it could be said that the electric current passed between the electrode and the base metal through a welding composition in a liquid state and that no electric arc is present. All of the previous art had used the electric arc. But with full appreciation of the critical nature of the inquiry and after long litigation of the technology of the art, the court concluded that no such finding of departure from the prior art could be made and said that the evidence is persuasive that no such basic difference in phenomena is present in the Jones method. The District Court reinforced its conclusion by pointing out that the inventors themselves initially did not conceive their invention to embody any such radical de- GRAVER MFG. CO. v. LINDE CO. 279 271 Opinion of the Court. parture from known phenomena and that their first application for a patent was replete with references to the presence and use of an electric arc in the new method. It was only after they had assigned their rights to the respondent that the suggestion of a basically new phenomenon, other than an arc, was made. Just what happens in the Jones method admits of controversy, for there is no visual evidence of an electric arc after the welding operation commences because what actually occurs between the electrode and the metal base is hidden from view by the flux. The court concluded that it is impossible to say with complete certainty that there is not an arc and one of the plaintiff’s expert witnesses gave substantial support to the idea that the arc is still present, although it is shielded by the flux in the Jones patent. The same deference is due to the findings of the trial court which overturn claims as to those which sustain them. Technicians may and probably will continue to debate with plausible arguments on each side as to what this obscure process really is. But the record in this case, while not establishing to a certainty that the findings are right, fall far short of convincing us that they are clearly erroneous. We think that the rules that govern review entitle the trial court’s conclusions to prevail and that the process claims are invalid under the statute. IV. Abuse of Patent. Contentions are made that the patent has been abused through efforts to broaden the patent monopoly by requiring the purchase of unpatentable material for use in connection with it. The trial court found, however, that the plaintiff does not impose on licensees, either as a condition of a license or otherwise, any requirement, condition, agreement or understanding as to the purchase or use of unpatentable commodities and that its licensees are free to buy and use any materials and equipment 280 OCTOBER TERM, 1948. Black, J., concurring. 336 U. S. from any source. The court recognized that an appearance of such freedom is not conclusive if it conceals a subterfuge and that there is a real, although informal, restraint. But examining the conduct of the plaintiff, it found no such obstacle to the maintenance of an action for infringement on that part of the patent which was valid. The Court of Appeals affirmed, and we accept the conclusion of the two courts below on this branch of the case. Our conclusion is that the judgment of the Court of Appeals, insofar as it reverses that of the District Court, should be reversed and that the judgment of the District Court be in all things reinstated. To that extent the judgment below is reversed. It is so ordered. Mr. Justice Black, with whom Mr. Justice Douglas joins, concurring. I concur in the Court’s judgment in this case and in parts II, III and IV of the Court’s opinion. But my concurrence in the holding that Claims 18, 20, 22 and 23 are valid does not rest merely on findings of the District Court and the Court of Appeals that those claims were valid. While accepting the findings of those two courts on what I consider to be questions of fact, it is my view that determination of the ultimate question of patentability cannot properly be classified as a finding of fact. I would adhere to this Court’s earlier pronouncement that “whether the thing patented amounts to a patent-able invention” is a question of law to be decided by the courts as such. Mahn n. Harwood, 112 U. S. 354, 358; and see dissenting opinions in Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U. S. 275, 280, note 1, and Williams Manufacturing Co. v. United Shoe Machinery Corp., 316 U. S. 364, 383. FOLEY BROS. v. FILARDO. 281 271 Syllabus. I agree, however, that the facts found here justify the holding that Claims 18, 20, 22, and 23 do show patent-able discovery when measured by the standards announced by this Court in Cuno Engineering Corp. y. Automatic Devices Corp., 314 U. S. 84. For this reason I concur in affirming the judgment to the extent that it held these claims valid. FOLEY BROS., INC. et al. v. FILARDO. CERTIORARI TO THE SUPREME COURT OF NEW YORK, NEW YORK COUNTY. No. 91. Argued December 15, 1948.—Decided March 7, 1949. The Eight Hour Law, 40 U. S. C. § 324, as amended by 40 U. S. C. § 325a, which provides, in effect, that every contract to which the United States is a party shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract shall be required or permitted to work more than eight hours in any one day upon such work unless he is compensated at the rate of one and one-half times the basic rate of pay for all work in excess of eight hours per day, is not applicable to work done under a contract between the United States and a private contractor on construction projects for the United States in Iraq and Iran. Pp. 282-291. 1. There is nothing in the language of the Act that indicates a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or some measure of legislative control. Vermilya-Brown Co. v. Connell, 335 U. S. 377, distinguished. Pp. 285-286. 2. The legislative history of the Act reveals that Congress was concerned with domestic labor conditions. Pp. 286-288. 3. Administrative interpretations of the Act tend to support the conclusions here reached. Pp. 288-291. 297 N. Y. 217,78 N. E. 2d 480, reversed. In a suit by an American citizen for overtime pay for work done in excess of eight hours per day for an American contractor on a construction project in Iraq and Iran 282 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. under a contract with the United States, a trial court of New York gave judgment for the plaintiff. The Appellate Division reversed. 272 App. Div. 446, 71 N. Y. S. 2d 592. The New York Court of Appeals reversed. 297 N. Y. 217, 78 N. E. 2d 480. This Court granted certiorari. 335 U. S. 808. Reversed, p. 291. Robert L. Stern argued the cause for petitioners, who had a wartime “cost-plus” contract with the Government. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade. Chester A. Lessler argued the cause for respondent. With him on the brief was Howard Henig. Mr. Justice Reed delivered the opinion of the Court. This case presents the question whether the Eight Hour Law1 applies to a contract between the United States and a private contractor for construction work in a foreign country. This Act provides that “Every contract made to which the United States ... is a party . . . shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor . . . shall be required or permitted to work more than eight hours in any one calendar day upon such work; . . .” 37 Stat. 137,40U.S.C. §324. Penalties are specified for violations. In 1940 the prohibition against workdays of longer than eight hours was modified as follows: “Notwithstanding any other provision of law, the wages of every laborer and mechanic employed by 127 Stat. 340, as amended, 40 U. S. C. §§ 321-326. FOLEY BROS. v. FILARDO. 283 281 Opinion of the Court. any contractor or subcontractor engaged in the performance of any contract of the character specified in sections 324 and 325 of this title, shall be computed on a basic day rate of eight hours per day and work in excess of eight hours per day shall be permitted upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.” 54 Stat. 884, 40 U. S. C. § 325a. In 1941 petitioners contracted on a cost-plus basis to build certain public works on behalf of the United States in the East and Near East, particularly in Iraq and Iran. Petitioners agreed in the contract to “obey and abide by all applicable laws, regulations, ordinances, and other rules of the United States of America.” The provisions of the Eight Hour Law were not specifically included in the contract. In 1942 petitioners hired respondent, an American citizen, to work on the construction projects as a cook at sixty dollars a week. This contract of employment contained no provision concerning hours of work or overtime. Pursuant to the contract, respondent went to Iraq and Iran where he frequently worked more than eight hours a day during the years 1942 and 1943. Upon the refusal of his request for overtime pay for work in excess of eight hours per day, he brought suit against petitioners in the Supreme Court of New York, claiming that the Act entitled him to one and one-half times the basic rate of pay for such work. The court denied petitioners’ motions to dismiss the case and for a directed verdict, thereby overruling the contention that the Act did not apply to contracts which were to be performed in foreign countries. Judgment was entered on a jury verdict for respondent. The Appellate Division reversed on the ground that the Eight Hour Law as amended did not confer a right of action on an employee for overtime pay. 272 App. Div. 446, 71 N. Y. S. 2d 592. 284 OCTOBER TERM, 1948. Opinion of the Court. 336 U.S. Consequently it did not consider the question now before us. The New York Court of Appeals reversed, holding that the Act applied to this contract. 297 N. Y. 217, 78 N. E. 2d 480. Referring to the language of the statute quoted above, it concluded, “Words of such inclusive reach cannot properly be read to exclude contracts for government jobs abroad.” We granted certiorari to settle this important question concerning the scope of the Eight Hour Law. 335 U. S. 808. Since the question is one of statutory interpretation, the Act as it now exists, 40 U. S. C. §§ 321-326, is our starting point. In pertinent part it provides for the limitation to eight hours per day of the working time of laborers and mechanics employed by the government or any contractor thereof on a public work of the United States. § 321. The same section makes it unlawful to require or permit work in excess of eight hours per day except in extraordinary emergencies. An intentional violation of this mandate is made a misdemeanor punishable by fine or imprisonment or both. § 322. The insertion in “every contract” made by or on behalf of the United States of this restriction on hours of work is required by § 324. The contracts must stipulate a monetary penalty for violation, which penalty takes the form of a withholding by the government of moneys otherwise due the contractor under the terms of the contract. § 324. Finally the restriction is lifted as to employees of private contractors by § 325a, supra, pp. 282-283, on condition that hours worked in excess of eight be paid for at the overtime rate. The question before us is not the power of Congress to extend the Eight Hour Law to work performed in foreign countries. Petitioners concede that such power exists. Cf. Blackmer v. United States, 284 U. S. 421; United States v. Bowman, 260 U. S. 94. The question is FOLEY BROS. v. FILARDO. 285 281 Opinion of the Court. rather whether Congress intended to make the law applicable to such work. We conclude, for the reasons expressed below, that such was not the intention of the legislators. First. The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, at 437, is a valid approach whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions. We find nothing in the Act itself, as amended, nor in the legislative history, which would lead to the belief that Congress entertained any intention other than the normal one in this case. The situation here is different from that in Vermilya-Brown Co. v. Connell, 335 U. S. 377, where we held that by specifically declaring that the Act covered “possessions” of the United States, Congress directed that the Fair Labor Standards Act applied beyond those areas over which the United States has sovereignty and was in effect in all “possessions.” This Court concluded that the leasehold there involved was a “possession” within the meaning of the Fair Labor Standards Act. There is no language in the Eight Hour Law, here in question, that gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control. There is nothing brought to our attention indicating that the United States had been granted by the respective sovereignties any authority, legislative or otherwise, over the labor laws or customs of Iran or Iraq. We were on their territory by their leave, but without the transfer of any property rights to us. 286 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. The scheme of the Act itself buttresses our conclusion. No distinction is drawn therein between laborers who are aliens and those who are citizens of the United States. Unless we were to read such a distinction into the statute we should be forced to conclude, under respondent’s reasoning, that Congress intended to regulate the working hours of a citizen of Iran who chanced to be employed on a public work of the United States in that foreign land. Such a conclusion would be logically inescapable although labor conditions in Iran were known to be wholly dissimilar to those in the United States and wholly beyond the control of this nation. An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose. See Attorney General Stone’s conclusion to this effect in 34 Op. Atty. Gen. 257, where he stated that the law did not apply to alien laborers engaged in altering the American Embassy in London. The absence of any distinction between citizen and alien labor indicates to us that the statute was intended to apply only to those places where the labor conditions of both citizen and alien employees are a probable concern of Congress. Such places do not include foreign countries such as Iraq and Iran.2 Second. The legislative history of the Eight Hour Law reveals that concern with domestic labor conditions led Congress to limit hours of work. The genesis of the present statute was the Act of June 25, 1868, 15 Stat. 77, which was apparently aimed at unemployment resulting from decreased construction in government navy yards. Congressional Globe, 40th Cong., 2d Sess., Part I, p. 335. In 1892, when the coverage of this Act was extended to employees of government contractors and when criminal 2 Since it is unnecessary for this decision, we do not reach a conclusion as to the precise geographic coverage of the Eight Hour Law. FOLEY BROS. v. FILARDO. 287 281 Opinion of the Court. penalties were added, 27 Stat. 340, the considerations before Congress were domestic unemployment, the influx of cheap foreign labor, and the need for improved labor conditions in this country. H. R. Rep. No. 1267, 52d Cong., 1st Sess. The purpose of the new legislation was to remedy the defects in the Act of 1868. 23 Cong. Rec. 5723. The Act was amended in 1912 to include “every contract.” [Italics supplied.] The insertion of the word “every” was designed to remedy a misinterpretation according to which the Act did not apply to work performed on private property by government contractors. 48 Cong. Rec. 381, 385, 394-95. Nothing in the legislative history supports the conclusion of respondent and the court below that “every contract” must of necessity, by virtue of the broadness of the language, include contracts for work to be performed in foreign countries.3 A contrary inference must be drawn, we think, from a 1913 amendment which extended the law to cover persons employed “to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia.” 37 Stat. 726, 40 U. S. C. § 321. This Court had held that such dredgers were not covered by the phrase “laborers and mechanics” in the previously existing law. EUis v. United States, 206 U. S. 246. In its attempt to secure equality of treatment for dredgers on the one hand and laborers and mechanics on the other, Congress would 3“. . . Words having universal scope, such as ‘Every contract in restraint of trade,’ ‘Every person who shall monopolize,’ etc., will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator subsequently may be able to catch.” American Banana Co. v. United Fruit Co., 213 U. S. 347, 357. 823978 0—49------------23 288 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. hardly have intended for coverage over the latter class to extend to the far corners of the globe while coverage over the former was limited to work performed in rivers or harbors “of the United States or of the District of Columbia.” The 1940 amendment which permitted work in excess of eight hours per day upon payment of overtime, 54 Stat. 884, passed without any discussion indicative of geographical scope. 86 Cong. Rec. 11216-11217. Third. The administrative interpretations of the Eight Hour Law in its various phases of development afford no touchstone by which its geographic scope can be determined. Executive Order No. 8623 of December 31, 1940, 3 C. F. R. Cum. Supp. 850, issued pursuant to § 326 of the Act, suspended the law as to laborers and mechanics employed directly by the government at Atlantic bases leased from Great Britain. Such a suspension indicated, to be sure, a conclusion on the part of the President that the statute applied, or might apply, to these bases. Such action, however, may well have been predicated on the premise that the leases with the provisions discussed in our Vermilya-Brown decision were sufficiently subject to our control so that the Eight Hour Law would apply to them. Though numerous Executive Orders have been issued which suspend the operation of the Act in the United States, Alaska, Hawaii, Midway Island, Wake Island, etc., we have not been able to find, nor has our attention been directed, to any orders purporting to suspend its operation in countries not subject to our legislative control.4 The order deserves no weight as an administrative determination of the Act’s applicability 4 See, however, Executive Orders 9251, 3 C. F. R. Cum. Supp. 1216, and 9898, 3 C. F. R. 1947 Supp. 172, in which the geographic coverage of the suspensions is not specified. FOLEY BROS. v. FILARDO. 