DISO APR 1 CSE UNITED STATES REPORTS VOLUME 337 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1948 From May 16 Through (In Part) June 27, 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) qs.4 Erratum. 299 U. S. 148, n. 17, last line, “Sen. Rep. No. 1347” should be “Sen. Rep. No. 1297.” 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. 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 0. 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 Aaron v. Ford, Bacon & Davis................... 955 Abernathy, In re............................... 913 Adams v. Hiatt................................. 946 Adams v. Nierstheimer........................ 927 Adams v. Ragen................................. 920 Administrator. See name of administrator; Federal Security Administrator; Surplus Property Administrator; Wage & Hour Administrator; War Assets Administrator. Aeronautical District Lodge 727 v. Campbell.... 521 Aetna Casualty Co., B. B. B. Constr. Corp, v... 917 A. F. Wagner Iron Works v. War Assets Adm’n. 956 Agnew v. California.......................... 909,927 Agwilines, Inc., Gaynor v...................... 810 Aird v. Weyerhaeuser S. S. Co.................. 959 Ajax Trucking Co. v. Browne.................... 951 Allen v. Litsinger............................. 919 American-Hawaiian S. S. Co., Palardy v......... 959 American Health Aids Co., Reilly v............. 906 American News Co., Hartmann v.................. 907 American Surety Co. v. United States........... 930 Anderson v. Bowers............................. 918 Arkansas, Cole v............................... 929 Atchison, T. & S. F. R. Co., Hamilton Foods v.. 917 Attorney General, In re........................ 902 Attorney General, Fujino v..................... 937 Attorney General, Holloway v................... 903 Attorney General v. Manufacturers Trust Co..... 953 Attorney General, Propper v.................... 472 Baltimore & Ohio R. Co., Hanson v.............. 940 Baltimore & Ohio R. Co., Lynch v............... 941 v VI TABLE OF CASES REPORTED. Page Baltimore & Ohio R. Co., Plough v............... 940 Baltimore & Ohio R. Co., Van Slyke v............ 941 Banks v. Nierstheimer........................... 943 Banks v. Ragen.................................. 235 Bassinger v. Illinois........................... 960 B. B. B. Construction Corp. v. Aetna Co........ 917 Bechtel v. Thatcher............................. 918 Becker, Manufacturers Trust Co. v............... 923 Becker v. Virginia.............................. 956 Beneficial Industrial Loan Corp., Cohen v....... 541 Beneficial Industrial Loan Corp. v. Smith....... 541 Berger v. Brannan............................... 941 Binkowski v. Ragen.............................. 927 Bird v. Washington.............................. 911 Birtch v. United States......................... 944 Bishop & Babcock Co., Excel Radiator Co. v...... 920 Blake v. Ragen.................................. 933 Blauvelt v. Jackson............................. 933 Board of Dentistry, Taber v..................... 922 Board of Equalization, San Diego Elec. R. Co. v. 911 Borax Consolidated, Ltd., Burnham Co. v......... 961 Borthwick, Veatch v............................. 916 Bowers, Anderson v.............................. 918 Boyd v. Grand Trunk Western R. Co............... 923 Bramble v. California........................... 960 Brannan, Berger v............................... 941 Braun v. Taub................................... 916 Brazil v. General Foods Corp.................... 908 Broadcasting Service Organization, F. C. C. v... 901 Broadhurst v. Oregon............................ 906 Brooks v. United States.......................... 49 Brotherhood of Firemen, Graham v................ 954 Brown v. Minnesota.............................. 953 Browne, Ajax Trucking Co. v..................... 951 Bundte v. California............................ 915 Burch v. Kieren................................. 946 Burford, Darr v................................. 923 TABLE OF CASES REPORTED. VII Page Burke, Gibbs v..................................... 773 Burke, Gryger v.................................... 948 Burke, Pascal v.................................... 944 Burnham Chemical Co. v. Borax, Ltd................. 961 Bush, In re........................................ 934 Butler v. Clemmer.................................. 926 Butler v. Penix................................ 926, 962 Calhoun v. United States........................... 938 California, Agnew v............................ 909, 927 California, Bramble v.............................. 960 California, Bundte v............................... 915 California, Coyle v............................ 909, 934 California, Danielly v............................. 919 California, Edelman v.............................. 949 California, Manchester v........................... 948 California, Martinez v............................. 909 California, Moore v................................ 915 California, Noorlander v......................... 948 California, O’Malley v............................. 934 California, Schuman v.............................. 903 California, Smith v................................ 950 California, Tate v............................. 903, 962 California, United States v........................ 952 California, Winn v................................. 933 California v. Zook................................. 921 Campbell, Aeronautical Industrial Lodge v............ 521 Campbell v. United States.......................... 957 Campbell, Wilmette Park District v................. 937 Canada v. Jones.................................... 903 Cantoo v. Ragen.................................... 927 Capital Transit Co., Lyons v....................... 942 Carlson v. Federal Communications Comm’n............. 930 Carpenter v. Rohm & Haas Co........................ 921 Carter v. United States............................ 946 Carter Oil Co., Culver v........................... 908 Carter Oil Co. v. Ramsey...........................; 958 Cassell v. Texas................................... 903 VIII TABLE OF CASES REPORTED. Page Central States Cooperatives v. Watson Co........ 951 Chadwick v. United States....................... 926 Chaney v. United States......................... 936 Cherney, Eagle v............................... 911 Chesapeake & Ohio R. Co. v. Morris.............. 927 Chicago, Terminiello v........................ 1,934 Chicago Stoker Corp., Whiting Stoker Co. v...... 915 Christ’s Church of Golden Rule, Petersen v...... 941 City. See name of city. Clark v. Eidson................................. 949 Clark, Fujino v................................. 937 Clark, Holloway v............................. 903 Clark v. Manufacturers Trust Co................. 953 Clark, Propper v................................ 472 Clemmer, Butler v............................... 926 Clemmer, Edwards v.............................. 936 Clemmer, McAffee v.............................. 932 Cobleigh v. Woods............................... 924 Cohen v. Beneficial Industrial Loan Corp........ 541 Cohen v. Decker................................. 926 Cole v. Arkansas................................ 929 Colgate-Palmolive-Peet Co. v. Labor Board....... 913 Collector, Anderson v........................... 918 Collector, Glover v............................. 917 Collector, Noland v............................. 938 Collector v. Seeley Tube & Box Co............... 955 Collector, Wilmette Park District v............. 937 Collector of Internal Revenue. See Collector. Collett, Ex parte................................ 55 Collins v. Duffy................................ 961 Commanding General, Henry v..................... 927 Commissioner v. Connelly........................ 924 Commissioner v. Culbertson...................... 733 Commissioner, Duncan v........................ 957 Commissioner, Fainblatt v....................... 957 Commissioner, Hager Estate v................... 937 Commissioner v. Hartz........................... 959 TABLE OF CASES REPORTED. IX Page Commissioner, Hugh Smith, Inc. v ............. 918 Commissioner, Kohinoor Coal Co. v............. 924 Commissioner, Kohl v.......................... 956 Commissioner, MacManus Estate v............... 938 Commissioner, Mather & Co. v.................. 907 Commissioner, Moore v......................... 956 Commissioner, Pittsburgh & W. Va. R. Co. v...... 939 Commissioner, Reo Motors, Inc. v.............. 923 Commissioner v. Wodehouse..................... 369 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents v. Dorsey........... 914 Commonwealth. See name of Commonwealth. Comodor v. United States...................... 925 Concrete Construction Co., Continental Co. v.... 940 Cone v. West Virginia Pulp Co................. 920 Connelly, Commissioner v...................... 924 Continental Casualty Co. v. Schaefer.......... 940 Cordts v. Illinois.......................... 927 Cordts v. Ragen............................ 934, 949 Cors, United States v......................... 325 Cosmopolitan Shipping Co. v. McAllister....... 783 County. See name of county. Court of Appeals, D’Ostroph v.............. 926, 950 Court Square Building, Inc. v. New York City.... 916 Couture v. Smith.............................. 909 Coyle v. California........................ 909, 934 Creel v. Lone Star Defense Corp............... 923 Crompton-Highland Mills, Labor Board v..... 217, 950 Crowley v. Ragen.............................. 909 Culbertson, Commissioner v.................... 733 Culver v. Carter Oil Co....................... 908 Current v. Hudspeth........................... 948 Cypress, The, Vlavianos v..................... 924 Danielly v. California........................ 919 Darden v. Ragen............................ 932, 948 Darr v. Burford............................... 923 X TABLE OF CASES REPORTED. Page Dean v. Waterman Steamship Corp................ 924 Deavers, Missouri-K.-T. R. Co. v............... 958 Decker, Cohen v................................ 926 Defense Supplies Corp. v. Lawrence Co.......... 921 Dennis v. United States........................ 954 Denny v. United States......................... 919 De Normand v. United States.................... 943 Denver Publishing Co., Shotkin v............... 929 Dessaure v. New York........................... 949 DeWar v. Hunter............................ 908,934 Dichmann, Wright & Pugh, Weade v............... 801 District Court. See U. S. District Court. District Director of Immigration, Dörfler v..... 914 District Director of Immigration, Eichenlaub v.. 955 District Director of Immig., Schirrmeister v.... 942 District Director of Immigration, Willumeit v...955 District of Columbia, Mercury Press v.......... 931 District of Columbia v. Smoot Sand Corp........ 939 Doles v. Metropolitan Life Ins. Co......... 922, 962 Domestic & Foreign Commerce Corp., Larson v..... 682 Donovan v. Queensboro Corp...................... 961 Dörfler v. Watkins............................. 914 Dorsey, Kingsland v............................ 914 D’Ostroph v. U. S. Court of Appeals........ 926, 950 Dreyfus, Shaw v................................ 907 Duffy, Collins v............................... 961 Duffy, Smith v................................. 933 Duffy, Swain v................................. 903 Duncan v. Commissioner......................... 957 Dunnell v. Safeway Stores...................... 907 Dzan v. Ragen.................................. 910 Eagle v. Cherney............................... 911 Eastern Shore Canning Co., Standard Brands v.... 925 East Ohio Gas Co., Power Comm’n v............. 937 Edelman v. California.......................... 949 Edgeman v. Ohio................................ 953 Edmondson v. Wright............................ 947 TABLE OF CASES REPORTED. XI Page Edwards v. Clemmer............................. 936 Edwards v. Heinze.............................. 947 Eichenlaub v. Watkins.......................... 955 Eidson, Clark v................................ 949 Eisler v. United States..................... 912, 958 Electric Power & Light Corp., In re............ 903 Elgin, J. & E. R. Co., O’Donnell v............. 929 Empire Packing Co. v. United States............ 959 Empresa Siderurgica v. Merced County........... 154 Energy Food Center, Reilly v.................. 906 Erie R. Co., Scocozza v........................ 907 Erreca, United States v........................ 928 Estate of. See name of estate. Evans v. Nierstheimer.......................... 235 Excel Auto Rad. Co. v. Bishop & Babcock Co..... 920 Ex parte. See name of party. Fainblatt v. Commissioner..................... 957 Farmakis v. Farmakis........................... 958 Farmers Reservoir & Irrig. Co. v. McComb........ 755 Fauber, United States v........................ 906 Federal Communications Comm’n v. Broad. Service. 901 Federal Communications Comm’n, Carlson v........ 930 Federal Communications Comm’n v. WJR Station.. 265 Federal Power Comm’n v. East Ohio Gas Co........ 937 Federal Power Comm’n v. Panhandle Pipe Line Co.. 498 Federal Security Administrator, In re.......... 902 Felsch, In re.................................. 953 Ferguson v. Ferguson........................... 943 Fiamengo v. The San Francisco.................. 946 Fidelity Union Trust Co., Gay v................ 945 Filson, Fountain v............................. 921 Fincham v. Lillard............................. 936 Fink v. Shepard Steamship Co.................. 810 Firemen & Enginemen, Graham v.................. 954 Fisher v. Swenson.............................. 933 Fish & Wildlife Service v. Grimes Co............ 86 Fitz Simons & Connell Dredge Co. v. Mullen...... 959 XII TABLE OF CASES REPORTED. Page Fitz Simons & Connell Dredge Co. v. Savela...... 959 Flynn v. United States......................... 944 Foley v. Ragen................................. 923 Fong v. Superior Court......................... 956 Ford, Bacon & Davis, Aaron v................... 955 Foster, Lemmons v.............................. 929 Fountain v. Filson............................. 921 Francis v. United States................... 918, 950 Frank v. Wilson & Co........................... 918 Franklin v. Ragen.............................. 909 Fredericksen v. Jones.......................... 903 Frisbie, Roberts v............................. 936 Fujino v. Clark................................ 937 Fuller v. Michigan............................. 947 Furness (Pacific) Ltd., Thomas v............... 960 Gambony v. Illinois............................ 910 Gann v. Hiatt.............................. 920, 950 Garner v. United States........................ 945 Gay v. Fidelity Union Trust Co................. 945 Gaynor v. Agwilines, Inc....................... 810 General Foods Corp., United States of Brazil v.. 908 Georgia, Reeves v.............................. 946 Gerlach Live Stock Co., United States v........ 928 Gibbs v. Burke................................. 773 Gibson v. Lainson.............................. 928 Gibson v. Reynolds............................. 925 Glander, National Distillers Corp, v........... 562 Glander, United States Gypsum Co. v............ 951 Glander, Wheeling Steel Corp, v................ 562 Glazewski v. Pennington........................ 932 Glover v. Maloney.............................. 917 Godwin v. Smyth................................ 946 Goldman, Roth v................................ 938 Goodman v. Iowa................................ 948 Goodman v. Lainson............................. 948 Goodman v. Swenson............................. 933 Goodwill Station WJR, F. C. C. v............... 265 TABLE OF CASES REPORTED. xm Page Gould v. United States........................ 945 Graham v. Brotherhood of Firemen.............. 954 Grand Trunk Western R. Co., Boyd v............ 923 Grannis v. United States...................... 918 Graver Tank & Mfg. Co. v. Linde Products Co.... 910 Graylyn Bainbridge Corp. v. Woods............. 958 Grayson Shops, Inc. v. Stone.................. 926 Great Lakes Steel Corp. v. United States...... 952 Great Northern R. Co. v. Lehman............... 938 Griffin v. United States...................... 921 Grimaldi v. United States..................... 931 Grimes Packing Co., Hynes v.................... 86 Gruetter, In re............................... 928 Gryger v. Burke............................... 948 Gulf Oil Corp. v. The John A. Brown........... 919 Gulfstream Park Racing Assn. v. Weed, Inc...... 936 Hager Estate v. Commissioner.................. 937 Haley v. Ohio......................... 945 Hall v. Illinois.............................. 949 Hall v. Ragen................................. 923 Hamilton v. Ragen............................. 910 Hamilton Foods v. Atchison, T. & S. F. R. Co... 917 Hanna v. United States........................ 936 Hanson v. Baltimore & Ohio R. Co.............. 940 Harbor Towing Corp. v. Parker................. 907 Hartmann v. American News Co.................. 907 Hartz, Commissioner v......................... 959 Harvester Co. v. Troutman..................... 940 Hasson v. United States.................... 932, 962 Hawaii Tax Comm’r, Veatch v................... 916 Heinze, Edwards v............................. 947 Heinze, Roberts v............................. 928 Helene Curtis Industries, Sales Affiliates v... 940 Henry v. Smith................................ 927 Hiatt, Adams v................................ 946 Hiatt, Gann v.............................. 920, 950 Hiatt, Jackson v.............................. 945 XIV TABLE OF CASES REPORTED. Page Hiatt, Miller v.................................. 936 Hicks v. United States........................... 945 Hilliard v. Underwood............................ 929 Hinman, Wilson v................................. 927 Hinton v. Reid................................... 960 Holderfield v. Ragen............................. 961 Holloway v. Clark................................ 903 Housing Expediter, Cobleigh v.................... 924 Housing Expediter, Graylyn Bainbridge Corp, v.... 958 Howell v. United States...................... 906, 946 Hudspeth, Current v............................... 948 Hudspeth, Phillips v.............................. 948 Hudspeth, Taylor v................................ 947 Hugh Smith, Inc. v. Commissioner.................. 918 Humphrey, Kranz v............................... 948 Humphrey, Lowe v.................................. 944 Humphrey v. Smith................................ 934 Hunter, DeWar v.............................. 908,934 Hunter, Shepherd v............................... 916 Hunter, Wade v................................... 921 Hynes v. Grimes Packing Co........................ 86 Illinois, Bassinger v............................ 960 Illinois, Cordts v............................... 927 Illinois, Gambony v.............................. 910 Illinois, Hall v................................. 949 Illinois, Loftus v............................... 935 Illinois, Manning v.............................. 949 Illinois, Thompson v......................... 942, 943 Illinois, Twitty v............................... 909 Illinois ex rel. Marino v. Ragen................. 921 Immigration Director. See District Director of Immigration. In re. See name of party. Interior Department v. Grimes Packing Co.......... 86 International Harvester Co. v. Troutman........... 940 International Longshoremen’s Union v. Board....... 915 International Warehousemen’s Union v. Board....... 915 TABLE OF CASES REPORTED. xv Page Interstate Commerce Comm’n, United States v.... 426 Interstate Oil Pipe Line Co. v. Stone......... 662 Interstate Realty Co., Woods v................ 535 Iowa, Goodman v............................... 948 Jackson, Blauvelt v........................... 933 Jackson v. Hiatt.............................. 945 James J. Stevinson, Inc., United States v..... 928 John A. Brown, The, Gulf Oil Corp, v.......... 919 Jones, Canada v............................... 903 Jones, Fredericksen v......................... 903 Jones v. United States........................ 920 Joyner v. Wright.............................. 928 Joy Oil Co. v. State Tax Comm’n............... 286 Kamrowski v. Ragen............................ 960 Kan v. Tsang.................................. 939 Kansas City Life Ins. Co., United States v..... 927 Keating v. United States...................... 959 Kelly v. Shamrock Oil & Gas Corp........... 917, 950 Kennedy v. Walker......................... 901,934 Keye v. Robinson.............................. 920 Kieren, Burch v............................... 946 Kilpatrick, Ex parte.......................... 912 Kilpatrick v. Texas & Pacific R. Co......... 75, 912 Kimbrel v. United States...................... 949 Kingsland v. Dorsey........................... 914 Koenig v. Smith............................... 942 Kohinoor Coal Co. v. Commissioner............. 924 Kohl v. Commissioner.......................... 956 Krakower v. New York.......................... 921 Kranz v. Humphrey............................. 948 Krepper v. United States..................... 936 Labor Board, Colgate-Palmolive-Peet Co. v...... 913 Labor Board v. Crompton-Highland Mills...... 217, 950 Labor Board v. Pittsburgh Steamship Co........ 656 Labor Board, Warehouse Union Local 6 v......... 915 Lainson, Gibson v........................... 928 Lainson, Goodman v............................ 948 XVI TABLE OF CASES REPORTED. Page Lainson, Morse v............................... 903 Lamb, Union National Bank v................. 38, 928 Larson v. Domestic & Foreign Commerce Corp...... 682 Latta v. Western Investment Co................. 940 Lawrence Warehouse Co., Defense Corp, v......... 921 Lehman, Great Northern R. Co. v................ 938 Leishman v. Richards & Conover Co.............. 927 Lemmons v. Foster.............................. 929 Lewis, In re................................. 912 Lewis v. Ragen................................. 235 Lillard, Fincham v............................. 936 Linde Air Products Co., Graver Tank Co. v....... 910 Linquata v. United States...................... 916 Litsinger, Allen v............................. 919 Lloyd Brasileiro v. General Foods Corp......... 908 Lockard v. Los Angeles......................... 939 Locomotive Firemen, Graham v................... 954 Loftus v. Illinois............................. 935 Lone Star Defense Corp., Creel v............... 923 Longshoremen’s Union v. Labor Board............ 915 Longyear Holding Co. v. Minnesota.............. 921 Loper v. Texas................................. 946 Los Angeles, Lockard v......................... 939 Los Angeles County, Parker v................... 929 Los Angeles County, Steiner v.................. 929 Loughran v. Maryland........................... 908 Louisiana, United States v................. 902, 928 Louisiana, Wilde v............................. 932 Lowe v. Humphrey............................... 944 Lowe v. United States.......................... 944 Lucas v. Moore................................. 926 Lucas v. Texas................................. 911 Lutz v. Ragen.................................. 910 Lynch v. Baltimore & Ohio R. Co................ 941 Lyons v. Capital Transit Co.................... 942 Mac. See also Me, infra. MacKenna v. New York........................... 950 TABLE OF CASES REPORTED. XVII Page Mackey v. Martin.............................. 933 MacManus Estate v. Commissioner............... 938 Mahoney v. Michigan........................... 930 Maimone v. United States...................... 960 Maloney, Glover v............................ 917 Manchester v. California...................... 948 Manning v. Illinois........................... 949 Manning v. Seeley Tube & Box Co............... 955 Manufacturers Trust Co. v. Becker............. 923 Manufacturers Trust Co. v. Clark.............. 953 Marino v. Ragen............................... 921 Marion v. United States....................... 944 Martin, Mackey v.............................. 933 Martinez v. California........................ 909 Maryland, Loughran v.......................... 908 Maryland Drydock Co. v. Vlavianos............. 924 Mason v. Texas Co............................ 915 Mather & Co. v. Commissioner.................. 907 Matson Navigation Co. v. War Damage Corp....... 939 Mayo, Nottebaum v............................. 933 Mayo, Pope v.................................. 947 Me. See also Mac, supra. McAffee v. Clemmer............................ 932 McAllister, Cosmopolitan Shipping Co. v.......... 783 McComb v. Farmers Reservoir & Irrig. Co........ 755 McCormick v. Michigan......................... 960 McDonald v. Swope............................. 960 McGee v. Mississippi.......................... 922 McIntosh v. Steele......................... 929, 936 Merced County, Empresa Siderurgica, S. A. v.... 154 Merchants Transfer & Warehouse Co., Ragan v.... 530 Mercury Press, Inc. v. District of Columbia.... 931 Merrill v. Smith.............................. 903 Messina v. Ragen.............................. 927 Metropolitan Life Ins. Co., Doles v........ 922, 962 Metropolitan Life Ins. Co., Rhodes v.......... 930 Metropolitan Trust Co. v. Muter Co............ 907 837446 0—49-2 XVIII TABLE OF CASES REPORTED. Page Meyer v. Ragen.................................. 949 Mezick v. Wright........................ ....... 923 Mica Mountain Mines, Tibbals v................. 925 Michael v. Ragen................................ 910 Michigan, Fuller v.............................. 947 Michigan, Mahoney v............................ 930 Michigan, McCormick v.......................... 960 Michigan, Whalen v............................. 948 Miller v. Hiatt................................. 936 Minnesota, Brown v............................. 953 Minnesota, Longyear Holding Co. v....... 921 Mississippi, McGee v............................ 922 Missouri-K.-T. R. Co. v. U. S. ex rel. Deavers.. 958 Mohler v. Smith................................. 926 Momand v. Universal Film Exchanges......... 934, 961 Moore v. California............................. 915 Moore v. Commissioner........................... 956 Moore, Lucas v................................ 926 Moore, Thomas v................................. 943 Morant v. New York......................... 909, 950 Morgantown v. Royal Ins. Co..................... 254 Morris, Chesapeake & Ohio R. Co. v............. 927 Morse v. Lainson................................ 903 Mulcahy, U. S. ex rel. Sutton v................ 956 Mullen, Fitz Simons & Connell Co. v....... 959 Muter Co., Metropolitan Trust Co. v............ 907 National City Lines, United States v....... 78 National Distillers Products Corp. v. Glander... 562 National Labor Relations Board. See Labor Board. National Mineral Co., Sales Affiliates v....... 940 National Mutual Ins. Co. v. Tidewater Co........ 582 New Jersey, Stephenson v....................... 928 New Jersey Board of Dentistry, Taber v......... 922 New York, Dessaure v........................... 949 New York, Krakower v........................... 921 New York, MacKenna v........................... 950 New York, Morant v......................... 909, 950 TABLE OF CASES REPORTED. XIX Page New York, Polizio v............................. 957 New York, Stemmer v............................. 921 New York, Williams v.................... 241, 949, 961 New York City, Court Square Bldg., Inc. v........ 916 New York, C. & St. L. R. Co., Sauerwine v........ 922 Nicholson v. Thompson........................... 932 Nierstheimer, Adams v......................... 927 Nierstheimer, Banks v......................... 943 Nierstheimer, Evans v......................... 235 Nierstheimer, Pippin v......................... 942 Nierstheimer, Thompson v........................ 935 Niznik v. United States......................... 925 Noland v. Westover.............................. 938 Noorlander v. California........................ 948 Nottebaum v. Mayo............................... 933 Oddo v. United States........................... 943 O’Donnell v. Elgin, J. & E. R. Co............... 929 Ohio, Edgeman v................................ 953 Ohio, Haley v................................... 945 Ohio, Pullins v................................. 936 Ohio, Tompsett v................................ 913 O’Malley v. California.......................... 934 Oregon, Broadhurst v............................ 906 Overholser, Ruthven v........................... 936 Overholser, Williams v.......................... 903 Palardy v. American-Hawaiian S. S. Co........... 959 Panama Transport Co., Sonnesen v............ 919, 961 Panhandle Eastern Pipe Line Co., Power Comm’n v. 498 Parker, Ex parte................................ 912 Parker, Harbor Towing Corp, v................... 907 Parker v. Los Angeles County.................... 929 Parker v. Texas & Pacific R. Co................. 912 Pascal v. Burke................................. 944 Paterno v. United States........................ 957 Penix, Butler v............................. 926, 962 Penn Foundry & Mfg. Co., United States v......... 198 Pennington, Glazewski v......................... 932 XX TABLE OF CASES REPORTED. Page Petersen v. Christ’s Church of Golden Rule....... 941 Peterson v. United States....................... 925 Philadelphia Co., S. E. C. v.................... 901 Phillips v. Hudspeth............................ 948 Phillips v. Ragen............................... 921 Pinkus, Reilly v................................ 906 Pippin v. Nierstheimer.......................... 942 Pittsburgh Steamship Co., Labor Board v......... 656 Pittsburgh & W. Va. R. Co. v. Commissioner....... 939 Plough v. Baltimore & Ohio R. Co................ 940 Polizio v. New York............................. 957 Pope v. Mayo.................................... 947 Postmaster v. Pinkus............................ 906 Postmaster, Roth v.............................. 938 Potter, United States v......................... 928 Propper v. Clark................................ 472 Psychic Research Press v. Goldman............... 938 Pullins v. Ohio................................. 936 Queensboro Corp., Donovan v..................... 961 Ragan v. Merchants Transfer & Warehouse Co....... 530 Ragen, Adams v.................................. 920 Ragen, Banks v.................................. 235 Ragen, Binkowski v.............................. 927 Ragen, Blake v.................................. 933 Ragen, Cantoo v................................. 927 Ragen, Cordts v............................. 934, 949 Ragen, Crowley v................................ 909 Ragen, Darden v............................. 932, 948 Ragen, Dzan v................................... 910 Ragen, Foley v.................................. 923 Ragen, Franklin v............................... 909 Ragen, Hall v................................... 923 Ragen, Hamilton v............................... 910 Ragen, Holderfield v............................ 961 Ragen, Illinois ex rel. Marino v................ 921 Ragen, Kamrowski v.............................. 960 Ragen, Lewis v.................................. 235 TABLE OF CASES REPORTED. XXI Page Ragen, Lutz v................................. 910 Ragen, Marino v............................... 921 Ragen, Messina v.............................. 927 Ragen, Meyer v................................ 949 Ragen, Michael v.............................. 910 Ragen, Phillips v............................. 921 Ragen, Reeves v............................... 910 Ragen, Rooney v............................... 961 Ragen, Scott v................................ 910 Ragen, Sherman v.............................. 235 Ragen, Smith v................... 235, 903, 933,947 Ragen, Tennant v.............................. 949 Ragen, Terry v................................ 910 Ragen, Thompson v.................... 235 Ragen, U. S. ex rel. Rooney v................. 961 Ragen, Volkmann v.................... 923 Ragen, Wakat v............................. 909, 934 Ragen, Westbrook v............................. 960 Ragen, Willis v............................... 235 Ragen, Wright v....................... 932,933,948 Ragen, Young v................................ 235 Ramsey, Carter Oil Co. v...................... 958 Ranney-Davis Mercantile Co., Travelers Co. v... 930 Reeves v. Georgia.............................. 946 Reeves v. Ragen................................ 910 Regional Director v. Grimes Co................. 86 Reid, Hinton v................................ 960 Reilly v. Pinkus............................... 906 Reo Motors, Inc. v. Commissioner.“............. 923 Republic of Brazil v. General Foods Corp...... 908 Reynolds, Gibson v............................. 925 Rhodes v. Metropolitan Life Ins. Co............930 Riccardi v. United States...................... 941 Richards & Conover Co., Leishman v............. 927 Richmond Screw Anchor Co. v. Umbach............ 919 Roberts v. Frisbie............................. 936 Roberts v. Heinze.............................. 928 XXII TABLE OF CASES REPORTED. Page Robinson, Keye v............................... 920 Robinson, Skinner v.......................... 945 Rockower v. United States...................... 931 Rodda v. Rodda................................. 946 Rohm & Haas Co., Carpenter v................... 921 Rooney v. Ragen................................ 961 Roth v. Goldman................................ 938 Rought v. U. S. District Court................. 936 Royal Ins. Co., Morgantown v................... 254 Ruthven v. Overholser.......................... 936 Ryan, In re.................................... 913 Safeway Stores, Dunnell v...................... 907 Sales Affiliates v. National Mineral Co........ 940 San Diego Electric R. Co. v. State Board....... 911 San Francisco, The, Fiamengo v................. 946 Sauerwine v. New York, C. & St. L. R. Co........ 922 Savela, Fitz Simons & Connell Co. v............ 959 Savorgnan v. United States..................... 914 Schaefer, Continental Casualty Co. v........... 940 Schiappi v. West Virginia Liquor Comm’n......... 914 Schirrmeister v. Watkins....................... 942 Schuman v. California.......................... 903 Scocozza v. Erie R. Co......................... 907 Scott v. Ragen................................. 910 Secretary of Agriculture, Berger v............. 941 Securities & Exchange Comm’n v. Philadelphia Co.. 901 Seeley Tube & Box Co., Manning v............... 955 Sgambati v. United States...................... 938 Shamrock Oil & Gas Corp., Kelly v........... 917, 950 Shaw v. Dreyfus................................ 907 Shepard Steamship Co., Fink v.................. 810 Shepherd v. Hunter............................. 916 Sherman v. Ragen............................... 235 Shoe v. United States.......................... 944 Shotkin v. Denver Publishing Co................ 929 Sinclair v. United States...................... 955 Sioux Tribe of Indians v. United States........ 908 TABLE OF CASES REPORTED. XXIII Page Skinner v. Robinson............................. 945 Smith, Beneficial Industrial Loan Corp, v....... 541 Smith v. California............................. 950 Smith, Couture v................................ 909 Smith v. Duffy................................ 933 Smith, Henry v.................................. 927 Smith, Humphrey v............................... 934 Smith, Koenig v................................. 942 Smith, Merrill v................................ 903 Smith, Mohler v................................. 926 Smith v. Ragen...................... 235,903,933,947 Smith v. United States.......................... 137 Smith v. Witsell................................ 929 Smith, Inc. v. Commissioner..................... 918 Smoot Sand Corp., District of Columbia v........ 939 Smyth, Godwin v................................. 946 Snyder v. United States......................... 931 Sonnesen v. Panama Transport Co............. 919,961 Standard Brands v. Eastern Shore Canning Co...... 925 Standard Oil Co. v. United States............... 293 State. See name of State. State Board, San Diego Electric R. Co. v........ 911 State Board of Dentistry, Taber v................ 922 State Tax Comm’n, Ajax Trucking Co. v........... 951 State Tax Comm’n, Interstate Pipe Line Co. v..... 662 State Tax Comm’n, Joy Oil Co. v................. 286 Steele, McIntosh v.......................... 929, 936 Steimle, In re.................................. 913 Steiner v. Los Angeles County................... 929 Stemmer v. New York............................. 921 Stephenson v. New Jersey........................ 928 Stevinson, United States v...................... 928 Stinnett v. United States....................... 957 Stinson, In re . 903 Stone, Grayson Shops v.......................... 926 Stone, Interstate Pipe Line Co. v............... 662 Story v. United States.......................... 947 XXIV TABLE OF CASES REPORTED. Page Superior Court, Fong v........................ 956 Surplus Property Adm’r v. Domestic Corp........ 682 Sutton v. Mulcahy............................. 956 Swain v. Duffy................................ 903 Swenson, Fisher v............................. 933 Swenson, Goodman v............................ 933 Swenson, Tabor v.............................. 947 Swope, McDonald v............................. 960 Taber v. State Board of Dentistry............. 922 Tabor v. Swenson.............................. 947 Tate v. California........................ 903,962 Taub, Braun v................................. 916 Tax Commissioner, National Distillers Corp, v.. 562 Tax Commissioner, United States Gypsum Co. v.... 951 Tax Commissioner, Wheeling Steel Corp, v...... 562 Tax Commissioner of Hawaii, Veatch v.......... 916 Taylor v. Hudspeth............................ 947 Tennant v. Ragen.............................. 949 Terminiello v. Chicago...................... 1,934 Terry v. Ragen................................ 910 Texas, Cassell v.............................. 903 Texas, Loper v................................ 946 Texas, Lucas v............................... 911 Texas v. United States........................ 911 Texas, United States v........................ 902 Texas Co., Mason v............................ 915 Texas & Pac. R. Co., Kilpatrick v........... 75, 912 Texas & Pac. R. Co., Parker v................. 912 Thatcher, Bechtel v........................... 918 Thomas v. Furness (Pacific) Ltd............... 960 Thomas v. Moore............................... 943 Thompson v. Illinois....................... 942, 943 Thompson, Nicholson v....................... 932 Thompson v. Nierstheimer...................... 935 Thompson v. Ragen............................. 235 Thompson, Urie v.............................. 163 3-H Securities Co., United States v........... 928 TABLE OF CASES REPORTED. XXV Page Thys v. Washington........................... 917,950 Tibbals v. Mica Mountain Mines................... 925 Tidewater Transfer Co., National Ins. Co. v....... 582 Todd v. Todd..................................... 926 Todorow v. United States......................... 925 Tompsett v. Ohio................................. 913 Travelers Fire Ins. Co. v. Ranney-Davis Co........ 930 Troutman, International Harvester Co. v.......... 940 Tsang, Kan v..................................... 939 25.406 Acres in Arlington Co., United States v.... 931 Twitty v. Illinois............................... 909 Umbach, Richmond Screw Anchor Co. v.............. 919 Underwood, Hilliard v............................ 929 Union National Bank v. Lamb................... 38, 928 Union Trust Co. v. United States................. 940 United States. See also U. S. ex rel. United States, American Surety Co. v............. 930 United States, Berger v.......................... 941 United States, Birtch v.......................... 944 United States, Brooks v........................... 49 United States, Calhoun v......................... 938 United States v. California...................... 952 United States, Campbell v........................ 957 United States, Carter v.......................... 946 United States, Chadwick v........................ 926 United States, Chaney v.......................... 936 United States, Comodor v......................... 925 United States v. Cors............................ 325 United States, Dennis v.......................... 954 United States, Denny v........................... 919 United States, De Normand v...................... 943 United States, Eisler v...................... 912, 958 United States, Empire Packing Co. v.............. 959 United States v. Erreca.......................... 928 United States v. Fauber.......................... 906 United States, Flynn v........................... 944 United States, Francis v..................... 918, 950 XXVI TABLE OF CASES REPORTED. Page United States, Garner v............................ 945 United States v. Gerlach Live Stock Co............. 928 United States, Gould v............................. 945 United States, Grannis v........................... 918 United States, Great Lakes Steel Corp, v........... 952 United States, Griffin v........................... 921 United States, Grimaldi v.......................... 931 United States, Hanna v............................. 936 United States, Hasson v..................... 932, 962 United States, Hicks v............................. 945 United States, Howell v........................ 906, 946 United States v. Interstate Commerce Comm’n.........426 United States v. James J. Stevinson, Inc........... 928 United States v. Jones............................. 920 United States v. Kansas City Life Ins. Co.......... 927 United States, Keating v........................... 959 United States, Kimbrel v........................... 949 United States, Krepper v........................... 936 United States, Linquata v......................... 916 United States v. Louisiana..................... 902, 928 United States, Lowe v........,..................... 944 United States, Maimone v........................... 960 United States, Marion v............................ 944 United States v. National City Lines................ 78 United States, Niznik v............................ 925 United States, Oddo v.............................. 943 United States, Paterno v........................... 957 United States v. Penn Foundry & Mfg. Co............. 198 United States, Peterson v.......................... 925 United States v. Potter............................ 928 United States, Riccardi v.......................... 941 United States, Rockower v.......................... 931 United States, Savorgnan v......................... 914 United States, Sgambati v.......................... 938 United States, Shoe v.............................. 944 United States, Sinclair v.......................... 955 United States, Sioux Tribe of Indians v............ 908 TABLE OF CASES REPORTED. XXVII Page United States, Smith v........................... 137 United States, Snyder v.......................... 931 United States, Standard Oil Co. v................ 293 United States v. Stevinson....................... 928 United States, Stinnett v........................ 957 United States, Story v........................... 947 United States v. Texas........................... 902 United States, Texas v........................... 911 United States v. 3-H Securities Co............... 928 United States, Todorow v......................... 925 United States v. 25.406 Acres in Arlington Co.... 931 United States, Union Trust Co. v................. 940 United States, Wagner v.......................... 944 United States, Wallace v......................... 947 United States, Weber v........................... 934 United States, Whelan v.......................... 931 United States, Whetstone v...................... 941 United States, Williams v........................ 920 United States v. Wittek.......................... 346 United States, Zimmermann v...................... 941 U. S. Court of Appeals, D’Ostroph v.......... 926, 950 U. S. District Court, Rought v................... 936 U. S. District Judge, Beneficial Loan Corp, v.... 541 U. S. ex rel. Deavers, Missouri-K.-T. R. Co. v... 958 U. S. ex rel. Dörfler v. Watkins................. 914 U. S. ex rel. Eichenlaub v. Watkins.............. 955 U. S. ex rel. Rooney v. Ragen.................... 961 U. S. ex rel. Schirrmeister v. Watkins........... 942 U. S. ex rel. Sutton v. Mulcahy.................. 956 U. S. ex rel. Willumeit v. Watkins............... 955 U. S. for use of Schaefer, Continental Co. v..... 940 United States Gypsum Co. v. Glander.............. 951 U. S. Marshal, U. S. ex rel. Sutton v............ 956 United States of Brazil v. General Foods Corp....908 Universal Film Exchanges, Momand v........... 934, 961 Updike v. West................................... 908 Urie v. Thompson................................. 163 XXVIII TABLE OF CASES REPORTED. Page Van Slyke v. Baltimore & Ohio R. Co........... 941 Veatch v. Borthwick........................... 916 Virginia, Becker v............................ 956 Vlavianos, Maryland Drydock Co. v............. 924 Vlavianos v. The Cypress...................... 924 Volkmann v. Ragen............................. 923 Wade v. Hunter.............................. 921 Wage & Hour Adm’r v. Farmers Irrigation Co..... 755 Wagner v. United States....................... 944 Wagner Iron Works v. War Assets Adm’n......... 956 Wakat v. Ragen............................. 909, 934 Walker, Kennedy v.......................... 901, 934 Wallace v. United States...................... 947 War Assets Adm’n, Wagner Iron Works v.......... 956 War Assets Adm’r v. Domestic Commerce Corp..... 682 War Damage Corp., Matson Navigation Co. v...... 939 Warehousemen’s Union v. Labor Board........... 915 Warehouse Union Local 6 v. Labor Board......... 915 Washington, Bird v............................ 911 Washington, Thys v........................ 917,950 Waterman Steamship Corp. v. Dean.............. 924 Watkins, U. S. ex rel. Dörfler v.............. 914 Watkins, U. S. ex rel. Eichenlaub v........... 955 Watkins, U. S. ex rel. Schirrmeister v........ 942 Watkins, U. S. ex rel. Willumeit v............ 955 Watson Bros. Trans. Co., Central Coops, v...... 951 Weade v. Dichmann, Wright & Pugh.............. 801 Weber v. United States........................ 934 Weed, Architect, Inc., Gulfstream Park Assn, v.... 936 West, Updike v................................ 908 Westbrook v. Ragen............................ 960 Western Investment Co., Latta v............... 940 Westover, Noland v¿ . 938 West Virginia Liquor Comm’n, Schiappi v........ 914 West Virginia Paper Co., Cone v............... 920 Weyerhaeuser S. S. Co., Aird v................ 959 Whalen v. Michigan............................ 948 TABLE OF CASES REPORTED. XXIX Page Wheeling Steel Corp. v. Glander................ 562 Whelan v. United States........................ 931 Whetstone v. United States..................... 941 Whiting Stoker Co. v. Chicago Stoker Corp...... 915 Wilde v. Louisiana............................. 932 Wilde v. Wyoming............................... 950 Williams v. New York................... 241, 949,961 Williams v. Overholser......................... 903 Williams v. United States...................... 920 Willis v. Ragen................................ 235 Willumeit v. Watkins........................... 955 Wilmette Park District v. Campbell............. 937 Wilson v. Hinman............................... 927 Wilson & Co., Frank v.......................... 918 Winn v. California............................. 933 Witsell, Smith v............................... 929 Wittek, United States v........................ 346 WJR, The Goodwill Station, F. C. C. v......... 265 Wodehouse, Commissioner v..................... 369 Woods, Cobleigh v.............................. 924 Woods, Graylyn Bainbridge Corp, v.............. 958 Woods v. Interstate Realty Co.................. 535 Wright, Edmondson v............................ 947 Wright, Joyner v............................... 928 Wright, Mezick v............................... 923 Wright v. Ragen........................ 932, 933, 948 Wyoming, Wilde v............................... 950 Young v. Ragen................................. 235 Zimmermann v. United States.................... 941 Zook, California v............................. 921 TABLE OF CASES Cited in Opinions Page A. B. Kirschbaum Co. v. Walling, 316 U. S. 517 759 Adams v. Nagle, 303 U. S. 532 695 Adams Mfg. Co. v. Stören, 304 U. S. 307 668,680 Adamson v. California, 332 U. S. 46 901 Addison v. Holly Hill Co., 322 U. S. 607 126,127 Addyston Pipe Co. v. United States, 175 U. S. 211 312,314 Aero Transit Co. v. Comm’rs, 332 U. S. 495 671, 678 Aetna Ins. Co. v. Kennedy, 301 U. S. 389 150 A. F. of L. v. Watson, 327 U. S. 582 494,497 A. G. Spalding & Bros. v. Edwards, 262 U. S. 66 156,292 Aguilar v. Standard Oil Co., 318 U. S. 724 790,815 Air-Way Corp. v. Day, 266 U. S 71 580 A. L. A. Schechter Corp. v. United States, 295 U. S. 495 671 Alaska Fisheries v. United States, 248 U. S. 78 111, 114,128,132 Alaska Fisheries v. United States, 240 F. 274 113 Alexander Wool Co. v. United States, 334 U. S. 742 215 Allen v. B. & O. R. Co., 114 U. S. 311 710-715,731 Allen v. Trust Co., 326 U. S. 630 743 Allison & Co. v. United States, 296 U. S. 546 438, 444,454,471 Page Allison & Co. v. United States, 12 F. Supp. 862 444, 454 Alpha Portland Co. v. Massachusetts, 268 U. S. 203 667, 678 Aluminum Ore Co. v. Board, 131 F. 2d 485 233 Amalgamated Utility Workers v. Edison Co., 309 U. S. 261 447 American Bank Co. v. Fed. Reserve Bank, 256 U. S. 350 615 American Fed. of Labor v. Watson, 327 U. S. 582 494,497 American Ins. Co. v. Canter, 1 Pet. 511 593,639-643 American Machine, Inc. v. De Bothezat Co., 173 F. 2d 890 264 American Mfg. Co. v. St. Louis, 250 U. S. 459 681 American Mills Co. v. Am. Surety Co., 260 U. S. 360 264 American Stevedores v. Po-rello, 330 U. S. 446 790,792 American Tobacco Co. v. Werckmeister, 207 U. S. 284 401 American Viscose Corp. v. Comm’r, 56 F. 2d 1033 379 American Well Co. v. Layne Co., 241 U. S. 257 597,613 Anderson v. B. & O. R. Co., 89 F. 2d 629; 96 F. 2d 796 166 Anderson Nat. Bank v. Luckett, 321 U. S. 233 488 Angel v. Bullington, 330 U. S. 183 536-538 Anglo-Chilean Corp. v. Alabama, 288 U. S. 218 667,678 XXXI XXXII TABLE OF CASES CITED. Page Anniston Mfg. Co. v. Davis, 301 U. S. 337 275 Anvil Mining Co. v. Humble, 153 U. S. 540 209 Appleby v. New York City, 271 U. S. 364 671 Arenas v. United States, 322 U. S. 419; 60 F. Supp. 411 104 Armour & Co. v. Alton R. Co., 312 U. S. 195 437,466 Armour & Co. v. Wantock, 323 U. S.126 759 Ashland Coal Co. v. United States, 325 U. S. 840 438, 444, 454,469,471 Ashland Coal Co. v. United States, 61 F. Supp. 708 439, 444,454 Ashwander v. T. V. A., 297 U. S. 288 336,345 Associated Indemnity Corp. v. Comm’n, 124 Cal. App. 378 170 Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280 710,715,731 Atchison, T. & S. F. R. Co. v. Reesman, 60 F. 370 195 Atchison, T. & S. F. R. Co. v. Vosburg, 238 U. S. 56 580 Atlantic Cleaners, Inc. v. United States, 286 U. S. 427 764 Atlantic Coast Line v. Florida, 295 U. S. 301 127 Atlantic Lumber Co. v. Comm’r, 298 U. S. 553 679 Atlantic Rfg. Co. v. Virginia, 302 U. S. 22 679 Attorney General v. Adelaide S. S. Co., [1913] A. C. 781 313 Ayers, In re, 123 U. S. 443 580, 687,711,716,730 Ayrshire Collieries Corp. v. United States, 331 U. S. 132 443 Bacon v. Howard, 20 How. 22 46 Bailey v. Central Vt. R. Co., 319 U. S. 350 174,179 Page Bakelite Corp., Ex parte, 279 U. S. 438 608,638-644 Baker v. Moore-McCormack Lines, 57 F. Supp. 207 787 Baldwin Co. v. Howard Co., 256 U. S. 35 639 Baltimore & O. R. Co. v. Brady, 288 U. S. 448 437, 438,458,459,463 Baltimore & O. R. Co. v. Branson, 242 U. S. 623; 128 Md. 678 186 Baltimore & O. R. Co. v. Groeger, 266 U. S. 521 188 Baltimore & O. R. Co. v. Kepner, 314 U. S. 44 57-61, 73,81,82 Bankers Casualty Co. v. M., St. P. & S. S. M. R. Co., 192 U. S. 371 598 Bank of Columbia v. Sweeny, 1 Pet. 567 546 Bank of United States v. Deveaux, 5 Cranch 61 618, 621 Banks v. Ragen, 337 U. S. 235 240 Barker v. Harvey, 181 U. S. 481 114 Barker v. Kraft, 259 Mich. 70 743 Barney v. Baltimore, 6 Wall. 280 606 Barrett Co. v. United States, 273 U. S. 227 206 Bartels v. Birmingham, 332 U. S. 126 791 Bate Refrig. Co. v. Sulzberger, 157 U. S. 1 61 Bates Mfg. Co. v. United States, 303 U. S. 567 593 Beal v. Missouri Pac. R. Co., 312 U. S. 45 496 Becker Steel Co. v. Cummings, 296 U. S. 74 484 Beeler v. Schumacher, 71 F. 2d 831 613 Behlert v. James Foundation, 60 F. Supp. 706 584 Belknap v. Schild, 161 U. S. 10 710,714,717,722,729 Bell v. Hood, 327 U. S. 678 690 TABLE OF CASES CITED. XXXIII Page Benner v. Porter, 9 How. 235 640 Bennett v. Evatt, 145 Ohio St. 587 572 Berizzi Bros. Co. v. The Pesaro, 271 U. S. 562 709 Bernstein v. N. V. Neder-landsche-Am., 173 F. 2d 71 485 Best & Co. v. Maxwell, 311 U. S. 454 668 Bethlehem Motors Corp. v. Flynt, 256 U. S. 421 580 Betts v. Brady, 316 U. S. 455 780-782 Betz, Ex parte, 329 U. S. 672 913,953 Bingham Trust v. Comm’r, 325 U. S. 365 415 Black & White Taxicab Co. v. Brown Co., 276 U. S. 518 608 Blount v. Windley, 95 U. S. 173 554 Board of Education v. Barnette, 319 U. S. 624 29 Board of Liquidation v. Mc- Comb, 92 U. S. 531 710, 715,731 Bomar v. Keyes, 162 F. 2d 136 533 Borax, Ltd. v. Los Angeles, 296 U. S. 10 111, 114 Borden Co. v. Borella, 325 U. S. 679 770 Boutell v. Walling, 327 U. S. 463 ' 760 Bowles v. Willingham, 321 U. S. 503 275 Bradey v. United States, 151 F. 2d 742 52 Bradford v. United States, 331 U. S. 829 139 Brady v. Comm’n, 43 F. 2d 847 453 Brady v. Roosevelt Co., 317 U. S. 575 686,787,789,809 Brady v. Southern R. Co., 320 U. S. 476 175 Brady v. Terminal R. Assn., 303 U. S. 10 195 Brady v. United States, 283 U. S. 804 444,454,470 837446 0—49-----3 Page Brainard v. A., T. & S. F. R. Co., 81 F. Supp. 211 57 Brandt v. United States, 333 U. S. 836 913,954 Bridges v. California, 314 U. S. 252 4,576 Brintons, Ltd. v. Turvey, [1905] A. C. 230 183 Brooks v. Dewar, 313 U. S. 354 698 Brooks v. United States, 337 U. S. 49 594,600,704 Brotherhood of Engineers v. M.-K.-T. R. Co., 320 U. S. 323 598 Brown v. Huger, 21 How. 305 711 Brown v. Walker, 161 U. S. 591 147-149 B. S. Pearsall Butter Co. v. Comm’n, 292 F. 720 308 Bullington v. Angel, 220 N. C. 18 537 Burford v. Sun Oil Co., 319 U. S.315 127 Burnet v. Coronado Co., 285 U. S. 393 617 Burns v. United States, 287 U. S. 216 248 Bute v. Illinois, 333 U. S. 640 781 Butterworth v. Hoe, 112 U. S. 50 639 Buttfield v. Stranahan, 192 U. S. 470 275 Cabell v. Markham, 148 F. 2d 737 764 Caldarola v. Eckert, 332 U. S. 155 671, 785-794,798,804 Callan v. Wilson, 127 U. S. 540 620 Canadian Aviator v. United States, 324 U. S. 215 792 Cantwell v. Connecticut, 310 U. S. 296 3,27 Capital Traction Co. v. Hof, 174 U. S. 1 590,620 Carmichael v. Delaney, 170 F. 2d 239 276 Carson Petroleum Co. v. Vial, 279 U. S. 95 288,291 XXXIV TABLE OF CASES CITED. Page Cary v. Curtis, 3 How. 236 446,627 Case Co. v. Board, 321 U. S. 332 227 Cavanaugh v. Looney, 248 U. S. 453 495 Cell v. Yale & Towne Co., 281 Mich. 564 182 Central Greyhound Lines v. Mealey, 334 U. S. 653 666, 667,680,681 Central States Co-ops. v. Watson Co., 165 F. 2d 392 584 Central Union Trust Co. v. Garvan, 254 U. S. 554 482,484 Chaffin v. C. & 0. R. Co., 80 F. Supp. 957 57 Chaffin v. Taylor, 114 U. S. 309 710,731 Chambers v. Florida, 309 U. S. 227 245 Champlain Realty Co. v. Brattleboro, 260 U. S. 366 291,670,673 Chaplinsky v. New Hampshire, 315 U. S. 568 3,4,26 Chase Securities Corp. v. Donaldson, 325 U. S. 304 554 Chesapeake & O. R. Co. v. Kuhn, 284 U. S. 44 174 Chestnut Hill Turnpike Co. v. Rutter, 4 Serg. & R. 6 694 Chicago v. Fieldcrest Dairies, 316 U. S. 168 489,492-496 Chicago v. Terminiello, 400 Ill. 23 12 Chicago Bd. of Trade v. United States, 246 U. S. 231 313 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 275 Chicago Junction Case, 264 U. S. 258 431,434,439,444 Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S. 472 175 Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418 580 Chicago & N. W. R. Co. v. Nye Co., 260 U. S. 35 580 Chicago, R. I. & P. R. Co. v. Cheek, 105 Okla. 91 186 Page Chisholm v. Georgia, 2 Dall. 419 708 Christian v. A. & N. C. R. Co., 133 U. S. 233 710, 713,714,729,730 Christmas v. Russell, 5 Wall. 290 41-45 Cincinnati Gas Co. v. Western Co., 152 U. S. 200 209 Cities Service Co. v. Dunlap, 308 U. S. 208 533,538 City. See name of city. Clark v. Propper, 169 F. 2d 324 475 Clark v. Tibbetts, 167 F. 2d 397 492 Clark v. Uebersee Finanz-Korp., 332 U. S. 480 477, 482,484 Clark v. Williard, 294 U. S. 211 483 Clinton v. Englebrecht, 13 Wall. 434 640 Clyatt v. United States, 197 U. S. 207 11 Cobbledick v. United States, 309 U. S. 323 546 Coe v. Armour Works, 237 U. S. 413 172 Coe v. Errol, 116 U. S. 517 156, 158,288-292,670-674 Coffman v. Fed. Laboratories, 171 F. 2d 94 722 Cohen v. Beneficial Loan Corp., 337 U. S. 557 534,538 Cohen v. Industrial Loan Corp., 337 U. S. 541 608 Cohens v. Virginia, 6 Wheat. 264 600,604 Collector v. Day, 11 Wall. 113 581 College Point Boat Corp. v. United States, 267 U. S. 12 206 Collett, Ex parte, 337 U. S. 55 77-84 Colorado Interstate Gas Co. v. Comm’n, 324 U. S. 581 502-508,514,518,519 Commissioner v. Affiliated Enterprises, 123 F. 2d 665 394 TABLE OF CASES CITED. XXXV Page Commissioner v. Celanese Corp., 78 U. S. App. D. C. 292 409,418 Commissioner v. Church Estate, 335 U. S. 632 617 Commissioner v. Tower, 327 U. S. 280 735-753 Commonwealth. See also name of Commonwealth. Commonwealth v. Eisenhower, 181 Pa. 470 777 Commonwealth v. Farrell, 187 Pa. 408 777 Commonwealth v. Johnson, 348 Pa. 349 252 Commonwealth v. Reeves, 267 Pa. 361 777 Commonwealth v. Valeroso, 273 Pa. 213 778 Commonwealth ex rel. Mc-Glinn v. Smith, 344 Pa. 41 779 Commonwealth ex rel. Pen-land v. Ashe, 341 Pa. 337 779 Commonwealth Trust Co. v. Bradford, 297 U. S. 613 492 Concordia Ins. Co. v. Illinois, 292 U. S. 535 580 Cone v. West Va. Pulp Co., 330 U. S. 212 809 Connecticut Ins. Co. v. Johnson, 303 U. S. 77 571, 575,578 Connecticut R. & L. Co. v. Palmer, 305 U. S. 493 489 Connolly v. Union Pipe Co., 184 U. S. 540 580 Consolidated Edison Co. v. Board, 305 U. S.197 221,661 Continental Bank v. C., R. I. & P. R. Co., 294 U. S. 648 594 Continental Casualty Co. v. United States, 314 U. S. 527 61 Coray v. Southern Pac. Co., 335 U. S. 520 195 Cornell v. Coyne, 192 U. S. 418 156,288,292 Corn Products Co. v. Comm’n, 324 U. S. 726; 144 F. 2d 211 308 Cortes v. Baltimore Line, 287 U. S.367 815 Page Cosmopolitan Shipping Co. v. McAllister, 337 U. S. 783 803-807,811-816 Cotting v. Kansas City Stockyards Co., 183 U. S. 79 580 Counselman v. Hitchcock, 142 U. S. 547 146 County. See name of county. Coverdale v. Arkansas-La. Co., 303 U. S. 604 670 Cox v. Hickman, 8 H. L. Cas. 268 742,750 Cox v. Lykes Bros., 237 N. Y. 376 815 Cox v. New Hampshire, 312 U. S. 569 31 Craig v. Harney, 331 U. S. 367 4 Crane v. Hahlo, 258 U. S. 142 71 Creason v. Harding, 344 Mo. 452 172 Crocker v. United States, 240 U. S.74 205 Crozier v. Fried, 224 U. S. 290 722,730 Crutcher v. Kentucky, 141 U. S. 47 677 Cumberland Coal Co. v. Board, 284 U. S. 23 580 Cunningham v. Macon & B. R. Co., 109 U. S. 446 698, 710,714,729 Curtis v. Rives, 123 F. 2d 936 621 Dahn v. Davis, 258 U. S. 421 53 Dahnke-Walker Co. v. Bondurant, 257 U. S. 282 676 Daniel v. Family Ins. Co., 336 U. S. 220 551 Daniel Ball, The, 10 Wall. 557 671,672 Dartmouth College Case, 4 Wheat. 518 578 David Lupton’s Sons Co. v. Auto. Club, 225 U. S. 489 536 Davis, The, 10 Wall. 15 711 Davis v. Wolfe, 263 U. S. 239 195 Decatur v. Paulding, 14 Pet. 497 704 XXXVI TABLE OF CASES CITED. Page Decker v. Gardner, 124 N. Y. 334 487 De Jonge v. Oregon, 299 U. S. 353 4 De Laval Turbine Co. v. United States, 284 U. S. 61 206 DiCaprio v. N. Y. Cent. R. Co., 231 N. Y. 94 195 Dichmann, Wright & Pugh v. Weade, 168 F. 2d 914 805 Di Giovanni v. Camden Ins. Assn., 296 U. S. 64 495 Di Maggio v. Stop Nut Corp., 162 F. 2d 546 525 District of Columbia v. Clawans, 300 U. S. 617 620 Dize v. Maddrix, 324 U. S. 697; 144 F. 2d 584 760 Dobson v. United States, 27 F. 2d 807 52 Dollar Savings Bank v. United States, 19 Wall. 227 360 Douglas v. Jeannette, 319 U. S. 157 30 Dow v. Ickes, 74 App. D. C. 319 120-123,129 Downes v. Bidwell, 182 U. S. 244 606 Drennen v. London Co., 113 U. S. 51 742,743 Dunn, Matter of, 212 U. S. 374 615 Duze v. Woolley, 72 F. Supp. 422 583 Edgington v. Fitzmaurice, 29 L. R. Ch. Div. 459 743 Eggleston v. Republic Corp., 47 F. Supp. 658 787 Eichel, In re, 333 U. S. 865 913, 954 Eisner v. Macomber, 252 U. S. 189 379,740 El Dorado Works v. United States, 328 U. S. 12 433, 442,465 Ellis v. Union Pac. R. Co., 329 U. S. 649 175 Empresa Siderurgica v. Merced, 337 U. S. 154 288,292 Enelow v. N. Y. Ins. Co., 293 U. S. 379 256-262 Page Erie R. Co. v. Tompkins, 304 U. S. 64 174, 490, 532-540, 555-560, 580, 608, 622, 626, 636, 651. Estate. See name of estate. Ettelson v. Metropolitan Ins. Co., 317 U. S. 188 256-263 Evans v. Nierstheimer, 337 U. S. 235 240 Everett v. Truman, 334 U. S. 824 913,954 Everett v. United States, 284 F. 203 815 Excelsior Motor Co. v. Sound Equip., Inc., 73 F. 2d 725 307 Ex parte. See name of party. Fahey, Ex parte, 332 U. S. 258 72 Fairbank v. United States, 181 U. S. 283 156 Fairport, P. & E. R. Co. v. Meredith, 292 U. S. 589 191, 195 Farmers’ Loan Co. v. Lake St. R. Co., 177 U. S. 51 492 Fashion Originators’ Guild v. Comm’n, 312 U. S. 457 300, 302,308,309 Fauntleroy v. Lum, 210 U. S. 230 41,42,45 Federal Communications Comm’n v. Nat. Broadcasting Co., 319 U. S. 239 278 Federal Communications Comm’n v. Pottsville Co., 309 U. S. 134 272,283 Federal Communications Comm’n v. WOKO, 329 U. S. 223 901 Federal Credit Bank v. Mitchell, 277 U. S. 213 615 Federal Housing Adm’n v. Burr, 309 U. S. 242 723 Federal Power Comm’n v. Hope Nat. Gas Co., 320 U. S. 591 502,507,520 Federal Power Comm’n v. Pacific Power Co., 307 U. S. 156 497 TABLE OF CASES CITED. XXXVII Page Federal Radio Comm’n v. General Elec. Co., 281 U. S. 464 608,638 Federal Radio Comm’n v. Nelson Bros., 289 U. S. 266 608 Federal Trade Comm’n v. Bunte Bros., 312 U. S. 349 513 Federal Trade Comm’n v. Curtis Pub. Co., 260 U. S. 568 303,320 Federal Trade Comm’n v. Goodyear Tire Co., 304 U. S. 257 225 Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37 300 Federal Trade Comm’n v. Sinclair Rfg. Co., 261 U. S. 463 303 Feely v. Schupper System, 72 F. Supp. 663 583,584 Fenner v. Boykin, 271 U. S. 240 495 Feuchtwanger v. Central Bank, 288 N. Y. 342 484 Fidelity Union Trust Co. v. Field, 311 U. S. 169 490 Fields v. Stokley, 99 Pa. 306 724 Fink v. Shepard S. S. Co., 337 U. S. 810 800,815 Fink v. Shepard S. S. Co., 183 Ore. 373 812 Fishgold v. Sullivan Corp., 328 U. S. 275 525,526 Fitts v. McGhee, 172 U. S. 516 715,716,730 Fletcher v. Comm’r, 164 F. 2d 182 753 Ford Motor Co. v. Beau-champ, 308 U. S. 331 679 Ford Motor Co. v. Dept, of Treasury, 323 U. S. 459 731 Franks Bros. Co. v. Board, 321 U. S. 702 232 Frazier v. United States, 335 U. S. 497 620 Freeman v. Hewit, 329 U. S. 249 666-668 F. S. Royster Co. v. Virginia, 253 U. S. 412 580 Page Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 667, 680 Gant v. Oklahoma City, 289 U. S. 98 173 Gardiner v. Agwilines, Inc., 29 F. Supp. 348 787 Gast Realty Co. v. Schneider Co., 240 U. S. 55 580 Gauweiler v. Stop Nut Corp., 162 F. 2d 448 525 Gayler v. Wilder, 10 How. 477 419 Gaynor v. Agwilines, Inc., 169 F. 2d 612 814 Gemsco v. Walling, 324 U. S. 244 61 General Am. Tank Corp. v. El Dorado Co., 308 U. S. 422 438,465 General Aniline Corp. v. Comm’r, 139 F. 2d 759 408, 418 General Committee v. M.-K.-T. R. Co., 320 U. S. 323 598 General Oil Co. v. Crain, 209 U. S. 211 731 General Talking Pict. Corp. v. Am. T. & T. Co., 18 F. Supp. 650 307 Gentry v. Swann Co., 234 Ala. 313 182 George Allison & Co. v. United States, 296 U. S. 546 438,444,454,471 George Allison & Co. v. United States, 12 F. Supp. 862 444,454 Georgia v. Madrazo, 1 Pet. 110 710,711,729 Gibson v. Reynolds, 172 F. 2d 95 687 Gilchrist v. Interborough Co., 279 U. S. 159 495 Gitlow v. New York, 268 U. S. 652 29 Glaeser v. Acacia Mut. Life Assn., 55 F. Supp. 925 583 Glass v. Ickes, 117 F. 2d 273 687 Globe Liquor Co. v. San Ro- man, 332 U. S. 571 809 XXXVIII TABLE OF CASES CITED. Page Goldberg v. Daniels, 231 U. S. 218 700,725-729 Goldsmith v. Comm’r, 143 F. 2d 466 411,423 Goltra v. Weeks, 271 U. S. 536 699,702,710, 720,721,725-727,732 Gordon v. United States, 2 Wall. 561 652 Gordon v. United States, 117 U. S. 697 630 Gorman v. Washington University, 316 U. S. 98 40 Gospel Army v. Los Angeles, 331 U. S. 543 172 Governor of Georgia v. Madrazo, 1 Pet. 110 710, 711,729 Graham v. West Virginia, 224 U. S. 616 246 Graves v. O’Keefe, 306 U. S. 466 581 Grays Harbor Co. v. Coats-Fordney Co., 243 U. S. 251 173 Great Lakes Steel Corp. v. United States, 337 U. S. 952 445,462 Great Lakes Steel Corp. v. United States, 81 F. Supp. 450 445 Great Northern Ins. Co. v. Read, 322 U. S. 47 724,731 Great Northern R. Co. v. Sutherland, 273 U. S. 182 477, 482,484 Great Northern R. Co. v. United States, 277 U. S. 172 453 Greene v. L. & I. R. Co., 244 U. S. 499 731 Grether v. Wright, 75 F. 742 639 Griffin v. McCoach, 313 U. S. 498 538,554 Grisar v. McDowell, 6 Wall. 363 711 Grosjean v. Am. Press Co., 297 U. S. 233 621 Guaranty Trust Co. v. Blodgett, 287 U. S. 509 666 Page Guaranty Trust Co. v. York, 326 U. S. 99 532, 533,538,555-559,650 Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150 580 Gulf Oil Corp. v. Gilbert, 330 U. S. 501 57 Gully v. First Nat. Bank, 299 U. S. 109 597, 613,615,642 Guy v. Baltimore, 100 U. S. 434 668 Gwin v. United States, 184 U. S. 669 71 Gwin, White & Prince v. Henneford, 305 U. S. 434 668 Haavik v. Alaska Packers, 263 U. S. 510 125 Hagood v. Southern, 117 U. S. 52 710,729 Hague v. C. I. O., 307 U. S. 496 30,621 Haire v. Rice, 204 U. S. 291 10 Hale v. Bimco Co., 306 U. S. 375 668 Hammond v. Schappi Bus Line, 275 U. S.. 164 162 Hanover Ins. Co. v. Harding, 272 U. S. 494 571, 572,580 Harley v. United States, 198 U. S. 229 718 Harrisonville v. Dickey Co., 289 U. S. 334 126,500 Hartford-E m p i r e Co. v. United States, 323 U. S. 386 317 Hartford Ins. Co. v. Harrison, 301 U. S. 459 580 Harvester Co. v. Dept, of Treasury, 322 U. S. 340 666, 668 Harvester Co. v. Evatt, 329 U. S. 416 571,679,681 Harvester Co. v. Kentucky, 234 U. S. 216 344 Haverfield Co. v. Evatt, 143 Ohio St. 58 568 Hawk, Ex parte, 321 U. S. 114 238 Hawks v. Hamill, 288 U. S. 52 495,716,730 TABLE OF CASES CITED. XXXIX Page Hayburn’s Case, 2 Dall. 409 615, 630,647 Hayes v. C., R. I. & P. R. Co., 79 F. Supp. 821 57,77 Hebert v. Louisiana, 272 U. S.312 4 Hecht Co. v. Bowles, 321 U. S. 321 500 Heckman v. Sutter, 128 F. 393 115 Heike v. United States, 227 U. S. 131 147-149 Helvering v. Clifford, 309 U. S. 331 740,745-747 Helvering v. Davis, 301 U. S. 619 576 Helvering v. Gregory, 69 F. 2d 809 410 Helvering v. Griffiths, 318 U. S. 371 617 Helvering v. Hallock, 309 U. S. 106 417 Helvering v. Horst, 311 U. S. 112 745 Helvering v. Stockholms Bank, 293 U. S. 84 377-380 Helvering v. Stuart, 317 U. S. 154 487,490 Henry v. Dick Co., 224 U. S. 1 297 Hepburn & Dundas v. Ell- zey, 2 Cranch 445 584-587, 604, 606, 619, 623-625 Hepner v. United States, 213 U. S. 103 12 Herbert v. Bicknell, 233 U. S. 70 488 Herndon v. C., R. I. & P. R. Co., 218 U. S. 135 580,731 Higgins v. Smith, 308 U. S. .473 753 Hill v. Atlantic Coast Line, .336 U. S. 911 178 Hill v. United States, 149 U. S. 593 718 Hillsborough v. Cromwell, .326 U. S. 620 572 Hinckley v. Pittsburgh Steel Co., 121 U. S. 264 211 Hodges v. Easton, 106 U. S. 408 150 Hodgson v. Bowerbank, 5 Cranch 303 637 Page Hood & Sons v. Md. Casualty Co., 206 Mass. 223 182 Hooe v. Jamieson, 166 U. S. 395 606 Hooe v. United States, 218 U. S.322 701,703 Hooe v. Werner, 166 U. S. 399 606 Hooven & Allison Co. v. Evatt, 324 U. S. 652 671 Hope Ins. Co. v. Boardman, 5 Cranch 57 618 Hopkins v. Clemson College, 221 U. S. 636 694,710, 714, 717, 722, 729, 732 Hougland v. Comm’r, 166 F. 2d 815 753 Howard v. Stillwell & Bierce Co., 139 U. S. 199 208 H. P. Hood & Sons v. Md. Casualty Co., 206 Mass. 223 182 Huddleston v. Dwyer, 322 U. S. 232 534 Hughes Bros. Co. v. Minnesota, 272 U. S. 469 288-292 Hull v. Phila. & Reading R. Co., 252 U. S. 475 791 Hurle’s Case, 217 Mass. 223 182, 184 Hurley v. Kincaid, 285 U. S. 95 697 Hurtado v. California, 110 U. S. 516 901 Hust v. Moore-McCormack Lines, 328 U. S. 707 785- 792, 804,812 Ickes v. Fox, 300 U. S. 82 691, 702, 710, 721, 725, 726, 732. Illinois Cent. R. Co. v. Minnesota, 309 U. S. 157 575 Illinois Nat. Gas Co. v. Ill. Serv. Co., 314 U. S. 498 502 Indiana Farmer’s Guide v. Prairie Co., 293 U. S. 268 300 Industrial Comm’n v. Brown, 92 Ohio St. 309 184 Industrial Comm’n v. Roth, 98 Ohio St. 34 184 Inland Empire Council v. Millis, 325 U. S. 697 275 XL TABLE OF CASES CITED. Page In Matter of. See name of party. In re. See name of party. Insurance Co. v. Bailey, 13 Wall. 616 264 Insurance Co. v. New Orleans, 1 Woods 85 577-579 International Business Mach. Corp. v. United States, 298 U. S. 131 300,302 International Harvester Co. v. Dept, of Treasury, 322 U. S. 340 666,668 International Harvester Co. v. Evatt, 329 U. S. 416 571, 679,681 International Harvester Co. v. Kentucky, 234 U. S. 216 344 International Postal Supply Co. v. Bruce, 194 U. S. 601 714 International Salt Co. v. United States, 332 U. S. 392 300,304,307,324 International Shoe Co. v. Washington, 326 U. S. 310 575 International Textbook Co. v. Pigg, 217 U. S. 91 677 Interstate Commerce Comm’n v. C., N. O. & T. P. R. Co., 167 U. S. 479 455 Interstate Commerce Comm’n v. D., L. & W. R. Co., 220 U. S. 235 807 Interstate Commerce Comm’n v. D., G. H. & M. R. Co., 167 U. S. 633 674 Interstate Commerce Comm’n v. L. & N. R. Co., 227 U. S. 88 434 Interstate Commerce Comm’n v. Parker, 326 U. S. 60 675 Interstate Commerce Comm’n v. United States, 289 U. S. 385 436 Interstate Nat. Gas Co. v. Comm’n, 331 U. S. 682 502, 513,518 Interstate Oil Line Co. v. Stone, 203 Miss. 715 669-671 In the Matter of. See name of party. Page Irwin v. Gavit, 268 U. S. 161 378 Iwanicki v. Comm’n, 104 Ore. 650 183 Jamison v. Encarnacion, 281 U. S. 635 182 Jamison v. Texas, 318 U. S. 413 30 J. D. Adams Mfg. Co. v. Stören, 304 U. S. 307 668,680 Jefferson v. United States, 77 F. Supp. 706 52 Jeffery-DeWitt Co. v. Board, 91 F. 2d 134 225 Jeffreyes v. Sager Co., 233 N. Y. 535; 198 App. Div. 446 183 J. I. Case Co. v. Board, 321 U. S. 332 227 John E. Berwind, The, 56 F. 2d 13 815 Johnson v. Meyers, 54 F. 417 40 Johnson v. Shaughnessy, 336 U. S. 806 276 Johnson v. United States, 225 U. S. 405 621 Johnson v. United States, 318 U. S. 189 150 Johnson v. Zerbst, 304 U. S. 458 150 Johnson & Wimsatt v. Hazen, 69 App. D. C. 151 276 Jordon v. Bondy, 114 F. 2d 599 621 Joseph v. Carter & Weekes Co., 330 U. S. 422 679,680 Josephberg v. Markham, 152 F. 2d 644 484 Joy Oil Co. v. Comm’n, 337 U. S. 286 676 Juragua Iron Co. v. United States, 212 U. S. 297 718 Kansas City S. R. Co. v. Road Dist., 256 U. S. 658 580 Kawananakoa v. Polyblank, 205 U. S. 349 723 Keeney v. Home Ins. Co., 71 N. Y. 396 487 Keifer & Keifer v. R. F. C., 306 U. S. 381 709 Keller v. Potomac Elec. Co., 261 U. S. 428 608, 616,629,630, 639,652 TABLE OF CASES CITED. XLI Page Kelley v. Rhoads, 188 U. S. 1 673 Kendall v. United States, 12 Pet. 524 590,627 Kennecott Copper Corp. v. Comm’n, 327 U. S. 573 724, 731 Kennedy v. Mullins, 155 Va. 166 743 Kenney v. Supreme Lodge, 252 U. S. 411 45 Kentucky Finance Co. v. Paramount Corp., 262 U. S. 544 580 Kilpatrick v. Tex. & P. R. Co., 337 U. S. 75 60,72,80 Kirschbaum Co. v. Walling, 316 U. S. 517 759 Klaxon Co. v. Stentor Co., 313 U. S. 487 538,554,560 Kline v. Burke Co., 260 U. S. 226 492,607,627,638 Knight v. U. S. Land Assn., 142 U. S. 161 111 Korematsu v. United States, 323 U. S. 214 34 Koury v. Stop Nut Corp., 162 F. 2d 544 525 Kovacs v. Cooper, 336 U. S. 77 30 Labor Board v. Atkins & Co., 331 U. S. 398 216 Labor Board v. Auburn Foundry, 119 F. 2d 331 660 Labor Board v. Cheney Lumber Co., 327 U. S. 385 446 Labor Board v. Columbian Enamel. Co., 306 U. S. 292 224 Labor Board v. Express Pub. Co., 312 U. S. 426 227 Labor Board v. Hearst Publications, 322 U. S. Ill 790, 793 Labor Board v. Mackay Radio Co., 304 U. S. 333 275 Labor Board v. Nevada Copper Corp., 316 U. S. 105 221 Labor Board v. Newark Ledger Co., 120 F. 2d 262 225 Labor Board v. Penn. Greyhound Lines, 303 U. S. 261 225 Labor Board v. Robbins Tire Co., 161 F. 2d 798 659 Page Labor Board v. Sands Mfg. Co., 306 U. S. 332 224 La Fitte v. Salisbury, 43 Colo. 248 44 Land v. Dollar, 330 U. S. 731 685,690,698,702,710, 714,717,721-728, 732 Lankford v. Platte Works, 235 U. S. 461 710,716,729 Larkin Packer Co. v. Hinderliter Co., 60 F. 2d 491 40 Lauf v. Shinner & Co., 303 U. S. 323 627 Lawson v. Suwannee Co., 336 U. S. 198 52,764 Leary v. United States, 14 Wall. 607 788 Lehigh Valley R. Co. v. United States, 243 U. S. 444 807 Leisy v. Hardin, 135 U. S. 100 580 Lemke v. Farmers Grain Co., 258 U. S. 50 676 Lewis v. Ragen, 337 U. S. 235 240 Liggett Co. v. Lee, 288 U. S. 517 580 Lilly v. Grand Trunk W. R. Co., 317 U. S. 481 167, 182,188-191,195,216 Lincoln Nat. Ins. Co. v. Read, 325 U. S. 673 575 Lockerty v. Phillips, 319 U. S. 182 600,627 Locomotive Engineers v. M.-K.-T. R. Co., 320 U. S. 323 598 Loftus v. Illinois, 334 U. S. 804 237,238 Londoner v. Denver, 210 U. S.373 275 Louisiana v. Garfield, 211 U. S. 70 725,729 Louisiana v. Jumel, 107 U. S. 711 710,729 Louisiana v. McAdoo, 234 U. S. 627 710,716,729,730 Louisiana ex rel. N. Y. Guaranty Co. v. Steele, 134 U. S. 230 710,713,729 Louisiana Nav. Co. v. Comm’n, 226 U. S. 99 173 XLII TABLE OF CASES CITED. Page Louis K. Liggett Co. v. Lee, 288 U. S. 517 580 Louisville, C. & C. R. Co. v. Letson, 2 How. 497 618,621 Louisville Gas Co. v. Coleman, 277 U. S. 32 580 Louisville & N. R. Co. v. Layton, 243 U. S. 617 195 Louisville & N. R. Co. v. Mottley, 211 U. S. 149 598 Lovell v. Griffin, 303 U. S. 444 30 Lovell v. Newman & Son, 227 U. S. 412 611 Lucas v. Earl, 281 U. S. Ill 740, 745,750 Luckenbach S. S. Co. y. United States, 272 U. S. 533 207 Ludecke v. Watkins, 335 U. S. 160 216 Ludwig v. Western Union Co., 216 U. S. 146 731 Lupton’s Sons Co. v. Auto. Club, 225 U. S. 489 536 Lusthaus v. Comm’r, 327 U. S. 293 735,737,748 Lyeth v. Hoey, 305 U. S. 188 410, 485,751 Lynch v. United States, 292 U. S. 571 642 MacGregor v. State Mutual Co., 315 U. S. 280 487 Maine v. Grand Trunk R. Co., 142 U. S. 217 666,667,680 Mann v. Tacoma Land Co., 153 U.S. 273 111,115 Marbury v. Madison, 1 Cranch 137 630 Marino v. Ragen, 332 U. S. 561 237 Markham v. Allen, 326 U. S. 490 482,490-493 Markham v. Cabell, 326 U. S. 404 ' 764 Markham v. Taylor, 70 F. Supp.202 475 Marsh v. Alabama, 326 U. S. 501 30 Mars, Inc., Ex parte, 320 U. S. 710 72 Martin v. Hunter’s Lessee, 1 Wheat. 304 607,643 Page Martin v. Mott, 12 Wheat. 19 101 Martin v. Struthers, 319 U. S. 141 30 Maryland Ins. Co. v. Woods, 6 Cranch 29; 7 Cranch 402 618 Massachusetts v. United States, 333 U. S. 611 537 Masterton v. Mayor, 7 Hill 61 209 Matson Nav. Co. v. Board, 297 U.S.441 679,951 May Dept. Stores Co. v. Board, 326 U. S. 376 225, 227,233 Mayflower Farms v. Ten Eyck, 297 U. S. 266 580 Mayor, The, v. Cooper, 6 Wall. 247 637 McAllister v. Cosmopolitan Co., 169 F. 2d 4 786 McAllister v. United States, 141 U. S. 174 640 McBurney v. Carson, 99 U. S. 567 71 McCardle, Ex parte, 7 Wall. 506 655 McComb v. Super-A Works, 165 F. 2d 824 761 McCulloch v. Maryland, 4 Wheat. 316 586,603,647 McDonald v. Mabee, 243 U. S. 90 489 McElmoyle v. Cohen, 13 Pet. 312 42,46 McFarland v. Am. Sugar Co., 241 U. S. 79 580 McGarry v. Bethlehem, 45 F. Supp. 385 584 McGlinn v. Smith, 344 Pa. 41 779 McGovern v. New York, 229 U. S. 363 341 McIntire v. Wood, 7 Cranch 504 627 McLeod v. Threlkeld, 319 U. S. 491 671 Matter of. See name of party. Medo Photo Corp. v. Board, 321 U. S. 678 221,225 Meehan v. Valentine, 145 U. S. 611 743 TABLE OF CASES CITED. XLIII Page Meeker & Co. v. Lehigh V. R. Co., 236 U. S. 412 435,458 Meeker Coop. Power Assn. v. Phillips, 158 F. 2d 698 761 Meigs v. McClung’s Lessee, 9 Cranch 11 711 Memphis Nat. Gas Co. v. Beeler, 315 U. S. 649 679 Memphis Nat. Gas Co. v. Stone, 335 U. S. 80 665- 669,676-681 Merchants Loan Co. v. Smie- tanka, 255 U. S. 509 740 Mercoid Corp. v. Mid-Con- tinent Co., 320 U. S. 661 317 Meredith v. Winter Haven, 320 U. S. 228 490,492 Messenger v. Anderson, 225 U. S. 436 172 Metropolitan Ins. Co. v. Sanborn, 34 Mise. 531 487 Meyer v. Hot Springs Co., 169 F. 628 40 Milch v. United States, 332 U. S. 789 913,953 Miles v. Ill. Cent. R. Co., 315 U. S. 698 57,73 Milk Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 671 Miller v. Am. Steel Co., 90 Conn. 349 184 Miller v. Horton, 152 Mass. 540 724 Miller v. United States, 159 F. 2d 997 106,115 Milliken v. Meyer, 311 U.S. 457 488 Mine Safety Co. v. Forrestal, 326 U. S. 371 693,730 Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26 574, 579 Minneapolis & St. L. R. Co. y. Gotschall, 244 U. S. 66 195 Minnesota v. Blasius, 290 U. S.1 290 Minnesota v. Hitchcock, 185 U. S.373 687 Minnesota v. Nat. Tea Co., 309 U. S. 551 44,48 Minnesota v. Probate Court, 309 U. S. 270 666 Page Minnesota v. United States, 305 U.S. 382 729 Mississippi Railroad Comm’n v. Ill. C. R. Co., 203 U. S.335 710,731 Missouri v. Kansas Gas Co., 265 U. S. 298 510 Mitchell v. Reichelderfer, 61 App. D. C. 50 276 Mitchell Coal Co. v. Penn. R. Co., 230 U. S. 247 438, 458,465 Molnar v. Comm’r, 156 F. 2d 924 417 Monaco v. Mississippi, 292 U. S. 313 590,594,708 Monongahela Nav. Co. v. United States, 148 U. S. 312 331 M o n t a 1 e t v. Murray, 4 Cranch 46 637 Morgan v. United States, 298U. S. 468 276 Morgan v. Virginia, 328 U. S. 373 581 Moore v. C. & O. R. Co., 291 U. S. 205 189 Morris v. Jones, 329 U. S. 545 39,42,45 Morrisdale Coal Co. v. Penn. R. Co., 230 U. S. 304 465 Morrison v. Work, 266 U. S. 481 710,715,716,729,730 Mossman v. Higginson, 4 Dall. 12 637 Murdock v. Memphis, 20 Wall. 590 10 Murray v. Wilson Co., 213 U. S.151 710,729 Murray’s Lessee v. Hoboken Co., 18 How. 272 638 Muskrat v. United States, 219 U. S. 346 630 Musser v. Utah, 333 U. S. 95 30 Mutual Brewing Co. v. N. Y. & C. P. F. Co., 16 App. Div. 149 487 Mutual Health Assn. v. Dailey, 75 F. Supp. 832 584 Myers v. United States, 272 U. S. 52 725 Napier v. Atlantic Coast Line, 272 U. S. 605 191,192 XLIV TABLE OF CASES CITED. Page Nassau Rfg. Works v. United States, 266 U. S. 101 593 National Carbide Corp. v. Comm’r, 336 U. S. 422 740 National Cash Reg. Co. v. Evatt, 145 Ohio St. 597 568 National Exchange Bank v. Peters, 144 U. S. 570 71 National Ins. Co. v. Tidewater Co., 337 U. S. 582 951 National Labor Relations Board. See Labor Board. Nealis v. Am. Tube Co., 150 N. Y. 42 487 Neild v. District of Columbia, 71 App. D. C. 306 602 Nelson v. Sears, Roebuck & Co., 312 U. S. 359 666 Newhall v. Sanger, 92 U. S. 761 114 New Hampshire v. Louisiana, 108 U. S. 76 708 New Mexico v. Lane, 243 U. S. 52 730 New Orleans v. Winter, 1 Wheat. 91 606,624 New York Cent. Securities Corp. v. United States, 287 U. S. 12 311 New York ex rei. Penn. R. Co. v. Knight, 192 U. S. 21 674,678 New York Guaranty Co. v. Steele, 134 U. S. 230 710, 713,729 Ng Fung Ho v. White, 259 U. S. 276 276,446 Niagara v. Cordes, 21 How. 7 807 Nippert v. Richmond, 327 U. S. 416 581,668 Noble v. Eicher, 143 F. 2d 1001 621 Noble v. Union River Co., 147 U. S. 165 691, 702,715,728,732 Nolan v. General Seafoods Corp., 112 F. 2d 515 787 Norland, The, 101 F. 2d 967 787 North Carolina v. Temple, 134 U. S. 22 691, 710,713,714,729 Page Northwestern Brewers Co. v. Vorhees, 356 Mo. 699 43-47 Northwestern Shoshone Indians v. United States, 324 U. S. 335 102,104 Norwegian Nitrogen Co. v. United States, 288 U. S. 294 513 Nunn v. C., M., St. P. & P. R. Co., 80 F. Supp. 745 57,77 O’Donoghue v. United States, 289 U. S. 516 590, 592, 601, 608-610, 616, 638, 639. Ohio Bell Tel. Co. v. Comm’n, 301 U. S. 292 150 Oliver, In re, 333 U. S. 257 245 Opp Cotton Mills v. Adm’r, 312 U. S. 126 275 Oregon v. Hitchcock, 202 U. S. 60 710,729 Orient Ins. Co. v. Daggs, 172 U. S. 557 621 Osborn v. U. S. Bank, 9 Wheat. 