289 281 Opinion of the Court. to localities unquestionably and completely beyond the direct legislative competence of the United States. It is true that in 1905 Attorney General Moody, in a letter to the Secretary of War, expressed the opinion that the Eight Hour Law applied to public works to be constructed in the Canal Zone. 25 Op. Atty. Gen. 441. For the purpose of his opinion he treated the Canal Zone as foreign territory. Id., at 444. No distinction was drawn between citizen and alien laborers. If we accept the Attorney General’s assumption as to the status of the Canal Zone,5 his opinion is in line with respondent’s contention that the law is applicable to work performed in foreign countries. The opinion, however, proves too much. Although Attorney General Moody denied that incongruous results would flow from his interpretation, it would be anomalous, as we have said, for an act of Congress to regulate the hours of a citizen of Iran at work on a government project there. Attorney General Stone so indicated in 1924 when he advised the State Department that the Eight Hour Law did not apply to English workers engaged in altering the American Embassy in London. 34 Op. Atty. Gen. 257. Since the statute contains no distinction between laborers based on citizenship, Attorney General Stone’s reasoning that aliens are not covered points to the conclusion that the statute does not apply to contracts which are to be performed in foreign countries. The Comptroller General has expressed agreement with this conclusion by stating that “the Eight-Hour law of June 19, 1912, was not intended to and does not apply to contracts necessarily entered into on behalf of the United States in foreign countries which may require 5 See, however, the Isthmian Canal Convention, proclaimed on February 26, 1904, 33 Stat. 2234, whereby the United States had been granted all the rights, power and authority of a sovereign in the Zone. 290 OCTOBER TERM, 1948. Opinion of the Court. 336U.S. or involve the employment of foreign laborers or mechanics in their performance.” 19 Comp. Gen. 516, 518.6 Although the statute expressly requires the inclusion in every government public-works contract of the eighthour provision, the Secretary of the Treasury has approved a standard form for construction contracts which contains eight-hour provisions but which provides that the use of the form will not be required in foreign countries. U. S. Standard Form No. 23, 41 U. S. C. App. § 12.23, pp. 4520, 4522. The inclusion of such provisions is also required by War Department Procurement Regulation No. 3, fl 346, in “all contracts subject to the provisions of the Eight Hour Law.” Yet neither the instant contract nor others covering off-continent operations contain the Eight Hour Law clause.7 Similarly the Department of State “does not consider it legally necessary to include provisions of the Eight Hour Law in contracts to be performed in foreign countries.” Letter of November 8, 1948, signed by the Acting Legal Adviser “For the Acting Secretary of State,” to the Attorney General. We conclude that administrative interpretations of the Act, although not specifically directed at the precise problem before us, tend to support petitioners’ contention as to its restricted geographical scope. Since we decide that the Eight Hour Law is inapplicable to a contract for the construction of public works in a foreign country over which the United States has no direct legislative control, it is unnecessary to decide 6 See also 29 Op. Atty. Gen. 488, 492 et seq. 7 Illustrative contracts from which the clause is omitted are: W 1098 eng—1525, June 8, 1942 (Labrador and Baffin Island); W 1098 eng—1375, June 3, 1942 (Cuba) ; W 1098 eng—1350, April 24, 1942 (Bahamas) ; W 1098 eng—108, November 10, 1941 (North Africa and Palestine) ; W 1098 eng—-2, August 2, 1941 (Greenland) ; W 958 eng—54, February 8, 1941 (Newfoundland) ; W 958 eng—50, February 4, 1941 (Bermuda). FOLEY BROS. v. FILARDO. 291 281 Frankfurter, J., concurring. whether the law, either directly or via the third party beneficiary contract route, gives an employee who is covered by it a cause of action against his employer for overtime wages. • Reversed. Mr. Justice Frankfurter, with whom Mr. Justice Jackson joins, concurring. Because the decision in V ermilya-Brown Co. v. Connell, 335 U. S. 377, was one of statutory interpretation, I would feel bound by it were it not still open because rendered at this Term. If I felt bound by it, I would be obliged to dissent in this case. We are here confronted by a statute which in terms covers “every contract made to which the United States ... is a party.” 37 Stat. 137,40 U. S. C. § 324. Yet the Court construes it as inapplicable even to the work of a citizen of the United States under a contract between the United States and a corporation domiciled in the United States because “An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose.” For this conclusion reliance is put upon an opinion of Attorney General Stone which refused to interpret the statute as applying to work done upon the American Embassy at London on the ground that “the enforcement of the statutory provision would disturb the agreements entered into between contractors and laborers and mechanics in a foreign country.” 34 Op. Atty. Gen. 257, 260. Support is also found in an opinion of the Comptroller General which reaches a similar conclusion on the basis that “such an application of the statute might easily lead to serious difficulties in effecting contracts for necessary services in countries where social and business conditions and customs differ widely from our own.” 19 Comp. Gen. 516, 518. 292 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336 U.S. Such considerations, I agree, ought properly to take precedence over the literal language of the Eight Hour Law as guides to its interpretation. See American Security Co. v. District of Columbia, 224 U. S. 491. We should not, in the absence of an explicit declaration of policy, assume that Congress meant to impose our domestic standards of employment upon peoples who are not generally subject to the regulatory power of Congress. See 29 Op. Atty. Gen. 488, 492-93. But I could not regard these considerations as controlling if I felt bound by the decision of the Court in the Vermilya-Brown case. That case extended to foreign conditions of labor provisions of the Fair Labor Standards Act indistinguishable in effect from those of the Eight Hour Law, and it was an extension more difficult than that which the Court avoids here both because not apparently compelled by the literal terms of the Fair Labor Standards Act and because that Act is not confined in its application to contracts to which the United States is a party. Uniformity in the terms of Government contracts, indeed, is a matter so much more nearly within the usual scope of Congressional concern that Attorney General Moody required no explicit showing of Congressional purpose to conclude that the Eight Hour Law applied to contracts for the construction of the Panama Canal, even upon the assumption that the Canal Zone was to be regarded as foreign territory. 25 Op. Atty. Gen. 441. But there are other respects in which the Vermilya-Brown case presented more compelling reasons than we have here for refusing to attribute to Congress an intention to regulate the conditions of work of foreign employees. Here we are required only to construe a phrase, “every contract made to which the United States ... is a party,” which is peculiar to its own context. In the V ermilya-Brown case, however, the Court held that our leased bases fell within the term “possessions,” and that is FOLEY BROS. v. FILARDO. 293 281 Frankfurter, J., concurring. a term which Congress has used at least sixty-eight times. See Vermilya-Brown Co. v. Connell, dissenting opinion, 335 U. S. at 398, n. 11. And as illustrating the readiness with which the Vermilya-Brown case can be regarded as controlling the interpretation of all the statutes in which the term occurs, see Spelar v. United States, 171 F. 2d 208, applying the Federal Tort Claims Act to a leased base in Newfoundland. The Vermilya-Brown case, moreover, brushes aside official apprehensions about the interference of the United States in foreign conditions of labor far more serious than those which have influenced judgment here. All we have to guide us in the present case are general statements in opinions of two Attorneys General and a Comptroller General which required no specialized information about working conditions abroad, the knowledge that the standard contracts approved by the Secretary of the Treasury and the War Department are consistent with those opinions, and a letter from the State Department which says merely that the Department “does not consider it legally necessary to include provisions of the Eight Hour Law in contracts to be performed in foreign countries.” In the Vermilya-Brown case, however, the Court had before it a letter on behalf of the Secretary of State which said: “Any holding that the bases obtained from the Government of Great Britain on 99 year leases are ‘possessions’ of the United States in a political sense would not in the Department’s view be calculated to improve our relations with that Government. Moreover, such a holding might very well be detrimental to our relations with other foreign countries in which military bases are now held or in which they might in the future be sought.” The State Department speaks authoritatively on the international responsibility of our Government in observ- 294 OCTOBER TERM, 1948. Frankfurter, J., concurring. 336U.S. ing agreements with other nations, and thus it spoke in this letter. It also has knowledge, to which courts cannot pretend, of the bearing of such observance on propitious negotiations of future agreements. The letter reflects that knowledge. Even cloistered judges, however, need not be ignorant of the fact that this country has not exhausted its interest in securing bases on territory not ours. Our decision in the V ermilya-Brown case in disregard of this weighty concern of the Secretary of State was followed by a petition for rehearing impressively supported by all the actively responsible executive officers of the Government. The State Department reiterated its view that the inclusion of the leased bases among the “possessions” of the United States was “unfortunate” and added that the Department “does not share the assurance of the Court that the house of assembly of Bermuda or other colonial legislatures might not undertake legislation similar to the Fair Labor Standards Act to control labor relations on the bases. It is at least worthy of note in this connection that administrative difficulties have arisen in the bases by reason of the application to contractors’ employees of workmen’s compensation laws of both the United States and the colonies concerned.” The petition for rehearing also brought to the attention of the Court a letter from the Secretary of the Army which read in part as follows: “During the past nine years of employment experience in foreign countries, Army contracting officers have discovered (whether the employment was handled directly or through a CPFF contractor) that in hiring native workmen the local government in many countries will impose maximum wage standards which dare not be violated. These standards are sometimes fixed by statute or regulation with the force of statute, and other times by policy which has FOLEY BROS. v. FILARDO. 295 281 Frankfurter, J., concurring. the practical effect of law. Such governments explain that to pay native workmen according to American wage standards would seriously disrupt the local economy. Also, in many industrially undeveloped countries, local officials advise that ‘excessive’ wages to common laborers would jeopardize the availability of such laborers and impose serious police problems upon the state. (It should be noted that the social and economic structure of many areas, organized along tribal lines, precludes a direct dealing with individual laborers.) It appears doubtful that the Court has been sufficiently apprised of this special problem. The payment of statutory overtime to American personnel at contractors’ overseas construction sites will be a minor problem in comparison with paying of statutory minimum wages and overtime to native workmen in the face of militant opposition by foreign governments. (It should be noted that among American personnel all laborers and mechanics, skilled and semi-skilled artisans and craftsmen, have always been paid on hourly rates with overtime benefits far exceeding statutory requirements . . . .)” The Acting Secretary of the Navy expressed similar views : “It has been and is the policy of this Department to employ local labor at the leased bases to the maximum extent practicable and to make its wage and labor practices with respect thereto conform as nearly as possible to the usual wage and labor practices of the particular locality. Application of the Fair Labor Standards Act to the particular areas involved may well create conditions which would adversely affect the cooperation heretofore given Navy contractors by local authorities. The continued cooperation of such authorities is, of course, highly desirable.” 296 OCTOBER TERM, 1948. Appendix to Opinion of Frankfurter, J. 336U.S. The Wage and Hour Administrator, who is ultimately responsible for enforcing the Vermilya-Brown decision, wrote that “even if I should be able to reach sound conclusions as to the application of the Act in these areas, I cannot help but foresee fundamental administrative difficulties in attempting to apply the Act in ‘possessions’ over which the United States does not exercise full sovereign rights, especially where foreign employers and alien labor are involved.” In view both of the Administrator’s very special relation to this matter and of the persuasiveness of his views, his letter is printed as an Appendix to this opinion. If, in the face of these statements by executive officers charged with, and experienced in, the administration of our leased bases, the Court could reach a contrary interpretation of the broad term “possessions,” it must be manifest why I could not, were I bound by precedent, join in reading the narrow phrase “every contract made to which the United States ... is a party” in a way which departed from its literal terms when the only reason for such a departure is reluctance to attribute to Congress an intention to interfere in “labor conditions which are the primary concern of a foreign country.” APPENDIX U. S. Department of Labor WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS Washington 25, D. C., December 23,1943. The Honorable Philip B. Perlman, Solicitor General of the United States, Department of Justice, Washington 25, D. C. Dear Mr. Perlman: By letter dated December 22, 1948, you advise that you intend to support a petition FOLEY BROS. v. FILARDO. 297 281 Appendix to Opinion of Frankfurter, J. for rehearing to be filed in connection with the recent decision of the Supreme Court in Vermilya-Brown Company v. Connell, No. 22, This Term, decided December 6, 1948. You state that you will present to the Court the views of the Departments of State, Army, and Navy. On behalf of these Departments, and the Department of Justice, you will urge the Court to reconsider its holding that the word “possession,” as used in the phrase “State, territory or possession” in Section 3 (c) of the Fair Labor Standards Act, is not a term of art, and that the Bermuda defense area leased to us in 1940 by Great Britain is within the coverage of the statute as a “possession.” You request that I forward to you my views concerning the effect which this holding may have on administration and enforcement of the Act. I think it may fairly be said that my predecessors and I, in considering the territorial aspects of wage-hour coverage in the past, have proceeded on the assumption that traditional concepts of sovereign control were implicit in the meaning of the phrase, “any Territory or possession of the United States,” as that phrase is used in the Fair Labor Standards Act. In the absence of controlling court decisions, it was necessary for us to interpret the phrase for our guidance in the administration of the Act. In doing so, we not only studied the provisions of other statutes in which these terms were used and authoritative decisions of the courts construing such language in situations which were thought to be comparable, but gave particular weight to authoritative expressions of the State Department and other proper governmental agencies on the question of what areas are viewed as Territories or possessions over which the United States exercises full sovereign rights. On this basis we expressed the opinion in Interpretative Bulletin No. 2, first issued in November, 1938, and in Chapter V, 298 OCTOBER TERM, 1948. Appendix to Opinion of Frankfurter, J. 336U.S. Part 776, Title 29 of the Code of Federal Regulations (section 776.1 (c)) which replaced this bulletin in July, 1947, that Alaska, Hawaii, Puerto Rico, the Canal Zone, Guam, Guano Islands, Samoa, and the Virgin Islands were Territories and possessions within the meaning of the Act. When the question of the status of the leased bases of the type involved in the Vermilya-Brown case was first brought to our attention in 1942 and 1943, we expressed the view, in the opinions quoted in the Government’s brief before the Supreme Court, that these bases were not Territories or possessions of the United States within the meaning of the Act. This view was subsequently modified after it appeared that the matter was being litigated in the courts and consultation with State Department officials indicated that that Department had made no ruling (the letter from that Department which is Appendix A to your brief not having been written at that time). This modification of our position is reflected by the following language which was used to advise inquiries: “Until the question has been settled by court decisions, congressional or executive action, or interpretations issued by the State Department or other proper governmental agencies, the Divisions are not in a position to assert whether the Fair Labor Standards Act applies to employees working at bases leased from the British.” As a result of the Supreme Court’s decision in the Vermilya-Brown case, it appears that the status of a given area as a “Territory or possession of the United States” for purposes of the Act is subject to determination on the basis of considerations other than those used by the political departments of the Government, on which we have placed particular reliance in the past. I anticipate that at least two major problems will confront me as a result of the Court’s ruling. FOLEY BROS. v. FILARDO. 299 281 Appendix to Opinion of Frankfurter, J. First, in order to perform my statutory duties under the Act, it will be necessary for me to decide initially, pending authoritative guidance from the courts, whether other defense base areas come within the statutory language covering Territories and possessions of the United States. If, as would seem to follow from the Court’s decision, I would not be aided in this by the views of the State Department as to whether such areas are Territories or possessions in the political sense, or under traditional concepts of sovereignty, I shall be called upon to enter a field of interpretation in which our previous experience with the Act offers no reliable guides, and which may involve the meaning of international agreements on which this agency would ordinarily seek the advice of the State Department. Adequate standards for guidance in deciding such questions for purposes of administration of the Act are, in my opinion, not available to me either in the language of the statute, its legislative history, or in the Vermilya-Brown decision itself. The difficulty, in such circumstances, of reaching sound conclusions concerning coverage in bases such as Okinawa, Greece, Iceland, Canada, Newfoundland, the Philippine Islands, Tunisia, and Arabia is apparent. My position will be even more difficult in connection with classified military base areas. Second, even if I should be able to reach sound conclusions as to the application of the Act in these areas, I cannot help but foresee fundamental administrative difficulties in attempting to apply the Act in “possessions” over which the United States does not exercise full sovereign rights, especially where foreign employers and alien labor are involved. Even if such difficulties may not be insuperable, vexing problems of courts with proper jurisdiction and venue to apply the criminal and civil sanctions in such cases are, it seems to me, bound 300 OCTOBER TERM, 1948. Appendix to Opinion of Frankfurter, J. 336 U. S. to arise if we are to undertake active enforcement in these bases. And, as you will appreciate, neither the appropriation for, nor the organization of the Wage and Hour Division were devised in contemplation of enforcement efforts in outposts such as these. It has, of course, not been possible for us to explore fully these and other possible problems which might confront us as a result of the V ermilya-Brown decision, in the limited time available to us by reason of the period for filing petitions for rehearing. If the Court should grant a rehearing in the case, I shall be glad to make available to you the results of our further exploration of these questions in order that you may fully apprise the Court of my views concerning the probable effects of the present decision in terms of the over-all administration of the Fair Labor Standards Act. Very truly yours, Wm. R. McComb, Administrator. ALGOMA PLYWOOD CO. v. WIS. BOARD. 301 Syllabus. ALGOMA PLYWOOD & VENEER CO. v. WISCONSIN EMPLOYMENT RELATIONS BOARD. CERTIORARI TO THE SUPREME COURT OF WISCONSIN. No. 216. Argued November 18, 1948.—Decided March 7, 1949. In 1942 the National Labor Relations Board certified a union as bargaining representative for employees of a manufacturer producing goods for interstate commerce. In 1943, under pressure from the Department of Labor and the War Labor Board, the employer agreed to a maintenance-of-membership clause in its contract with the union, which was extended from year to year to April, 1947. In January, 1947, an employee was discharged for refusal to pay union dues and filed a complaint with the Wisconsin Employment Relations Board charging violation of Wis. Stat. § 111.06 (1) (c) 1, which, in effect, forbids enforcement of a main-tenance-of-membership clause unless the contract containing it is approved by two-thirds of the employees in a referendum conducted by the State Board. No such referendum had been conducted for these employees. The State Board ordered the manufacturer to cease and desist from giving effect to the maintenance-of-membership clause, to offer the employee reinstatement, and to reimburse him for loss of pay. Held: The order is not in conflict with the National Labor Relations Act or the Labor Management Relations Act. Pp. 303-315. 1. The State Board was not deprived of power to issue its order by § 10 (a) of the National Labor Relations Act, which grants the National Board exclusive power to prevent any person from engaging in any unfair labor practice listed in § 8. Pp. 305-307. 2. Nor was it deprived of power to issue its order by §8 (3), which forbids employers to encourage or discourage membership in a union but provides that nothing in the Act or any other federal statute shall preclude an employer from making an agreement with a union to require membership therein as a condition of employment if the union is the bargaining representative of the employees. Pp. 307-312. (a) This conclusion is supported by the language and legislative history of §8 (3). Pp. 307-310. (b) It is not in conflict with any ruling by the courts or the National Labor Relations Board. P. 310. 302 OCTOBER TERM, 1948. Counsel for Parties. 336 U.S. (c) Nor is it in conflict with the administrative practice of the War Labor Board in prescribing maintenance-of-membership clauses to settle wartime disputes, since that practice was based upon the war powers rather than upon § 8 (3) of the National Labor Relations Act and the War Labor Board had ceased to exist when the State Board issued its order. Pp. 310-312. 3. Nor does the state statute or the State Board’s action thereunder conflict with § 10 (a) of the Labor Management Relations Act. Pp. 313-314. 4. The certification of the union by the National Board did not oust the State Board from jurisdiction to enjoin practices forbidden by state law and not governed by federal law. Pp. 314-315. 252 Wis. 549,32 N. W. 2d 417, affirmed. The Wisconsin Employment Relations Board ordered an employer to cease and' desist from giving effect to a maintenance-of-membership clause in a contract with a union certified by the National Labor Relations Board as the collective bargaining representative of its employees and to reimburse for loss of pay an employee who had been discharged for refusal to pay union dues. A state circuit court modified the order by striking the award of back pay but otherwise affirmed it. 14 Labor Cases (C. C. H.) No. 64,253. The State Supreme Court sustained the order as originally issued. 252 Wis. 549, 32 N. W. 2d 417. This Court granted certiorari. 335 U. S. 812. Affirmed, p. 315. Roger C. Minahan argued the cause for petitioner. With him on the brief was Malcolm K. Whyte. Beatrice Lampert, Assistant Attorney General of Wisconsin, argued the cause for respondent. With her on the brief were Grover L. Broadjoot, Attorney General, and Stewart G. Honeck, Deputy Attorney General. David Previant filed a brief on behalf of the United Brotherhood of Carpenters and Joiners of America, A. F. of L., as amicus curiae, urging reversal. ALGOMA PLYWOOD CO. v. WIS. BOARD. 303 301 Opinion of the Court. Mr. Justice Frankfurter delivered the opinion of the Court. The Algoma Plywood & Veneer Co. manufactures in Kewaunee County, Wisconsin, the products for which it is named. Ninety-five per cent of its output is sold in interstate commerce. In 1942 the National Labor Relations Board held an election at the plant, the outcome of which was the certification of Local 1521 of the Carpenters and Joiners Union as bargaining representative for all production employees, about 650 in number. In 1943, under pressure from the Department of Labor and the War Labor Board, Algoma agreed to a maintenance-of-membership clause in its contract with Local 1521. That clause was carried over from year to year and was part of the contract effective for the year following April 29,1946. One Victor Moreau refused to pay dues, and on Jan. 7, 1947, the Union notified him that unless he paid up by Jan. 13, he would be discharged. On Jan. 14,1947, in the presence of representatives of the Company and the Union, he said that he would rather quit than pay dues to the Union. And so the Vice-President of the Company told him to collect his pay and go home. On Jan. 27, 1947, Moreau filed with the Wisconsin Employment Relations Board a complaint charging the Company with an unfair labor practice under Wis. Stat. § 111.06 (1) (c) 1, which provides: “It shall be an unfair labor practice for an employer ... to encourage . . . membership in any labor organization ... by discrimination in regard to hiring, tenure or other terms or conditions of employment; provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employes in a collective bargaining unit, where at least two thirds of such employes voting . . . shall have voted 823978 0—49-24 304 OCTOBER TERM, 1948. Opinion of the Court. 336 U. S. affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board. . . No referendum had been conducted at the Algoma plant. The Board, accordingly, on April 30, 1947, ordered the Company to cease and desist from giving effect to the maintenance-of-membership clause, to offer Moreau reinstatement, and to make him whole for any loss of pay. The Company and the Union petitioned the Wisconsin Circuit Court of Kewaunee County for review of the order, and the Board petitioned for its enforcement. In its judgment of Nov. 21, 1947, the Circuit Court modified the order by striking the award of back pay, but otherwise affirmed it. On May 11, 1948, the Wisconsin Supreme Court affirmed the judgment of the Circuit Court insofar as it sustained the jurisdiction of the Board to issue its cease and desist order and to require an offer of reinstatement but directed enforcement of the back-pay award. 252 Wis. 549, 32 N. W. 2d 417. At every stage of the proceedings the Company and the Union contested the jurisdiction of the Employment Relations Board on the ground of the exclusive authority of the National Labor Relations Board under § 10 (a) of the National Labor Relations Act, 49 Stat. 453, 29 U. S. C. § 160 (a), and asserted the repugnancy of Wis. Stat. § 111.06 (1) (c) 1 to § 8 (3) of the National Labor Relations Act, 49 Stat. 452, 29 U. S. C. § 158 (3). We granted certiorari under 28 U. S. C. § 1257 (3) because of the important bearing of these issues upon the distribution of power in our federal system. 335 U. S. 812. The discharge of Moreau and the orders of the Wisconsin Board preceded the Labor Management Relations Act, 1947, colloquially known as the Taft-Hartley Act, 61 Stat. 136, 29 U. S. C. § 141 et seq. The judgments of the Circuit Court for Kewaunee County and the Supreme Court o* Wisconsin were rendered after it came into ALGOMA PLYWOOD CO. v. WIS. BOARD. 305 301 Opinion of the Court. force. If the National Labor Relations Act gave affirmative protection to the employer in discharging an employee under a union-security agreement for failure to maintain union membership, it would be necessary to decide whether adoption of the Taft-Hartley Act retroactively removed that protection and whether it equally gave effect to a reinstatement order, an award of back pay, and a cease and desist order which would previously have been invalid. Since, however, we do not find conflict between the Wisconsin law under which the orders were issued and either the National Labor Relations Act or the Taft-Hartley Act, we are relieved from defining the respective applicability of the federal Acts. In seeking to show that the Wisconsin Board had no power to make the contested orders, petitioner points first to § 10 (a) of the National Labor Relations Act, which is set forth in the margin.1 It argues that the grant to the National Labor Relations Board of “exclusive” power to prevent “any unfair labor practice” thereby displaced State power to deal with such practices, provided of course that the practice was one affecting commerce. But this argument implies two equally untenable assumptions. One requires disregard of the parenthetical phrase “(listed in section 8)”; the other depends upon attaching to the section as it stands, the clause “and no other agency shall have power to prevent unfair labor practices not listed in section 8.” The term “unfair labor practice” is not a term of art having an independent significance which transcends its statutory definition. The States are free 1<S. J. Wettrick and Floyd F. Shields for General Mills, Inc. et al., respondents. Reported below: 81 F. Supp. 921. Miscellaneous Orders. No. 626. United States v. Zisblatt. Appeal from the United States District Court for the Southern District of New York. Dismissed on motion of counsel for the appellant. Solicitor General Perlman for appellant. Reported below: 78 F. Supp. 9. No. 348, Mise. Enfield v. Biow Company, Inc. et al. Motion for leave to file petition for writ of certiorari denied. Petitioner pro se. T. B. Cosgrove and Leonard A. Diether for respondents. No. 405, Mise. Dale v. Heinze, Warden ; and No. 423, Mise. Williams v. Overholser, Superintendent. The motions for leave to file petitions for writs of habeas corpus are denied. No. 430, Mise. Ex parte Louisiana Farmers Protective Union, Inc. Motion for leave to file petition for writ of mandamus denied. Cameron C. McCann, James H. Morrison, Edward R. Schowalter and K. K. Kennedy for petitioner. Certiorari Granted. No. 528. Christoffel v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. 0. John Rogge for peti- DECISIONS PER CURIAM ETC. 935 336 U. S. March 28, 1949. tioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Joseph M. Howard for the United States. Reported below: 84 U. S. App. D. C.----, 171 F. 2d 1004. No. 532. Standard-Vacuum Oil Co. v. United States. Court of Claims. Certiorari granted. Albert R. Connelly and George S. Collins for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade for the United States. Reported below: 112 Ct. Cl. 137, 80 F. Supp. 657. No. 537. Faulkner v. Gibbs. C. A. 9th Cir. Certiorari granted. Harold W. Mattingly for petitioner. Herbert A. Huebner for respondent. Reported below: 170 F. 2d 34. No. 558. Federal Power Commission v. Panhandle Eastern Pipe Line Co. et al. C. A. 3d Cir. Certiorari granted. Solicitor General Perlman and Bradford Ross for petitioner. E. Ennalls Berl and Francis J. Syphen for Panhandle Eastern Pipe Line Co.; Jeff A. Robertson and Jay Kyle for the State Corporation Commission of Kansas; and Arthur G. Connolly and Charles S. Layton for Smith et al., respondents. Reported below: 172 F. 2d 57. No. 565. Carter v. Atlanta & Saint Andrews Bay Railway Co. C. A. 5th Cir. Certiorari granted. J. Kirkman Jackson for petitioner. James N. Frazer for respondent. Reported below: 170 F. 2d 719. Certiorari Denied. (See also Nos. 551 and 581, supra.} No. 507. City of Omaha et al. v. Frank Brothers Footwear, Inc. Supreme Court of Nebraska. Certio- 936 OCTOBER TERM, 1948. March 28, 1949. 336 U. S. rari denied. Ralph E. Svoboda for petitioners. Charles S. Rhyne filed a brief for the National Institute of Municipal Law Officers, as amicus curiae, supporting the petition. M. James Spitzer filed a brief for Best & Co., Inc., as amicus curiae, opposing the petition. Reported below: 149 Neb. 888, 33 N. W. 2d 161. No. 519. Birch Securities Co. v. California. District Court of Appeal, 3d Appellate District, of California. Certiorari denied. R. S. McLaughlin for petitioner. Fred N. Howser, Attorney General of California, and James E. Sabine, Deputy Attorney General, for respondent. Reported below: 86 Cal. App. 2d 703, 196 P. 2d 143. No. 534. J. D. Richardson Co. v. United States. United States Court of Customs & Patent Appeals. Certiorari denied. Eugene R. Pickrell and Albert H. Bosch for petitioner. Solicitor General Perlman, Assistant Attorney General Edelstein and John R. Benney for the United States. Reported below: 36 C. C. P. A. (Customs) 15. No. 536. Levine, Executor, v. United States. Court of Claims. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Morton Hollander for the United States. Reported below: 112 Ct. Cl. 187, 80 F. Supp. 674. No. 538. Friedman v. Delaney, Collector of Internal Revenue. C. A. 1st Cir. Certiorari denied. Lee M. Friedman and Louis B. King for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Lee A. Jackson for respondent. Reported below: 171 F. 2d 269. DECISIONS PER CURIAM ETC. 937 336 U. S. March 28, 1949. No. 543. Schoen v. Mountain Producers Corp, et al. C. A. 3d Cir. Certiorari denied. Charles B. McInnis, Louis B. Arnold and Herbert L. Cobin for petitioner. William S. Potter and James L. Latchum for Johnson et al., respondents. Reported below: 170 F. 2d 707. No. 546. Gunn v. Dallman, Collector of Internal Revenue. C. A. 7th Cir. Certiorari denied. Werner W. Schroeder, Harry B. Sutter and Montgomery S. Winning for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack for respondent. Reported below: 171 F. 2d 36. No. 549. Alburn, Trustee, et al. v. Union Trust Co. et al.; and No. 550. Alburn, Trustee, et al. v. National City Bank of Cleveland et al. Supreme Court of Ohio. Certiorari denied. Paul R. Harmel, William S. Evatt and Cary R. Alburn for petitioners. Herbert S. Duffy, Attorney General of Ohio, and W. H. Annat, Assistant Attorney General, for Superintendent of Banks; C. W. Sellers for National City Bank of Cleveland; Howard F. Burns for Union Properties, Inc.; and George Q. Keeley for Burdick et al., respondents. Reported below: 150 Ohio St. 357, 82 N. E. 2d 543. No. 552. O’Neill v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Monroe Goldwater for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Melva M. Graney for respondent. Reported below: 170 F. 2d 596. No. 554. Crippen, Trustee in Bankruptcy, v. City of Dallas. C. A. 5th Cir. Certiorari denied. Webster Atwell for petitioner. Reported below: 171 F. 2d 526. 938 OCTOBER TERM, 1948. March 28, 1949. 336 U. S. No. 559. New Amsterdam Casualty Co. v. A. Cimpi Express Lines, Inc. et al. Court of Appeals of New York. Certiorari denied. George R. Fearon for petitioner. Charles D. Lewis for A. Cimpi Express Lines, Inc.; and George F. Roesch, 2nd, for Gullberg, respondents. Reported below: 298 N. Y. 693, 82 N. E. 2d 588. No. 564. Tucker Products Corp. v. Helms et al. C. A. 9th Cir. Certiorari denied. Herbert Resner for petitioner. James W. Harvey for respondents. Reported below: 171 F. 2d 126. No. 582. Hazeltine Research, Inc. v. General Motors Corp. C. A. 6th Cir. Certiorari denied. Miles D. Pillars, Philip F. LaFollette, Leonard A. Watson and Laurence B. Dodds for petitioner. Drury W. Cooper, Stephen H. Philbin and C. Blake Townsend for respondent. Reported below: 170 F. 2d 6. No. 235, Mise. Morandy v. United States. C. A. 9th Cir. Certiorari denied. Morris Lavine for petitioner. Solicitor General Perlman, Robert S. Erdahl and John R. Benney for the United States. Reported below: 170 F. 2d 5. No. 245, Mise. Jackson v. Hiatt, Warden. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Robert S. Erdahl and Joseph M. Howard for respondent. Reported below: 170 F. 2d 630. No. 247, Mise. Grimm v. Stewart, Warden. Supreme Court of Missouri. Certiorari denied. Petitioner pro se. J. E. Taylor, Attorney General of Missouri, Gordon P. Weir and Samuel Watson, Assistant Attorneys General, for respondent. DECISIONS PER CURIAM ETC. 939 336 U. S. March 28, 1949. No. 257, Mise. Cassel v. Overholser. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Reported below: 83 U. S. App. D. C. 350, 169 F. 2d 683. No. 262, Mise. McGregor v. Ragen, Warden. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Ivan A. Elliott, Attorney General of Illinois, William C. Wines, James C. Murray and Raymond S. Sarnow, Assistant Attorneys General, for respondent. No. 351, Mise. Kelley v. Delaware, Lackawanna & Western Railroad. C. A. 1st Cir. Certiorari denied. Henry Lawlor and Paul H. Snow for petitioner. Paul F. Perkins for respondent. Reported below: 170 F. 2d 195. No. 356, Mise. Blackwell v. Nevada. Supreme Court of Nevada. Certiorari denied. Clel Georgetta for petitioner. Alan Bible, Attorney General of Nevada, Homer Mooney, George P. Annanda, Deputy Attorneys General, and Gray Mashburn for respondent. Reported below: 65 Nev. —, 198 P. 2d 280. No. 360, Mise. Steele v. Jackson, Warden. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Nathaniel L. Goldstein, Attorney General of New York, Wendell P. Brown, Solicitor General, Irving I. Waxman and Louis Winer, Assistant Attorneys General, for respondent. Reported below: 171 F. 2d 432. No. 399, Mise. Janiec v. New Jersey. Supreme Court of New Jersey. Certiorari denied. Reported below: See 137 N. J. L. 94, 58 A. 2d 543. 940 OCTOBER TERM, 1948. March 28, 1949. 336 U. S. No. 401, Mise. Smith v. Hudspeth, Warden. Supreme Court of Kansas. Certiorari denied. Reported below: 166 Kan. 222, 199 P. 2d 804. No. 407, Mise. Blevins v. Hudspeth, Warden. Supreme Court of Kansas. Certiorari denied. Reported below: 166 Kan. 117, 199 P. 2d 171. No. 418, Mise. Blauvelt v. New York. Court of Appeals of New York. Certiorari denied. Reported below: See 298 N. Y. 928, 85 N. E. 2d 67. No. 421, Mise. Lawrence v. Stewart, Warden. Supreme Court of Missouri. Certiorari denied. No. 422, Mise. Rogers v. Indiana. Supreme Court of Indiana. Supreme Court of Indiana. Certiorari denied. Reported below: 226 Ind.----, 82 N. E. 2d 89. No. 479, Mise. Kallas v. Indiana. Supreme Court of Indiana. Certiorari denied. George Cohan and Robert G. Estill for petitioner. J. Emmett McManamon, Attorney General of Indiana, Meri M. Wall and Frank E. Coughlin, Deputy Attorneys General, for respondent. Reported below: 227 Ind.----, 83 N. E. 2d 769. No. 492, Mise. Walker v. California. Supreme Court of California. Certiorari denied. Morris Lavine for petitioner. Reported below: 33 Cal. 2d 250, 201 P. 2d 6. Rehearing Denied. No. 53. Wilkerson v. McCarthy et al., 336 U. S. 53. Rehearing denied. DECISIONS PER CURIAM ETC. 941 336U.S. March 28, April 4, 1949. No. 488. Rowland v. Arkansas, 336 U. S. 918. Rehearing denied. No. 456. Patterson v. Gray, 336 U. S. 905. Motion for leave to file petition for rehearing denied. No. 193, Mise. Haley v. Pennsylvania, 335 U. S. 904. Rehearing denied. No. 218, Mise. Curtis v. Humphrey, Warden, 336 U. S. 921. Rehearing denied. No. 334, Mise. In re McAdam, 336 U. S. 902. Rehearing denied. April 4, 1949. Per Curiam Decisions. No. 476. Woods, Housing Expediter, v. Durr. Certiorari, 336 U. S. 912, to the United States Court of Appeals for the Third Circuit. Per Curiam: The motion of the Solicitor General for remand of this case is granted. The judgment of the Court of Appeals is vacated and the cause is remanded to that court for consideration of the effect of § 209 of the Housing and Rent Act of 1947, 61 Stat. 193, 200, as amended by § 206 of the Act of March 30, 1949, 63 Stat. 18, 29, and the eviction regulations of the Housing Expediter issued pursuant thereto, 14 Fed. Reg. 1571. Solicitor General Perlman for petitioner. J. H. Thayer Martin for respondent. Reported below: 170 F. 2d 976. No. 622. A/S J. Ludwig Mowinckels Rederi et al. v. Isbrandtsen Co., Inc. et al. Appeal from the United States District Court for the Southern District of New York. Per Curiam: The appeal is dismissed. Roscoe H. Hupper and Burton H. White for appellants. John J. O’Connor and William L. McGovern for appellees. Reported below: 81 F. Supp. 544. 942 OCTOBER TERM, 1948. April 4, 1949. 336 U. S. No. 643. Bunn v. North Carolina. Appeal from the Supreme Court of North Carolina. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Petitioner pro se. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for appellee. Reported below: 229 N. C. 734, 51 S. E. 2d 179. Miscellaneous Orders. No. 42. Klapprott v. United States. The motion of the respondent to modify the judgment of this Court in this case is granted. The judgment announced January 17,1949 [335 U. S. 601, 616], reading as follows: “The judgments accordingly are reversed and the cause is remanded to the District Court with instructions to set aside the judgment by default and grant the petitioner a hearing on the merits raised by the denaturalization complaint.”, is amended to read: “The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court with directions to receive evidence on the truth or falsity of the allegations contained in petitioner’s petition to vacate the default judgment entered in the denaturalization proceedings.” Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge dissent from the modification of the order. Solicitor General Perlman was on the motion to modify the judgment, for the United States. P. Bateman Ennis, W. Clifton Stone and Morton Singer were on the brief in opposition, for petitioner. No. 309, Mise. Doelle v. Michigan ; No. 427, Mise. Van Pelt v. Ragen, Warden; and No. 434, Mise. Morton v. Steele, Warden. The motions for leave to file petitions for writs of habeas corpus are denied. DECISIONS PER CURIAM ETC. 943 336 U. S. April 4, 1949. No. 444, Mise. Moss v. Swygert, U. S. District Judge. The motion for leave to file petition for writ of mandamus is denied. No. 445, Mise. Cordts v. Ragen, Warden. The motion for leave to file petition for writ of certiorari is denied. No. 547, Mise. Berry v. Florida. The petition for a stay of execution of the sentence of death is denied. Certiorari Granted. No. 567. Stemmer v. New York; and No. 568. Krakower v. New York. Court of Appeals of New York. Certiorari granted. Arthur Garfield Hays, Osmond K. Fraenkel and Sidney Struble for petitioner in No. 567; and Harry G. Anderson and Harris B. Steinberg for petitioner in No. 568. Frank S. Hogan and Whitman Knapp for respondent. Reported below: 298 N. Y. 728, 83 N. E. 2d 141. No. 578. Oakley v. Louisville & Nashville Railroad Co. et al. ; and No. 579. Haynes v. Southern Railway System et al. C. A. 6th Cir. Certiorari granted. Solicitor General Perlman for petitioners. C. S. Landrum for respondent in No. 578; Carl M. Jacobs and W. S. MacGill for respondent in No. 579; and James Park, Frank L. Mulholland, Clarence M. Mulholland and Willard H. McEwen for System Federations Nos. 21 and 91, Railway Employes’ Department, A. F. of L., respondents. Reported below: No. 578, 170 F. 2d 1008; No. 579, 171 F. 2d 128. No. 400, Mise. Cassell v. Texas. Court of Criminal Appeals of Texas. Certiorari granted. Reported below: 152 Tex. Cr. Rep.-----, 216 S. W. 2d 813. 944 OCTOBER TERM, 1948. April 4, 1949. 336 U. S. Certiorari Denied. No. 247. Railway Express Agency, Inc. v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Ellsworth C. Alvord and Floyd F. Toomey for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Abbott M. Sellers for respondent. Reported below: 169 F. 2d 193. No. 504. Kingsland, Commissioner of Patents, v. Barron-Gray Packing Co. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Solicitor General Perlman for petitioner. Curtis F. Prangley and Charles L. Sturtevant for respondent. Reported below: 84 U. S. App. D. C.-----, 171 F. 2d 576. No. 540. Bottone v. Lindsley et al. C. A. 10th Cir. Certiorari denied. Petitioner pro se. Paul M. Segal and Harry P. Warner for respondents. Reported below: 170 F. 2d 705. No. 548. Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad Co. et al. C. A. 7th Cir. Certiorari denied. Burke Williamson and Jack A. Williamson for petitioner. Solicitor General Perlman, As-sistant Attorney General Bergson, Stanley M. Silverberg, Edward Dumbauld, Daniel W. Knowlton and Harry Underwood for the Interstate Commerce Commission; and Ernest S. Ballard for Baltimore & Ohio Railroad Co. et al., respondents. Reported below: 170 F. 2d 654. No. 555. Cummings v. Lainson, Warden. Supreme Court of Iowa. Certiorari denied. Raymond E. Hanke for petitioner. Reported below: 239 Iowa 1193, 33 N. W. 2d 395. No. 556. Bethea, Independent Executrix, v. Scofield, Collector of Internal Revenue. C. A. 5th Cir. Certiorari denied. J. B. Lewright for petitioner. Solid- DECISIONS PER CURIAM ETC. 945 336 U. S. April 4, 1949. tor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Carlton Fox for respondent. Reported below: 170 F. 2d 934. No. 571. Kober v. United States. C. A. 4th Cir. Certiorari denied. Mark P. Friedlander for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Morton Liftin for the United States. Reported below: 170 F. 2d 590. No. 572. Metropolis Theatre Co. v. Barkhausen et al. C. A. 7th Cir. Certiorari denied. Walter Bachrach, Walter H. Moses, William C. Wines and B. B. Fensterstock for petitioner. Edward Blackman, Edward R. Johnston, Louis M. Mantynband, George L. Siegel and Herbert A. Friedlich for respondents. Reported below: 170 F. 2d 481. No. 573. Chester & Delaware Counties Bartenders, Hotel & Restaurant Employees Union, Local No. 677, A. F. L., et al. v. Wilbank et ux. Supreme Court of Pennsylvania. Certiorari denied. Albert Blumberg for petitioners. Robert F. Jackson for respondents. Reported below: 360 Pa. 48, 60 A. 2d 21. No. 595. Estate of Bassett v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Prew Savoy and Chauncey P. Carter for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, A. F. Prescott and Louise Foster for respondent. Reported below: 170 F. 2d 916. No. 596. Philco Corporation v. F. & B. Manufacturing Co. C. A. 7th Cir. Certiorari denied. Edward S. Rogers, William T. Woodson and Beverly W. Patti-shall for petitioner. John A. Marzall and Lloyd C. Root for respondent. Reported below: 170 F. 2d 958. 823978 0—49------------59 946 OCTOBER TERM, 1948. April 4, 1949. 336 U. S. No. 656. Dunn et al. v. New York. Court of Appeals of New York. Certiorari denied. Bernard Hersh-kopf and Harry G. Anderson for petitioners. Frank S. Hogan and Whitman Knapp for respondent. Reported below: 298 N. Y. 865,84 N. E. 2d 635. No. 544. De Meerleer v. Michigan. Supreme Court of Michigan. Certiorari denied. David W. Louisell for petitioner. Stephen J. Roth, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, for respondent. Reported below: 323 Mich. 287, 35 N. W. 2d 255. No. 271, Mise. Cipullo v. United States. C. A. 2d Cir. Certiorari denied. Richard W. Galiher for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Andrew F. Oeh-mann for the United States. Reported below: 170 F. 2d 311. No. 341, Mise. Atkins v. Warden of Prison System of Texas et al. Supreme Court of Texas. Certiorari denied. No. 419, Mise. Griffin v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. Reported below: See 402 Ill. 247, 83 N. E. 2d 746. No. 420, Mise. Davis v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 426, Mise. Wiseman v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 428, Mise. Michael v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. DECISIONS PER CURIAM ETC. 947 336 U. S. April 4, 1949. No. 429, Mise. Stephenson v. New Jersey et al. Supreme Court of New Jersey. Certiorari denied. No. 433, Mise. Harris v. Robinson, Warden. Circuit Court of Sangamon County, Illinois. Certiorari denied. No. 435, Mise. Ciha v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 438, Mise. Moore v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. Rehearing Denied. No. 458. Carpenter v. Rohm & Haas Co., Inc. ; and No. 459. Carpenter v. Erie Railroad Co., 336 U. S. 904. The motions to enlarge the time to file petitions for rehearing are denied. No. 453. Wade v. Michigan, 336 U. S. 924. Rehearing denied. No. 487. Chandler v. United States, 336 U. S. 918. Rehearing denied. No. 502. Koehne et al. v. Matthews, U. S. Marshal, et al., 336 U. S. 924. Rehearing denied. No. 517. Poore v. Mississippi, 336 U. S. 922. Rehearing denied. No. 368, Mise. Franklin v. Hudspeth, Warden, et al., 336 U. S. 927. Rehearing denied. No. 406, Mise. Eagle v. Cherney et al., 336 U. S. 928. Rehearing denied. 948 OCTOBER TERM, 1948. April 18, 1949. 336 U.S. April 18, 1949. Per Curiam Decisions. No. 613. Viator v. Stone, Chairman, State Tax Commission of Mississippi, et al. Appeal from the Supreme Court of Mississippi. Per Curiam: The appeal is dismissed for the reason that the judgment of the court below is based upon a non-federal ground adequate to support it. Albert Sidney Johnston, Jr. and Weaver E. Gore for appellant. Reported below: 203 Miss. 109, 37 So. 2d 1. No. 649. Longyear Holding Co. et al. v. Minnesota. Appeal from the Supreme Court of Minnesota. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. Mr. Justice Burton took no part in the consideration or decision of this case. John B. Putnam, Pierce Butler and John A. Hadden for appellants. J. A. A. Burnquist, Attorney General of Minnesota, George B. Sjoselius, Deputy Attorney General, and Wm. C. Green for appellee. Reported below: 227 Minn. 255, 35 N. W. 2d 291. No. 680. Gulfstream Park Racing Association, Inc. et al. v. Hialeah Race Course, Inc. et al. Appeal from the Supreme Court of Florida. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. W. G. Ward for the Gulfstream Park Racing Assn., Inc.; and E. Albert Pallot for the Gables Racing Assn., Inc., appellants. Lawrence A. Truett and William C. Gaither for appellees. Reported below: 37 So. 2d 692. DECISIONS PER CURIAM ETC. 949 336 U.S. April 18, 1949. No. 593. Ryles v. United States. On petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit. Per Curiam: The petition for writ of certiorari is granted. Upon the suggestion of the Solicitor General that the judgments be vacated and the case remanded to the District Court for a new trial, and upon consideration of the record, the judgments of the Court of Appeals and the District Court are vacated and the case is remanded to the United States District Court for the Eastern District of Oklahoma with directions to grant a new trial. James W. Bounds for petitioner. Solicitor General Perlman and Assistant Attorney General Campbell for the United States. Reported below: 172 F. 2d 72. Miscellaneous Orders. No. 609. Quicksall v. Michigan. Certiorari, 336 U. S. 916, to the Supreme Court of Michigan. It is ordered that Isadore Levin, Esquire, of Detroit, Michigan, a member of the Bar of this Court, be appointed to serve as counsel for the petitioner in this case. No. 42. Klapprott v. United States, 335 U. S. 601. Motion for clarification of the modified judgment, 336 U. S. 942, denied. Mr. Justice Black dissents. P. Bateman Ennis, W. Clifton Stone and Morton Singer for petitioner. No. 650. Printing Specialties & Paper Converters Union, Local 388, A. F. of L., et al. v. LeBaron, Regional Director, National Labor Relations Board. The petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit is dismissed on motion of counsel for the petitioners. J. Albert Woll, Herbert S. Thatcher and James A. Glenn for petitioners. Reported below: 171 F. 2d 331. 