738 580, 614,710,711,729,731 Osceola, The, 189 U. S. 158 815 Ostrow v. Brilliant Co., 66 F. Supp. 593 584 Ott v. Miss. Valley Barge Line, 336 U. S. 169 575 Owens v. Henry, 161 U. S. 642 44,47 Owens v. Union Pac. R. Co., 319 U. S. 715 180 Ozark Pipe Line Corp. v. Monier, 266 U. S. 555 667,677 Pacific Railroad Removal Cases, 115 U. S. 1 615 Pacific States Box Co. v. White, 296 U. S. 176 101 Pacific Tel. & Tel. Co. v. Comm’n, 297 U. S. 403 679 Packard v. Banton, 264 U. S. 140 99 Packard Motor Co. v. Board, 330 U. S. 485 61 Palmer v. Hoffman, 318 U. S. 109 490,533,538 Panama R. Co. v. Johnson, 264 U. S. 375 787 TABLE OF CASES CITED. XLV Page Panhandle Pipe Line Co. v. Comm’n, 324 U. S. 635 519, 520 Panhandle Pipe Line Co. v. Comm’n, 332 U. S. 507 502, 503,518 Parker v. Brown, 317 U. S. 341 99,100 Parr v. United States, 172 F. 2d 462 53 Pascarella v. N. Y. Cent. R. Co., 81 F. Supp. 95 57 Paul v. Virginia, 8 Wall. 168 581, 621 Payne v. Cent. Pac. R. Co., 255 U. S.228 699,715,728,732 Payne v. Wright Corp., 162 F. 2d 549 525 Pearsall Butter Co. v. Comm’n, 292 F. 720 308 Peirce v. New Hampshire, 5 How. 504 580 Penland v. Ashe, 341 Pa. 337 779 Pennekamp v. Florida, 328 U. S. 331 576 Pennington v. Fourth Nat. Bank, 243 U. S. 269 488 Pennoyer v. McConnaughy, 140 U. S. 1 710,716,731 Pennoyer v. Neff, 95 U. S. 714 488 Pennsylvania v. Williams, 294 U. S. 176 495 Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51 248 Pennsylvania Gas Co. v. Comm’n, 252 U. S. 23 510 Pennsylvania R. Co. v. Knight, 192 U. S. 21 674,678 Pennsylvania R. Co. v. Weber, 257 U. S. 85 435 People v. Fox, 202 N. Y. 616 252 People v. Johnson, 252 N. Y. 387 247,252 People v. Loftus, 400 Ill. 432 237-240,935 People v. Shoffner, 400 Ill. 174 237,935 People v. Stein, 96 Mise. 507 252 People v. Wilson, 399 Ill. 437 237,936 Perkins v. Elg, 307 U. S. 325 712 Page Perkins v. Lukens Steel Co., 310 U. S. 113 693 Perry v. A., T. & S. F. R. Co., 82 F. Supp. 912 57 Pesaro, The, 277 F. 473 709 Petroleum Exploration, Inc. v. Comm’n, 304 U. S. 209 98 Philadelphia v. Cline, 158 Pa. Super. 179 778 Philadelphia Co. v. Stimson, 223 U. S. 605 99,690,699, 700,708,710,716,731 Philadelphia & R. R. Co. v. Hancock, 253 U. S. 284 675 Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307 209 Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 694 Phillips v. Comm’r, 283 U. S. 589 275 Phillips v. United States, 321 U. S.246 443 Photo Drama Co. v. Social Film Corp., 213 F. 374 420-424 Photo Drama Co. v. Social Film Corp., 220 F. 448 424 Pick Mfg. Co. v. General Motors Corp., 299 U. S. 3 303, 304,308 Pick Mfg. Co. v. General Motors Corp., 80 F. 2d 641 308 Pieczonka v. Pullman Co., 89 F. 2d 353 169,170 Pitts v. Peak, 60 App. D. C. 195 609 Poindexter v. Greenhow, 114 U. S. 270 699,710,713,731 Polish Relief Comm’n v. Banca, 288 N. Y. 332 484 Pope v. United States, 323 U. S. 1 593,600 Porter v. Warner Co., 328 U. S.395 500 Portsmouth Land Co. v. United States, 260 U. S. 327 701 Postum Cereal Co. v. Cal. Fig Co., 272 U. S. 693 608, 616,630 Power Mfg. Co. v. Saunders, 274 U. S. 490 572,580 XLVI TABLE OF CASES CITED. Page Pownall v. United States, 334 U. S. 742 215 Price v. Johnston, 334 U. S. 266 779 Princess Lida v. Thompson, 305 U. S. 456 492 Principality of Monaco v. Mississippi, 292 U. S. 313 590, 594,708 Procter & Gamble Co. v. United States, 225 U. S. 282 439,442 Propeller Niagara, The, v. Cordes, 21 How. 7 807 Propper v. Buck, 263 App. Div. 807, 948; 178 Mise. 76; 106 N. Y. L. J. No. 101, Oct. 29, 1941 476 Propper v. Taylor, 270 App. Div. 890; 186 Mise. 70, 72 476 Prout v. Starr, 188 U. S. 537 731 Prudence Realization Corp. v. Geist, 316 U. S. 89 484 Prudential Ins. Co. v. Cheek, 259 U. S. 530 29 Public Service Co. v. Cor-boy, 250 U. S. 153 731 Public Utilities Comm’n v. Attleboro Co., 273 U. S. 83 510 Public Utilities Comm’n v. United Gas Co., 317 U. S. 456 489,494,503,513,515 Puerto Rico v. Russell & Co., 288 U. S. 476 597, 613,615,642 Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 580 Queenside Hills Co. v. Saxl, 328 U. S. 80 575 Raff el v. United States, 271 U. S. 494 150 Ragan v. Merchants Trans. Co., 337 U. S. 534 558 Railroad Comm’n v. Pullman Co., 312 U. S. 496 489- 496 Railroad Co. v. Jones, 95 U. S. 439 179 Railway Express Agency v. New York, 336 U. S. 106 575 Page Ransom & Randolph Co. v. Evatt, 142 Ohio St. 398 567-571 Reagan v. Farmers’ Loan Co., 154 U. S. 362 710,712,731 Reed v. United States, 11 Wall. 591 788 Rein v. Lane, L. R. 2 Q. B. Cases 144 379 Rescue Army v. Municipal Court, 331 U. S. 549 8,345 Reynolds v. United States, 98 U. S. 145 620,640,641 Richer v. C., R. I. & P. R. Co., 80 F. Supp. 971 57 Richfield Oil Corp. v. Board, 329 U. S. 69 156,159,288 Richmond Screw Co. v. United States, 275 U. S. 331 722,730 Rickert Rice Mills v. Fonte- not, 297 U. S.110 710,712,731 Roach v. A., T. & S. F. R. Co., 218 U. S. 159 580 Roberts v. New York City, 295 U. S.264 276 Robertson v. Sichel, 127 U. S. 507 688 Robinson v. B. & O. R. Co., 237 U. S. 84 791 Roche v. Evaporated Milk Assn., 319 U. S. 21 72 Roche v. McDonald, 275 U. S. 449 39-47 Rochester Tel. Corp. v. United States, 307 U. S. 125 433-440,467,469 Rohmer v. Comm’r, 328 U. S. 862 374 Rohmer v. Comm’r, 153 F. 2d 61 374, 386,392,395,403,417 Roland Elec. Co. v. Walling, 326 U. S. 657 759 Rolston v. Comm’rs, 120 U. S. 390 731 Royster Guano Co. v. Virginia, 253 U. S. 412 580 Russell v. United States, 182 U. S. 516 718 Russell Motor Co. v. United States, 261 U. S. 514 206 TABLE OF CASES CITED. XLVII Page Rutherford Food Corp. v. McComb, 331 U. S. 722 790 Sabatini v. Comm’r, 98 F. 2d 753 385, 386,392,395,416,417 Sadowski v. L. I. R. Co., 292 N. Y. 448 171, 178,179,186,197 Saia v. New York, 334 U. S. 558 30 St. Louis & I. M. R. Co. v. McWhirter, 229 U. S. 265 174 St. Louis & S. F. R. Co. v. Conarty, 238 U. S. 243 195 San Antonio & A. P. R. Co. v. Wagner, 241 U. S. 476 189 Santa Clara County v. Southern Pac. R. Co., 118 U. S. 394 574,576 Santa Fe Pac. R. Co. v. Fall, 259 U. S. 197 699, 710,715,728,732 Sawyer, Ex parte, 124 U. S. 200 99 Schechter Poultry Corp. v. United States, 295 U. S. 495 671 Schenck v. United States, 249 U. S. 47 26 Schine Theatres v. United States, 334 U. S. 110 317,318 Schlemmer v. B., R. & P. R. Co., 205 U. S. 1 174 Schneider v. State, 308 U. S. 147 30 Schumacher v. Beeler, 293 U. S. 367 594-596,611-614 Scott v. Donald, 165 U. S. 58, 107 731 Scott v. Neely, 140 U. S. 106 264 Scott v. N. Y. Cent. R. Co., 81 F. Supp. 815 57 Scranton v. Wheeler, 179 U. S. 141 698,732 Screws v. United States, 325 U. S. 91 617 Scully v. Bird, 209 U. S. 481 710, 716,731 Seaboard Air Line R. v. Duvall, 225 U. S. 477 11 Seaboard Air Line R. v. Horton, 233 U. S. 492 188 Seavey v. Preble, 64 Me. 120 724 Page Second Employers’ Liability Cases, 223 U. S. 1 174 Security Bank v. California, 263 U. S. 282 488 Selover, Bates & Co. v. Walsh, 226 U. S. 112 579 Sere v. Pitot, 6 Cranch 332 606 Shapiro v. United States, 335 U. S. 1 146,147,152 Sheldon v. Sill, 8 How. 441 627, 638 Shelton v. Thompson, 148 F. 2d 1; 157 F. 2d 709 186 Sherman v. Grinnell, 123 U. S. 679 71 Sherman v. Ragen, 337 U. S. 235 240 Sherwood Bros. v. District of Columbia, 72 App. D. C. 155 40 Shields v. Utah I. C. R. Co., 305 U. S.177 434,460 Shilman v. United States, 164 F. 2d 649 815 Shively v. Bowlby, 152 U. S. 1 111 Shoshone Indians v. United States, 324 U. S. 335 102,104 Shoshone Mng. Co. v. Rutter, 177 U. S. 505 598,614 Shoshone Tribe v. United States, 299 U. S. 476 102,103 Sibbach v. Wilson & Co., 312 U. S. 1 41 Siegelschiffer v. Penn. Ins. Co., 248 F. 226 40 Silesian-American Corp. v. Clark, 332 U. S. 469 483,484 Singer v. Yokohama Bank, 293 N. Y. 542 484 Sioux City Bridge Co. v. Dakota County, 260 U. S.441 580 Sioux Tribe v. United States, 316 U. S. 317 103 Six Companies v. Highway Dist., 311 U. S. 180 490 Skinner & Eddy Corp. v. United States, 249 U. S. 557 437,439 Slaughter-House Cases, 16 Wall. 36 577 XLVIII TABLE OF CASES CITED. Page Sloan Shipyards Corp. v. U. S. Fleet Corp., 258 U. S. 549 686, 702,710,718-725,732 Smith v. Hoboken R., W. & S. S. C. Co., 328 U. S. 123 465 Smith v. Reeves, 178 U. S. 436 731 Smith Co., In re, 31 App. Div. 39 487 Smoot’s Case, 15 Wall. 36 211 Smyth v. Ames, 169 U. S. 466 710,731 Snyder v. Massachusetts, 291 U. S. 97 246 South Carolina v. Wesley, 155 U. S.542 710,732 Southern Nat. Gas Corp. v. Alabama, 301 U. S. 148 671, 678,679 Southern Pac. Co. v. Ari- zona, 325 U. S. 761 581 Southern Pac. Terminal Co. v. Comm’n, 219 U. S. 498 288 Southern R. Co. v. Greene, 216 U. S. 400 580 Southern R. Co. v. Lunsford, 297 U. S. 398 188 Southern R. Co. v. Tift, 206 U. S. 428 440 Sowell v. Fed. Reserve Bank, 268 U. S. 449 615 Spalding & Bros. v. Edwards, 262 U. S.66 156,292 Spector Motor Co. v. Mc- Laughlin, 323 U. S. 101 489- 494 Spiegel Estate v. Comm’r, 335 U. S. 701 487,490 Spielman Motor Co. v. Dodge, 295 U. S. 89 99,495 Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368 81, 99,443 Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346 300,308 Standard Oil Co. v. Clark, 163 F. 2d 917 417 Standard Oil Co. v. Johnson, 316 U. S. 481 671 Page Standard Oil Co. v. United States, 283 U. S. 235 435, 444,452,453,467,468 Standard Oil Co. v. United States, 41 F. 2d 836 470 Stanley v. Schwalby, 147 U. S. 508 732 Stanley v. Schwalby, 162 U. S. 255 689,730 Stark v. Wickard, 321 U. S. 288 434 State. See also name of State. State v. Stevenson, 64 W. Va. 392 246 State Tax Comm’n v. Interstate Gas Co., 284 U. S. 41 673,678 Steel v. Cammell, Laird & Co., [1905] 2 K. B. 232 183 Stephan v. United States, 133 F. 2d 87 246 Sterling v. Constantin, 287 U. S. 378 731 Stewart Dry Goods Co. v. Lewis, 294 U. S. 550 580 Stimson Lumber Co. v. Kuy-kendal, 275 U. S. 207 807 Stone v. Memphis Gas Co., 201 Miss. 670 669 Stone v. United States, 164 U. S. 380 205 Stoner v. N. Y. Ins. Co., 311 U. S. 464 490,538 Street v. United States, 133 U. S. 299 40 Stromberg v. California, 283 U. S. 359 5,7,9 Sullivan v. Ashe, 302 U. S. 51 248 Swift v. Tyson, 16 Pet. 1 581 Swinson v. C., St. P., M. & O. R. Co., 294 U. S. 529 195 Switchmen’s Union v. Board, 320 U. S. 297 451,460,598 Tanner v. Little, 240 U. S. 369 731 Tempel v. United States, 248 U. S. 121 216,593,718,723 Tennessee Power Co. v. T. V. A., 306 U. S. 118 693,730 TABLE OF CASES CITED. XLIX Page Tennessee Valley Authority v. Powelson, 319 U. S. 266 332 Terminal Whse. Co. v. Penn. R. Co., 297 U. S. 500 436- 439,467,468 Terrace v. Thompson, 263 U. S. 197 98 Texas v. Florida, 306 U. S. 398 753 Texas & N. 0. R. Co. v. Sabine Co., 227 U. S. Ill 288 Texas & P. R. Co. v. Abilene Co., 204 U. S. 426 437, 442,463,464 Thames & Mersey Co. v. United States, 237 U. S. 19 156 Thayer v. Boston, 19 Pick. 511 694 Thomas v. Kansas City S. R. Co., 261 U. S. 481 580 Thompson v. Consol. Gas Co., 300 U. S. 55 101 Thompson v. Magnolia Co., 309 U. S. 478 489-494 Thompson v. Ragen, 337 U. S. 235 240 Thompson v. Texas M. R. Co., 328 U. S. 134 465 Thompson v. Utah, 170 U. S. 343 620 Thornhill v. Alabama, 310 U. S. 88 30 Tiller v. Atlantic Coast Line, 318 U. S. 54 180,189 Times-Mirror Co. v. Supe- rior Court, 314 U. S. 252 576 Tindal v. Wesley, 167 U. S. 204 698,710,732 Tinkoff v. Comm’r, 120 F. 2d 564 740 Titus v. Wallick, 306 U. S. 282 45 Toledo Fence Co. v. Lyons, 290 F. 637 612,613 Tomkins v. Missouri, 323 U. S. 485 779 Tompkins v. Erie R. Co., 98 F. 2d 49 491,560 Townsend v. Burke, 334 U. S. 736 252,781 Trailmobile Co. v. Whirls, 331 U. S. 40 526 837446 0—49-----4 Page Triff v. Nat. Bronze Co., 135 Ohio St. 191 182 Truax v. Raich, 239 U. S. 33 99,731 Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 578 Trust of Bingham v. Comm’r, 325 U. S. 365 415 Tucker v. Texas, 326 U. S. 517 30 Tulee v. Washington, 315 U.S. 681 111 Turner v. Bank of America, 4 Dall. 8 607,627,638 Turpin v. Burgess, 117 U. S. 504 156 Turvey v. Brintons, Ltd., [1904] 1 K. B. 328 183 Tutun v. United States, 270 U. S. 568 276 Tyler, In re, 149 U. S. 164 731 Union Pac. R. Co. v. Comm’n, 248 U. S. 67 671 Union Pac. R. Co. v. Harris, 215 U. S. 386 114 Union Stock Yard Co. v. United States, 308 U. S. 213 808 United Public Workers v. Mitchell, 330 U. S. 75 28 United Shoe Mach. Corp. v. United States, 258 U. S. 451 300,301 United States. See also U. S. ex rel. United States v. Alcea Til-lamooks, 329 U. S. 40 106 United States v. Aluminum Co., 148 F. 2d 416 309,310 United States v. American Bell Tel. Co., 159 U. S. 548 359 United States v. American Tobacco Co., 221 U. S. 106 313 United States v. American Trucking Assns., 310 U. S. 534 61 United States v. Arenas, 158 F. 2d 730 104 United States v. Atkinson, 297 U. S. 157 808 L TABLE OF CASES CITED. Page United States v. Baltimore & 0. R. Co., 293 U. S. 454 191, 192 United States v. Behan, 110 U. S. 338 208,209,216 United States v. Berrigan, 2 Alaska 442 123 United States v. Bowen, 100 U. S. 508 61 United States v. Bradford, 160 F. 2d 729 139 United States v. Brooklyn Terminal, 249 U. S. 296 807, 808 United States v. Burroughs, 289 U. S. 159 640 United States v. Cadzow, 5 Alaska 125 123 United States v. California, 332 U. S. 19 431 United States v. Candelaria, 271 U. S. 432 123 United States v. Capital Transit Co., 325 U. S. 357 673, 674 United States v. Causby, 328 U. S. 256 205,701 United States v. Chandler- Dunbar Co., 229 U. S. 53 333 United States v. Chemical Foundation, 272 U. S. 1 482, 484 United States v. Columbia Steel Co., 334 U. S. 495 317, 320 United States v. Creek Nation, 295 U. S. 103 103 United States v. Daisart Sportswear, 169 F. 2d 856 139 United States v. Dalhover, 96 F. 2d 355 246 United States v. Denver & R. G. R. Co., 191 U. S. 84 172 United States v. Du Pont & Co., 83 F. Supp. 233 80 United States v. Erie R. Co., 280 U. S. 98 291 United States v. Esnault- Pelterie, 299 U. S. 201 205 United States v. Ferreira, 13 How. 40 615,630 Page United States v. Greathouse, 166 U. S. 601 593 United States v. Griffin, 303 U. S. 226 442, 443,453,454,461 United States v. Griffith, 334 U. S. 100 317 United States v. Herron, 20 Wall. 251 359 United States v. Holt Bank, 270 U. S. 49 103 United States v. Hudson & Goodwin, 7 Cranch 32 607, 636,638 United States v. Hvoslef, 237 U. S. 1 156 United States v. International Harvester Co., 274 U. S. 693 315 United States v. Interstate Commerce Comm’n, 337 U. S. 426 952 United States v. Interstate Commerce Comm’n, 78 F. Supp. 780 445 United States v. Jefferson Elec. Co., 291 U. S. 386 116 United States v. Jones, 131 U. S. 1 593 United States v. Jones, 336 U. S. 641 442, 452,453,461,469,608 United States v. Ju Toy, 198 U. S. 253 275 United States v. Lee, 106 U. S. 196 696, 710,717,721-732 United States v. Los Angeles & S. L. R. Co., 273 U. S. 299 453,455,460 United States v. Lowden, 308 U. S. 225 311 United States v. McWilliams, 163 F. 2d 695; 69 F. Supp. 812 621 United States v. Memphis Oil Co., 288 U. S. 62 613 United States v. Midwest Oil Co., 236 U. S. 459 105,113 United States v. Miller, 317 U. S. 369 332,333,340 TABLE OF CASES CITED. LI Page United States v. Minnesota Invest. Co., 271 U. S. 212 642 United States v. Molasky, 118 F. 2d 128 149 United States v. Monia, 317 U. S. 424 146-150 United States v. National City Lines, 334 U. S. 573 80-84 United States v. National City Lines, 337 U. S. 78 72, 73,78 United States v. North Am. Trans. Co., 253 U. S. 330 718 United States v. Paramount Pictures, 334 U. S. 131 317, 318 United States v. Peters, 5 Cranch 115 711 United States v. Petty Motor Co., 327 U. S. 372 332 United States v. Pfitsch, 256 U. S. 547 593 United States v. Pullman Co., 50 F. Supp. 123 308 United States v. Purcell Envelope Co., 249 U. S. 313 210 United States v. River Rouge Co., 269 U.S. 411 546 United States v. St. Pierre, 128 F. 2d 979 151 United States v. San Jacinto Tin Co., 125 U. S. 273 431 United States v. Santa Fe Pac. R. Co.,314U.S.339 103 United States v. Seminole Nation, 299 U. S. 417 205 United States v. Shaw, 309 U. S. 495 593 United States v. Shea, 152 U. S. 178 788 United States v. Sherwood, 312 U. S. 584 593 United States v. Shoshone Tribe, 304 U. S. Ill 103 United States v. Silk, 331 U. S. 704 790 United States v. Socony- Vacuum Co., 310 U. S. 150 317 United States v. South-Eastern Underwriters Assn., 322 U. S. 533 581 Page United States v. Speed, 8 Wall. 77 209,211 United States v. Standard Oil Co., 332 U. S. 301 53 United States v. Stevenson, 215 U. S. 190 359 United States v. 10.95 Acres, 75 F. Supp. 841 106 United States v. Title Ins. Co., 265 U. S. 472 537 United States v. Todd (U. S. S. C., 1794) 615 United States v. United Mine Workers, 330 U. S. 258 359 United States v. United Shoe Mach. Co., 247 U. S. 32 315 United States v. U. S. Steel Corp., 251 U. S. 417 315 United States v. Weisman, 111 F. 2d 260 149 United States v. Wells, 283 U. S. 102 743 United States v. Wittek, 48 A. 2d 805 350 United States v. Wood, 299 U. S. 123 620 United States v. Wyoming, 331 U. S. 440 359 United States v. Yellow Cab Co., 332 U. S. 218 300, 674,675 U. S. Alkali Assn. v. United States, 325 U. S. 196 72 U. S. ex rel. Goldberg v. Daniels, 231 U. S. 218 700, 725-729 U. S. ex rel. Johnson v. Shaughnessy, 336 U. S. 806 276 U. S. ex rel. T. V. A. v. Powelson, 319 U. S. 266 332 U. S. ex rel. Vajtauer v. Comm’r, 273 U. S. 103 147, 150 U. S. Shipping Board v. Lustgarten, 280 U. S. 320 787 Ute Indians v. United States, 330 U. S.169 104 Uveges v. Pennsylvania, 335 U. S. 437 780,781 LU TABLE OF CASES CITED. Page Vajtauer v. Comm’r, 273 U. S. 103 147,150 Virginian R. Co. v. System Federation, 300 U. S. 515 126, 500 Waite v. Macy, 246 U. S. 606 710,732 Walker v. Lilleshall Co., [1900] 1 Q. B. 488 183 Walling v. Jacksonville Paper Co., 317 U. S. 564 676 Walters v. B. & O. R. Co., 76 F. 2d 599 40 Wampler v. Lecompte, 282 U. S. 172 101 Ward v. Thompson, 22 How. 330 740 Warren E. Smith Co., In re, 31 App. Div. 39 487 Washington v. Dawson & Co., 264 U. S. 219 617 Washington ex rel. Stimson Co. v. Kuykendall, 275 U. S. 207 807 Washington, V. & M. Coach Co. v. Board, 301 U. S. 142 221 Waterman v. Mackenzie, 138 U. S. 252 419 Watson v. Brooks, 13 F. 540 624 Watson v. Buck, 313 U. S. 387 99 Wells v. Roper, 246 U. S. 335 710,729 West v. Am. Tel. & Tel. Co., 311 U. S. 223 490,533,538 West v. Rutledge Co., 244 U. S. 90 489 Western & Atlantic R. v. Hughes, 278 U. S. 496 175 Western Live Stock v. Bureau, 303 U. S. 250 ' 667, 668,680 Western Turf Assn. v. Greenberg, 204 U. S. 359 579 Western Union Tel. Co. v. Andrews, 216 U. S. 165 731 Western Union Tel. Co. v. Hall, 124 U. S. 444 208 Western Union Tel. Co. v. L. & N. R. Co., 258 U. S. 13 554 Page West Va. Bd. of Education v. Barnette, 319 U. S. 624 29 Wheeling Steel Corp. v. Fox, 298 U. S. 193 565,574 Wheeling Steel Corp. v. Glander, 337 U. S. 562 951 White v. Greenhow, 114 U. S. 307 710,731 White v. Thompson, 80 F. Supp. 411 57 White-Smith Pub. Co. v. Apollo Co., 209 U. S. 1 401, 420 Whitney v. California, 274 U. S. 357 11 Wiborg v. United States, 163 U. S. 632 11 Wichita Royalty Co. v. City Bank, 306 U. S. 103 490 Wilcox v. Jackson, 13 Pet. 498 711 Williams v. Austrian, 331 U. S. 642 595,596,652 Williams v. Fanning, 332 U. S. 490 96,689 Williams v. Huff, 142 F. 2d 91 ; 146 F. 2d 807 621 Williams v. United States, 289 U. S. 553 592- 594,609,638-641 Willis v. Dennis, 72 F. Supp. 853 584 Willis v. Ragen, 337 U. S. 235 240 Wilson v. Guggenheim, 70 F. Supp. 417 584 Wilson v. Southern R. Co., 147 F. 2d 165 40 Winkler v. Daniels, 43 F. Supp. 265 583 Winters v. New York, 333 U. S. 507 4 Wisconsin v. Penney Co., 311 U. S. 435 668 Withers v. Nethersole, [1948] 1 AU E. R. 400 422, 423 Wittek v. United States, 83 U. S. App. D. C. 377 350,351 Wittek v. United States, 54 A. 2d 747 350 TABLE OF CASES CITED. liii Page Woods v. Interstate Realty Co., 337 U. S. 538 557 Woods v. Nierstheimer, 328 U. S. 211 236 Worcester Trust Co. v. Riley, 302 U. S. 292 716,730 Work v. Louisiana, 269 U. S. 250 710,732 Yakus v. United States, 321 U. S. 414 500 Page Yearsley v. Ross Co., 309 U. S. 18 699,723 Young, Ex parte, 209 U. S. 123 710-713,731 Young v. Ragen, 337 U. S. 235 240,936,942 Zeckendorf v. Steinfeld, 225 U. S. 445 172 Zuback v. Bakmaz, 346 Pa. 279 743 TABLE OF STATUTIS Cited in Opinions (A) Statutes of the United States. Page 1789, Sept. 24, c. 20, § 11, 1 Stat. 73............. 582 1868, July 27, c. 273,15 Stat. 240 .......................... 86 1869, Mar. 3, No. 22, 15 Stat. 348 .................... 86 1870, July 1, c. 189, 16 Stat. 180 .......................... 86 1884, May 17, c. 53, §§ 8, 12, 23 Stat. 24................... 86 1887, Feb. 4, c. 104, §§ 1, 8, 9, 24 Stat. 379...... 426 § 12......................... 137 §§ 13, 15, 16........426 Mar. 3, c. 359, 24 Stat. 505 ......................... 582 1889, Mar. 2, c. 382, 25 Stat. 855 ....................... 426 1890, July 2, c. 647, § 1, 26 Stat. 209........ 78,293 §2.......................... 78 1891, Jan. 12, c. 65, § 5, 26 Stat. 712............ 86 Mar. 3, c. 517, 26 Stat. 826 ....................... 254 Mar. 3, c. 561, §§ 14, 15,26 Stat. 1095.... 86 1893, Feb. 11, c. 83, 27 Stat. 443 ....................... 137 Mar. 3, c. 209, 27 Stat. 612 ......................... 86 1898, May 14, c. 299, 30 Stat. 409............ 86 1899, Mar. 3, c. 424, 30 Stat. 1074 ...................... 86 1901, Mar. 3, c. 854, §§20, 1219, 31 Stat. 1189. 346 1903, Feb. 25, c. 755, 32 Stat. 854 ...................... 137 1906, June 14, c. 3299, 34 Stat. 263..................... 86 Page 1906, June 26, c. 3547, §6, 34 Stat. 478......... 86 June 29, c. 3591, 34 Stat. 584 .................. 426 June 30, c. 3920, 34 Stat. 798.......... 137 1907, Mar. 2, c. 2537, 34 Stat. 1232.......... 86 Mar. 4, c. 2929, 34 Stat. 1411......... 86 1908, Apr. 22, c. 149,35 Stat. 65 ................... 55,75,163 May 30, c. 236,35 Stat. 556 ....................... 163 1910, Apr. 5, c. 143, § 6, 36 Stat. 291........ 55,75 June 18, c. 309, 36 Stat. 539.......... 426 June 25, c. 387, 36 Stat. 819.......... 241 June 25, c. 421, §§ 1, 2, 36 Stat. 847...... 86 June 25, c. 423, 36 Stat. 851................... 682 1911, Feb. 17, c. 103, §2, 36 Stat. 913................... 163 1912, Aug. 24, c. 369,37 Stat. 497 ......................... 86 1913, Oct. 22, c. 32, § 2, 38 Stat. 208 .................. 426 1914, Oct. 15, c. 323, § 3, 38 Stat. 730................... 293 1915, Mar. 3, c. 90, 38 Stat. 956 ........................ 254 Mar. 4, c. 169, § 2, 38 Stat. 1192.......... 163 1916, Sept. 7, c. 458, 39 Stat. 742 ........................ 163 1917, June 15, c. 29, 40 Stat. 182 ........................ 198 Oct. 6, c. 106, §§ 5, 17, 40 Stat. 411............ 472 LV LVI TABLE OF STATUTES CITED. Page 1918, July 1, c. 114, 40 Stat. 704 ....................... 682 1919, Mar. 2, c. 94, 40 Stat. 1272 ...................... 198 1920, Feb. 28, c. 91, 41 Stat. 456 ....................... 426 §5................ 293 Mar. 9, c. 95, § 5, 41 Stat. 525.................. 783 Apr. 19, c. 153,41 Stat. 555 ....................... 346 June 5, c. 250, 41 Stat. 988 ....................... 810 §33 .............. 783 1921, Nov. 23, c. 136, § 217, 42 Stat. 227............... 369 1924, June 2, c. 234, §119, 43 Stat. 253............... 369 June 5, c. 261, 43 Stat. 389 ....................... 163 June 6, c. 272, §§ 1, 6, 8, 43 Stat. 464 ...... 86 June 7, c. 320, 43 Stat. 607 ........................ 49 June 7, c. 325, § 16, 43 Stat. 633.................. 426 June 7, c. 355, § 2, 43 Stat. 659.................. 163 1925, Feb. 13, c. 229, § 3, 43 Stat. 936.................. 198 1926, Feb. 26, c. 27, §§ 119, 213, 217, 44 Stat. 9. 369 June 18, c. 621, 44 Stat. 752 .................. 86 1927, Mar. 3, c. 302, 44 Stat. 1349 ....................... 86 1928, May 29, c. 852, § 119, 45 Stat. 791............... 369 1931, Mar. 4, c. 520, § 15, 46 Stat. 1549................. 755 1932, June 6, c. 209, § 119, 47 Stat. 169............... 369 1933, Mar. 9, c. 1, 48 Stat. 1 ..........................472 1934, May 7, c. 221, 48 Stat. 667 ....................... 86 May 10, c. 277, §§ 11, 12, 119, 143, 147, 211-215, 48 Stat. 680 ................. 369 June 12, c. 465, § 5, 48 Stat. 930............. 346 Page 1934, June 18, c. 576, §§ 5, 13, 16, 17, 19, 48 Stat. 984 ................... 86 June 19, c. 651, 48 Stat. 1064........... 38 June 19, c. 652, §§ 1, 4, 301,312, 402,409, 48 Stat. 1064.......... 265 1935, July 5, c. 372, § 7, 49 Stat. 449 .................. 217 §8 ........... 217,913 §§9, 10................... 217 1936, May 1, c. 254, §2, 49 Stat. 1250................... 86 June 22, c. 690, §§ 143, 211, 49 Stat. 1648.. 369 June 29, c. 858, § 902, 49 Stat. 1985....... 325 1937, Aug. 17, c. 690, 50 Stat. 673................... 293 Sept. 1, c. 896, § 2, 50 Stat. 888................... 346 1938, May 28, c. 289, §§ 22, 117, 119, 211, 212, 275, 52 Stat. 447... 369 June 21, c. 556, §§ 1, 4-10, 14, 16, 20, 52 Stat. 821........... 498 June 25, c. 676, §§3, 13, 52 Stat. 1060... 755 June 25, c. 691, 52 Stat. 1186.................. 346 1939, Feb. 10, c. 2, §§ 119, 211, 212, 275, 53 Stat. 1................... 369 May 22, c. 140, 53 Stat. 752................... 198 July 1, §4, 53 Stat. 1431 ................ 86 Aug. 7, c. 555, §902, 53 Stat. 1254....... 325 Aug. 11, c. 685, 53 Stat. 1404... 55,75,163 1940, Apr. 20, c. 117, 54 Stat. 143................... 582 May 7, c. 185, § 2, 54 Stat. 179 .................. 472 June 25, c. 419, §§ 12, 211, 54 Stat. 516... 369 Sept. 9, c. 717, § 201, 54 Stat. 872........ 346 TABLE OF STATUTES CITED. LVII Page 1940, Sept. 16, c. 720, §8, 54 Stat. 885.............. 521 Sept. 18, c. 722, § 17, 54 Stat. 898 .............. 426 Oct. 14, c. 862, §§ 1-3, 7, 304, 307, 54 Stat. 1125 ...................... 346 1941, Mar. 1, c. 9, 55 Stat. 14 ........................ 346 Apr. 29, c. 80, 55 Stat. 147 ....................... 346 June 28, c. 260, §§ 5, 304, 55 Stat. 361... 346 Sept. 20, c. 412, §§ 12, 211, 55 Stat. 687... 369 Dec. 2, c. 553, §§ 1-5, 11, 55 Stat. 788.... 346 Dec. 18, c. 593,55 Stat. 838 ................... 472,783 §201 .................... 198 1942, Jan. 21, c. 14, 56 Stat. 11 ........................ 346 Jan. 30, c. 26, §§ 1, 2, 4, 56 Stat. 23............. 346 §202 .................... 137 §302 .................... 346 Feb. 7, c. 49, 56 Stat. 83 ........................ 498 Mar. 27, c. 199, § 301, 56 Stat. 176......... 137 Apr. 1, c. 207, 56 Stat. 190 ....................... 346 Apr. 10, c. 239, 56 Stat. 212.................. 346 Sept. 26, c. 564, 56 Stat. 759 ................. 346 Oct. 2, c. 578, 56 Stat. 765 ....................... 137 Oct. 31, c. 634, 56 Stat. 1013 ...................... 682 1943, Mar. 24, c. 26, § 1, 57 Stat. 45............... 783,810 June 28, c. 173, 57 Stat. 220 .................. 55 1944, June 30, c. 325, 58 Stat. 632.............. 137,346 July 1, c. 358, 58 Stat. 649 ....................... 198 Dec. 8, c. 548, 58 Stat. 798 ....................... 521 Dec. 20, c. 614,58 Stat. 827 ....................... 137 Page 1945, June 30, c. 214, 59 Stat. 306 ............. 137,346 Dec. 3, c. 514, 59 Stat. 592 ....................... 346 1946, June 11, c. 324, 60 Stat. 237.................. 656 §§ 2, 10.................. 426 June 29, c. 521, 60 Stat. 340.................. 346 July 25, c. 671, 60 Stat. 664.................. 137 Aug. 2, c. 753, 60 Stat. 812 ................. 49,55,582 §§ 403, 410, 421, 423, 424.......... 49 Aug. 7, c. 770, 60 Stat. 866 ....................... 137 Aug. 7, c. 864, 60 Stat. 902 ....................... 198 Aug. 13, c. 959, § 2, 60 Stat. 1049 ................. 86 1947, June 23, c. 120, 61 Stat. 136.............. 217,656 June 30, c. 163, §§ 202, 209, 211, 61 Stat. 193 ....................... 346 July 30, c. 391, § 1, 61 Stat. 652............ 369 Aug. 1, c. 429, 61 Stat. 713 ....................... 346 Aug. 1, c. 442, 61 Stat. 721 ....................... 346 1948, Mar. 30, c. 163, 62 Stat. 100 ................. 346 Apr. 29, c. 243, 62 Stat. 205 ....................... 346 June 25, c. 646, 62 Stat. 869.............. 254,582 § 33......................... 55 §38 55,75,78 §39.......................... 55 1949, Mar. 31, c. 45, 63 Stat. 30 ........................ 346 Apr. 19, c. 73, 63 Stat. 48 .................. 346 May 24, c. 139, §§ 64a- 127, 63 Stat. 89.... 55 Constitution. See Index at end of volume. Internal Revenue Code. §§ 11, 22................... 733 § 119..................... 369 lviii TABLE OF STATUTES CITED. Page Page Internal Revenue Code— U. S. Code—Continued. Continued. Title 28—Continued. §§ 181, 182................ 733 § 1291 ............ 541 §§211, 212, 275............ 369 § 1292 ........ 254,541 § 3797 .................... 733 § 1332 ............ 582 Judicial Code. §§ 1336, 1337, 1339. 426 § 51 ....................... 55 §§ 1391-1406 .... 55,75 §§ 129, 274................ 254 § 1652 ........... 541 §§ 1391-1406 ............ 55,75 §§ 1738, 2072....... 38 § 1404 ..................... 78 § 2101 .... 38,426,942 U. S. Code. § 2103 ....... 38,922 Title 5, §2254 ............. 235 § 751 et seq............. 163 § 2283 ............. 472 §757 ...................... 49 §§2284, 2321-2325 . 426 § 1001 et seq............ 656 § 2674 .............. 49 §§1001, 1009 .............. 426 § 2680 ............. 682 TitleS, §43................ 530 Title 29, Title 12, § 1141 j........ 755 § 141 et seq....656 Title 15, § 157 ........ 217,656 § 1 .................. 78,293 § 158 .... 217,656,913 §§2,4,5..................... 78 §§ 159,160 .......... 217 §§14,21.................... 293 §§201-219 ........... 755 §22 ....................... 78 Title 31, §§ 223b, 224b. 49 §25 ...................... 293 Title 33, §905 .......... 49 §§ 77a, 77v, 78a, Title 35, §§ 68, 89-96.. 682 78aa, 79, 79y, Title 38, §§ 421, 701... 49 80a-l, 80a-43... 78 Title 41, §§ 101 et seq., Title 17, 106 ............... 198 §§ 1 et seq., 30........... 369 Title 42, §§ 1401 et seq., §35 ....................... 55 1402, 1522, 1544, Title 18, §§ 714, 716, 1547, 1561......... 346 3655,4202,4203.............. 241 Title 43, §§ 141-143... 86 Title 26, Title 45, §§H, 22.................... 733 §§ 1 et seq, 2, 22- §§ 119, 143................ 369 34, 51 et seq.... 163 §§ 181, 182................ 733 §§51-59 ........... 55,75 §§ 211, 212, 275.... 369 §§ 53, 54............ 163 §503 ..................... 733 §56.................. 78 Title 28, Title 46, §41 .................. 426,582 §§564, 565.......... 783 §§ 45a, 46, 47, 47a.. 426 § 688 ..... 78,783,810 §§ 104, 105, 107-110, § 713................ 783 112 ........................ 55 §§782, 1128d........ 78 § 227 .................... 254 § 1242 .............. 325 § 288 .................... 198 Title 47, §§ 154, 301, §344 ..................... 163 312, 409........... 265 § 723c .................... 38 Title 48, §§226, 351, §931 .................... 49 358a, 365, 371, 411.. 86 § 1253 ................... 426 Title 49, § 1255 ............... 198,325 § 1 ............. 426,662 § 1257 .............. 154,241, §§ 1 et seq., 2.......426 562,922 §5............... 293 TABLE OF STATUTES CITED. LIX Page U. S. Code—Continued. Title 49—Continued. §6 426,662 §§8, 9, 13, 15-17... 426 §46...................... 137 Title 50, Appendix, §§ 7, 9....... 472 §308 ........ 521 §601 ........ 346 §611......... 198 §§616, 617.... 472 §§ 901, 902, 904, 942 ....... 346 § 1291 ... 783,810 §§ 1881-1901 .. 346 Administrative Procedure Act ................. 426,656 Agricultural Marketing Act. 755 Antitrust Acts........... 293 Bankruptcy Act....... 472,582 Boiler Inspection Act.... 163 Civil Rights Act......... 530 Civil Service Retirement Act ................... 783 Clarification Act.... 783,810 Clayton Act ........... 55,293 Communications Act....... 265 Compulsory Testimony Act. 137 Contract Settlement Act... 198 Copyright Law............ 369 District of Columbia Enabling Act................ 582 Emergency Banking Relief Act ................... 472 Emergency Price Control Act ............... 137,346 Employees’ Compensation Act ............ 49,163,783 Employers’ Liability Act... 49, 55,75,78,163,733 Fair Labor Standards Act.. 755 Federal Employees’ Compensation Act.... 49,163,783 Federal Employers’ Liability Act ... 49,55,75,78,163,733 Federal Safety Appliance Acts .................... 163 Federal Tort Claims Act... 49, 582,682 First War Powers Act..... 198, 472,783 Page Hepburn Act................ 426 Housing & Rent Act..........346 Indian Claims Commission Act ...................... 86 Indian Reorganization Act. 86 Interstate Commerce Act.. 137, 293,426,662 Investment Company Act.. 78 Jones Act.......... 78,783,810 Judiciary Act.............. 582 Labor Management Relations Act........... 217,656 Lanham Act................. 346 Law & Equity Act......... 254 Legislative Reorganization Act ...................... 55 Merchant Marine Act.... 78, 325,682,783 Motor Carrier Act........ 755 National Emergency Price Control Act............ 137,346 National Labor Relations Act ......... 217,426,783,913 Natural Gas Act............ 498 Public Utility Holding Company Act............. 78,904 Revenue Acts, 1921-1928, 1934, 1936, 1938, 1940, 1941 ................... 369 Rules of Decision Act.... 535 Safety Appliance Acts.... 163 Second Supplemental National Defense Act.......346 Second War Powers Act.... 137 Securities Act.............. 78 Securities Exchange Act.... 78 Selective Training & Service Act .................... 521 Sherman Act........ 78,137,293 Social Security Act...... 783 Suits in Admiralty Act... 78, 783,810 Taft-Hartley Act...... 217,656 Tort Claims Act... 49,582,682 Trading with the Enemy Act ..................... 472 Transportation Act....... 426 Tucker Act........... 582 United States Housing Act. 346 Urgent Deficiencies Act.... 426 Urgent Deficiency Appropriation Act............ 346 lx TABLE OF STATUTES CITED. Page Page Wagner Act................. 656 Wheeler-Howard Act......... 86 War Shipping Administra- White Act........................... 86 tion Act...................... 783 World War Veterans’ Act.. 49 (B) Statutes of the States and Territories. Alaska. Michigan. Karluk Village Ordi- Stats. Ann. (1947 nances, 1945, 1946... 86 Supp.), c. 97, §§13.- California. 138(1) to 13.140 Deering’s 1941 Penal (10) ................. 498 Code, § 1168................ 241 Mississippi. Deering’s 1939 Rev. & Code, 1942, §5319.... 535 Tax. Code, Div. I, Code Ann., 1942, Tit. §§ 103, 106, 201, 202 40, c. 3, §§ 10105, (e), 405.................... 154 10109 ............. 662 Colorado. Missouri. 1 Stats. Ann., 1935, c. 1 Rev. Stats., 1939, 6, Rule 54(h)........ 38 §§ 1038,1271........ 38 3 Stats. Ann., 1935, c. New Jersey. 93, §2................. 38 Constitution ...... 541 District of Columbia. 1945 Laws, c. 131...... 541 Code, 1940, §§ 5-103 et New York. seq., 5-104, 5-107, Criminal Code, §482.. 241 5-112 et seq., 11-735, Penal Law, §§407, 11-773, 45-902, 45- 1044, 1045, 1045-a, 1601 to 45-1611............. 346 2010, 2125......... 241 Alley Dwelling Act.... 346 Civil Practice Act................ 55 Emergency Rent Act.. 346 §§473, 977-b........472 Enabling Act................. 582 General Corporation Illinois. Law, § 61—b.......... 541 Constitution, Art. II, §§162, 163, 168.... 472 §4......................... 1 Ohio. Rev. Stats., 1939, c. 38, Gen. Code Ann., 1945, §802 .......................241 §§5325-1, 5327, Chicago Municipal 5328-1, 5328-2, 5495, Code, 1939, § 193-1.. 1 5497 to 5499, 5638... 562 Kansas. Oklahoma. Gen. Stats., 1935, §§ 60- Stats. 52> c- 306,60-308.................. 530 3’ §§81.-247...... 498 55—713 aqq Texas. Louisiana, .......................... Civil Stats., Art. 6445.. 472 Louisiana. Vernon’s 1925 Rev. Civ. ’ Stats., Tit. 102, Art. 4826 2 ..................... 498 6008 et seq.........498 Mame. Wisconsin. 1881 Laws, c. 91, § 2... 662 1945 Stats., § 180.13... 541 Maryland. Workmen’s Compensa- 1945 Laws, c. 989............ 541 tion Act.............. 163 TABLE OF STATUTES CITED. lxi (C) Proclamations. Page Page 1889, Nov. 11, No. 8, 26 1916, Apr. 28, 39 Stat. 1777 Stat. 1552............... 86 (Indian Reservation).... 86 1892, Dec. 24, No. 39, 27 1933, Mar. 6, No. 2039, 48 Stat. 1052............... 86 Stat. 1689............ 472 (D) Treaties. 1867, June 20, Arts. II, III, 15 Stat. 539 (Russia).... 86 (E) Foreign Statutes. Australia. England—Continued. Industries Preservation 60 & 61 Viet., c. 37.... 163 Act ...................... 293 Monopolies & Restric- England. tive Practices Act... 293 9 & 10 Geo. VI, Part National Insurance IV ....................... 163 Act ............... 163 11 & 12 Geo. VI, c. 66, Workmen’s Compensa- §§ 6, 14.................. 293 tion Act........... 163 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1948. TERMINIELLO v. CHICAGO. CERTIORARI TO THE SUPREME COURT OF ILLINOIS. No. 272. Argued February 1, 1949.—Decided May 16, 1949. In a meeting which attracted considerable public attention, petitioner addressed a large audience in an auditorium outside of which was an angry and turbulent crowd protesting against the meeting. He condemned the conduct of the crowd outside and vigorously criticized various political and racial groups. Notwithstanding efforts of a cordon of police to maintain order, there were several disturbances in the crowd. Petitioner was charged with violation of an ordinance forbidding any “breach of the peace,” and the trial court instructed the jury that any misbehavior which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” violates the ordinance. Petitioner did not except to that instruction, but he did maintain at all times that, as applied to his conduct, the ordinance violated his right of free speech under the Federal Constitution. He was convicted on a general verdict and his conviction was affirmed by an intermediate appellate court and by the Supreme Court of the State. Held: 1. As construed by the trial court and applied to petitioner, the ordinance violates the right of free speech guaranteed by the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 4-5. 2. It is immaterial that petitioner took no exception to the instruction and that, throughout the appellate proceedings, the state courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting “fighting words,” 1 2 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. since the verdict was a general one and it cannot be said that petitioner’s conviction was not based upon the instruction quoted above. Stromberg n. California, 283 U. S. 359. Pp. 5-6. 400 Ill. 23, 79 N. E. 2d 39, reversed. Petitioner was convicted in a state court of violating a city ordinance forbidding any breach of the peace. The Illinois Appellate Court affirmed. 332 Ill. App. 17, 74 N. E. 2d 45. The Supreme Court of Illinois affirmed. 400 Ill. 23, 79 N. E. 2d 39. This Court granted certiorari. 335 U. S. 890. Reversed, p. 6. Albert W. Dilling argued the cause and filed a brief for petitioner. L. Louis Karton argued the cause for respondent. With him on the brief were Benjamin S. Adamowski, Joseph F. Grossman, A. A. Pantelis and Harry A. Iseberg. William E. Rodriguez and Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. William Maslow, Shad Polier and Byron S. Miller filed a brief for the American Jewish Congress, as amicus curiae, urging affirmance. Mr. Justice Douglas delivered the opinion of the Court. Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago1 and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the 1 “All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city . . . shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense.” Municipal Code of Chicago, 1939, § 193-1. TERMINIELLO v, CHICAGO. 3 1 Opinion of the Court. Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity with over eight hundred persons present. Others were turned away. Outside of the auditorium a crowd of about one thousand persons gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to maintain order; but they were not able to prevent several disturbances. The crowd outside was angry and turbulent. Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation’s welfare. The trial court charged that “breach of the peace” consists of any “misbehavior which violates the public peace and decorum”; and that the “misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” Petitioner did not take exception to that instruction. But he maintained at all times that the ordinance as applied to his conduct violated his right of free speech under the Federal Constitution. The judgment of conviction was affirmed by the Illinois Appellate Court (332 Ill. App. 17, 74 N. E. 2d 45) and by the Illinois Supreme Court. 396 Ill. 41, 71 N. E. 2d 2; 400 Ill. 23, 79 N. E. 2d 39. The case is here on a petition for certiorari which we granted because of the importance of the question presented. The argument here has been focused on the issue of whether the content of petitioner’s speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. See Chaplinsky v. New Hampshire, 315 U. S. 568; Cantwell v. Connecticut, 310 U. S. 296, 310. We do not reach that question, for there is a preliminary question that is dispositive of the case. 837446 0—49----5 4 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. As we have noted, the statutory words “breach of the peace” were defined in instructions to the jury to include speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance . . . .” That construction of the ordinance is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert n. Louisiana, 272 U. S. 312, 317; Winters v. New York, 333 U. S. 507, 514. The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge n. Oregon, 299 U. S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U. S. 252, 262; Craig v. Harney, 331 U. S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas TERMINIELLO v. CHICAGO. 5 1 Opinion of the Court. either by legislatures, courts, or dominant political or community groups. The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand. The fact that petitioner took no exception to the instruction is immaterial. No exception to the instructions was taken in Stromberg v. California, 283 U. S. 359. But a judgment of conviction based on a general verdict under a state statute was set aside in that case, because one part of the statute was unconstitutional. The statute had been challenged as unconstitutional and the instruction was framed in its language. The Court held that the attack on the statute as a whole was equally an attack on each of its individual parts. Since the verdict was a general one and did not specify the ground upon which it rested, it could not be sustained. For one part of the statute was unconstitutional and it could not be determined that the defendant was not convicted under that part. The principle of that case controls this one. As we have said, the gloss which Illinois placed on the ordinance gives it a meaning and application which are conclusive on us. We need not consider whether as construed it is defective in its entirety. As construed and applied it at least contains parts that are unconstitutional. The verdict was a general one; and we do not know on this record but what it may rest on the invalid clauses. The statute as construed in the charge to the jury was passed on by the Illinois courts and sustained by them over the objection that as so read it violated the Fourteenth Amendment. The fact that the parties did not dispute its construction makes the adjudication no less 6 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337U.S. ripe for our review, as the Stromberg decision indicates. We can only take the statute as the state courts read it. From our point of view it is immaterial whether the state law question as to its meaning was controverted or accepted. The pinch of the statute is in its application. It is that question which the petitioner has brought here. To say therefore that the question on this phase of the case is whether the trial judge gave a wrong charge is wholly to misconceive the issue. But it is said that throughout the appellate proceedings the Illinois courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting “fighting words.” That emphasizes, however, the importance of the rule of the Stromberg case. Petitioner was not convicted under a statute so narrowly construed. For all anyone knows he was convicted under the parts of the ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about a condition of unrest. We cannot avoid that issue by saying that all Illinois did was to measure petitioner’s conduct, not the ordinance, against the Constitution. Petitioner raised both points—that his speech was protected by the Constitution; that the inclusion of his speech within the ordinance was a violation of the Constitution. We would, therefore, strain at technicalities to conclude that the constitutionality of the ordinance as construed and applied to petitioner was not before the Illinois courts. The record makes clear that petitioner at all times challenged the constitutionality of the ordinance as construed and applied to him. Reversed. Mr. Chief Justice Vinson, dissenting. I dissent. The Court today reverses the Supreme Court of Illinois because it discovers in the record one sentence in the trial court’s instructions which permitted TERMINIELLO v. CHICAGO. 7 1 Vinson, C. J., dissenting. the jury to convict on an unconstitutional basis. The offending sentence had heretofore gone completely undetected. It apparently was not even noticed, much less excepted to, by the petitioner’s counsel at the trial. No objection was made to it in the two Illinois appellate tribunals which reviewed the case. Nor was it mentioned in the petition for certiorari or the briefs in this Court. In short, the offending sentence in the charge to the jury was no part of the case until this Court’s independent research ferreted it out of a lengthy and somewhat confused record. I think it too plain for argument that a reversal on such a basis does not accord with any principle governing review of state court decisions heretofore announced by this Court. Certainly, Stromberg v. Cali-jornia, 283 U. S. 359 (1931), as Mr. Justice Frankfurter demonstrates, offers no precedent for today’s action. It will not do to say that, because the Illinois appellate courts affirmed the petitioner’s conviction in the face of a constitutional attack, they necessarily must have approved the interpretation of the Chicago ordinance contained in the unnoticed instruction. The fact is that the Illinois courts construed the ordinance as punishing only the use of “fighting words.” Their opinions plainly show that they affirmed because they thought that the petitioner’s speech had been found by the jury to come within that category.1 Their action was not, and cannot here be taken to be, an approval of the ordinance “as construed” by the instruction because the record clearly shows that the case was treated on appeal, both by counsel and by the courts, as if no such instruction existed. This Court can reverse the conviction because of the instruction only if we are to say that every time a state irThe opinions are reported at 332 III. App. 17, 74 N. E. 2d 45, and at 400 Ill. 23, 79 N. E. 2d 39. See, particularly, 332 Ill. App. at pp. 23 and 38; 400 Ill. at p. 33. 8 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. court affirms a conviction it necessarily must approve of every unnoticed and unobjected to error which we may discover in the record. If such is the doctrine of this case, I feel compelled to register my emphatic dissent. The instruction informed the jury that they could return a verdict of guilty if they found that the petitioner’s speech was one which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” If the petitioner’s counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity of that instruction I would agree with the Court’s decision. But the record gives me no basis on which to believe that the Illinois courts would not also have so decided if that issue had been presented to them. The Court, as I understand it, does not reach the issue which the parties argued here—whether a properly instructed jury could constitutionally have found from the conflicting evidence in the record that, under the circumstances, the words in the petitioner’s speech were “fighting words” to those inside the hall who heard them. Certainly, the Court does not decide whether the violent opposition of those outside the hall, who did not hear the speech, could constitutionally warrant the conviction of the petitioner in order to keep the streets from becoming ideological battlegrounds. Since neither of these constitutional issues is decided by the Court, I think that it is not within my province to indicate any opinion concerning them. See Rescue Army v. Municipal Court, 331 U. S. 549, 568 (1947). Mr. Justice Frankfurter, dissenting. For the first time in the course of the 130 years in which State prosecutions have come here for review, this Court is today reversing a sentence imposed by a State court TERMINIELLO v. CHICAGO. 9 1 Frankfurter, J., dissenting. on a ground that was urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the bar of this Court. The impropriety of that part of the charge which is now made the basis of reversal was not raised at the trial nor before the Appellate Court of Illinois. The fact that counsel for Terminiello wholly ignored it is emphasized by the objections that he did make in relation to other instructions given and not given. On appeal to the Supreme Court of Illinois, counsel still failed to claim as error that which this Court on its own motion now finds violative of the Constitution. It was not mentioned by the Illinois Supreme Court in its careful opinion disposing of other claims and it was not included in the elaborate petition for rehearing in that court. Thus an objection, not raised by counsel in the Illinois courts, not made the basis of the petition for certiorari here—not included in the “Questions Presented,” nor in the “Reasons Relied On for the Allowance of the Writ”—and explicitly disavowed at the bar of this Court, is used to upset a conviction which has been sustained by three courts of Illinois. Reliance on Stromberg v. California, 283 U. S. 359, for what is done today is wholly misplaced. Neither expressly nor by implication has that decision any bearing upon the issue which the Court’s opinion in this case raises, namely, whether it is open for this Court to reverse the highest court of a State on a point which was not brought before that court, did not enter into the judgment rendered by that court, and at no stage of the proceedings in this Court was invoked as error by the State court whose reversal is here sought. The Stromberg case presented precisely the opposite situation. In that case the claim which here prevailed was a ground of unconstitutionality urged before the California court; upon its rejection by that court it was made the basis of appeal 10 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. to this Court; it was here urged as the decisive ground for the reversal of the California judgment. The Stromberg case dealt with a statute which proscribed conduct in a threefold way. The information upon which a verdict of guilty was secured was couched in the threefold terms of the statute, and in that form submitted to the jury. A general verdict followed. It was urged throughout the proceedings, and finally at the bar of this Court, that one of the proscriptions of the statute was invalid under the Fourteenth Amendment. That view was sustained. All that the case holds is that where the validity of a statute is successfully assailed as to one of three clauses of a statute and all three clauses were submitted to the jury, the general verdict has an infirmity because it cannot be assumed that the jury convicted on the valid portions of the statute and not on the invalid. There was no question in that case of searching the record for an alleged error that at no time was urged against the State judgment brought here for review. In the Stromberg case an error that was properly urged was sustained. In this case a claim that was not urged but was disavowed is transmuted into a claim denied. Only the uninformed will deride as a merely technical point objection to what the Court is doing in this case. The matter touches the very basis of this Court’s authority in reviewing the judgments of State courts. We have no authority to meddle with such a judgment unless some claim under the Constitution or the laws of the United States has been made before the State court whose judgment we are reviewing and unless the claim has been denied by that court.1 How could there have been a 1 “Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied, Murdock n. City of Memphis, 20 Wall. 590; Haire v. Rice, 1 TERMINISELO v. CHICAGO. Frankfurter, J., dissenting. 11 denial of a federal claim by the Illinois courts, i. e., that the trial judge offended the Constitution of the United States in what he told the jury, when no such claim was made? The relation of the United States and the courts of the United States to the States and the courts of the States is a very delicate matter. It is too delicate to permit silence when a judgment of a State court is reversed in disregard of the duty of this Court to leave untouched an adjudication of a State unless that adjudication is based upon a claim of a federal right which the State has had an opportunity to meet and to recognize. If such a federal claim was neither before the State court nor presented to this Court, this Court unwarrantably strays from its province in looking through the record to find some federal claim that might have been brought to the attention of the State court and, if so brought, fronted, and that might have been, but was not, urged here. This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency. Freedom of speech undoubtedly means freedom to express views that challenge deep-seated, sacred beliefs and to utter sentiments that may provoke resentment. But those indulging in such stuff as that to which this proceeding gave rise are hardly so deserving as to lead this Court to single them out as beneficiaries of the first 204 U. S. 291, 301; but to the particular claims duly made below, and denied. Seaboard Air Line Ry. n. Duvall, 225 U. S. 477, 485-488. We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United States, 163 U. S. 632, 658-660; Clyatt v. United States, 197 U. S. 207, 221-222. This is a writ of error to a state court. Because we may not enquire into the errors now alleged, I concur in affirming the judgment of the state court.” Concurring opinion of Mr. Justice Brandeis joined by Mr. Justice Holmes in Whitney v. California, 274 U. S. 357, 380. 12 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. departure from the restrictions that bind this Court in reviewing judgments of State courts. Especially odd is it to bestow such favor not for the sake of life or liberty, but to save a small amount of property—$100, the amount of the fine imposed upon the petitioner in a proceeding which is civil, not criminal, under the laws of Illinois, and thus subject only to limited review. City of Chicago v. Terminiello, 400 Ill. 23, 29, 79 N. E. 2d 39, 43. This Court has recognized that fines of this nature are not within provisions of the Constitution governing federal criminal prosecutions. See Hepner n. United States, 213 U. S. 103. The importance of freedom of speech of course cannot be measured by dollars and cents. A great principle may be at stake, as in the Case of the Ship Money, though the issue arise over the payment of a few shillings’ tax. Were the Court to sustain the claim urged throughout these proceedings, in Illinois and here, namely, that a law is unconstitutional when it forbids Terminiello’s harangue in the circumstances of its utterance, it would be immaterial that only $100 is involved. But to inject an error into the record in order to avoid the issue on which the case was brought here—for certainly relief from the payment of a fine of $100 could not alone have induced this Court to excogitate a defect in the judgment which counsel thoughtfully rejected and which three State courts did not consider—hardly raises the objection to the dignity of such a principle. If the Court refrained from taking phrases out of their environment and finding in them a self-generated objection, it could not be deemed to have approved of them even as abstract propositions. On the merits of the issue reached by the Court, I share Mr. Justice Jackson’s views. For I assume that the Court does not mean to reject, except merely for purposes of this case, the basic principle that guides scrutiny of TERMINIELLO v. CHICAGO. 13 1 Jackson, J., dissenting. a charge on appeal. I assume, that is, that a charge is not to be deemed a bit of abstraction in a non-existing world; the function which a charge serves is to give practical guidance to a jury in passing on the case that was unfolded before it—the particular circumstances in their particular setting. Mr. Justice Jackson and Mr. Justice Burton join this dissent. Mr. Justice Jackson, dissenting. The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello’s speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore. But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two. When the trial judge instructed the jury that it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing alarm, he was not speaking of these as harmless or abstract conditions. He was addressing his words to the concrete behavior and specific consequences disclosed by the evidence. He was saying to the jury, in effect, that if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace. When the light of the evidence not recited by the Court is thrown upon the Court’s opinion, it discloses that underneath a little issue of 14 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order. An old proverb warns us to take heed lest we “walk into a well from looking at the stars.” To show why I think the Court is in some danger of doing just that, I must bring these deliberations down to earth by a long recital of facts. Terminiello, advertised as a Catholic Priest, but revealed at the trial to be under suspension by his Bishop, was brought to Chicago from Birmingham, Alabama, to address a gathering that assembled in response to a call signed by Gerald L. K. Smith, which, among other things, said: “. . . The same people who hate Father Coughlin hate Father Terminiello. They have persecuted him, hounded him, threatened him, but he has remained unaffected by their anti-Christian campaign against him. You will hear all sorts of reports concerning Father Terminiello. But remember that he is a Priest in good standing and a fearless lover of Christ and America.” The jury may have considered that this call attempted to capitalize the hatreds this man had stirred and foreshadowed, if it did not intend to invite, the kind of demonstration that followed. Terminiello’s own testimony shows the conditions under which he spoke. So far as material it follows: “. . . We got there [the meeting place] approximately fifteen or twenty minutes past eight. The car stopped at the front entrance. There was a TERMINIELLO v. CHICAGO. 15 1 Jackson, J., dissenting. crowd of three or four hundred congregated there shouting and cursing and picketing. . . . “When we got there the pickets were not marching; they were body to body and covered the sidewalk completely, some on the steps so that we had to form a flying wedge to get through. Police escorted us to the building, and I noticed four or five others there. “They called us 'God damned Fascists, Nazis, ought to hang the so and sos.’ When I entered the building I heard the howls of the people outside. . . . There were four or five plain clothes officers standing at the entrance to the stage and three or four at the entrance to the back door. “The officers threatened that if they broke the door again they would arrest them and every time they opened the door a little to look out something was thrown at the officers, including ice-picks and rocks. “A number of times the door was broken, was partly broken through. There were doors open this way and they partly opened and the officers looked out two or three times and each time ice-picks, stones and bottles were thrown at the police at the door. I took my place on the stage, before this I was about ten or fifteen minutes in the body of the hall. “I saw a number of windows broken by stones or missiles. I saw the back door being forced open, pushed open. “The front door was broken partly open after the doors were closed. There were about seven people seated on the stage. Smith opened the meeting with prayer, the Pledge of Allegiance to the Flag and singing of America. There were other speakers who spoke before me and before I spoke I heard things happening in the hall and coming from the outside. 16 OCTOBER TERM, 1948. Jackson, J., dissenting. 337U.S. “I saw rocks being thrown through windows and that continued throughout at least the first half of the meeting, probably longer, and again attempts were made to force the front door, rather the front door was forced partly. The howling continued on the outside, cursing could be heard audibly in the hall at times. Police were rushing in and out of the front door protecting the front door, and there was a general commotion, all kinds of noises and violence—all from the outside. “Between the time the first speaker spoke and I spoke, stones and bricks were thrown in all the time. I started to speak about 35 or 40 minutes after the meeting started, a little later than nine o’clock. . . .” The court below, in addition to this recital, heard other evidence, that the crowd reached an estimated number of 1,500. Picket lines obstructed and interfered with access to the building. The crowd constituted “a surging, howling mob hurling epithets” at those who would enter and “tried to tear their clothes off.” One young woman’s coat was torn off and she had to be assisted into the meeting by policemen. Those inside the hall could hear the loud noises and hear those on the outside yell, “Fascists,” “Hitlers” and curSe words like “damn Fascists.” Bricks were thrown through the windowpanes before and during the speaking. About 28 windows were broken. The street was black with people on both sides for at least a block either way; bottles, stink bombs and brickbats were thrown. Police were unable to control the mob, which kept breaking the windows at the meeting hall, drowning out the speaker’s voice at times and breaking in through the back door of the auditorium. About 17 of the group outside were arrested by the police. Knowing of this environment, Terminiello made a long speech, from the stenographic record of which I omit TERMINIELLO v. CHICAGO. 17 1 Jackson, J., dissenting. relatively innocuous passages and add emphasis to what seems especially provocative: “Father Terminiello: Now, I am going to whisper my greetings to you, Fellow Christians. I will interpret it. I said, ‘Fellow Christians/ and I suppose there are some of the scum got in by mistake, so I want to tell a story about the scum: “. . . And nothing I could say tonight could begin to express the contempt I have for the slimy scum that got in by mistake. “. . . The subject I want to talk to you tonight about is the attempt that is going on right outside this hall tonight, the attempt that is going on to destroy America by revolution. . . . “My friends, it is no longer true that it can’t happen here. It is happening here, and it only depends upon you, good people, who are here tonight, depends upon all of us together, as Mr. Smith said. The tide is changing, and if you and I turn and run from that tide, we will all be drowned in this tidal wave of Communism which is going over the world. “. . . I am not going to talk to you about the menace of Communism, which is already accomplished, in Russia, where from eight to fifteen million people were murdered in cold blood by their own countrymen, and millions more through Eastern Europe at the close of the war are being murdered by these murderous Russians, hurt, being raped and sent into slavery. That is what they want for you, that howling mob outside. “I know I was told one time that my winter quarters were ready for me in Siberia. I was told that. Now, I am talking about the fifty-seven varieties that we have in America, and we have fifty-seven varieties of pinks and reds and pastel shades in this country; and all of it can be traced back to the 18 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. twelve years we spent under the New Deal, because that was the build-up for what is going on in the world today. “Now, Russia promised us we would ga [sic] back to the official newspaper of Russia. Primarily, it was back about 1929. They quoted the words of George E. Dimitroff, who at that time was the Executive Secretary of the Communist International. I only quote you this one passage. I could quote thousands of paragraphs for you. Let me quote you: ‘The worldwide nature of our program is not mere talk, but an all embracing blood-soaked reality.’ That is what they want for us, a blood-soaked reality but it was promised to us by the crystal gazers in Washington; and you know what I mean by the ‘crystal gazers’, I presume. “First of all, we had Queen Eleanor. Mr. Smith said, ‘Queen Eleanor is now one of the world’s communists. She is one who said this—imagine, coming from the spouse of the former President of the United States for twelve long years—this is what she said: ‘The war is but a step in the revolution. The war is but one step in the revolution, and we know who started the war.’ “Then we have Henry Adolph Wallace, the sixty million job magician. You know we only need fifty-four million jobs in America and everybody would be working. He wants sixty million jobs, because some of the bureaucrats want two jobs apiece. Here he is, what he says about revolution: ‘We are in for a profound revolution. Those of us who realize the inevitableness of the revolution, and are anxious that it be gradual and bloodless instead of somewhat bloody. Of course, if necessary, we will have it more bloody.’ TERMINIELLO v. CHICAGO. 19 1 Jackson, J., dissenting. “And then Chief Justice Stone had this to say: ‘A way has been found for the effective suppression of speeches and press and religion, despite constitutional guarantee/—from the Chief Justice, from the Chief Justice of the United States. “Now, my friends, they are planning another ruse; and if it ever happens to this cou-try [sic], God help America. They are going to try to put into Mr. Edgar Hoover’s position a man by the name of George Swarzwald. I think even those who were uneducated on so-called sedition charges, that the majority of the individuals in this department, that Christ-like men and women who realize today what is going on in this country, men who are in this audience today, who want to know the names of those people, before they are outside, they want to know the names if any. Did you hear any tonight that you recognize? Most of them probably are imported. They are imported from Russia, certainly. If you know the names, please send them to me immediately. . . . “. . . Didn’t you ever read the Morgenthau plan for the starvation of little babies and pregnant women in Germany? Whatever could a child that is born have to do with Hitler or anyone else at the beginning of the war? Why should every child in Germany today not live to be more than two or three months of age? Because Morgenthau wants it that way, and so did F. D. R. . . . You will know who is behind it when I tell you the story of a doctor in Akron, Ohio. He boasted to a friend of mine within the last few days, while he was in the service of this country as a doctor, he and others of his kind made it a practice—now, this was not only one man—made it a practice to amputate the limbs of every German they came in contact with when-837446 0—49-6 20 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. ever they could get away with it; so, that they could never carry a gun. Imagine men of that caliber, sworn to serve this beautiful country of ours, why should we tolerate them? “My friends, this moment someone reminded me of the plan to sterilize them. The nurses, they tell me are going to inject diseases in them, syphilis and other diseases in every one that came there all of one race, all non-Christians. . . . “Now, we are going to get the threats of the people of Argentine, the people of Spain., We have now declared, according to our officials, to have declared Franco to have taken the place of Hitler. Franco was the savior of what was left of Europe. “Now, let me say, I am going to talk about—I almost said, about the Jews. Of course, I would not want to say that. However, I am going to talk about some Jews. I hope that—I am a Christian minister. We must take a Christian attitude. I don’t want you to go from this hall with hatred in your heart for any person, for no person. . . . “Now, this danger which we face—let us call them Zionist Jews if you will, let’s call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You remember the Apostles when they went into the upper room after the death of the Master, they went in there, after locking the doors; they closed the windows. (At this time there was a very loud noise as if something was being thrown into the building.) “Don’t be disturbed. That happened, by the way, while Mr. Gerald Smith was saying ‘Our Father who art in heaven;’ (just then a rock went through the window.) Do you wonder they were persecuted in other countries in the world? . . . TERMINIELLO v. CHICAGO. 21 1 Jackson, J., dissenting. “You know I have always made a study of the psychology, sociology of mob reaction. It is exemplified out there. Remember there has to be a leader to that mob. He is not out there. He is probably across the street, looking out the window. There must be certain things, money, other things, in order to have successful mob action; there must be rhythm. There must be some to beat a cadence. Those mobs are chanting; that is the caveman’s chant. They were trained to do it. They were trained this afternoon. They are being led; there will be violence. “That is why I say to you, men, don’t you do it. Walk out of here dignified. The police will protect you. Put the women on the inside, where there will be no hurt to them. Just walk; don’t stop and argue. . . . They want to picket our meetings. They don’t want us to picket their meetings. It is the same kind of tolerance, if we said there was a bedbug in bed, ‘We don’t care for you,’ or if we looked under the bed and found a snake and said, ‘I am going to be tolerant and leave the snake there.’ We will not be tolerant of that mob out there. We are not going to be tolerant any longer. “We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us. . . . “So, my friends, since we spent much time tonight trying to quiet the howling mob, I am going to bring my thoughts to a conclusion, and the conclusion is this. We must all be like the Apostles before the coming of the Holy Ghost. We must not lock ourselves in an upper room for fear of the Jews. I speak of the Communistic Zionistic Jew, and those are not American Jews. We don’t want them here; we want them to go back where they came from. 22 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. “Mr. Smith: I would like to ask that Miss Purcell would please go back to the front of the building and contact the police officer in charge of the detail. We are going to adjourn this meeting if and when Miss Purcell comes back and reports to me that the one in charge of the detail believes it is safe for us to go out on the street. I am sure it is. Sit still. We are not going to have anybody move. If there are any chiselers that want to go, we are going to take up an offering for Father Terminiello. “(There was further discussion to stimulate this offering which was not reported.)” Such was the speech. Evidence showed that it stirred the audience not only to cheer and applaud but to expressions of immediate anger, unrest and alarm. One called the speaker a “God damned liar” and was taken out by the police. Another said that “Jews, niggers and Catholics would have to be gotten rid of.” One response was, “Yes, the Jews are all killers, murderers. If we don’t kill them first, they will kill us.” The anti-Jewish stories elicited exclamations of “Oh!” and “Isn’t that terrible!” and shouts of “Yes, send the Jews back to Russia,” “Kill the Jews,” “Dirty kikes,” and much more of ugly tenor. This is the specific and concrete kind of anger, unrest and alarm, coupled with that of the mob outside, that the trial court charged the jury might find to be a breach of peace induced by Terminiello. It is difficult to believe that this Court is speaking of the same occasion, but it is the only one involved in this litigation. Terminiello, of course, disclaims being a fascist. Doubtless many of the indoor audience were not consciously such. His speech, however, followed, with fidelity that is more than coincidental, the pattern of European fascist leaders. TERMINIELLO v. CHICAGO. 23 1 Jackson, J., dissenting. The street mob, on the other hand, included some who deny being communists, but Terminiello testified and offered to prove that the demonstration was communist-organized and communist-led. He offered literature of left-wing organizations calling members to meet and “mobilize” for instruction as pickets and exhorting followers: “All out to fight Fascist Smith.” As this case declares a nation-wide rule that disables local and state authorities from punishing conduct which produces conflicts of this kind, it is unrealistic not to take account of the nature, methods and objectives of the forces involved. This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. Increasingly, American cities have to cope with it. One faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads to counteract the other’s pickets; parade is met with counterparade. Each of these mass demonstrations has the potentiality, and more than a few the purpose, of disorder and violence. This technique appeals not to reason but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the purposes for which these tactics are calculated nor as to their consequences. Recent European history demonstrates both. Hitler summed up the strategy of the mass demonstration as used by both fascism and communism: “We should not work in secret conventicles, but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement but by the conquest of the streets. We must teach the Marxists 24 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. that the future master of the streets is National Socialism, just as it will some day be the master of the state.” (Emphasis supplied.) 1 Nazi Conspiracy and Aggression (GPO, 1946) 204, 2 id. 140, Docs. 2760-PS, 404-PS, from “Mein Kampf.” First laughed at as an extravagant figure of speech, the battle for the streets became a tragic reality when an organized Sturmabteilung began to give practical effect to its slogan that “possession of the streets is the key to power in the state.” Ibid., also Doc. 2168-PS. The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements of all shades of opinion, but who, whatever their differences, submit them to free elections which register the results of their free discussion. The fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence, and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: “Christian Nationalism or World Communism— Which?” This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic governments is advanced whenever either of them can win from this Court a ruling which paralyzes the power of these officials. This is such a case. The group of which Terminiello is a part claims that his behavior, because it involved a speech, is above the reach of local authorities. TERMINIELLO v. CHICAGO. 25 1 Jackson, J., dissenting. If the mild action those authorities have taken is forbidden, it is plain that hereafter there is nothing effective left that they can do. If they can do nothing as to him, they are equally powerless as to rival totalitarian groups. Terminiello’s victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority that can curb them in their battle for the streets. I am unable to see that the local authorities have transgressed the Federal Constitution. Illinois imposed no prior censorship or suppression upon Terminiello. On the contrary, its sufferance and protection was all that enabled him to speak. It does not appear that the motive in punishing him is to silence the ideology he expressed as offensive to the State’s policy or as untrue, or has any purpose of controlling his thought or its peaceful communication to others. There is no claim that the proceedings against Terminiello are designed to discriminate against him or the faction he represents or the ideas that he bespeaks. There is no indication that the charge against him is a mere pretext to give the semblance of legality to a covert effort to silence him or to prevent his followers or the public from hearing any truth that is in him. A trial court and jury has found only that in the context of violence and disorder in which it was made, this speech was a provocation to immediate breach of the peace and therefore cannot claim constitutional immunity from punishment. Under the Constitution as it has been understood and applied, at least until most recently, the State was within its powers in taking this action. Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish. Where an offense is 26 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U.S. induced by speech, the Court has laid down and often reiterated a test of the power of the authorities to deal with the speaking as also an offense. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring, about the substantive evils that Congress [or the State or City] has a right to prevent.” (Emphasis supplied.) Mr. Justice Holmes in Schenck v. United States, 249 U. S. 47, 52. No one ventures to contend that the State on the basis of this test, for whatever it may be worth, was not justified in punishing Terminiello. In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate. If this Court has not silently abandoned this longstanding test and substituted for the purposes of this case an unexpressed but more stringent test, the action of the State would have to be sustained. Only recently this Court held that a state could punish as a breach of the peace use of epithets such as “damned racketeer” and “damned fascist,” addressed to only one person, an official, because likely to provoke the average person to retaliation. But these are mild in comparison to the epithets “slimy scum,” “snakes,” “bedbugs,” and the like, which Terminiello hurled at an already inflamed mob of his adversaries. Mr. Justice Murphy, writing for a unanimous Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572, said: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed TERMINIELLO v. CHICAGO. 27 1 Jackson, J., dissenting. that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.” In the latter case Mr. Justice Roberts for a unanimous Court also said: “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. 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.” 310 U. S. 296, 308. How this present decision, denying state power to punish civilly one who precipitated a public riot involving hundreds of fanatic fighters in a most violent melee, can be squared with those unanimous statements of law, is incomprehensible to me. And the Court recently cited these two statements as indicating that “The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mock- 28 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. ery.” United Public Workers v. Mitchell, 330 U. S. 75, 95. However, these wholesome principles are abandoned today and in their place is substituted a dogma of absolute freedom for irresponsible and provocative utterance which almost completely sterilizes the power of local authorities to keep the peace as against this kind of tactics. Before giving the First and Fourteenth Amendments to the Constitution this effect, we should recall that our application of the First Amendment to Illinois rests entirely on authority which this Court has voted to itself. The relevant parts of the First Amendment, with emphasis supplied, reads: “Congress shall make no law . . . abridging the freedom of speech.” This restrains no authority except Congress. Read as literally as some would do, it restrains Congress in terms so absolute that no legislation would be valid if it touched free speech, no matter how obscene, treasonable, defamatory, inciting or provoking. If it seems strange that no express qualifications were inserted in the Amendment, the answer may be that limitations were thought to be implicit in the definition of “freedom of speech” as then understood. Or it may have been thought unnecessary to delegate to Congress any power over abuses of free speech. The Federal Government was then a new and experimental authority, remote from the people, and it was supposed to deal with a limited class of national problems. Inasmuch as any breaches of peace from abuse of free speech traditionally were punishable by state governments, it was needless to reserve that power in a provision drafted to exclude only Congress from such a field of law-making. The Fourteenth Amendment forbade states to deny the citizen “due process of law.” But its terms gave no notice to the people that its adoption would strip their local governments of power to deal with such problems of local TERMINIELLO v. CHICAGO. 29 1 Jackson, J., dissenting. peace and order as we have here. Nor was it hinted by this Court for over half a century that the Amendment might have any such effect. In 1922, with concurrence of the most liberty-alert Justices of all times—Holmes and Brandeis—this Court declared flatly that the Constitution does not limit the power of the state over free speech. Prudential Insurance Co. n. Cheek, 259 U. S. 530, 543. In later years the Court shifted its dogma and decreed that the Constitution does this very thing and that state power is bound by the same limitation as Congress. Gitlow v. New York, 268 U. S. 652. I have no quarrel with this history. See Board of Education v. Barnette, 319 U. S. 624. I recite the method by which the right to limit the state has been derived only from this Court’s own assumption of the power, with never a submission of legislation or amendment into which the people could write any qualification to prevent abuse of this liberty, as bearing upon the restraint I consider as becoming in exercise of selfgiven and unappealable power. It is significant that provisions adopted by the people with awareness that they applied to their own states have universally contained qualifying terms. The Constitution of Illinois is representative of the provisions put in nearly all state constitutions and reads (Art. II, § 4) : “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.” (Emphasis added.) That is what I think is meant by the cryptic phrase “freedom of speech,” as used in the Federal Compact, and that is the rule I think we should apply to the states. This absence from the Constitution of any expressed power to deal with abuse of freedom of speech has enabled the Court to soar aloof from any consideration of the abuses which create problems for the states and to indulge in denials of local authority, some of which seem to me improvident in the light of functions which local gov- 30 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. ernments must be relied on to perform for our free society. Quite apart from any other merits or defects, recent decisions have almost completely immunized this battle for the streets from any form of control. Streets and parks maintained by the public cannot legally be denied to groups “for communication of ideas.” Hague n. C. I. 0., 307 U. S. 496; Jamison v. Texas, 318 U. S. 413. Cities may not protect their streets from activities which the law has always regarded subject to control, as nuisances. Lovell v. Griffin, 303 U. S. 444; Schneider n. State, 308 U. S. 147. Cities may not protect the streets or even homes of their inhabitants from the aggressions of organized bands operating in large numbers. Douglas n. Jeannette, 319 U. S. 157. As in this case, the facts are set forth fully only in the dissent, p. 166. See also Martin v. Struthers, 319 U. S. 141. Neither a private party nor a public authority can invoke otherwise valid state laws against trespass to exclude from their property groups bent on disseminating propaganda. Marsh v. Alabama, 326 U. S. 501; Tucker N. Texas, 326 U. S. 517. Picketing is largely immunized from control on the ground that it is free speech, Thornhill v. Alabama, 310 U. S. 88, and police may not regulate sound trucks and loud-speakers, Saia v. New York, 334 U. S. 558, though the Court finds them an evil that may be prohibited altogether. Kovacs n. Cooper, 336 U. S. 77. And one-third of the Court has gone further and declared that a position “that the state may prevent any conduct which induces people to violate the law, or any advocacy of unlawful activity, cannot be squared with the First Amendment . . and it is only we who can decide when the limit is passed. Musser n. Utah, 333 U. S. 95, 102. Whatever the merits of any one of these decisions in isolation, and there were sound reasons for some of them, it cannot be denied that their cumulative effect has been a sharp handicap on municipal control TERMINIELLO v. CHICAGO. 31 1 Jackson, J., dissenting. of the streets and a dramatic encouragement of those who would use them in a battle of ideologies. I do not think we should carry this handicap further, as we do today, but should adhere to the principles heretofore announced to safeguard our liberties against abuse as well as against invasion. It should not be necessary to recall these elementary principles, but it has been a long time since some of them were even mentioned in this Court’s writing on the subject and results indicate they may have been overlooked. I begin with the oft-forgotten principle which this case demonstrates, that freedom of speech exists only under law and not independently of it. What would Ter-miniello’s theoretical freedom of speech have amounted to had he not been given active aid by the officers of the law? He could reach the hall only with their help, could talk only because they restrained the mob, and could make his getaway only under their protection. We would do well to recall the words of Chief Justice Hughes in Cox v. New Hampshire, 312 U. S. 569, 574: “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. . . .” This case demonstrates also that this Court’s service to free speech is essentially negative and can consist only of reviewing actions by local magistrates. But if free speech is to be a practical reality, affirmative and immediate protection is required; and it can come only from nonjudicial sources. It depends on local police, maintained by law-abiding taxpayers, and who, regardless of their own feelings, risk themselves to maintain supremacy of law. Terminiello’s theoretical right to speak free from interference would have no reality if Chicago should withdraw its officers to some other section of the city, or if the men assigned to the task should look the other 32 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. way when the crowd threatens Terminiello. Can society be expected to keep these men at Terminiello’s service if it has nothing to say of his behavior which may force them into dangerous action? No one will disagree that the fundamental, permanent and overriding policy of police and courts should be to permit and encourage utmost freedom of utterance. It is the legal right of any American citizen to advocate peaceful adoption of fascism or communism, socialism or capitalism. He may go far in expressing sentiments whether pro-Semitic or anti-Semitic, pro-Negro or antiNegro, pro-Catholic or anti-Catholic. He is legally free to argue for some anti-American system of government to supersede by constitutional methods the one we have. It is our philosophy that the course of government should be controlled by a consensus of the governed. This process of reaching intelligent popular decisions requires free discussion. Hence we should tolerate no law or custom of censorship or suppression. But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching or public disorder is likely to get going without help of some speech-making to some mass of people. A street may be filled with men and women and the crowd still not be a mob. Unity of purpose, passion and hatred, which merges the many minds of a crowd into the mindlessness of a mob, almost invariably is supplied by speeches. It is naive, or worse, to teach that oratory with this object or effect is a service to liberty. No mob has ever protected any liberty, even its own, but if not put down it always winds up in an orgy of lawlessness which respects no liberties. In considering abuse of freedom by provocative utterances it is necessary to observe that the law is more tolerant of discussion than are most individuals or communities. Law is so indifferent to subjects of talk that I think of none that it should close to discussion. Rell- TERMINIELLO v. CHICAGO. 33 1 Jackson, J., dissenting. gious, social and political topics that in other times or countries have not been open to lawful debate may be freely discussed here. Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. So it happens that, while peaceful advocacy of communism or fascism is tolerated by the law, both of these doctrines arouse passionate reactions. A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence many speeches, such as that of Terminiello, may be legally permissible but may nevertheless in some surroundings be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society. Determination of such an issue involves a heavy responsibility. Courts must beware lest they become mere organs of popular intolerance. Not every show of opposition can justify treating a speech as a breach of peace. Neither speakers nor courts are obliged always and in all circumstances to yield to prevailing opinion and feeling. As a people grow in capacity for civilization and liberty their tolerance will grow, and they will endure, if not welcome, discussion even on topics as to which they are committed. They regard convictions as tentative and know that time and events will make their own terms with theories, by whomever and by whatever majorities they are held, and many will be proved wrong. But on our way to this idealistic state of tolerance the police have to deal with men as they are. The crowd mind is never tolerant of any idea which does not conform to its herd opinion. It does not want a tolerant effort at meeting of minds. It does not know the futility of trying to mob an idea. Released from the sense of 34 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. personal responsibility that would restrain even the worst individuals in it if alone and brave with the courage of numbers, both radical and reactionary mobs endanger liberty as well as order. The authorities must control them and they are entitled to place some checks upon those whose behavior or speech calls such mobs into being. When the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion, presents a problem that always tests wisdom and often calls for immediate and vigorous action to preserve public order and safety. I do not think that the Constitution of the United States denies to the states and the municipalities power to solve that problem in the light of local conditions, at least so long as danger to public order is not invoked in bad faith, as a cover for censorship or suppression. The preamble declares domestic tranquility as well as liberty to be an object in founding a Federal Government and I do not think the Forefathers were naive in believing both can be fostered by the law. Certain practical reasons reinforce the legal view that cities and states should be sustained in the power to keep their streets from becoming the battleground for these hostile ideologies to the destruction and detriment of public order. There is no other power that can do it. Theirs are the only police that are on the spot. The Federal Government has no police force. The Federal Bureau of Investigation is, and should remain, not a police but an investigative service. To date the only federal agency for preserving and restoring order when local authority fails has been the Army. And when the military steps in, the court takes a less liberal view of the rights of the individual and sustains most arbitrary exercises of military power. See Korematsu N. United States, 323 U. S. 214. Every failure of local authority to deal with riot problems results in a demand for the TERMINIELLO v. CHICAGO. 35 1 Jackson, J., dissenting. establishment of a federal police or intervention by federal authority. In my opinion, locally established and controlled police can never develop into the menace to general civil liberties that is inherent in a federal police. The ways in which mob violence may be worked up are subtle and various. Rarely will a speaker directly urge a crowd to lay hands on a victim or class of victims. An effective and safer way is to incite mob action while pretending to deplore it, after the classic example of Antony, and this was not lost on Terminiello. And whether one may be the cause of mob violence by his own personification or advocacy of ideas which a crowd already fears and hates, is not solved merely by going through a transcript of the speech to pick out “fighting words.” The most insulting words can be neutralized if the speaker will smile when he says them, but a belligerent personality and an aggressive manner may kindle a fight without use of words that in cold type shock us. True judgment will be aided by observation of the individual defendant, as was possible for this jury and trial court but impossible for us. There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it as did Goebbels when he said: “When democracy granted democratic methods for us in the times of opposition, this [Nazi seizure of power] was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of [our] opposition.” 1 Nazi Conspiracy and Aggression (GPO, 1946) 202, Doc. 2412-PS. 837446 0—49------------7 36 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U.S. Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone'. But I would not be understood as suggesting that the United States can or should meet this dilemma by suppression of free, open and public speaking on the part of any group or ideology. Suppression has never been a successful permanent policy; any surface serenity that it creates is a false security, while conspiratorial forces go underground. My confidence in American institutions and in the sound sense of the American people is such that if with a stroke of the pen I could silence every fascist and communist speaker, I would not do it. For I agree with Woodrow Wilson, who said: “I ‘have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out and the world knows that he is a fool. So it is by the exposure of folly that it is defeated; not by the seclusion of folly, and in this free air of free speech men get into that sort of communication with one another which constitutes the basis of all common achievement.” Address at the Institute of France, Paris, May 10, 1919. 2 Selected Literary and Political Papers and Addresses of Woodrow Wilson (1926) 333. But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In TERMINIELLO v. CHICAGO. 37 1 Jackson, J., dissenting. the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. What would it matter to Terminiello if the police batter up some communists or, on the other hand, if the communists batter up some policemen? Either result makes grist for his mill; either would help promote hysteria and the demand for strong-arm methods in dealing with his adversaries. And what, on the other hand, have the communist agitators to lose from a battle with the police? This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. I would affirm the conviction. Mr. Justice Burton joins in this opinion. 38 OCTOBER TERM, 1948. Syllabus. 337 U.S. UNION NATIONAL BANK v. LAMB. APPEAL FROM THE SUPREME COURT OF MISSOURI. No. 500. Argued March 31, 1949.—Decided May 16, 1949. 1. A judgment of the highest court of a State determining a claim of right under the Full Faith and Credit Clause of the Federal Constitution is reviewable here not by appeal but by certiorari; and the papers whereon an appeal has been improvidently taken in such a case may be treated as a petition for a writ of certiorari. 28 U. S. C. §§ 1257 (3), 2103. Pp. 39-40. 2. Where the last day of the period within which a review by this Court on appeal or certiorari may be applied for falls on a Sunday or legal holiday, an application made on the next day which is not a Sunday or legal holiday is timely under 28 U. S. C. § 2101 (c) and Rule 6 (a) of the Rules of Civil Procedure. Pp. 40-41. 3. In 1927 petitioner obtained a Colorado judgment against respondent, which was revived in Colorado in 1945 on personal service upon respondent in Missouri. Suit was then brought in Missouri on the revived Colorado judgment. The Supreme Court of Missouri, though assuming that the judgment was valid in Colorado, refused to enforce it because, under Missouri law, the original judgment could not have been revived in 1945. Held: The decision of the Missouri Court that, whatever the effect of revivor under Colorado law, the Colorado judgment was not entitled to full faith and credit in Missouri, is erroneous. Roche n. McDonald, 275 U. S. 449. Pp. 41-45. 4. The question of the status of the 1945 judgment under Colorado law, and the question whether the service on which the Colorado judgment was revived satisfied due process, which were not passed upon by the Missouri Court, will be open on remand of the cause. P.44. 358 Mo. 65, 213 S. W. 2d 416, reversed. The Supreme Court of Missouri refused enforcement of a Colorado judgment. 358 Mo. 65, 213 S. W. 2d 416. Treating the appeal papers as a petition for certiorari, this Court grants certiorari and reverses the judgment. Pp. 40-41, 45. 38 UNION NATIONAL BANK v. LAMB. 39 Opinion of the Court. Maurice J. O’Sullivan argued the cause and filed a brief for appellant. Daniel L. Brenner submitted on brief for appellee. Mr. Justice Douglas delivered the opinion of the Court. Missouri has a statute which limits the life of a judgment to ten years after its original rendition or ten years after its revival.1 Missouri also provides that no judgment can be revived after ten years from its rendition.2 These provisions are applicable to all judgments whether rendered by a Missouri court or by any other court. Petitioner has a Colorado judgment against respondent. It was obtained in 1927 and revived in Colorado3 in 1945 on personal service upon respondent in Missouri. Suit was then brought in Missouri on the revived Colorado judgment. The Supreme Court of Missouri, though assuming that the judgment was valid in Colorado, refused to enforce it because the original judgment under Missouri’s law could not have been revived in 1945. It held that the lex fori governs the limitations of actions and that the Full Faith and Credit Clause of the Constitution, Art. IV, § 1, did not require Missouri to recognize Colorado’s more lenient policy as respects revival of judgments. 358 Mo. 65, 213 S. W. 2d 416. 1. Petitioner sought to bring the case here by appeal. But we postponed the question of jurisdiction to the merits. Certiorari, not appeal, is the route by which the question whether or not full faith and credit has been given a foreign judgment is brought here. Roche v. McDonald, 275 U. S. 449; Morris v. Jones, 329 U. S. 545. 11 Rev. Stat. Mo. 1939, § 1038. 21 Rev. Stat. Mo. 1939, § 1271. 31 Colo. Stat. Ann. 1935, c. 6, Rule 54 (h); 3 id., e. 93, § 2. 40 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. Hence we treat the papers as a petition for certiorari, 28 U. S. C. § 2103, and grant it. 2. The opinion of the Supreme Court of Missouri was handed down July 12, 1948, and the motion for rehearing or for transfer to the court en banc4 was denied September 13, 1948. The appeal was allowed by the Missouri court on December 13,1948. That was within three months and therefore timely prior to the revision of the Judicial Code. But 28 U. S. C. § 2101 (c), effective September 1, 1948, reduced that period to ninety days. The ninetieth day was December 12, 1948, which was a Sunday. There is a contrariety of views whether an act which by statute is required to be done within a stated period may be done a day later when the last day of the period falls on Sunday.5 Thus Street v. United States, 133 U. S. 299, treating Sunday as a dies non under a statute which authorized the President to transfer army officers from active duty and to fill vacancies in the active list on or before January 1, 1871, allowed the action to be taken on the following day. We think the policy of that decision is applicable to 28 U. S. C. § 2101 (c). Rule 6 (a) of the Rules of Civil Procedure provides that where the last day for performance of an act falls on a Sunday or a legal holiday, performance on the next day which is not a Sunday or legal holiday is timely.6 That 4 See Gorman v. Washington University, 316 U. S. 98. 5Pro: Street v. United States, 133 U. S. 299; Sherwood Bros. v. District of Columbia, 72 App. D. C. 155, 113 F. 2d 162; Wilson v. Southern R. Co., 147 F. 2d 165. Contra: Johnson v. Meyers, 54 F. 417; Meyer v. Hot Springs Imp. Co., 169 F. 628; Siegelschijfer v. Penn. Mut. Life Ins. Co., 248 F. 226; Larkin Packer Co. n. Hinderliter Tool Co., 60 F. 2d 491; Walters v. Baltimore & O. R. Co., 76 F. 2d 599. 6 Rule 6(a) provides: “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the UNION NATIONAL BANK v. LAMB. 41 38 Opinion of the Court. rule provides the method for computation of time prescribed or allowed not only by the rules or by order of court but by “any applicable statute.” Since the rule had the concurrence of Congress,7 and since no contrary policy is expressed in the statute governing this review, we think that the considerations of liberality and leniency which find expression in Rule 6 (a) are equally applicable to 28 U. S. C. § 2101 (c). The appeal therefore did not fail for lack of timeliness. 3. Roche v. McDonald is dispositive of the merits. Roche had a Washington judgment against McDonald. He brought suit on that judgment in Oregon. He obtained a judgment in Oregon at a time when the original judgment had by Washington law expired and could not be revived. Roche then sued in Washington on the Oregon judgment. The Court reversed the Supreme Court of Washington which had held that full faith and credit need not be given the Oregon judgment since it would have been void and of no effect if rendered in Washington. The Court held that once the court of the sister State had jurisdiction over the parties and of the subject matter its judgment was valid and could not be impeached in the State of the forum, even though it could not have been obtained there. That decision was in line with Fauntleroy v. Lum, 210 U. S. 230 and Christmas v. Russell, 5 Wall. 290. For in those cases the Court designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.” 7 See Act of June 19, 1934, 48 Stat. 1064, 28 U. S. C. § 723c, now §2072; Rule 86, Rules of Civil Procedure; Sibbach v. Wilson & Co., 312 U.S. 1. 42 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. had held that the State of the forum could not defeat the foreign judgment because it was obtained by a procedure hostile to or inconsistent with that of the forum or because it was based on a cause of action which the forum itself would not have recognized. Any other result would defeat the aim of the Full Faith and Credit Clause and the statute enacted pursuant to it.8 It is when a clash of policies between two states emerges that the need of the Clause is the greatest. It and the statute which implements it are indeed designed to resolve such controversies. Morris v. Jones, supra. There is no room for an exception, as Roche v. McDonald makes plain, where the clash of policies relates to revived judgments rather than to the nature of the underlying claim as in Fauntleroy v. Lum, supra. It is the judgment that must be given full faith and credit. In neither case can its integrity be impaired, save for attacks on the jurisdiction of the court that rendered it. Cases of statute of limitations against a cause of action on a judgment (M’Elmoyle v. Cohen, 13 Pet. 312) in- 8 Article IV, § 1 of the Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The Act of Congress enacted pursuant to the Clause (28 U. S. C. § 1738), in part reads as follows: “The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” UNION NATIONAL BANK v. LAMB. 43 38 Opinion of the Court. volve different considerations as Christmas v. Russell, supra, p. 300, long ago pointed out. They do not undermine the integrity of the judgment on which suit is brought. In this case it is the 1945 Colorado judgment that claims full faith and credit in Missouri. No Missouri statute of limitations is tendered to cut off a cause of action based on judgments of that vintage. It is argued, however, that under Colorado law the 1945 Colorado judgment is not a new judgment and that the revivor did no more than extend the statutory period in which to enforce the old judgment.9 It is said that those were the assumptions on which the Missouri court proceeded. But we would have to add to and subtract from its opinion to give it that meaning. For when it placed revived judgments on the same basis as original judgments, it did so because of Missouri not Colorado law.10 This is not a situation where Colorado law also makes that conclusion plain. The Colorado authorities which 9 There is no concession that under Colorado law revival does not make a new judgment. Petitioner merely argues that the requirements of due process are less exacting in case of a revived, as distinguished from an original, judgment. 10 The Missouri court stated, 358 Mo. p. 70, 213 S. W. 2d p. 419: “Definitely, it is the law of this state that a foreign judgment, absent revival, or a payment thereon as provided in Sec. 1038, is barred in 10 years from the date of its original rendition regardless of what the limitation period may be under the law of the state where the judgment was rendered. Northwestern Brewers Supply Co. v. Vor-hees [356 Mo. 699, 203 S. W. 2d 422]. And the only reasonable conclusion to draw is that a revived judgment, domestic or foreign, absent a payment as provided in Sec. 1038, is barred under said section unless the revival was within 10 years from the date of original rendition or, if such is the case, within 10 years from the last revival. In other words, a foreign judgment, original or revived, has the same standing in Missouri, no better, no worse, than a domestic judgment. This does not run counter to the full faith and credit 44 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. have been cited to us indeed seem to hold just the opposite. Thus La Fitte v. Salisbury, 43 Colo. 248, 95 P. 1065, holds that a revived judgment has the effect of a new one.11 We are referred to no Colorado authorities to the contrary. But since the status of the 1945 judgment under Colorado law was not passed upon by the Missouri court, we do not determine the question. For the same reason we do not consider whether the service on which the Colorado judgment was revived satisfied due process. See Owens v. Henry, 161 U. S. 642. Both of those questions will be open on remand of the cause. The suggestion that we follow the course taken in Minnesota n. National Tea Co., 309 U. S. 551, and vacate the judgment and remand the cause to the Missouri court so that it may first pass on these questions would be appropriate only if it were uncertain whether that court adjudicated a federal question. That course is singularly inappropriate here since it is plain that the Missouri court held that, whatever the effect of revivor under Colorado law, the Colorado judgment was not entitled to full faith provision of the federal Constitution, because, as we have seen, the enforcement of a foreign judgment goes to the remedy only and that is a matter for the law of the forum.” Northwestern Brewers Supply Co. n. Vorhees, which the court cites, did not involve a revived judgment. It merely held that a Wisconsin judgment sued on in Missouri was subject to Missouri’s statute of limitations. The fact that the Missouri court in the present case held that the revived Colorado judgment was governed by that rule throws no light on the status of the revived judgment under Colorado law. 111 Colo. Stat. Ann. 1935, c. 6, Rule 54 (h) provides in part: “A revived judgment must be entered within 20 years after the entry of the judgment which it revives, and may be enforced and made a lien in the same manner and for like period as an original judgment.” UNION NATIONAL BANK v. LAMB. 45 38 Frankfurter, J., dissenting. and credit in Missouri. That holding is a ruling on a federal question and it cannot stand if, as assumed, the Colorado judgment had the force and effect of a new one. Reversed. Mr. Justice Black and Mr. Justice Rutledge dissent. Mr. Justice Frankfurter, dissenting. The Court finds that Roche N. McDonald, 275 U. S. 449, is “dispositive of the merits” of this case. I agree that that case demands the remand of this one; more than that can be found only by misconceiving what this case is about or what Roche v. McDonald decided. 1. Article IV, § 1 of the Constitution commands the courts of each State to give “Full Faith and Credit . . . to the . . . judicial Proceedings of every other State,” and we have interpreted this command so straitly as to mean that the State of the forum cannot go behind the judgment of a sister State to establish such an allegation as that the judgment was procured by fraud, Christmas v. Russell, 5 Wall. 290, or that the judgment creditor was not the real party in interest, Titus v. Wallick, 306 U. S. 282. We have even required a State which prohibited the enforcement of gambling contracts to give full faith and credit to another State’s judgment upon such a contract when the contract itself was entered in the State which regarded it as illegal. Fauntleroy v. Lum, 210 U. S. 230. See also Kenney v. Supreme Lodge, 252 U. S. 411; Morris v. Jones, 329 U. S. 545. 2. Considerations of policy lying behind the Full Faith and Credit Clause, however, are by no means so forcibly presented where the issue is simply whether the forum must respect the limitation period attached to a foreign judgment or whether it may apply its own. This Court has accordingly held that a State may refuse to enforce 46 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. the judgment of another State brought later than its own statute of limitations permits even though the judgment would still have been enforceable in the State which rendered it. M’Elmoyle v. Cohen, 13 Pet. 312; Bacon v. Howard, 20 How. 22. 3. Conversely, where the enforcement of a judgment by State A is sought in State B, which has a longer limitation period than State A, State B is plainly free to enter its own judgment upon the basis of State A’s original judgment, even though that judgment would no longer be enforceable in State A. If enforcement of State B’s new judgment is then sought in State A, State A cannot refuse to enforce it without violating the principle that the State where enforcement of a judgment is sought cannot look behind the judgment. That was the situation in Roche v. McDonald, 275 U. S. 449, and so we there held. 4. The present situation is this: Colorado entered a judgment in 1927 which in 1945 was there revived in accordance with Colorado’s procedure. In 1945 the 1927 judgment could not have been enforced in Missouri because barred by that State’s statute of limitations. The question whether the 1945 proceedings gave rise to a judgment enforceable in Missouri thus depends, obviously, on whether those proceedings created a new Colorado judgment, or whether they merely had the effect of extending the Colorado statute of limitations on the old judgment. Only in the former case would Roche v. McDonald be “dispositive of the merits”; in the latter, it is equally clear that M’Elmoyle v. Cohen, supra, 13 Pet. 312, and Bacon v. Howard, supra, 20 How. 22, would be controlling. Fundamental, therefore, to the issue of full faith and credit is an initial determination as to the effect in Colorado of its reviver proceedings. 5. The opinion of the Supreme Court of Missouri is not unequivocal. It could hardly, however, have assumed UNION NATIONAL BANK v. LAMB. 47 38 Frankfurter, J., dissenting. the law of Colorado to be that reviver proceedings create a new judgment, for it chiefly relied upon a decision of its own according full recognition to Roche v. McDonald and other cases invoking the principle that the forum cannot look behind a judgment brought there for enforcement. See Northwestern Brewers Supply Co. v. Vorhees, 356 Mo. 699, 703, 203 S. W. 2d 422, 424. Surely we ought not to attribute to a State court a flagrant disregard of the decisions of this Court, particularly when it shows awareness of these decisions.1 The more obvious interpretation of the Missouri court’s opinion is that it assumed the effect of the Colorado proceedings to be what the face of the Colorado statute implies, namely, to extend the statute of limitations on the original judgment.2 We should affirm, therefore, but for language which suggests a third view: that because the original judgment would have been unenforceable in Missouri at the time of the reviver proceedings, those proceedings were not entitled to full faith and credit no matter what their effect under Colorado law. If in fact the Colorado proceedings had resulted in a new judgment, this view would have disregarded Roche v. McDonald. But a State court may reach the right result despite an awkward formulation of the issue before it. Petitioner, to be entitled to redress, must establish that Colorado gave it a judgment which Missouri flouted, and it fails 1 The improbability that this was the view of the Missouri courts is emphasized by the fact that such a view would inevitably inject into the case an issue which in fact they put aside as irrelevant: the effectiveness of personal service upon defendant in Missouri to obtain jurisdiction in Colorado to supplant the old judgment by a new one. See Owens n. Henry, 161 U. S. 642. 2 “• . . from and after twenty years from the entry of final judgment in any court of this state, the same shall be considered as satisfied in full, unless revived as provided by law.” 3 Colo. Stat. Ann. 1935, c. 93, § 2. 48 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. to do so unless it shows that under Colorado law a judgment of reviver is a new judgment. 6. The Court does not find that petitioner has sustained this burden, and we should neither initiate an independent examination of Colorado law nor rest upon phrases in a single decision that does not explicitly adjudicate the question. Yet the Court concludes, “In this case it is the 1945 Colorado judgment that claims full faith and credit in Missouri. No Missouri statute of limitations is tendered to cut off a cause of action based on judgments of that vintage.” But the very question of Colorado law in issue is whether the 1945 proceedings did in fact create a new judgment entitled to claim full faith and credit. Since in the view most favorable to petitioner it is not clear whether the courts of Missouri have resolved this issue against petitioner or left it undecided, we should not by affirming foreclose all opportunity for petitioner to establish that the true effect of the reviver proceedings was to grant it a new judgment. But neither should we foreclose the issue in petitioner’s favor. In view of the unresolved elements of the situation, the procedure outlined in Minnesota v. National Tea Co., 309 U. S. 551, 557, should be followed in disposing of this case. Accordingly, I would vacate the judgment of the Supreme Court of Missouri and remand the case for further proceedings. BROOKS v. UNITED STATES. 49 Syllabus. BROOKS v. UNITED STATES. NO. 388. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.* Argued March 2, 1949.—Decided May 16, 1949. 1. That a person was a member of the armed forces at the time of the accident does not prevent recovery of a judgment against the United States under the Federal Tort Claims Act for his death or injury (not incident to his services in the armed forces) resulting from the negligence of an employee of the Government. Pp. 50-53. 2. This does not necessarily mean that the amount payable under servicemen’s benefit laws should not be deducted, or taken into consideration, when a serviceman obtains a judgment against the Government under the Federal Tort Claims Act. Pp. 53-54. 169 F. 2d 840, reversed. A District Court gave judgment against the Government under the Federal Tort Claims Act, 60 Stat. 842, 28 U. S. C. (1946 ed.) § 931 (now § 2674), for the death of one member of the armed forces and the injury of another (not incident to their service) resulting from the negligence of an employee of the Government. The Court of Appeals reversed. 169 F. 2d 840. This Court granted certiorari. 335 U. S. 901. Reversed and remanded, p. 54. White]ord S. Blakeney argued the cause and filed a brief for petitioners. Paul A. Sweeney argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Morton Hollander. *Together with No. 389, Brooks, Administrator, n. United States, also on certiorari to the same Court. 50 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. Mr. Justice Murphy delivered the opinion of the Court. This is a suit against the United States under the Federal Tort Claims Act, 60 Stat. 842, 28 U. S. C. (1946 ed.) § 931, now 28 U. S. C. § 2674. The question is whether members of the United States armed forces can recover under that Act for injuries not incident to their service. The District Court for the Western District of North Carolina entered judgment against the Government, rendering an unreported opinion, but the Court of Appeals for the Fourth Circuit reversed, in a divided decision. 169 F. 2d 840. We brought the case here on certiorari because of its importance as an interpretation of the Act. 335 U. S. 901. The facts are these. Welker Brooks, Arthur Brooks, and their father, James Brooks, were riding in their automobile along a public highway in North Carolina on a dark, rainy night in February, 1945. Arthur was driving. He came to a full stop before entering an intersection, and proceeded across the nearer lane of the intersecting road. Seconds later the car was struck from the left by a United States Army truck, driven by a civilian employee of the Army. Arthur Brooks was killed; Welker and his father were badly injured. Welker and the administrator of Arthur’s estate brought actions against the United States in the District Court. The District Judge tried the causes without a jury and found negligence on the part of the truck driver. The Government moved to dismiss on the ground that Welker and his deceased brother were in the armed forces of the United States at the time of. the accident, and were therefore barred from recovery. The Court denied the motion, entered a $25,425 judgment for the decedent’s estate, and a $4,000 judgment for Welker.1 On appeal, 1 James Brooks, the father, also recovered judgment in his own right. The Government does not contest his recovery. BROOKS v. UNITED STATES. 51 49 Opinion of the Court. however, the Government’s argument persuaded the Court of Appeals to reverse the judgment, Judge Parker dissenting. We agree with Judge Parker. The statute’s terms are clear. They provide for District Court jurisdiction over any claim founded on negligence brought against the United States. We are not persuaded that “any claim” means “any claim but that of servicemen.” The statute does contain twelve exceptions. § 421. None exclude petitioners’ claims. One is for claims arising in a foreign country. A second excludes claims arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war. These and other exceptions are too lengthy, specific, and close to the present problem to take away petitioners’ judgments. Without resorting to an automatic maxim of construction, such exceptions make it clear to us that Congress knew what it was about when it used the term “any claim.” It would be absurd to believe that Congress did not have the servicemen in mind in 1946, when this statute was passed. The overseas and combatant activities exceptions make this plain. More than the language and framework of the act support this view. There were eighteen tort claims bills introduced in Congress between 1925 and 1935.2 All but two3 contained exceptions denying recovery to members of the armed forces. When the present Tort Claims Act 2H. R. 12178, 68th Cong., 2d Sess.; H. R. 12179, 68th Cong., 2d Sess.; S. 1912, 69th Cong., 1st Sess.; H. R. 6716, 69th Cong., 1st Sess.; H. R. 8914, 69th Cong., 1st Sess.; H. R. 9285, 70th Cong., 1st Sess.; S. 4377, 71st Cong., 2d Sess.; H. R. 15428, 71st Cong., 3d Sess.; H. R. 16429, 71st Cong., 3d Sess.; H. R. 17168, 71st Cong., 3d Sess.; H. R. 5065, 72d Cong., 1st Sess.; S. 211, 72d Cong., 1st Sess.; S. 4567, 72d Cong., 1st Sess.; S. 1833, 73d Cong., 1st Sess.; H. R. 129, 73d Cong., 1st Sess.; H. R. 8561, 73d Cong., 2d Sess.; H. R. 2028, 74th Cong., 1st Sess.; S. 1043, 74th Cong., 1st Sess. 3H. R. 8561, 73d Cong., 2d Sess.; H. R. 12178, 68th Cong., 2d Sess. 837446 0—49------------8 52 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. was first introduced, the exception concerning servicemen had been dropped.4 What remained from previous bills was an exclusion of all claims for which compensation was provided by the World War Veterans’ Act of 1924—43 Stat. 607, 38 U. S. C. § 421, compensation for injury or death occurring in the first World War. H. R. 181, 79th Cong., 1st Sess. When H. R. 181 was incorporated into the Legislative Reorganization Act, the last vestige of the exclusion for members of the armed forces disappeared. See also Note, 1 Syracuse L. Rev. 87, 93-94. The Government envisages dire consequences should we reverse the judgment.5 A battle commander’s poor judgment, an army surgeon’s slip of hand, a defective jeep which causes injury, all would ground, tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks’ army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks’ service, a wholly different case would be presented. We express no opinion as to it, but we may note that only in its context do Dobson v. United States, 27 F. 2d 807, Bradey v. United States, 151 F. 2d 742, and Jefferson n. United States, 77 F. Supp. 706, have any relevance. See the similar distinction in 31 U. S. C. § 223b. Interpretation of the same words may vary, of course, with the consequences, for those consequences may provide insight for determination of congressional purpose. Lawson v. Suwannee Fruit & Steamship Co., 4 Other bills after those mentioned in note 2, above, also omitted this exception. See, e. g., H. R. 5373, 77th Cong., 1st Sess.; H. R. 1356, 78th Cong., 1st Sess. This has nothing to do with “congressional awareness” of the Dobson and Bradey decisions, infra. The present Tort Claims Act contains exceptions which would have been specifically covered by those cases. § 421 (d). 5 The Government’s other arguments on this phase of the case are sleeveless. They will not be discussed. BROOKS v. UNITED STATES. 53 49 Opinion of the Court. 336 U. S. 198. The Government’s fears may have point in reflecting congressional purpose to leave injuries incident to service where they were, despite literal language and other considerations to the contrary. The result may be so outlandish that even the factors we have mentioned would not permit recovery. But that is not the case before us. Provisions in other statutes for disability payments to servicemen, and gratuity payments to their survivors, 38 U. S. C. § 701, indicate no purpose to forbid tort actions under the Tort Claims Act. Unlike the usual workman’s compensation statute, e. g., 33 U. S. C. § 905, there is nothing in the Tort Claims Act or the veterans’ laws which provides for exclusiveness of remedy. United States v. Standard Oil Co., 332 U. S. 301, indicates that, so far as third party liability is concerned. Nor did Congress provide for an election of remedies, as in the Federal Employees’ Compensation Act, 5 U. S. C. § 757. Thus Dahn v. Davis, 258 U. S. 421, and cases following that decision, are not in point. Compare Parr v. United States, 172 F. 2d 462. We will not call either remedy in the present case exclusive, nor pronounce a doctrine of election of remedies, when Congress has not done so. Compare 31 U. S. C. § 224b, specifically repealed by the Tort Claims Act, § 424 (a). In the very Act we are construing, Congress provided for exclusiveness of the remedy in three instances, §§ 403 (d), 410 (b), and 423, and omitted any provision which would govern this case. But this does not mean that the amount payable under servicemen’s benefit laws should not be deducted, or taken into consideration, when the serviceman obtains judgment under the Tort Claims Act. Without the benefit of argument in this Court, or discussion of the matter in the Court of Appeals, we now see no indication that Congress meant the United States to pay twice for the same injury. Certain elements of tort damages may be the equivalent of elements taken into account in providing disability 54 OCTOBER TERM, 1948. Dissent. 337 U.S. payments. It would seem incongruous, at first glance, if the United States should have to pay in tort for hospital expenses it had already paid, for example. And whatever the legal theory behind a wrongful death action, the same considerations might apply to the Government’s gratuity death payment to Arthur Brooks’ survivors, although national service life insurance might be considered a separate transaction, unrelated to an action in tort or other benefits. But the statutory scheme and the Veterans’ Administration regulations may dictate a contrary result. The point was not argued in the case as it came to us from the Court of Appeals. The court below does not appear to have passed upon it; it was unnecessary, in the view they took of the case. We do not know from this record whether the Government objected to this portion of the District Court judgment—nor can we tell from this record whether the Court of Appeals should consider a general objection to the judgment sufficient to allow it to consider this problem. Finally, we are not sure how much deducting the District Judge did. It is obvious that we are in no position to pass upon the question of deducting other benefits in the case’s present posture. We conclude that the language, framework and legislative history of the Tort Claims Act require a holding that petitioners’ actions were well founded. But we remand to the Court of Appeals for its consideration of the problem of reducing damages pro tanto, should it decide that such consideration is proper in view of the District Court judgment and the parties’ allegations of error. Reversed and remanded. Mr. Justice Frankfurter and Mr. Justice Douglas dissent, substantially for the reasons set forth by Judge Dobie, below, 169 F. 2d 840. EX PARTE COLLETT. 55 Syllabus. EX PARTE COLLETT. MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MANDAMUS AND PROHIBITION. No. 206, Mise. Argued February 7, 1949.—Decided May 31, 1949. Under 28 U. S. C. § 1404 (a), incorporated in the revision of the Judicial Code effective September 1, 1948, the doctrine of jorum non conveniens is made applicable to actions under the Federal Employers’ Liability Act. Pp. 56-72. 1. This conclusion is required by the clear and unambiguous language of § 1404 (a), which applies generally to “any civil action.” Pp. 58-59. 2. It involves no implied repeal of § 6 of the Federal Employers’ Liability Act, since that deals with the places where actions may be brought originally, whereas 28 U. S. C. § 1404 (a) deals with the right to transfer an action properly brought. Pp. 59-61. 3. The legislative history of the revision of the Judicial Code requires the same conclusion. Pp. 61-71. 4. As thus construed, § 1404 (a) is applicable to actions instituted before its effective date but not brought to trial prior to its effective date. P. 71. Motion denied. Under 28 U. S. C. § 1404 (a), a Federal District Court in which an action under the Federal Employers’ Liability Act had been brought transferred it to a District Court in another District, on the ground that? this would serve the convenience of parties and witnesses and be in the interest of justice. Petitioner moved in this Court for leave to file a petition for writs of mandamus and prohibition. The case was assigned for hearing on the motion. 335 U. S. 897. Motion denied, p. 72. Lloyd T. Bailey argued the cause for petitioner. With him on the brief was Theodore Granik. 56 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. Robert P. Hobson argued the cause for the Honorable Fred L. Wham, United States Judge for the Eastern District of Illinois, respondent. With him on the brief was Ernest Woodward. Mr. Chief Justice Vinson delivered the opinion of the Court. In this case we must decide whether the venue provisions of the Judicial Code1 render applicable the doctrine of forum non conveniens to actions under the Federal Employers’ Liability Act.2 Petitioner instituted such an action against the Louisville and Nashville Railroad in October, 1947, in the court below, the United States District Court for the Eastern District of Illinois. No trial was had before September 1, 1948, the effective date of the present Judicial Code.3 Thereafter the Railroad filed a motion to transfer the case to the District Court for the Eastern District of Kentucky. The court below found that all 35 witnesses and the petitioner himself live in Irvine, Kentucky, which also was the scene of the accident; that Irvine is 420 miles, “approximately twenty-four hours ... by public transportation,” from East St. Louis, where the court below sits, but only 26 miles from Richmond and 48 from Lexington, in which two cities the District Court for the Eastern District of Kentucky sits. Furthermore, the court below determined that jury schedules at both Richmond and Lexington made early trial possible. Thus concluding that the transfer would serve the convenience of parties and witnesses, and would be in the interest of xAct of June 25, 1948, 62 Stat. 869: “An Act To revise, codify, and enact into law title 28 of the United States Code entitled ‘Judicial Code and Judiciary.’ ” 2 35 Stat. 65, as amended by 36 Stat. 291, and 53 Stat. 1404, 45 U. S. C. §§ 51-59. 3 Act of June 25,1948, 62 Stat. 869,992, § 38. EX PARTE COLLETT. 57 55 Opinion of the Court. justice, the District Court granted the Railroad’s motion. Petitioner then filed directly in this Court a “Motion for leave to file petition for order to show cause why writs of mandamus [against the court below] and prohibition [against the Kentucky District Court] should not issue, and petition for same.” Petitioner makes no allegation that the court below abused its discretion; his sole contention is that the order of transfer exceeded the District Court’s authority. Since that issue seemed of importance in the administration of justice,4 we assigned the case for hearing on the motion. 335 U. S. 897 (1948). Prior to the current revision of Title 28 of the United States Code, forum non conveniens was not available in Federal Employers’ Liability Act suits. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 (1941); Miles v. Illinois Central R. Co., 315 U. S. 698 (1942); see Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 505 (1947). The new Code, however, provides that “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” This is § 1404 (a). The reviser’s notes, which accom- 4 At least five district court decisions dealing with the relationship of § 1404 (a) to FELA suits have been reported. Four have held that the section is applicable. Hayes n. Chicago, R. I. & P. R. Co. (and seven other cases), 79 F. Supp. 821 (1948); White v. Thompson, 80 F. Supp. 411 (1948); Nunn v. Chicago, M., St. P. & P. R. Co., 80 F. Supp. 745 (1948); Scott v. New York Central R. Co., 81 F. Supp. 815 (1948); cf. Brainard v. Atchison, T. & S. F. R. Co., 81 F. Supp. 211 (1948); Perry v. Atchison, T. & S. F. R. Co., 82 F. Supp. 912 (1948) (in both, motion to transfer denied, in exercise of “discretionary powers”); Chaffin v. Chesapeake & O. R. Co., 80 F. Supp. 957 (1948); Richer v. Chicago, R. I. & P. R. Co., 80 F. Supp. 971 (1948). One reported decision has held that the Code section is inapplicable to such suits. Pascarella v. New York Central R. Co., 81 F. Supp. 95 (1948). 58 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. pany each section of the Code, here read as follows: “Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 62 S. Ct. 6, 314 U. S. 44, 86 L. Ed. 28, which was prosecuted under the Federal Employer’s [sic] Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so.”5 The precise issue before us is whether, despite these expressions, the law remains unchanged. Petitioner so contends. First. The court below relied on the language of § 1404 (a), supra, which it regarded as “unambiguous, direct, clear.” We agree. The reach of “any civil action”6 is unmistakable. The phrase is used without qualification, without hint that some should be excluded. From the statutory text alone, it is impossible to read the section as excising this case from “any civil action.” The only suggestion petitioner offers in this regard is that “any civil action” embraces only those actions for which special venue requirements are prescribed in §§ 1394-1403 of Revised Title 28,7 since these sections 5H. R. Rep. No. 308, 80th Cong., 1st Sess. A 132 (1947); H. R. Rep. No. 2646, 79th Cong., 2d Sess. A127 (1946). 6 The reviser’s notes make clear that the phrase was substituted for “suit,” formerly used in various venue statutes, in the light of Rule 2 of the Fed. Rules Civ. Proc.: “There shall be one form of action to be known as ‘civil action’.” 7 Section 1394 deals with any civil action “by a national banking association to enjoin the Comptroller of the Currency”; § 1395, proceedings “for the recovery of a pecuniary fine” and “for the forfeiture of property” under varying circumstances; § 1396, “Any civil EX PARTE COLLETT. 59 55 Opinion of the Court. immediately precede § 1404 (a), and all are within the Venue Chapter (§§ 1391-1406, inclusive) of the Code. To accept this contention, we would be required completely to disregard the Congressional admonition that “No inference of a legislative construction is to be drawn by reason of the chapter in Title 28 ... in which any any [sic] section is placed . ...”8 Furthermore, petitioner’s argument proves too much: §§ 1391-1393, which also are in the Venue Chapter and also refer to “any civil action,” would be read as applying only to actions for which special venue requirements are established in neighboring sections of the Code, although they were obviously intended by Congress to be the general venue sections applicable to ordinary actions. It seems more reasonable to hold that § 1404 (a) in terms applies generally, i. e., to “any civil action.” Second. Although petitioner wishes to restrict the literal meaning of “any civil action,” he would expand the sense of “may transfer ... to any other district or division where it might have been brought” beyond the exact scope of those words. Obviously, the express language gives no clue as to where the action “might have been brought.” Yet the essence of petitioner’s position is that the order below, transferring his suit, effects a repeal of § 6 of the Federal Employers’ Liability Act, which granted him the right to sue in any district “in which the defend- action for the collection of internal revenue taxes”; § 1397, “of interpleader”; § 1398, “any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission”; § 1399, “for the partition of lands, where the United States is one of the tenants in common or joint tenants”; § 1400, actions “relating to copyrights” or “for patent infringement”; § 1401, “by a stockholder on behalf of his corporation”; § 1402, “against the United States”; and § 1403, “to condemn real estate for the use of the United States.” 8 Act of June 25,1948, 62 Stat. 869,991, § 33. 60 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. ant shall be doing business at the time of commencing such action.”9 Section 6 of the Liability Act defines the proper forum; § 1404 (a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems.10 Section 1404 (a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to bring suit in a particular district. An action may still be brought in any court, state or federal, in which it might have been brought previously. The Code, therefore, does not repeal § 6 of the Federal Employers’ Liability Act. We agree with petitioner that Congress had no such intention, as demonstrated by its failure to list the section in the meticulously prepared schedule of statutes repealed.11 We cannot agree that the order before us effectuates an implied repeal. The inapplicability of forum non conveniens to Liability Act 9 “Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. . . .” 45 U. S. C. § 56. For a brief historical sketch, see Baltimore & 0. R. Co. v. Kepner, 314 U. S. 44, 49-50 (1941). 10 In almost every state, the requirements for venue and for transfer are treated in different statutory sections. Brief for New York, C. & St. L. R. Co. as amicus curiae, pp. 11-12, Kilpatrick v. Texas & Pac. R. Co., post, p. 75. See, e. g., N. Y. Civil Practice Act, §§ 182, 187. 11 Act of June 25, 1948, 62 Stat. 869, 992, §39. Congress did list the pertinent statutes, when Code provisions in fact changed the basic venue requirements. For example, §§ 1394, 1395, 1396 and 1400, respectively, prescribe a new definition of appropriate forums for actions against the Comptroller of the Currency, involving fines and forfeitures, internal revenue taxes and patent and copyright suits; and the following statutes are therefore listed as repealed. 28 U. S. C. § 110; 28 U. S. C. §§ 104, 107, 108; 28 U. S. C. § 105; 28 U. S. C. § 109 and 17 U. S. C. § 35. EX PARTE COLLETT. 61 55 Opinion of the Court. suits derives from the Kepner decision. And there this Court expressly stated that “If it is deemed unjust, the remedy is legislative . . . .” 314 U. S. at 54. That opinion discusses § 6 of the Liability Act, to be sure, but this Court did not and could not suggest that the legislative answer had necessarily to be addressed to that section. Since the words selected by Congress for § 6 denote nothing, one way or the other, respecting jorum non conveniens, there was no occasion to repeal that section, expressly or impliedly; Congress chose to remove its judicial gloss via another statute. Discussion of the law of implied repeals is, therefore, irrelevant. Third. Petitioner’s chief argument proceeds not from one side or the other of the literal boundaries of § 1404 (a), but from its legislative history. The short answer is that there is no need to refer to the legislative history where the statutory language is clear. “The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” Gemsco v. Walling, 324 U. S. 244, 260 (1945). This canon of construction has received consistent adherence in our decisions.12 Nevertheless, we need not rest our decision on it solely. For the legislative history does not support petitioner’s position. Petitioner’s argument is based on these twin premises: Congress intended no “controversial change” to be incorporated in the Code; and § 1404 (a) is such a change. 12 E. g., Packard Motor Car Co. v. Labor Board, 330 U. S. 485, 492 (1947); United States v. American Trucking Associations, 310 U. S. 534, 543 (1940) and cases there cited. The rule as to statutory revisions is the same. Continental Casualty Co. v. United States, 314 U. S. 527, 530 (1942); Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 45 (1895); United States v. Bowen, 100 U. S. 508, 513 (1880). 62 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. To establish the former premise, petitioner cites a number of statements by legislative leaders in charge of the Code revision. For example, Representative Keogh, Chairman of the House Committee on the Revision of the Laws which initiated the work, said at the hearing before the House Judiciary Subcommittee, “The policy that we adopted . . . was to avoid wherever possible and whenever possible the adoption in our revision of what might be described as controversial substantive changes of law.”13 And Senator Donnell, Chairman of the Senate Judiciary Subcommittee considering the Code, said on the floor that . . the purpose of this bill is primarily to revise and codify and to enact into positive law, with such corrections as were deemed by the committee to be of substantial and noncontroversial nature.”14 But these statements clearly are not unequivocal promises that no changes would be made. The legislation was announced to be a revision as well as a codification. It is obvious that the changes in law retained in the Code were not considered as “controversial” by these Congressional spokesmen. Petitioner does not offer any definition of “controversial,” but he does point to one concrete example of what he regards as a “controversial” measure. This is the 13 Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 6 (1947). He also testified as follows: “. . . we proceeded upon the hypothesis that since that was primarily a restatement of existing law, we should not endanger its accomplishment by the inclusion in the work of any highly controversial changes in law.” And, in response to the Chairman’s question, “And this bill does not include controversial matters?” Rep. Keogh replied that “We have sought to avoid as far as possible . . . any substantive changes that did not meet with unanimity of opinion.” Ibid., 11. 14 94 Cong. Rec. 7928 (1948). The Senator had just given an illustration of “various changes that have been made.” EX PARTE COLLETT. 63 55 Opinion of the Court. Jennings Bill,15 which was under consideration in the House in the spring of 1947, as was the Code revision.16 The Jennings Bill and § 1404 (a) of the Code meet the same problem, the alleged abuses in the selection of 15 H. R. 1639, 80th Cong., 1st Sess.: “A Bill To amend the Employers’ Liability Act so as to limit venue . . . As ultimately reported to the House, it repealed all of § 6 of the Federal Employers’ Liability Act, except the last sentence prohibiting removal of actions brought in state courts to federal courts; and added the following paragraph to the then general venue statute, § 51 of the Judicial Code, 28 U. S. C. § 112: “A civil suit for damages for wrongful death or personal injuries against any interstate common carrier by railroad may be brought only in a district court of the United States or in a State court of competent jurisdiction, in the district or county (parish), respectively, in which the cause of action arose, or where the person suffering death or injury resided at the time it arose: Provided, That if the defendant cannot be served with process issuing out of any of the courts aforementioned, then and only then, the action may be brought in a district court of the United States, or in a State court of competent jurisdiction, at any place where the defendant shall be doing business at the time of the institution of said action.” H. R. Rep. No. 613, 80th Cong., 1st Sess., Pt. 1, 9-10 (1947). 16 The House Committee on the Judiciary held hearings on the Code, before Subcommittee No. 1, on Mar. 7, 1947, and four hearings on the Jennings Bill, before Subcommittee No. 4, from Mar. 28 to April 18, 1947. Congressman Jennings himself was a member of Subcommittee No. 1, considering the Code. Congressman Devitt, a member of Subcommittee No. 4, considering the Jennings Bill, testified in favor of the Code; Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055 (Code), 80th Cong. 1st Sess. 3 (1947); Hearings before Senate Committee on the Judiciary on H. R. 3214 (Code), 80th Cong., 2d Sess. 16 (1948). The unanimous Judiciary Committee Report favoring the Code was published in April, 1947. H. R. Rep. No. 308, 80th Cong., 1st Sess. The divided Report on the Jennings Bill was submitted in June. H. R. Rep. No. 613, 80th Cong., 1st Sess. (in three parts). On July 7, 1947, the House passed the proposed revision by a vote of 342 to 23. 93 Cong. Rec. 8392. Ten days later, the Jennings Bill was passed by 203 to 188. 93 Cong. Rec. 9193-4. 64 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. forums for Liability Act suits.17 But the Jennings Bill was far more drastic than § 1404 (a). The Jennings Bill would in large part have repealed § 6 of the Liability Act. It would have delimited the available forum for actions brought in state as well as federal courts.18 It would have eliminated the right to sue in any district in which the railroad did business. Initially, this applied only to Federal Employers’ Liability Act plaintiffs, but in final draft the Jennings Bill generally restricted all, including passengers, who might sue railroads for personal injuries. Inasmuch as none of these changes in the law was contained in the Code, it is evident that § 1404 (a) might well be considered “non con trover sial” by the same Congress which wojild regard the Jennings Bill as “controversial.” 19 17 See, e. g., Hearings before House Committee on the Judiciary on H. R. 1639, 80th Cong., 1st Sess. 6-12, 17-22, 31-8 (1947); H. R. Rep. No. 613, 80th Cong., 1st Sess., Pt. 1, 3-6; Pt. 2, 1-2, 4 (1947). 18 As one of its three grounds of opposition to the Jennings Bill, the minority Report stated, "The bill restricts State courts in the administration of justice, deprives them of their prerogatives to require change of venue of lawsuits where necessary, and transcends the provisions of State laws governing the jurisdiction of State courts. H. R. Rep. No. 613,80th Cong., 1st Sess., Pt. 2,1 (1947). Doubt was expressed that Congress had constitutional power so to affect state courts. See, e. g., letter of Acting The Assistant to the Attorney General, Hearings before Senate Committee on the Judiciary on S. 1567 and H. R. 1639 (Jennings Bill), 80th Cong., 2d Sess. 215 (1948). 19 Furthermore, petitioner’s argument suggests at most that § 1404 (a) was as “controversial” as the Jennings Bill, as of July, 1947. Thereafter, however, both the Code and the Jennings Bill were referred to the Senate Judiciary Committee, which held hearings on both. The same three Senators composed the Subcommittee holding these hearings: Sen. E. H. Moore, Chairman at the hearings on the Jennings Bill in January, 1948; Sen. Donnell, Chairman at the hearings on the Code in April and June, 1948; and Sen. McGrath. The relationship between the two proposals was ex EX PARTE COLLETT. 65 55 Opinion of the Court. Moreover, even if we could distill from the legislative history of the Jennings Bill a usable concept of “controversial change,” its application would destroy petitioner’s case. For petitioner concedes that in fact § 1404 (a) did not arouse controversy; he submits the Jennings Bill as contrast. His argument is obviously based not on the actual legislative history of § 1404 (a), but on necessarily vague speculation as to what Congress might have done had it fully realized that jorum non conveniens was henceforth to be applicable in Federal Employers’ Liability Act suits. The requisite assumption, that Congress did not appreciate the significance of its action when it ratified the Code and § 1404 (a) therein, is contrary to the facts shown by the legislative history which is of record. The lack of controversy reflected aware agreement and not the inertia of ignorance. This was scarcely hasty, ill-considered legislation. To the contrary, it received close and prolonged study. Five years of Congressional attention supports the Code.20 And from the start, Congress obtained the most eminent expert assistance available. The spadework was entrusted to two lawbook-publishing firms, the staffs of which had unique experience in statutory codification and revision.21 pressly called to their attention. See Hearings before Senate Committee on the Judiciary on S. 1567 and H. R. 1639 (Jennings Bill), 80th Cong., 2d Sess. 111-112 (1948). The Committee reported the Code favorably, albeit with amendments; but the Jennings Bill was not reported. It is clear that only the Tax Court provisions were regarded by the Senate Committee as sufficiently “controversial” to be deleted. See S. Rep. No. 1559, 80th Cong., 2d Sess. 2 (1948); 94 Cong. Rec. 7927 (1948). 20 June 28, 1943, Congress appropriated $100,000 “For preliminary work in connection with the preparation of a new edition of the United States Code, including the correction of errors . . . .” 57 Stat. 230. 21 See H. R. Rep. No. 308, 80th Cong., 1st Sess. 2-3 (1947). 66 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. They formed an advisory committee, including distinguished judges and members of the bar, and obtained the services of special consultants.22 Furthermore, an advisory committee was appointed by the Judicial Conference.23 And to assist with matters relating to the jurisdiction of this Court, Chief Justice Stone appointed an advisory committee, consisting of himself and Justices Frankfurter and Douglas.24 That these experts assisted in drafting the Code does not mean that Congress blindly approved what outsiders did. This is demonstrated, for example, by the statement of Representative Robsion, Chairman of the House Judiciary Subcommittee, at the hearing conducted by his 22 “This public-spirited group [the advisory committee] consisted of Judge Floyd E. Thompson, former chief justice of the Illinois Supreme Court and former president of the Chicago Bar Association; Hon. Justin Miller, former associate justice of the United States Court of Appeals for the District of Columbia; Judge John B. Sanborn, judge of the United States Circuit Court of Appeals for the Eighth Circuit; Hon. Walter P. Armstrong, of the Memphis bar and former president of the American Bar Association; and Hon. John Dickinson, of the Philadelphia bar, former assistant Attorney General of the United States. “This advisory committee was ably assisted by Judge John J. Parker, senior circuit judge of the United States Circuit Court of Appeals for the fourth circuit, who rendered valuable service as a judicial consultant. The committee was also assisted by two special consultants each an expert in the field of Federal procedure: Judge Alexander Holtzoff, United States district judge, District Court for the District of Columbia; and Prof. James W. Moore, of Yale University.” H. R. Rep. No. 308, 80th Cong., 1st Sess. 3 (1947). See also Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 7-8, 12-14, 17-18, 24-26 (1947). 23 Circuit Judge Maris was Chairman, and District Judges Galston and W. F. Smith also served on the committee. Loc. cit. supra, note 22. See 1944 Report of the Judicial Conference 24; 1945 id. 17-18, 1948 id. 41. 24 H. R. Rep. No. 308, 80th Cong., 1st Sess. 4 (1947). EX PARTE COLLETT. 67 55 Opinion of the Court. Subcommittee in 1947. “We shall do the same as we did last year . . . just read them line by line and have you and other expert codifiers and other persons go over the bill with us.”25 Petitioner almost seems to imply that this very careful Committee consideration vitiates the legislation. But the Committee system is integral in typical legislative procedure; Congress could not function without it.26 A canon of construction which would discount statutory words pro tanto, the greater the expertise or the more meticulous the Committee consideration devoted thereto, or the longer and more complex the legislation, would be absurd, not least because it would make mockery of the techniques of statutory interpretation which have heretofore been used by the courts. The experts and the Committees did not attempt to conceal the proposed revisions. “The committee on revision of the laws in the preparation of those preliminary 25 Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 23 (1947). 26 “Congressional government is Committee government . . . . The House sits, not for serious discussion, but to sanction the conclusions of its Committees as rapidly as possible. It legislates in its committee-rooms; not by the determinations of majorities, but by the resolutions of specially-commissioned minorities; so that it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work.” Woodrow Wilson, Congressional Government, pp. xvi, 79 (15th ed. 1900). Nor has this changed. “The committees are the workshops of Congress. Committee work is the core of the legislative process. ... It is the center of legislative activity where the law-making and supervisory functions of Congress are largely performed.” Galloway, Congress at the Crossroads 53 (1946). And see Bryce, The American Commonwealth c. XV (New Ed. 1931); Chamberlain, Legislative Processes, cc. V-VI (1936); Kefauver and Levin, A Twentieth-Century Congress 114—153 (1947); Luce, Legislative Procedure, cc. IV-VIII (1922) ; Walker, The Legislative Process, c. 11 (1948). 837446 0—49___9 68 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. drafts sought to give them the widest possible circulation. We made certain that every member of the legislature got one; we made certain that they were sent to every United States attorney; that they were sent to every member of the Federal judiciary; that they were sent to the appropriate committees of the leading State and local bar associations; that they were sent to everyone who ever evidenced any interest in the work at all.”27 Indicative of the success in publicizing the provisions of the Code is the fact that there was specific treatment of § 1404 (a) and its applicability to Federal Employers’ Liability Act suits in a number of legal periodicals.28 The initial appearance of § 1404 (a) was in the Second Draft of the Code, adopted by the meeting of May, 1945. Its text has remained unchanged. It was accompanied by a reviser’s note, which recited that “Subsection (a) is new. It was drafted in accordance with a memorandum of Mar. 7, 1945, from the author of Moore’s Federal Practice, stating that recognition should be given the doc 27 Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 8 (1947). 28 Expressly reciting the reference to the Kepner case in the reviser’s notes: Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 933 (July, 1947); Note, New Limitations on Choice of Federal Forum, 15 U. of Chi. L. Rev. 332,341, n. 54 (Winter [March], 1948); Comment, Forum Non Conveniens, A New Federal Doctrine, 56 Yale L. J. 1234, 1249, n. 115 (Aug., 1947). And see Barrett, The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380, 421 (Sept., 1947); Note, 32 Minn. L. Rev. 633, 636, n. 29 (May, 1948). Cf. Note, 23 Ind. L. J. 82, 87, n. 26 (Oct., 1947) (quoting § 1404 (a) but not referring to the reviser’s notes). Of course the fact that the Judicial Code was being revised was publicized in discussions not directly bearing on the instant issue; e. g., Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216 (1948); Zinn, Revision of Federal Judicial Code, 48 Law Notes, Nos. 3-4, 11 (1944) (earliest reference); Note, The Proposed Revision of the Federal Judicial Code, 60 Harv. L. Rev. 424 (1947). EX PARTE COLLETT. 69 55 Opinion of the Court. trine of jorum non conveniens . . . .”29 The balance of that note was substantially the same as the present reviser’s note; it expressly cited the Kepner case, an action under the Federal Employers’ Liability Act, as demonstrating the need for § 1404 (a). And the reviser’s notes were before the Congress at every subsequent legislative step. A preliminary draft of the Code was printed late in 1945 for the use of the House Committee on Revision of the Laws. In this draft, the reviser’s notes appear directly below each related section or subsection. Section 1404 (a) and its note were in this draft, which, as noted above, was given very wide circulation. July 24, 1946, the House ordered to be printed the Report submitted by Representative Keogh of New York, Chairman of the House Committee on Revision of the Laws, on the codification of Title 28.30 This Report consisted of a preliminary statement and a full printing of the reviser’s notes. Section 1404 (a) appears in that Report, together with its note. There was no further action on the Code in the Seventy-Ninth Congress. In the Eightieth Congress, under the Legislative Reorganization Act of 1946,31 the Code revision passed to 29 There is no doubt as to the meaning of § 1404 (a) in the mind of the author of the memorandum. See 3 Moore’s Federal Practice 2141 (2d ed. 1948), stating that the Code “provides for a transfer .. . of any action to a proper and more convenient forum” (italics in original), with a footnote (107) citing § 1404 (a) and declaring that “Any action in § 1404 (a) includes suits subject to special venue statutes, as suits for patent infringement and suits under the Federal Employers’ Liability Act, as well as actions subject to the general venue statute.” And see articles by a member of the advisory committee appointed by the Judicial Conference, and by the Chief Reviser: Galston, An Introduction to the New Federal Judicial Code, 8 F. R. D. 201, 206 (1948); Barron, The Judicial Code 19^8 Revision, 8 F. R. D. 439, 442 (1949). 30 H. R. Rep. No. 2646, 79th Cong., 2d Sess. (1946). 3160 Stat. 812,826-27 (1946). 70 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. the jurisdiction of the House Judiciary Committee and was assigned to a Subcommittee of which Representative Robsion of Kentucky was Chairman. At the hearing before this Subcommittee, Professor James William Moore of Yale University, special consultant to the revisers, in summarizing the Code proposals, testified that there were “changes of importance” in the law of venue and specifically mentioned § 1404.32 In April, 1947, the House Judiciary Committee reported the bill with a unanimous recommendation that it be passed.33 This Report again fully reprinted the reviser’s notes. In this Report, the section entitled “Examples of Changes in Law,” which had appeared in the Report on the revision in the preceding Session of Congress, expressly referred to the reviser’s notes for §§ 1391-1406.34 After this painstaking consideration, with its references to § 1404 (a), the House initially passed the bill on July 7, 1947.35 At that time and in the subsequent consideration in the Senate, the Tax Court provisions occasioned the most discussion; but other specific sections did not pass unnoticed. Attention was directly called to § 1404 (a) by one witness at the hearings before the Senate Judiciary Subcommittee, although his interest was not in the Federal Employers’ Liability Act issue.36 No change in § 1404 (a) was included in the Senate amendments; and the revision of Title 28 was enacted by the Congress in June, 1948.37 32 Hearings before House Committee on the Judiciary on H. R-1600 and H. R. 2055, 80th Cong., 1st Sess. 29 (1947). 33 H. R. Rep. No. 308, 80th Cong., 1st Sess. (1947). 34 Ibid., 6. 35 93 Cong. Rec. 8392 (1947). 36 Hearings before Senate Committee on the Judiciary on H. R. 3214,80th Cong., 2d Sess. 73-74 (1948). 37 94 Cong. Rec. 7927-30, 8297, 8438, 8498-8501 (1948). While it lacks relevance to our holding as to Congressional intention and expression in June, 1948, the presentation of an up-to-date EX PARTE COLLETT. 71 55 Opinion of the Court. Thus, at almost every stage of the legislative procedure, attention was directed to the fact of change, and in most instances specific mention was made of § 1404 (a). At no stage subsequent to the first formal printing did § 1404 (a) and its accompanying reviser’s note fail to appear. From the start, § 1404 (a) remained the same, and the reference in the note to a Federal Employers’ Liability Act case as showing the need for permitting the application of forum non conveniens remained unchanged. Now to hold that Congress did not appreciate what it was enacting in that section would defy the legislative history. We must flatly reject petitioner’s thesis that this section was so obscured that its enactment is meaningless. We cannot blind ourselves to the hearings, to the experts, to the Committee reports, to the reviser’s notes and their incorporation in the Committee reports—to a history of the most meticulous Congressional consideration. Fourth. Petitioner suggests that his action may not be transferred because it was instituted prior to the effective date of the Code. Clearly, § 1404 (a) is a remedial provision applicable to pending actions. And “No one has a vested right in any given mode of procedure . . . .” Crane v. Hahlo, 258 U. S. 142, 147 (1922).38 report of Congressional consideration of the Code revision requires noting that over 60 additional amendments to Title 28 have already become law. Act of May 24, 1949, 63 Stat. 89, 99-107, §§ 64a-127. See 95 Cong. Rec. 3814-20, 5826-27, 6283-84; H. R. Rep. No. 352, 81st Cong., 1st Sess. 11-20,38-51 (1949); S. Rep. No. 303,81st Cong., 1st Sess. (1949). While § 1406 is amended by adding “shall dismiss, or if it be in the interest of justice” before “shall transfer” (63 Stat. 101, §81), no change whatever was suggested or made in § 1404 (a). 38 Gwin v. United States, 184 U. S. 669 (1902); National Exchange Bank of Baltimore v. Peters, 144 U. S. 570 (1892); Sherman n. Grinnell, 123 U. S. 679 (1887); McBurney v. Carson, 99 U. S. 567, 569 (1878). 72 OCTOBER TERM, 1948. Opinion of Rutledge, J. 337 U.S. Fifth. Since the petition for mandamus and prohibition must be denied because of the view we must take as to the meaning of § 1404 (a) and its applicability to this case, we need not decide whether denial might be placed on other grounds also. “Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. ... As extraordinary remedies, they are reserved for really extraordinary causes.” Ex parte Fahey, 332 U. S. 258, 259, 260 (1947).39 What we hold is that the plain meaning of the statutory words and the consistent course of the legislative history are opposed to petitioner’s contention that we must disregard § 1404 (a) because Congress knew not what it did. If petitioner’s showing could sustain a decision that this section was not really enacted after all, little law would remain. The motion is ~ • i Denied. Mr. Justice Black and Mr. Justice Douglas dissent for the reasons stated in the dissenting opinion of Mr. Justice Douglas in United States v. National City Lines, post, p. 84. Mr. Justice Rutledge.* I concur in the result. But in doing so I feel impelled to say two things. One is that in my view § 1404 (a), taken broadly to include “any civil action,” does effect a partial repeal of 39 Ex parte Mars, Inc., 320 U. S. 710 (1943); Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943), and cases there cited. Cf. United States Alkali Export Assn. x. United States, 325 U. S. 196 (1945), and cases there cited. *[This is also a concurrence in the result in No. 233, Mise., Kilpatrick v. Texas & P. R. Co., post, p. 75, and No. 269, Mise., United States v. National City Lines, post, p. 78.] EX PARTE COLLETT. 