950 OCTOBER TERM, 1948. April 18, 1949. 336 U. S. No. 443, Mise. Lundy v. Warden, State Prison of Southern Michigan. Supreme Court of Michigan. Certiorari denied. Motion for leave to file petition for writ of habeas corpus also denied. No. 431, Mise. al. ; and No. 447, Mise. Shotkin v. General Electric Co. et Lucas v. Texas. Applications denied. No. 441, Mise. Bickford v. United States; and No. 559, Mise. Bird v. Johnson, Secretary of Defense, et al. The motions for leave to file petitions for writs of habeas corpus are denied. George T. Davis and Joseph S. Robinson for petitioner in No. 559, Mise. No. 446, Mise. Sweet v. Howard, Warden. Motion for leave to file petition for writ of certiorari denied. Certiorari Granted. (See also No. 5^2, ante, p. 681, and No. 593, supra.) No. 574. United States v. Westinghouse Electric & Manufacturing Co. C. A. 1st Cir. Certiorari granted. Solicitor General Perlman for the United States. Milton J. Donovan for respondent. Reported below: 170 F. 2d 752. No. 633. United States v. Spelar, Administratrix. C. A. 2d Cir. Certiorari granted. Solicitor General Perlman for the United States. Gerald F. Finley and Arnold B. Elkind for respondent. Reported below: 171 F. 2d 208. No. 584. Federal Communications Commission v. Broadcasting Service Organization, Inc. United States Court of Appeals for the District of Columbia DECISIONS PER CURIAM ETC. 951 336 U.S. April 18, 1949. Circuit. Certiorari granted. Solicitor General Perlman and Benedict P. Cottone for petitioner. Ben S. Fisher, John P. Southmayd and Walter M. Bastian for respondent. Reported below: 84 U. S. App. D. C. -------------, 171 F. 2d 1007. Certiorari Denied. (See also No. 649 and No. 44$> Mise., supra.) No. 490. Edward P. Stahel & Co., Inc. et al. v. United States; and No. 623. United States v. Edward P. Stahel & Co., Inc. et al. Court of Claims. Certiorari denied. William A. Roberts and Irene Kennedy for petitioners in No. 490 and respondents in No. 623. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States, respondent in No. 490; and Solicitor General Perlman for the United States, petitioner in No. 623. Reported below: 111 Ct. Cl. 682, 78 F. Supp. 800. No. 576. Stinson Canning Co. et al. v. United States. C. A. 4th Cir. Certiorari denied. Huger Sink-ler for petitioners. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen for the United States. Reported below: 170 F. 2d 764. No. 577. McEvoy Company v. Kelley et al., doing business as Ben F. Kelley Co. C. A. 5th Cir. Certiorari denied. Ben Connally for petitioner. Reported below: 171 F. 2d 837. No. 586. Marshall v. State Bar of California. Supreme Court of California. Certiorari denied. Petitioner pro se. Edward D. Lyman for respondent. 952 OCTOBER TERM, 1948. April 18, 1949. 336 U. S. No. 587. City of Crystal Lake v. National Yeast Corp. C. A. 7th Cir. Certiorari denied. Homer D. Dines for petitioner. Walter J. Cummings, Jr. for respondent. Reported below: 170 F. 2d 491. No. 588. Spears v. Spears et al. C. A. 6th Cir. Certiorari denied. I. H. Spears for petitioner. Reported below: 171 F. 2d 296. No. 589. Northern Illinois Coal Corp. v. Midwest-Radiant Corp. C. A. 7th Cir. Certiorari denied. David F. Root and Leonard Hofjman for petitioner. Henry Driemeyer, Frederick E. Merrills and Isaac C. Orr for respondent. Reported below: 171 F. 2d 635. No. 611. Eagleston v. United States. C. A. 9th Cir. Certiorari denied. George T. Davis, Sol A. Abrams and Anthony E. O’Brien for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen for the United States. Reported below: 172 F. 2d 194. No. 612. Leishman v. Richards & Conover Co. C. A. 10th Cir. Certiorari denied. John Flam for petitioner. Foorman L. Mueller for respondent. Reported below: 172 F. 2d 365. No. 615. Adda v. Commissioner of Internal Revenue. C. A. 4th Cir. Certiorari denied. Hugh Satter-lee, Mitchell B. Carroll and Rollin Browne for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Irving I. Axelrad for respondent. Reported below: 171 F. 2d 457. DECISIONS PER CURIAM ETC. 953 336 U. S. April 18, 1949. No. 616. Rutledge et al. v. United Services Life Insurance Co. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. P. Bateman Ennis and William H. Collins for petitioners. Neil Burkinshaw for respondent. Reported below: 84 U. S. App. D. C.-----, 171 F. 2d 27. No. 632. New Orleans Shipwrecking Corp. v. Smith et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Daniel S. Ring, Robert S. McDaniel and Ralph O. Clare for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade for respondents. Reported below: 84 U. S. App. D. C. --------, 172 F. 2d 30. No. 644. Ruan Transport Corp, et al. v. Chicago, Burlington & Quincy Railroad Co. C. A. 8th Cir. Certiorari denied. Rex H. Fowler for petitioners. J. C. Pryor and Eldon Martin for respondent. Reported below: 171 F. 2d 781. No. 562. Alker et al. v. Federal Deposit Insurance Corp. C. A. 3d Cir. Motion of petitioners to defer consideration denied; certiorari also denied. Edwin Hall, II, and Harry J. Alker, Jr. for petitioners. Norris C. Bakke, Allen S. Olmsted, 2d and John L. Cecil for respondent. Reported below: See 169 F. 2d 336. No. 590. South Carolina Public Service Authority v. Securities & Exchange Commission et al. ; and No. 591. South Carolina Public Service Authority v. Federal Power Commission et al. C. A. 4th Cir. Certiorari denied. Mr. Justice Black is of the opinion certiorari should be granted. Mr. Justice Doug 954 OCTOBER TERM, 1948. April 18, 1949. 336 U.S. las took no part in the consideration or decision of this application. R. M. Jefferies, Wm. S. Youngman, Jr. and Duncan C. Lee for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Stanley M. Silverberg, Paul A. Sweeney, Melvin Richter, Bradford Ross, Howard E. Wahrenbrock, Francis R. Bell, Roger S. Foster and Harry G. Slater for the Securities & Exchange Commission and Federal Power Commission; George Roberts for the Commonwealth & Southern Corporation; and W. C. McLain and J. B. S. Lyles for the South Carolina Electric & Gas Co., respondents. Reported below: 170 F. 2d 948. No. 627. Tillman v. Tillman. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Emory B. Smith for petitioner. Naomi Wheeler for respondent. Reported below: 84 U. S. App. D. C.----, 172 F. 2d 270. No. 350, Mise. Blair v. Coen. C. A. 7th Cir. Certiorari denied. Elmer McClain and William Lemke for petitioner. McCawley Baird for respondent. Reported below: 170 F. 2d 830. No. 391, Mise. Coker v. Illinois Central Railroad Co. et al. Supreme Court of Tennessee. Certiorari denied. Harold R. Ratcliff for petitioner. Marion G. Evans and Lovick P. Miles for respondents. No. 403, Mise. Fries v. United States. C. A. 6th Cir. Certiorari denied. Robert P. Hobson for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Morton Hollander for the United States. Reported below: 170 F. 2d 726. No. 413, Mise. Bird v. State of Washington. Supreme Court of Washington. Certiorari denied. Peti- DECISIONS PER CURIAM ETC. 955 336 U.S. April 18, 1949. tioner pro se. E. N. Eisenhower for respondent. Reported below: 31 Wash. 2d 777, 198 P. 2d 978. No. 442, Mise. Bonino v. New York. Appellate Division of the Supreme Court of New York. Certiorari denied. Rehearing Denied. No. 513. Burnham Chemical Co. v. Borax Consolidated, Ltd. et al., 336 U. S. 924. Rehearing denied. No. 529, 530 and 531. Standard Oil Co. v. Superior Court of Delaware in and for New Castle County et al., 336 U. S. 930. Rehearing denied. No. 554. Crippen, Trustee in Bankruptcy, v. City of Dallas, 336 U. S. 937. Rehearing denied. No. 306, Mise., October Term, 1947. McGough v. United States, 334 U. S. 829. Rehearing denied. No. 294, Mise. McIntosh v. United States, 336 U. S. 926. Rehearing denied. No. 303, Mise. Dunkle v. Illinois, 336 U. S. 906. Rehearing denied. No. 315, Mise. McIntosh v. Pescor, Warden, 336 U. S. 926. Rehearing denied. No. 410, Mise. Bertrand v. Ragen, Warden, 336 U. S. 923. Rehearing denied. No. 301, Mise. Shotkin v. Westinghouse Electric & Manufacturing Co. et al., 336 U. S. 902. Motion for leave to file petition for rehearing denied. 956 OCTOBER TERM, 1948. April 20, 25, 1949. 336 U. S. April 20, 1949. Miscellaneous Order. No. 506. United States ex rel. Johnson v. Watkins, District Director of Immigration and Naturalization. Certiorari, 336 U. S. 924, to the United States Court of Appeals for the Second Circuit. Shaughnessy, Acting District Director of Immigration and Naturalization, substituted as party respondent, per stipulation of counsel, on motion of Gunther Jacobson for the petitioner. April 25, 1949. Per Curiam Decisions. No. 464. Clayton Mark & Co. et al. v. Federal Trade Commission. Certiorari, 336 U. S. 902, to the United States Court of Appeals for the Seventh Circuit. Argued March 31, 1949. Decided April 25, 1949. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Jackson took no part in the consideration or decision of this case. Albert R. Connelly argued the cause for petitioners. With him on the brief were Thurlow M. Gordon, Edward H. Green, Earl F. Reed, W. Denning Stewart and Milton H. Tucker. Charles H. Weston argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bergson, W. T. Kelley, Robert B. Dawkins and Walter B. Wooden. Julius Henry Cohen, Burton A. Zorn and Edwin P. Kaufman filed a brief for the Chamber of Commerce of the State of New York, as amicus curiae, urging reversal. Reported below: 168 F. 2d 175. No. 631. Allen v. Allen. Appeal from and on petition for writ of certiorari to the Supreme Court of Oklahoma. Per Curiam: The motion for leave to file state- DECISIONS PER CURIAM ETC. 957 336 U. S. April 25, 1949. ment as to jurisdiction is granted. The appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). The petition for writ of certiorari is denied. Lynn Adams and Robert E. Shelton for appellant-petitioner. Tom W. Garrett for appellee-respondent. Reported below: 201 Okla.-----, 201 P. 2d 786. No. 664. Verdier v. Superior Court of California IN AND FOR THE ClTY AND COUNTY OF SAN FRANCISCO ET al. Appeal from the District Court of Appeal, 1st Appellate District, of California. Per Curiam: The appeal is dismissed for want of a substantial federal question. Mr. Justice Murphy took no part in the consideration or decision of this case. Morgan J. Doyle and J. Joseph Sullivan for appellant. Reported below: 88 Cal. App. 2d 527, 199 P. 2d 325. No. 669. Big Slough Drainage District of Sedgwick County et al. v. Board of County Commissioners of Sedgwick County et al. Appeal from the Supreme Court of Kansas. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. J. Wirth Sargent for appellants. Charles S. Rhyne for appellees. Reported below: 166 Kan. 122, 199 P. 2d 530. No. 690. Smith v. California. Appeal from the Superior Court in and for the County of Alameda, California. Per Curiam: The appeal is dismissed for want of a substantial federal question. George Olshausen for appellant. No. 698. Anderson v. Michigan. Appeal from the Circuit Court of Berrien County, Michigan. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Allan R. Rosenberg for appellant. Stephen J. Roth, Attorney 958 OCTOBER TERM, 1948. April 25, 1949. 336 U. S. General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, for appellee. No. 599. Mitchell et al. v. White Consolidated, Inc. On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit. Per Curiam: The petition for writ of certiorari is granted. The judgment of the Court of Appeals dismissing the appeal is vacated and the cause remanded to it to determine, pursuant to Rule 86 (b) of the Rules of Civil Procedure, whether the application of amended Rule 73 (a) to this particular action would work injustice. Jay E. Darlington for petitioners. Miscellaneous Orders. No. 40. Oklahoma Tax Commission v. Texas Company; and No. 41. Oklahoma Tax Commission v. Magnolia Petroleum Co. The request of counsel for the respondent in No. 41 to adopt the petition for rehearing in No. 40 is granted. The petition for rehearing is denied. In view of its contents, however, it may be added to what was said in the Court’s opinion, 336 U. S. 342, that, as with all other questions of state law involved in the case, see id. at n. 44, insofar as the law of Oklahoma may permit the application of its taxing statutes only prospectively, nothing in this Court’s opinion or decision forbids the Supreme Court of Oklahoma to apply that law to the taxes involved in this case. Cf. Great Northern R. Co. n. Sunburst Co., 287 U. S. 358, 364. No.—, Original. United States v. Louisiana; and No. —, Original. United States v. Texas. Motion of Annie C. and Agnes E. Lewis for leave to intervene denied. DECISIONS PER CURIAM ETC. 959 336U.S. April 25, 1949. No. 4, Mise. Lang v. Walsh, Sheriff. The petition for writ of certiorari to the Supreme Court of Illinois is dismissed on motion of counsel for the petitioner. Wm. Scott Stewart for petitioner. No. 448, Mise. Rash v. Howard, Warden ; and No. 474, Mise. Touche v. Lainson, Warden. The motions for leave to file petitions for writs of habeas corpus are denied. Certiorari Granted. (See also No. 599, supra.) No. 575. Secretary of Agriculture v. Central Roig Refining Co. et al.; and No. 580. Porto Rican American Sugar Refinery, Inc. v. Central Roig Refining Co. et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Solicitor General Perlman for petitioner in No. 575. Orlando J. Antonsanti, Arthur L. Quinn and Gordon P. Peyton for petitioner in No. 580. Frederic P. Lee and Noel T. Dowling for the Central Roig Refining Co. et al.; Howard C. Westwood and Donald Hiss for the American Sugar Refining Co. et al.; and Thurman Arnold and Walton Hamilton for the Government of Puerto Rico, respondents. Reported below: 84 U. S. App. D. C. —, 171 F. 2d 1016. No. 585. Government of Puerto Rico v. Secretary of Agriculture et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Thurman Arnold and Walton Hamilton for petitioner. Frederic P. Lee and Noel T. Dowling for the Central Roig Refining Co. et al.; and Howard C. Westwood and Donald Hiss for the American Sugar Refining Co. et al., respondents. Reported below: 84 U. S. App. D. C.-------, 171 F. 2d 1016. 960 OCTOBER TERM, 1948. April 25, 1949. 336 U. S. No. 617. United States v. Aetna Casualty & Surety Co. C. A. 2d Cir. Certiorari granted. Solicitor General Perlman for the United States. William A. Hyman for respondent. Reported below: 170 F. 2d 469. No. 618. United States v. World Fire & Marine Insurance Co. C. A. 10th Cir. Certiorari granted. Solicitor General Perlman for the United States. Pearce C. Rodey for respondent. No. 619. United States v. Yorkshire Insurance Co.; and No. 620. United States v. Home Insurance Co. C. A. 3d Cir. Certiorari granted. Solicitor General Perlman for the United States. Reported below: 171 F. 2d 374. Certiorari Denied. (See also No. 631, supra.) No. 435. Inland Steel Co. v. National Labor Relations Board et al. C. A. 7th Cir. Certiorari denied. Ernest S. Ballard for petitioner. Solicitor General Perlman, David P. Findling, Ruth Weyand and Marcel Mallet-Prevost for the National Labor Relations Board, respondent. Reported below: 170 F. 2d 247. No. 594. Roett v. United States. C. A. 3d Cir. Certiorari denied. Frederic M. P. Pearse for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen for the United States. Reported below: 172 F. 2d 379. No. 597. Shepard Niles Crane & Hoist Corp. v. McComb, Wage & Hour Administrator. C. A. 2d Cir. Certiorari denied. James L. Burke for petitioner. Solicitor General Perlman, William S. Tyson and Bessie Margolin for respondent. Reported below: 171 F. 2d 69. DECISIONS PER CURIAM ETC. 961 336U.S. April 25, 1949. No. 602. United States v. Daddona. C. A. 2d Cir. Certiorari denied. Solicitor General Perlman for the United States. Francis B. Feeley and Stephen K. Elliott for respondent. Reported below: 170 F. 2d 964. No. 608. Capital Airlines, Inc. v. Civil Aeronautics Board. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Charles H. Murchison for petitioner. Solicitor General Perlman, Assistant Attorney General Bergson, Charles H. Westdn, Emory T. Nunneley, Jr. and Warren L. Sharfman for respondent. Reported below: 84 U. S. App. D. C. -------, 171 F. 2d 339. No. 635. West Virginia Northern Railroad Co. v. Riley, Administratrix. Supreme Court of Appeals of West Virginia. Certiorari denied. Harry H. Byrer and F. E. Parrack for petitioner. Reported below:--W. Va. —, 51 S. E. 2d 119. No. 636. West Virginia Northern Railroad Co. v. Pritt. Supreme Court of Appeals of West Virginia. Certiorari denied. Harry H. Byrer and F. E. Parrack for petitioner. Reported below:----W. Va.-----, 51 S. E. 2d 105. No. 637. Stueber et al. v. Admiral Corporation. C. A. 7th Cir. Certiorari denied. Julius L. Sherwin and Theodore R. Sherwin for petitioners. Francis H. Uriell for respondent. Reported below: 171 F. 2d 777. No. 639. Estate of Fuller et al. v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari denied. Warren W. Grimes and Earl Whittier Shinn for petitioners. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and 8. Walter Shine for respondent. Reported below: 171 F. 2d 704. 823978 0—49------------60 962 OCTOBER TERM, 1948. April 25, 1949. 