73 55 Opinion of Rutledge, J. § 6 of the Federal Employers’ Liability Act and of the other statutes mentioned by Mr. Justice Douglas, including the venue provisions (§12) of the Clayton Act involved in our decision in United States v. National City Lines, 334 U. S. 573. The legislative history, for example, of the Clayton Act venue provisions demonstrates that the change § 1404 (a) is said to have made was more than the mere removal of a judicial gloss. I think we should not now impugn the validity of our decisions in National City Lines, supra, and in Kepner and Miles1 by characterizing each as a mere “judicial gloss” upon the pertinent statute. Those decisions in my opinion were true reflections of congressional intent as stated in the respective statutes and, accordingly, the changes made in them by § 1404 (a) were in the nature of repeals, to the extent that the plaintiffs were deprived of their rights under the pre-existing statutes to have their causes of action tried in the forums where they were properly brought. In the second place, those changes, although entirely within Congress’ power to make, were neither insubstantial nor noncontroversial, in view of the legislative history of the original provisions, for example, the venue provisions of the Clayton Act. Nor do I think the legislative history of § 1404 (a) demonstrates either the insubstantial or the noncontroversial nature of the changes in § 1404 (a), although they seem to have been so treated by those in charge of the bill.2 It is to be noted, moreover, that 1 Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44; Miles v. Illinois Central R. Co., 315 U. S. 698. 2 “At the same time great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval.” S. Rep. No. 1559, 80th Cong., 2d Sess. 2. • • • I may say that the purpose of this bill is primarily to revise and codify and to enact into positive law, with such corrections as 74 OCTOBER TERM, 1948. Opinion of Rutledge, J. 337 U.S. specific attention was drawn to the effect of § 1404 (a) upon § 6 of the Employers’ Liability Act through reference to the Kepner and Miles decisions, but no like specific reference was made to the venue provisions of the Clayton Act and the National City Lines decision. These matters make it impossible for me to concur in the view that Congress was in fact “fully informed as to the significance of § 1404 (a).” This, however, is a matter affecting congressional procedure and the manner of conducting legislative business. Accordingly, notwithstanding my doubts that Congress intended to go so far, I acquiesce in the Court’s decisions. were deemed by the [Senate Judiciary] committee to be of substantial and noncontroversial nature.” 94 Cong. Rec. 7928. For similar expressions by members of the House of Representatives, see Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 6, 11. A member of the House Judiciary Committee told the House that the only “controversial aspects” of the 1947 draft of the code were certain subsequently deleted provisions concerning the Tax Court. 93 Cong. Rec. 8390. But cf. the legislative history of the contemporaneously pending Jennings Bill, citations to which are made in the Court’s opinion. KILPATRICK v. TEXAS & PACIFIC R. CO. 75 Opinion of the Court. KILPATRICK v. TEXAS & PACIFIC RAILWAY CO. MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS OR CERTIORARI. No. 233, Mise. Argued February 8, 1949.—Decided May 31, 1949. Under 28 U. S. C. § 1404 (a), incorporated in the revision of the Judicial Code effective September 1, 1948, the doctrine of forum non conveniens is made applicable to actions under the Federal Employers’ Liability Act. Ex parte Collett, ante, p. 55. Pp. 75-78. Motion denied. Under 28 U. S. C. § 1404 (a), a Federal District Court in which an action under the Federal Employers’ Liability Act had been brought transferred it to a District Court in another District. Petitioner moved in this Court for leave to file a petition for a writ of certiorari or a writ of mandamus or any appropriate relief. The case was assigned for hearing on the motion. 335 U. S. 897. Motion denied, p. 78. William H. DePareq argued the cause for petitioner. With him on the brief were Gerald F. Finley and Arnold B. Elkind. Porter R. Chandler argued the cause for respondent. With him on the brief were Theodore Kiendl, Cleveland C. Cory and William H. Timbers. Frank Y. Gladney, James C. Jones, Jr. and Lon Hocker, Jr. filed a brief for the New York, Chicago & St. Louis Railroad Co., as amicus curiae, in support of respondent. Mr. Chief Justice Vinson delivered the opinion of the Court. This litigation has a rather involved history. In 1946, while in the employ of respondent railroad, petitioner 76 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. was seriously injured in an accident at Big Spring, Texas. Petitioner promptly brought suit under the Federal Employers’ Liability Act1 in the United States District Court for the Southern District of New York. That court dismissed the action on the ground that the railroad could not properly be served in that district. 72 F. Supp. 635 (1947). Petitioner appealed from this dismissal; and, some days after taking the appeal, instituted an action in the District Court for the Northern District of Texas. An answer was filed in the latter action and a number of depositions were taken. In March, 1948, the Court of Appeals for the Second Circuit held that the railroad was subject to service in New York. 166 F. 2d 788. Thereupon petitioner moved to dismiss his Texas action. When the district court refused to dismiss, petitioner appealed and also applied for a writ of prohibition to the Court of Appeals for the Fifth Circuit. That court declined to issue the writ. 167 F. 2d 471 (1948). In No. 275, petitioner requests this Court to issue a writ of certiorari to review the Court of Appeals action. And in No. 119 Mise., we are asked to issue a writ of prohibition directing the District Court for the Northern District of Texas not to proceed with the trial. We are advised that counsel have arranged that further progress of the Texas trial shall be held in abeyance pending our decision. We are this day denying those petitions. See post, p. 912. When the New York cause was returned to the district court, after we had denied the railroad’s petition for certiorari to review the Court of Appeals’ determination that it might be sued there, 335 U. S. 814 (1948), petitioner moved for a preference in the order of trial. The court below, the United States District Court for the Southern 135 Stat. 65, as amended by 36 Stat. 291, and 53 Stat. 1404, 45 U. S. C. §§ 51-59. KILPATRICK v. TEXAS & PACIFIC R. CO. 77 75 Opinion of the Court. District of New York, denied this motion. Respondent filed a cross-motion for an order transferring the action to the United States District Court for the Northern District of Texas. This motion was granted. The order of transfer relies on the authority of 28 U. S. C. § 1404 (a),2 and cites Hayes v. Chicago, R. I. & P. R. Co., 79 F. Supp. 821 (1948), and Nunn v. Chicago, M., St. P. & P. R. Co., 80 F. Supp. 745 (1948). To nullify this order, petitioner moved this Court for leave to file a petition for a writ of certiorari or a writ of mandamus or any appropriate relief. We assigned the case for hearing on the motion for leave to file. 335 U. S. 897 (1948). In support of his motion, petitioner urges that the general purposes of the 1948 revision of Title 28 by the Congress indicate no intention to “emasculate” the right to choose venue afforded under the Federal Employers’ Liability Act; that “any civil action,” as used in § 1404 (a) of the Code, refers only to civil actions specified in the Venue Chapter of Title 28 (§§ 1391-1406, inclusive); and that the court below “ignored the known temper of legislative opinion” as revealed chiefly by Congressional action on the Jennings Bill. We fail to see anything in these contentions which can distinguish this case from Ex parte Collett, decided this day, ante, p. 55. In that opinion we have demonstrated that the venue provisions of § 6 of the Federal Employers’ Liability Act are one thing and the transfer provisions of § 1404 (a) of the present Judicial Code another; that “any civil action” means what it says; and that Congress was fully informed as to the significance 2 “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” This provision became effective Sept. 1, 1948. Act of June 25, 1948, 62 Stat. 869,992, §38. 78 OCTOBER TERM, 1948. Syllabus. 337 U. S. of § 1404 (a). For these reasons, we conclude that the District Court for the Southern District of New York acted within its statutory authority. The motion must be Denied. [For opinion of Mr. Justice Rutledge concurring in the result, see ante, p. 72.] Mr. Justice Black and Mr. Justice Douglas dissent for the reasons stated in the dissenting opinion of Mr. Justice Douglas in United States v. National City Lines, post, p. 84. UNITED STATES v. NATIONAL CITY LINES, INC. ET AL. MOTION FOR LEAVE TO FILE PETITION FOR CERTIORARI. No. 269, Mise. Argued February 8, 1949.—Decided May 31, 1949. Under 28 U. S. C. § 1404 (a), incorporated in the revision of the Judicial Code effective September 1, 1948, the doctrine of forum non conveniens is made applicable to civil suits by the Government against corporations under the antitrust laws. Ex parte Collett, ante, p. 55; Kilpatrick v. Texas & Pacific R. Co., ante, p. 75. Pp. 79-84. Motion denied. Under 28 U. S. C. § 1404 (a), a Federal District Court in which the Government had instituted a civil suit against certain corporations under the Sherman Act transferred it to a District Court in another District. 80 F. Supp. 734. The Government moved in this Court for leave to file a petition for writ of certiorari. The case was assigned for hearing on the motion. 335 U. S. 897. Motion denied, p. 84. Charles H. Weston argued the cause for the United States. With him on the brief were George T. Washing- UNITED STATES v. NAT. CITY LINES. 79 78 Opinion of the Court. ton, Acting Solicitor General, Assistant Attorney General Bergson and Philip Elman. C. Frank Reavis argued the cause for respondents. With him on the brief were Martin D. Jacobs, Oscar A. Trippet, Henry M. Hogan, H. D. Emery, Rayburn L. Foster, R. B. F. Hummer, Hubert T. Morrow, Marshall P. Madison, Eugene M. Prince, Francis R. Kirkham and Everett A. Mathews. Marland Gale was also on a brief with Mr. Reavis and Mr. Jacobs for the National City Lines, Inc., and Pacific City Lines, Inc., respondents. Horace G. Hitchcock was also of counsel for the Mack Manufacturing Corp., respondent. Mr. Chief Justice Vinson delivered the opinion of the Court. The issue here is whether the 1948 revision of the Judicial Code (Title 28, United States Code) extends the doctrine of forum non conveniens to antitrust suits. The Government’s complaint in this civil suit alleged that respondent corporations have conspired to obtain control of local transportation companies in at least 44 cities in 16 states in different sections of the country, in order to restrain and monopolize interstate commerce in busses and the petroleum and other supplies incident thereto, in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1, 2. This is the second time that an order of the court below, the United States District Court for the Southern District of California, attempting to effectuate a transfer of the case from Los Angeles to Chicago, has been before this Court. When respondents’ motion was first granted, the District Court dismissed the action, 7 F. R. D. 456 (1947), inasmuch as the federal courts then lacked statutory power to transfer cases. We reversed, holding that 80 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. jorum non conveniens was not applicable in antitrust suits. United States v. National City Lines, 334 U. S. 573 (June 7, 1948). After September 1, 1948, the effective date of the present Judicial Code,1 respondents filed a new motion under the doctrine of jorum non conveniens, citing § 1404 (a), which reads as follows: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Again the District Court below granted the motion. It ordered the case transferred. 80 F. Supp. 734 (1948). The Government thereupon submitted in this Court a motion for leave to file petition for writ of certiorari. We assigned the case for hearing on this motion. 335 U. S. 897 (1948). In taking the position that the District Court lacked authority to enter its order of transfer, the Government has advanced many of the arguments which we have already considered today—and rejected—in Ex parte Collett, ante, p. 55, and Kilpatrick v. Texas & Pacific R. Co., ante, p. 75, in which we held that actions under the Federal Employers’ Liability Act were now subject to the doctrine of jorum non conveniens. The Government contends, for example, that Congress intended § 1404 (a) to apply only to actions the venue provisions of which were formerly contained in Title 28, rather than to “any civil action” (the venue requirements in antitrust cases are defined in 15 U. S. C. § 22; in Liability Act cases, 45 U. S. C. § 56); and that the legislative history establishes very clearly that Congress had no desire substantially to 1 Act of June 25,1948,62 Stat. 869,992, § 38. There has been apparently but one other reported case dealing with the instant issue. It is in accord with the holding below. United States v. E. I. Du Pont de Nemours & Co., 83 F. Supp. 233 (1949). See, generally, Note, Venue in Antitrust Cases: Applicability of the New Discretionary Transjer Provision, 58 Yale L. J. 482 (1949). UNITED STATES v. NAT. CITY LINES. 81 78 Opinion of the Court. change the law—indeed, the Government urges us to disregard the reviser’s notes which were printed in the House Reports.2 We cannot accept this position for the reasons discussed in our previous decisions today. The reviser’s notes are so obviously authoritative in perceiving the meaning of the Code that the Government itself, in discussing a section other than § 1404 (a), refers to them in its brief in this case. And we have already had occasion to look to the reviser’s notes. Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 376, n. 12 (1949). It is true that the reviser’s notes to § 1404 (a), although citing a Federal Employers’ Liability Act decision, make no reference to the antitrust laws or to our previous decision in this litigation. The Government therefore urges that our disposition of the Liability Act cases is not conclusive. We disagree. The notes cite the Liability Act decision “As an example of the need of such a provision.” Obviously, an example is not a complete catalogue. The use of an example implies no purpose to restrict the meaning of the statutory phrase “any civil action” precisely to the illustration selected. Quite the contrary, the particular example noted demonstrates that Congress intended to effectuate changes in the law, in order to expand the transferability of cases. And the 2 The note to § 1404 (a) appears at H. R. Rep. No. 308, 80th Cong., 1st Sess. A132 (1947) and H. R. Rep. No. 2646, 79th Cong., 2d Sess. A127 (1946). It reads as follows: “Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 62 S. Ct. 6, 314 U. S. 44, 86 L. Ed. 28, which was prosecuted under the Federal Employer’s [sic] Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so.” 82 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. change in antitrust practice seems no more radical than the change in Federal Employers’ Liability Act practice: Baltimore & 0. R. Co. v. Kepner, 314 U. S. 44 (1941), cited in the reviser’s note, was decided over six years before our initial decision in this case, 334 U. S. 573 (1948), which was the first ruling by this Court that jorum non conveniens was inapplicable in antitrust suits. Although no explanation is needed for the lack of Congressional reference to our former decision, simple chronology may be consulted. The reviser’s notes appeared in House Report No. 308, 80th Congress, 1st Sess., which was published in April, 1947. The Code revision was initially passed by the House in July, 1947.3 With amendments, the revision was passed by the Senate on June 12, 1948,4 and by the House on June 16, 1948.5 Our decision in the first National City Lines case, 334 U. S. 573, was handed down on June 7, 1948. Clearly, the failure of Congress expressly to consider this decision proves nothing. Nor was there anything in our decision which required unique Congressional discussion, in the face of the unmistakable statutory language and reviser’s notes. We expressly held that “Congress’ mandate regarding venue and the exercise of jurisdiction is binding upon the federal courts,” 334 U. S. at 588-89, and that decision in this field must rest on “the legislative purpose and the effect of the language used . . .,” supra, at 597. Nothing in our previous opinion intimates that we could fail to respect whatever modification of the law Congress might enact. Moreover, this change in the law must have been known to the Government in time for it to have addressed 3 93 Cong. Rec. 8392 (1947). 4 94 Cong. Rec. 7930 (1948). 5 94 Cong. Rec. 8501 (1948). UNITED STATES v. NAT. CITY LINES. 83 78 Opinion of the Court. the protests which we have heard to the Congress. This was admitted on the oral argument; it could not possibly have been denied. When this litigation was previously before us, National City’s brief, at pp. 25-26 and 45, expressly called attention to the imminent probability that § 1404 (a) would be enacted and would be held applicable to antitrust suits. This brief was filed here on April 26, 1948. Not until June 7, 1948, was the final hearing on the Judicial Code revision held before the Senate Judiciary Subcommittee. Furthermore, the Code proposals were extensively publicized. See Ex parte Collett, ante, at pp. 67-68. The Department of Justice in particular was informed: each United States Attorney received a copy of the drafts;6 a Department spokesman testified at the House hearing;7 the Attorney General was asked for an opinion by the Congressional Committee.8 The plain inference is either that the Government 6 Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055,80th Cong., 1st Sess. 8 (1947). 7 Statement of Special Assistant to the Attorney General Baynton, Ibid., 33-34. "With respect to the bill to codify title 28, the Department has been gathering memoranda from all its various divisions and from United States attorneys with the hope of making a comprehensible report on that bill. We have that material.” (Emphasis added.) Id., 34. 8 Letter from Attorney General Tom C. Clark to Congressman Michener, Chairman of the Committee on the Judiciary, April 17, 1947, H. R. Rep. No. 308, 80th Cong., 1st Sess. 8 (1947). The letter declares that the objectives of the revision are “commendable and desirable,” and continues as follows: “You will remember the discussions between members of the staff of the committee and of the Department last month at which the Department made some suggestions with reference to minor corrections of errors and omissions then in the draft of the bill being considered by your committee. “I am advised that this conference agreed upon a number of corrections and changes and that these corrections and changes have now been incorporated in the bill with the one exception of the [Tax Court] portion . . . .” See 93 Cong. Rec. 8385 (1947). 837446 0—49---10 84 OCTOBER TERM, 1948. Douglas, J., dissenting. 337 U. S. took no action with respect to the forthcoming alteration of the rule that forum non conveniens was inapplicable to antitrust suits, or that a protest was made which Congress disregarded. Neither alternative would offer the slightest justification for overriding the unequivocal words of § 1404 (a) and the legislative history which establishes that Congress indeed meant what it said. For these reasons, we can find no distinction between this case and the others decided today. We hold that § 1404 (a) is applicable here. The motion is Denied. [For opinion of Mr. Justice Rutledge concurring in the result, see ante, p. 72.] Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. There are difficulties for me however the case is decided. But I have concluded that the fairer result is reached if the ambiguities and doubts, fully canvassed and disclosed in the Court’s opinions in this case and in Ex parte Collett, ante, p. 55, decided this day, are resolved by reading § 1404 (a) as making the doctrine of forum non conveniens applicable to any civil action as to which the venue provisions are codified in revised Title 28. That gives full effect to the words “any civil action” in the field in which Congress was legislating. And it authorizes, as respects that group of cases, a transfer to another district in lieu of outright dismissal as had previously obtained. That construction saves § 1404 (a), the venue provisions of the Clayton Act and our decision in United States v. National City Lines, Inc., 334 U. S. 573, from mutilation. I am reluctant to conclude that Congress took the more drastic course in a mere revision of the code. So to hold would make a basic change not only in UNITED STATES v. NAT. CITY LINES. 85 78 Douglas, J., dissenting. the two statutes involved in these cases but in the Sherman Act, 15 U. S. C. §§ 4, 5; the Jones Act, 46 U. S. C. §688; the Suits in Admiralty Act, 46 U. S. C. § 782; Merchant Marine Act of 1936, 46 U. S. C. § 1128d; the Securities Act, 15 U. S. C. §§ 77a, 77v; the Securities Exchange Act, 15 U. S. C. §§ 78a, 78aa; the Public Utility Holding Company Act, 15 U. S. C. §§ 79, 79y; the Investment Company Act, 15 U. S. C. §§ 80a-l, 80a-43; and perhaps in other statutes too. 86 OCTOBER TERM, 1948. Syllabus. 337 U.S. HYNES, REGIONAL DIRECTOR, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, v. GRIMES PACKING CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 24. Argued October 21, 1948.—Decided May 31, 1949. Under § 2 of the Act of May 1, 1936, the Secretary of the Interior issued Public Land Order No. 128, designating as an Indian reservation, for the use and benefit of the native inhabitants of Karluk, Alaska, certain described lands and the waters adjacent thereto extending “3,000 feet from the shore line at mean low tide.” Claiming authority under the White Act, 43 Stat. 464, which prescribed drastic penalties for violations, the Secretary promulgated a regulation prohibiting commercial fishing in the waters of the reservation except by natives or their licensees. Companies which for years had engaged in canning fish taken from these waters, which depended on that source of supply for profitable operations, and which had a substantial investment in their business, sued in the District Court to enjoin permanently the exclusion of their fishermen from the reservation, on the ground of the invalidity of the Land Order and the regulation. Named as sole defendant was the Regional Director for the Territory of Alaska of the Fish and Wildlife Service of the Department of the Interior. Held: 1. The Secretary of the Interior is not an indispensable party defendant to the suit, since a decree requiring the defendant and his subordinates to cease their interference will afford all the relief sought without the necessity of requiring the Secretary or any of his subordinates to take any affirmative action. Pp. 96-97. 2. The District Court had equity jurisdiction of the suit. Pp-97-100. (a) The facts sufficiently show that the complainants are without an adequate remedy at law and will suffer irreparable injury unless the enforcement of the regulation is restrained. Pp-97-100. (b) Although criminal prosecutions, even under an invalid statute, will ordinarily not be restrained, a civil action will he in exceptional circumstances that make an injunction necessary effectually to protect property rights. Pp. 98-99. HYNES v. GRIMES PACKING CO. 87 86 Syllabus. 3. The Secretary’s inclusion in the Karluk Reservation of the waters described in the Land Order was authorized by §2 of the Act of May 1,1936. Pp. 100-116. (a) The provision of § 2 of the Act of May 1, 1936, authorizing the Secretary of the Interior to designate as a reservation any “public lands which are actually occupied” by Indians in Alaska, did not preclude the inclusion of coastal waters in the Karluk Reservation. Pp. 110-116. (b) The fact that tidelands are embraced within the area designated as the Karluk Reservation is without significance. Pp. 11^115. (c) A statute which authorized permanent disposition of federal property would be strictly construed to avoid inclusion of fisheries by implication. P. 104. (d) The Secretary of the Interior was without statutory authority to convey to the Indians any permanent title or right in the lands or waters of the Karluk Reservation. Pp. 101-106. (e) Indian reservations in Alaska, established or enlarged under § 2 of the Act of May 1, 1936, are subject to the unfettered will of Congress. P. 106. (f) Non-revocability in the case of the Karluk Reservation can not be predicated on the language of the Act of June 18, 1934, which must be construed as effective only where there has been specific recognition by the United States of Indian rights to control absolutely tribal lands. Pp. 106-107. (g) References to general legislation on public lands in Alaska, appearing in a letter of the Secretary of the Interior printed in the House and Senate Reports on the bill which became the Act of May 1, 1936, can not be regarded as an adequate basis for adjudging power in the Secretary to dispose finally of such lands. Pp. 108-110. 4. The regulation prohibiting commercial fishing in the waters of the Karluk Reservation except by natives or their licensees was void as a whole, because in violation of the proviso of the White Act that “no exclusive or several right of fishery shall be granted.” Pp.116-123. (a) The general prohibition and the exception in the regulation are not separable, and the regulation may not be upheld as imposing a prohibition applicable to everyone. P. 118. (b) The White Act, the purpose of which was to protect and conserve the fisheries of Alaska on a non-monopolistic basis, 88 OCTOBER TERM, 1948. Statement of the Case. 337 U.S. authorizes the establishment of preserves or closed areas in reservations created under § 2 of the Act of May 1, 1936. Pp. 118-119. (c) Section 8 of the White Act does not make exclusive the power of the Territorial Legislature to license fishing. P. 121. (d) Licenses for fishing may be required by the Secretary of the Interior in areas regulated under the White Act; but such licenses may be only regulatory in character and, within the discretion of the Secretary, must have their cost fixed so as not to exceed the estimated cost of reasonable policing of the area. Pp. 121-122. (e) The White Act does not empower the Secretary of the Interior to raise general funds for native welfare or general conservation purposes from White Act preserves. P. 122. (f) The proviso of § 1 of the White Act “that no exclusive or several right of fishery shall be granted” applies to commercial fishing by natives as well as by fishing companies, nonresidents of Alaska or other American citizens, and so applies whether those natives are or are not residents on a reservation. Pp. 122-123. (g) The adoption of a corporate charter and a constitution by the Native Village of Karluk under §§ 16 and 17 of the Wheeler-Howard Act can not expand the power of the Secretary of the Interior under the White Act. P. 122. (h) The sanctions of the White Act may not be employed to protect the Karluk Reservation against trespass. Pp. 122-123. 5. In view of the fact that the foregoing holdings establish a new basis for administrative and judicial conclusions, the decrees of the District Court and the Court of Appeals, granting a permanent injunction on the ground of the invalidity of both the regulation and the Land Order, are vacated and the case is remanded to the District Court with directions as to further proceedings. Pp. 123-127. 165 F. 2d 323, decree vacated and case remanded. Several companies which were engaged in the canning of fish in Alaska brought an action against the Regional Director to enjoin the enforcement of a federal regulation prohibiting commercial fishing in the waters of the Karluk Reservation. The District Court granted a permanent injunction. 67 F. Supp. 43. The Court of Appeals affirmed. 165 F. 2d 323. This Court granted certiorari. HYNES v. GRIMES PACKING CO. 89 86 Opinion of the Court. 333 U. S. 866. Decrees vacated and case remanded for further proceedings, p. 127. Roger P. Marquis argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Vanech, Stanley M. Silverberg and <8. Billingsley Hill. Frank L. Mechem and W. C. Arnold argued the cause for respondents. With them on the brief was Edward F. Medley. Charles A. Horsky was also of counsel for respondents. Felix S. Cohen, James E. Curry and Henry Cohen filed a brief on behalf of the Native Village of Karluk et al., as amici curiae, urging reversal. Mr. Justice Reed delivered the opinion of the Court. The Secretary of the Interior on May 22, 1943, issued Public Land Order 128. It is set out in full below.1 In this case the significant part of No. 128 is that the Secretary included in the reservation, by paragraph 2, adjacent tidelands and coastal waters along the entire shore line of the uplands that touched Shelikof Strait between Kodiak Island and the Alaska Peninsula. The authority of the Secretary to utilize presidential power in the designation of this reservation out of public lands in Alaska flows from a delegation to the Secretary of presidential power to withdraw or reserve public lands and revoke or x8 Fed. Reg. 8557: “Alaska “modification of executive order designating lands as INDIAN RESERVATION “By virtue of the authority contained in the act of June 25, 1910, c. 421, 36 Stat. 847, as amended by the act of August 24, 1912, c. 369, 37 Stat. 497 (U. S. C., title 43, secs. 141-143), and the act of May 1, 1936, c. 254, 49 Stat. 1250 (U. S. C., title 48, sec. 358a), 90 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. modify prior reservations. Executive Order No. 9146, of April 24, 1942, 1 C. F. R., Cum. Supp. 1149. The presidential power over reservations is made specific by the Act of June 25, 1910.2 Another statutory provision, however, is the principal basis for Order 128. This is and pursuant to Executive Order No. 9146 of April 24, 1942: It is ordered, As follows: “1. Executive Order No. 8344 of February 10, 1940, withdrawing Kodiak and other islands, Alaska, for classification and in aid of legislation, is hereby modified to the extent necessary to permit the designation as an Indian reservation of the following-described area: “Beginning at the end of a point of land on the shore of Shelikof Strait on Kodiak Island, said point being about one and one-quarter miles east of Rocky Point and in approximate latitude 57°39'40" N., longitude 154° 12'20" W.; “Thence south approximately eight miles to latitude 57°32'30" N.; “Thence west approximately twelve and one-half miles to the confluence of the north shore of Sturgeon River with the east shore of Shelikof Strait; “Thence northeasterly following the easterly shore of Shelikof Strait to the place of beginning, containing approximately 35,200 acres. “2. The area described above and the waters adjacent thereto extending 3,000 feet from the shore line at mean low tide, are hereby designated as an Indian reservation for the use and benefit of the native inhabitants of the native village of Karluk, Alaska, and vicinity: Provided, That such designation shall be effective only upon its approval by the vote of the Indian and Eskimo residents of the area involved in accordance with section 2 of the act of May 1, 1936, supra: And provided further, That nothing herein contained shall affect any valid existing claim or right under the laws of the United States within the purview of that section.” 2 The first section reads as follows, 36 Stat. 847: “That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.” There is a second section designed to keep the reservations free for mineral exploration and utilization. HYNES v. GRIMES PACKING CO. 91 86 Opinion of the Court. § 2 of the Act of May 1, 1936, 49 Stat. 1250. This act was passed to extend to Alaska the benefits of the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, and to provide for the designation of Indian reservations in Alaska. As § 2 is important in our discussion, the pertinent provisions are set out in full: “Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23 Stat. 26), or by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days’ notice: . . . .” The Native Village of Karluk held a meeting on May 23, 1944, and accepted “the proposed Indian Reservation for this village. The adoption of said Reservation passed by a vote of 46 for and 0 against. 11 of the eligible voters were absent.” See note 26, infra. Under § 19 of the Wheeler-Howard Act the Alaskan aborigines are classified as Indians. On March 22 and August 27, 1946, the Secretary of the Interior amended the Alaska Fisheries General Regu- 92 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. lations, 50 C. F. R., 1946 Supp., § 208.23, that related to the commercial fishing for salmon in the Kodiak Area Fisheries by the addition of a subsection (r), reading as follows: “(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land Order No. 128, May 22, 1943), beginning at a point on the east shore of Shelikof Strait, on Kodiak Island, latitude 57°32'30" N., thence northeasterly along said shore to a point 57°39'40". “The foregoing prohibition shall not apply to fishing by natives in possession of said reservation, nor to fishing by other persons under authority granted by said natives (49 Stat. 1250; 48 U. S. C. 358a). Such authority shall be granted only by or pursuant to ordinance of the Native Village of Karluk, approved by the Secretary of the Interior or his duly authorized representative.” 11 Fed. Reg. 3105, 9528. The authority for the regulation is given as 34 Stat. 263 and 478, as amended by the Act of June 6, 1924, 43 Stat. 464, an Act for the protection of the fisheries of Alaska, known as the White Act.3 As the controlling section of this statute also is important, it is set out here,4 44 Stat. 752: “Section 1. That for the purpose of protecting and conserving the fisheries of the United States in all waters of Alaska the Secretary of Commerce from time to time may set apart and reserve fishing areas in any of the waters of Alaska over which the United 3 There is an amendment, immaterial here, see 44 Stat. 752. 4 Under Reorganization Plan No. II the authority of the Department of Commerce over the administration of the White Act was transferred to the Department of the Interior, effective July 1, 1939. 53 Stat. 1431, §4 (e). HYNES v. GRIMES PACKING CO. 93 86 Opinion of the Court. States has jurisdiction, and within such areas may establish closed seasons during which fishing may be limited or prohibited as he may prescribe. Under this authority to limit fishing in any area so set apart and reserved the Secretary may (a) fix the size and character of nets, boats, traps, or other gear and appliances to be used therein; (b) limit the catch of fish to be taken from any area; (c) make such regulations as to time, means, methods, and extent of fishing as he may deem advisable. From and after the creation of any such fishing area and during the time fishing is prohibited therein it shall be unlawful to fish therein or to operate therein any boat, seine, trap, or other gear or apparatus for the purpose of taking fish; and from and after the creation of any such fishing area in which limited fishing is permitted such fishing shall be carried on only during the time, in the manner, to the extent, and in conformity with such rules and regulations as the Secretary prescribes under the authority herein given : Provided, That every such regulation made by the Secretary of Commerce shall be of general application within the particular area to which it applies, and that no exclusive or several right of fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce. . . .” (See for definition of “several,” 2 Bl. Com. 39-40.) These are the statutes and orders that created the situation that led to this litigation. The issuance of the White Act regulation of March 22, 1946, brought concern to the commercial fishing interests of Alaska. This was because of its drastic penalties. See note 49, infra. The native village of Karluk 94 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. spoken of in Order No. 128 establishing the reservation is situated on the Karluk River, long recognized as one of the most important salmon spawning streams of Alaska. The natives live at its mouth on Shelikof Strait. There the salmon must congregate from the Strait to enter the channel of the river leading to their spawning grounds in the interior of Kodiak Island. The waters included in the reservation are those stretching eight miles along the coast north and south of the mouth, 3,000 feet into the Strait. Thus the best of the Karluk salmon fishery is put into the reservation by Order No. 128.5 For an understanding of the locality, a sketch map is appended. The importance of the Karluk fishery will be appreciated by reference to a few of the facts in connection with it. When Russia ceded Alaska to the United States in 1867, 15 Stat. 539, Karluk was already well known as an abundant salmon fishery.6 By 1885 the salmon canneries were flourishing and Bancroft reports the Karluk pack at 36,000 cases out of a total of 65,000.7 The production continued large.8 The red salmon was most prolific. There were variations in the catch but it was 5 The river itself and all waters within 100 yards of its mouth are closed to all commercial salmon fishing. 50 C. F. R., 1946 Supp., §208.23 (d). 6 Bancroft, History of Alaska, 1730-1885, p. 228, n. 12. 7 Id., p. 743. 8H. R. Mise. Doc. No. 211, 51st Cong., 1st Sess., Report on the Salmon and Salmon Rivers of Alaska, p. 20: “The number of salmon actually caught in Karluk Bay, near the river mouth and in the lower portion of the river, is so large as to make a true statement concerning them seem incredible. In 1888 the canneries put up over 200,000 cases, averaging about 13 red salmon to the case, or more than 2,500,000 fish. In 1889 the number of fish put up was still larger, reaching probably 250,000 cases, containing more than 3,000,000 salmon. As the number of fish arriving at Karluk Bay for a long period of years has been known to be far greater than in any of the other bays of southern 15 ** *B ** IB B° IB 2° is 1° =========== ““ (Q “ : === 1 - il ss I Shaw L U. S. Commission of Fish and Fisheries, X» ìà j i>: M. McDonald, Commissioner. Uahuga.1, tï Ama tuli L CHART OF THE c.Doug-ias \î 1^- j Kadiak Group of Islands / I ALASKA -G I TO ACCOMPANY REPORT \ * - ON THE y S t „ Ä&'-z 0 r-.-x ^omt Banks I SALMON FISHEWES-c^Z^^, I ------- // ?’ «¿lx ÄChuyak i. I v ❖ °2 J. I. Case Co. v. Labor Board, 321 U. S. 332, 341-342. 837446 O—49-19 228 OCTOBER TERM, 1948. Opinion of the Court—Appendix A. 337 U.S. fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, by taking action, without prior consultation with said organization, with respect to rates of pay, wages, hours of employment, and other conditions of employment. “(b) In any manner interfering with the efforts of Textile Workers Union of America, CIO, to bargain collectively with it as the representative of its employees in the appropriate unit described above. “2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: “(a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment; “(b) Post at its plant at Griffin, Georgia, copies of the notice attached hereto, marked ‘Appendix A.’ Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent’s representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; “(c) Notify the Regional Director for the Tenth Region (Atlanta, Georgia), in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.” 70 N. L. R. B. at pp. 208-209. LABOR BOARD v. CROMPTON MILLS. 229 217 Opinion of the Court—Appendix A. “Appendix A “Notice to All Employees “Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: “We will bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment. “We will not make any changes with respect to rates of pay, wages, hours of employment, or other conditions of employment of our employees in the bargaining unit described below, without prior consultation with Textile Workers Union of America, CIO. “We will not in any manner interfere with the efforts of Textile Workers Union of America, CIO, as the exclusive representative of our employees in the unit described below, to bargain collectively with us. “The bargaining unit is: All production and maintenance employees at our Griffin plant, including watchmen, but excluding office, clerical, technical and laboratory employees, section men in the spinning room, head loom fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. “Crompton-Highland Mills, Inc. “By ........................... “Dated (REPRESENTATIVE.) (TITLE.) ‘This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.” Id. at pp. 210-211. 230 OCTOBER TERM, 1948. Opinion of the Court—Appendix B. 337 U.S. APPENDIX B. Quotations from the “Findings of Fact” as to—“in. the unfair labor practices, A. The rejusal to bargain” as stated in the Intermediate Report of the Trial Examiner, adopted by the National Labor Relations Board and printed by the Board following its Decision and Order. “No further conference was held until December 19, when a meeting was held at the request of the Union. “The issues upon which the parties were still in disagreement at this time involved wages, work assignments, insurance provisions, severance pay, vacations, union security, arbitration, union activity upon company time, and the preamble of the contract, in which the respondent sought to define the parties to the agreement as the respondent and the ‘employees’ in the appropriate unit, as opposed to the Union’s position that the Union be denominated as party to the contract. On the issue of union security, although the Union had offered to compromise for maintenance of membership, the respondent refused to grant any form of security. As to wages, although it had originally rejected the Union’s proposals for any wage increase, it proposed what amounted to an increase of about one or one and one-half cents per hour at this time. “On January 1, 1946, the members of the union negotiation committee, employed at the plant, were summoned to the office of Plant Manager Pickford and informed that the respondent was granting a general wage increase to all employees,18 amounting to about 2 to 6 cents per hour. “18 As will be seen, certain employees were not included in the wage increase.” LABOR BOARD v. CROMPTON MILLS. 231 217 Opinion of the Court—Appendix B. Pickford read to the committee the following letter under that date, addressed to Union Director Douty: “In the course of our extended contract negotiations we have repeatedly told you that our mill would be among the first to make wage adjustments in this locality. We have learned that certain of the mills in this locality are about to adjust their wages and we are, therefore, making comparable adjustments in our wage rates effective Monday, December 31st, 1945. A copy of the notice which has been posted in the mill today outlining the various rate adjustments is attached hereto. “Attached to the letter were notices directed to the respective departments listing the various wage increases. The letter was received by Douty the next day. While the negotiating committee was in Pickford’s office, copies of the notices announcing the wage increases were being posted on the bulletin boards in the respective departments. “It will be seen from the foregoing that neither the Union nor the negotiating committee was consulted from December 19, the date of the last conference, to January 1, 1946, the date of the granting of the wage increase. Nor was the committee consulted on the latter date. The respondent merely presented it with a fait accompli, without affording the Union an opportunity to negotiate with respect to the amount of the increase, the employees to whom the increase would be applicable,19 the effective date of the increase or any of the factors normally envisaged in the collective bargaining process. “19 The increase did not affect janitors, sweepers, scrubbers, outside help, and various other categories of employees included in the unit represented by the Union.” 232 OCTOBER TERM, 1948. Opinion of the Court—Appendix B. 337 U.S. “It cannot be disputed, nor does the respondent deny, that the granting of the wage increase at that time, constituted unilateral action. . . . “While it is evident that the Union was insistent in its demand for some form of union security during its negotiations with the respondent, the preponderance of the credible evidence does not support the respondent’s position that the Union had, in effect, presented an ultimatum that no contract would be consummated which did not afford union security. As has already been indicated, union security was only one of several matters, aside from the wage question, upon which agreement had not yet been reached. If, as the respondent contends, it had left no doubt as to its position on the issue of union security in the conferences of October 17 and 18, and it was convinced that the Union was adamant on this issue, it seems unlikely that the parties would have conferred on November 7 and 8, and again on December 19, when the Union submitted a written wage proposal. “It is clear, therefore, and the undersigned finds, that, although the parties had reached a temporary impasse on December 19 on some issues, principally wages, union security, and check-off, there is no substantial basis for concluding that the Union had abandoned negotiations at this time. Moreover, even if the parties had reached an impasse in their negotiations, this obviously could not affect the Union’s status as majority representative. The principle that ‘a bargaining relationship once rightly established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,’ is well-established.20 Equally clear is the proposition that the granting of a unilateral wage increase “20 See Franks Bros. Co. v. N. L. R. B., 321 U. S. 702, 705.” LABOR BOARD v. CROMPTON MILLS. 233 217 Opinion of the Court—Appendix B. or other concession by an employer to his employees while the designated union is attempting to bargain concerning the same subject matter, constitutes a violation of the employer’s duty to bargain with the union.21 It is not a question, contrary to the respondent’s argument, of giving the Union credit for a wage increase which it did not obtain, but rather of the conduct of the respondent in granting the increase in derogation of the Union’s status as statutory representative, by depriving the Union of its right to bargain with respect to such increase. “Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and further finds that, by failing and refusing to furnish the Union with essential and pertinent information relating to the respondent’s wage structure under its ‘point plan,’ job specifications, work assignments, and information appertaining thereto, and by granting its employees a unilateral wage increase on January 1, 19^6, the respondent has from August 31, 19^5, to December 19, 19^5, and thereafter to date, including January 1, 19^6, failed and refused to bargain with the Union as the exclusive collective bargaining representative of the employees in the appropriate unit above described, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act.” (Emphasis in this paragraph is supplied.) 70 N. L. R. B. at pp. 220-221, 222, 223-224. “a See Aluminum Ore Company v. N. L. R. B., 131 F. (2d) 485, 487, (C. C. A. 7), enf’g. 39 N. L. R. B. 1286, 1295-1299; May Department Stores v. N. L. R. B., 326 U. S. 376. See also, Majority Rule in Collective Bargaining, by Ruth Weyand, Columbia Law Review, Vol. XLV, 579-583, and footnotes at 581, for an excellent discussion and citation of authority on, The Power of a Statutory Representative to Bar Unilateral Changes by Employer.” 234 OCTOBER TERM, 1948. Opinion of the Court—Appendix B. 337 U.S. The Board left no doubt that it relied solely on the granting of the wage increase, when it issued its decision and order in this case. This appears from the following express statement in the Board’s decision and order: “1. The Trial Examiner found that the respondent, in violation of Section 8(1) and (5) of the Act, failed to bargain collectively with the Union as the statutory representative of the respondent’s employees by refusing to furnish the Union with certain detailed information relating to the incentive wage plan and by granting a wage increase to its employees without consulting the Union. Although we agree with the Trial Examiner's conclusion, we, however, rest our determination solely on the latter ground.” (Emphasis supplied.) Id. at p. 206. YOUNG v. RAGEN. 235 Syllabus. YOUNG v. RAGEN, WARDEN. CERTIORARI TO THE CIRCUIT COURT OF RANDOLPH COUNTY, ILLINOIS.* No. 50. Argued November 17, 1948.—Decided June 6, 1949. 1. Convicted in an Illinois circuit court and sentenced to prison, petitioner applied to the same court for habeas corpus, claiming denial of due process under the Fourteenth Amendment. His petition was denied without a hearing on the ground that it was “insufficient in law and substance.” On review here, the State Attorney General conceded that the petition raised substantial federal questions; argued that habeas corpus was not an appropriate remedy under state law when the petition was denied; but admitted that it probably is an appropriate remedy under “announcements” contained in subsequent decisions of the Illinois Supreme Court, though other Illinois trial courts have continued to deny habeas corpus on procedural grounds. Held: The order denying habeas corpus is vacated and the cause is remanded for consideration of the present applicability of that remedy in the light of the State Supreme Court’s “announcement” in People v. Loftus, 400 Ill. 432, 81 N. E. 2d 495, and other relevant Illinois decisions. Pp. 236-240. (a) More than a question of state procedure is involved when a state court of last resort closes the door to any consideration of a claim of denial of a federal right. P. 238. (b) The doctrine that federal courts will not grant habeas corpus to prisoners under judgments of state courts until all state remedies have been exhausted, Ex parte Hawk, 321 U. S. 114, 28 U. S. C. § 2254, presupposes the existence of some adequate remedy under state law. Pp. 238-239. *Together with No. 47, Mise., Evans v. Nierstheimer, Warden, on petition for certiorari to the Circuit Court of St. Clair County, Illinois; No. 106, Mise., Willis v. Ragen, Warden, No. 109, Mise., Thompson v. Ragen, Warden, No. 184, Mise., Lewis v. Ragen, Warden, and No. 372, Mise., Sherman v. Ragen, Warden, et al., all on petition for certiorari to the Criminal Court of Cook County, Illinois; No. 760, Smith v. Ragen, Warden, on certiorari to the Circuit Court of Will County, Illinois; and No. 374, Mise., Banks n. Ragen, Warden, on petition for certiorari to the Circuit Court of Will County, Illinois. 236 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. 2. The orders in seven other cases in which Illinois courts had denied habeas corpus without hearings are likewise vacated and remanded for similar consideration. P. 240. Orders vacated and causes remanded. In No. 50, an Illinois trial court .denied without a hearing a petition for habeas corpus raising substantial questions under the Due Process Clause of the Fourteenth Amendment. This Court granted certiorari. 334 U. 8. 810. It also granted certiorari in No. 760 (336 U. S. 966), and now grants certiorari in the six other cases. Orders vacated and causes remanded, p. 240. Edward H. Levi argued the cause and filed a brief for petitioner in No. 50. William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent in No. 50. With him on the brief were George F. Barrett, then Attorney General, Raymond 8. Sarnow and James C. Murray, Assistant Attorneys General. Petitioners pro se in Mise. Nos. 47, 106, 109, 184, 372 and 374. Herbert A. Friedlich, by appointment of the Court, for petitioner in No. 760. Ivan A. Elliott, Attorney General of Illinois, and William C. Wines, Assistant Attorney General, were on the briefs for respondent in Mise. Nos. 106, 109 and 184, and No. 760. With them on the brief in No. 760 were James C. Murray and Raymond S. Sarnow. Mr. Chief Justice Vinson delivered the opinion of the Court. We are once again faced with the recurring problem of determining what, if any, is the appropriate post-trial procedure in Illinois by which claims of infringement of federal rights may be raised. See Woods v. Nierstheimer, YOUNG v. RAGEN. 237 235 Opinion of the Court. 328 U. S. 211; Marino v. Ragen, 332 U. S. 561; Loftus v. Illinois, 334 U. S. 804. In 1946, petitioner pleaded guilty to an indictment charging him with having committed burglary and larceny and was sentenced to five to seven years imprisonment. A year later he filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, Illinois, the sentencing court, containing allegations which, if true, raise substantial questions under the due process clause of the Fourteenth Amendment. The Attorney General of Illinois concedes that petitioner is entitled to a hearing into the truth or falsity of the charges. The court to which the petition for a writ of habeas corpus was directed denied the petition without holding a hearing, however, for the reason that it “is insufficient in law and substance.” We granted the petition for a writ of certiorari, 334 U. S. 810, to consider the question thus presented. The Attorney General explains the circuit court’s denial of the petition for the writ as based upon state procedural grounds: that habeas corpus was not an appropriate remedy for the relief of denials of due process. He contends, however, that while the circuit court was correct in its interpretation of Illinois law when it denied the petition, certain statements in the Illinois Supreme Court’s opinions in People v. Loftus, 400 Ill. 432, 81 N. E. 2d 495; People v. Shoffner, 400 Ill. 174, 79 N. E. 2d 200; and People v. Wilson, 399 Ill. 437, 78 N. E. 2d 514, all of which were handed down subsequent to the circuit court’s denial of relief, strongly indicate that habeas corpus would now be the appropriate Illinois procedure in a case such as the one before us. His contention is, in other words, that while the petition for habeas corpus was properly denied when acted upon below, the decisions just cited probably broaden the scope of habeas corpus in Illinois, so that a denial of a hearing would be erroneous n the petition were again presented to the circuit court. 238 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. The situation is further complicated, however, by the fact that many circuit courts, whose decisions upon habeas corpus are unreviewable by the state supreme court under Illinois law, have continued to deny petitions for habeas corpus on procedural grounds since the supreme court’s “announcement” in People v. Loftus, supra. The Attorney General’s position concerning these denials, as we understand it, is that these decisions may be wrong, depending upon whether his interpretation of the Loftus “announcement” is the correct one, but that whether right or wrong, they are decisions solely upon a question of Illinois procedural law and thus do not warrant invocation of the jurisdiction of this Court. Of course we do not review state decisions which rest upon adequate nonfederal grounds, and of course Illinois may choose the procedure it deems appropriate for the vindication of federal rights. Loftus v. Illinois, supra. But it is not simply a question of state procedure when a state court of last resort closes the door to any consideration of a claim of denial of a federal right. And that is the effect of the denials of habeas corpus in a number of cases now before this Court, for in none of the cases does the Attorney General suggest that either of the other two Illinois post-trial remedies, writ of error and coram nobis, is appropriate. Unless habeas corpus is available, therefore, we are led to believe that Illinois offers no post-trial remedy in cases of this kind. The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts, see Ex parte Hawk, 321 U. S. 1141 and cases 1 Existing law as declared by Ex parte Hawk was made a part of the statute by the new Judicial Code, 28 U. S. C. § 2254, which provides: “An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the reme YOUNG v. RAGEN. 239 235 Opinion of the Court. cited, presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights. Nevertheless, that requirement must be met. If there is now no post-trial procedure by which federal rights may be vindicated in Illinois, we wish to be advised of that fact upon remand of this case. Seven other petitions for certiorari which raise substantial questions under the due-process clause of the Fourteenth Amendment are now before this Court following denials of habeas corpus by Illinois circuit courts or the Criminal Court of Cook County. In none of these cases was a hearing held or the petitioner permitted to submit proof of the truth of his allegations. In three instances, the denial of habeas corpus occurred prior to the supreme court’s “announcement” in People v. Loftus, supra, as was true in the case of Young. A similar disposition of these petitions is therefore required. Four petitions for certiorari involve denials of habeas corpus subsequent to the Loftus “announcement.” It may well be that these decisions represent the opinion of four Illinois circuit judges that habeas corpus is not an appropriate remedy under Illinois law despite the Loftus opinion. Out of an abundance of caution, we have concluded, however, that these cases should also be re- dies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 240 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. manded to the state courts, since it is possible that the Lojtus “announcement” was not brought to their attention or its possible significance pointed out. As in the other cases, we wish to be advised, if a hearing is again denied, whether the court is of the opinion that habeas corpus is not an appropriate remedy in Illinois in cases raising questions under the due-process clause of the Fourteenth Amendment. Accordingly, the order denying the petition for a writ of habeas corpus in No. 50, Young n. Ragen, is vacated and the cause remanded for consideration of the present availability of habeas corpus in the light of the State Supreme Court’s “announcement” in People v. Lojtus, supra, and other relevant Illinois decisions. The petitions for certiorari in No. 47, Mise., Evans n. Nierstheimer; in No. 106, Mise., Willis v. Ragen; in No. 109, Mise., Thompson v. Rogen; in No. 184, Mise., Lewis v. Ragen; in No. 372, Mise., Sherman v. Ragen et al.; and in No. 374, Mise., Banks n. Ragen, are granted. The orders denying petitions for writs of habeas corpus in these cases, together with that in No. 760, Smith v. Ragen? are vacated and the causes remanded for similar consideration. Orders will be entered accordingly. 2 Certiorari granted, 336 U. S. 966. (Docketed as No. 265, Mise.) WILLIAMS V. NEW YORK. 241 Syllabus. WILLIAMS v. NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 671. Argued April 21, 1949.—Decided June 6, 1949. The Due Process Clause of the Fourteenth Amendment does not require that a person convicted after a fair trial be confronted with and permitted to cross-examine witnesses as to his prior criminal record considered by the judge in accordance with a state statute in determining what sentence to impose pursuant to broad discretion vested in him under state law—even when the jury recommends life imprisonment and the judge imposes a death sentence. Pp. 242-252. (a) It has long been the practice to permit the sentencing judge to exercise a wide discretion as to the sources and types of information used to assist him in determining the sentence to be imposed within the limits fixed by law. P. 246. (b) Modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. Pp. 246-249. (c) To deprive the sentencing judge of information contained in reports of probation officers would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. Pp. 249-250. (d) In considering the sentence to be imposed after conviction, the sentencing judge is not restricted to information received in open court. Pp. 250-251. (e) A different result is not required when a death sentence is imposed. Pp. 251-252. 298 N. Y. 803, 83 N. E. 2d 698, affirmed. After a fair trial, appellant was convicted of murder in the first degree and the jury recommended life imprisonment. After considering information as to his previous criminal record without permitting him to confront or cross-examine the witnesses on that subject, the trial 242 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. judge sentenced him to death. The Court of Appeals of New York affirmed. 298 N. Y. 803, 83 N. E. 2d 698. On appeal to this Court, affirmed, p. 252. John F. Finerty argued the cause for appellant. With him on the brief was Edward H. Levine. Solomon A. Klein argued the cause for respondent. With him on the brief was Miles F. McDonald. Mr. Justice Black delivered the opinion of the Court. A jury in a New York state court found appellant guilty of murder in the first degree.1 The jury recommended life imprisonment, but the trial judge imposed sentence of death.2 In giving his reasons for imposing the death sentence the judge discussed in open court the evidence upon which the jury had convicted stating that this evidence had been considered in the light of additional information obtained through the court’s “Probation Department, and through other sources.” Consideration of 1 “The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed: “2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise . . . .” New York Penal Law § 1044. 2 “Murder in the first degree is punishable by death, unless the jury recommends life imprisonment as provided by section ten hundred forty-five-a.” New York Penal Law § 1045. “A jury finding a person guilty of murder in the first degree, as defined by subdivision two of section ten hundred forty-four, may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life. Upon such recommendation, the court may sentence the defendant to imprisonment for the term of his natural life.” New York Penal Law § 1045-a. WILLIAMS V. NEW YORK. 243 241 Opinion of the Court. this additional information was pursuant to § 482 of New York Criminal Code which provides: “. . . Before rendering judgment or pronouncing sentence the court shall cause the defendant’s previous criminal record to be submitted to it, including any reports that may have been made as a result of a mental, phychiatric [sic] or physical examination of such person, and may seek any information that will aid the court in determining the proper treatment of such defendant.” The Court of Appeals of New York affirmed the conviction and sentence over the contention that as construed and applied the controlling penal statutes are in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States “in that the sentence of death was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross-examination or rebuttal . . . .” 298 N. Y. 803, 804, 83 N. E. 2d 698, 699. Because the statutes were sustained over this constitutional challenge the case is here on appeal under 28 U. S. C. § 1257 (2). The narrow contention here makes it unnecessary to set out the facts at length. The record shows a carefully conducted trial lasting more than two weeks in which appellant was represented by three appointed lawyers who conducted his defense with fidelity and zeal. The evidence proved a wholly indefensible murder committed by a person engaged in a burglary. The judge instructed the jury that if it returned a verdict of guilty as charged, without recommendation for life sentence, “The Court must impose the death penalty,” but if such recommendation was made, “the Court may impose a life sentence.” The judge went on to emphasize that “the Court is not bound to accept your recommendation.” 837446 0—49-----------20 244 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. About five weeks after the verdict of guilty with recommendation of life imprisonment, and after a statutory pre-sentence investigation report to the judge, the defendant was brought to court to be sentenced. Asked what he had to say, appellant protested his innocence. After each of his three lawyers had appealed to the court to accept the jury’s recommendation of a life sentence, the judge gave reasons why he felt that the death sentence should be imposed. He narrated the shocking details of the crime as shown by the trial evidence, expressing his own complete belief in appellant’s guilt. He stated that the pre-sentence investigation revealed many material facts concerning appellant’s background which though relevant to the question of punishment could not properly have been brought to the attention of the jury in its consideration of the question of guilt. He referred to the experience appellant “had had on thirty other burglaries in and about the same vicinity” where the murder had been committed. The appellant had not been convicted of these burglaries although the judge had information that he had confessed to some and had been identified as the perpetrator of some of the others. The judge also referred to certain activities of appellant as shown by the probation report that indicated appellant possessed “a morbid sexuality” and classified him as a “menace to society.” The accuracy of the statements made by the judge as to appellant’s background and past practices was not challenged by appellant or his counsel, nor was the judge asked to disregard any of them or to afford appellant a chance to refute or discredit any of them by cross-examination or otherwise. The case presents a serious and difficult question. The question relates to the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant. Within limits fixed by statutes, WILLIAMS V. NEW YORK. 245 241 Opinion of the Court. New York judges are given a broad discretion to decide the type and extent of punishment for convicted defendants. Here, for example, the judge’s discretion was to sentence to life imprisonment or death. To aid a judge in exercising this discretion intelligently the New York procedural policy encourages him to consider information about the convicted person’s past life, health, habits, conduct, and mental and moral propensities. The sentencing judge may consider such information even though obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine. It is the consideration of information obtained by a sentencing judge in this manner that is the basis for appellant’s broad constitutional challenge to the New York statutory policy. Appellant urges that the New York statutory policy is in irreconcilable conflict with the underlying philosophy of a second procedural policy grounded in the due process of law clause of the Fourteenth Amendment. That policy as stated in In re Oliver, 333 U. S. 257, 273, is in part that no person shall be tried and convicted of an offense unless he is given reasonable notice of the charges against him and is afforded an opportunity to examine adverse witnesses.3 That the due process clause does provide these salutary and time-tested protections where the question for consideration is the guilt of a defendant seems entirely clear from the genesis and historical evolution of the clause. See, e. g., Chambers v. Florida, 309 U. S. 227, 236-237, and authorities cited in note 10. 3 Other due process requirements mentioned in the Oliver case were that the defendant should be permitted to offer evidence in his own behalf and be represented by counsel. Appellant, however, was represented by counsel both when tried and sentenced, and the sentencing judge did not decline to permit introduction of any evidence. In response to the judge’s inquiry, statements were made by appellant and his counsel. 246 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations.4 But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.5 Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders? A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information “as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant . ...”7 In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evi- 4 Courts have treated the rules of evidence applicable to the trial procedure and the sentencing process differently. See, e. g., Snyder v. Massachusetts, 291 U. S. 97, 107, 128-129; Graham v. West Virginia, 224 U. S. 616, 619; United States v. Dalhover, 96 F. 2d 355, 359-360. But cf. State v. Stevenson, 64 W. Va. 392, 62 S. E. 688. 5 See cases collected in 14 Am. & Eng. Ann. Cas. 968, et seq.; 77 A. L. R. 1211, et seq.; 86 A. L. R. 832, et seq. See also Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. of Chi. L. Rev. 715 (1942). 6 See Pound, Criminal Justice in America 178 (1930). 7 See Stephan v. United States, 133 F. 2d 87, 100. See also 18 U. S. C. § 3655. WILLIAMS v. NEW YORK. 247 241 Opinion of the Court. dence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.8 And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. People v. Johnson, 252 N. Y. 387, 392, 169 N. E. 619, 621. The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions—even for offenses today deemed 8 Myerson, Views on Sentencing Criminals, 7 Law Soc. J. 854 (1937); Glueck, Principles of a Rational Penal Code, 41 Harv. L. Rev. 453 (1928); Warner and Cabot, Administration of Criminal Justice, 50 Harv. L. Rev. 583, 607 (1937); Comment, Reform in Federal Penal Procedure, 53 Yale L. J. 773 (1944). 248 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. trivial.9 Today’s philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders.10 Indeterminate sentences the ultimate termination of which are sometimes decided by nonjudicial agencies have to a large extent taken the place of the old rigidly fixed punishments.11 The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy.12 Execution of the United States parole system rests on the discretion of an administrative parole board. 36 Stat. 819, 18 U. S. C. §§ 714, 716, now §§ 4202, 4203. Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.13 Modern changes in the treatment of offenders make it more necessary now than a century ago for observance 9 2 Blackstone, Commentaries on the Laws of England (Lewis’ ed. 1897) 1756-1757. 10 With respect to this policy in the administration of the Probation Act this Court has said: “It is necessary to individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion.” Burns v. United States, 287 U. S. 216, 220. In Pennsylvania v. Ashe, 302 U. S. 51, 55, this Court further stated: “For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” And see Wood and Waite, Crime and Its Treatment 438-442 (1941). 11 Wood and Waite, Crime and Its Treatment 437 (1941); Orfield, Criminal Procedure from Arrest to Appeal 556-565 (1947). See, e. g., Ill. Rev. Stat. c. 38, §802 (1939); Cal. Pen. Code (Deering, 1941) § 1168. 12 Glueck, Probation and Criminal Justice 232 (1933); National Probation Assn., Directory of Probation and Parole Officers 275 (1947); Cooley, Probation and Delinquency (1927). 13 Judge Ulman writing on The Trial Judge’s Dilemma discusses the problems that confront the sentencing judge and quotes from WILLIAMS v. NEW YORK. 249 241 Opinion of the Court. of the distinctions in the evidential procedure in the trial and sentencing processes. For indeterminate sentences and probation have resulted in an increase in the discretionary powers exercised in fixing punishments. In general, these modern changes have not resulted in making the lot of offenders harder. On the contrary a strong motivating force for the changes has been the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship. This belief to a large extent has been justified. Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information.14 To deprive sentenc-one of his court opinions as to the factors that a judge should consider in imposing sentence: “1st. The protection of society against wrong-doers. “2nd. The punishment—or much better—the discipline of the wrong-doer. “3rd. The reformation and rehabilitation of the wrong-doer. “4th. The deterrence of others from the commission of like offenses. “It should be obvious that a proper dealing with these factors involves a study of each case upon an individual basis. Was the crime a crime against property only, or did it involve danger to human life? Was it a crime of sudden passion or was it studied and deliberate ? Is the criminal a man so constituted and so habituated to war upon society that there is little or no real hope that he ever can be anything other than a menace to society—or is he obviously amenable to reformation?” Glueck, Probation and Criminal Justice 113 (1933). See also 12 Encyc. of Soc. Science, Penal Institutions 57-64 (1934). 14 The late Federal Judge Lewis B. Schwellenbach in his article on the difficulties that confront a sentencing judge wrote: “The knowledge of the life of a man, his background and his family, is the only 250 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. ing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant’s life.15 The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues. The considerations we have set out admonish us against treating the due process clause as a uniform command that courts throughout the Nation abandon their age-old proper basis for the determination as to his treatment. There is no substitute for information. The sentencing judge in the federal court has the tools with which to acquire that information. Failure to make full use of those tools cannot be justified.” Schwellenbach, Information vs. Intuition in the Imposition of Sentence, 27 J. Am. Jud. Soc. 52 (1943). And see McGuire and Holtzoff, The Problem of Sentence in the Criminal Law, 20 B. U. L. Rev. 423 (1940). 15 A publication circulated by the Administrative Office of the United States Courts contains a suggested form for all United States probation reports and serves as an example of the type of information contained in the reports. This form consists of thirteen “marginal headings.” (1) Offense; (2) Prior Record; (3) Family History; (4) Home and Neighborhood; (5) Education; (6) Religion; (7) Interests and Activities; (8) Health (physical and mental); (9) Employment; (10) Resources; (11) Summary; (12) Plan; and (13) Agencies Interested. Each of the headings is »further broken down into sub-headings. The form represents a framework into which information can be inserted to give the sentencing judge a composite picture of the defendant. Administrative Office of the United States Courts, The Presentence Investigation Report, Pub. No. 101 (1943). WILLIAMS V. NEW YORK. 251 241 Opinion of the Court. practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence. New York criminal statutes set wide limits for maximum and minimum sentences.16 Under New York statutes a state judge cannot escape his grave responsibility of fixing sentence. In determining whether a defendant shall receive a one-year minimum or a twentyyear maximum sentence, we do not think the Federal Constitution restricts the view of the sentencing judge to the information received in open court. The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due process clause would hinder if not preclude all courts—state and federal—from making progressive efforts to improve the administration of criminal justice. It is urged, however, that we should draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed. We cannot accept the contention. Leaving a sentencing judge free to avail himself of out-of-court information in making such a fateful choice of sentences does secure to him a broad discretionary power, one susceptible of abuse. But in considering whether a rigid constitutional barrier should be created, it must be remembered that there is possibility of abuse wherever a judge must choose between life imprisonment and death. And it is con- 16 A few New York criminal statutes will illustrate the broad statutory limits within which the sentencing judge must fix a defendant’s penalty. Robbery in the first degree is punishable by imprisonment for not “less than ten years” nor “more than thirty years.” New York Penal Law § 2125. Rape in the first degree is “punishable by imprisonment for not more than twenty years.” New York Penal Law § 2010. Burglary in the first degree is punishable by imprisonment from ten to thirty years, burglary in the second degree for a term not exceeding fifteen years.” New York Penal Law §407. 252 OCTOBER TERM, 1948. Murphy, J., dissenting. 337U.S. ceded that no federal constitutional objection would have been possible if the judge here had sentenced appellant to death because appellant’s trial manner impressed the judge that appellant was a bad risk for society, or if the judge had sentenced him to death giving no reason at all. We cannot say that the due process clause renders a sentence void merely because a judge gets additional out-of-court information to assist him in the exercise of this awesome power of imposing the death sentence. Appellant was found guilty after a fairly conducted trial. His sentence followed a hearing conducted by the judge. Upon the judge’s inquiry as to why sentence should not be imposed, the defendant made statements. His counsel made extended arguments. The case went to the highest court in the state, and that court had power to reverse for abuse of discretion or legal error in the imposition of the sentence.17 That court affirmed. We hold that appellant was not denied due process of law.18 Affirmed. Mr. Justice Rutledge dissents. Mr. Justice Murphy, dissenting. A combination of factors in this case impels me to dissent. Petitioner was convicted of murder by a jury, and sentenced to death by the judge. The jury which heard the 17 People v. Stein, 96 Mise. 507, 161 N. Y. S. 1107; People n. Pox, 202 N. Y. 616, 96 N. E. 1126; People v. Johnson, 252 N. Y. 387, 393, 169 N. E. 619, 621. And see Commonwealth n. Johnson, 348 Pa. 349, 35 A. 2d 312. As to English procedure see 28 Cr. App. R. 89, 90-91. Also see Note, Right of Criminal Offenders to Challenge Reports Used in Determining Sentence, 49 Col. L. Rev. 567 (1949). 18 What we have said is not to be accepted as a holding that the sentencing procedure is immune from scrutiny under the due process clause. See Townsend n. Burke, 334 U. S. 736. WILLIAMS V. NEW YORK. 253 241 Murphy, J., dissenting. trial unanimously recommended life imprisonment as a suitable punishment for the defendant. They had observed him throughout the trial, had heard all the evidence adduced against him, and in spite of the shocking character of the crime of which they found him guilty, were unwilling to decree that his life should be taken. In our criminal courts the jury sits as the representative of the community; its voice is that of the society against which the crime was committed. A judge, even though vested with statutory authority to do so, should hesitate indeed to increase the severity of such a community expression. He should be willing to increase it, moreover, only with the most scrupulous regard for the rights of the defendant. The record before us indicates that the judge exercised his discretion to deprive a man of his life, in reliance on material made available to him in a probation report, consisting almost entirely of evidence that would have been inadmissible at the trial. Some, such as allegations of prior crimes, was irrelevant. Much was incompetent as hearsay. All was damaging, and none was subject to scrutiny by the defendant. Due process of law includes at least the idea that a person accused of crime shall be accorded a fair hearing through all the stages of the proceedings against him. I agree with the Court as to the value and humaneness of liberal use of probation reports as developed by modern penologists, but, in a capital case, against the unanimous recommendation of a jury, where the report would con-cededly not have been admissible at the trial, and was not subject to examination by the defendant, I am forced to conclude that the high commands of due process were not obeyed. 254 OCTOBER TERM, 1948. Syllabus. 337 U.S. CITY OF MORGANTOWN v. ROYAL INSURANCE CO, LTD. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 396. Argued February 9, 1949.