336 U. S. No. 645. Universal Atlas Cement Co. v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. A. Chauncey Newlin for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Morton K. Rothschild for respondent. Reported below: 171 F. 2d 294. No. 658. Cohn v. Cohn et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Warren E. Miller and David S. Allshouse for petitioner. John J. Courtney for respondents. Solicitor General Perlman filed a memorandum for the United States, respondent, asserting that the Government takes no position as to whether the writ of certiorari should issue. Reported below: 84 U. S. App. D. C. —, 171 F. 2d 828. No. 661. Atwell Building Corp. v. Sound, Inc. et al. C. A. 7th Cir. Certiorari denied. Vincent O’Brien for petitioner. John A. Bussian for respondents. Reported below: 171 F. 2d 253. No. 665. Hill v. Terminal Railroad Association. Supreme Court of Missouri. Certiorari denied. Edward F. Prichard, Jr. and Roberts P. Elam for petitioner. Warner Fuller and Arnot L. Sheppard for respondent. Reported below: 358 Mo. 597, 216 S. W. 2d 487. No. 473, Mise. Smith v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. No. 475, Mise. Smith v. Hudspeth, Warden.' Supreme Court of Kansas. Certiorari denied. No. 481, Mise. Ross v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. DECISIONS PER CURIAM ETC. 963 336U.S. April 25, May 2, 1949. Rehearing Denied. (See also Nos. 40 and 41, supra.) No. 262, Mise. McGregor v. Ragen, Warden, 336 U. S. 939. Rehearing denied. No. 306, Mise. Binkley v. Hunter, Warden, 336 U. S. 926. Motion for leave to file petition for rehearing denied. May 2, 1949. Per Curiam Decisions. No. 567. Stemmer v. New York; and No. 568. Krakower v. New York. Certiorari, 336 U. S. 943, to the Court of Appeals of New York. Argued April 22, 25, 1949. Decided May 2, 1949. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Jackson took no part in the consideration or decision of these cases. Osmond K. Fraenkel argued the cause for petitioner in No. 567. With him on the brief were Arthur Garfield Hays and Sidney Struble. Harry G. Anderson argued the cause for petitioner in No. 568. With him on the brief was Harris B. Steinberg. Whitman Knapp argued the cause for respondent. With him on the brief were Frank S. Hogan and Charles W. Manning. Reported below: 298 N. Y. 728, 83 N. E. 2d 141. No. 728. Midwest Haulers, Inc. et al. v. Glander, Tax Commissioner. Appeal from the Supreme Court of Ohio. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. Arthur M. Sebastian for appellants. Herbert S. Duffy, Attorney General of Ohio, and W. H. Annat, Assistant Attorney General, for appellee. Reported below: 150 Ohio St. 402, 83 N. E. 2d 53. 964 OCTOBER TERM, 1948. May 2, 1949. 336 U. S. Miscellaneous Orders. No. 579. Haynes v. Southern Railway System et al. The motion to correct the record by changing the name of respondent, now set forth as Southern Railway System, to read Cincinnati, New Orleans & Texas Pacific Railway Company, is granted. No. 452, Mise. In re Muhlbauer.* Treating the application in each of these cases as a motion for leave to file a pétition for an original writ of habeas corpus, leave to file is denied. The Chief Justice, Mr. Justice Reed, Mr. Justice Frankfurter, and Mr. Justice Burton are of *Together with No. 455, Mise., In re List; No. 456, Mise., In re Rendulic; No. 457, Mise., In re Kuntze; No. 458, Mise., In re Felmy; No. 459, Mise., In re Lanz; No. 460, Mise., In re Dehner; No. 461, Mise., In re Leyser; No. 462, Mise., In re Speidel; No. 463, Mise., In re Von Ammon; No. 464, Mise., In re Joël; No. 465, Mise., In re Klemm; No. 466, Mise., In re Lautz; No. 467, Mise., In re Mett-genberg ; No. 468, Mise., In re Oeschey ; No. 469, Mise., In re Rothaug ; No. 470, Mise., In re Rothenberger ; No. 471, Mise., In re Schlegelberger ; No. 493, Mise., In re Bobermin ; No. 494, Mise., In re Eirenschmalz ; No. 495, Mise., In re Frank; No. 496, Mise., In re Fdnslau; No. 497, Mise., In re Hohberg ; No. 498, Mise., In re Loerner; No. 499, Mise., In re Loerner; No. 500, Mise., In re Mummenthey ; No. 501, Mise., In re Pohl; No. 502, Mise., In re Sommer; No. 503, Mise., In re Volk; No. 504, Mise., In re Hohberg; No. 505, Mise., In re Pook; No. 506, Mise., In re Sommer; No. 507, Mise., In re Pohl et al.; No. 508, Mise., In re Brueckner; No. 509, Mise., In re Creutz; No. 510, Mise., In re Hofmann; No. 511, Mise., In re Huebner; No. 512, Mise., In re Lorenz; No. 513, Mise., In re Schwalm; No. 514, Mise., In re Biberstein; No. 515, Mise., In re Blobel; No. 516, Mise., In re Blume; No. 517, Mise., In re Braune; No. 518, Mise., In re Haensch; No. 519, Mise., In re Jost; No. 520, Mise., In re Klingelhoefer ; No. 521, Mise., In re Naumann; No. 522, Mise., In re Seibert; No. 523, Mise., In re Schubert; No. 524, Mise., In re Steimle; No. 525, Mise., In re Strauch; No. 526, Mise., In re Von Radetzky ; No. 527, Mise., In re Six; No. 528, Mise., In re Ott ; No. 529, Mise., In re Ohlendorf ; No. 530, Mise., In re Sandberger ; No. 531, Mise., In re Von Radetzky ; and No. 532, Mise., In re Hoth. DECISIONS PER CURIAM ETC. 965 336 U. S. May 2, 1949. the opinion that there is want of jurisdiction. U. S. Constitution, Article III, § 2, Clause 2; see Ex parte Betz and companion cases, all 329 U. S. 672 (1946); Milch v. United States, 332 U. S. 789 (1947); Brandt n. United States, 333 U. S. 836 (1948); In re Eichel, 333 U. S. 865 (1948); Everett v. Truman, 334 U. S. 824 (1948). Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion that argument should be heard on the motions for leave to file the petitions in order to settle what remedy, if any, the petitioners have. Mr. Justice Jackson took no part in the consideration or decision of these applications. No. 534, Mise. Wilson v. Oklahoma; and No. 541, Mise. Fritz v. Burke, Warden. The motions for leave to file petitions for writs of habeas corpus are denied. No. 483, Mise. Phillips v. Ragen, Warden. The motion for leave to file petition for writ of certiorari is denied. Certiorari Granted. (See also No. 6//0, ante, p. 801/..) No. 624. United States v. Toronto, Hamilton & Buffalo Navigation Co. Court of Claims. Certiorari granted. Solicitor General Perlman for the United States. C. Austin White and Frederick L. Wheeler for respondent. Reported below: 112 Ct. Cl. 240, 81 F. Supp. 237. No. 652. Brown v. Western Railway of Alabama. Court of Appeals of Georgia. Certiorari granted. Thomas J. Lewis for petitioner. Arthur Heyman and Hugh Howell, Sr. for respondent. Reported below: See 77 Ga. App. 780, 49 S. E. 2d 833. 966 OCTOBER TERM, 1948. May 2, 1949. 336 U. S. No. 668. United States v. Benedict et al., Trustees, et al. Court of Claims. Certiorari granted. Solicitor General Perlman for the United States. Reported below: 112 Ct. Cl. 550, 81 F. Supp. 717. No. 733. United States ex rel. Knauff v. Watkins, District Director of Immigration and Naturalization. C. A. 2d Cir. Certiorari granted. Gunther Jacobson for petitioner. Reported below: 173 F. 2d 599. No. 265, Mise. Smith v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari granted. Petitioner pro se. Ivan A. Elliott, Attorney General of Illinois, William C. Wines, James C. Murray and Raymond S. Sarnow, Assistant Attorneys General, for respondent. No. 408, Mise. Hughes et al. v. Superior Court of California in and for the County of Contra Costa. Supreme Court of California. Certiorari granted. Bertram Edises for petitioners. W. H. Orrick for respondent. Arthur J. Goldberg and Thomas E. Harris filed a brief for the Congress of Industrial Organizations, as amicus curiae, urging reversal. Reported below: 32 Cal. 2d 850, 198 P. 2d 885. Certiorari Denied. No. 600. Aronstam v. New York Central Railroad Co. et al. ; and No. 601. Eppler & Co. v. New York Central Railroad Co. et al. United States District Court for the Southern District of New York. Certiorari denied. Charles S. Aronstam, Arthur A. Ballantine and John M. Harlan for petitioner in No. 600. George W. Jaques for petitioner in No. 601. Gerald E. Dwyer and Samuel H. Hellenbrand for the New York Central Railroad Co. et DECISIONS PER CURIAM ETC. 967 336 U. S. May 2, 1949. al.; and Peter Keber for the Peoria & Eastern Railway Co., respondents. No. 605. Anderegg v. United States. C. A. 4th Cir. Certiorari denied. Robert Lewis Young for petitioner. Solicitor General Perlman, Assistant Attorney General Vanech, Roger P. Marquis and John C. Harrington for the United States. Reported below: 171 F. 2d 127. No. 634. Doll v. Meyer. Supreme Court of Louisiana. Certiorari denied. Delvaille H. Theard for petitioner. Reported below: 214 La. 444, 38 So. 2d 69. No. 638. Chesapeake & Ohio Railway Co. v. Morris. C. A. 7th Cir. Certiorari denied. Albert H. Cole for petitioner. H. K. Cuthbertson for respondent. Reported below: 171 F. 2d 579. No. 642. Phillips et al. v. Saunders et al. Court of Appeals of Maryland. Certiorari denied. Wilson K. Barnes for petitioners. Charles H. Houston for respondents. Reported below: — Md. —, 62 A. 2d 602. No. 647. Momand v. Universal Film Exchanges, Inc. et al. C. A. 1st Cir. Certiorari denied. George S. Ryan for petitioner. Jacob J. Kaplan for respondents. Reported below: 172 F. 2d 37. No. 651. Maryland Casualty Co. v. Toups et al. C. A. 5th Cir. Certiorari denied. Roszel C. Thomsen for petitioner. Quentin Keith for respondents. Reported below: 172 F. 2d 542. No. 657. Ney v. United States. C. A. 8th Cir. Certiorari denied. E. Chas. Eichenbaum for petitioner. Solicitor General Perlman, Assistant Attorney General 968 OCTOBER TERM, 1948. May 2, 1949. 336 U. S. Caudle, Ellis N. Slack and 8. Walter Shine for the United States. Reported below: 171 F. 2d 449. No. 660. S panel v. Berkman et al. C. A. 7th Cir. Certiorari denied. Max Swiren for petitioner. Francis L. Daily for respondents. Reported below: 171 F. 2d 513. No. 666. Brooklyn & Richmond Ferry Co., Inc. v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. A. Chauncey Newlin for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Irving I. Axelrad for respondent. Reported below: 171 F. 2d 616. No. 684. Wolfe et al. v. Phillips et al. C. A. 10th Cir. Certiorari denied. James W. Bounds for petitioners. Jack T. Conn for respondents. Reported below: 172 F. 2d 481. No. 598. Henry v. Hodges, Commanding General. C. A. 2d Cir. Smith substituted for Hodges as the party respondent herein. Certiorari denied. Robert N. Gorman for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan. Reported below: 171 F. 2d 401. No. 607. Becker v. Webster, Commanding Officer. C. A. 2d Cir. Certiorari denied. Edward A. Lipton for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R-Monahan for respondent. Reported below: 171 F. 2d 762. No. 646. Crawford v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. Reported below: 401 Ill. 419, 82 N. E. 2d 457. DECISIONS PER CURIAM ETC. 969 336 U. S. May 2, 1949. No. 653. Brown v. Hunter, Warden, et al. C. A. 10th Cir. Certiorari denied. Howard F. McCue for petitioner. Reported below: 172 F. 2d 487. No. 707. Correll v. North Carolina. Supreme Court of North Carolina. Certiorari denied. Raymond Kyle Hayes for petitioner. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for respondent. Reported below: 229 N. C. 640, 50 S. E. 2d 717. No. 30, Mise. Illinois ex rel. Marino v. Ragen, Warden. Circuit Court of Winnebago County, Illinois. Certiorari denied. Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion certiorari should be granted. Wm. Scott Stewart for petitioner. No. 276, Mise. McLaren v. Nierstheimer, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. Petitioner pro se. Ivan A. Elliott, Attorney General of Illinois, JFiWiam C. Wines, James C. Murray and Raymond S. Sarnow, Assistant Attorneys General, for respondent. No. 304, Mise. McLaren v. Nierstheimer, Warden. Circuit Court of Randolph County, Illinois. Certiorari denied. No. 439, Mise. Weber v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 401 Ill. 584, 83 N. E. 2d 297. No. 472, Mise. MacKenna v. New York. Court of Appeals of New York. Certiorari denied. Petitioner 970 OCTOBER TERM, 1948. May 2, 1949. 336 U. S. pro se. Frank S. Hogan and Whitman Knapp for respondent. Reported below: 298 N. Y. 494, 84 N. E. 2d 795. No. 488, Mise. Tabet et al. v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 402 Ill. 93, 83 N. E. 2d 329. No. 539, Mise. Wilson v. Hinman et al. C. A. 10th Cir. Certiorari denied. Reported below: 172 F. 2d 914. No. 543, Mise. Bardell v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 402 Ill. 93, 83 N. E. 2d 329. No. 544, Mise. Wrona v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 548, Mise. Foreman v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 549, Mise. Bongiorno v. Illinois. Supreme Court of Illinois. Certiorari denied. No. 588, Mise. Beckman v. Barrett, Superintendent of Police. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. James J. Laughlin for petitioner. Reported below: 84 U. S. App. D. C.----, 174 F. 2d 158. Rehearing Denied. Nos. 14 and 15. International Union, U. A. W. A., A. F. of L., Local 232, et al. v. Wisconsin Employment Relations Board et al., 336 U. S. 245. Rehearing denied. No. 557. Lagemann v. Lagemann, 336 U. S. 932. Rehearing denied. DECISIONS PER CURIAM ETC. 971 336 U. S. May 2, 9, 1949. No. 510. International Longshoremen’s & Warehousemen’s Union (CIO) et al. v. Wirtz, Circuit Court Judge, et al., 336 U. S. 919. Rehearing denied. No. 643. Bunn v. North Carolina, 336 U. S. 942. Rehearing denied. No. 360, Mise. Steele v. Jackson, Warden, 336 U. S. 939. Rehearing denied. No. 218, Mise. Curtis v. Humphrey, Warden, 336 U. S. 941. Second petition for rehearing denied. May 9, 1949. Miscellaneous Orders. No. 733. United States ex rel. Knauff v. Watkins, District Director of Immigration and Naturalization. Shaughnessy, Acting District Director, substituted as the party respondent. No. 597, Mise. In re Federal Security Administrator and the Attorney General of the United States. The motion for leave to file petition for writs of prohibition and/or mandamus is granted. A rule is ordered to issue, returnable on Monday, May 16th, requiring the respondents to show cause why the petition for writs of prohibition and/or mandamus should not be granted and the cause is assigned for argument on that day. The motion of Mytinger & Casselberry, Inc. for leave to intervene is granted. Solicitor General Perlman for petitioners. Charles S. Rhyne for intervenor. No. 379, Mise. In re Bush. Motion for leave to file petition for writ of habeas corpus denied without prejudice to the right to apply to any appropriate court that may have jurisdiction. Curtis Bush and A. G. Bush for petitioner. 972 OCTOBER TERM, 1948. May 9, 1949. 336 U. S. Certiorari Denied. No. 628. Commerce Company v. United States. C. A. 5th Cir. Certiorari denied. Ben Connally for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Lee A. Jackson for the United States. William A. Sutherland filed a brief, as amicus curiae, supporting the petition. Reported below: 171 F. 2d 189. No. 676. Bailey et al. v. Proctor et al., Receivers. C. A. 1st Cir. Certiorari denied. Jesse Climenko and George Trosk for petitioners. Edward O. Proctor for Proctor et al.; and William B. Sleigh, Jr. for Putnam, Bell, Dutch & San try, respondents. Reported below: 171 F. 2d 980. No. 677. Weissman, doing business as Fred P. Weissman Co., et al. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Richard C. Stoll for petitioners. Solicitor General Perlman, Robert N. Denham, David P. Findling, Ruth Weyand and William W. Kapell for respondent. Reported below: 170 F. 2d 952. No. 678. Fred P. Weissman Co. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Richard C. Stoll for petitioner. Solicitor General Perlman, Robert N. Denham, David P. Findling, Ruth Weyand and William W. Kapell for respondent. Reported below: 170 F. 2d 952. No. 739. Doak et al. v. Federal Land Bank of Baltimore. C. A. 4th Cir. Certiorari denied. INDEX ADMIRALTY. 1. Seamen—Maintenance and cure—Permanent disability—Liability of shipowner.—Liability for maintenance and cure does not extend beyond time when maximum cure possible has been effected. Farrell v. United States, 511. 2. Seamen—Wages—Liability of shipowner.—Seaman entitled to wages only until completion of foreign voyage though articles provided for term “not exceeding” twelve months. Farrell v. United States, 511. 3. Limitation of liability—Requirement of bond—Foreign law.— Requirement of bond equal to value of vessel and freight; effect of possibility of lesser liability under foreign law; failure to post adequate bond; no bond required of United States. Black Diamond S. S. Corp. v. Stewart & Sons, 386. AD VALOREM TAX. See Constitutional Law, VI, 5; VIII, 7. ADVERTISING. See Constitutional Law, VI, 3; VIII, 6; IX, 2. AGENTS. See Constitutional Law, VIII, 2; IX, 1; Taxation, 2. AGRICULTURAL MARKETING AGREEMENT ACT. See Constitutional Law, VI, 1. AIDERS AND ABETTORS. See Criminal Law, 1. AIR MAIL. See Transportation, 2-3. ALIENS. Immigration—Mental defectives—Medical certificate—Board of special inquiry.—Order excluding alien as mental defective, based on medical certificate of appeal board not complying with Act and regulations, invalid. United States ex rel. Johnson v. Shaughnessy, 806. ALLOWANCES. See Bankruptcy, 1, 4-5. AMPLIFIERS. See Constitutional Law, III, 1. ANTITRUST ACTS. See also Constitutional Law, III, 2; IV. Sherman Act—Restraint of trade—Contracts.—Agreement between Boston sportswear jobbers and stitching contractors violated Sherman Act; not immunized by inclusion of labor provisions; immaterial that stitching contractors engaged only in intrastate commerce. United States v. Women’s Sportswear Assn., 460. 973 974 INDEX. APPEAL. See Bankruptcy, 5; Constitutional Law, IV; Jurisdiction, I, 2; II; III, 2. APPORTIONMENT. See Constitutional Law, VI, 5. ARMED FORCES. See also Constitutional Law, V. 1. Army—Court-martial—Pre-trial investigation—Effect of default.—Failure to conduct pre-trial investigation in prescribed manner did not deprive court-martial of jurisdiction nor subject judgment to invalidation in habeas corpus proceeding. Humphrey v. Smith, 695. 