—Decided June 6, 1949. An insurer brought suit in the District Court for reformation of a policy of insurance, alleging that the policy, though in terms covering loss by fire, was mutually intended to cover only loss by windstorm. The policy holder, who had suffered a loss by fire, filed a counterclaim upon the policy to recover the amount of the loss; and, under Rule 38 (b) of the Federal Rules of Civil Procedure, demanded a jury trial. Held: An order of the District Court denying the demand for trial by jury was not appealable. Pp. 255-259. (a) The order denying the demand for a jury trial in this case was not an order refusing an injunction within the meaning of 28 U. S. C. §227 (now § 1292). Enelow v. New York Life Ins. Co., 293 U. S. 379; Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188, distinguished. Pp. 256-258. (b) Notwithstanding its importance and its effect on the litigation, the order denying a jury trial was interlocutory in form and substance, and to permit an appeal therefrom would encourage piecemeal appeals. Pp. 258-259. 169 F. 2d 713, affirmed. In a suit in the District Court by an insurer for reformation of a policy of insurance on the ground of mutual mistake, the policyholder filed a counterclaim upon the policy to recover for a loss and demanded a jury trial. An appeal from an order denying a jury trial was dismissed by the Court of Appeals. 169 F. 2d 713. This Court granted certiorari. 335 U. S. 890. Affirmed, p. 259. Mary Frances Brown argued the cause, and W. G. Stathers filed a brief, for petitioner. James M. Guiher argued the cause for respondent. With him on the brief was Louis A. Johnson. MORGANTOWN v. ROYAL INS. CO. 255 254 Opinion of the Court. Mr. Justice Murphy delivered the opinion of the Court. This case raises two questions: the appealability of an order denying a demand for trial by jury in a federal court, and whether the constitutional right to a jury applies to the trial of an issue of mutual mistake. The facts are these. Petitioner in August of 1947 was carrying insurance with respondent on a hangar at its Municipal Airport. The policy by its terms insured petitioner against loss by fire or lightning in the amount of $22,000. On August 20, the hangar was completely destroyed by fire. Petitioner filed proof of loss. Shortly thereafter respondent instituted an action in the District Court for the Northern District of West Virginia for reformation and correction of the policy. It alleged in substance that during the preceding year petitioner had carried only windstorm insurance on the hangar, in the same amount; that the policy currently in force was intended by the parties to be a renewal of the prior policy; that the premium paid was the same as had been paid for windstorm insurance, an amount much less than the premium for fire insurance; and the policy had been written as a fire policy through the inadvertence of both parties and did not express the intent of either. It prayed for reformation to correct the mutual mistake and for a declaration of no liability for the loss by fire. Petitioner answered, denying mistake, and filed a counterclaim to recover on the policy as written. Respondent answered the counterclaim, alleging the same facts as in its complaint. Petitioner filed a demand for jury trial under Rule 38 (b); respondent moved to strike the demand; the court granted the motion and set the case for trial to the court without a jury. Petitioner appealed from this ruling. On motion of respondent, the Court of Appeals dismissed the appeal, 169 F. 2d 713, and the case is here on a writ of certiorari. 335 U. S. 890. 256 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. In this posture of the case, we are first confronted with the question of the appealability of the trial court’s order denying jury trial. Not being a final decision, it is appealable, if at all, only as an interlocutory decree granting or refusing an injunction under § 129 of the Judicial Code (28 U. S. C. § 227).1 Petitioner urges Enelow v. New York Life Ins. Co., 293 U. S. 379, and Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188, upon us as conclusive in favor of appealability. In each of those cases, the plaintiff had commenced an action to recover according to the terms of an insurance policy; in each of them the insurance company denied liability, alleging fraud in the procurement of the policy, and moved that the issue of fraud be tried to the court without a jury. The trial court in each case granted the motion, and this Court held on review that the rulings thus made were appealable under § 129. The substance of § 129 has been a part of federal law since 1891, 26 Stat. 828, and its relation to other aspects of procedure has not been rigid. Since 1912 the history of the law governing procedure in the federal courts has manifested a slow but consistent process of coalescing of the practice in the law and equity sides of the courts. In that year this Court adopted new equity rules, of which Rule 22 and Rule 23 made a significant start in procedural unification. A major step occurred in 1915, with the enactment of the Law and Equity Act, 38 Stat. 956, which added §§ 274 (a) and 274 (b) to the Judicial Code. The net effect of these additions was to allow transfer of action begun on either side of the court to the other side, 1 “Where ... an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused, ... an appeal may be taken from such interlocutory order or decree . . . .” The substance of this provision has been retained in Revised Title 28, U. S. C. § 1292, 62 Stat. 869. MORGANTOWN v. ROYAL INS. CO. 257 254 Opinion of the Court. without the necessity of commencing a new action, to permit determination of law questions arising in equity actions in those actions, and to allow equitable defenses to be offered and equitable relief to be granted in an action at law. In this state of a partly blended law and equity procedure arose the Enelow case, supra. The Court there held, with regard to an order denying trial by jury, that by analogy to practice at common law the order was one granting an injunction within the meaning of § 129. The coalescing of law and equity procedure was completed in 1938, with the adoption of the Rules of Civil Procedure. Their purpose, among others, was “to secure the just, speedy, and inexpensive determination of every action,” and to that end they prescribed identical procedure for all actions, whether cognizable formerly at law or in equity. After their adoption, the identical problem presented by the Enelow case arose in Ettelson v. Metropolitan Life Ins. Co., supra. It was argued that the adoption of the rules had so unified the federal procedure that the type of order in question could no longer be considered an injunction and appealable. We held the order appealable, since the rules had not changed its substantial effect, noting that the position of the parties was the same as it would have been if a state equity court had enjoined an action at law. Whatever the present validity of the analogy to common-law practice which supported those cases, it is of no help here. This is not a situation where a “chancellor” in denying a demand for jury trial can be said to be enjoining a “judge” who has cognizance of a pending action at law. This is rather a case of a judge making a ruling as to the manner in which he will try one issue m a civil action pending before himself. The fiction of a court with two sides, one of which can stay proceedings in the other, is not applicable where there is no 258 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. other proceeding in existence to be stayed. The ruling from which the appeal in this case was prosecuted is an order interlocutory in form and substance. Nothing in the language of the rules or the Judicial Code brings it within the class of appealable decisions, and distinctions from common-law practice which supported our conclusions in the Enelow and Ettelson cases supply no analogy competent to make an injunction of what in any ordinary understanding of the word is not one. Trial by jury is a vital and cherished right, integral in our judicial system. It is argued that the importance of an interlocutory order denying or granting jury trial is such that it should be appealable. Many interlocutory orders are equally important, and may determine the outcome of the litigation, but they are not for that reason converted into injunctions. The Constitution guarantees to litigants in the federal courts the right to have their cases tried by juries, and Rule 38 of the Rules of Civil Procedure explicitly implements that guarantee. Denial of the right in a case where the demanding party is entitled to it is of course error. The rulings of the district courts granting or denying jury trials are subject to the most exacting scrutiny on appeal. But piecemeal appeals have never been encouraged. The growth of the law of procedure in the United States during the last half-century has been steadily in the direction of simplicity and directness in the administration of justice. To that end, and with careful regard for the constitutional rights of the parties, this Court, pursuant to specific authorization by Congress, adopted the Rules of Civil Procedure, abolishing procedural distinctions between law and equity and establishing a single unified practice. We would ill serve the stated purposes of the Rules of Civil Procedure were we to perpetuate by analogy distinctions which the rules expressly disavow. The MORGANTOWN v. ROYAL INS. CO. 259 254 Frankfurter, J., concurring. Court of Appeals was correct in dismissing the appeal and its judgment is affirmed. With the case disposed of in this manner, we do not reach the second question presented: whether petitioner is entitled to a jury on the issue of mutual mistake. Affirmed. Mr. Justice Burton concurs in the judgment of the Court. Mr. Justice Frankfurter, concurring. On occasion a problem arises which calls for a more discriminating analysis than is conveyed by the phrase “law and equity are now fused” to indicate the procedural development whereby an action at law and a suit in equity in relation to it may be disposed of in a single litigation. In this case, the deeply rooted historical distinction between an action at law and a suit in equity becomes decisive. Since I would not reverse or impair the ruling in Endow v. New York Life Ins. Co., 293 U. S. 379, and Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188, I should like to add a few words to the Court’s opinion, in which I join, to make clear why the present decision leaves those decisions unimpaired. In the two earlier cases an action at law was brought on an insurance policy. Of course this entitled the plaintiff to a trial by jury. The defendant asked for a cancellation of the policy because of fraud. The district court entered an order suspending the action at law, to be tried by a jury, until the later-begun equitable proceeding—trial without a jury—was concluded. This Court was called upon to construe § 129 of the Judicial Code allowing appeals in limited categories of interlocutory decisions. 28 U. S. C. § 227, now § 1292. With due regard to the actualities of the situation, the Court 837446 0—49-----------21 260 OCTOBER TERM, 1948. Frankfurter, J., concurring. 337U.S. held that the staying of an action at law by the chancellor is an interlocutory injunction and as such appealable, even though the chancellor who granted such an interlocutory order be the same judge before whom the earlier action at law was pending. The ground of the decision in the Enelow case leaves no doubt as to its scope. Section 129 of the Judicial Code, wrote Mr. Chief Justice Hughes for the Court, “. . . contemplates interlocutory orders or decrees which constitute an exercise of equitable jurisdiction in granting or refusing an injunction, as distinguished from a mere stay of proceedings which a court of law, as well as a court of equity, may grant in a cause pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice. The power to stay proceedings in another court appertains distinctively to equity in the enforcement of equitable principles, and the grant or refusal of such a stay by a court of equity of proceedings at law is a grant or refusal of an injunction within the meaning of § 129. And, in this aspect, it makes no difference that the two cases, the suit in equity for an injunction and the action at law in which proceedings are stayed, are both pending in the same court . . . .” 293 U. S. at 381-82. In this case the plaintiff instituted a suit in equity for the reformation of an instrument. The insured, by way of counterclaim, contested that suit and, in addition, sought recovery on the policy. The latter was a conventional action at law which, under the Constitution, entitled the defendant to a jury trial. The judge continued this action at law until the prior equitable proceeding could be concluded. The facts, therefore, are precisely the opposite of those in the Enelow case. Here MORGANTOWN v. ROYAL INS. CO. 261 254 Black, J., dissenting. there was no intervention by a court of equity in proceedings at law, but “a mere stay of proceedings which a court of law, as well as a court of equity, may grant in a cause pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice.” 293 U. S. at 381-82. Since an interlocutory proceeding in an action at law cannot possibly be brought within the limited class of appealable interlocutory decisions under the old §129 of the Judicial Code (now 28 U. S. C. § 1292), there is an end to the matter. A layman may see no difference between the postponement by a trial judge of an action at law, and the postponement of such an action by an equitable proceeding resulting in an interlocutory injunction. But the Congress has seen fit to allow an appeal from one such result and not from the other. Nonappealability of intermediate orders in the federal courts has been a deep-rooted general principle limiting those courts since their establishment. A very few types of interlocutory orders are appealable. The Enelow and Ettelson cases presented an order that was appealable because it was a stay by a court of equity of a common-law action. This is not such a stay, and in affirming the judgment the Court leaves Enelow and Ettelson untouched. Mr. Justice Black, with whom Mr. Justice Rutledge concurs, dissenting. I think it an undesirable practice for this Court to overrule past cases without saying so. The effect of the Court’s holding here is to overrule Ettelson v. Metropolitan Ins. Co., 317 U. S. 188, decided by a unanimous Court in 1942. The Court’s holding today rejects the interpretation of § 129 of the Judicial Code (28 U. S. C. § 227, as amended 28 U. S. C. § 1292) given that section m the Ettelson case and in Enelow v. New York Life Ins. 262 OCTOBER TERM, 1948. Black, J., dissenting. 337 U.S. Co., 293 U. S. 379. And to support its new interpretation of that section the Court now adopts reasons and arguments that were expressly urged and expressly rejected in the Endow and Ettelson cases. Today the Court brushes aside the Enelow and Ettelson cases, implying that this, unlike either of the other two, is “a case of a judge making a ruling as to the manner in which he will try one issue in a civil action pending before himself.” But this was true in the Enelow and Ettelson cases. In the Enelow case the Court said at p. 382 that “it makes no difference that the two cases . . . are both pending in the same court, in view of the established distinction between ‘proceedings at law and proceedings in equity in the national courts and between the powers of those courts when sitting as courts of law and when sitting as courts of equity.’ ” The Court also implies that this case can be distinguished from the Enelow and Ettelson cases because the order in this case is “interlocutory in form and substance.” But this was true in the Enelow and Ettelson cases. In the Enelow case the Court said at p. 383, that “although interlocutory, it [the order] was appealable . . . under § 129.” In the Enelow case the order of the trial court held appealable (p. 381) required hearing of the equitable issue raised “in advance of the trial by jury at law of any purely legal issues.” That was precisely the effect of the trial court’s order in this case; it required hearing of the equitable issue of reformation in advance of a trial by jury of the legal issues raised by the counterclaim. Today the Court says this order is not an “injunction ... in any ordinary understanding of the word . . . .” In the Enelow case this Court said that such an order “in effect grants or refuses an injunction . . . .” (p. 383). The Court today seems to rest its departure from the Enelow case on the Federal Rules of Civil Procedure and their purpose as set out in Rule 1 “to secure the just, MORGANTOWN v. ROYAL INS. CO. 263 254 Black, J., dissenting. speedy, and inexpensive determination of every action.” The Ettelson case, supra, came to this Court after adoption of these rules. The insurance company there specifically pointed to Rule 1 as a reason why this Court should not follow the Enelow case. We unanimously rejected the contention. We pointed out at p. 191 that “As in the Enelow case . . . the result of the District Judge’s order is the postponement of trial of the jury action based upon the [insurance] policies; and it may, in practical effect, terminate that action. It is as effective in these respects as an injunction issued by a chancellor. . . . The plaintiffs are ... in no different position than if a state equity court had restrained them from proceeding in the law action. Nor are they differently circumstanced than was the plaintiff in the Enelow case. The relief afforded by § 129 is not restricted by the terminology used. The statute looks to the substantial effect of the order made.” Thus despite our unanimous rejection of the contention in Ettelson the Court now holds that the Rules of Civil Procedure have displaced both the Enelow and Ettelson interpretation of § 129 of the Judicial Code. The basis for overruling the Enelow and Ettelson cases appears to be the Court’s hostility to “piecemeal appeals” and the Court’s belief that overruling the two cases will promote “simplicity and directness in the administration of justice.” But to grant appeal here would not sustain appeals from every adverse ruling made in the process of a trial. Denial of trial by jury is not to be classified with ordinary trial errors, such as an admission or rejection of evidence. The question here relates to the whole trial of the issues involved: what tribunal shall hear and resolve the evidence, judge or jury? And neither simplicity nor directness of judicial administration are necessarily furthered by compelling two trials where one would suffice. Moreover, there is much to be said against 264 OCTOBER TERM, 1948. Black, J., dissenting. 337U.S. the idea of inflexibly barring appeals in regard to alleged substantial errors that may fatally invalidate an entire trial procedure.* In considering whether the dogma against “piecemeal appeals” is to be unduly exalted in this case we should not lose sight of the fact that the Bill of Rights guarantees trial by jury in appropriate cases. Had petitioner here filed a common-law suit on its policy in a state court it would have been entitled to trial by jury. In that event the federal court could have restrained trial, if at all, only by an injunction, which confessedly would have been appealable under § 129. But under Rules 2 and 13 (a) of the Federal Rules of Civil Procedure petitioner was compelled to sue on its policy by filing counterclaim in the federal court. Cf. American Mills Co. n. American Surety Co., 260 U. S. 360, 364, 366. Because of that federal compulsion the Court now penalizes petitioner by denying it a right of appeal. As a result, petitioner’s alleged constitutional right to have the facts of its case determined by a jury is at least postponed. There are many prior decisions of this Court that justify a more considerate treatment of contentions that invoke the Bill of Rights guarantee of trial by jury. See, e. g., Scott v. Neely, 140 U. S. 106, 109, 110; Insurance Co. v. Bailey, 13 Wall. 616. *Moore and Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1 (1949); see dissenting opinion by Judge Frank in American Machine and Metals, Inc. v. De Bothezat Impeller Co., 173 F. 2d 890. COMMUNICATIONS COMM’N v. WJR. 265 Syllabus. FEDERAL COMMUNICATIONS COMMISSION v. WJR, THE GOODWILL STATION, INC. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 495. Argued April 22, 1949.—Decided June 6, 1949. Without notice to Radio Station WJR, which was licensed as a Class I Station, the Federal Communications Commission granted another party an application for a permit to construct a Class II Station to broadcast on the same frequency previously used exclusively by WJR. Alleging that the new station would cause “objectionable interference” with its broadcast signal, WJR petitioned for reconsideration of the application and for a hearing to which it might be made a party or, in the alternative, that final action on the application be postponed until the conclusion of a pending “clear channel” proceeding, in which the Commission was considering allowing WJR and other stations to increase their power. The applicant challenged the legal sufficiency of WJR’s petition on the ground that WJR had not set forth facts which, if accepted as true, would constitute interference with WJR’s “normally protected contour.” The Commission denied WJR’s petition without oral argument. Held: 1. The Commission was under no duty to WJR to postpone final action on the application for the permit until it had disposed of the “clear channel” proceeding. P. 272. 2. The Due Process Clause of the Fifth Amendment did not require that the Commission afford WJR an opportunity for oral argument upon its petition for reconsideration of the application. Pp. 272-285. (a) Procedural due process under the Fifth Amendment does not require that an opportunity for oral argument be afforded on every question of law raised before a judicial or quasi-judicial tribunal, excepting such questions as may be involved in interlocutory orders. Pp. 274r-277. (b) The procedure provided by Congress in the Communications Act, for determination of the questions raised by WJR, is not lacking in due process. Pp. 277-285. (c) The provision of § 409 (a) for oral argument before the Commission in proceedings heard initially before an examiner is inapplicable here, since this proceeding was not heard or assigned 266 OCTOBER TERM, 1948. Counsel for Parties. 337 U.S. for hearing in the first instance before an examiner and WJR’s claimed right of participation arises under § 312 (b). Pp. 277-278. (d) By §§312 (b) and 4 (j), Congress has committed to the Commission’s discretion the questions whether and under what circumstances it will allow or require oral argument, except where the Act expressly requires it. Pp. 281-282. (e) The provision of § 312 (b) for “reasonable opportunity to show cause” is not to be construed as always including opportunity for oral argument. Pp. 282-283. (f) This Court can not say that the Commission abused its discretion in determining WJR’s petition on the written submission. P. 284. 3. It was error for the Court of Appeals to decline to decide the merits of the question whether WJR’s petition stated a legally sufficient case of (indirect) modification of its license within the terms of § 312 (b), as well as to decide, without determining that question, that WJR was entitled to be made a party to and participate as such in the proceedings on the application. P. 284. 4. The cause is remanded to the Court of Appeals for decision of the basic issue on the merits, uncomplicated by questions of constitutionality relating to the Commission’s procedure. P. 285. 84 U. S. App. D. C. 1, 174 F. 2d 226, reversed. The Federal Communications Commission denied WJR’s petition for reconsideration of an order granting to another an application for a permit to construct a radio station. The Court of Appeals reversed and remanded the case to the Commission. 84 U. S. App. D. C. 1, 174 F. 2d 226. This Court granted certiorari. 336 U. S. 917. Reversed and remanded, p. 285. Solicitor General Perlman argued the cause for petitioner. With him on the brief were Stanley M. Silverberg, Benedict P. Cottone, Max Goldman, Richard A. Solomon and Paul Dobin. Louis G. Caldwell argued the cause for respondents. With him on the brief for WJR, The Goodwill Station, Inc., were Donald C. Beelar and Percy H. Russell, Jr. Frank U. Fletcher was also of counsel for the Coastal Plains Broadcasting Co., Inc., respondent. COMMUNICATIONS COMM’N v. WJR. 267 265 Opinion of the Court. Mr. Justice Rutledge delivered the opinion of the Court. Most broadly stated, the important question presented by this case is the extent to which due process of law, as guaranteed by the Fifth Amendment, requires federal administrative tribunals to accord the right of oral argument to one claiming to be adversely affected by their action, more particularly upon questions of law. Lest this spacious form of statement be taken as too sweeping and abstract to pose a justiciable issue, we think the specific context of fact and decision out of which the question has arisen must be set forth. But before this is done we should say that, as we understand the Court of Appeals’ decision, it has ruled that Fifth Amendment procedural due process requires an opportunity for oral argument to be given “on every question of law raised before a judicial or quasi-judicial tribunal, including questions raised by demurrer or as if on demurrer, except such questions of law as may be involved in interlocutory orders such as orders for the stay of proceedings pendente lite, for temporary injunctions and the like,” 174 F. 2d 226, 233, and on this basis has remanded this cause to the Federal Communications Commission for oral argument. Involved in the controversy are two radio stations and the Commission, which is the petitioner here. One of the stations is the respondent WJR. It is licensed by the Commission as a “Class I-A Station,”1 to broadcast day and night from Detroit, Michigan, on a frequency of 760 1 Federal Communications Commission Rules Governing Standard Broadcast Stations § 3.22 (a): “A ‘Class I Station’ is a dominant station operating on a clear channel and designed to render primary and secondary service over an extended area and at relatively long distances. Its primary service area is free from objectionable interference from other stations on the same and adjacent channels, and its secondary service area free from interference, except from stations on the adjacent channel, and from stations on the same channel in 268 OCTOBER TERM, 1948. Opinion of the Court. • 337U.S. kilocycles and with a strength of 50 kilowatts. The other station is the intervenor, Coastal Plains (formerly Tarboro) Broadcasting Company. Prior to August 22, 1946, Tarboro filed written application with the Commission for a permit to construct a “Class II Station”2 to broadcast from Tarboro, North Carolina. On that date the Commission granted the application. The permit specified that the new station was to broadcast during the day from Tarboro at a strength of one kilowatt on the frequency of 760 kilocycles, which previously had been used exclusively by WJR. The construction permit was granted without notice to WJR and without oral hearing or other participation by it in the proceedings before the Commission. On September 10 following, WJR filed with the Commission a written “Petition for reconsideration and hearing.” This alleged that the proposed broadcasting range of the Coastal Plains station would cause “objectionable interference” with respondent’s broadcast signal. Interference was said to be anticipated principally in certain areas of Michigan where “the field intensity of WJR averages 32 microvolts per meter or less during the day- accordance with the channel designation in Sec. 3.25 or in accordance with the ‘Engineering Standards of Allocation’. The operating power shall be not less than 10 kw nor more than 50 kw (also see Sec. 3.25 (a) for further power limitation).” 4 Fed. Reg. 2715. 2 Federal Communications Commission Rules Governing Standard Broadcast Stations § 3.22 (b): “A ‘Class II Station’ is a secondary station which operates on a clear channel (see Sec. 3.25) and is designed to render service over a primary service area which is limited by and subject to such interference as may be received from Class I stations. A station of this class shall operate with power not less than 0.25 kilowatts nor more than 50 kilowatts. Whenever necessary a Class II station shall use a directional antenna or other means to avoid interference with Class I stations and with other Class II stations, in accordance with the ‘Engineering Standards of Allocation.’ ” 4 Fed. Reg. 2715. COMMUNICATIONS COMM’N v. WJR. 269 265 Opinion of the Court. time hours,”3 but where “WJR provides the best signal available”; limited interference “during the winter season” was also expected within “contours” of field intensity “much higher” than 32 microvolts; interference of unspecified extent was also thought likely in neighboring states, though as to such areas it was conceded that “a better signal is provided by other stations.” On the basis of these allegations WJR asked that the Commission hold a hearing on the Coastal Plains application to which WJR might be made a party or, in the alternative, postpone final action on the Coastal Plains application until the conclusion of the then pending “Clear Channel”4 proceeding. In that proceeding, essentially legislative in character, the Commission was considering the desirability of changing its rules so as to allow WJR and other stations to increase their broadcast strengths to 500 kilowatts. The basis for the alternative request was WJR’s fear that a grant of the Coastal Plains construction permit might prejudice a possible future WJR application for increased signal strength in the event the decision in the clear channel proceeding should so modify the Commission’s rules as to facilitate such an application. Coastal Plains filed an opposition to WJR’s petition for reconsideration, asserting among other grounds for denial that WJR had not alleged that the proposed new operation “would cause any interference within the normally protected service area of station WJR” and had neither 3 For the meaning of the term “field intensity,” and for the relation of a broadcast signal’s “field intensity” to the legal concept of a licensed radio station’s “normally protected contour,” see note 5. 4 Federal Communications Commission Rules Governing Standard Broadcast Stations § 3.21 (a): “A ‘clear channel’ is one on which the dominant station or stations render service over wide areas and which are cleared of objectionable interference, within their primary service areas and over all or a substantial portion of their secondary service areas.” 4 Fed. Reg. 2715. 270 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. alleged nor proved “any interference within its normally protected contours.” The opposition was based on the theory that under the Commission’s regulations WJR’s license conferred no right to protection against interference outside its normally protected contours as specified in the regulations, that the interference alleged was outside those contours, and hence WJR’s petition was legally insufficient on its face to state any basis for WJR to be made a party to or to be heard in the Coastal Plains proceeding. No response to the opposition was filed by WJR and some three months later, on December 17, 1946, the Commission denied WJR’s application in a written opinion, rendered without prior oral argument. The opinion first disposed of the allegations of interference: “Station WJR is a Class I-A station. Under the Commission’s Rules and Standards, Class I-A stations are normally protected daytime to the 100 microvolt-per-meter contour. The area sought by petitioner to be protected is, according to the engineering affidavit accompanying the petition, served by Station WJR during the daytime with a signal intensity of 32 microvolts-per-meter or less, and is therefore outside the normally protected contour.”5 As the Court of Appeals later treated this ruling, it was the equivalent of holding as a matter of law, in 5 The dissenting opinion in the Court of Appeals decision here under review offers a succinct exposition of these technical terms: “This concept of normal protection in the daytime is clear. The circumference of the protected area is a contour line, which is fixed by measurement of the strength of the radio waves from the particular station. That strength, or intensity, is measured in terms of microvolts (millionths of a volt) or millivolts (thousandths of a volt) per meter, abbreviated as uv/m and mv/m respectively. The wave which is measured is the groundwave, which follows the COMMUNICATIONS COMM’N v. WJR. 271 265 Opinion of the Court. judicial parlance essentially as though raised upon demurrer, that WJR’s petition did not state facts sufficient to raise any legal issue concerning (indirect) modification of WJR’s license or rights under the license. The Commission also denied WJR’s alternate request to stay the Coastal Plains application, concluding that postponement of the newly authorized service out of deference to any possible “future assignment of facilities” to WJR “would not serve the public interest.” WJR then appealed to the Court of Appeals. The court agreed that the Commission had not abused its discretion in refusing to stay the Coastal Plains permit until completion of the clear channel proceeding. It held, however, that WJR’s claim of objectionable interference with its broadcast signal presented a question of law and, by a closely divided vote, in the broad language quoted surface of the earth and extends greater or less distances depending upon the nature of the earth, its topography, and such obstacles as noise and steel structures. Generally speaking, the greater the distance from the station, the less the strength of the station signal. The '100 uv/m ground wave contour’ named in the Commission’s Standards, is the imaginary line which connects all points at which the ground wave of the station is of 100 microvolts per meter strength.” 174 F. 2d 226,244. The "Commission’s Standards” to which the opinion refers are the Standards of Good Engineering Practice Concerning Broadcast Stations. Under the subheading “Engineering Standards of Allocation,” paragraph (2) (a) provides as follows: “The Class I stations in Group 1 are those assigned to the channels allocated by Section 3.25, paragraph (a) [including, inter alia, the 760 kilocycle frequency assigned to WJR, 4 Fed. Reg. 2716], on which duplicate nighttime operation is not permitted, that is, no other station is permitted to operate on a channel with a Class I station of this group within the limits of the United States (the Class II stations assigned the channels operate limited time or daytime only) and during daytime the Class I station is protected to the 100 uv/m ground wave contour.” 4 Fed. Reg. 2862. 272 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. above,6 that, concerning the merits of that question, the Fifth Amendment assured to WJR the right of oral argument before the Commission. Accordingly, it refused to consider whether the Commission was right in its legal conclusion that areas of signal intensity lower than 100 microvolts per meter were not within the “normally protected contour” of a Class I-A station, reversed the Commission’s denial of WJR’s petition, and remanded the case for oral argument before the Commission. 174 F. 2d 226. To consider the questions of importance to the administrative process thus determined, we issued our writ of certiorari. 336 U. S. 917. At the outset we note our complete agreement with the Court of Appeals that the Commission was under no duty to WJR to postpone final action on the Coastal Plains permit until it had disposed of the clear channel proceeding. As the court pointed out, WJR had no vested right in the “supposititious eventualities” that the Commission at some indeterminate time might modify its rules governing clear channel stations. Furthermore, the judicial regulation of an administrative docket sought by WJR “would require [the Court of Appeals] to direct the order in which the Commission shall consider its cases.” And this, as the court said, it “cannot do.” 174 F. 2d at 231. “Only Congress could confer such a priority.” Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 145. Obviously the most important question is the Court of Appeals’ ruling that Fifth Amendment due process re- 0 The case was first argued before three justices, Chief Justice Groner and Justices Clark and Prettyman. By direction of the court it was reargued before Justices Stephens, Edgerton, Clark, Wilbur K. Miller and Prettyman. The decision was rendered pursuant to an opinion of Justice Stephens, in which Justices Clark and Miller concurred. Justice Prettyman filed a dissenting opinion in which Justice Edgerton joined. COMMUNICATIONS COMM’N v. WJR. 273 265 Opinion of the Court. quired the Commission to afford respondent an opportunity for oral argument upon its petition for reconsideration of Coastal Plains’ application, together with its grounding of that ruling in the even broader one that such an opportunity is an inherent element of procedural due process in all judicial or quasi-judicial, i. e., administrative, determinations of questions of law, outside of such questions as may arise upon interlocutory matters involving stays pendente lite, temporary injunctions and the like. That the scope of its decision might not be misunderstood, the court expressly stated: “A ruling upon a demurrer is obviously not interlocutory for if the demurrer is sustained the pleader’s cause (or defense) is dismissed upon the merits . ...”7 Moreover, except as to the indicated interlocutory matters, the right of oral argument on questions of law (“as well as . . . those of fact” when raised) was said to be “not conditional upon the ex parte view of the tribunal as to whether there is a substantial question as to the sufficiency of the allegations of a complainant.” 174 F. 2d at 240. Accordingly, although it was urged both by the Commission and by WJR to consider and determine the “threshold” question of law upon its merits, namely, whether the Commission’s decision in denying WJR’s petition was wrong, the court refused to consider or decide that question. In its view the question of the Commission’s duty to accord a hearing, “i. e., to hear argument 7 The statement, taken in its context and the pervading sense of the opinion, related not merely to judicial rulings technically “raised by demurrer” but also to judicial and administrative rulings “as if on demurrer,” i. e., as expressly stated later in the opinion, to rulings raised by demurrer or motion to dismiss or, in an administrative proceeding, by some less formally named instrument of like purpose, or by the tribunal’s sua sponte treatment of a petition as if under demurrer . . . .” 174 F. 2d at 236. 274 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. before deciding whether the allegations of WJR’s petition were sufficient” in law, was “a procedural question quite separate from the question on the merits whether or not the allegations of the petition, assuming their truth, were sufficient.” 174 F. 2d at 240. The statutory scheme of the Communications Act, the court thought, “contemplates, before review in this court, proper exercise of the Commission’s primary jurisdiction, i. e., valid first instance hearings properly conducted from the procedural—due process—standpoint.” Ibid. Accordingly, the majority felt that the court “must therefore remand the case with directions to the Commission to allow a hearing to WJR. Then if after hearing the Commission decides that the allegations were insufficient and dismisses the petition ... an appeal to this court will bring properly before us the question of the correctness of the Commission’s decision on the merits . . . .” Ibid.3 I. Taken at its literal and explicit import, the Court’s broad constitutional ruling cannot be sustained. So taken, it would require oral argument upon every ques- 8 Both from the wording of the immediate reference, quoted above, and from other language in context, it is clear that the court’s reference to “the statutory scheme set up in the Communications Act” was not designed as a ruling that the statutory scheme itself, considered wholly as such and apart from any requirement of due process, affords the right of oral argument upon all questions of law, other than the interlocutory exceptions, before the Commission. Rather, the reference was intended to construe the Act as incorporating the court’s reiterated conception of due-process requirements in this respect, in effect as a construction required by the Fifth Amendment. It is clear also that in this ruling the court identified “hearing” with “oral argument” insofar as determination of questions of law are concerned. We are thus confronted, so far as the court’s decision went, with no question purely of statutory construction but solely, at bottom, with one of constitutional import and effect. COMMUNICATIONS COMM’N v. WJR. 275 265 Opinion of the Court. tion of law, apart from the excluded interlocutory matters, arising in administrative proceedings of every sort. This would be regardless of whether the legal question were substantial or insubstantial; of the substantive nature of the asserted right or interest involved; of whether Congress had provided a procedure, relating to the particular interest, requiring oral argument or allowing it to be dispensed with; and regardless of the fact that full opportunity for judicial review may be available. We do not stop to consider the effects of such a ruling, if accepted, upon the work of the vast and varied administrative as well as judicial tribunals of the federal system and the equally numerous and diversified interests affected by their functioning; or indeed upon the many and different types of administrative and judicial procedures which Congress has provided for dealing adjudi-catively with such interests. It is enough to say that due process of law, as conceived by the Fifth Amendment, has never been cast in so rigid and all-inclusive confinement. On the contrary, due process of law has never been a term of fixed and invariable content.9 This is as true with reference to oral argument as with respect to other elements of procedural due process. For this Court has held in some situations that such argument is essential to a fair hearing, Londoner n. Denver, 210 U. S. 373, in 9 “The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights.” Labor Board v. Mackay Co., 304 U. S. 333, 351. “The requirements imposed by that guaranty [Fifth Amendment due process] are not technical, nor is any particular form of procedure necessary.” Inland Empire Council v. Millis, 325 U. S. 697, 710. See also Bowles v. Willingham, 321 U. S. 503, 519-521; Opp Cotton Mills v. Administrator, 312 U. S. 126,152— 153; Buttfield v. Stranahan, 192 U. S. 470, 496-497; Anniston Mfg. Co. v. Davis, 301 U. S. 337, 342, 343; United States v. Ju Toy, 198 U. S. 253, 263; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235; Phillips v. Commissioner, 283 U. S. 589,596-597. 837446 0—49--22 276 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. others that argument submitted in writing is sufficient. Morgan n. United States, 298 U. S. 468, 481. See also Johnson & Wimsatt v. Hazen, 69 App. D. C. 151; Mitchell v. Reichelderjer, 61 App. D. C. 50. The decisions cited are sufficient to show that the broad generalization made by the Court of Appeals is not the law. Rather it is in conflict with this Court’s rulings, in effect, that the right of oral argument as a matter of procedural due process varies from case to case in accordance with differing circumstances, as do other procedural regulations. Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised. Equally certainly it has left wide discretion to Congress in creating the procedures to be followed in both administrative and judicial proceedings, as well as in their conjunction. Without in any sense discounting the value of oral argument wherever it may be appropriate or, by virtue of the particular circumstances, constitutionally required, we cannot accept the broad formula upon which the Court of Appeals rested its ruling. To do so would do violence not only to our own former decisions but also, we think, to the constitutional power of Congress to devise differing administrative and legal procedures appropriate for the disposition of issues affecting interests widely varying in kind.10 10 For example, what may be appropriate or constitutionally required by way of procedure, including opportunity for oral argument, in protection of an alien’s claims of right to enter the country, cf. Johnson n. Shaughnessy, 336 U. S. 806, may be very different from what is required to determine an alleged citizen’s right of entry or reentry, cf. Ng Fung Ho v. White, 259 U. S. 276, 282; Carmichael v. Delaney, 170 F. 2d 239, 243-244; a claimed right of naturalization, Tutun v. United States, 270 U. S. 568, 576-578; a claim of just compensation for land condemned, cf. Roberts v. New York City, 295 U. S. 264, 277-278; or the right to defend against an indictment for crime. COMMUNICATIONS COMM’N v. WJR. 277 265 Opinion of the Court. It follows also that we should not undertake in this case to generalize more broadly than the particular circumstances require upon when and under what circumstances procedural due process may require oral argument. That is not a matter, under our decisions, for broadside generalization and indiscriminate application. It is rather one for case-to-case determination, through which alone account may be taken of differences in the particular interests affected, circumstances involved, and procedures prescribed by Congress for dealing with them. Only thus may the judgment of Congress, expressed pursuant to its power under the Constitution to devise both judicial and administrative procedures, be taken into account. Any other approach would be, in these respects, highly abstract, indeed largely in a vacuum. II. Descending to the concrete setting of this case in the provisions of the Communications Act,11 we are unable to conclude that the procedure Congress has provided for determination of the questions respondent raises affords any semblance of due process deficiency. The statute itself provides in terms for oral argument before the Commission in a single situation only, namely, in proceedings heard initially before an examiner under §409 (a).12 That provision however has no pertinence to this case, since it was not heard or assigned for hearing in the first instance before an examiner and respondent’s claimed right of participation arises under § 312 (b). 47 U. S. C. §312 (b). That section authorizes the Commission to modify station licenses “if in the judgment 11 Act of June 19, 1934, c. 652, 48 Stat. 1064, 1081, 47 U. S. C. § 301 ff. 12The section reads in part: ‘Tn all cases heard by an examiner the Commission shall hear oral arguments . . . .” 47 U. S. C. §409 (a). 278 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. of the Commission such action will promote the public interest, convenience, and necessity,” but provides “That no such order of modification shall become final until the holder of such outstanding license . . . shall have been notified in writing of the proposed action and the grounds or reasons therefor and shall have been given reasonable opportunity to show cause why such an order of modification should not issue.” As bearing on the meaning of § 312 (b), account must be taken also of two other factors. One is § 4 (j) of the Act [47 U. S. C. § 154 (j)], which provides: “The Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. . . . Any party may appear before the Commission and be heard in person or by attorney. . . .” The other factor consists in this Court’s decision in Federal Communications Commission v. National Broadcasting Co., 319 U. S. 239, the so-called KOA case. That case held that the granting of a license to broadcast on a frequency and at a strength which would interfere with the broadcast signal of a prior licensee within the protection of the latter’s license as afforded by the Commission’s existing rules constitutes an indirect modification of the prior outstanding license. From this it was held to follow that § 312 (b) gave the prior licensee the right to be made a party to the proceeding and hence to “have notice in writing of the proposed action and the grounds therefor and ... a reasonable opportunity to show cause why an order of modification should not issue.” 319 U. S. at 245-246. Then followed the Court’s conclusion that by virtue of KOA’s right to be a party, it had also the right under § 402 (b) (2), as a “person aggrieved or whose interests are adversely affected,” to appeal to the Court of Appeals from the Commission’s COMMUNICATIONS COMM’N v. WJR. 279 265 Opinion of the Court. denial of its petition to intervene and participate as a party in the proceedings before it. It is in this context of statutory provisions and judicial decision that WJR’s claim of right to participate in the Commission’s proceedings, including the right of oral argument, and of denial of due process through the denial of its petition for reconsideration arises and must be considered. WJR’s petition presents the question whether upon its face it states facts sufficient to show (indirect) modification of its license by the granting of Coastal Plains’ application. This in turn depends on whether allegations not asserting interference within the 100 microvolt-per-meter contour or, as the Commission held, allegations asserting interference only “outside the normally protected contour” of WJR’s license, set forth any legally sufficient basis for a claim of right to be made a party and participate in the proceedings. And, again, according to respondent, the answer to that question turns on whether the Commission’s Standards of Good Engineering Practice Concerning Standard Broadcast Stations constitute a part of and a limitation upon WJR’s license.13 Respondent insists that those Standards, as a matter of law, do not limit its license or measure the protection it affords against “objectionable interference”; it necessarily argues in addition that the degree of interference its petition alleges brings about an (indirect) modification of its license (conversely stated, that the license protected it against the alleged degree of interference) and hence, as in the KO A case, the proposed grant of 13 The Standards, 4 Fed. Reg. 2862, expressly state that “during daytime the Class I station is protected to the 100 uv/m ground wave contour.” § 1 (2) (a). The Commission’s Standards of Good Engineering Practice Concerning Standard Broadcast Stations were adopted in 1939 after formal and informal hearings. Fifth Annual Report of the Federal Communications Commission (1940) 37. 280 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. a new license entitles it under §312 (b) to be made a party to the Coastal Plains proceeding and to participate in it as § 312 (b) provides. This is the claim which the Court of Appeals purported expressly to refuse to consider or decide, prior to oral argument upon it before the Commission. But two things may be noted. One is that, contrary to the situation here, in the KO A case the Commission’s proposed grant of a new license to Station WHDH con-cededly created interference against which the existing rules of the Commission protected the prior license of KOA.14 In the second place, the majority’s disclaimer here of decision upon the merits seems hardly consistent with its opinion’s flat ruling, as we understand it, that WJR’s allegations qualified it as a party to the proceeding and not, as the dissenting judges thought, merely as a stranger seeking to come in as an intervenor.15 For that question here, viz., whether WJR’s allegations entitle it to standing as a party, is but another way of phrasing the issue 14 In other words, the interference alleged was within the conceded “normal contours” of KOA’s protection, not without them. There was therefore no question such as is presented here whether the existing station’s license protected it against the interference alleged. The KOA decision therefore cannot be taken as ruling that one asserting interference outside the scope of its license protection, afforded by the Commission’s rules and regulations, is entitled to be made a party and to participate in proceedings involving the issuance of a new license creating only such interference. 15The court’s opinion stated: “WJR as an outstanding licensee is not a mere permissive intervener or, as the minority puts it, an ‘outsider’.” 174 F. 2d at 240. The statement of the minority to which this rejoinder was made was: “The ruling [of the majority] is that a petitioner for intervention in an administrative proceeding is entitled to an oral hearing as a matter of constitutional right, no matter what or how little he says in his petition. . . . [WJR’s petition] was basically a petition to intervene, as it asked that WJR be made a party to the Coastal Plains proceeding.” Id. at 243. COMMUNICATIONS COMM’N v. WJR. 281 265 Opinion of the Court. whether its petition states a legally sufficient claim of (indirect) modification, since under § 312 (b) only a prior licensee who states such a claim is entitled to be made a party and to participate in the proceedings. To decide that one has the status of a party is therefore to decide the question of modification vel non. In view of the court’s mandate, however, we think we must accept its disclaimer. But we also think that, in the light of the disclaimer, its ruling, if it was such, that WJR is entitled to be made a party must be rejected and that question must be regarded as inherently involved in, indeed as identical with, the undetermined issue of modification vel non, if any effect is to be given to the provisions of § 312 (b).16 We think the limitations of that section must be given effect. Indeed it is our view that the Act’s procedural scheme and its application in this case have not deprived the respondent of any procedural right guaranteed by the due-process requirement of the Fifth Amendment. That is true, notwithstanding the Commission’s failure to afford respondent an opportunity for oral argument upon its allegations in this case. Congress, we think, has committed to the Commission’s discretion, by the terms of §312 (b) and § 4 (j) of the Communications Act, the questions whether and under what circumstances it will allow or require oral argument, except where the Act itself expressly requires it. 16 The Court of Appeals was not simply construing the statute, but was influenced throughout its opinion by its broad constitutional generalization concerning oral argument. In that view necessarily the Act’s specific terms, including those of §312 (b), sank into the generalization’s constitutional coloring. In that light, perhaps, the majority’s disclaimer and its ruling that WJR was entitled to come m as a party bore semblance of consistency. But without the coloration, § 312 (b) identifies showing of modification with standing as a party; and, unless this limitation is invalid for constitutional reasons, it must be given effect. 282 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. As we have noted, Congress has required oral argument expressly in proceedings heard initially before an examiner under § 409 (a). But no such requirement was made by § 312 (b). While that section requires notice and statement of grounds for any proposed order of modification before such order “shall become final,” it does not specify that further proceedings shall include the right to oral argument; it requires only that the holder of the outstanding license to be modified “shall have been given reasonable opportunity to show cause why such an order of modification should not issue” before the order becomes final. In view of the contrast between this language and that of § 409 (a), it is hardly to be taken that Congress intended the “reasonable opportunity to show cause” always to include opportunity for oral argument. Indeed, in the absence of any such explicit requirement as that of § 409 (a), the terms of § 312 (b) must be read in the light of the Act’s general procedural authorization in § 4 (j), which empowers the Commission to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” In this wording Congress was mindful not only of the ends of justice but also of the proper dispatch of the Commission’s business, a matter not unrelated to achieving the ends of justice, and left largely to its judgment the determination of the manner of conducting its business which would most fairly and reasonably accommodate those ends. Moreover it was dealing with substantive interests involving the use, pursuant to federal license, of channels of radio communication “but not the ownership thereof,” § 301, as to which moreover the Act expressly provides that “no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license.” Ibid. COMMUNICATIONS COMM’N v. WJR. 283 265 Opinion of the Court. In this connection it cannot be recalled too often that “ ‘public convenience, interest, or necessity’ was the touchstone for the exercise of the Commission’s authority” in matters relating to construction permits and licensing, and that this criterion “serves as a supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy.” Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 137-138. “Necessarily, therefore, the subordinate questions of procedure in ascertaining the public interest, when the Commission’s licensing authority is invoked—the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions—were explicitly and by implication left to the Commission’s own devising, so long, of course, as it observes the basic requirements designed for the protection of private as well as public interest.” Id. at 138. We need not go again over the ground which was covered by this decision and others. Suffice it to say that the Commission has not seen fit to provide for oral argument in all such cases as this arising under § 312 (b) ; nor is there any basis in the section or the Act for believing that Congress intended to require it to do so. “Reasonable opportunity to show cause,” as used in §312 (b), comprehends, in the light of § 4 (j) and this Court’s prior decisions, that the Commission shall have broad discretion in determining whether and when oral argument shall be required or permitted, as it does with respect to other procedural matters.17 17 That is true even though § 4 (j ) also provides that “Any party may appear before the Commission and be heard in person or by attorney.” That provision does not nullify the Commission’s discretion as to the manner in which the “reasonable opportunity to 284 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. Respondent does not contend that it was denied any opportunity to present for the Commission’s consideration any matter of fact or law in connection with its application or that the Commission has not given all matters submitted by it due and full consideration. We cannot say, in view of the statute and of the subject matter involved, that the Commission abused its discretion in hearing respondent’s application on the written submission.18 Accordingly we think it was error for the court to decline to decide the merits of the question whether respondent’s application stated a legally sufficient case of (indirect) modification of its license within the terms of § 312 (b) as well as to decide, without determining that question, that respondent was entitled to be made a party to and participate as such in the Coastal Plains proceeding. As we have said, in the situation here presented, the two forms of statement pose the same question in substance, together with the further question, under the KO A decision, whether respondent has standing to appeal as a party aggrieved. The statutory sequence identifies (1) a legally sufficient claim of modification with (2) right to standing as a party and (3) right to appeal. show cause” afforded by § 312 (b) shall be given. It only assures the right to participate “in person or by attorney” in the manner reasonably found by the Commission to be appropriate. 18 Federal Rule 78, the terms of which were noted by the dissent in the Court of Appeals, 174 F. 2d 226, 247, provides in part, as to United States District Courts: “To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.” Fed. Rules Civ. Proc., Rule 78. Similar notice may be taken of Rule 7 (2) of this Court which, governing not only motion practice in appellate cases but motions for leave to initiate original proceedings, provides in part: “Oral argument will not be heard on any motion unless the court specially assigns it therefor . . . .” COMMUNICATIONS COMM’N v. WJR. 285 265 Opinion of the Court. This threefold issue presents a question of law respondent is entitled to have determined. The dissenting judges in the Court of Appeals considered the question insubstantial, because they thought, contrary to respondent’s position, that the Commission’s Standards of Good Engineering Practice applied as a limitation upon respondent’s license and therefore excluded it from protection against interference such as respondent alleged, i. e., outside the contours prescribed by the Standards. That question, being one of law, might now be decided here. But since the statute, if it affords respondent a right of appeal, provides that it shall be to the Court of Appeals, and since that court has not decided the basic issue on the merits, we think the cause should be remanded to the Court of Appeals for decision of that question, uncomplicated by questions of constitutionality relating to the Commission’s procedure. Accordingly the court’s decision is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Murphy took no part in the consideration or decision of this case. 286 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. JOY OIL CO., LTD. v. STATE TAX COMMISSION. CERTIORARI TO THE SUPREME COURT OF MICHIGAN. No. 223. Argued January 6-7,1949.—Decided June 13,1949. Petitioner, a Canadian corporation, purchased in Michigan 1,500,000 gallons of gasoline, certified that it was purchased for export, shipped it by rail to Detroit under bills of lading marked “For Export to Canada,” and placed it in storage tanks in Dearborn, Michigan. Fifteen months later, when only 50,000 gallons had been exported to Canada, Dearborn assessed an ad valorem property tax on the remaining gasoline. Because of a shortage of shipping space, it was more than eighteen months after storage before all of the gasoline had been exported to Canada. Held: The tax was not in violation of the Export-Import Clause, Art. I, § 10, cl. 2, of the Federal Constitution. Pp. 286-289. 321 Mich. 335, 32 N. W. 2d 472, affirmed. An ad valorem tax assessed by a Michigan municipality upon a Canadian corporation’s stores of gasoline was sustained by the State Supreme Court against a claim of invalidity under the Export-Import Clause of the Federal Constitution. 321 Mich. 335, 32 N. W. 2d 472. This Court granted certiorari. 335 U. S. 812. Affirmed, p. 289. Clayton F. Jennings argued the cause and filed a brief for petitioner. Edmund E. Shepherd, Solicitor General of Michigan, argued the cause for respondent. With him on the brief were Eugene F. Black, Attorney General, Daniel J-O’Hara, Assistant Attorney General, Dale H. Fillmore and Joel K. Underwood. Mr. Justice Frankfurter delivered the opinion of the Court. On December 29, 1945, petitioner Joy Oil Company, Ltd., a Canadian corporation, purchased 1,500,000 gal- JOY OIL CO. v. STATE TAX COMM’N. 287 286 Opinion of the Court. Ions of gasoline from Mid-West Refineries, Inc., of Grand Rapids, Michigan. The bills of lading issued by the railroad to which the gasoline was delivered were marked “For Export to Canada,” but the gasoline was consigned to petitioner at Detroit. In order to secure the benefits of lower export freight rates and exemption from the federal transportation and manufacturers’ excise taxes, petitioner furnished Mid-West Refineries and the railroad with prescribed forms certifying that the gasoline was purchased for export. Rail shipments were begun in January and completed in February of 1946. As the gasoline reached Detroit it was accumulated in storage tanks leased by petitioner at Dearborn. On April 1, 1947, the city of Dearborn assessed an ad valorem property tax on the gasoline, all of which, except 50,000 gallons, shipped to Canada by truck over the Ambassador Bridge, had then been in the Dearborn tanks for fifteen months. Shipment by truck was halted by a federal regulation prohibiting the transportation of inflammables over any international bridge, and petitioner apparently chose not to ship the gasoline by rail across the Detroit River. In July of 1947 petitioner began to ship it to Canada by water; the last tanker load departed on August 22, 1947. Petitioner explains the delay as due to inability to obtain shipping space at any earlier date. Petitioner resisted payment of the tax on the ground that it infringed Art. I, § 10, cl. 2, of the Constitution. The Tax Commission of Michigan sustained Dearborn’s assessment of the tax, and the Supreme Court of Michigan affirmed. 321 Mich. 335, 32 N. W. 2d 472. We granted certiorari because the case presented a sufficiently important question in the accommodation of State and Federal interests under the Constitution. 335 U. S. 812. 288 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. The circumstances which tended, at the time when the tax was assessed, to establish petitioner’s intent to export the gasoline and the fact that the gasoline was eventually exported are not enough, by themselves, to confer immu-nity from local taxation. See, e. g., Cornell v. Coyne, 192 U. S. 418; Empresa Siderurgica n. County of Merced, 337 U. S. 154. Nor is it enough that by the rail shipment to Detroit one step in the process of exportation had been taken or that a part of the total bulk had already departed for its foreign destination. It is of course true that commodities destined for shipment by water must be transshipped at the water’s edge and so may require a brief period of storage at that point which will not be deemed a delay sufficient to interrupt the continuity of the export process. Carson Petroleum Co. v. Vial, 279 U. S. 95; see Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498; Texas & N. 0. R. Co. n. Sabine Tram Co., 227 U. S. 111. But here the period of storage at Dearborn was so long as to preclude holding that the first step toward exportation would inevitably be followed by others. See, by way of contrast, Hughes Bros. Timber Co. v. Minnesota, 272 U. S. 469. While in storage, the gasoline might have been diverted to domestic markets without disruption of any existing arrangement for its transshipment and without even breach of any contractual commitment to a foreign purchaser. Neither the character of the property nor any event equivalent to its redelivery to a common carrier made export certain for all practical purposes. See Richfield Oil Corp. v. State Board, 329 U. S. 69, 82. The Export-Import Clause was meant to confer immunity from local taxation upon property being exported, not to relieve property eventually to be exported from its share of the cost of local services. See Coe n. Errol, JOY OIL CO. v. STATE TAX COMM’N. 289 286 Vinson, C. J., dissenting. 116 U. S. 517, 527-28. The fifteen-month delay at Dearborn barred immunity of petitioner’s gasoline from the taxing power of the municipality. Affirmed. Mr. Chief Justice Vinson, with whom Mr. Justice Douglas and Mr. Justice Jackson join, dissenting. The Court holds that fifteen months’ delay in transshipment of the gasoline in question was so long that continuity of the process of exportation was broken, because during that period it might have been diverted to domestic markets. I think that this rationale and the conclusion which follows therefrom mark a substantial and unwarranted departure from our previous decisions in this field. As I understand it, the Court’s opinion reflects the view that a long delay in transshipment makes it uncertain whether the gasoline will eventually be exported, and further, that a delay of fifteen months makes it possible for this Court to say as a matter of law that the uncertainty is so great that the process of exportation has ceased, whatever the reason for the delay. But the Court concedes that petitioner intended to export the gasoline at the time the tax was imposed, and petitioner’s uncontradicted evidence shows that it had that intent throughout the period of delay, which was caused by its inability to procure water transportation. That intent was manifested in a number of ways. The bills of lading by which the gasoline moved from Grandville and Alma, Michigan, to Dearborn, a Great Lakes port, were marked “For Export to Canada”; petitioner certified that the gasoline was to be exported in order to secure an exemption under the federal manufacturer’s excise tax and to qualify for lower freight rates accorded exports; it transported 50,000 gallons of the gasoline by truck over the Ambassador Bridge 290 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337U.S. into Canada until a federal regulation closed the bridge to inflammable materials; and finally, petitioner exported all of the gasoline to Canada when shipping space became available. There is nothing in the record to indicate either that petitioner at any time deviated from that expressed intent, or that the delay was not due solely to lack of shipping space. The Court is in the anomalous position, therefore, of holding as a matter of law that a fifteen-month delay in transshipment breaks the “stream of export” because of the resulting uncertainty that the goods will ultimately be exported, when all of the evidence is to the effect that the shipper’s intent to export has never wavered; that exportation was as certain as of the date of the tax as it had been fifteen months before. The Court has previously considered the question to be quite a different one. We have held that “The character of the shipment in such a case depends upon all the evidential circumstances looking to what the owner has done in the preparation for the journey and in carrying it out. The mere power of the owner to divert the shipment already started does not take it out of interstate commerce, if the other facts show that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation, as in the Champlain case.” Hughes Brothers Timber Co. v. Minnesota, 272 U. S. 469, 475-476 (1926). This test was quoted with approval by Mr. Chief Justice Hughes in Minnesota v. Blasius, 290 U. S. 1, 10 (1933), and he added, “The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied.” See also to the same effect, JOY OIL CO. v. STATE TAX COMM’N. 291 286 Vinson, C. J., dissenting. Champlain Realty Co. v. Town of Brattleboro, 260 U. S. 366, 377 (1922) ; Carson Petroleum Co. v. Vial, 279 U. S. 95,102 (1929) ; United States v. Erie R. Co., 280 U. S. 98, 102 (1929). The Court now refuses to look at any circumstances except the delay—not even the reason for the delay. It is true that petitioner could have moved th^ gasoline more quickly had it used the more expensive all-rail service. But in almost every case of delay a quicker method of moving the goods might have been devised. No doubt the logs held up by low water in Coe v. Errol, 116 U. S. 517 (1886), could have been drawn overland by mules or oxen. And it would have been possible, though not practical, for oil to have been transferred directly from tank cars to waiting ships in Carson Petroleum Co. v. Vial, supra, yet this Court found that the delay necessarily attendant upon the accumulation of oil in tanks at the waterfront to await the arrival of ships did not constitute interruption of the process of exportation. The delay was “reasonable and in furtherance of the intended transportation.” Concededly, the gasoline here involved was in the process of exportation when taxed unless the delay was alone enough to break the stream of export. It had been started on its journey with every indication that it was to be transshipped for export. If actual exportation had followed its arrival in Dearborn by a few days or weeks, there is no question that it would have been a commodity in the process of exportation and thus exempt from tax. In this situation, the Court has always, until today, applied “a liberal construction of what is continuity of the journey, in cases where the Court finds from the circumstances that export trade has been actually intended and carried through.” Carson Petroleum Co. v. Vial, supra at pp. 105-106. But the Court now treats as immaterial the fact that the process of exportation had 837446 0—49--23 292 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U.S. started, which has always been considered the decisive factor, Cornell v. Coyne, 192 U. S. 418 (1904), Empresa Siderurgica n. County of Merced, 337 U. S. 154 (1949), and assumes that a delay of fifteen months conclusively demonstrates that certainty of exportation had been undermined. It is almost always possible in cases of this kind that the owner of the goods may change his mind before exportation is actually carried out, as Mr. Justice Holmes pointed out in Spalding & Bros. v. Edwards, 262 U. S. 66, 70 (1923). Delay undoubtedly increases the possibility, but it does not work such a change as a matter of law. The question, instead, is that previously pointed out, namely, whether “the journey has already begun in good faith and [whether] temporary interruption of the passage is reasonable and in furtherance of the intended transportation.” Hughes Brothers Timber Co. v. Minnesota, supra, at 476. The result is that the Court, without consideration of the fact that the gasoline had been started on its journey with the intent that it be transshipped for immediate export to Canada, holds that fifteen months’ unavoidable delay is so productive of uncertainty that the process of exportation ceases as a matter of law. It might be pointed out that in the leading case of Coe v. Errol, supra, logs being floated down a river were held up by low water for about a year, but this Court did not consider that delay enough to break the continuity of the interstate journey. The line now seems to be drawn somewhere between twelve and fifteen months, whatever the other circumstances. Such an arbitrary demarcation is hardly consonant with “the liberal protection that hitherto [exports] have received.” Spalding & Bros. v. Edwards, supra, at p. 70. I would adhere to the test set out in our previous decisions: whether the delay was reasonable under all the circumstances and in furtherance of the intended transportation. STANDARD OIL CO. v. UNITED STATES. 293 Syllabus. STANDARD OIL COMPANY OF CALIFORNIA et al. v. UNITED STATES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA. No. 279. Argued March 3-4, 1949.—Decided June 13, 1949. 1. Under contracts entered into by an oil company with independent dealers in petroleum products and automobile accessories, the dealer agreed to purchase exclusively from the company all of his requirements of one or more of the products marketed by the company. In 1947 the contracts affected a gross business of $58,000,000, comprising 6.7% of the total in a seven-state area in which the company sold its products. Held: The contracts were violative of § 3 of the Clayton Act and the company was properly enjoined from enforcing or entering into them. Pp. 294-314. 2. The requirement of § 3 of the Clayton Act of a showing that the effect of the contracts “may be to substantially lessen competition” is here satisfied by proof that competition has been foreclosed in a substantial share of the line of commerce affected. Pp. 299-314. (a) In view of the widespread adoption of such contracts by the company’s competitors and the availability of alternative ways of obtaining an assured market, evidence that competitive activity has not actually declined is inconclusive. P. 314. (b) The company’s use of the contracts creates just such a potential clog on competition as it was the purpose of § 3 to remove wherever, were it to become actual, it would impede a substantial amount of competitive activity. P. 314. 3. The fact that nearly all the products sold by the company to California dealers are produced in that State does not exempt the company’s requirements contracts with California dealers as not substantially affecting interstate commerce, since the effect of those contracts is to prevent the California dealers from dealing with out-of-State as well as local suppliers and thus to lessen competition in both interstate and intrastate commerce. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, distinguished. Pp. 314-315. 78 F. Supp. 850, affirmed. 294 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. In a suit brought by the United States under the antitrust laws, the District Court enjoined an oil company and its wholly owned subsidiary from enforcing or entering into exclusive supply contracts with independent dealers in petroleum products and automobile accessories. 78 F. Supp. 850. The companies appealed directly to this Court. Affirmed, p. 315. John M. Hall argued the cause for appellants. With him on the brief was Marshall P. Madison. Assistant Attorney General Bergson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Walker Smith, Robert G. Seaks and Stanley M. Silverberg. Mr. Justice Frankfurter delivered the opinion of the Court. This is an appeal to review a decree enjoining the Standard Oil Company of California and its wholly-owned subsidiary, Standard Stations, Inc.,1 from enforcing or entering into exclusive supply contracts with any independent dealer in petroleum products and automobile accessories. 78 F. Supp. 850. The use of such contracts was successfully assailed by the United States as violative of § 1 of the Sherman Act2 and § 3 of the Clayton Act.3 1 Standard Stations, Inc., has no independent status in these proceedings; since 1944 its activities have been confined to managing service stations owned by the Standard Oil Co. of California. 2 “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal: . . • • 26 Stat. 209, as amended, 50 Stat. 693,15 U. S. C. § 1. 3 “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or any Territory thereof or the STANDARD OIL CO. v. UNITED STATES. 295 293 Opinion of the Court. The Standard Oil Company of California, a Delaware corporation, owns petroleum-producing resources and refining plants in California and sells petroleum products in what has been termed in these proceedings the “Western area”—Arizona, California, Idaho, Nevada, Oregon, Utah and Washington. It sells through its own service stations, to the operators of independent service stations, and to industrial users. It is the largest seller of gasoline in the area. In 1946 its combined sales amounted to 23% of the total taxable gallonage sold there in that year: sales by company-owned service stations constituted 6.8% of the total, sales under exclusive dealing contracts with independent service stations, 6.7% of the total; the remainder were sales to industrial users. Retail service-station sales by Standard’s six leading competitors absorbed 42.5% of the total taxable gallonage; the remaining retail sales were divided between more than seventy small companies. It is undisputed that Standard’s major competitors employ similar exclusive dealing arrangements. In 1948 only 1.6% of retail outlets were what is known as “split-pump” stations, that is, sold the gasoline of more than one supplier. Exclusive supply contracts with Standard had been entered into, as of March 12, 1947, by the operators of 5,937 independent stations, or 16% of the retail gasoline outlets in the Western area, which purchased from Standard in 1947, $57,646,233 worth of gasoline and District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” 38 Stat. 731,15 U. S. C. § 14. 296 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. $8,200,089.21 worth of other products. Some outlets are covered by more than one contract so that in all about 8,000 exclusive supply contracts are here in issue. These are of several types, but a feature common to each is the dealer’s undertaking to purchase from Standard all his requirements of one or more products. Two types, covering 2,777 outlets, bind the dealer to purchase of Standard all his requirements of gasoline and other petroleum products as well as tires, tubes, and batteries. The remaining written agreements, 4,368 in number, bind the dealer to purchase of Standard all his requirements of petroleum products only. It was also found that independent dealers had entered 742 oral contracts by which they agreed to sell only Standard’s gasoline. In some instances dealers who contracted to purchase from Standard all their requirements of tires, tubes, and batteries, had also orally agreed to purchase of Standard their requirements of other automobile accessories. Of the written agreements, 2,712 were for varying specified terms; the rest were effective from year to year but terminable “at the end of the first 6 months of any contract year, or at the end of any such year, by giving to the other at least 30 days prior thereto written notice . . . .” Before 1934 Standard’s sales of petroleum products through independent service stations were made pursuant to agency agreements, but in that year Standard adopted the first of its several requirements-purchase contract forms, and by 1938 requirements contracts had wholly superseded the agency method of distribution. Between 1936 and 1946 Standard’s sales of gasoline through independent dealers remained at a practically constant proportion of the area’s total sales; its sales of lubricating oil declined slightly during that period from 6.2% to 5% of the total. Its proportionate sales of tires and batteries for 1946 were slightly higher than they were in 1936, though somewhat lower than for some STANDARD OIL CO. v. UNITED STATES. 297 293 Opinion of the Court. intervening years; they have never, as to either of these products, exceeded 2% of the total sales in the Western area. Since § 3 of the Clayton Act was directed to prohibiting specific practices even though not covered by the broad terms of the Sherman Act,4 it is appropriate to consider first whether the enjoined contracts fall within the prohibition of the narrower Act. The relevant provisions of § 3 are: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States ... on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods ... of a competitor or competitors of the . . . seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” Obviously the contracts here at issue would be proscribed if § 3 stopped short of the qualifying clause beginning, “where the effect of such lease, sale, or contract 4 After the Clayton Bill, H. R. 15657, 63d Cong., 2d Sess., had passed the House, the Senate struck § 4, the section prohibiting tying clauses and requirements contracts, on the ground that such practices were subject to condemnation by the Federal Trade Commission under the then pending Trade Commission Bill. In support of a motion to reconsider this vote, Senator Reed of Missouri argued that the Trade Commission would be unlikely to outlaw agreements of a type held by this Court, in Henry v. A. B. Dick Co., 224 U. S. 1, not to be in violation of the Sherman Act. See 51 Cong. Rec. 14088, 14090-92. The motion was agreed to. Id. at 14223. 298 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. for sale . . . If effect is to be given that clause, however, it is by no means obvious, in view of Standard’s minority share of the “line of commerce” involved, of the fact that that share has not recently increased, and of the claims of these contracts to economic utility, that the effect of the contracts may be to lessen competition or tend to create a monopoly. It is the qualifying clause, therefore, which must be construed. The District Court held that the requirement of showing an actual or potential lessening of competition or a tendency to establish monopoly was adequately met by proof that the contracts covered “a substantial number of outlets and a substantial amount of products, whether considered comparatively or not.” 78 F. Supp. at 875. Given such quantitative substantiality, the substantial lessening of competition—so the court reasoned—is an automatic result, for the very existence of such contracts denies dealers opportunity to deal in the products of competing suppliers and excludes suppliers from access to the outlets controlled by those dealers. Having adopted this standard of proof, the court excluded as immaterial testimony bearing on “the economic merits or demerits of the present system as contrasted with a system which prevailed prior to its establishment and which would prevail if the court declared the present arrangement [invalid].” The court likewise deemed it unnecessary to make findings, on the basis of evidence that was admitted, whether the number of Standard’s competitors had increased or decreased since the inauguration of the requirementscontract system, whether the number of their dealers had increased or decreased, and as to other matters which would have shed light on the comparative status of Standard and its competitors before and after the adoption of that system. The court concluded: “Grant that, on a comparative basis, and in relation to the entire trade in these products in the area, STANDARD OIL CO. v. UNITED STATES. 299 293 Opinion of the Court. the restraint is not integral. Admit also that control of distribution results in lessening of costs and that its abandonment might increase costs. . . . Concede further, that the arrangement was entered into in good faith, with the honest belief that control of distribution and consequent concentration of representation were economically beneficial to the industry and to the public, that they have continued for over fifteen years openly, notoriously and unmolested by the Government, and have been practiced by other major oil companies competing with Standard, that the number of Standard outlets so controlled may have decreased, and the quantity of products supplied to them may have declined, on a comparative basis. Nevertheless, as I read the latest cases of the Supreme Court, I am compelled to find the practices here involved to be violative of both statutes. For they affect injuriously a sizeable part of interstate commerce, or, —to use the current phrase,—‘an appreciable segment’ of interstate commerce.” The issue before us, therefore, is whether the requirement of showing that the effect of the agreements “may be to substantially lessen competition” may be met simply by proof that a substantial portion of commerce is affected or whether it must also be demonstrated that competitive activity has actually diminished or probably will diminish.5 5 It is clear, of course, that the “line of commerce” affected need not be nationwide, at least where the purchasers cannot, as a practical matter, turn to suppliers outside their own area. Although the effect on competition will be quantitatively the same if a given volume of the industry’s business is assumed to be covered, whether or not the affected sources of supply are those of the industry as a whole or only those of a particular region, a purely quantitative measure of this effect is inadequate because the narrower the area of competition, the greater the comparative effect on the area’s competitors. Since 300 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. Since the Clayton Act became effective, this Court has passed on the applicability of § 3 in eight cases, in five of which it upheld determinations that the challenged agreement was violative of that Section. Three of these— United Shoe Machinery Corp. v. United States, 258 U. S. 451; International Business Machines Corp. v. United States, 298 U. S. 131; International Salt Co. v. United States, 332 U. S. 392—involved contracts tying to the use of a patented article all purchases of an unpatented product used in connection with the patented article. The other two cases—Standard Fashion Co. n. Magrane-Houston Co., 258 U. S. 346; Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U. S. 457—involved requirements contracts not unlike those here in issue. The Standard Fashion case, the first of the five holding that the Act had been violated, settled one question of interpretation of § 3. The Court said: “Section 3 condemns sales or agreements where the effect of such sale or contract of sale ‘may’ be to substantially lessen competition or tend to create monopoly. . . . But we do not think that the purpose in using the word ‘may’ was to prohibit the mere possibility of the consequences described. It was intended to prevent such agreements as would under the circumstances disclosed probably lessen competition, or create an actual tendency to monopoly.” 258 U. S. at 356-57. See also Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 46, n. 14. it is the preservation of competition which is at stake, the significant proportion of coverage is that within the area of effective competition. Cf. Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U. S. 268, 279; United States v. Yellow Cab Co., 332 U. S. 218, 226. The criteria of substantiality deemed relevant in cases involving a nationwide market are thus also relevant in measuring the effect of Standard’s requirements contracts in the seven-state Western area. STANDARD OIL CO. v. UNITED STATES. 301 293 Opinion of the Court. The Court went on to add that the fact that the Section “was not intended to reach every remote lessening of competition is shown in the requirement that such lessening must be substantial,” but because it deemed the finding of two lower courts that the contracts in question did substantially lessen competition and tend to create monopoly amply supported by evidence that the defendant controlled two-fifths of the nation’s pattern agencies, it did not pause to indicate where the line between a “remote” and a “substantial” lessening should be drawn. All but one of the later cases also regarded domination of the market as sufficient in itself to support the inference that competition had been or probably would be lessened. In the United Shoe Machinery case, referring, inter alia, to the clause incorporated in all United’s leases of patented machinery requiring the use by the lessee of materials supplied by United, the Court observed: “That such restrictive and tying agreements must necessarily lessen competition and tend to monopoly is, we believe, . . . apparent. When it is considered that the United Company occupies a dominating position in supplying shoe machinery of the classes involved, these covenants signed by the lessee and binding upon him effectually prevent him from acquiring the machinery of a competitor of the lessor except at the risk of forfeiting the right to use the machines furnished by the United Company which may be absolutely essential to the prosecution and success of his business.” 258 U. S. at 457-58. In the International Business Machines case, the defendants were the sole manufacturers of a patented tabulating machine requiring the use of unpatented cards. The lessees of the machines were bound by tying clauses to use in them only the cards supplied by the defendants, 302 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. who, between them, divided the whole of the $3,000,000 annual gross of this business also. The Court concluded: “These facts, and others, which we do not stop to enumerate, can leave no doubt that the effect of the condition in appellant’s leases ‘may be to substantially lessen competition,’ and that it tends to create monopoly, and has in fact been an important and effective step in the creation of monopoly.” 298 U. S. at 136. The Fashion Originators’ Guild case involved an association of dress manufacturers which sold more than 60% of all but the cheapest women’s garments. In rejecting the relevance of evidence that the Guild’s use of requirements contracts was a “reasonable and necessary” measure of protection against “the devastating evils growing from the pirating of original designs,” the Court again emphasized the presence and the consequences of economic power: “The purpose and object of this combination, its potential power, its tendency to monopoly, the coercion it could and did practice upon a rival method of competition, all brought it within the policy of the prohibition declared by the Sherman and Clayton Acts.” 312 U. S. at 467-68. It is thus apparent that none of these cases controls the disposition of the present appeal, for Standard’s share of the retail market for gasoline, even including sales through company-owned stations, is hardly large enough to conclude as a matter of law that it occupies a dominant position, nor did the trial court so find. The cases do indicate, however, that some sort of showing as to the actual or probable economic consequences of the agreements, if only the inferences to be drawn from the fact of dominant power, is important, and to that extent they tend to support appellant’s position. STANDARD OIL CO. v. UNITED STATES. 303 293 Opinion of the Court. Two of the three cases decided by this Court which have held § 3 inapplicable also lend support to the view that such a showing is necessary. These are, Federal Trade Comm’n v. Sinclair Co., 261 U. S. 463, and Pick Mjg. Co. n. General Motors Corp., 299 U. S. 3. The third—Federal Trade Comm’n v. Curtis Pub. Co., 260 U. S. 568— went off on the ground that the contract involved was one of agency and so is of no present relevance. The Sinclair case involved the lease of gasoline pumps and storage tanks on condition that the dealer would use them only for Sinclair’s gasoline, but Sinclair did not own patents on the pumps or tanks and evidently did not otherwise control their supply. Although the Trade Commission had found that few dealers needed more than one pump, the Court concluded that “the record does not show that the probable effect of the practice will be unduly to lessen competition.” 261U. S. at 475. The basis of this conclusion was thus summarized: “Many competitors seek to sell excellent brands of gasoline and no one of them is essential to the retail business. The lessee is free to buy wherever he chooses; he may freely accept and use as many pumps as he wishes and may discontinue any or all of them. He may carry on business as his judgment dictates and his means permit, save only that he cannot use the lessor’s equipment for dispensing another’s brand. By investing a comparatively small sum, he can buy an outfit and use it without hindrance. He can have respondent’s gasoline, with the pump or without the pump, and many competitors seek to supply his needs.” Id. at 474. The present case differs of course in the fact that a dealer who has entered into a requirements contract with Standard cannot consistently with that contract sell the petroleum products of a competitor of Standard’s no 304 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. matter how many pumps he has,6 but the case is significant for the importance it attaches, in the absence of a showing that the supplier dominated the market, to the practical effect of the contracts. The same is true of the Pick case, in which this Court affirmed in a brief per curiam opinion the finding of the District Court, concurred in by the Court of Appeals, that the effect of contracts by which dealers agreed not to sell other automobile parts than those manufactured by General Motors “had not been in any way substantially to lessen competition or to create a monopoly in any line of commerce.” 299 U. S. at 4. But then came International Salt Co. v. United States, 332 U. S. 392. That decision, at least as to contracts tying the sale of a nonpatented to a patented product, rejected the necessity of demonstrating economic consequences once it has been established that “the volume of business affected” is not “insignificant or insubstantial” and that the effect of the contracts is to “foreclose competitors from [a] substantial market.” Id. at 396. Upon that basis we affirmed a summary judgment granting an injunction against the leasing of machines for the utilization of salt products on the condition that the lessee use in 6 Standard urges that the effect of its contracts is similarly confined in view of the fact that they apply not to all sales by a dealer but only to those made through a designated service station. Putting aside the fact that it does not appear that dealers commonly own more than one service station, there is marked difference between a contract which confines an entire retail outlet to the sale of a single brand and a contract which merely confines the use of a dispensing mechanism to a single brand: service-station sites, and therefore retail outlets, are limited in number; the number of pumps which a dealer may choose to set up is not, or so, at least, the Court assumed in the Sinclair case. It is reasonable to assume, therefore, that competition between suppliers is directed rather toward exclusive contracts with the maximum number of strategically located outlets than toward exclusive arrangements with dealers as such. STANDARD OIL CO. v. UNITED STATES. 305 293 Opinion of the Court. them only salt supplied by defendant. It was established by pleadings or admissions that defendant was the country’s largest producer of salt for industrial purposes, that it owned patents on the leased machines, that about 900 leases were outstanding, and that in 1944 defendant sold about $500,000 worth of salt for use in these machines. It was not established that equivalent machines were unobtainable, it was not indicated what proportion of the business of supplying such machines was controlled by 'defendant, and it was deemed irrelevant that there was no evidence as to the actual effect of the tying clauses upon competition.7 It is clear, therefore, that unless a distinction is to be drawn for purposes of the applicability of § 3 between requirements contracts and contracts tying the sale of a nonpatented to a patented product, the showing that Standard’s requirements contracts affected a gross business of $58,000,000 comprising 6.7% of the total in the area goes far toward supporting the inference that competition has been or probably will be substantially lessened.8 In favor of confining the standard laid down by the International Salt case to tying agreements, important economic differences may be noted. Tying agreements serve hardly any purpose beyond the suppression of com- 7 The Court considered and found inadequate defendant’s attempt to establish that the successful use of the machines depended upon a quality of salt which only it could supply, but the Court’s willingness to consider such evidence does not weaken the holding that coverage of a more than insignificant volume of business by such tying clauses is an adequate basis for finding a lessening of competition or a tendency to monopoly. 8 It may be noted in passing that the exclusive supply provisions for tires, tubes, batteries, and other accessories which are a part of some of Standard’s contracts with dealers who have also agreed to purchase their requirements of petroleum products should perhaps be considered, as a matter of classification, tying rather than requirements agreements. 306 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. petition. The justification most often advanced in their defense—the protection of the good will of the manufacturer of the tying device—fails in the usual situation because specification of the type and quality of the product to be used in connection with the tying device is protection enough. If the manufacturer’s brand of the tied product is in fact superior to that of competitors, the buyer will presumably choose it anyway. The only situation, indeed, in which the protection of good will may necessitate the use of tying clauses is where specifications for a substitute would be so detailed that they could not practicably be supplied. In the usual case only the prospect of reducing competition would persuade a seller to adopt such a contract and only his control of the supply of the tying device, whether conferred by patent monopoly or otherwise obtained, could induce a buyer to enter one. See Miller, Unfair Competition 199 et seq. (1941); Note, 49 Col. L. Rev. 241, 246 (1949). The existence of market control of the tying device, therefore, affords a strong foundation for the presumption that it has been or probably will be used to limit competition in the tied product also. Requirements contracts, on the other hand, may well be of economic advantage to buyers as well as to sellers, and thus indirectly of advantage to the consuming public. In the case of the buyer, they may assure supply, afford protection against rises in price, enable long-term planning on the basis of known costs,9 and obviate the expense and risk of storage in the quantity necessary for a commodity having a fluctuating demand. From the seller’s point of view, requirements contracts may make possible the substantial reduction of selling expenses, give pro- 9 This advantage is not conferred by Standard’s contracts, each of which provides that the price to be paid by the dealer is to be the “Company’s posted price to its dealers generally at time and place of delivery.” STANDARD OIL CO. v. UNITED STATES. 307 293 Opinion of the Court. tection against price fluctuations, and—of particular advantage to a newcomer to the field to whom it is important to know what capital expenditures are justified— offer the possibility of a predictable market. See Stockhausen, The Commercial and Anti-Trust Aspects of Term Requirements Contracts, 23 N. Y. U. L. Q. Rev. 412, 413-14 (1948). They may be useful, moreover, to a seller trying to establish a foothold against the counterattacks of entrenched competitors. See id. at 424 et seq.; Excelsior Motor Mfg. & Supply Co. v. Sound Equipment, Inc., 73 F. 2d 725, 728 (C. A. 7th Cir.); General Talking Pictures Corp. n. American Tel. & Tel. Co., 18 F. Supp. 650, 666 (D. Del.).10 Since these advantages of requirements contracts may often be sufficient to account for their use, the coverage by such contracts of a substantial amount of business affords a weaker basis for the inference that competition may be lessened than would similar coverage by tying clauses, especially where use of the latter is combined with market control of the tying device. A patent, moreover, although in fact there may be many competing substitutes for the patented article, is at least prima facie evidence of such control. And so we could not dispose of this case merely by citing International Salt Co. v. United States, 332 U. S. 392. Thus, even though the qualifying clause of § 3 is appended without distinction of terms equally to the prohibition of tying clauses and of requirements contracts, pertinent considerations support, certainly as a matter of economic reasoning, varying standards as to each for the 10 Some members of the House opposed § 4 of H. R. 15657, 63d Cong., 2d Sess. (the equivalent of what is now § 3) as denying this benefit to the newcomer, see 51 Cong. Rec. 9267, and Representative McCoy of New Jersey offered an amendment, id. at 9398, to make the agreements in question illegal only when entered “with the intent of obtaining or establishing a monopoly or of destroying the business of a competitor,” which he and others supported on this ground. See id. at 9400-02, 9409. The amendment was rejected. Id. at 9410. 837446 0—49---24 308 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. proof necessary to fulfill the conditions of that clause. If this distinction were accepted, various tests of the economic usefulness or restrictive effect of requirements contracts would become relevant. Among them would be evidence that competition has flourished despite use of the contracts, and under this test much of the evidence tendered by appellant in this case would be important. See, as examples of the consideration of such evidence, B. S. Pearsall Butter Co. v. Federal Trade Comm’n, 292 Fed. 720 (C. A. 7th Cir.); Pick Mjg. Co. n. General Motors Corp., 80 F. 2d 641, 644 (C. A. 7th Cir.), aff’d, 299 U. S. 3. Likewise bearing on whether or not the contracts were being used to suppress competition, would be the conformity of the length of their term to the reasonable requirements of the field of commerce in which they were used. See Corn Products Refining Co. v. Federal Trade Comm’n, 144 F. 2d 211, 220 (C. A. 7th Cir.), aff’d, 324 U. S. 726; United States V. Pullman Co., 50 F. Supp. 123, 127-29 (E. D. Pa.). Still another test would be the status of the defendant as a struggling newcomer or an established competitor. Perhaps most important, however, would be the defendant’s degree of market control, for the greater the dominance of his position, the stronger the inference that an important factor in attaining and maintaining that position has been the use of requirements contracts to stifle competition rather than to serve legitimate economic needs. See Standard Fashion Co. v. Magrane-Houston Co., supra, 258 U. S. 346; Fashion Originators’ Guild v. Federal Trade Comm’n, supra, 312 U. S. 457.11 Yet serious difficulties would attend the attempt to apply these tests. We may assume, as did the court below, that no improvement of Standard’s competitive 11 For an exposition of the considerations here summarized, see Stockhausen, The Commercial and Anti-Trust Aspects of Term and Requirements Contracts, 23 N. Y. U. L. Q. Rev. 412, 417-31 (1948). STANDARD OIL CO. v. UNITED STATES. 309 293 Opinion of the Court. position has coincided with the period during which the requirements-contract system of distribution has been in effect. We may assume further that the duration of the contracts is not excessive and that Standard does not by itself dominate the market. But Standard was a major competitor when the present system was adopted, and it is possible that its position would have deteriorated but for the adoption of that system. When it is remembered that all the other major suppliers have also been using requirements contracts, and when it is noted that the relative share of the business which fell to each has remained about the same during the period of their use,12 it would not be farfetched to infer that their effect has been to enable the established suppliers individually to maintain their own standing and at the same time collectively, even though not collusively, to prevent a late arrival from wresting away more than an insignificant portion of the market. If, indeed, this were a result of the system, it would seem unimportant that a short-run by-product of stability may have been greater efficiency and lower costs, for it is the theory of the antitrust laws that the long-run advantage of the community depends upon the removal of restraints upon competition. See Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U. S. 457, 467-68; United States v. Aluminum Co. of America, 148 F. 2d 416, 427-29 (C. A. 2d Cir.). Moreover, to demand that bare inference be supported by evidence as to what would have happened but for 12 Upon the request of Standard, its six largest competitors filled out questionnaires showing the number of retail dealers who distributed their products during the years 1937 through 1946. Though their position relative to each other has fluctuated, the figures show that as a group they have maintained or improved their control of the market. Together with Standard, these six companies distributed, as of 1946, through 26,439 of approximately 35,000 independent service stations in the Western area. 310 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. the adoption of the practice that was in fact adopted or to require firm prediction of an increase of competition as a probable result of ordering the abandonment of the practice, would be a standard of proof, if not virtually impossible to meet, at least most ill-suited for ascertainment by courts.13 Before the system of requirements contracts was instituted, Standard sold gasoline through independent service-station operators as its agents, and it might revert to this system if the judgment below were sustained. Or it might, as opportunity presented itself, add service stations now operated independently to the number managed by its subsidiary, Standard Stations, Inc. From the point of view of maintaining or extending competitive advantage, either of these alternatives would be just as effective as the use of requirements contracts, although of course insofar as they resulted in a tendency to monopoly they might encounter the anti-monopoly provisions of the Sherman Act. See United States v. Aluminum Co. of America, 148 F. 2d 416 (C. A. 2d Cir.). As appellant points out, dealers might order petroleum products in quantities sufficient to meet their estimated needs for the period during which requirements contracts are now effective, and even that would foreclose competition to some degree. So long as these diverse ways of restricting competition remain open, therefore, there can be no conclusive proof that the use of requirements contracts has actually re- 13 The dual system of enforcement provided for by the Clayton Act must have contemplated standards of proof capable of admin- istration by the courts as well as by the Federal Trade Commission and other designated agencies. See 38 Stat. 734, 736, as amended, 15 U. S. C. §§ 21, 25. Our interpretation of the Act, therefore, should recognize that an appraisal of economic data which might be practicable if only the latter were faced with the task may be quite otherwise for judges unequipped for it either by experience or by the availability of skilled assistance. STANDARD OIL CO. v. UNITED STATES. 311 293 Opinion of the Court. duced competition below the level which it would otherwise have reached or maintained. We are dealing here with a particular form of agreement specified by § 3 and not with different arrangements, by way of integration or otherwise, that may tend to lessen competition. To interpret that section as requiring proof that competition has actually diminished would make its very explicitness a means of conferring immunity upon the practices which it singles out. Congress has authoritatively determined that those practices are detrimental where their effect may be to lessen competition. It has not left at large for determination in each case the ultimate demands of the “public interest,” as the English lawmakers, considering and finding inapplicable to their own situation our experience with the specific prohibition of trade practices legislatively determined to be undesirable, have recently chosen to do.14 Though it may be that such an alternative to the present system as buying out independent dealers and making 14 The Monopolies and Restrictive Practices (Inquiry and Control) Act, 1948, adopted July 30, 1948, provides, as one mode of procedure, for reference of restrictive trade practices by the Board of Trade to a permanent Commission for investigation in order to determine “whether any such things as are specified in the reference . . . operate or may be expected to operate against the public interest.” 11 & 12 Geo. VI, c. 66, §6(2). The Act does not define what is meant by “the public interest,” although in § 14 it sets up broad criteria to be taken into account. It is noteworthy, however, that, having established so broad a basis for investigation, the Act entrusts the task to an expert body without provision for judicial review. This approach was repeatedly contrasted in debate with that of the United States. See 449 H. C. Deb. 2046-47, 2058, 2063 (5th ser. 1948); 157 H. L. Deb. 350 (5th ser. 1948). Compare § 5 (2) of the Interstate Commerce Act, as amended, 41 Stat. 480, 49 U. S. C. § 5 (2), referring to the Interstate Commerce Commission determination of the more defined issues of “public interest” under review in New York Central Securities Corp. v. United States, 287 U. S. 12, 24; United States v. Lowden, 308 U. S. 225. 312 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. them dependent employees of Standard Stations, Inc., would be a greater detriment to the public interest than perpetuation of the system, this is an issue, like the choice between greater efficiency and freer competition, that has not been submitted to our decision. We are faced, not with a broadly phrased expression of general policy, but merely a broadly phrased qualification of an otherwise narrowly directed statutory provision. In this connection it is significant that the qualifying language was not added until after the House and Senate bills reached Conference. The conferees responsible for adding that language were at pains, in answering protestations that the qualifying clause seriously weakened the section, to disclaim any intention seriously to augment the burden of proof to be sustained in establishing violation of it.15 It seems hardly likely that, having with one hand set up an express prohibition against a practice thought to be beyond the reach of the Sherman Act, Congress meant, with the other hand, to reestablish the necessity of meeting the same tests of detriment to the public interest as that Act had been interpreted as re- 15 Representative Floyd of Arkansas, one of the managers on the part of the House, explained the use of the word “substantially” as deriving from the opinion of this Court in Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, and quoted the passage from id. at 229 in which it is said that “the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally and collaterally, regulate to a greater or less degree commerce among the States.” 51 Cong. Rec. 16317-18. Senator Chilton, one of the managers on the part of the Senate, denying that the clause weakened the bill, stated that the words “where the effect may be” mean “where it is possible for the effect to be.” Id. at 16002. Senator Overman, also a Senate conferee, argued that even the elimination of competition in a single town would substantially lessen competition. Id. at 15935. STANDARD OIL CO. v. UNITED STATES. 313 293 Opinion of the Court. quiring.16 Yet the economic investigation which appellant would have us require is of the same broad scope as was adumbrated with reference to unreasonable restraints of trade in Chicago Board of Trade v. United States, 246 U. S. 231.17 To insist upon such an investigation would be to stultify the force of Congress’ declaration that requirements contracts are to be prohibited wherever their effect “may be” to substantially lessen competition. If in fact it is economically desirable for service stations to confine themselves to the sale of the petroleum products of a single supplier, they will continue 18 See United States v. American Tobacco Co., 221 U. S. 106, 179: “Applying the rule of reason to the construction of the statute, it was held in the Standard Oil Case that as the words ‘restraint of trade’ at common law and in the law of this country at the time of the adoption of the Anti-trust Act only embraced acts or contracts or agreements or combinations which operated to the prejudice of the public interests by unduly restricting competition or unduly obstructing the due course of trade or which, either because of their inherent nature or effect or because of the evident purpose of the acts, etc., injuriously restrained trade, that the words as used in the statute were designed to have and did have but a like significance.” See also Handler, A Study of the Construction and Enforcement of the Federal Antitrust Laws 3-9 (T. N. E. C. Monograph No. 38, 1941). Compare § 4 of the Australian Industries Preservation Act, 1906, which forbids combinations entered into “with intent to restrain trade or commerce to the detriment of the public,” construed in Attorney General v. Adelaide S. S. Co., [1913] A. C. 781, as requiring proof of actual economic detriment. 17 “The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.” 246 U. S. at 238. 314 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. to do so though not bound by contract, and if in fact it is important to retail dealers to assure the supply of their requirements by obtaining the commitment of a single supplier to fulfill them, competition for their patronage should enable them to insist upon such an arrangement without binding them to refrain from looking elsewhere. We conclude, therefore, that the qualifying clause of § 3 is satisfied by proof that competition has been foreclosed in a substantial share of the line of commerce affected. It cannot be gainsaid that observance by a dealer of his requirements contract with Standard does effectively foreclose whatever opportunity there might be for competing suppliers to attract his patronage, and it is clear that the affected proportion of retail sales of petroleum products is substantial. In view of the widespread adoption of such contracts by Standard’s competitors and the availability of alternative ways of obtaining an assured market, evidence that competitive activity has not actually declined is inconclusive. Standard’s use of the contracts creates just such a potential clog on competition as it was the purpose of § 3 to remove wherever, were it to become actual, it would impede a substantial amount of competitive activity. Since the decree below is sustained by our interpretation of § 3 of the Clayton Act, we need not go on to consider whether it might also be sustained by § 1 of the Sherman Act. One last point remains to be disposed of. Appellant contends that its requirements contracts with California dealers, because nearly all the products sold to them are produced in California, do not substantially affect interstate commerce and therefore should have been exempted from the decree. It finds support for this contention in Addyston Pipe & Steel Co. v. United States, 175 IT. S. 211, 247. But the effect of appellant’s requirements contracts with California retail dealers is to prevent them STANDARD OIL CO. v. UNITED STATES. 315 293 Opinion of Douglas, J. from dealing with suppliers from outside the State as well as within the State and is thus to lessen competition in both interstate and intrastate commerce. Appellant has not suggested that if these dealers were not bound by their contracts with it that they would continue to purchase only products originating within the State. The Addyston case, on the other hand, dealt not with the diminution of competition between suppliers brought about by the action of one at the expense of the rest, whether within or without the State, but a combination among them to restrain competition. Modification of the decree was required only to make clear that it did not reach a combination among the defendants doing business in a single State which was confined to transactions taking place within that same State. The judgment below is Affirmed. Mr. Justice Douglas. The economic theories which the Court has read into the Anti-Trust Laws have favored rather than discouraged monopoly. As a result of the big business philosophy underlying United States v. United Shoe Machinery Co., 247 U. S. 32; United States n. United States Steel Corp., 251 U. S. 417; United States v. International Harvester Co., 274 U. S. 693, big business has become bigger and bigger. Monopoly has flourished. Cartels have increased their hold on the nation. The trusts wax strong.1 There is less and less place for the independent. 1 See Final Report and Recommendations of the Temporary National Economic Committee, S. Doc. No. 35, 77th Cong., 1st Sess. (1941). For more detailed analyses, see Competition and Monopoly in American Industry (TNEC Monograph 21, 1940) pp. 299 et seq.; The Structure of Industry (TNEC Monograph 27, 1941) pp. 231 ei seq.; The Distribution of Ownership in the 200 Largest Non-financial Corporations (TNEC Monograph 29, 1940); Relative 316 OCTOBER TERM, 1948. Opinion of Douglas, J. 337 U.S. The full force of the Anti-Trust Laws has not been felt on our economy. It has been deflected. Niggardly interpretations have robbed those laws of much of their efficacy. There are exceptions. Price fixing is illegal per Efficiency of Large, Medium-Sized, and Small Business (TNEC Monograph 13, 1941). The merger and acquisition movement, which has been evident since the turn of the century and which contributed to the spiraling concentration of corporate wealth into the hands of the few, has not ended. We are presently in the midst of a similar movement. See the Federal Trade Commission report, The Present Trend of Corporate Mergers and Acquisitions, Sen. Doc. No. 17, 80th Cong., 1st Sess. (1947), p. 6, where it is shown that “the increase in the merger movement following VJ-day parallels very closely the sharp upward movement which took place at the end of World War I.” The causes which have recently contributed to the growing bigness of big corporations are varied. See Lynch, The Concentration of Economic Power (1946), pp. 3-4 where it is said: “Even before the entrance of the United States into the war the placing of defense contracts served to augment the growth of bigness in industry and to intensify the struggle for survival by small concerns. By 1941 the pattern of defense contracts which, with modifications, was to remain for the duration of the war had been established. It is reported that in that year fifty-six firms, less than one-half of 1 percent of the manufacturing establishments of the country, were awarded 75 percent of all the contracts. Concentration was even more marked within this group, however, inasmuch as six corporations held 31 percent of the total. Between June, 1940, and March, 1943, more than 100 million dollars worth of prime warsupply contracts were awarded. Seventy percent of these were held by the leading 100 corporations; 10 corporations held 32 percent, and the leading 50 held 60 percent. “Studies by the United States Department of Commerce during 1943-1944 throw additional light on this trend toward industrial concentration. After Pearl Harbor the total number of firms in business declined precipitously. Despite the wartime industrial boom, the number of firms which discontinued operations was greater than that replaced by new entries; it is estimated that the number in business in 1943 was nearly 17 percent less than in 1941. There STANDARD OIL CO. v. UNITED STATES. 317 293 Opinion of Douglas, J. se.2 The use of patents to obtain monopolies on unpatented articles is condemned.3 Monopoly that has been built as a result of unlawful tactics, e. g., through practices that are restraints of trade, is broken up.4 But when it comes to monopolies built in gentlemanly ways— by mergers, purchases of assets or control and the like— the teeth have largely been drawn from the Act. are numerous indications that the relative importance of small business has declined during the war period and that the dominance of big business has become more marked. Between 1938 and 1942 it appears that the total number of workers employed by 95 percent of the nation’s corporations (the smallest) declined 23 percent, whereas those employed by 5 percent of the corporations (the largest) increased 22 percent. A related study indicates that between January 1,1941, and January 1, 1943, business firms employing fewer than 125 workers each experienced an increase in employment of 1 percent and an increase in the value of their product (attributable principally to price increases) of 16 percent; during the same period, however, the increase in employment by the large establishments employing more than 125 workers was 62 percent and the increase in the value of the product, 96 percent.” 2 See for example United States v. Socony-Vacuum Oil Co., 310 U. S. 150. 3 See for example Mercoid Corp. v. Mid-Continent Co., 320 U. S. 661. 4 See United States v. Griffith, 334 U. S. 100; Schine Theatres v. United States, 334 U. S. 110; United States v. Paramount Pictures, 334 U. S. 131,172. Those cases have largely expended the force of Hartjord-Empire Co. v. United States, 323 U. S. 386—an indefensible decision whereby the Court allowed those who had built one of the tightest monopolies m American history largely to retain their ill-gotten gains and continue their hold on the economy. The philosophy of that decision can be summed up in the words Brandeis used to describe the decree effecting a so-called dissolution of the American Tobacco Co. He said that its defenders “appear to have discovered in the Constitution a new implied prohibition: ‘What man has illegally joined to-gdher, let no court put asunder.’” The Curse of Bigness (1935), p. 103. 318 OCTOBER TERM, 1948. Opinion of Douglas, J. 337U.S. We announced that the existence of monopoly power, coupled with the purpose or intent to monopolize, was unlawful.5 But to date that principle has not shown bright promise in application.® Under the guise of increased efficiency big business has received approval for easy growth. United States v. Columbia Steel Co., 334 U. S. 495, represents the current attitude of the .Court on this problem. In that case United States Steel—the giant of the industry—was allowed to fasten its tentacles tighter on the economy by acquiring the assets of a steel company in the Far West where competition was beginning to develop. The increased concentration of industrial power in the hands of a few has changed habits of thought. A new age has been introduced. It is more and more an age of “monopoly competition.” Monopoly competition is a regime of friendly alliances, of quick and easy accommodation of prices even without the benefit of trade associations, of what Brandeis said was euphemistically called “cooperation.”7 While this is not true in all fields, it has become alarmingly apparent in many. The lessons Brandeis taught on the curse of bigness have largely been forgotten in high places. Size is allowed to become a menace to existing and putative competitors. Price control is allowed to escape the influences of the competitive market and to gravitate into the hands of the few. But beyond all that there is the effect on the community when independents are swallowed up by the trusts and entrepreneurs become employees of absentee 5 See Schine Theatres n. United States, supra, pp. 129-130. 8 It should be noted in this connection that a majority of the Court could not be obtained for holding illegal per se the vertical integration in the motion picture industry. See United States v. Paramount Pictures, supra, pp. 173-174. 7 Other People’s Money (1933), p. 110. STANDARD OIL CO. v. UNITED STATES. 319 293 Opinion of Douglas, J. owners. Then there is a serious loss in citizenship. Local leadership is diluted. He who was a leader in the village becomes dependent on outsiders for his action and policy. Clerks responsible to a superior in a distant place take the place of resident proprietors beholden to no one. These are the prices which the nation pays for the almost ceaseless growth in bigness on the part of industry. These problems may not appear on the surface to have relationship to the case before us. But they go to the very heart of the problem. It is common knowledge that a host of filling stations in the country are locally owned and operated. Others are owned and operated by the big oil companies. This case involves directly only the former. It pertains to requirements contracts that the oil companies make with these independents. It is plain that a filling-station owner who is tied to an oil company for his supply of products is not an available customer for the products of other suppliers. The same is true of a filling-station owner who purchases his inventory a year in advance. His demand is withdrawn from the market for the duration of the contract in the one case and for a year in the other. The result in each case is to lessen competition if the standard is day-to-day purchases. Whether it is a substantial lessening of competition within the meaning of the Anti-Trust Laws is a question of degree and may vary from industry to industry. The Court answers the question for the oil industry by a formula which under our decisions promises to wipe out large segments of independent filling-station operators. The method of doing business under requirements contracts at least keeps the independents alive. They survive as small business units. The situation is not ideal 320 OCTOBER TERM, 1948. Opinion of Douglas, J. 337U.S. from either their point of view8 or that of the nation. But the alternative which the Court offers is far worse from the point of view of both. The elimination of these requirements contracts sets the stage for Standard and the other oil companies to build service-station empires of their own. The opinion of the Court does more than set the stage for that development. It is an advisory opinion as well, stating to the oil companies how they can with impunity build their empires. The formula suggested by the Court is either the use of the “agency” device, which in practical effect means control of filling stations by the oil companies (cf. Federal Trade Commission v. Curtis Co., 260 U. S. 568), or the outright acquisition of them by subsidiary corporations or otherwise. See United States n. Columbia Steel Co., supra. Under the approved judicial doctrine either of those devices means increasing the monopoly of the oil companies over the retail field. When the choice is thus given, I dissent from the outlawry of the requirements contract on the present facts. The effect which it has on competition in this field is minor as compared to the damage which will flow from the judicially approved formula for the growth of bigness tendered by the Court as an alternative. Our choice must be made on the basis not of abstractions but of the realities of modern industrial life. Today there is vigorous competition between the oil companies for the market. That competition has left some room for the survival of the independents. But when this inducement for their survival is taken away, we 8 For the plight of the independent service-station operator see Control of the Petroleum Industry by Major Oil Companies (TNEC Monograph No. 39, 1941) pp. 46, 47, 52. See also Review and Criticism on Behalf of Standard Oil Co. (New Jersey) and Sun Oil Co. of Monograph No. 39 with Rejoinder by Monograph Author (TNEC Monograph 39-A, 1941). STANDARD OIL CO. v. UNITED STATES. 321 293 Jackson, J., dissenting. can expect that the oil companies will move in to supplant them with their own stations. There will still be competition between the oil companies. But there will be a tragic loss to the nation. The small, independent business man will be supplanted by clerks. Competition between suppliers of accessories (which is involved in this case) will diminish or cease altogether. The oil companies will command an increasingly larger share of both the wholesale and the retail markets. That is the likely result of today’s decision. The requirements contract which is displaced is relatively innocuous as compared with the virulent growth of monopoly power which the Court encourages. The Court does not act unwittingly. It consciously pushes the oil industry in that direction. The Court approves what the Anti-Trust Laws were designed to prevent. It helps remake America in the image of the cartels. Mr. Justice Jackson, with whom The Chief Justice and Mr. Justice Burton join, dissenting. I am unable to join the judgment or opinion of the Court for reasons I will state, but shortly. Section 3 of the Clayton Act does not make any lease, sale, or contract unlawful unless “the effect of such lease, sale, or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” 38 Stat. 730, 731, 15 U. S. C. § 14. It is indispensable to the Government’s case to establish that either the actual or the probable effect of the accused arrangement is to substantially lessen competition or tend to create a monopoly. I am unable to agree that this requirement was met. To be sure, the contracts cover “a substantial number of outlets and a substantial amount of products, whether considered comparatively or not.” 78 F. Supp. 850, 875. 322 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U.S. But that fact does not automatically bring the accused arrangement within the prohibitions of the statute. The number of dealers and the volume of sales covered by the arrangement of course was sufficient to be substantial. That is to say, this arrangement operated on enough commerce to violate the Act, provided its effects were substantially to lessen competition or tend to create a monopoly. But proof of their quantity does not prove that they had this forbidden quality; and the assumption that they did, without proof, seems to me unwarranted. Moreover, the trial court not only made the assumption but he did not allow the defendant affirmatively to show that such effects do not flow from this arrangement. Such evidence on the subject as was admitted was not considered in reaching the decision that these contracts are illegal. I regard it as unfortunate that the Clayton Act submits such economic issues to judicial determination. It not only leaves the law vague as a warning or guide, and determined only after the event, but the judicial process is not well adapted to exploration of such industry-wide, and even nation-wide, questions. But if they must decide, the only possible way for the courts to arrive at a fair determination is to hear all relevant evidence from both parties and weigh not only its inherent probabilities of verity but also compare the experience, disinterestedness and credibility of opposing witnesses. This is a tedious process and not too enlightening, but without it a judicial decree is but a guess in the dark. That is all we have here and I do not think it is an adequate basis on which to upset long-standing and widely practiced business arrangements. I should therefore vacate this decree and direct the court below to complete the case by hearing and weighing the Government’s evidence and that of defendant as to the effects of this device. STANDARD OIL CO. v. UNITED STATES. 323 293 Jackson, J., dissenting. However, if the Court refuses to do that, I cannot agree that the requirements contract is per se an illegal one under the antitrust law, and that is the substance of what the Court seems to hold. I am not convinced that the requirements contract as here used is a device for suppressing competition instead of a device for waging competition. If we look only at its effect in relation to particular retailers who become parties to it, it does restrain their freedom to purchase their requirements elsewhere and prevents other companies from selling to them. Many contracts have the effect of taking a purchaser out of the market for goods he already has bought or contracted to take. But the retailer in this industry is only a conduit from the oil fields to the driver’s tank, a means by which the oil companies compete to get the business of the ultimate consumer—the man in whose automobile the gas is used. It means to me, if I must decide without evidence, that these contracts are an almost necessary means to maintain this all-important competition for consumer business, in which it is admitted competition is keen. The retail stations, whether independent or company-owned, are the instrumentalities through which competition for this ultimate market is waged. It does not seem to me inherently to lessen this real competition when an oil company tries to establish superior service by providing the consumer with a responsible dealer from which the public can purchase adequate and timely supplies of oil, gasoline and car accessories of some known and reliable standard of quality. No retailer, whether agent or independent, can long remain in business if he does not always, and not just intermittently, have gas to sell. Retailers’ storage capacity usually is limited and they are in no position to accumulate large stocks. They can take gas only when and as they can sell it. The Government can hardly force someone to contract to stand by, ever ready to fill 837446 0-49----25 324 OCTOBER TERM, 1948. Jackson, J., dissenting. 337U.S. fluctuating demands of dealers who will not in turn undertake to buy from that supplier all their requirements. And it is important to the driving public to be able to rely on retailers to have gas to retail. It is equally important that the wholesaler have some incentive to carry the stocks and have the transport facilities to make the irregular deliveries caused by varied consumer demands. It may be that the Government, if required to do so, could prove that this is a bad system and an illegal one. It may be that the defendant, if permitted to do so, can prove that it is, in its overall aspects, a good system and within the law. But on the present record the Government has not made a case.1 If the courts are to apply the lash of the antitrust laws to the backs of businessmen to make them compete, we cannot in fairness also apply the lash whenever they hit upon a successful method of competing. That, insofar as I am permitted by the record to learn the facts, appears to be the case before us. I would reverse. 1 The Government can derive no comfort for this sort of thing from International Salt Co. V. United States, 332 U. S. 392. There the defendant started with a patent monopoly of the machine for utilization of its product. The customers, canners, were in effect the ultimate consumers of salt as such. But they could get the advantages of the invention only if they tied themselves to use no other salt therein. UNITED STATES v. CORS. 325 Syllabus. UNITED STATES v. CORS. CERTIORARI TO THE COURT OF CLAIMS. No. 132. Argued February 4, 1949.—Decided June 13, 1949. In March, 1942, respondent purchased from the Coast Guard a 47-year-old worn-out tug. He repaired and improved it and, in April, 1942, obtained a permit to operate it as a towing steam vessel in the coastal trade for one year. His total expenditures were $8,574.78, plus his own labor. The War Shipping Administration requisitioned the tug in October, 1942, under § 902 of the Merchant Marine Act of 1936, as amended, 46 U. S. C. § 1242, and it was used to heat fuel oil and pump it from barges into naval combat vessels. The Court of Claims found that, prior to the taking, its market value had been enhanced $5,000 due (1) to the great increase in shipping and harbor traffic because of the war, and (2) to the Government’s need for vessels in the prosecution of the war. It awarded him a judgment based upon a fair market value of $15,500, holding that he was entitled to no less than he could have received on the market from others than the Government. Held: It erred in doing so. Pp. 325-336. 1. On the facts of this case, the requirement of § 902 (a) of the Merchant Marine Act of 1936, as amended, 46 U. S. C. § 1242, that the owner of any vessel requisitioned thereunder shall be paid “just compensation . . . but in no case shall the value of the property taken or used be deemed enhanced by the causes necessitating the taking or use,” is coterminous with the just compensation requirement of the Fifth Amendment. Pp. 331-334. 2. Under the provisions of § 902 (a), any enhancement of value must be deducted where it is due (a) to the Government’s need of vessels which has necessitated the taking, (b) to the previous taking of vessels of similar type, or (c) to a prospective taking reasonably probable. P. 334. 3. The enhancement which is excluded is that which arose before as well as after the declaration of a national emergency on May 27, 1941. P. 334. 4. The findings of the Court of Claims are not sufficient to enable this Court to determine whether any part of the $15,500 which it found to be the fair market value at the time of taking includes any deductible enhancement in value, since they do not 326 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. show with sufficient particularity what was the effect of the Government’s activities in the particular market. Pp. 334-336. 5. Respondent plainly would be entitled to any increase in value due to his expenditure of money for labor and materials and his performance of part of the labor. P. 336. 110 Ct. Cl. 66,75 F. Supp. 235, reversed. The Court of Claims awarded respondent a judgment for a vessel requisitioned by the War Shipping Administration after the declaration of an emergency by the President. 110 Ct. Cl. 66, 75 F. Supp. 235. This Court granted certiorari. 335 U. S. 810. Reversed, p. 336. Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Paul D. Page, Jr. John Lord O’Brian argued the cause for respondent. With him on the brief were Frank C. Mason, Harold A. Kertz, John G. Laylin, Charles A. Horsky and Donald Hiss. Charles B. McInnis filed a brief for the R. T. C. No. 11 Corporation et al., as amici curiae, in support of respondent. Mr. Justice Douglas delivered the opinion of the Court. This is a suit in the Court of Claims under § 902 of the Merchant Marine Act of 1936, 49 Stat. 2015, as amended, 53 Stat. 1255, 46 U. S. C. § 1242, to recover the balance of “just compensation” alleged to be due respondent from the United States for requisitioning his steam tug, the MacArthur, in October, 1942. The tug was a Coast Guard boat built in 1895 and used by it in harbor duties at Baltimore until 1939. It was then transferred to the Coast Guard base at Portland, Maine. UNITED STATES v. CORS. 327 325 Opinion of the Court. In September, 1941, the Coast Guard advertised it for sale to the highest bidder. Respondent was the highest bidder, purchasing the tug in Maine on March 19, 1942, for $2,875. Thereafter he expended $5,699.78 on labor and materials in repairing and improving the vessel, an amount which would have been substantially greater had he not performed part of the work himself. In April, 1942, respondent received from the Department of Commerce a certificate designating the vessel as a towing steam vessel and authorizing him to employ it in the coastal trade for one year. Respondent then brought the tug to Staten Island, New York, where it remained until requisitioned by the War Shipping Administration on October 15, 1942. A survey by the Navy had indicated it was suitable as a steam-heating plant for heating and pumping fuel oil from oil barges into naval combat vessels. Its condition was said to be “fair to good”; and its original cost was estimated to be $45,000; its replacement cost, $56,000; and its present value $9,000. It was used as a steam plant to heat oil for use in combat ships. The War Shipping Administration determined that $9,000 was “just compensation” for the tug and offered that amount to respondent. Respondent accepted 75 per cent of the award, as he was permitted to do by § 902 (d) of the Act, and brought suit to recover the balance of the $20,000 which he alleged was the “just compensation” to which he was entitled, plus interest. Section 902 (a) of the Act,1 after providing that the owner of any vessel requisitioned by the Commission shall 1 Section 902 (a) provides: Whenever the President shall proclaim that the security of the national defense makes it advisable or during any national emergency declared by proclamation of the President, it shall be lawful for the Commission to requisition or purchase any vessel or other watercraft owned by citizens of the United States, or under construction within the United States, or for any period during such emergency, 328 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. be paid “just compensation for the property taken or for the use of such property,” goes on to state “but in no case shall the value of the property taken or used be deemed enhanced by the causes necessitating the taking or use.” It is around this latter clause that the present controversy turns. The Court of Claims found that the fair market value at the time of the taking was $15,500 and that respondent was entitled to receive that amount, less the sum already paid, plus interest. 110 Ct. Cl. 66, 75 F. Supp. 235. The importance of that decision in the settlement of claims arising as a result of the requisitioning program during the period of recent hostilities led us to grant the petition for certiorari. The United States admitted liability for only $10,500, claiming that $5,000 of the market value was due to an enhancement brought about by its need for vessels which necessitated their taking. The Court of Claims found that at the time of the requisitioning there existed in and about the Port of New York “a rising market and a strong demand for tugs of all types” due in part at least to the government’s requisitioning program. It found that the to requisition or charter the use of any such property. The termination of any emergency so declared shall be announced by a further proclamation by the President. When any such property or the use thereof is so requisitioned, the owner thereof shall be paid just compensation for the property taken or for the use of such property, but in no case shall the value of the property taken or used be deemed enhanced by the causes necessitating the taking or use. If any property is taken and used under authority of this section, but the ownership thereof is not required by the United States, such property shall be restored to the owner in a condition at least as good as when taken, less ordinary wear and tear, or the owner shall be paid an amount for reconditioning sufficient to place the property in such condition. The owner shall not be paid for any consequential damages arising from a taking or use of property under authority of this section.” (Italics added.) UNITED STATES v. CORS. 329 325 Opinion of the Court. market value of the tug had been enhanced $5,000 by October 15, 1942, due (1) to the great increase in shipping and harbor traffic because of the war and (2) to the government’s need for vessels in the prosecution of the war.2 But the Court of Claims held that an owner of property taken by the government was entitled to no 2 The findings on these issues were as follows: “At the time of the requisition, there existed in and about the Port of New York a rising market-and a strong demand for tugs of all types, including the MacArthur. This situation was due to the greatly increased traffic in the harbor during the period of the war, to the fact that the Government had been requisitioning tugs and to the resulting shortage of tugs. Tugs were operated day and night in an effort to handle the increased business and, under those conditions most tug owners were reluctant to sell. However, from August 1941 to February 1943, six tugboats were sold on the open market in or near the Port of New York. None of these sales involved a vessel closely comparable to the MacArthur in design, power, and equipment. . . .” “Beginning on September 8, 1939, the date on which the President proclaimed the existence of a limited national emergency, and continuing up to the date that plaintiff’s vessel was requisitioned, there was a general rise in the market values of nearly all vessels in and about the Port of New York. This increase in values between September 8, 1939 and May 27, 1941, the date on which the President proclaimed the existence of a general national emergency, was due to the demand for vessels which followed the outbreak of war in Europe. After May 27, 1941 and particularly after December 7, 1941, the date of the Japanese attack on Pearl Harbor, the rise in market values was due to the Government’s need for vessels, which necessitated the taking of many vessels, and to the great increase m shipping and in harbor traffic which occurred during the period of the war. These conditions combined to create a demand for and a shortage of tugs. As a result, the market value of the MacArthur had been enhanced by the sum of $5,000.00 by October 15, 1942. Prior to the time the defendant requisitioned the MacArthur there was no reasonable prospect that she would be requisitioned, and no part of the enhancement in her value was due to such a prospect.” 330 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. less than he could have received on the market from others, which in the present case was $15,500. The Comptroller General has ruled that § 902 (a) prohibits the payment of compensation to the extent that it may be based on values in excess of those existing on the date of the President’s proclamation of a limited national emergency (September 8, 1939),3 provided that such excess be determined as due to economic conditions directly caused by the national emergency.4 The Advisory Board on Just Compensation5 formulated various rules for the guidance of the War Shipping Administration in its requisitioning program, including the following: “From the value at the time of taking, there should be deducted any enhancement due, to the Government’s need of vessels which has necessitated the taking, to the previous taking of vessels of similar type, or to a prospective taking, reasonably probable, whether such need, taking, or prospect, occurred be- 3 See 3 C. F. R. Cum. Supp. 114. 4 22 Comp. Gen. 497, 608. 5 See Exec. Order 9387, Oct. 15, 1943, 8 Fed. Reg. 14105,3 C. F. R., 1943 Supp. 48-49. The Executive Order provided in part: “The Board, in accordance with the applicable provisions of the Constitution and the laws of the United States, shall establish fair and equitable standards, rules and formulae of general applicability for the guidance of the War Shipping Administration in determining the just compensation to be paid for all vessels requisitioned, purchased, chartered or insured by the Administration. The Board may prescribe such rules, regulations and procedures as it deems necessary or advisable in carrying out its functions. “In determining the amount of just compensation which should be paid for each vessel, the War Shipping Administration will be guided by the general standards, rules and formulae established by the Board.” This Board was composed of Learned Hand, John J. Parker, and Joseph C. Hutcheson, Jr. UNITED STATES v. CORS. 331 325 Opinion of the Court. fore or after the declaration of the national emergency of May 27, 1941. Enhancement due to a general rise in prices or earnings, whenever occurring, should not be deducted. In the application of this rule neither the proclamation of limited emergency of September 8, 1939, nor the facts existing at that time, are in themselves of significance. The Board does not determine whether any enhancement after May 27, 1941, other than as enumerated above as deductible, should be excluded; since the Board is advised that the value of oceangoing vessels was higher on May 27, 1941, than at the time of taking, and that any enhancement since May 27, 1941, in vessels of other types, not deductible under the foregoing, is attributable to a general rise in prices or earnings, and should therefore not be deducted.” The Department of Justice agrees with both the Comptroller General and the Advisory Board that the enhancement which is excluded is not limited to that accruing in the period after the declaration of a national emergency on May 27, 19416 and contends for a construction which would eliminate any enhancement on values due to the war. It argues that the Act as so construed, though different from hitherto announced judicial rules of construction of “just compensation” within the meaning of the Fifth Amendment, is nevertheless constitutional. Respondent, relying largely on Monongahela Navigation Co. v. United States, 148 U. S. 312, argues that if that construction is adopted it makes the enhancement clause unconstitutional because it conflicts with the judicial construction of “just compensation” and is therefore beyond the competence of Congress to prescribe. First. We need not reach the question whether the measure of compensation which Congress wrote into the 6 3 C. F. R. Cum. Supp. 234. 332 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. Act is in all of its applications identical with the judicial standard. We are satisfied that on the present facts the two are coterminous. The Court in its construction of the constitutional provision has been careful not to reduce the concept of “just compensation” to a formula. The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice. But the Amendment does not contain any definite standards of fairness by which the measure of “just compensation” is to be determined. United States ex rel. T. V. A. v. Powelson, 319 U. S. 266, 279-280; United States v. Petty Motor Co., 327 U. S. 372, 377. The Court in an endeavor to find working rules that will do substantial justice has adopted practical standards, including that of market value. United States v. Miller, 317 U. S. 369, 374. But it has refused to make a fetish even of market value, since that may not be the best measure of value in some cases. At times some elements included in the criterion of market value have in fairness been excluded, as for example where the property has a special value to the owner because of its adaptability to his needs or where it has a special value to the taker because of its peculiar fitness^for the taker’s project. See United States v. Miller, supra, 375 and cases cited. Moreover, where the government lays out a project involving the taking of lands, no increment of value arising by virtue of the fact that a particular tract is clearly or probably within the project may be added. Id., 376-379 and cases cited. Any increase in value due to that fact would reflect speculation as to what the government could be compelled to pay and hence m fairness should be excluded from the determination of what compensation would be just. Id., 377. The Court of Claims recognized these rules. But it concluded that they represented the only exceptions to the requirement that market value be paid, that they were UNITED STATES v. CORS. 333 325 Opinion of the Court. inapplicable here, and that therefore there was no enhancement in the value of the vessel that should be excluded from the fair market value in making the award to respondent. We believe, however, that these exceptions are merely illustrations of a principle which excludes enhancement of value resulting from the government’s special or extraordinary demand for the property. The special value to the condemner as distinguished from others who may or may not possess the power to condemn has long been excluded as an element from market value. See United States v. Chandler-Dunbar Co., 229 U. S. 53, 76. In time of war or other national emergency the demand of the government for an article or commodity often causes the market to be an unfair indication of value. The special needs of the government create a demand that outruns the supply. The market, sensitive to the bullish pressure, responds with a spiraling of prices. The normal market price for the commodity becomes inflated. And so the market value of the commodity is enhanced by the special need which the government has for it. That seems to have been the situation in the present case. For, as we have seen, the Court of Claims found that at the time of the requisition there was “a rising market and a strong demand for tugs of all types” in and around the Port of New York, due in part at least to the shortage of tugs resulting from the government’s requisitioning program. It is not fair that the government be required to pay the enhanced price which its demand alone has created. That enhancement reflects elements of the value that was created by the urgency of its need for the article. It does not reflect what “a willing buyer would pay in cash to a willing seller,” United States v. Miller, supra, 374, in a fair market. It represents what can be exacted from the government whose demands in the emergency have ere- 334 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. ated a sellers’ market. In this situation, as in the case of land included in a proposed project of the government, the enhanced value reflects speculation as to what the government can be compelled to pay. That is a hold-up value, not a fair market value. That is a value which the government itself created and hence in fairness should not be required to pay. Second. What we have said is in accord with our reading of the Report of the Advisory Board. Any enhancement of value must be deducted where it is due (a) “to the Government’s need of vessels which has necessitated the taking,” (b) “to the previous taking of vessels of similar type,” or (c) “to a prospective taking, reasonably probable. . . The government’s need of vessels which has necessitated the taking is its need for the precise ship taken, for the type or class of ship taken, or for ships which perform the same or related functions. The government’s need for cargo vessels may affect indirectly the price level of many commodities. It may, for example, affect the price of rowboats. But if the government takes a rowboat, the enhancement to be excluded is that which results from the government’s activities in the particular market. It is the government’s demand in that market that is the measure of the “causes necessitating the taking or use” in this situation.7 We also agree with the Advisory Board that the enhancement which is excluded is that which arises before as well as after the declaration of the national emergency of May 27, 1941. Section 902 (a) does not have any limiting factor so far as time is concerned. But we cannot say from this record whether any part of the $15,500 that the Court of Claims found to be the fair 7 Whether there might be a different measure of those causes in other situations is a question we do not reach. UNITED STATES v. CORS. 335 325 Opinion of the Court. market value of the tug at the time of the taking includes any deductible enhancement in value. The Court of Claims found, to be sure, that there was no reasonable prospect of the condemnation of the tug and hence no enhancement in value due to that reason. Yet, as we have seen, that is only one source of the enhancement in value which is deductible. There are no findings as to the effect on the market either of the previous taking, if any, of vessels of a similar type, or of the government’s need of vessels necessitating the taking, as we have construed it. The only findings at all relevant to these factors are (1) that the increase in market values of “nearly all vessels in and about the Port of New York” between September 8, 1939 and May 27, 1941 was due to “the demand for vessels which followed the outbreak of war in Europe”; and (2) that such increase after May 27, 1941, and particularly after December 7, 1941, was due to “the Government’s need for vessels, which necessitated the taking of many vessels, and to the great increase in shipping and in harbor traffic” during the war.8 These findings, however, are not sufficiently discriminating. They do not show the effect on the market of the government’s need for this particular ship, for this type or class of vessel, or for ships which perform the same or related functions. The findings as to the rising market for tugs in and about the Port of New York tell us that some of that enhancement is due to the government’s need. But we are left in the dark as to how much it may be. In sum the findings do not tell us with sufficient particularity what was the effect of the government’s activities in the particular market. Nor do we know whether increases in value of the vessel up to March 19, 1942, when the United States sold it to respondent, were re- 8 See note 2, supra. 336 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U.S. fleeted in the sale price. If they were, the United States has received any enhancement in value that resulted from its need up to that date. Finally, respondent argues that the actual basis for the increase in value of the vessel between March and October, 1942 (the period when respondent owned it) is due to causes other than the government’s need. He points out that his total monetary expenditure on the vessel amounted to $8,574.78, of which $5,699.78 represented labor and materials. The latter amount, however, would have been substantially greater had not respondent himself performed part of the labor. Respondent plainly would be entitled to any increase in value due to that factor. Moreover, when respondent repaired and reconditioned the boat it was certificated as a towing steam vessel, a substantially new use for the tug. These two factors alone, plus the general price increase, are said to account for the $5,000 enhancement in value found by the Court of Claims. We start with findings that tell us that some of the enhancement in market value is due to the government’s need. It is sheer speculation to say that there are offsets against that enhancement which so reduce it as to render the construction of the Act an abstract question. Cf. Ashwander n. Valley Authority, 297 U. S. 288, 324. The inadequacies in the findings are due to the erroneous construction of the Act by the Court of Claims. Reversed. Mr. Chief Justice Vinson dissents. Mr. Justice Frankfurter, with whom Mr. Justice Jackson and Mr. Justice Burton join, dissenting. We brought this case here on certiorari to the Court of Claims under 28 U. S. C. § 1255 (1) because it seemed to present constitutional issues important in the award UNITED STATES v. CORS. 337 325 Frankfurter, J., dissenting. of compensation for vessels requisitioned by the Government during the recent national emergency under § 902 (a) of the Merchant Marine Act of 1936.1 The following facts are the basis of the claim that the scope and validity of that section of the Merchant Marine Act call for adjudication. The steam tug Guthrie was owned by the United States and operated by the Coast Guard continuously from 1895, when she was built, until 1941. In that year a special Board of Survey appointed to determine her condition found her in need of a new boiler and extensive repairs. In view of “the present emergency and the great need of vessels,” the Board recommended that the necessary reconditioning be undertaken. The Coast Guard, however, directed that she be sold to the highest bidder. Respondent’s was the highest bid received, and on March 19, 1942, the Guthrie was sold to him for $2,875. He 1 “Whenever the President shall proclaim that the security of the national defense makes it advisable or during any national emergency declared by proclamation of the President, it shall be lawful for the Commission to requisition or purchase any vessel or other watercraft owned by citizens of the United States, or under construction within the United States, or for any period during such emergency, to requisition or charter the use of any such property. The termination of any emergency so declared shall be announced by a further proclamation by the President. When any such property or the use thereof is so requisitioned, the owner thereof shall be paid just compensation for the property taken or for the use of such property, but in no case shall the value of the property taken or used be deemed enhanced by the causes necessitating the taking or use. If any property is taken and used under authority of this section, but the ownership thereof is not required by the United States, such property shall be restored to the owner in a condition at least as good as when taken, less ordinary wear and tear, or the owner shall be paid an amount for reconditioning sufficient to place the property in such condition. The owner shall not be paid for any consequential damages arising from a taking or use of property under authority of this section.” 