2. Navy—Court-martial—After reenlistment following honorable discharge.—Navy court-martial without jurisdiction to try reenlisted man on charge of maltreatment committed prior to honorable discharge. Hirshberg v. Cooke, 210. ASSESSMENT. See Constitutional Law, II, 2; VI, 5; VIII, 7; Taxation. ATTORNEYS. See Bankruptcy, 4-5; Constitutional Law, VIII, 8. ATTORNEYS ’ FEES. See Bankruptcy, 4-5. AUTOMOBILES. See Constitutional Law, III, 1; VI, 3; VIII, 6. BANKRUPTCY. See also Criminal Law, 2. 1. Assets—Proceeds of sale—Time of receipt.—All funds paid for corporate bankrupt’s assets become part of estate though received after rights of creditors and stockholders had been fixed and all allowances determined. United States v. Knight, 505. 2. Priority of claims—Tax liens—Wages.—Tax lien of United States which at time of bankruptcy was perfected and accompanied by possession of property, not postponed to wage claims by Collector’s relinquishment of possession of property to trustee for sale; construction of § 67c. Goggin v. Division of Labor Law, 118. 3. Tax claims—Interest—Limit—Chandler Act.—Tax claims bear interest until date of bankruptcy, not until payment. New York v. Saper, 328. 4. Corporate reorganizations—Attorneys’ fees—Approval by court—Escrow agreement.—Reorganization court has exclusive jurisdiction to pass upon attorneys’ fees for services to group of creditors though not payable out of estate; power not delegable to state court; effect of escrow agreement. Leiman v. Guttman, 1. 5. Corporate reorganizations—Attorneys’ fees—Timeliness of application.—Application to pass upon amount of attorneys’ fees may be made to reorganization court which had erroneously held that it was without jurisdiction, though time for appeal has expired and final decree has been entered. Leiman v. Guttman, 1. INDEX. 975 BANKRUPTCY—Continued. 6. Railroad reorganizations—Leased lines—Rights of lessor’^ stockholders—State law.—Jurisdiction of state court to determine question of proportion of stock necessary under state law to authorize sale of leased lines to debtor by solvent lessor; bankruptcy court should not have enjoined proceedings in state court. Callaway v. Benton, 132. BARGE LINES. See Constitutional Law, VI, 5; VIII, 7. BONDS. See Admiralty, 3; Taxation, 1. CARMACK AMENDMENT. See Transportation, 1. CARRIERS. See Bankruptcy, 6; Constitutional Law, VI, 2, 5; VIII, 7; Employers’ Liability Act; Jurisdiction, III, IV; Transportation. CEASE-AND-DESIST ORDER. See Labor, 1. CERTIFICATION. See Jurisdiction, I, 6; Labor, 2. CERTIORARI. See Jurisdiction, I, 3; II. CHANDLER ACT. See Bankruptcy, 2, 3. CIVIL AERONAUTICS BOARD. See Transportation, 3. CIVIL CONTEMPT. See Contempt, 3. CLAIMS. See Bankruptcy, 2-3; Patents; Transportation, 1. CLASSIFICATION. See Constitutional Law, IX, 1-2. COERCION. See Constitutional Law, III, 2. COLLECTIVE BARGAINING. See Jurisdiction, I, 6; Labor, 2, 5. COLLECTOR OF INTERNAL REVENUE. See Bankruptcy, 2-3. COMMERCE. See Antitrust Acts; Constitutional Law, VI; Employers’ Liability Act; Jurisdiction, IV; Labor, 4; Public Utilities; Taxation, 2, 4; Transportation. COMPANY TOWN. See Labor, 1. COMPENSATION. See Bankruptcy, 4-5; Employers’ Liability Act; Jurisdiction, IV; Transportation, 2-3; Workmen’s Compensation. COMPETITION. See Antitrust Acts; Constitutional Law, III, 2; IV; VI, 1; VIII, 4. COMPLAINT. See Employers’ Liability Act, 2. CONCURRENT FINDINGS. See Jurisdiction, I, 1. CONDEMNATION. See Mandate. 976 INDEX. CONGRESS. See Constitutional Law, I; Labor, 5. CONNECTICUT. See Constitutional Law, VII. CONSPIRACY. See Criminal Law, 1; Evidence, 4; Trial. CONSTITUTIONAL LAW. See also Bankruptcy, 6; Jurisdiction, III, 1,3; Labor, 2,4-5. I. In General, p. 976. II. Federal-State Relations, p. 976. III. Freedom of Speech, Press and Assembly, p. 976. IV. Search and Seizure, p. 977. V. Double Jeopardy, p. 977. VI. Commerce, p. 977. VII. Full Faith and Credit, p. 977. VIII. Due Process of Law, p. 978. IX. Equal Protection of Laws, p. 978. X. Involuntary Servitude, p. 979. I. In General. Judicial construction—Implied immunity—Congressional silence.— Congressional silence not approval of judicially-enunciated doctrine of constitutional immunity. Oklahoma Tax Comm’n v. Texas Co., 342. II. Federal-State Relations. 1. State regulation—Labor relations—Intermittent work stoppages.—Wisconsin statute barring employee interference with production by intermittent unannounced stoppages of work, not in conflict with federal regulation or authority. Automobile Workers v. Wisconsin Board, 245. 2. State taxation—Immunity—Indian lands—Lessees.—Lessees of restricted Indian lands not immune from nondiscriminatory state gross production and excise taxes on petroleum produced from such lands. Oklahoma Tax Comm’n v. Texas Co., 342. III. Freedom of Speech, Press and Assembly. 1. Freedom of speech—Sound trucks—Noise regulation.—Validity of conviction under ordinance forbidding operation-on streets of sound trucks and instruments emitting “loud and raucous noises.” Kovacs v. Cooper, 77. 2. Freedom of speech and press—Picketing—Injunction.—State court injunction against labor union members picketing for purpose of coercing agreement in violation of state antitrust law, valid. Gib-oney v. Empire Ice Co., 490. 3. Freedom of speech and assembly—Labor relations.—Wisconsin statute barring employee interference with production by intermit INDEX. 977 CONSTITUTIONAL LAW—Continued. tent unannounced stoppages of work not violative of rights of freedom of speech and assembly. Automobile Workers v. Wisconsin Board, 245. IV. Search and Seizure. Scope of guaranty.—Dismissal of antitrust indictment because women were excluded from grand jury, and related order for return of subpoenaed documents, did not bar Government’s use of that evidence in civil antitrust proceeding; nor did failure of Government to appeal. United States v. Wallace & Tieman Co., 793. V. Double Jeopardy. Court-martial—Tactical situation.—Second court-martial trial did not subject defendant to double jeopardy where, because of tactical situation of rapidly advancing army, first trial ended before judgment. Wade v. Hunter, 684. VI. Commerce. 1. Interstate commerce—State regulation—Milk.—State’s refusal to permit additional facilities for receiving and shipping milk in interstate commerce, on grounds of destructive competition and short supply, invalid; not authorized by Federal Agricultural Marketing Agreement Act. Hood & Sons v. Du Mond, 525. 2. Interstate commerce—State regulation—Travel bureaus.—State statute forbidding sale or arrangement of transportation if carrier has no I. C. C. permit, valid notwithstanding similar federal law; not vitiated by heavier penalties nor possibility of double punishment. California v. Zook, 725. 3. State regulation—Advertising on vehicles—Effect on interstate commerce.—Traffic regulation forbidding advertising on vehicles, except of business or products of owner, valid. Railway Express Agency v. New York, 106. 4. State regulation—Labor relations—Work stoppages.—Wisconsin statute barring employee interference with production by intermittent unannounced stoppages of work, valid. Automobile Workers v. Wisconsin Board, 245. 5. State taxation—Interstate barge line—Mileage ratio.—Ad valorem tax on interstate barge line, based on ratio of miles of line within State to total miles of line, valid. Ott v. Mississippi Barge Line, 169. VII. Full Faith and Credit. Ex parte divorce—Effect.—Connecticut decree declining to give effect to Nevada ex parte divorce did not deny latter full faith and credit. Rice v. Rice, 674. 823978 0—49----61 978 INDEX. CONSTITUTIONAL LAW—Continued. VIII. Due Process of Law. 1. Federal regulation—Labor relations.—National Labor Relations Act’s interference with employer’s property rights in company-owned meeting hall not violative of Fifth Amendment. Labor Board v. Stowe Spinning Co., 226. 2. State regulation—Insurance companies—Funeral insurance.— South Carolina statute barring life insurance companies from the undertaking business, and forbidding undertakers to act as agents for life insurance companies, valid; not arbitrary or unreasonable. Daniel v. Family Ins. Co., 220. 3. Id.—Motive of legislature.—Statute not vitiated by fact that “insurance lobby” secured enactment. Id. 4. State regulation—Antitrust laws—Injunction against peaceful picketing.—State court injunction against labor union members picketing for purpose of coercing agreement in violation of state antitrust law, valid. Giboney v. Empire Ice Co., 490. 5. State regulation—Unfair labor practices—Intermittent work stoppage.—Wisconsin statute barring employee interference with production by intermittent unannounced stoppages of work, valid. Automobile Workers v. Wisconsin Board, 245. 6. State regulation—Traffic regulation—Advertising on vehicles.— Traffic regulation forbidding advertising on vehicles, except of business or products of owner, valid. Railway Express Agency v. New York, 106. 7. State taxation—Foreign corporations—Interstate barge lines— Apportionment.—Ad valorem tax on interstate barge line, based on ratio of miles of line within State to total miles of line, valid; claims of errors in assessment not considered where absence of state remedy not suggested. Ott v. Mississippi Barge Line, 169. 8. Judicial proceedings—Contempt of court—Summary punishment.—Counsel who in argument to jury persisted in irrelevancies and whose summary sentence for contempt was increased during altercation with judge, not denied due process. Fisher v. Pace, 155. IX. Equal Protection of Laws. 1. Insurance companies—Funeral insurance.—South Carolina statute barring life insurance companies from the undertaking business, and forbidding undertakers to act as agents for life insurance companies, valid. Daniel v. Family Ins. Co., 220. 2. Traffic regulation—Advertising on vehicles—Exemptions.—Traffic regulation forbidding advertising on vehicles, except of business or products of owner, valid. Railway Express Agency v. New York, 106. INDEX. 979 CONSTITUTIONAL LAW—Continued. X. Involuntary Servitude. What constitutes—Labor relations—State regulation.—Wisconsin statute barring employee interference with production by intermittent unannounced stoppages of work, not violative of Thirteenth Amendment. Automobile Workers v. Wisconsin Board, 245. CONTEMPT. See also Constitutional Law, VIII, 8. 1. What constitutes.—Record sustained conviction of counsel for contempt in presence of court. Fisher v. Pace, 155. 2. Summary punishment.—Power of court to punish summarily for contempt committed in presence. Fisher v. Pace, 155. 3. Civil contempt—Violation of injunction—Fair Labor Standards Act—Remedy.—Intent of contemnor immaterial; effect of generality of decree; power of federal court in suit by Wage-Hour Administrator to order employer to purge contempt by paying employees unpaid statutory wages. McComb v. Jacksonville Paper Co., 187. CONTRACTS. See Antitrust Acts; Constitutional Law, III, 2; Labor, 3, 5. CONTRIBUTORY NEGLIGENCE. See Employers’ Liability Act, 1. CORPORATIONS. See Bankruptcy, 1, 4—6; Constitutional Law, VI, 5; Judgments; Taxation, 2-3. COURT OF CLAIMS. See Jurisdiction, IV. COURTS. See Bankruptcy, 4-6; Constitutional Law, I; V; VII; VIII, 4, 8; Contempt; Injunction; Jurisdiction; Procedure; Public Utilities; Statutes, 2. COURTS-MARTIAL. See Armed Forces; Constitutional Law, V; Habeas Corpus. COURTS OF APPEALS. See Jurisdiction, I, 3-5; II; Procedure, 1. CREDITORS. See Bankruptcy. CRIMINAL LAW. See also Armed Forces; Constitutional Law, III, 1; IV; V; VIII, 6, 8; Evidence, 3-5; Procedure, 2. 1. Offenses—Aiding and abetting—Evidence.—Conviction on substantive counts of indictment charging also conspiracy, sustained on theory and evidence of aiding and abetting. Nye & Nissen v. United States, 613. 2. Verdict—Sufficiency of evidence—Jury function.—Substantial evidence supported verdict of guilty of aiding and abetting violation of Bankruptcy Act; Court of Appeals’ reversal’was improper interference with jury function. United States v. Knight, 505. 823978 0—49----62 980 INDEX. CURE. See Admiralty, 1. DAIRIES. See Constitutional Law, VI, 1; Taxation, 4. DAMAGES. See Transportation, 1. DEBT. See Taxation, 1. DECREES. See Bankruptcy, 5; Constitutional Law, VII; Contempt, 3. DEFENSE SUPPLIES CORPORATION. See Judgments; Jurisdiction, I, 5. DEFICIT. See Taxation, 3. DIRECT APPEAL. See Jurisdiction, III, 2. DIRECTED VERDICT. See Employers’ Liability Act, 3. DISABILITY. See Admiralty, 1; Workmen’s Compensation. DISCHARGE. See Armed Forces. DISCOUNT. See Taxation, 1. DISCRIMINATION. See Constitutional Law, II, 2; IX, 1-2; Labor, 1. DISSOLUTION. See Judgments. DISTRICT COURTS. See Jurisdiction, III. DISTRICT OF COLUMBIA. See Evidence, 1, 5; Jurisdiction, 1,4. DIVIDENDS. See Taxation, 3. DIVORCE. See Constitutional Law, VII. DOMICILE. See Constitutional Law, VII. DOUBLE JEOPARDY. See Constitutional Law, V. DOUBLE PUNISHMENT. See Constitutional Law, VI, 2. DUE PROCESS. See Constitutional Law, III; VIII. DURESS. See Constitutional Law, III,' 2. EARNINGS. See Taxation, 2-3. EIGHT HOUR LAW. See Labor, 3. ELECTRICITY. See Taxation, 4. ELECTRIC WELDING. See Patents. EMPLOYER AND EMPLOYEE. See Constitutional Law, II, 1; III, 2-3; VIII, 1; X; Contempt, 3; Employers’ Liability Act; Labor; Workmen’s Compensation. INDEX. 981 EMPLOYERS’ LIABILITY ACT. 1. Liability of carrier—Negligence as basis—Contributory negligence.—Carrier not insurer of employees’ safety; basis of liability is negligence; criterion of negligence; contributory negligence does not bar recovery but affects amount proportionately. Wilkerson v. McCarthy, 53. 2. Negligence—Sufficiency of complaint—Cause of injury.—State court decision that allegations of complaint were insufficient to sustain recovery affirmed. Reynolds v. Atlantic Coast Line R. Co., 207. 3. Negligence—Evidence—Sufficiency.—Evidence sufficient to support jury finding of negligence; directed verdict against plaintiff erroneous. Wilkerson v. McCarthy, 53. ENLISTED MEN. See Armed Forces. EQUAL PROTECTION OF LAWS. See Constitutional Law, IX. EQUITY. See Injunction; Jurisdiction, III, 1; Public Utilities. ERROR. See Procedure, 2. ESCROW. See Bankruptcy, 4. ESTOPPEL. See Patents. EVIDENCE. See also Constitutional Law, IV; Criminal Law; Employers’ Liability Act, 3; Mandate; Procedure, 2; Trial. 1. Rules of evidence—Formulation—District of Columbia.—Formulation of rules of evidence for District of Columbia, in absence of specific congressional legislation, is matter of local law for highest local court. Griffin v. United States, 704. 2. Judicial notice—Foreign law.—When foreign law must be proved as a fact. Black Diamond S. S. Corp. v. Stewart & Sons, 386. 3. Admissibility—Criminal cases—Other offenses.—Evidence of offenses similar to offense charged admissible on issue of intent. Nye & Nissen v. United States, 613. 4. Admissibility—Hearsay—Declaration of conspirator.—Declaration of conspirator after conspiracy and objectives had ended, inadmissible against co-conspirator; theory of implied conspiracy to conceal crime rejected. Krulewitch v. United States, 440. 5. Homicide—Self-defense—Uncommunicated threats.—Case remanded to District of Columbia court to determine local rule as to admissibility of uncommunicated threats where self-defense claimed. Griffin v. United States, 704. EXCISE TAX. See Constitutional Law, II, 2. 982 INDEX. EXEMPTIONS. See Constitutional Law, II, 2; IX, 2. EX PARTE DIVORCE. See Constitutional Law, VII. EXPEDITING ACT. See Jurisdiction, I, 2. EYES. See Workmen’s Compensation. FAIR LABOR STANDARDS ACT. See Contempt, 3. FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT. See Constitutional Law, VI, 1. FEDERAL POWER COMMISSION. See Public Utilities. FEDERAL-STATE RELATIONS. See Constitutional Law, II. FEES. See Bankruptcy, 4-5. FIFTH AMENDMENT. See Constitutional Law, V; VIII, 1. FINAL JUDGMENT. See Jurisdiction, I, 6; II. FINDINGS. See Jurisdiction, I, 1; IV. FIRST AMENDMENT. See Constitutional Law, III. FLUXES. See Patents. FOOD, DRUG & COSMETIC ACT. See Mandate. FOREIGN CORPORATIONS. See Constitutional Law, VI, 1; VIII, 7. FOREIGN COUNTRIES. See Labor, 3. FOREIGN LANGUAGES. See Jurisdiction, III, 1. FOREIGN LAW. See Admiralty, 3; Evidence, 2. FORFEITURE. See Patents. FORMER JEOPARDY. See Constitutional Law, V. FORWARDERS. See Transportation, 1. FOURTEENTH AMENDMENT. See Constitutional Law, III; VIII; IX. FREEDOM OF SPEECH, PRESS AND ASSEMBLY. See Constitutional Law, III. FREIGHT. See Admiralty, 3; Transportation, 1. FREIGHT FORWARDERS. See Transportation, 1. FULL FAITH AND CREDIT. See Constitutional Law, VII. FUNERAL INSURANCE. See Constitutional Law, VIII, 2; IX, 1. GAIN. See Taxation, 1-2. GAS. See Constitutional Law, II, 2; Public Utilities. INDEX. 983 GIFTS. See Taxation, 1. GRAND JURY. See Constitutional Law, IV. GROSS PRODUCTION TAX. See Constitutional Law, II, 2. HABEAS CORPUS. See also Armed Forces, 1. Court-martial judgment—Scope of review.—Court in habeas corpus proceeding can not pass upon guilt or innocence of person convicted by court-martial. Humphrey v. Smith, 695. HARMLESS ERROR. See Procedure, 2. HAWAII. See Injunction; Jurisdiction, II; III, 1-2. HEARING. See Mandate. HEARSAY. See Evidence, 4; Procedure, 2. HIGHWAYS. See Constitutional Law, III, 1; VI, 2-3; VIII, 6; IX, 2. HOMICIDE. See Evidence, 5. HONORABLE DISCHARGE. See Armed Forces. HOURS OF SERVICE. See Labor, 3. HUSBAND AND WIFE. See Constitutional Law, VII. IMMIGRATION. See Aliens. IMMUNITY. See Antitrust Acts; Constitutional Law, I; II, 2; IV; V. INCOME TAX. See Taxation, 1-3. INDIANS. See Constitutional Law, II, 2. INDICTMENT. See Constitutional Law, IV; Trial. INDUSTRY. See Workmen’s Compensation; Taxation, 4. INFRINGEMENT. See Jurisdiction, I, 1; Patents. INJUNCTION. See also Bankruptcy, 6; Constitutional Law, II, 1; III, 2-3; VIII, 4; Contempt, 3; Jurisdiction, III. Issuance of writ—Discretion.—Federal district court should have denied injunction against enforcement of Hawaiian law regulating teaching of foreign languages, which was enforcible only by civil proceeding and had not been construed by territorial courts. Stainback v. Mo Hock Ke Lok Po, 368. INSOLVENCY. See Bankruptcy. INSURANCE. See Constitutional Law, VIII, 2; IX, 1. INTENT. See Contempt, 3; Evidence, 3. 984 INDEX. INTEREST. See Bankruptcy, 3. INTERSTATE COMMERCE. See Antitrust Acts; Constitutional Law, VI; Employers’ Liability Act; Jurisdiction, IV; Labor, 4; Public Utilities; Taxation, 2; Transportation. INTERSTATE COMMERCE COMMISSION. See Constitutional Law, VI, 2; Jurisdiction, IV; Transportation, 2. INVOLUNTARY SERVITUDE. See Constitutional Law, X. IRAN. See Labor, 3. IRAQ. See Labor, 3. JEOPARDY. See Constitutional Law, V. JOBBERS. See Antitrust Acts. JUDGES. See Constitutional Law, VIII, 8; Contempt. JUDGMENTS. See also Armed Forces; Bankruptcy, 5; Constitutional Law, V; VII; Jurisdiction, I, 3; II; IV; Mandate; Procedure, 1. Validity—Enforcement—Dissolution of corporation.—Judgment for Defense Supplies Corporation, in suit begun before dissolution and adjudged within 12 months after Joint Resolution of June 30, 1945, enforcible though R. F. C. not substituted. Defense Supplies Corp. v. Lawrence Warehouse Co., 631. JUDICIAL NOTICE. See Evidence, 2. JURISDICTION. See also Armed Forces; Bankruptcy, 4-6; Habeas Corpus; Mandate; Public Utilities. I. Supreme Court. II. Courts of Appeals. III. District Courts. IV. Court of Claims. References to particular subjects under title Jurisdiction.—Appeal, I, 2; II; III, 2; Bankruptcy, III, 3; Certiorari, 1,3; II; Concurrent Findings, I, 1; Direct Appeal, III, 2; Expediting Act, I, 2; Final Judgment, I, 6; II; Findings, I, 1; IV; Hawaii, II, III, 1-2; Infringement, I, 1; Injunction, III; Interstate Commerce Commission, IV; Judgment, I, 3; II; IV; Local Law, I, 4, 7; Mail, IV; Patents, I, 1; Territories, III; Three-Judge Court, II; III, 2. I. Supreme Court. 1. Review of federal courts—Concurrent findings.—Effect of concurrent findings of courts below in patent infringement case. Graver Mfg. Co. v. Linde Co., 271. INDEX. 985 JURISDICTION—Continued. 2. Review of federal courts—Expediting Act.—That District Court’s dismissal was without prejudice to filing another suit did not make cause unappealable. United States v. Wallace & Tiernan Co., 793. 3. Review of federal courts—Certiorari before judgment.—Certiorari to review case in Court of Appeals before judgment. Stain-back v. Mo Hock Ke Lok Po, 368.’ 4. Review of federal courts—Local law—District of Columbia.— Only in exceptional cases will Court review determination of local law by Court of Appeals for District of Columbia. Griffin v. United States, 704. 5. Review of Court of Appeals.—Power of this Court to set aside erroneous action of Court of Appeals though that court had no jurisdiction of merits. Defense Supplies Corp. v. Lawrence Warehouse Co., 631. 6. Review of state courts—Final judgment.—Wisconsin Board’s certification of union as collective bargaining representative, sustained by highest state court, was reviewable “final judgment.” La Crosse Telephone Corp. v. Wisconsin Board, 18. 7. Review of state courts—State law.—Construction of state board’s order by State Supreme Court conclusive. Automobile Workers v. Wisconsin Board, 245. II. Courts of Appeals. Review of district courts—Final decisions.—Final judgment of District Court for Hawaii erroneously composed of three judges appealable to Court of Appeals and reviewable here by certiorari to that court before judgment. Stainback v. Mo Hock Ke Lok Po, 368. III. District Courts. 1. Injunction—Discretion—Territorial law.—District Court should have denied injunction against enforcement of Hawaiian law regulating teaching of foreign languages, which was enforcible only by civil proceeding and had not been construed by territorial courts. Stain-back v. Mo Hock Ke Lok Po, 368. 2. Three-judge court—Enjoining state statute—Hawaii.—Provision for three-judge federal court in suit to enjoin enforcement of state statute, and for direct appeal to this Court, not applicable to Territory of Hawaii. Id. 3. Bankruptcy—Enjoining proceedings in state court—Question of state law.—Bankruptcy court in railroad reorganization erred in enjoining state court proceeding to determine number of votes re 986 INDEX. JURISDICTION—Continued. quired under state law to authorize sale of lessor’s entire assets. Callaway v. Benton, 132. TV. Court of Claims. Orders of I. C. C.—Rates for transporting mail—Money judgment.—Court of Claims without jurisdiction to award money judgment to railroad as additional compensation for transporting mail, contrary to findings and orders of I. C. C. United States v. Jones, 641. JURY. See Constitutional Law, IV; Criminal Law, 2; Employers’ Liability Act, 3. LABOR. See also Admiralty, 1, 2; Antitrust Acts; Bankruptcy, 2; Constitutional Law, II, 1; III, 2-3; VIII, 1,4-5; X; Contempt, 3; Employers’ Liability Act; Jurisdiction, I, 6; Workmen’s Compensation. 1. National Labor Relations Act—Unfair labor practice—Discrimination against union.—Employer’s discriminatory denial to union of use of company-town meeting hall was unfair labor practice; scope of cease-and-desist order. Labor Board v. Stowe Spinning Co., 226. 2. National Labor Relations Act—Certification of bargaining representative—Validity of state action—Labor Management Relations Act.—State board’s certification of collective bargaining representative of employees of telephone company invalid; different result not required by Labor Management Relations Act. La Crosse Telephone Corp. v. Wisconsin Board, 18. 3. Eight Hour Law—Coverage—Foreign countries.—Eight Hour Law not applicable to United States projects in Iraq and Iran. Foley Bros. v. Filardo, 281. 4. State regulation—Unfair labor practice—Intermittent work stoppages.—Validity of order of Wisconsin Board barring employee interference with production by intermittent unannounced stoppages of work. Automobile Workers v. Wisconsin Board, 245. 5. State regulation—Unfair labor practice—Maintenance-of-membership clause.—Order of Wisconsin Board nullifying maintenance-of-membership clause in contract of employer with union, valid; not in conflict with policies of Congress; National Labor Relations Act, Labor Management Relations Act, War Labor Board. Algoma Co. v. Wisconsin Board, 301. LABOR MANAGEMENT RELATIONS ACT. See Labor, 2, 5. LANGUAGES. See Injunction. LEASE. See Bankruptcy, 6; Constitutional Law, II, 2. INDEX. 987 LIENS. See Bankruptcy, 2. LIFE INSURANCE. See Constitutional Law, VIII, 2; IX, 1. LIMITATION OF LIABILITY. See Admiralty, 3. LIMITATIONS. See Armed Forces; Bankruptcy, 5. LIQUIDATION. See Taxation, 3. LOBBIES. See Constitutional Law, VIII, 3; Statutes, 1. LOCAL LAW. See Evidence, 1, 5; Jurisdiction, I, 4, 7. LONGSHOREMEN’S & HARBOR WORKERS’ ACT. See Workmen’s Compensation. LOUDSPEAKERS. See Constitutional Law, III, 1. LOUISIANA. See Constitutional Law, VI, 5; VIII, 7. MAIL. See Jurisdiction, IV; Transportation, 2-3. MAINTENANCE AND CURE. See Admiralty, 1. MAINTENANCE-OF-MEMBERSHIP. See Labor, 5. MALTREATMENT. See Armed Forces. MANDATE. Supreme Court—Remand to Court of Appeals—Failure to follow mandate.—Court of Appeals erred in remanding to District Court for determination of fact here held immaterial and in not affording Government a hearing on question of sufficiency of evidence to sustain condemnation under Food, Drug & Cosmetic Act notwithstanding erroneous exclusion of other evidence. United States v. Urbuteit, 804. MANN ACT. See Evidence, 4. MARITIME LAW. See Admiralty. MARRIAGE. See Constitutional Law, VII. MASTER AND SERVANT. See Contempt, 3; Employers’ Liability Act; Labor; Workmen’s Compensation. MEDICAL CERTIFICATE. See Aliens. MEETING HALL. See Labor, 1. MENTAL DEFECTIVES. See Aliens. MILK. See Constitutional Law, VI, 1; Taxation, 4. MINERAL LANDS. See Constitutional Law, II, 2. MISSOURI. See Constitutional Law, III, 2. MOTIVE. See Constitutional Law, VIII, 3; Statutes, 1. 988 INDEX. MOTOR VEHICLES. See Constitutional Law, III, 1; VI, 2-3; VIII, 6; IX, 2. MURDER. See Evidence, 5. NATIONAL LABOR RELATIONS ACT. See Constitutional Law, II, 1; VIII, 1; Labor, 1-2, 5. NATURAL GAS ACT. See Public Utilities. NAVY. See Armed Forces. NEGLIGENCE. See Employers’ Liability Act. NEVADA. See Constitutional Law, VII. NEW YORK. See Constitutional Law, VI, 1, 3. NOISE. See Constitutional Law, III, 1. OIL. See Constitutional Law, II, 2. OKLAHOMA. See Constitutional Law, II, 2. ORDINANCES. See Constitutional Law, III, 1; VI, 3. PARTIAL DISABILITY. See Workmen’s Compensation Act. PARTIES. See Judgments. PASTEURIZATION. See Taxation, 4. PATENTS. See also Jurisdiction, I, 1. Validity—Claims—Invention.—Process and certain flux claims of Jones patent, for electric welding process, invalid; other flux claims valid and infringed; right to relief for infringement had not been forfeited by abuse of patent. Graver Mfg. Co. v. Linde Co., 271. PAYMENT. See Bankruptcy, 2-4; Contempt, 3; Workmen’s Compensation. PENALTY. See Constitutional Law, VI, 2. PERMANENT DISABILITY. See Admiralty, 1; Workmen’s Compensation. PERMIT. See Constitutional Law, VI, 2. PERSONAL SERVICES. See Bankruptcy, 4-5. PETROLEUM. See Constitutional Law, II, 2. PICKETING. See Constitutional Law, III, 2. PIPE-LINE COMPANIES. See Public Utilities. PLEADING. See Employers’ Liability Act, 2. POLICE POWER. See Constitutional Law, VI, 2. POSSESSION. See Bankruptcy, 2. INDEX. 989 POWER COMMISSION. See Public Utilities. PREJUDICIAL ERROR. See Procedure, 2. PRE-TRIAL INVESTIGATION. See Armed Forces, 3. PRIORITY. See Bankruptcy, 2. PROCEDURE. See also Admiralty, 3; Armed Forces, 3; Bankruptcy, 4-6; Employers’ Liability Act, 2-3; Evidence; Judgments; Jurisdiction; Mandate. 1. Summary judgment—Review—Power of appellate court.—On review of District Court’s summary judgment for defendant, Court of Appeals may not award personal money judgment for plaintiff on other claim which defendant had no opportunity to dispute. Fountain v. Filson, 681. 2. Harmless error—Admission of evidence—Criminal cases.—Erroneous admission of hearsay declaration not harmless error when it might have tipped scales against accused. Krulewitch v. United States, 440. PROCESS PATENT. See Patents. PROFITS. See Taxation, 1-3. PROOF. See Evidence; Trial. PROSTITUTION. See Evidence, 4. PUBLIC HEALTH SERVICE. See Aliens. PUBLIC UTILITIES. Natural Gas Act—Rate order—Impounded funds.—Distribution of funds impounded by Court of Appeals pending review of valid order of Federal Power Commission directing reduction of rates on interstate sales of natural gas for resale. Federal Power Comm’n v. Interstate Gas Co., 577. PUBLIC WORKS. See Labor, 3. RAILROADS. See Bankruptcy, 6; Employers’ Liability Act; Jurisdiction, IV; Transportation, 1-2. RAILWAY MAIL PAY ACT. See Transportation, 2. RATES. See Public Utilities; Transportation, 2-3. RECONSTRUCTION FINANCE CORPORATION. See Judg- ments; Jurisdiction, I, 5. REORGANIZATION. See Bankruptcy, 4-6. RES JUDICATA. See Constitutional Law, IV. 990 INDEX. RESTRAINT OF TRADE. See Antitrust Acts. RESTRICTED LANDS. See Constitutional Law, II, 2. RETROACTIVITY. See Transportation, 3. RIGHT OF ASSEMBLY. See Constitutional Law, III, 3. RULES OF EVIDENCE. See Evidence. SALES. See Bankruptcy, 1-2,6; Public Utilities. SCHOOLS. See Jurisdiction, III, 1. SEAMEN. See Admiralty, 1-2. SEARCH AND SEIZURE. See Constitutional Law, IV. SECURITIES. See Taxation, 1. SELF-DEFENSE. See Evidence, 5. “SHARE EXPENSE’’ TRAVEL. See Constitutional Law, VI, 2. SHERMAN ACT. See Antitrust Acts. SHIPPING. See Admiralty. SOUND TRUCKS. See Constitutional Law, III, 1. SOUTH CAROLINA. See Constitutional Law, VIII, 2; IX, 1. SPORTSWEAR. See Antitrust Acts. STATUTES. See also Constitutional Law; Jurisdiction, III; Labor, 3. 1. Validity—Motive—Lobbies.—Statute not vitiated by fact that enactment was secured by “insurance lobby.” Daniel v. Family Ins. Co., 220. 2. Validity—Wisdom—Courts.—Wisdom of statute is not concern of Court. Railway Express Agency v. New York, 106. STAY ORDER. See Public Utilities. STOCKHOLDERS’ PROTECTIVE COMMITTEE. See Bankruptcy, 4. STREETS. See Constitutional Law, III, 1; VI, 2-3; VIII, 6; IX, 2. STRIKES. See Constitutional Law, II, 1; Labor, 4. SUBPOENA. See Constitutional Law, IV. SUBSIDIARIES. See Taxation, 2-3. SUBSTITUTION. See Judgments. SUMMARY JUDGMENT. See Procedure, 1. SUPREME COURT. See Jurisdiction, I. INDEX. 991 TAXATION. See also Bankruptcy, 2-3; Constitutional Law, II, 2; VI, 5; VIII, 7. 1. Federal taxation—Income tax—Purchase of own obligations at discount.—Taxpayer’s gain from purchase of own bonds at discount, directly and indirectly from holders, includible in gross income and not excludible as “gift.” Commissioner v. Jacobson, 28. 2. Federal taxation—Income tax—Corporations—Subsidiaries.— Income of wholly owned subsidiaries which were utilized by parent corporation to carry on business activities was taxable to them and not to parent alone; subsidiaries here not true agents of parent. National Carbide Corp. v. Commissioner, 422. 3. Federal taxation—Income tax—Corporate distribution—Parent corporation which had absorbed subsidiaries.—Distribution by parent corporation taxable as income though deficits of absorbed subsidiaries exceeded earnings and profits of parent. Commissioner v. Phipps, 410. 4. Federal taxation—Electrical energy—Commercial consumption.—Electrical energy sold to dairy plants engaged in collecting, pasteurizing and distributing fresh milk was for “commercial” consumption and taxable under I. R. C. §3411; addition of pasteurization to other activities did not make business industrial. Wisconsin Electric Power Co. v. United States, 176. TEACHERS. See Jurisdiction, III, 1. TELEPHONE COMPANIES. See Labor, 2. TERRITORIES. See Jurisdiction, III. THIRTEENTH AMENDMENT. See Constitutional Law, X. THREATS. See Evidence, 5. THREE-JUDGE COURT. See Jurisdiction, II; III, 2. TIME. See Bankruptcy, 5; Transportation, 1. TOTAL DISABILITY. See Admiralty, 1; Workmen’s Compensation. TRADE UNIONS. See Constitutional Law, II, 1; III, 2-3; VI, 4; VIII, 4-5; X; Jurisdiction, I, 6; Labor. TRAFFIC REGULATIONS. See Constitutional Law, VI, 3; VIII, 6; IX, 2. TRANSPORTATION. See also Bankruptcy, 6; Constitutional Law, VI, 2; Employers’ Liability Act; Jurisdiction, IV. 1. Freight forwarders—Relation to railroads—Claims for loss or damage—Carmack Amendment.—Relation of freight forwarder to 992 INDEX. TRANSPORTATION—Continued. railroads as that of shipper; claim of forwarder against railroad for loss or damage required to be filed within nine months. Chicago, M., St. P. & P. R. Co. v. Acme Fast Freight, 465. 2. Transportation of mail—Rates—Railway Mail Pay Act.—Order of Interstate Commerce Commission fixing rates for transporting mail, valid; Court of Claims without jurisdiction to award money judgment for additional compensation. United States v. Jones, 641. 3. Air mail—Rates—Retroactive application.—Civil Aeronautics Board without authority to make mail rate retroactive to period prior to commencement of rate proceeding. T. W. A. v. Civil Aeronautics Board, 601. TRAVEL BUREAUS. See Constitutional Law, VI, 2. TRIAL. See also Armed Forces; Constitutional Law, IV; V; VII; VIII, 8; Mandate; Procedure. Variance—Indictment and proof.—No fatal variance between conspiracy charged and proof. Nye & Nissen v. United States, 613. TRUCKS. See Constitutional Law, III, 1; VI, 3. TRUSTEES. See Bankruptcy, 2. UNCOMMUNICATED THREATS. See Evidence, 5. UNDERTAKERS. See Constitutional Law, VIII; 2; IX, 1. UNFAIR LABOR PRACTICE. See Labor, 1, 4r-5. UNIONS. See Constitutional Law, II, 1; III, 2-3; VI, 4; VIII, 4r-5; X; Jurisdiction, 1,6; Labor. UNITED STATES. See Admiralty, 3; Bankruptcy, 2-3; Labor, 3. VARIANCE. See Trial. VERDICT. See Criminal Law, 2; Employers’ Liability Act, 3. VESSELS. See Admiralty. VOYAGE. See Admiralty, 2. WAGE-HOUR ADMINISTRATOR. See Contempt, 3. WAGES. See Admiralty, 2; Bankruptcy, 2; Contempt, 3. WAR. See Armed Forces; Constitutional Law, V. WAR LABOR BOARD. See Labor, 5. WELDING. See Patents. WHITE SLAVE ACT. See Evidence, 4. WILLFULNESS. See Contempt, 3. INDEX. 993 WISCONSIN. See Constitutional Law, II, 1; Jurisdiction, I, 6; Labor, 2,4-5. WOMEN. See Constitutional Law, IV. WOMEN’S SPORTSWEAR. See Antitrust Acts. WORDS. 1. “Agency” contracts.—National Carbide Corp. v. Commissioner, 422. 2. “All payments.”—Bankruptcy Act, Ch. X. Leiman v. Guttman, 1. 3. “Commercial” consumption.—Internal Revenue Code, §3411. Wisconsin Electric Co. v. United States, 176. 4. “Disability.”—Longshoremen’s & Harbor Workers’ Compensation Act. Lawson v. Suwannee S. S. Co., 198. 5. “Dividend.”—Revenue Act of 1936. Commissioner v. Phipps, 410. 6. “Final judgment.”—Judicial Code, §237 (a). La Crosse Telephone Corp. v. Wisconsin Board, 18. 7. “Gift.”—Revenue Act of 1938; Internal Revenue Code. Commissioner v. Jacobson, 28. 8. “Not exceeding” twelve months.—Farrell v. United States, 511. 9. “To make such rates effective from such date as it shall determine to be proper.”—Civil Aeronautics Act of 1938. T. W. A. v. Civil Aeronautics Board, 601. WORKMEN’S COMPENSATION. Longshoremen’s & Harbor Workers’ Act—Total disability—Loss of second eye—Liability of employer.—Employer liable only for partial disability of employee who lost one eye previously by non-industrial cause and other in employment; remainder of compensation for total disability payable from statutory fund. Lawson v. Suwannee S. S. Co., 198. Date Due Demco 293-5 345.4 34319 Un 3 V.33Ó United States reports v.336 MHS_————————i ¡345.4 34319 IUn3 United States reports 34319 345.4 Jn3 5733^ United States reports v.336 DEMCO-207 DATE ISSUED TO DATE ISSUED TO 34319 Un3 United States reports v.336 DATE ISSUED TO NO. 40 GAYLORD PRINTED IN U.S.A.