49 Stat. 2011,2015, as amended, 46 U. S. C. § 1242. 338 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U.S. proceeded to carry out the repairs that had been indicated by the Coast Guard survey, doing most of the work himself with the aid of a crew of four; the rest was done by a shipyard at Portland. His total expenditure on labor and materials was $5,699.78 but would have been substantially greater had he not been experienced in this type of work. On April 20 and 21, the Department of Commerce licensed the Guthrie as a “towing steam vessel” permitted to navigate in “bays, sounds, rivers and harbors” and also authorized respondent to employ her in the coasting trade. Respondent then brought her under her own power to New York where she was rechristened the MacArthur and where she remained inactive until September, 1942, when the Navy surveyed her for use as a steam-heating plant for heating and pumping fuel oil from barges into combat vessels. On October 15, 1942, the War Shipping Administration requisitioned the MacArthur for the Navy and later offered respondent $9,000 as compensation for her. This figure was based upon the Coast Guard survey, the Navy survey, and the rules adopted by the Advisory Board on Just Compensation which had been appointed to clarify the measure of compensation payable by the War Shipping Administration under § 902 (a) of the Merchant Marine Act.2 Respondent protested against 2 The Advisory Board on Just Compensation, consisting of Judge Learned Hand, Judge John J. Parker, and Judge Joseph C. Hutcheson, Jr., was appointed under Exec. Order 9387, Oct. 15, 1943, 8 Fed. Reg. 14105, 3 C. F. R. 1943 Supp. 48-49. The following is the most important of the rules adopted by the Board: “Rule 4. From the value at the time of taking, there should be deducted any enhancement due, to the Government’s need of vessels which has necessitated the taking, to the previous taking of vessels of similar type, or to a prospective taking, reasonably probable, whether such need, taking, or prospect, occurred before or after the declaration of the national emergency of May 27, 1941. Enhance- UNITED STATES v. CORS. 339 325 Frankfurter, J., dissenting. the award and, as he was entitled to do under § 902 (d) of the Act, accepted 75% of it, and brought suit in the Court of Claims for the difference between the amount he had been offered and the amount he alleged to be due as just compensation. The Court of Claims found that the market value of the MacArthur on the date of taking was $15,500. 110 Ct. Cl. 66. The Government does not dispute that there was a market nor that value on the market was as found, but insists that there should have been deducted from it an amount representing enhancement “by the causes necessitating the taking” under the terms of § 902 (a). It bases this contention on two findings of the Court of Claims. The first is that “At the time of the requisition, there existed in and about the Port of New York a rising market and a strong demand for tugs of all types, including the MacArthur. This situation was due to the greatly increased traffic in the harbor during the period of the war, to the fact that the Government had been requisitioning tugs and to the resulting shortage of tugs.” 110 Ct. Cl. at 75-76. The second is that the market value of the MacArthur had been enhanced between September 8, 1939, when the President proclaimed a ment due to a general rise in prices or earnings, whenever occurring, should not be deducted. In the application of this rule neither the proclamation of limited emergency of September 8, 1939, nor the facts existing at that time, are in themselves of significance. The Board does not determine whether any enhancement after May 27, 1941, other than as enumerated above as deductible, should be excluded; since the Board is advised that the value of oceangoing vessels was higher on May 27, 1941, than at the time of taking, and that any enhancement since May 27, 1941, in vessels of other types, not deductible under the foregoing, is attributable to a general rise in prices or earnings, and should therefore not be deducted.” House Committee on the Merchant Marine and Fisheries Doc. No. 47,78th Cong., 1st Sess. 837446 O—49---26 340 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U.S. limited national emergency, and October 15, 1942, when she was requisitioned, by the sum of $5,000, part of which, after proclamation of a general national emergency on May 27, 1941, “was due to the Government’s need for vessels, which necessitated the taking of many vessels . . . .” Id. at 77. But the Court of Claims concluded that “It is not possible to allocate to the [Government’s need] a definite part of the increase in market value, but even if it were possible to do so, we do not think the defendant is entitled to a deduction from market value on this account.” Id. at 78. The Government’s arguments in support of its claim that all or part of the $5,000 enhancement in market value of the MacArthur should be deducted in computing just compensation to respondent ultimately reduce to two. The first is that there should be deducted any speculative increase of value due to the probability of the taking. It is clear that such a deduction must be made where the increase is traceable to the probability that the Government would take the particular property for which compensation is sought. United States v. Miller, 317 U. S. 369. But the application of this principle is impossible here in the face of the Court of Claims’ explicit finding that “prior to the time the defendant requisitioned the MacArthur there was no reasonable prospect that she would be requisitioned, and no part of the enhancement in her value was due to such a prospect.” 110 Ct. Cl. at 77. It is arguable, however, that the rationale of the Miller case should be extended to property of a less unique character than land—property of a class any member of which would fulfill the takers need more or less equally well. As to such property there may be speculative increase in value because of the dual expectation that some members of the class will be taken and that the taker may be forced to pay, UNITED STATES v. CORS. 341 325 Frankfurter, J., dissenting. when the time comes for the award of compensation, something more than what would have been market value had not speculation occurred. See McGovern n. New York, 229 U. S. 363, 372. And this might be true even though it could not be said that it was probable that a particular member of the class—in this case a particular tug—would be taken.3 But this is a question we do not need to pass on now because, in addition to the finding that it was not probable that the MacArthur would be taken, the record 3 The core of the problem emerged in the following colloquy at the hearing held before the Advisory Board on Just Compensation: “Judge Hand: It comes to this, that a society which foresees a shortage, a consequent shortage in one kind of supply, must either proceed at once to seize, or must subject itself and society at large to the disadvantage which comes from the shortage. But when the shortage comes, it may not say ‘So far, and no farther. We leave the property in your hands for use, but we are helpless to prevent your further exploitation of society by your special interest.’ “Is that your position ? “Mr. McInnis: I think, your Honor, that that is the logical implication of my argument. “Judge Hand: It does seem to me, if it is all perfectly clearly known in advance, to put a society in a rather helpless position as against a small group that has control of all of one vital commodity. You can imagine cases where that would work a result that no one would support. You can imagine the destruction of a large part of food in a community where there was no immediate relief, and, as I understand your argument, they either have to take it now, or when they would find it more convenient to take it they should have to submit to the increase in value, however clearly the owners were advised at a given point, ‘This marks the end of that kind of profit—scarcity profit.’ “Mr. McInnis: I think that is correct, Judge. But I would agree— “Judge Hand (interposing): It might be that the Constitution protects that kind of profit. I won’t say now.” 1 Report of Proceedings of the Advisory Board 134-135 (United States Maritime Commission, War Shipping Administration, mimeographed, 1943). 342 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U.S. contains evidence of the most conclusive kind that a taking was improbable: the Government had got rid of the tug only seven months before the taking, with complete awareness that she was capable of being adequately reconditioned. Among those whose dealings in tugs established market value, therefore, whatever may have been the tendency of their activities to bring about speculative increase in the value of tugs generally, it must have seemed so unlikely that the Government would reverse itself and take the MacArthur back that the market value found by the Court of Claims for this particular tug could hardly have reflected enhancement due to speculation at the expense of the Government’s need for her. It may be suggested, to be sure, that the need which prompted this reversal might have been anticipated by one shrewd enough to foresee a growing shortage of tugs more accurately than those responsible for the Government’s decisions in these matters. But whatever might conceivably be the effect on the market of the operations of such persons, it would be an effect so far beyond the possibility of measurement that it would be futile in the extreme to remand for a finding on the point, especially when it is remembered that the Mac-Arthur was requisitioned not for use as a tug but as a heating plant. We must reject, therefore, speculation by purchasers of tugs at the expense of the Government’s need as a factor contributing to the market value of the MacArthur at the time she was requisitioned. The only other way that has been suggested in which her market value could have been increased by the Government’s need is as a result of the increase in demand presumably brought about by previous Government seizures of tugs during a period when, as the Court of Claims found, there was a shortage of tugs due to a great “increase in shipping and UNITED STATES v. CORS. 343 325 Frankfurter, J., dissenting. harbor traffic.” In this indirect way, the Government’s need can be regarded as a “cause” of the increase in the MacArthur’s market value. Because this need could be foreseen at least by the time of the declaration of limited national emergency on September 8, 1939, the Government argues that all enhancement in the value of vessels since that date should therefore be deducted from their market price in determining just compensation. In the alternative, it urges that there should be deducted that proportion of this increase which is allocable to the Government’s intervention in the market. Whether regarded as founded upon § 902 (a) of the Merchant Marine Act or upon judicial principles of just compensation, both these contentions, in my judgment, must be rejected. When the Government first took out of commercial operation some of the tugs which had been thus employed, it could requisition them at a price uninfluenced by its own need. A subsequent increase in the market value, though precipitated by the shortage caused by the earlier taking, could be a direct result only of the tug operators’ need for the remaining tugs, not of the Government’s for those it had taken. Leaving enhancement attributable to speculation out of account, as the record obliges us to do, the Government could then requisition still more tugs at a market value at most no higher than the level at which the new price had settled. Unlike an increase due to speculation by buyers of tugs that awards for requisitioned tugs would exceed the price likely to be paid by commercial operators purchasing tugs for their own use, an increase due to shortage would affect the price to any purchaser and enhance value to any owner even though no further requisitions were anticipated and even though none were made. Exactly the same increase would result whether the shortage were induced by the expanded business of a commercial oper- 344 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U.S. ator or by Government requisition. It simply is not true, therefore, that the enhanced price resulting from shortage is a price which the need necessitating the taking, as opposed to need of the tug operators, created. The need of the tug operators, moreover, not merely for the tugs that had been taken, but for additional tugs, was in its turn only one factor in the complex which makes up demand in a period of high costs, high wages, shortages, and inflation. We speak, in referring to the interacting forces of such a period, of the “inflationary spiral,” and although a requisition by the Government in the midst of this dynamic process undoubtedly has some effect in accelerating it, it is an effect which loses its ascertainable significance by being merged with countless other factors. Whatever may be the proper scope of the declaration in § 902 (a) that the value of vessels taken during the national emergency shall not “be deemed enhanced by the causes necessitating the taking or use,” the wartime economy itself cannot be regarded as such a cause. Even assuming that there may be other circumstances than those of gambling on the result of an award in which a connection between the taker’s intervention in the market and an enhancement of price might be traced, on this record it would be asking for the impossible to insist on an attempt to trace one. The Government has advanced no basis for the undertaking; it points to no evidence already offered which would justify it and suggests none that it might have offered. Under the circumstances, we should not require the Court of Claims to embark upon so murky a sea of speculation. Cf. International Harvester Co. N. Kentucky, 234 U. S. 216, 223-24. If what I have said appeals to common sense, market values which have been increased as the result of the interaction of supply and demand in a wartime economy UNITED STATES v. CORS. 345 325 Frankfurter, J., dissenting. cannot be rejected as the applicable measure of just compensation merely because the competition of the Government, regarded from the point of view of an exercise in tracing ultimate causes, may theoretically be deemed to have contributed to the increase. Nor is it to make a fetish of market value to affirm its selection as a standard in a case where no other standard that offers the possibility of observance has been put forward. The record rules out any increase due to speculation, the only other suggested form of enhancement attributable to the Government’s need. Since it is our duty to avoid constitutional adjudication, see the concurring opinion of Mr. Justice Brandeis in Ash wander n. Tennessee Valley Authority, 297 U. S. 288, 341, 346 et seq., and Rescue Army v. Municipal Court, 331 U. S. 549, 568 et seq., the decision below should be affirmed without reaching the constitutional issues raised by the Government’s construction of §902 (a). 346 OCTOBER TERM, 1948. Syllabus. 337 U.S. UNITED STATES v. WITTEK. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 473. Argued April 20-21, 1949.—Decided June 13, 1949. The District of Columbia Emergency Rent Act of December 2, 1941, 55 Stat. 788, as amended, is not applicable to the United States as landlord of Government-owned defense housing in the District of Columbia. Pp. 347-368. 1. The Act makes no distinction between the United States as a landlord of defense housing and as a landlord of low-rent housing; and, when the circumstances are appreciated, it is practically inconceivable that Congress would have subjected its Government-owned low-rent housing in the District of Columbia to the control prescribed by the District of Columbia Emergency Rent Act in addition to the control prescribed by existing legislation and that of the presidentially designated administrators of low-rent housing in the District of Columbia. Pp. 351-358. 2. The Act contains no express reference to the United States as a landlord or to its application to Government-owned housing of any kind; rental rates in Government-owned defense housing were under complete governmental control; it appears to have been enacted as a temporary measure supplementing, rather than superseding, the contribution already being made by the permanent federal housing authorities toward meeting the housing crisis; and there was no need to apply to Government-owned defense housing the new rent control that it imposed upon privately owned housing. Pp. 358-363. 3. Both the form and the practical operation of the National Emergency Price Control Act indicate that Congress did not seek by the District of Columbia Emergency Rent Act to place Government-owned housing under a local rent administrator. Pp-364-367. 4. The conclusion here reached is supported by the fact that the District Administrator of Rent Control has taken no part in this proceeding and there is no evidence that he has sought at any time to exercise jurisdiction over the United States as a landlord of either low-rent housing or defense housing. P. 368. 83 U. S. App. D. C. 377, 171 F. 2d 8, reversed. UNITED STATES v. WITTEK. 347 346 Opinion of the Court. The Municipal Court for the District of Columbia found that the District of Columbia Emergency Rent Act was not applicable to the United States and ordered possession of premises owned by it in a defense-housing project in the District of Columbia given to the United States. The Municipal Court of Appeals for the District of Columbia affirmed. 75 Wash. Law Rep. 982, 54 A. 2d 747. The United States Court of Appeals for the District of Columbia Circuit reversed. 83 U. S. App. D. C. 377, 171 F. 2d 8. This Court granted certiorari. 336 U. S. 931. Reversed, p. 368. Assistant Attorney General Vanech argued the cause for the United States. With him on the brief were Solicitor General Perlman, Philip Elman, Roger P. Marquis, Fred W. Smith and Floyd L. France. Ward B. McCarthy argued the cause and filed a brief for respondent. Mr. Justice Burton delivered the opinion of the Court. The question presented is whether the United States, as the owner of Bellevue Houses, a defense-housing project in the District of Columbia, is a “landlord” within the meaning of the District of Columbia Emergency Rent Act,1 with particular reference to rights of occupancy and rates of rental. For the reasons to be stated, we hold that it is not. 1 The District of Columbia Emergency Rent Act was approved December 2, 1941, 55 Stat. 788, D. C. Code (1940, Supp. VI) §§ 45-1601 to 45-1611. It took effect January 1, 1942, and was to terminate December 31, 1945. Id. §§ 2 (1), 1 (b); § 45-1602 (1); and see § 45-1601 (b). Its life, however, was extended to December 31, 1946, 59 Stat. 592; to December 31, 1947, 60 Stat. 340; to March 31, 1948, 61 Stat. 713; to April 30, 1948, 62 Stat. 100; to March 31, 1949, 62 Stat. 205; to April 30, 1949, 63 Stat. 30; to June 30, 1950, 3 Stat. 48. It has been amended in a few other provisions, none of which are material here. 348 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. The United States of America, petitioner herein, filed its amended complaint in the Municipal Court for the District of Columbia against Wittek, the respondent, seeking possession of the premises occupied by him in the defense-housing project in the District of Columbia known as Bellevue Houses. The complaint alleged that the premises were owned by the United States and that the housing accommodations had been constructed by the Navy Department under authority of § 201 of the Second Supplemental National Defense Appropriation Act, 1941.2 This summary proceeding was brought under § 20, 31 Stat. 1193, 41 Stat. 555, D. C. Code (1940) § 11-735. The respondent’s tenancy had been terminated by notice to quit, served upon him February 28, 1946, as required by § 1219, 31 Stat. 1382, D. C. Code (1940) § 45-902, and the United States claimed that he no longer had any right to possession.3 The respondent’s defense, now be- 2 Approved September 9, 1940, 54 Stat. 883-884. The management and administration of Bellevue Houses were transferred by the Navy Department to the National Housing Administration under authorization of this section and also under § 7 of the Lanham Act, approved October 14, 1940, 54 Stat. 1125, 1127,42 U. S. C. (1946 ed.) § 1544, and Executive Order No. 9070, 3 C. F. R. Cum. Supp. 1095, 50 U. S. C. App. (1946 ed.) § 601 note, p. 5711. The authority to operate and manage Bellevue Houses later was delegated, by lease, to the National Capital Housing Authority, which was responsible for the rental of the premises involved in the instant case at the time of this proceeding. In making this delegation, the United States relied upon the same Acts, together with § 5 of the Act of June 28,1941, 55 Stat. 363, and amendments made to the Lanham Act by the Act of January 21,1942,56 Stat. 11, et seq. 3 The amended complaint, the proceedings and the opinions below refer also to allegations, stipulations and evidence to the effect that the United States had rented the premises in question to the respondent for $38.20 a month, including gas heating and other utility services, but that it had increased such rental to $43 a month, beginning February 1, 1946. The United States claimed that this increase was essential in order for it to meet a substantial rise in operating expenses, due to the necessary substitution of commercial gas to UNITED STATES v. WITTEK. 349 346 Opinion of the Court. fore us, is that the United States did not establish any of the additional facts which the District of Columbia Emergency Rent Act required a landlord to establish as a condition of such landlord’s recovery of possession of housing accommodations to which the Act applied.4 The be used for space heating purposes in place of surplus sludge gas supplied by the District of Columbia free or at nominal cost. The United States also alleged that the respondent refused to execute a new lease and refused to pay rent at the increased rate, with the result that, on February 28, 1946, it served its 30-day notice terminating the respondent’s tenancy. It further alleged that this increase in rent had been made under its previously cited authority to operate the project and without reference to the District of Columbia Emergency Rent Act. This increase in rent presents (under §§ 2 to 4 of that Act, D. C. Code (1940, Supp. VI) §§45-1602 to 45-1604) the same issue, based upon the applicability of the Act to the United States as a landlord, as is presented (under §5 (b), D. C. Code (1940, Supp. VI) §45-1605 (b)) by the maintenance of this proceeding for possession of the premises in question without making any of the additional allegations called for by that Act. We deal with the issue as presented under § 5 (b) because it is there less involved in factual controversy than it is under §§ 2 to 4. 4 “Sec. 5. Prohibitions.—. . . “(b) No action or proceeding to recover possession of housing accommodations shall be maintainable by any landlord against any tenant, notwithstanding that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled, unless— “(1) The tenant is (a) violating an obligation of his tenancy (other than an obligation to pay rent higher than rent permitted under this Act or any regulation or order thereunder applicable to the housing accommodations involved or an obligation to surrender possession of such accommodations) or (b) is committing a nuisance or using the housing accommodations for an immoral or illegal purpose or for other than living or dwelling purposes, or “(2) The landlord seeks in good faith to recover possession of the property for his immediate and personal use and occupancy as a dwelling, or “(3) The landlord has in good faith contracted in writing to sell the property for immediate and personal use and occu 350 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. parties agreed that the cause be disposed of by the Municipal Court upon the pleadings, pretrial stipulations and certain exhibits. That court found that it had jurisdiction, that the Emergency Rent Act did not apply to the United States as the landlord of the premises in question and it ordered possession of the premises to be given to the United States. The Municipal Court of Appeals for the District of Columbia affirmed the judgment.5 The United States Court of Appeals for the District of Columbia Circuit allowed an appeal, limited to two questions.6 It disposed of one by sustaining the juris- pancy as a dwelling by the purchaser and that the contract of sale contains a representation by the purchaser that the property is being purchased by him for such immediate and personal use and occupancy, or “(4) The landlord seeks in good faith to recover possession for the immediate purpose of substantially altering, remodeling, or demolishing the property and replacing it with new construction, the plans for which altered, remodeled, or new construction having been filed with and approved by the Commissioners of the District of Columbia, or “(5) The housing accommodations are nonhousekeeping, furnished, accommodations located within a single dwelling unit not used as a rooming or boarding house as defined by this Act and the remaining portion of which dwelling unit is occupied by the lessor or his immediate family, or “(6) The landlord, being a recognized school or an accredited nonprofit university, has a bona fide need for the premises for educational, research, administrative, or dormitory use.” 55 Stat. 791, 56 Stat. 759, 61 Stat. 721, D. C. Code (1940, Supp. VI) §45-1605 (b). 5 Wittek v. United States, 54 A. 2d 747. For an earlier proceeding in the same case, see United States v. Wittek, 48 A. 2d 805. 6 Appeal was taken under 56 Stat. 196, D. C. Code (1940, Supp. VI) § 11-773. The question now before us was stated as follows: “Whether the conditions imposed by the District of Columbia Emergency Rent Act on suits for possession apply where such a suit is brought by the United States as landlord.” Wittek v. United States, 83 U. S. App. D. C. 377,378,171 F. 2d 8,9. UNITED STATES v. WITTEK. 351 346 Opinion of the Court. diction of the Municipal Court. It answered the other by holding that the District of Columbia Emergency Rent Act did apply to the United States as the landlord in this proceeding. It ordered the judgment reversed and the cause remanded to the Municipal Court of Appeals. 83 U. S. App. D. C. 377,171 F. 2d 8. We granted certiorari because of the substantial importance of the decision to the administration of Government-owned, low-rent housing, as well as to Government-owned, defense housing, in the District of Columbia. 336 U. S. 931. I. If the District of Columbia Emergency Rent Act is now applied to Government-owned, defense housing in the District, such as Bellevue Houses, we are warned that we soon may be compelled to hold the same interpretation applicable to Government-owned, low-rent housing in the District. When the circumstances are appreciated, it is practically inconceivable that Congress would have subjected its Government-owned, low-rent housing program in the District of Columbia to the additional control prescribed by the District of Columbia Emergency Rent Act. Yet the interpretation by which the court below held that Act applicable to the United States as a landlord of defense housing might make the Act equally applicable to the United States as a landlord of all other housing accommodations, including its low-rent housing. The District of Columbia Emergency Rent Act came before Congress, late in 1941, through and with the support of the Congressional Committees on the District of Columbia in the House of Representatives and the Senate. It was designed as a model, prewar, temporary, emergency measure to forestall the skyrocketing of rentals of housing accommodations for defense workers then concentrating in the District of Columbia. Obviously, it was directed, at least 352 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. primarily, at private landlords.7 It sought to stabilize housing rentals at about the level of January 1, 1941, which it selected as “a level fixed (so far as practicable) by free competition ; . ...”8 7 “Section 1. Purposes, Time Limit.—(a) It is hereby found that the national emergency and the national-defense program (1) have aggravated the congested situation with regard to housing accommodations existing at the seat of government; (2) have led or will lead to profiteering and other speculative and manipulative practices by some owners of housing accommodations; (3) have rendered or will render ineffective the normal operations of a free market in housing accommodations; and (4) are making it increasingly difficult for persons whose duties or obligations require them to live or work in the District of Columbia to obtain such accommodations. Whereupon it is the purpose of this Act and the policy of the Congress during the existing emergency to prevent undue rent increases and any other practices relating to housing accommodations in the District of Columbia which may tend to increase the cost of living or otherwise impede the national-defense program. “(b) The provisions of this Act, and all regulations, orders, and requirements thereunder, shall terminate on December 31,1945; . . . ■” (Emphasis supplied.) 55 Stat. 788, D. C. Code (1940, Supp. VI) § 45-1601. In seven steps the termination date has been extended to June 30, 1950. See note 1, supra. 8 The Committee Reports refer by implication to private landlords, rather than to the United States—either as the established landlord of the widespread, low-rent housing in the District or as the landlord of the future defense housing then being developed in the District by the United States as an additional means of combating the housing shortage. “With a population influx at a higher rate than ever before in its history, the Nation’s Capital today is faced with a demand for housing accommodations which threatens to create a situation more serious than that existing during the last war. The present demand for living quarters on the part of those whom the defense effort requires to live and work in Washington, has tempted some owners and managers of rental properties to demand exorbitant rentals. It is true, and gratifying to note, that a large majority of owners and managers have refrained from taking advantage of the rental situation created by the national emergency as it affects the Nation s UNITED STATES v. WITTEK. 353 346 Opinion of the Court. Congress traditionally has relied heavily upon its Committees on the District of Columbia in District matters. Through them it must have seen this measure in the light of its own long-term, low-rent housing program for the District. In appraising the attitude of these Committees and of Congress toward Government-owned, low-rent housing as a substitute for substandard housing in the District, it is impossible to overemphasize either the seriousness of the need or the long-standing concern of Congress about that need. The substandard housing in the District has been a frequent subject of congressional debate, study and legislation since the Civil War. The narrow alleys in the interior of 200 or more of the large downtown city blocks of the District, although unfit for habitation, have been notoriously congested with a Capital. This bill is designed to protect this group as well as present and future tenants in the District of Columbia from the rent-gouging practices of a minority of landlords. “The most appropriate regulation of rental properties to meet the present emergency situation is regulation designed to stabilize the rent level at a level fixed {so far as practicable) by free competition; competition before it was seriously affected by an acute housing shortage and by restrictions on new construction caused by shortages in certain building materials required by the military needs of the Nation. “It is particularly appropriate that the Congress immediately enact legislation of this type for the Nation’s Capital—legislation that may serve as a model for enactments by States which may desire control for those areas within their borders suffering from similar rental housing dislocations caused by the national emergency and the national-defense program.” (Emphasis supplied.) H. R. Rep. No. 1317,77th Cong., 1st Sess. 2,6 (1941). And see S. Rep. No. 827, 77th Cong., 1st Sess. 3 (1941). See also, discussion of the bill on the floor of the House of Representatives by Representative Randolph of West Virginia, Chairman of the Committee on the District of Columbia, 87 Cong. Rec., Pt. 8, 8447-8454 (1941). 354 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. large population for which adequate housing never has existed. This condition has been widely publicized and only partial success has been attained through the efforts to improve it. Out of this need there has evolved a longterm congressional program to eliminate these substandard dwellings. Due to an obvious lack of suitable private housing, this program has led to the construction of a number of Government-built, owned and operated low-rent housing accommodations. In 1934, Congress enacted the District of Columbia Alley Dwelling Act, 48 Stat. 930, D. C. Code (1940) § 5-103, et seq. It authorized the President to acquire land adjacent to the inhabited alleys in the District, erect buildings thereon and rent them “upon such terms and conditions as he may determine: . . . ,”9 Pursuant to this Act, he designated the Chairman (officially entitled the President) of the Board of Commissioners of the District of Columbia, the 9 The nature of the need was reflected in the original statement of the purpose of the Act. . . to enable the President, in the interest of public health, comfort, morals, safety, and welfare, to provide for the discontinuance of the use as dwellings of buildings situated in alleys and to eliminate the hidden communities in inhabited alleys of the District of Columbia, and to carry out the policy declared in the Act approved May 16, 1918, as amended, of caring for the alley population of the District of Columbia, the President is hereby authorized and empowered, ... — “(a) To purchase, or acquire by condemnation or gift, any land, buildings, or structures, or any interest therein, situated in or adjacent to any inhabited alley in the District of Columbia, ... 5 “(b) . . . to demolish, move, or alter any buildings or structures situated thereon and erect such buildings or structures thereon as deemed advisable: . . . ; “(c) To lease, rent, maintain, equip, manage, exchange, sell, or convey any such lands, buildings, or structures upon such terms and conditions as he may determine: . . . (Emphasis supplied.) 48 Stat. 930-931. See also, 52 Stat. 1186, D. C. Code (1940) § 5-103. UNITED STATES v. WITTEK. 355 346 Opinion of the Court. Executive Officer (later the Director) of the National Capital Park and Planning Commission and the Director of Housing of the Federal Emergency Administration of Public Works to carry out its purposes. He named the group The Alley Dwelling Authority.10 In 1938, he substituted the Architect of the Capitol for the third official constituting the Authority,11 and, in 1943, he changed its name to that of the National Capital Housing Authority.12 It is this presidentially designated Authority that has operated, for the United States, all of its low-rent housing projects in the District. It is this Authority that has fixed the rentals and passed upon the respective rights of tenants to occupy premises in those projects. Its composition, including two United States officials and the President of the Board of Commissioners of the District, demonstrates the incongruity of an attempt, such as is here suggested, to subject it to the control of the District’s Administrator of Rent Control, himself appointed by the Board of Commissioners of the District. The recognized responsibility of this Authority as a federal housing agency further appears from the fact that, in due course, it was chosen by the Government to be the operating lessee of more than 5,000 Government-owned, defensehousing, dwelling units, which were built by the United States in or near the District, including the Bellevue Houses. / * The issue before us does not turn upon what particular agency is operating the Bellevue Houses or the other Government-owned housing of the United States. The issue 10 Executive Order No. 6868, October 9, 1934 (published in Report of the National Capital Housing Authority for the Ten-Year Period 1934-1944, p. 3), and see Executive Order No. 8033, 3 C. F. R. Cum. Supp. 443. This was pursuant to the authorization contained in 48 Stat. 931, D. C. Code (1940) §5-104. 11 Executive Order No. 7784-A, 3 Fed. Reg. 51 (1938). 12 Executive Order No. 9344, 3 C. F. R. Cum. Supp. 1279. 837446 O—49---27 356 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. is whether the United States, through whatever agency it operates, is to be controlled in its rental policies by the District Administrator of Rent Control. In determining the meaning of the District of Columbia Emergency Rent Act, approved December 2, 1941, which created the District Administrator of Rent Control, it therefore is material to note that the United States, in 1941, already was acting as a landlord of much Government-owned housing in the District and that, in each instance, it had placed those operations in the control of a national or presidentially designated authority or official with authorization fitted to the particular and varied purposes of that housing. This fact is of crucial significance in connection with the low-rent housing in the District which had been in operation for several years. Its distinctly social welfare and relief purposes already were in the hands of The Alley Dwelling Authority. Beginning in 1934, The Alley Dwelling Authority built and put into operation five Government-owned, low-rent housing projects (including 112 dwelling units) and three commercial properties.13 In 1938, Title II was added to the District of Columbia Alley Dwelling Act, 52 Stat. 1188, D. C. Code (1940) § 5-112, et seq., and the Authority was designated also as a public housing agency to carry out the purposes of the United States Housing Act of 1937, 50 Stat. 888, et seq. See 42 U. S. C. (1940 ed.) § 1401, et seq. This enabled it to secure loans to build low-rent housing accommodations and its program promptly expanded. By the end of 1941 it had com- 13 For this and the other factual material relating to this Authority, see Report of the National Capital Housing Authority for the Ten-Year Period 1934-1944, submitted by it to the President December 28, 1944, and by him to Congress March 1, 1945, 91 Cong. Rec., Pt. 2, 1597 (1945). See also, the Annual Reports of this Authority to the President, all required by § 5 (a) and (b) of the District of Columbia Alley Dwelling Act, 48 Stat. 932, D. C. Code (1940) §5-107 (a) and (b). UNITED STATES v. WITTEK. 357 346 Opinion of the Court. pleted, under Title II, six more low-rent projects, including 1,613 dwelling units, and the Government’s brief in the instant case states that it is now managing, under that Title, 3,147 such dwellings. The character of these dwellings is plain from the definition of “low-rent housing” in the Housing Act.14 This was prewar, poor-relief, low-rent housing, rather than defense housing. These projects were subsidized. The rentals were keyed to the inadequacy of the income of the respective tenants. The rentals did not purport to equal the level of those fixed by free competition for comparable privately owned housing. It was an important feature of the operating policy of these projects that a tenant be dispossessed, or “graduated” as the Authority termed it, whenever that tenant’s financial needs no longer entitled him to the subsidized privileges. The inappropriateness of applying to such projects rentals based upon levels fixed by free competition as of January 1, 1941, under the District of Columbia Emergency Rent Act, is evident. That Act’s policy of rent control fostered the continuance of tenancies regardless of the financial status of the individual tenant. If applied to low-rent housing it would give vested rights to relief clients once installed, rather than to new clients in greater need. In the absence of an express statement by Congress, it is not conceivable that Congress, with its 14 “Sec. 2. When used in this Act— “(1) The term 'low-rent housing’ means decent, safe, and sanitary dwellings within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy, and stability, and embraces all necessary appurtenances thereto. The dwellings in low-rent housing as defined in this Act shall be available solely for families whose net income at the time of admission does not exceed five times the rental (including the value or cost to them of heat, light, water, and cooking fuel) of the dwellings to be furnished such families, except that in the case of families with three or more minor dependents, such ratio shall not exceed six to one.” (Emphasis supplied.) 50 Stat. 888, 42 U. S. C. (1940 ed.) § 1402 (1). 358 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. familiarity with these relief operations of the United States as the landlord of such low-rent, relief housing, would subject The Alley Dwelling Authority in the rental policy of such housing to the control of a local Administrator of Rent Control under an Act designed to meet the problems of employed war workers rather than the problems of indigent families, already wholly or partially dependent upon public support. Such a subjection, however, apparently would follow from the reasoning of the court below that the use by Congress of the general term “landlord,” in the District of Columbia Emergency Rent Act, must subject the United States, as the landlord of Government-owned, defense-housing accommodations, to the provisions of that Act. The District of Columbia Emergency Rent Act makes no distinction between the United States as a landlord of low-rent housing and as a landlord of defense housing. If the Act applies to the Bellevue Houses, it apparently may be applied equally to all of the activities of the United States as a landlord. Therefore, while the complaint in the instant case does not seek to dispossess a tenant of a Government-owned, low-rent housing unit, we note the warning of Government counsel that, if we hold that the District of Columbia Emergency Rent Act is applicable in the instant case, we soon may be compelled to hold it applicable also to the United States as the landlord of low-rent housing. II. The District of Columbia Emergency Rent Act does not apply to Government-owned, defense housing in the District, such as the Bellevue Houses. A. The Act contains no express reference to the United States as a landlord or to the application of the Act to Government-owned housing of any kind.15 A general 15 This contrasts with the language used by Congress about two months later in the rent control provisions of the National Emergency Price Control Act of 1942, 56 Stat. 24-26, 36-37. Congress there UNITED STATES v. WITTEK. 359 346 Opinion of the Court. statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect.16 The text, surrounding circumstances and legislative history of this District Act neither express nor imply a change in the authority already expressly included the United States in the definition of “person.” See p. 365, infra. The court below relies particularly upon the following definitions of “landlord” and “person” in the District of Columbia Emergency Rent Act as being sufficiently broad to include the United States when read in the light of the purposes of the Act: “Sec. 11. Definitions.—As used in this Act— “(g) The term ‘landlord’ includes an owner, lessor, sublessor, or other person entitled to receive rent for the use or occupancy of any housing accommodations. “(h) The term ‘person’ includes one or more individuals, firms, partnerships, corporations, or associations and any agent, trustee, receiver, assignee, or other representative thereof.” 55 Stat. 794-795, D. C. Code (1940, Supp. VI) § 45-1611 (g) and (h). 16 “. . . There is an old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect. It has been stated, in cases in which there were extraneous and affirmative reasons for believing that the sovereign should also be deemed subject to a restrictive statute, that this rule was a rule of construction only. Though that may be true, the rule has been invoked successfully in cases so closely similar to the present one, and the statement of the rule in those cases has been so explicit, that we are inclined to give it much weight here.” United States v. United Mine Workers, 330 U. S. 258,272-273. See also, United States v. Wyoming, 331 U. S. 440, 449; United States v. Stevenson, 215 U. S. 190, 197; United States n. American Bell Telephone Co., 159 U. S. 548, 554r-555; United States v. Herron, 20 Wall. 251,263. “The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him [the King of England] in the least, if they may tend to restrain or diminish any of his rights and interests. . . . The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different States, and prac- 360 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. vested in permanent federal agencies in their management of the Government-owned housing in the District. The District of Columbia Emergency Rent Act thus appears to have been enacted as a temporary measure supplementing, rather than superseding, the contribution already being made by the permanent federal housing authorities toward meeting the housing crisis. We find no evidence that Congress believed that the managers of any of its housing projects in the District would be “tempted ... to demand exorbitant rentals” or engage in the “rent-gouging practices . . .” against which the new Act was directed.17 It seems obvious that the need for District rent control was not in the operation of Government-owned housing, where the Federal Government already had complete control over the rentals, but was in the operation of privately owned housing, where neither the Federal nor District Government had any control. B. Government-owned, defense housing did not require the new rental control, in the District, that Congress imposed upon privately owned housing by the District of Columbia Emergency Rent Act. The increasing number of Government-owned, defense-housing units testified to the satisfaction of Congress and of the Administration with such projects. Rental rates in them were under complete governmental control. At the time of the enactment of the District of Columbia Emergency Rent Act, December 2, 1941, defense housing could be constructed in the District, and elsewhere, under § 201 of the Second Supplemental National Defense Appropriation Act, tically in the Federal courts. It may be considered as settled that so much of the royal prerogatives as belonged to the King in his capacity of parens patrice, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.” Dollar Savings Bank v. United States, 19 Wall. 227, 239. 17 See note 8, supra. UNITED STATES v. WITTEK. 361 346 Opinion of the Court. 1941, approved September 9, 1940, 54 Stat. 872, 883, or under the Lanham Act, approved October 14, 1940, 54 Stat. 1125.18 Bellevue Houses were built by the Navy under the first of those Acts. The rent control of defense housing under that Act was, in the first instance, expressly vested in the discretion of the Secretary of War or of the Navy, and the tenants were restricted to war workers.19 This provision was amended, June 28, 1941, so as to give to the agencies administering that housing the same powers and duties as had been given to the Federal Works Administrator as to defense housing constructed under the Lanham Act.20 The rental policy under the Lanham Act, 18 Supplemented by the Urgent Deficiency Appropriation Act, 1941, approved March 1, 1941, 55 Stat. 14, and amended by the Acts of April 29, 1941, 55 Stat. 147, and June 28, 1941, 55 Stat. 361, et seq. 19 “. . . in carrying out the purposes of this section the Secretary of War and the Secretary of the Navy may utilize such other agencies of the United States as they may determine upon: Provided further, That the Secretary of War and the Secretary of the Navy, at their discretion, are hereby authorized to rent such housing units, upon completion, to enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged, or to be engaged, in industries essential to the military and naval national defense programs, including work on ships under the control of the Maritime Commission. ...” § 201, Second Supplemental National Defense Appropriation Act, 1941, approved September 9, 1940, 54 Stat. 883-884. For comparable classification of eligible tenants under the Lanham Act, see §2, 54 Stat. 1126, as amended, 56 Stat. 11-12,42 U. S. C. (1946 ed.) § 1522. 20 “Sec. 5. The departments, agencies, or instrumentalities administering property acquired or constructed under section 201 of the Second Supplemental National Defense Appropriation Act, 1941, shall have the same powers and duties with respect to such property and with respect to the management, maintenance, operation, and administration thereof as are granted to the Federal Works Administrator with respect to property acquired or constructed under title I of such Act of October 14, 1940, and with respect to the management, maintenance, operation, and administration of such property so ac 362 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. at that time, provided: “That the [Federal IFor/cs] Administrator shall fix fair rentals, on projects developed pursuant to this Act, which shall be within the financial reach of persons engaged in national defense: . . . T (Emphasis supplied.) § 7, 54 Stat. 1127, renumbered § 304, 55 Stat. 363. This rental policy was thus expressly fitted to the purposes of the defense housing. Those purposes did not call for its further subordination to the control of a District Administrator of Rent Control under other statutory standards fitted to private landlords. This special defense-housing rental policy was further expressly emphasized by Congress in another amendment made applicable to the Lanham Act defense housing January 21, 1942.21 Therefore, whether or not these further provisions were also to be applicable to Bellevue Houses, which had been constructed under an earlier Act, they became applicable to the many Government-owned, defense-housing units constructed in the District under the Lanham Act. Congress thus evidenced its purpose to insist upon special standards of rentals for its defense housing. It is significant that it did so by Acts approved June 28, 1941, and January 21, 1942. One was enacted quired or constructed under such title.” (Emphasis supplied.) 55 Stat. 363. Title I of the Lanham Act, approved October 14, 1940, consisted of §§ 1-3, and in the Act of June 28, 1941, it was given the title “Defense Housing.” 55 Stat. 361. 21 “Sec. 6. The second proviso of section 304 of such [Lanham] Act, as amended, is amended to read as follows: ‘Provided further, That the [Federal Works] Administrator shall fix fair rentals, on projects developed pursuant to this [Lanham] Act, which shall be based on the value thereof as determined by him, with power during the emergency, in exceptional cases, to adjust the rent to the income of the persons to be housed, and that rentals to be charged for Army and Navy personnel shall be fixed by the War and Navy Departments:’.” (Emphasis supplied.) 56 Stat. 12, 42 U. S. C. (1946 ed.) § 1544. UNITED STATES v. WITTEK. 363 346 Opinion of the Court. before, and the other after, the enactment of the District of Columbia Emergency Rent Act on December 2, 1941. This emphasis was repeated on April 10, 1942, in a manner which demonstrated still further that Congress, in its consideration of the Lanham Act, had not overlooked the substantial extent to which that Act related to the construction of defense housing in the District of Columbia. On that date Congress amended the Lanham Act with special reference to operations in the District. It added Title IV. This authorized a $30,000,000 appropriation “to provide housing in or near the District of Columbia (including living quarters for single persons and for families) for employees of the United States whose duties are determined by the National Housing Administrator to be essential to national defense and to require them to reside in or near the District of Columbia.” 56 Stat. 212, 42 U. S. C. (1946 ed.) § 1561. The rental control provisions amended on January 21, 1942 (see note 21, supra), already were applicable to such housing. The very § 304 which contained those amended rental control provisions was further amended so as expressly to include the District of Columbia in the term “local municipalities” to which land could be conveyed for street or other public use incidental to a project. See 54 Stat. 1127, 55 Stat. 363, 56 Stat. 212, 42 U. S. C. (1946 ed.) § 1544.22 In the light of the foregoing express provisions for the control of rents in the public interest on Government-owned, defense-housing projects, there is no ground for implication that the District of Columbia Emergency Rent Act conflicts with it. 2 As evidencing a purpose that Government-owned, defense housing constructed under the Lanham Act likewise remain under the general civil and criminal jurisdiction of the respective states and of the District of Columbia, wherever such housing might be located, § 307 of the Lanham Act was amended by the Act of April 10, 1942, to include expressly the District of Columbia. See 54 Stat. 1127, 55 Stat. 363,56 Stat. 212,42 U. S. C. (1946 ed.) § 1547. 364 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. Ill, The National Emergency Price Control Act of 191$ emphasizes the conclusion that the District of Columbia Emergency Rent Act does not apply to Government-owned housing in the District. Although the National Emergency Price Control Act of 1942, approved January 30, 1942, expressly empowered the National Price Administrator, under certain limitations, to establish maximum rentals in so-called defenserental areas,23 he never did so in the District of Columbia. That Act, therefore, does not have a direct application to the issue in this case. However, the language of that Act and its policy toward the rent control of Government-owned, housing accommodations, both inside and outside of the District of Columbia, has a bearing upon the proper construction of the District of Columbia Emergency Rent Act. The National Act is not only consistent with our interpretation of the District Act but it lends support to that interpretation. The National Act left the control over rent to local authorities, except where the National Price Administrator found it necessary to intervene. The decision of the National Price Administrator not to intervene in the District of Columbia was an especial compliment to the existing controls, because the District of Columbia was a typical area calling for competent rent control and, in fact, had been declared by the statute itself to be a “defense-rental area § 302 (d), 56 Stat. 36, 50 U. S. C. App. (1946 ed.) § 942 (d). His satisfaction with the conditions in the District indicates that the local practice followed by the District Administrator of Rent Control, in not attempting to fix the rentals in Government-owned housing, had produced no conditions 23 §§ 2 (b) and 302 (d), 56 Stat. 25-26, and 36, 58 Stat. 633-634, 59 Stat. 306-307, 50 U. S. C. App. (1946 ed.) § 902 (b). UNITED STATES v. WITTEK. 365 346 Opinion of the Court. which seemed to the National Price Administrator to call for federal intervention. A still more significant point is that, if he had intervened, under the National Act, he, and not the District Administrator of Rent Control, would have been the one vested with control over the rental policy of the Government-owned, housing accommodations. In contrast to the omission, in the District of Columbia Emergency Rent Act, of any express reference to the United States as a landlord, the National Act expressly included the United States as a “person” to whom it applied.24 Thus, within two months after the omission of the United States from such a definition in the District of Columbia Emergency Rent Act, Congress demonstrated that, when it sought to include control of Government-owned housing under conditions where the established procedures and local controls might fail to meet the needs 24 It was made unlawful for “any person” to violate the Act or a regulation issued pursuant to the Act, § 4, 56 Stat. 28, 50 U. S. C. App. (1946 ed.) §904, and then “person” was defined as follows: “Sec. 302. As used in this Act— “(h) The term ‘person’ includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative of any of the foregoing, and includes the United States or any agency thereof, or any other government, or any of its political subdivisions, or any agency of any of the foregoing: Provided, That no punishment provided by this Act shall apply to the United States, or to any such government, political subdivision, or agency.” 56 Stat. 36-37, 50 U. S. C. App. (1946 ed.) §942 (h). The Act also provided: “Section 1. . . . “(c) The provisions of this Act shall be applicable to the United States, its Territories and possessions, and the District of Columbia.” 56 Stat. 23-24,50 U. S. C. App. (1946 ed.) § 901 (c). 366 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. of the times, it expressly said so. The same section provided that the punishments prescribed for private violators did not apply to the United States. The National Price Administrator, however, never published any regulations even potentially applicable to the District of Columbia. On the other hand, he did publish regulations stating his general policy as to Government-owned, housing accommodations elsewhere which might come under his control. Such regulations stated that, for housing constructed and owned by the United States, a state or any political subdivision of either, the maximum rents were to be those generally prevailing for comparable housing accommodations on the maximum rent date “as determined by the owner of such accommodations: . . . Similarly, for housing accommodations rented to Army or Navy personnel, including civilian employees of the War and Navy Departments, for which rent is fixed by the national rent schedule of the War or Navy Departments, the maximum rents were to be those established by such rent schedule.25 25 “Sec. 4. Maximum rents. Maximum rents . . . shall be: “(g) Housing owned and constructed by the government. For housing accommodations constructed by the United States or any agency thereof, or by a State of the United States or any of its political subdivisions, or any agency of the State or any of its political subdivisions, and owned by any of the foregoing, the rent generally prevailing in the Defense-Rental Area for comparable housing accommodations on the maximum rent date, as determined by the owner of such accommodations: Provided, however, That any corporation formed under the laws of a State shall not be considered an agency of the United States within the meaning of this paragraph. The Administrator may order a decrease in the maximum rent as provided in section 5 (c). “(h) Housing subject to rent schedule of War or Navy Department. For housing accommodations rented to either Army or Navy personnel, including civilian employees of the War and Navy Depart UNITED STATES v. WITTEK. 367 346 Opinion of the Court. Later, when Congress enacted the Housing and Rent Act of 1947, 61 Stat. 193-201, 50 U. S. C. App. (1946 ed., Supp. I) §§ 1881-1901, it expressly excluded the District of Columbia from the Act and struck out the previous express inclusion of the United States as a “person” subject to the Act.26 The effect of the National Emergency Price Control Act, therefore, is to emphasize, both in its form and its practical operation, that Congress did not seek by the District of Columbia Emergency Rent Act to place Government-owned housing under a local rent administrator. ments, for which the rent is fixed by the national rent schedule of the War or Navy Department, the rents established by such rent schedule.” 10 Fed. Reg. 13529-13530. For the exception of housing accommodations rented to Army or Navy personnel, including civilian employees of the War and Navy Departments, from provisions restricting removal of tenants, see §6 (c) (2), 10 Fed. Reg. 13534. 26 The Housing and Rent Act of 1947, 61 Stat. 193, 197, superseded the National Emergency Price Control Act of 1942. It provided: “Sec. 202. As used in this title [MAXIMUM RENTS]— “(a) The term ‘person’ includes an individual, corporation, partnership, association, or any other organized group of persons, or a legal successor or representative of any of the foregoing.” 61 Stat. 196,50 U. S. C. App. ( 1946 ed., Supp. I) § 1892 (a). “Sec. 209. . . . “(b) Notwithstanding any other provision of this Act, the United States or any State or local public agency may maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action or proceeding is authorized by the statute or regulations under which such accommodations are administered: . . . .” 61 Stat. 200-201, 50 U. S. C. App. (1946 ed., Supp. I) § 1899 (b). “Sec. 211. The provisions of this title [MAXIMUM RENTS] shall be applicable to the several States and to the Territories and possessions of the United States but shall not be applicable to the District of Columbia.” 61 Stat. 201, 50 U. S. C. App. (1946 ed., Supp. I) § 1901. 368 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. IV. The District Administrator of Rent Control has not taken part in this proceeding and there is no evidence before us that at any time he has sought to exercise jurisdiction over the United States as a landlord of either low-rent housing or defense housing. The District of Columbia Emergency Rent Act has been in effect since 1941 and the United States as landlord has owned and operated several thousand housing units in the District. There is nothing in the Rules and Regulations or the General Orders of the Office of the Administrator of Rent Control suggesting the application of the Act to the United States as a landlord of Government-owned housing. The absence of evidence of asserted control by the District official, coupled with the absence of complaint by the National Price Administrator during the life of the National Emergency Price Control Act, is thoroughly consistent with a widely accepted interpretation of the local Act in accordance with the conclusion which we have found to be fully justified by the language of Congress. The judgment accordingly is reversed and the cause is remanded to the Court of Appeals for the District of Columbia Circuit for further proceedings consistent with this opinion. It is so ordered. COMMISSIONER v. WODEHOUSE. 369 Syllabus. COMMISSIONER OF INTERNAL REVENUE v. WODEHOUSE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 84. Argued December 10, 13, 1948.—Decided June 13, 1949. Respondent, a nonresident alien not engaged in trade or business within the United States and not having an office or place of business therein, received in 1938 and 1941 from magazine and book publishers in the United States lump sum payments, in advance and in full, for the American serial and book rights to certain literary works of which he was the author and which were ready to be copyrighted. Held: 1. Under the Revenue Act of 1938 and the Internal Revenue Code as amended, the sums so received were includible in “gross income from sources within the United States,” as “rentals or royalties for the use of or for the privilege of using in the United States . . . copyrights . . . and other like property,” and were thus taxable to respondent. Pp. 371-374, 377-392. (a) Had the sums here involved been received in the taxable year 1934, they unquestionably would have been taxable to respondent under the Revenue Act of 1934; and they were not relieved from taxation by the amendments which were made by the Revenue Act of 1936 and which were still in effect in 1938 and 1941. Pp. 380-392. (b) The Revenue Act of 1936 preserved the taxability of the several kinds of income of nonresident alien individuals which had been the subject of withholding at their respective sources, including receipts in the nature of royalties for the use of copyrights in the United States. Pp. 386-392. (c) To have exempted nonresident aliens from these readily collectible taxes derived from sources within the United States would have discriminated in their favor against resident citizens of the United States who would be required to pay their regular income tax on such income, if treated as royalties within the meaning of the gross income provisions, or at least to pay a tax upon them as capital gains, if treated as income from sales of capital within the meaning of the capital gains provisions. No such purpose to discriminate can be implied. P. 391. 370 OCTOBER TERM, 1948. Counsel for Parties. 337U.S. (d) None of the provisions of the 1936 Act here involved were changed by the 1938 Act or the Internal Revenue Code, except as to the rates of tax; and the principal changes even in the rates were to provide higher taxes in the higher brackets, rather than to reduce the taxes on nonresident aliens. P. 392. 2. The fact that the amounts received for the use of or for the privilege of using the copyrights were lump sum payments, in advance and in full, did not exempt such income from taxation. Pp. 393-395. (a) Once it has been determined that the receipts of the respondent would have been required to be included in his gross income for federal income tax purposes if they had been received in annual payments, or from time to time, during the life of the respective copyrights, it is clear that the receipt of those same sums by him in single lump sums as payments in full, in advance, for the same rights to be enjoyed throughout the entire life of the respective copyrights cannot, solely by reason of the consolidation of the payment into one sum, render it tax exempt. P. 393. (b) The words “annual” and “periodical” in §§ 211 (a) and 143 (b) of the Revenue Act of 1938 and of the Internal Revenue Code, when taken in their context, and in the light of the legislative history of the Act and Code, and the interpretation of them by the Treasury Department and the lower courts, do not require a different result from that here reached. Pp. 393-394. 166 F. 2d 986, reversed. The Commissioner’s determination of deficiencies in a taxpayer’s income tax for 1938 and 1941 was sustained by the Tax Court. 8 T. C. 637. The Court of Appeals reversed. 166 F. 2d 986. This Court granted certiorari. 335 U. S. 807. Reversed and remanded, p. 395. Melva M. Graney argued the cause for petitioner. With her on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Lee A. Jackson. Watson Washburn argued the cause and filed a brief for respondent. COMMISSIONER v. WODEHOUSE. 371 369 Opinion of the Court. Mr. Justice Burton delivered the opinion of the Court. The question before us is whether certain sums received in 1938 and 1941, by the respondent, as a nonresident alien author not engaged in trade or business within the United States and not having an office or place of business therein, were required by the Revenue Acts of the United States to be included in his gross income for federal tax purposes. Each of these sums had been paid to him in advance and respectively for an exclusive serial or book right throughout the United States in relation to a specified original story written by him and ready to be copyrighted. The answer turns upon the meaning of “gross income from sources within the United States” as that term was used, limited and defined in § § 212 (a), 211 and 119 of the Revenue Act of 1938, and the Internal Revenue Code, as amended in 1940 and 1941.1 For the reasons hereinafter stated, we hold that these sums each came within those kinds of gross income from sources within the United States that were referred to in those Acts as “rentals or royalties for the use of or for the privilege of using in the United States . . . copyrights, . . . and other like property,”2 and that, accordingly, each of these sums was taxable under one or the other of those Acts. The respondent, Pelham G. Wodehouse, at the times material to this case, was a British subject residing in 1 The material provisions were identical in the Revenue Act of 1938, enacted May 28, 1938, c. 289, 52 Stat. 447, et seq., and in the Internal Revenue Code, enacted February 10, 1939, 53 Stat. 1, seq. Amendments to these provisions in 1940 and 1941 changed only the rates of the taxes. For text of the material provisions, see Appendix A, infra, pp. 395,397, following this opinion. 2 § 119 (a) (4), 52 Stat. 504, 53 Stat. 54, 26 U. S. C. § 119 (a) (4). For full text of the material provisions of § 119, see Appendix A, infra, p. 397. 837446 0—49-----28 372 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. France. He was a nonresident alien of the United States not engaged in trade or business within the United States and not having an office or place of business therein during either the taxable year 1938 or 1941. He was a writer of serials, plays, short stories and other literary works published in the United States in the Saturday Evening Post, Cosmopolitan Magazine and other periodicals. February 22, 1938, the Curtis Publishing Company (here called Curtis) accepted for publication in the Saturday Evening Post the respondent’s unpublished novel “The Silver Cow.” The story had been submitted to Curtis by the respondent’s literary agent, the Reynolds Agency, and, on that date, Curtis paid the agency $40,000 under an agreement reserving to Curtis the American serial rights in the story, including in such rights those in the United States, Canada and South America. The memorandum quoted in Appendix B, infra, p. 398, constituted the agreement. Also in 1938, the respondent received $5,000 from Doubleday, Doran & Company for the book rights in this story. The story was published serially in the Saturday Evening Post, July 9 to September 3, 1939. Pursuant to a like agreement, the respondent received $40,000 from Curtis, December 13, 1938, for serial rights in and to his story “Uncle Fred in the Springtime.” It was published serially in the Saturday Evening Post, April 22 to May 27, 1939. July 23, 1941, Hearst’s International Cosmopolitan Magazine, through the respondent’s same agent, paid the respondent $2,000 for “all American and Canadian serial rights (which include all American and Canadian magazine, digest, periodical and newspaper publishing rights)” to the respondent’s article entitled “My Years Behind Barbed Wire.” The agreement appears in Appendix C, COMMISSIONER v. WODEHOUSE. 373 369 Opinion of the Court. infra, p. 400. Apparently this story was published shortly thereafter. August 12, 1941, Curtis, through the same agent, paid the respondent $40,000 for the “North American (including Canadian) serial rights” to respondent’s novel entitled “Money in the Bank.” The agreement was in the form used by Curtis in 1938.3 The evidence does not state that this story was published but it shows that Curtis, pursuant to its agreements, took out a United States copyright on each of the respective stories named in the foregoing agreements. After each story’s serial publication, Curtis reassigned to the respondent, on the latter’s demand, all rights in and to the story excepting those rights which the respondent expressly had agreed that Curtis was to retain. The respective sums were thus paid to the respondent, in advance and in full, for the serial or book rights which he had made available. For United States income tax purposes, the respondent’s literary agent, or some other withholding agent, withheld from the respondent, or from his wife as his assignee, a part of each payment. In 1944 the Commissioner of Internal Revenue, petitioner herein, gave the respondent notice of tax deficiencies assessed against him for the taxable years 1923, 1924, 1938, 1940 and 1941. In these assessments, among other items, the Commissioner claimed deficiencies in the respondent’s income tax payments based upon his abovedescribed 1938 and 1941 receipts. The respondent, in a petition to the Tax Court for a redetermination of such deficiencies, not only contested the additional taxes assessed against him, which were based upon the full amounts of those receipts, but he asked also for the refund to him of the amounts which had been withheld, for 3 See Appendix B, infra, p. 398. 374 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. income tax purposes, from each such payment. The Tax Court entered judgment against him for additional taxes for 1938, 1940 and 1941, in the respective amounts of $11,806.71, $8,080.83 and $1,854.85. In speaking of the taxes for 1940 and 1941, the Tax Court said: “The first issue, found also in the year 1938, presents the question of the taxability of lump sum payments for serial rights to literary works. Counsel for the petitioner [Wodehouse, the respondent here] concedes that substantially the same issue was raised and decided in Sax Rohmer, 5 T. C. 183; affd., 153 Fed. (2d) 61; certiorari denied, 328 U. S. 862. “In Sax Rohmer, supra, we held that the lump sum payments for serial rights were royalties and, as such, were taxable to the recipient. The arguments advanced in the cases at bar follow the same pattern as those appearing in the Sax Rohmer case, as presented to this Court and to the Circuit Court of Appeals. The petitioner’s contentions were rejected in both courts and for the same reasons stated in the opinions therein, they are rejected here.” 8 T. C. 637, 653. As the respondent’s taxes for 1938 and 1941 had been paid to the Collector of Internal Revenue at Baltimore, Maryland, his petition for review of the Tax Court’s judgment for those years was filed in the United States Court of Appeals for the Fourth Circuit. The judgment against him was there reversed, 166 F. 2d 986, one judge dissenting on the authority and reasoning of Rohmer N. Commissioner, 153 F. 2d 61 (C. A. 2d Cir.). Because of the resulting conflict between the Circuits and also because comparable issues as to this respondent’s taxes for 1940 were pending before the Court of Appeals for COMMISSIONER v. WODEHOUSE. 375 369 Opinion of the Court. the Second Circuit, we granted certiorari. 335 U. S. 807.4 The petitioner contends that receipts of the type before us long have been recognized as rentals or royalties paid for the use of or for the privilege of using in the United States, patents, copyrights and other like property. Keeping in mind that, before 1936, such receipts were expressly subject to withholding as part of the taxable income of nonresident alien individuals, he contends that those receipts remained taxable and subject to withholding in 1938 and 1941, after the standards for taxation of such aliens had been made expressly coterminous with the standards for subjecting this part of their income to withholding procedures. In opposition, the respondent argues, first, that each sum he received was a payment made to him in return for his sale of a property interest in a copyright and not a payment to him of a royalty for rights granted by him under the protection of his copyright. Being the proceeds of a sale by him of such a property interest, he concludes that those proceeds were not required to be included in his taxable gross income because the controlling Revenue 4 As the court below held that the respondent’s 1938 and 1941 receipts were not subject to taxation, it did not reach the subsidiary issues which had been raised as to the proper amount of those taxes if they were sustained. Similarly, the court below did not pass upon the claim that certain of the assessments were subject to the three-year statute of limitations rather than the five-year statute here applied. See §275 (a) and (c), 52 Stat. 539, 53 Stat. 86, 26 U. S. C. § 275 (a) and (c). This claim turned upon the recognition to be given to certain assignments made by the respondent to his wife. Those assignments, if fully recognized, might have reduced the tax to be assessed against the respondent to an amount less than 25% of the amount originally stated by him in his return and thus rendered the five-year statute inapplicable. However, the effect of those assignments was not passed upon by the court below. 376 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. Acts did not attempt to tax nonresident alien individuals, like himself, upon income from sales of property. Secondly, the respondent argues that, even if his receipts were to be treated as royalties, yet each was received in a single lump sum and not “annually” or “periodically,” and that, therefore, they did not come within his taxable gross income. The petitioner replies that, in this case, we do not properly reach the fine questions of title, or of sales or copyright law, thus raised by the respondent as to the divisibility of a copyright or as to the sale of some interest in a copyright. The petitioner states that the issue here is one of statutory interpretation. It is confined primarily to the taxability of the respondent’s receipts within the broad, rather than narrow, language of certain Revenue Acts. Attention must be focused on those Revenue Acts. If their terms made these receipts taxable because of the general nature of the transactions out of which the receipts arise, namely, payments for the use of or for the privilege of using copyrights, then it is those statutory definitions, properly read in the light of their context and of their legislative history, that must determine the taxability of the receipts. He argues that the language of the Revenue Acts does not condition the right of the United States to its revenue upon any fine point of property law but covers these receipts in any event. Treating the respondent’s receipts simply as representing payments for the use of or the privilege of using copyrights the petitioner argues that they constituted income that was subject both to withholding and to taxation in 1938 and 1941. He claims finally that the respondent cannot escape taxation of such receipts merely by showing that each payment was received by him in a lump sum in advance for certain uses of a copyright, instead of in several payments to be made at intermediate dates during the life of the copyright. COMMISSIONER v. WODEHOUSE. 377 369 Opinion of the Court. I. Sums received by a nonresident alien individual for the use of a copyright in the United States constituted gross income taxable to him under the Revenue Act of 1938 and the Internal Revenue Code. Under the income tax laws of the United States, sums received by a nonresident alien author not engaged in trade or business within the United States and not having an office or place of business therein long have been required to be included in his gross income for our federal tax purposes. Such receipts have been an appropriate and readily collectible subject of taxation. A review of the statutes, regulations, administrative practices and court decisions discloses this policy and, at least from a revenue standpoint, no reason has appeared for changing it. Since the early days of our income tax levies, rentals and royalties paid for the use of or for the privilege of using in the United States, patents, copyrights and other like property have been taxed to nonresident aliens and for many years at least a part of the tax has been withheld at the source of the income. To exempt this type of income from taxation in 1938 or 1941, in the face of this long record of its taxation, would require a clearness and positiveness of legislative determination to change the established procedure that is entirely absent here. The policy of this Court in this general field of statutory interpretation was stated in 1934 in a case which dealt with the taxation of a somewhat comparable form of income of a foreign corporation. In Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, the question presented was that of the proper interpretation to be given to § 217 (a) (1) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 30 (analogous to § 119 (a) (1) of the Revenue Act of 1938, 52 Stat. 503, now before us). Certain sums 378 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. had been received by a foreign corporation from the United States Government in the form of interest upon a refund of an overpayment by that corporation of its income taxes. This Court held that such interest, in turn, constituted taxable gross income derived by the foreign corporation from a source within the United States, because it amounted to interest upon an interest-bearing obligation of a resident of the United States within the meaning of the Act. This interpretation was adopted in opposition to the foreign corporation’s argument that the payment should be exempted because it amounted to interest on one of the “obligations of the United States” and that interest on such an obligation was expressly exempted from taxation by §213 (b) (4) of the Revenue Act of 1926 (analogous to § 22 (b) (4) of the Revenue Act of 1938). This Court distinguished between the meaning of the word “obligations” in the context of the different sections of the Act and stated the applicable general principles of statutory construction as follows: “The general object of this act is to put money into the federal treasury; and there is manifest in the reach of its many provisions an intention on the part of Congress to bring about a generous attainment of that object by imposing a tax upon pretty much every sort of income subject to the federal power. Plainly, the payment in question constitutes income derived from a source within the United States; and the natural aim of Congress would be to reach it. In Irwin v. Gavit, 268 U. S. 161, 166, this court, rejecting the contention that certain payments there involved did not constitute income, said: ‘If these payments properly may be called income by the common understanding of that word and the statute has failed to hit them it has missed so much of the general purpose that it expresses at the start. Congress intended to use its power to the full extent. COMMISSIONER v. WODEHOUSE. 379 369 Opinion of the Court. Eisner n. Macomber, 252 U. S. 189, 203.’ Although Congress intended, as the court held in the Viscose case, supra [56 F. 2d 1033 (C. A. 3d Cir.)], to include interest on a tax refund made to a domestic corporation, we are asked to deny such intention in respect of a competing foreign corporation. But we see nothing in the relationship of a foreign corporation to the United States, or in any other circumstance called to our attention, which fairly shows that such a discrimination was within the contemplation of Congress. On the contrary, the natural conclusion is that if any discrimination had been intended it would have been made in favor of, and not against, the domestic corporation, which contributes in a much more substantial degree to the support of the people and government of the United States.” Id. at pp. 89-90. And further: “In the foregoing discussion, we have not been unmindful of the rule, frequently stated by this court, that taxing acts 'are not to be extended by implication beyond the clear import of the language used,’ and that doubts are to be resolved against the government and in favor of the taxpayer. The rule is a salutary one, but it does not apply here. The intention of the lawmaker controls in the construction of taxing acts as it does in the construction of other statutes, and that intention is to be ascertained, not by taking the word or clause in question from its setting and viewing it apart, but by considering it in connection with the context, the general purposes of the statute in which it is found, the occasion and circumstances of its use, and other appropriate tests for the ascertainment of the legislative will. Compare Rein v. Lane, L. R. 2 Q. B. Cases 144,151. The 380 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. intention being thus disclosed, it is enough that the word or clause is reasonably susceptible of a meaning consonant therewith, whatever might be its meaning in another and different connection. We are not at liberty to reject the meaning so established and adopt another lying outside the intention of the legislature, simply because the latter would release the taxpayer or bear less heavily against him. To do so would be not to resolve a doubt in his favor, but to say that the statute does not mean what it means.” Id. at pp. 93-94. A. These receipts unquestionably would have been taxed to a nonresident alien individual if received by him under the Revenue Act of 1934. The background and development of the particular provisions before us emphasize the congressional purpose to tax this type of income. They disclose the full familiarity of Congress with this general type of transaction. Throughout the history of our federal income taxes since the Sixteenth Amendment to our Constitution, the Revenue Acts have expressly subjected to taxation the income received by nonresident alien individuals from sources within the United States. For example, there is no doubt that the receipts here in question would have been taxable to the respondent if they had been received by him under the Revenue Act of 1934, c. 277, 48 Stat. 680, et seq., and the present issue resolves itself largely into a determination of whether such receipts were relieved from taxation by the Revenue Act of 1936, c. 690, 49 Stat. 1648, et seq., through certain changes in the income tax laws that were made by that Act and which were still in effect in 1938 and 1941. Under the Revenue Act of 1934, the income of a nonresident alien individual was taxed at the same rates as was the income of a resident citizen (§§11 and 12) but COMMISSIONER v. WODEHOUSE. 381 369 Opinion of the Court. his taxable gross income was limited wholly to that which he had received “from sources within the United States,” §211 (a).5 Such sources were described in § 119 of that Act, and the material portions of that Section have remained unchanged ever since. They give their own definition of rentals and royalties. These have been quoted from above and they are set forth in full in Appendix A, infra, p. 397. The Act of 1934 thus sought to include as taxable gross income any income which a nonresident alien individual received as royalties for the privilege of using any copyrights in the United States and also sought to tax his income from the sale of any personal property which he had produced (in whole or in part) outside the United States but had sold within the United States. § 119 (a) (4) and (e) (2). As a mechanism of collection, the Act also sought to withhold from nonresident alien individuals, at the source of payment, the entire normal tax of 4% computed upon numerous classifications of their income named in § 143 (b).6 “Supplement H—Nonresident Alien Individuals “SEC. 211. GROSS INCOME. “ (a) General Rule.—In the case of a nonresident alien individual gross income includes only the gross income from sources within the United States.” § 211 (a), 48 Stat. 735. 6 “SEC. 143. WITHHOLDING OF TAX AT SOURCE. “(a) Tax-Free Covenant Bonds.— . . . ‘(b) Nonresident Aliens.—All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of the United States, having the control, receipt, custody, disposal, or payment of interest (except interest on deposits with persons carrying on the banking business paid to persons not engaged in business in the United States and not having an office or place of business therein), r^nt, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, of any nonresident alien individual, °r of any partnership not engaged in trade or business within the 382 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. This language is important in this case. It expressly included certain forms of interest and also “rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, of any nonresident alien individual, . . . ” (Emphasis added.) While royalties were not mentioned specifically in this statutory withholding clause, they had been expressly listed in the Regulations, since long before 1934, so that there was no doubt that they were to be subject to withholding as a matter of interpretation. It was equally clear that income derived from a sale in the United States, of either real or personal property, was not included, either expressly or by implication or interpretation, in the income subject to a withholding of the tax on it at the source of the income. The Regulations, since the Act of 1924 (U. S. Treas. Reg. 65, Art. 362 (1924)) to the present time, have contained decisive statements on these points. Such Regulations have been substantially identical with the following which appeared in Treasury Regulations 86, Article 143-2 (1934): “Only fixed or determinable annual or periodical income is subject to withholding. The Act specifically includes in such income, interest, rent, salaries, wages, premiums, annuities, compensations, remunerations, and emoluments. But other kinds of income are included, as, for instance, royalties. . The income derived from the sale in the United States of property, whether real or personal, is not fixed or determinable annual or periodical income.” (Emphasis added.) United States and not having any office or place of business therein and composed in whole or in part of nonresident aliens, . . . deduct and withhold from such annual or periodical gains, profits, and income a tax equal to 4 per centum thereof: . . . (Emphasis added.) 48 Stat. 723-724. COMMISSIONER v. WODEHOUSE. 383 369 Opinion of the Court. Apart from these provisions requiring the withholding of taxes at the source of the income, the Revenue Acts have contained other provisions, in similar language, calling for the reporting to the Commissioner of Internal Revenue of material information as to certain income which might be taxable. This language has received an interpretation which is related to and consistent with that here given to the provisions as to withholding taxes.7 7 “SEC. 147. INFORMATION AT SOURCE. “(a) Payments of $1,000 or More.—All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, and employers, making payment to another person, of interest, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable gains, profits, and income ... of $1,000 or more in any taxable year, . . . shall render a true and accurate return to the Commissioner, under such regulations and in such form and manner and to such extent as may be prescribed by him with the approval of the Secretary, . . . ” (Emphasis added.) 48 Stat. 726. Treasury Regulation 86, under the Act of 1934, showed among other things, that this Section applied generally to fixed or determinable income, that royalties were included as fixed and determinable income and that information as to them was not required when such royalties did not exceed the taxpayer’s exemptions. Also, such information at the source was not required where the income had been withheld, at the source, from a nonresident alien individual and a report had been made to that effect. See, for example : “Art. 147-1. . . . Although to make necessary a return of information the income must be fixed or determinable, it need not be annual or periodical. . . .” “Art. 147-3. Cases where no return of information required.— Payments of the following character, although over $1,000, need not be reported in returns of information ... : “(h) Payments of salaries, rents, royalties, interest (except bond interest required to be reported on ownership certificates), and other fixed or determinable income aggregating less than $2,500 made to a married individual; . . . .” “Art. 147-5. Return of information as to payments to other than citizens or residents.—In the case of payments of fixed or determi 384 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. These statutes and Regulations show that, under the Act of 1934, Congress sought to tax (and withhold all or part of the tax on) the income of a nonresident alien individual insofar as it was derived from payments for the use of or for the privilege of using copyrights in the United States. It also sought to tax (although it could not generally withhold the tax on) any gain which the taxpayer derived from the sale of personal property produced by him without the United States but sold within the United States. Accordingly, if the receipts now before us had been received by the respondent under the Act of 1934, they would have been taxable whether they were treated as payments in the nature of royalties for the use of the copyrights under § 119 (a) or were treated as payments of a sale’s price for certain interests in copyrights under § 119 (e). The Regulations helpfully carried this analysis further. They showed that, while both forms of income were taxable, yet it was only the royalty payments (and not the sales’ proceeds) that were subject to the withholding procedure. A Treasury Decision made in 1933, under the Revenue Acts extending from 1921 to 1928,8 and a decision of the Court of Ap- nable annual or periodical income to nonresident aliens (individual or fiduciary), . . . the returns filed by withholding agents on Form 1042 [required by Art. 143-8] shall constitute and be treated as returns of information. (See sections 143 and 144.)” (Emphasis added.) 8 This opinion was rendered in response to a request to the Treasury for advice as to whether certain payments received during the years 1921 to 1928 by the taxpayer, a nonresident alien author, were taxable as income from sources within the United States. The payments were received pursuant to contracts granting certain volume, serial and motion picture rights in consideration of stipulated royalties payable in various ways. Some contracts prescribed a royalty on each copy sold, others a total stipulated sum, and, in at least one case, this sum was payable in several parts. The opinion reviewed the practice of many years and gave a positive answer to COMMISSIONER v. WODEHOUSE. 385 369 Opinion of the Court. peals for the Second Circuit made in 1938, under the Revenue Act of 1928, c. 852, 45 Stat. 791, sustain the above conclusions. The latter case was that of Sabatini v. Commissioner, 98 F. 2d 753 (C. A. 2d Cir.),9 later guide future practice. The answer was that all these receipts were taxable insofar as they came from sources within the United States. The opinion contained the following significant statements which indicate the administrative practice which had been applied and thereafter was to apply to these Sections: “The fact that a payment in the nature of a rent or royalty is in a lump sum rather than so much per annum, per unit of property, per performance, per book sold, or a certain percentage of the receipts or profits, does not alter the character of the payment as rent or royalty. (0. D. 1028, C. B. 5, 83; Appeal of J. M. & M. S. Browning Co., 6 B. T. A., 914, acquiescence C. B. VII-1, 5.) Nor is it material whether the royalty is paid in advance. (Appeal of Bloedel’s Jewelry, Inc., 2 B. T. A., 611.) It is accordingly the opinion of this office that the payments in question are ‘rentals or royalties from . . . [or] for the use of or for the privilege of using . . . copyrights . . . and other like property.’ Since the grant by the taxpayer in each instance is so clearly the grant of a particular right in all the rights constituting the taxpayer’s literary property and copyright, the conclusion is obvious that the grant is a license and not a sale. “The applicable Revenue Acts regard royalties from American copyrights (or for the use of or for the privilege of using in the United States copyrights and other like property) as income from sources within the United States, and royalties from foreign copyrights (or for the use of or for the privilege of using without the United States copyrights and other like property) as income from sources without the United States. Substantially all the income here in question constitutes royalties from, or for the use of, or for the privilege of using American copyrights.” I. T. 2735, XII-2 Cum. Bull. 131 (1933). 9 “The fact that one lump sum was received for the privilege of using the property of the author instead of a series of payments does not alter the real character of what the taxpayer received. It was payment for the use of his literary property for the purpose named and in so far as it was in payment for use in the United States was taxable as a royalty paid in advance and received for the granting of that privilege. While there seems to be no direct 386 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. discussed and approved in Rohmer v. Commissioner, 153 F. 2d 61, 63 (C. A. 2d Cir.). Incidentally, these opinions declared not only that the taxes in question were imposed upon the receipts as royalties but that it made no difference whether such royalties were each received in lump sums in full payment in advance, to cover the use of the respective copyrights throughout their statutory lives, or whether the royalties were received from time to time and in lesser sums. B. The Revenue Act of 1936 preserved the taxability of the several kinds of income of nonresident alien individuals which had been the subject of withholding at their respective sources, including receipts in the nature of royalties for the use of copyrights in the United States. The Revenue Act of 1936 did not change materially the statutory definition of gross income from sources within the United States under § 119. It did, however, amend § 211 (a)10 materially in its description of the authority for this view of the meaning of the statute, we believe it correct in principle and the order of the Board in this respect is reversed.” Id. at p. 755. This decision effectively supplements the Treasury Bulletin of 1933 and emphasizes the general language of the statute in taxing proceeds of the type of transaction that is before us. It reversed an intermediate holding made by the Board of Tax Appeals in 1935 in Sabatini v. Commissioner, 32 B. T. A. 705. That intermediate decision, accordingly, was in the process of review when the Revenue Act of 1936 was enacted and, therefore, it cannot be argued that Congress carried its interpretation into the Revenue Act of 1936. If anything, the contrary might be argued as to Sabatini v. Commissioner, 98 F. 2d 753 (C. A. 2d Cir.), which was decided before the enactment of the Internal Revenue Code. 10 “SEC. 211. TAX ON NONRESIDENT ALIEN INDIVIDUALS. “(a) No United States Business or Office.—There shall be levied, collected, and paid for each taxable year, in lieu of the tax imposed by sections 11 and 12, upon the amount received, by every COMMISSIONER v. WODEHOUSE. 387 369 Opinion of the Court. taxable income of nonresident alien individuals. These amendments (1) substituted a special flat rate of 10% for the general normal tax and surtax rates, (2) required this entire special tax, in the usual case, to be withheld at the source of the taxable income, (3) limited the taxability of the income of each nonresident alien individual to those kinds of income to which the withholding provisions also applied, and (4) (except for the addition of dividends) inserted verbatim, as a new statement of the types of taxable income of a nonresident alien individual (not engaged in trade or business within the United States and not having an office or place of business therein), the language that previously had been used to state the specific types of income to which the withholding procedure was to apply. See its § 143 (b)11 parnonresident alien individual not engaged in trade or business within the United States and not having an office or place of business therein, from sources within the United States as interest (except interest on deposits with persons carrying on the banking business), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, a tax of 10 per centum of such amount, . . . .” (Emphasis added.) 49 Stat. 1714. 11 “SEC. 143. WITHHOLDING OF TAX AT SOURCE. “(b) Nonresident Aliens.—All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of the United States, having the control, receipt, custody, disposal, or payment of interest (except interest on deposits with persons carrying on the banking business paid to persons not engaged in business in the United States and not having an office or place of business therein), dividends, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income (but only to the extent that any of the above items constitutes gross income from sources within the United States), of any nonresident alien individual, or of any 837446 0—49---29 388 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. alleling its amended § 211 (a). By thus restricting the income tax to those specific types of income to which the withholding procedure had previously applied, Congress automatically relieved nonresident alien individuals from the taxation of their income from certain sales of real or personal property, previously taxed. This Amendment, on the other hand, retained and increased the tax on the very kind of income that is before us. It also increased the portion of such income to be withheld at its source to meet the new and higher flat rate of tax. The legislative history of the Revenue Act of 1936 confirms the special meaning thus apparent on its face. It emphasizes the policy which expressly marked the enactment of this Act, including particularly these Amendments. The practical situation was that it had been difficult for United States tax officials to ascertain the taxable income (in the nature of capital gains) which had been derived from sales of property at a profit by nonresident alien individuals, or by foreign corporations, when the respective taxpayers were not engaged in trade or business within the United States and did not have an office or place of business therein. This difficulty was in contrast to the ease of computing and collecting a tax from certain other kinds of income, including payments for the use of patents and copyrights, from which the United States income taxes were being, wholly or partially, withheld at the source. The Congressional Committee Reports expressed a purpose of Congress to limit future taxes on partnership not engaged in trade or business within the United States and not having any office or place of business therein and composed in whole or in part of nonresident aliens, shall . . . deduct and withhold from such annual or periodical gains, profits, and income a tax equal to 10 per centum thereof, . . . .” (Emphasis added.) 49 Stat. 1700-1701. COMMISSIONER v. WODEHOUSE. 389 369 Opinion of the Court. nonresident alien individuals to those readily collectible.12 With a view evidently to securing substantially as much revenue as before, Congress thereupon applied a new flat rate of 10% to nonresident alien individuals and of 15% to foreign corporations, the entire amount of this flat rate of tax to be withheld and collected at the source of the income. The reports referred also to increases in stock “nonresident aliens and foreign corporations “It has also been necessary to recommend substantial changes in our present system of taxing nonresident aliens and foreign corporations. ... In section 211, it is proposed that the tax on a nonresident alien not engaged in a trade or business in the United States and not having an office or place of business therein, shall be at the rate of 10 percent on his gross income from interest, dividends, rents, wages, and salaries and other fixed and determinable income. This tax (in the usual case) is collected at the source by withholding as provided for in section 1^3. Such a nonresident will not be subject to the tax on capital gains, including gains from hedging transactions, as at present, it having been found impossible to effectually collect this latter tax. It is believed that this exemption from tax will result in additional revenue from the transfer taxes and from the income tax in the case of persons carrying on the brokerage business. . . . “. . . In the case of a foreign corporation not engaged in trade or business within the United States and not having an office or place of business therein, it is proposed to levy a flat rate of tax of 15 percent on the gross income of such corporation from interest, dividends, rents, salaries, wages, and other fixed and determinable income (not including capital gains). This tax is to be collected in the usual case by withholding at the source. . . . “It is believed that the proposed revision of our system of taxing nonresident aliens and foreign corporations will be productive of substantial amounts of additional revenue, since it replaces a theoretical system impractical of administration in a great number of cases.” (Emphasis added.) H. R. Rep. No. 2475, 74th Cong., 2d Sess. 9-10 (1936). To the same effect, see S. Rep. No. 2156, 74th Cong., 2d Sess. 21,23 (1936). 390 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. transfer taxes which might result from thus removing the income tax from profits of nonresident alien individuals on their stock sales. Congress recognized a value and a convenience in thus turning to the accessible, fixed and determinable income of nonresident aliens. There is no doubt that these steps sought to increase or at least to maintain the existing volume of revenue.13 No suggestion appears that Congress intended or wished to relieve from taxation the readily accessible and long-established source of revenue to be found in the payments made to 13 On the floor of the House, Representative Hill of Washington, of the Committee on Ways and Means, supporting these Amendments, said: “We have placed a flat tax of 10 percent on nonresident aliens, that is, people not citizens of the United States and not residing in the United States; and this 10-percent tax is withheld at the source. We expect to get considerably more revenue out of both nonresident aliens and foreign corporations having no place of business or not engaged in trade or business in this country, than we have been getting under the present plan, because we are going to withhold it at the source, and not take a chance on their making a report of it, or having to send our representatives to some foreign country to find what their net income is, and seek to induce them to pay their tax.” 80 Cong. Rec. 6005 (1936). On the floor of the Senate, Senator King of Utah, a member of the Finance Committee and in charge of the bill, said, in supporting these Amendments: “The House bill changes the method of taxing nonresident aliens and foreign corporations. A nonresident alien not engaged in a trade or business in the United States, or not having an office or place of business therein, is taxed at a flat rate of 10 percent on his income from interest, dividends, rents, wages, salaries, and other fixed or determinable income, which are collected at the source. . . . These nonresident aliens are exempted under the House bill from the tax on capital gains, including hedging transactions, it being found administratively almost impossible to collect the capital-gains tax in such cases. This exemption will result in increased revenue from transfer taxes, or from the income tax in the case of persons carrying on the brokerage business.” 80 Cong. Rec. 8650 (1936). COMMISSIONER v. WODEHOUSE. 391 369 Opinion of the Court, nonresident aliens for the use of patents or copyrights in the United States. Much less was any suggestion made that lump sum advance payments of rentals or royalties should be exempted from taxation while at the same time smaller repeated payments of rentals or royalties would be taxed and collected at the source of the income. To have exempted these nonresident aliens from these readily collectible taxes derived from sources within the United States would have discriminated in their favor against resident citizens of the United States who would be required to pay their regular income tax on such income, if treated as royalties within the meaning of our gross income provisions, or at least to pay a tax upon them as capital gains, if treated as income from sales of capital within the meaning of our capital gains provisions. No such purpose to discriminate can be implied. Accordingly, at the time in 1936 when these Amendments were being enacted into § 211 (a), the provisions for taxing the gross income of nonresident alien individuals under the Revenue Act of 1934 already had been long and officially interpreted as covering receipts from royalties as expressly and broadly defined in § 119 (a) and subjected to withholding at the source of income under § 143 (b). The legislative history of the 1936 Amendments is, therefore, a refutation of any claim that Congress, at that time, was seeking to exempt such taxpayers from those appropriate and readily collectible items. On the other hand, that history shows that Congress was seeking to continue to tax, and even to increase the tax upon, those kinds of income which had been found to be readily withholdable at their respective sources. Accordingly, what Congress did was to incorporate the very language of the withholding provisions of § 143 (b) into the language of the taxing § 211 (a). The Regulations under § 143 (b), quoted above substantially as being in effect since 1924, had already settled that roy- 392 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. alties were included in § 143 (b). The Treasury Bulletin also showed that lump sum payments made in advance for limited rights under copyrights were included in the “royalties” thus subject to withholding and taxation. The type of transactions and the kind of payments were thus identified. The broad language there used is entitled to be interpreted in accordance with its plain meaning and established usage. Therefore, after the 1936 Amendments, it became equally clear that these receipts in the nature of royalties which were previously withheld at their source were included in the sources of income specified in §211 (a) but that profits from sales of property were not included in the sources of income specified in §211 (a) any more than they had been under § 143 (a). The decisions of the Court of Appeals of the Second Circuit in Sabatini n. Commissioner, supra, in 1938, in relation to the Revenue Act of 1928, and in Rohmer v. Commissioner, supra, in 1946, in relation to the Internal Revenue Code, as amended in 1940, reflected the same point of view. None of these provisions of the Act of 1936 were changed by the Revenue Act of 1938, the Internal Revenue Code, or the 1940 or 1941 Amendments to that Code, except in relation to the size of the tax rates. The principal changes even in those rates were to provide higher taxes in the higher brackets, rather than to reduce the taxes on nonresident aliens.14 14 Particularly in the Revenue Act of 1938, §211 was amended to provide that, if the aggregate amount of a taxpayer’s income of the types included from sources within the United States was more than $21,600 during a taxable year, then the regular rate of tax imposed by §§11 and 12 became applicable, subject to the proviso that in no case it be less than 10% of the gross income subject to the tax. §211 (a) and (c), 52 Stat. 527-528, and see Appendix A, infra, p. 395. COMMISSIONER v. WODEHOUSE. 393 369 Opinion of the Court. II . The receipt of the respective amounts by the respondent in single lump sums as payments in full, in advance, for certain rights under the respective copyrights did not exempt those receipts from taxation. Once it has been determined that the receipts of the respondent would have been required to be included in his gross income for federal income tax purposes if they had been received in annual payments, or from time to time, during the life of the respective copyrights, it becomes equally clear that the receipt of those same sums by him in single lump sums as payments in full, in advance, for the same rights to be enjoyed throughout the entire life of the respective copyrights cannot, solely by reason of the consolidation of the payment into one sum, render it tax exempt. No Revenue Act can be interpreted to reach such a result in the absence of inescapably clear provisions to that effect. There are none such here. The argument for the exemption was suggested by the presence in § § 211 (a) and 143 (b) of the words “annual” and “periodical.” If read apart from their text and legislative history and supplemented by the gratuitous insertion after them of the word “payments,” they might support the limiting effect here argued for them. However, when taken in their context, and particularly in the light of the legislative history of those Acts, and the interpretation placed upon them by the Treasury Department and the lower courts, they have no such meaning. Those words are merely generally descriptive of the character of the gains, profits and income which arise out of such relationships as those which produce readily withholdable interest, rents, royalties and salaries, consisting wholly of income, especially in contrast to gains, profits 394 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. and income in the nature of capital gains from profitable sales of real or personal property.15 In the instant case, each copyright which was to be obtained had its full, original life of 28 years to run after the advance payment was received by the author covering the use of or the privilege of using certain rights under it. Fixed and determinable income, from a tax standpoint, may be received either in annual or other payments without altering in the least the need or the reasons for taxing such income or for withholding a part of it at its source. One advance payment to cover the entire 28-year period of a copyright comes within the reason and reach of the Revenue Acts as well as, or even better than, two or more partial payments of the same sum. Article 143-2 of Treasury Regulations 101, issued under the Revenue Act of 1938, provided: “The income need not be paid annually if it is paid periodically; that is to say, from time to time, whether or not at regular intervals. That the length of time during which the payments are to be made may be increased or diminished in accordance with someone’s will or with the happening of an event does not make the payments any the less determinable or periodical.” Substantially this liberal language in the Regulations has been used in this connection since 1918. (U. S. Treas. Reg. 45, Art. 362 (1918).) Single lump sum payments of royalties were held to be taxable under the Revenue Acts of 1921, 1924, 1926 and 1928, I. T. 2735, 15 “. . . While payment ordinarily is at a certain rate for each article or certain per cent of the gross sale, that in itself is not determinative. The purpose for which the payment is made and not the manner thereof is the determining factor.” Commissioner v. Affiliated Enterprises, 123 F. 2d 665, 668 (C. A. 10th Cir.). COMMISSIONER v. WODEHOUSE. 395 369 Opinion of the Court—Appendix A. XII-2 Cum. Bull. 131 (1933); under the Revenue Act of 1928, Sabatini v. Commissioner, supra; and under the Internal Revenue Code, as amended in 1940, Rohmer N. Commissioner, supra. For the foregoing reasons, we hold that the receipts in question were required to be included in the gross income of the respondent for federal income tax purposes. The judgment of the Court of Appeals accordingly is reversed and remanded for further proceedings consistent with this opinion. „ , , , , Reversed and remanded. Mr. Justice Douglas took no part in the consideration or decision of this case. [For dissenting opinion of Mr. Justice Frankfurter, joined by Mr. Justice Murphy and Mr. Justice Jack-son, see post, p. 401.] Appendix A. Material provisions of §§ 212 (a), 211 and 119 of the Revenue Act of 1938 and the Internal Revenue Code: “SEC. 212. GROSS INCOME. “(a) General Rule.—In the case of a nonresident alien individual gross income includes only the gross income from sources within the United States.” (Emphasis added.) 52 Stat. 528, and 53 Stat. 76,26 U. S. C. § 212 (a). “SEC. 211. TAX ON NONRESIDENT ALIEN INDIVIDUALS. “(a) No United States Business or Office.— “(1) General rule.—There shall be levied, collected, and paid for each taxable year, in lieu of the tax imposed by sections 11 and 12 [normal tax and surtax imposed generally upon individuals and applicable in the instant case, under paragraphs (a) (2) and (c), because the respondent’s gross income for each taxable year exceeded the allowable maximum there specified], upon the amount received, by every nonresident alien individual not engaged in trade or business within the United States and not having an office or place of business therein, from sources within the United States as interest (except interest on deposits 396 OCTOBER TERM, 1948. Opinion of the Court—Appendix A. 337 U. S. with persons carrying on the banking business), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, a tax of 10 per centum of such amount, .... “(2) Aggregate more than $21,600.—The tax imposed by paragraph (1) shall not apply to any individual if the aggregate amount received during the taxable year from the sources therein specified is more than $21,600. “(c) No United States Business or Office and Gross Income of More Than $21,600.—A nonresident alien individual not engaged in trade or business within the United States and not having an office or place of business therein who has a gross income for any taxable year of more than $21,600 from the sources specified in subsection (a) (1), shall be taxable without regard to the provisions of subsection (a) (1), except that— “(1) The gross income shall include only income from the sources specified in subsection (a) (1); “(2) The deductions (other than the so-called ‘charitable deduction’ provided in section 213 (c)) shall be allowed only if and to the extent that they are properly allocable to the gross income from the sources specified in subsection (a) (1); “(3) The aggregate of the normal tax and surtax under sections 11 and 12 shall, in no case, be less than 10 per centum of the gross income from the sources specified in subsection (a) (1); and . . . .” (Emphasis added.) 52 Stat. 527-528. The above provisions of §§ 212 and 211 were reenacted in the Internal Revenue Code, 53 Stat, 76, 75-76. The tax rates were changed by the Revenue Act of 1940, c. 419, 54 Stat. 516-517 as follows: the surtaxes were increased generally in § 12 (b), the flat rates were increased from 10% to 15% and the allowable maximum income subject to the flat rates was raised from $21,600 to $24,000 in §211 (a) and (c), 54 Stat. 518. The Revenue Act of 1941, c. 412, 55 Stat. 687, 688, again increased the surtaxes in § 12 (b), increased the flat rates from 15% to 27^% and decreased the allowable maximum income subject to the flat rates from $24,000 to $23,000 in §211 (a) and (c), 55 Stat. 694. Since then, the normal tax and surtax rates have been increased still further, the flat rate applicable to nonresident alien individuals has been increased from 27^2% 30% and the allowable maximum income to which the flat rates apply has been reduced to $15,400. 26 U. S. C. § 211 (a) and (c). COMMISSIONER v. WODEHOUSE. 397 369 Opinion of the Court—Appendix A. “SEC. 119. INCOME FROM SOURCES WITHIN UNITED STATES. “(a) Gross Income From Sources in United States.—The following items of gross income shall be treated as income from sources within the United States: “(1) Interest.— . . . “(2) Dividends.— . . . “(3) Personal services.— . . . “(4) Rentals and royalties.—Rentals or royalties from property located in the United States or from any interest in such property, including rentals or royalties for the use of or for the privilege of using in the United States, patents, copyrights, secret processes and formulas, good will, trade-marks, trade brands, franchises, and other like property; and “(5) Sale of real property.—Gains, profits, and income from the sale of real property located in the United States. “(6) Sale of personal property.—For gains, profits, and income from the sale of personal property, see subsection (e). “(b) Net Income From Sources in United States.—From the items of gross income specified in subsection (a) of this section there shall be deducted the expenses, losses, and other deductions properly apportioned or allocated thereto and a ratable part of any expenses, losses, or other deductions which can not definitely be allocated to some item or class of gross income. The remainder, if any, shall be included in full as net income from sources within the United States. “(c) Gross Income From Sources Without United States.— The following items of gross income shall be treated as income from sources without the United States: “(1) Interest other than that derived from sources within the United States as provided in subsection (a) (1) of this section; “(2) Dividends other than those derived from sources within the United States as provided in subsection (a) (2) of this section; “(3) Compensation for labor or personal services performed without the United States; “(4) Rentals or royalties from property located without the United States or from any interest in such property, including rentals or royalties for the use of or for the privilege of using without the United States, patents, copyrights, secret processes and formulas, good will, trade-marks, trade brands, franchises, and other like properties; and “(5) Gains, profits, and income from the sale of real property located without the United States. 398 OCTOBER TERM, 1948. Opinion of the Court—Appendix B. 337 U. S. “(d) Net Income From Sources Without United States.— . . . “(e) Income From Sources Partly Within and Partly Without United States.— . . . Gains, profits, and income from— “(1) transportation or other services rendered partly within and partly without the United States, or “(2) from the sale of personal property produced (in whole or in part) by the taxpayer within and sold without the United States, or produced (in whole or in part) by the taxpayer without and sold within the United States, shall be treated as derived partly from sources within and partly from sources without the United States. Gains, profits and income derived from the purchase of personal property within and its sale without the United States or from the purchase of personal property without and its sale within the United States, shall be treated as derived entirely from sources within the country in which sold, . . . . “(f) Definitions.— . . . .” (Emphasis added.) 52 Stat. 503-506, 53 Stat. 53-55,26 U. S. C. § 119. Appendix B. “THE CURTIS PUBLISHING COMPANY Independence Square Philadelphia February 22, 1938 “Paul R. Reynolds, & Son 599 Fifth Avenue New York City We inclose herewith our check Forty Thousand Dollars in payment for Serial: The Silver Cow By P. G. Wodehouse $40,000.00 “Important “This check is offered and accepted with the understanding that The Curtis Publishing Company buys all rights in and of all stories and special articles appearing in its publications and with the further understanding that every number of these publications in which any portion thereof shall appear shall be copyrighted at its expense. After publication in a Curtis periodical is completed it agrees to reassign to the author on demand all rights, except American (including Canadian and South American) serial rights. COMMISSIONER v. WODEHOUSE. 399 369 Opinion of the Court—Appendix B. “Motion Picture Rights • “Please note that our reservation of serial rights (which includes publication in one installment) includes new story versions based on motion-picture or dramatic scenarios of short stories and serials that have appeared in Curtis publications, and that we permit the use of such versions only under the following conditions: Such synopsis, scenario, or new story version shall not exceed fifteen hundred (1500) words in length when based on a short story appearing complete in one issue, or five thousand (5000) words when based on a serial appearing in two or more issues, or a series of not less than three connected short stories from which a single picture is to be made. Such synopsis shall appear only in circular matter, press books, press notices, trade journals and in magazines devoted exclusively to dramatic or motion-picture matter, and shall in no event appear as having been written by the author. When selling motion-picture or dramatic rights of matter, you must notify the producer to this effect, so that there may be no misunderstanding on his part and no infringement of our rights “THE CURTIS PUBLISHING COMPANY” Respondent’s exhibit containing the foregoing memorandum agreement also included the statement rendered and the checks issued by the agent to the respondent and to the respondent’s wife for $17,100 each, including the following: “March 3, 1938 “P. G. Wodehouse in account with Paul R. Reynolds & Son “Received from Saturday Evening Post for All American, Canadian & South American serial rights to The Silver Cow $40,000. Commission 5% 2,000. $38,000. U. S. Income Tax 10% 3,800. $34,200. Ethel Wodehouse share % 17,100. Draft herewith $17,100.” (Emphasis added.) 400 OCTOBER TERM, 1948. Opinion of the Court—Appendix C. 337 U. S. No issue is before us relating to the computation of the amount withheld or the division of the payments between the respondent and his wife. In the statements rendered by the agent as to the payments received for serial rights to “Uncle Fred in the Springtime,” the initial amount withheld was 10% of the full payment without deduction of the agent’s commission. Appendix C. “HEARST’S INTERNATIONAL COSMOPOLITAN Hearst Magazine Building Fifty-seventh Street and Eighth Avenue New York City July 23, 1941 Jul 24 1941 “Mr. Paul R. Reynolds, Sr. 599 Fifth Avenue New York City “Dear Mr. Reynolds: “This will confirm our purchase of the article entitled My Year Behind Barbed Wire by P. G. Wodehouse for Two Thousand Dollars ($2,000.00). We are buying all American and Canadian serial rights (which include all American and Canadian magazine, digest, periodical and newspaper publishing rights). “It is understood and agreed that the author, and you as his agent, will not use or permit the use of this article or any part or parts thereof (1) in any manner or for any purpose until thirty (30) days after magazine publication and (2) in connection with or as the basis for any motion and/or talking picture (s), radio broad-cast(s), television, dramatic production(s) or public performance(s) throughout the world unless the words ‘Based on (or taken from) literary material originally published in Cosmopolitan’ immediately precede or follow or otherwise accompany the title of any and all such motion and/or talking pictures, radio broadcasts, telecasts, dramatic productions or public performances. “Your signature hereon will constitute an agreement between us. “Sincerely yours, “FRANCES WHITING Frances Whiting COMMISSIONER v. WODEHOUSE. 401 369 Frankfurter, J., dissenting. “Accepted : Date :.................... “I am accepting the above letter on the condition that publication of this article can be released in England simultaneously with publication in Cosmopolitan Magazine (despite the wording of (1) in the second paragraph); with the further understanding that Cosmopolitan will permit no digest or newspaper publication of this article without the consent of the author or his agent in writing; and with the further condition that we receive payment not later than September 1, 1941.” (Emphasis added.) Mr. Justice Frankfurter, with whom Mr. Justice Murphy and Mr. Justice Jackson join, dissenting. In the exercise of its power “To promote the Progress of Science and useful Arts,” Congress, by granting copyrights, has created valuable property rights. See American Tobacco Co. v. Werckmeister, 207 U. S. 284; White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 18, 19. Because of a conflict between two Circuits we must now for the first time pass on the amenability to our revenue law of proceeds derived from the transfer of some of these interests. A ruling of the Treasury and a supporting decision of the Court of Appeals for the Second Circuit have made taxability turn on the notion that a copyright is indivisible. As a corollary it was assumed that a transfer of less than all the rights conferred by § 1 of the Copyright Law1 makes the transaction, regardless of the intent of the parties, a “mere license.” On that ground the Government has here pressed its claim of taxability. The Court of Appeals for the Fourth Circuit has rejected the notion of indivisibility and consequently found lump-sum payments by a purchaser of the exclusive serial publication rights not to be within § 211 X61 Stat. 652; 17 U. S. C. § 1. 402 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. (a) (1) (A) of the Internal Revenue Code. By the plain implication of its silence regarding the basis of the Government’s claim and of the decisions that have heretofore sustained it, this Court likewise rejects the notion of indivisibility while clinging to a conclusion hitherto entirely derived from it. The case calls for inquiry into the scheme of taxation of American income of alien copyright holders as well as review of administrative and judicial treatment of such income. To put this discussion in the perspective of concreteness, however, the facts out of which the controversy arises should first be stated. The transaction which produced the income found taxable by the Commissioner for the year 1941 is typical of the other transactions that yielded the proceeds claimed to be covered by § 211 (a) (1) (A) for the various tax years here involved.2 Wodehouse, the writer of popular stories and novels, a nonresident alien and “not engaged in trade or business within the United States,” transferred, on August 12, 1941, through his American literary agent, to the Curtis Publishing Company for $40,000 “all rights in and of all stories and special articles appearing in its publications” of a certain novel, entitled, “Money in the Bank.” The contract provided that, after publication in a Curtis magazine, Curtis was to reassign to Wodehouse “on demand all rights, except North American (including Canadian) serial rights.” The documents involved in each of the various transactions make clear beyond question that Curtis, as buyer, intended to secure, if legally possible, an absolute, exclusive, and irrevocable transfer 2 This particular year was selected because the Internal Revenue Code was then in effect, and this makes reference to the applicable statutory provisions easier. In 1941 Wodehouse also sold publication rights in an article to Hearst’s International Cosmopolitan Co. The transaction was, in effect, similar to the one described in the text. COMMISSIONER v. WODEHOUSE. 403 369 Frankfurter, J., dissenting. of the serial rights for all of North America, including Canada, and that Wodehouse, as transferor, intended to transfer, with no desire to retain any control whatsoever, all the North American serial rights of the novel. Indeed, to assure Curtis unqualified control, Wodehouse agreed to exercise other rights in a way to assure Curtis full protection and enjoyment in the serial publication rights.3 The Tax Court never questioned that these transactions were intended to be absolute transfers. Instead, it relied on Sax Rohmer, 5 T. C. 183, aff’d, 153 F. 2d 61 (C. A. 2d Cir.), which had held that an assignment of less than substantially all of the rights conferred by a copyright was necessarily only a license, and therefore that the proceeds received had to be regarded as for the use, rather than the sale, of the copyright. 8 T. C. 637. The Court of Appeals for the Fourth Circuit, upon full consideration of the Rohmer case, rejected its notion that there cannot be a sale of less than the whole, and, finding no barrier to the law’s recognition of the true nature of the transaction, namely irrevocable transfers of an interest 3The memorandum of acceptance provided in part: “Please note that our reservation of serial rights (which includes publication in one installment) includes new story versions based on motion-picture or dramatic scenarios of short stories and serials that have appeared in Curtis publications, and that we permit the use of such versions only under the following conditions: Such synopsis, scenario, or new story version shall not exceed fifteen hundred (1500) words in length when based on a short story appearing complete in one issue, or five thousand (5000) words when based on a serial appearing in two or more issues, or a series of not less than three connected short stories from which a single picture is to be made. Such synopsis shall appear only in circular matter, press books, press notices, trade journals and in magazines devoted exclusively to dramatic or motion-picture matter, and shall in no event appear as having been written by the author. When selling motionpicture or dramatic rights of matter, you must notify the producer to this effect, so that there may be no misunderstanding on his part and no infringement of our rights.” 837446 0—49------------30 404 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. in personal property, reversed the Tax Court. 166 F. 2d 986 (C. A. 4th Cir.) (one judge dissenting). This Court now reverses the Court of Appeals without facing the question which the Treasury, the Tax Court, and the two Courts of Appeals deemed controlling on each occasion when the problem was presented. Instead, the Court appears to be guided, in however low a key that consideration is pitched, in construing the applicable provisions of the Internal Revenue Code by the urgent need for revenue. To let this need determine judicial construction of the Internal Revenue Code would largely dispense with explicitness and technical precision in revenue measures. “Long prior practice” is invoked to support the fiscal considerations. This reliance is illusory. It completely ignores that the practice of which we have been advised is tenuous and, in any event, rests solely on the notion of the indivisibility of copyrights. To derive the existence of a practice from a single pronouncement by the Treasury, constituting not the formulation of a fiscal policy but expressing a metaphysical view of copyright law not adopted by this Court, gives a very loose meaning to the word “practice.” 1. The Commissioner here determined a deficiency and the Tax Court sustained the deficiency under § 211 (c) (I).4 That section deals with gross incomes of more than $24,000 received by nonresident aliens “not engaged 4 “SEC. 211. TAX ON NONRESIDENT ALIEN INDIVIDUALS. “(c) No United States Business or Office and Gross Income of More Than $24,000.—A nonresident alien individual not engaged in trade or business within the United States and not having an office or place of business therein who has a gross income for any taxable year of more than $24,000 from the sources specified in subsection (a) (1), shall be taxable without regard to the provisions of subsection (a) (1), except that— “(1) The gross income shall include only income from the sources specified in subsection (a) (1) ... .” 53 Stat. 75, 76, 54 Stat. 518. COMMISSIONER v. WODEHOUSE. 405 369 Frankfurter, J., dissenting. in trade or business within the United States.” 26 U. S. C. § 211 (c) (1) (1941). For the sources of taxable gross income it refers to § 211 (a) (1) (A), which specifically deals with the taxation of nonresident aliens like Wodehouse.5 The authority under which the tax was here levied provides: “There shall be levied, collected, and paid [a tax on] ... the amount received . . . from sources within the United States as . . . other fixed or determinable annual or periodical gains, profits, and income ...” 26 U. S. C. § 211 (a) (1) (A). 2. The Court draws on § 119 (a) (4) to support the tax.6 But proceeds within § 119 (a) cannot be considered 5 The subsection reads as follows: “SEC. 211. TAX ON NONRESIDENT ALIEN INDIVIDUALS. “(a) No United States Business or Office.— “(1) General rule.— “(A) Imposition of tax.—There shall be levied, collected, and paid for each taxable year, in lieu of the tax imposed by sections 11 and 12, upon the amount received, by every nonresident alien individual not engaged in trade or business within the United States and not having an office or place of business therein, from sources within the United States as interest (except interest on deposits with persons carrying on the banking business), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, a tax of 15 per centum of such amount. . . .” 53 Stat. 75, 54 Stat. 518. 6 “SEC. 119. INCOME FROM SOURCES WITHIN UNITED STATES. “(a) Gross Income From Sources in United States.—The following items of gross income shall be treated as income from sources within the United States: “(4) Rentals and Royalties.—Rentals or royalties from property located in the United States or from any interest in such property, including rentals or royalties for the use of or for the privilege of using in the United States, patents, copyrights, secret processes and formulas, good will, trade-marks, trade brands, franchises, and other like property . . . .” 53 Stat. 53, 54, 26 U. S. C. § 119 (a) (4). 406 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. within §211 (a) (1) (A) unless the definition of § 211 (a) (1) (A) is also satisfied, that is, unless the proceeds are “fixed or determinable annual or periodical income.” Cf. U. S. Treas. Reg. Ill, § 29.143-2. The subsections of §119 (a) serve merely to define what proceeds are to be deemed localized in the United States for ta& purposes; they settle only the geographic question; § 119 (a) is not a tax-imposing provision; other sections of the Code serve that function. 3. An analysis of the relevant provisions, in light of the changes made in 1936, makes this perfectly clear. Until 1936, the tax-imposing provisions were coterminous with the provisions of § 119 (a) in defining the taxable gross income of a nonresident alien. This was so because taxability was limited only by § 211 (a) of the Revenue Act of 1934 which provided that “In the case of a nonresident alien individual gross income includes only the gross income from sources within the United States.” 48 Stat. 735. Supplement H of the Revenue Act of 1934 provided for deductions and credits (§§ 212-215, 48 Stat. 736-737), but there was no other provision further defining or limiting the type of receipts to be included in gross income. See 48 Stat. 735-737, 684. Thus, whatever was gross income from a source within the United States was taxed. By the Revenue Act of 1936, Congress changed the scheme of taxing nonresident aliens. 49 Stat. 1714; see 8 Mertens, The Law of Federal Income Taxation, §45.16, et seq. (1942). For those who have a place of business in the United States it retained the system of taxing all proceeds from sources within the United States. Revenue Act of 1936, § 211 (b), 49 Stat. 1714. As to such aliens the provisions of § 119 continued to determine what receipts were to be included. And that has remained the law. 26 U. S. C. § 211 (b). But as to those who are “not engaged in trade or business within the United States,” the only type of proceeds to be taxed were COMMISSIONER v. WODEHOUSE. 407 369 Frankfurter, J., dissenting. those which were attributable to sources within the United States but only if there were “fixed or determinable annual or periodical gains, profits, and income.” Such has remained the law and controls this case. (Compare 26 U. S. C. §211 (a) (1) (A), the applicable provision when the nonresident alien is not engaged in trade or business within the United States, with 26 U. S. C. § 211 (b), the section applicable when the nonresident alien has a place of business in the United States.) The specifically defined receipts—fixed or determinable annual or periodical gains, profits, or income—are not words giving rise to an exemption, and as such to be strictly construed. They are the controlling basis for taxation. To be taxable under §211 (a) (1) (A) the proceeds must be from sources within the United States, as set forth in § 119 (a), but also of the nature defined in §211 (a) (1) (A). See54YaleL. J. 879,881-882 (1945); 48 Col. L. Rev. 967 (1948); cf. U. S. Treas. Reg. Ill, § 29.143-2. Since the reach of § 211 (a) (1) (A) does not include the proceeds from a sale, receipts from a sale are not taxable even though such proceeds are from a source within the United States and, as such, are listed in § 119 (a) (5)-(6). The Regulations have made this explicit. U. S. Treas. Reg. Ill, §§29.211-7, 29.143-2; see also S. Rep. No. 2156, 74th Cong., 2d Sess., p. 21 (1936); H. R. Rep. No. 2475, 74th Cong., 2d Sess., pp. 9-10 (1936). The changes made in 1936 in the method of taxing income of a nonresident alien “not engaged in trade or business within the United States” make the taxing provisions coterminous, not with § 119 (a), but with § 143 (b), the section providing for withholding taxes at the source. Section 143 (b) emphasizes that proceeds within §119 (a) do not come within the scope of § 143 (b) unless the additional qualification contained in § 143 (b) is also met. Section 143 (b) provides that the tax should be withheld on income which is “fixed or determinable an- 408 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. nual or periodical gains, profits, and income (but only to the extent that any of the above items constitutes gross income from sources within the United States) . . . 26 U. S. C. § 143 (b). Here again, since “the income derived from the sale in the United States of property, whether real or personal, is not fixed or determinable annual or periodical income,” it is not included. U. S. Treas. Reg. Ill, § 29.143-2. Only by not observing the requirement that the proceeds must not only be from a source in the United States but also “annual or periodical” to be subject either to withholding under § 143 (b), or to taxation under § 211 (a) (1) (A), can it be said that proceeds which prior to 1936 were held to be under §119 (a) (4) are ipso facto within § 211 (a) (1) (A) after 1936 regardless of the nature of the revenue. Therefore, inquiry which seeks to discover prior practice as an aid to construction should properly address itself to whether such proceeds were withheld under § 143 (b) before 1936. Inquiry as to § 119 (a) is completely irrelevant because it is clear that before 1936 many items were included in § 119 (a) which were not withheld under § 143 (b). Since 1936 the only proceeds which are taxed to a nonresident alien not engaged in a trade or business in the United States are those which are “fixed or determinable annual or periodical gains, profits, and income,” which is the only type of proceeds on which taxes were withheld at the source before as well as after 1936. Therefore Treasury practice regarding the withholding requirement prior to the 1936 legislation would be relevant. There is a total absence of any showing that the Treasury before 1936 regarded such proceeds subject to withholding under § 143 (b). And in the analogous situation of lump-sum payments for the absolute transfer of some but not all of the exclusive rights conferred by the patent law, courts have held such proceeds not subject to withholding under § 143 (b). Gen- COMMISSIONER v. WODEHOUSE. 409 369 Frankfurter, J., dissenting. eral Aniline & Film Corp. v. Commissioner, 139 F. 2d 759 (C. A. 2d Cir.); cf. Commissioner v. Celanese Corp., 78 U. S. App. D. C. 292, 140 F. 2d 339. The Regulations, to be sure, give “royalties” as an example of proceeds which are within the phrase “fixed or determinable annual or periodical gains, profits, and income.” See U. S. Treas. Reg. Ill, § 29.211-7. But proceeds sought to be brought within the term “royalties” must be of a nature which justifies that classification. Royalties are within the section only because they meet the above description. It completely ignores the intrinsic character of “royalties,” and therefore the basis of including them in the larger category of “fixed or determinable annual or periodical gains, profits, and income,” to infer that proceeds which do not meet that description but result from the use of another method of realizing economic gain from a property right—that of sale rather than a license producing a recurring income—are also “royalties.” See 48 Col. L. Rev. 967, 969 (1948). By such reasoning proceeds from the sale of a house would also be within § 211 (a) (1) (A) because another way that the owner could have realized gain on the property would have been to have leased it over its lifetime.7 Free judicial rendering of needlessly imprecise legislation is sufficiently undesirable in that it encourages Congress to be indifferent to the duty of giving laws attainable definiteness. Here we are dealing with legislation that is precise. Yet the Court chooses not to give it effect and it does so on the basis of fiscal considerations which Congress, by what it enacted, chose not to write into law. 7Rent is specifically included within §211 (a) (1) (A); proceeds from the sale of real property, however, are excluded. U. S. Treas. Reg. Ill, §29.211-7. 410 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. It must be remembered that the problem here is not to determine what is income in either a constitutional or an economic sense. The proceeds from the sale of a house over and above its cost to the seller are as much income as is a judge’s salary. Nor is the problem one of determining whether something which is usually regarded as income is to escape a tax because the parties by agreement act in such a way as to cause the proceeds to be received in a different manner. Cf. Lyeth v. Hoey, 305 U. S. 188. There is no suggestion that the transaction as it appears on the surface was not the transaction in truth. The fact that the incidences of income taxation may have been taken into account by arranging matters one way rather than another so long as the way chosen was the way the law allows, does not make a transaction something else than it truly is—it does not turn a sale into a license. Helvering v. Gregory, 69 F. 2d 809, 810 (C. A. 2d Cir.). Therefore, the principle of tax evasion is irrelevant to the disposition of this case, except on the assumption that Congress itself evaded its own tax purposes and that the Court must close what Congress left open. It is taking too much liberty even with tax provisions to read out a defining clause that Congress has written in merely because Congress permitted desirable revenue to escape the tax collector’s net. The only judicial problem is whether the proceeds constitute a type of income which Congress has designated as taxable. That type must have the characteristic of being “fixed or determinable annual or periodical gains, profits, and income.” A lump-sum payment for an exclusive property right, transferable and transferred by the taxpayer, simply does not meet that qualification. Unless there is something inherent in the copyright law to prevent it, such a transaction is the familiar “sale of personal property.” U. S. Treas. Reg. Ill, § 29.211-7. Surely it is a sale of a capital asset. See Learned Hand, J., in Goldsmith v. Com- COMMISSIONER v. WODEHOUSE. 411 369 Frankfurter, J., dissenting. missioner, 143 F. 2d 466, 467 (C. A. 2d Cir.). As such it is not subject to the tax. The legislative history leaves no doubt on this point.8 4. So far it has been assumed that these proceeds would be within § 119 (a) (4). But neither this Court nor Congress has ever said so; indeed no court other than the Court of Appeals for the Second Circuit, and the Tax Court (but only after its contrary determination was reversed by the Court of Appeals for the Second Circuit) has said so. But it is urged that a “long prior practice” of including under § 119 (a) (4) proceeds received as lump-sum payments for the absolute transfer of some but not all of the rights conferred by the copyright law, and therefore taxing them to nonresident aliens under the prior statute, prevents this Court from applying §211 (a) (1) (A) according to the fair meaning of its own terms. It is suggested that, no matter what Congress has written on the statute books, it is to be assumed that Congress would not give up a source of revenue it had once tapped. This suggestion is made despite the fact that Congress said that it was changing the method of taxing the income of nonresident aliens and that it also said that certain items, previously taxed, would now be exempt. S. Rep. No. 2156, 74th Cong., 2d Sess., p. 21 (1936); H. R. Rep. No. 2475, 74th Cong., 2d Sess., pp. 9-10 (1936). What is this long prior practice that has encrusted the phrase, “royalties for the use of or for the privilege of using in the United States, patents, copyrights . . . and other like property,” with a meaning that contradicts its own terms not otherwise defined by 8 The Reports in both the House and Senate say specifically that a result of §211 (a) (1) (A) is that “such a nonresident alien will not be subject to the tax on capital gains . . . .” S. Rep. No. 2156, 74th Cong., 2d Sess., p. 21 (1936); H. R. Rep. No. 2475, 74th Cong., 2d Sess., pp. 9-10 (1936); see Fulda, Copyright Assignments and the Capital Gains Tax, 58 Yale L. J. 245, 259, 260-266 (1949). 412 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. Congress, yet precludes this Court from construing it according to the obvious purport of familiar words? Section 119 (a) (4), or a provision with similar phrasing, has been part of the Revenue Laws since 1921. See Revenue Act of 1921, § 217 (a) (4), 42 Stat. 244. Soon after its enactment the Bureau ruled that receipts from the absolute transfer by a nonresident alien of the rights to serial publication in the United States of certain literary works were not derived from a source in the United States. The reason given was that the transaction did not constitute a license for use, but a sale. 0. D. 988, 5 Cum. Bull. 117 (1921); see also I. T. 2169, IV-1 Cum. Bull. 13 (1925) (sale of motion-picture right to play deemed a sale of a capital asset). The ruling prevailed through the subsequent reenactment of the phrasing in § 119 (a) (4) in 1924, 1926, 1928, and 1932, see 43 Stat. 273; 44 Stat. 30; 45 Stat. 826, 827; 47 Stat. 208, 209. In 1933 the Bureau made a contrary ruling which expressly revoked the one made in 1921. But the facts on which the Bureau took this action are important. The taxpayer had received the income in question pursuant to contracts with a number of publishers and producers under which he had granted serial rights in books already written, reserving a “stipulated royalty per copy sold.” The Bureau characterized all but one of these contracts as requiring “stipulated sums ... to be paid to him as royalties.” Moreover, in some of these contracts yearly licenses were granted, renewable at the taxpayer’s option, with stipulated royalties per copy. In one contract a company was granted first American and Canadian serial rights in the taxpayer’s exclusive output of both long and short stories for which the company was to pay a stipulated sum of money, and in another contract the taxpayer granted motion-picture rights throughout the world, the consideration to be paid in installments. The Bureau ruled that these proceeds were within COMMISSIONER v. WODEHOUSE. 413 369 Frankfurter, J., dissenting. the phrase . royalties from . . . [or] for the use of or for the privilege of using in the United States . . . copyrights . . . .” 26 U. S. C. § 119 (a) (4). The reasoning on which this conclusion was based deserves attention.9 This is the crux of it: “The taxpayer in these contracts granted the publishers and producers licenses to use in particular 9 “In 13 Corpus Juris (1094-1095) it is stated that a copyright is an indivisible thing and can not be split up and partially assigned, either as to time, place, or particular rights or privileges, less than the sum of all the rights comprehended in the copyright; that exclusive rights may, however, be granted, limited as to time, place, or extent of privileges which the grantee may enjoy; and that the better view is that such limited grants operate merely as licenses and not as technical assignments, although often spoken of as assignments. [Citing two lower court cases having to do with procedural questions.] “It is apparent from the facts in this case that in no instance did the taxpayer assign his literary property in its entirety or his copyright therein, or his indivisible rights therein in granting the serial, the volume, the book, the second serial, the dramatic or motion picture rights to the various contracting parties. The taxpayer in these contracts granted the publishers and producers licenses to use in particular ways his literary property and his copyright therein, and exacted from them certain payments for that use. These were not, and could not be, contracts of sales; they were in fact contracts of license, and the payments for such licenses constituted rentals or royalties subject to tax as such. . . . “. . . Since the grant by the taxpayer in each instance is so clearly the grant of a particular right in all the rights constituting the taxpayer’s literary property and copyright, the conclusion is obvious that the grant is a license and not a sale. “In Office Decision 988, supra, a grant of all rights of serial publication in the United States in certain literary works was through error said to be a sale. Such a grant could only be a license. Office Decision 988 is accordingly revoked. “In I. T. 1231, supra, it was stated that there was a sale of serial rights of publication. Since it is held that such a grant could only be a license, I. T. 1231 is modified to accord with the views herein expressed.” I. T. 2735, XII-2, Cum. Bull. 131, 134-35 (1933). 414 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. ways his literary property and his copyright therein, and exacted from them certain payments for that use. These were not, and could not be, contracts of sales; they were in fact contracts of license, and the payments for such licenses constituted rentals or royalties subject to tax as such. . . . “. . . Since the grant by the taxpayer in each instance is so clearly the grant of a particular right in all the rights constituting the taxpayer’s literary property and copyright, the conclusion is obvious that the grant is a license and not a sale. “In Office Decision 988, supra, a grant of all rights of serial publication in the United States in certain literary works was through error said to be a sale. Such a grant could only be a license. Office Decision 988 is accordingly revoked.” I. T. 2735, XII-2, Cum. Bull. 131, 135 (1933). Thus it is seen that on the Bureau’s earlier construction that the Copyright Law permitted a sale, such proceeds were excluded. 0. D. 988, 5 Cum. Bull. 117 (1921). After twelve years the Bureau decided that, as a matter of Copyright Law and not by way of formulating a fiscal policy, there could be no sale of serial rights and that such a transaction had to be treated as a license, periodically producing income. Plainly the Bureau was not interpreting tax law but copyright law. Deference no doubt is due to an administrative body’s interpretation of law dealing with its specialty—particularly to interpretations by those whose task it is to administer the Revenue Laws. But the Bureau’s expertness does not extend to the Copyright Law. Such matters do not involve the subtleties of tax concepts. The determination rather is like that of a question of common law, and such questions have never been thought to be of a type as to which any degree of finality was given to the ad- COMMISSIONER v. WODEHOUSE. 415 369 Frankfurter, J., dissenting. ministrative view. Cf. Trust of Bingham v. Commissioner, 325 U. S. 365, 377, 381. Under these circumstances the Bureau’s determination has little weight, and certainly does not bar this Court from properly construing the Copyright Law, especially where Congress had thoroughly overhauled the tax provisions pertaining to nonresident aliens less than three years after the Bureau ruling was made. As one swallow does not make a summer, this one ruling hardly establishes a practice, and certainly does not disclose a consistency which deserves to be called “long.” Balanced against this one Bureau decision, such as it is, is the significant fact that at the crucial time—in 1936, when Congress devised the present scheme of taxing nonresident aliens—a more authoritative decision was explicitly to the contrary. This was the holding of the Board of Tax Appeals in Rafael Sabatini, 32 B. T. A. 7O5.10 In the Sabatini case the Board held that the lump-sum payments received for exclusive world motionpicture rights were not within § 119 (a) (4). About such proceeds it said: “The situation respecting the granting of motion picture rights is quite different from the other rights 10 In the Sabatini case the transfer of the motion-picture rights, as was true of the book rights, took place in England, but the attempt was made to bring the proceeds within § 119 (a) (4) on the ground that the rights were to be exercised in the United States. Since the proceeds from the book rights were tied to use in the United States, they were held to be included within § 119 (a) (4). But the proceeds from the transfer of the motion-picture rights were not included because the proceeds were not tied to a subsequent use in the United States. There, as here, it was urged that the subsequent exploitation of the copyright by the transferee in the United States brought the proceeds within § 119 (a) (4) because it was not possible for the transfer to have been anything other than for the use, rather than the sale, of rights in the copyright. But this contention can rest only on the assumption that a copyright is indivisible. 416 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. above discussed. In none of the motion picture contracts did petitioner obtain any income from the reproduction and sale or other use of his writings in the United States as in the case of the Houghton Mifflin Co. and Wagner contracts. Here the granting of rights was made in consideration of a lump sum. The sale of these rights took place in England [citing a case], and there was no subsequent income in the nature of rents or royalties from sources within the United States. We are accordingly of the opinion that the lump sums received by petitioner for the motion picture rights do not come within the statutory definition of income from sources within the United States and are not taxable income.” Rafael Sabatini, 32 B. T. A. 705, 712-13 (1935), reversed on this point, 98 F. 2d 753, 755 (C. A. 2d Cir. (1938)).11 Thus at the time of the adoption of the present § 211 (a) (1) (A) this was the authoritative administrative ruling as to § 119 (a) (4). It is not suggested that knowledge of this ruling must be attributed to Congress, but this ruling refutes the assumption that there was a settled practice the other way. To the extent that it could be considered settled, it was contrary to the Court’s account of it. Finally it shows at least that what administrative practice there was could not be considered settled. After the Board was reversed in the Sabatini case, it of course followed the decision of the Court of Appeals. 11 This reversal of the Board of Tax Appeals did not occur until 1938, two years after Congress had revised the provisions taxing nonresident aliens. In reversing, the Court of Appeals first determined that the transfer of less than all the rights precluded a sale. It then held that the proceeds should be included, admitting however that there “seems to be no direct authority for this view of the meaning of the statute . . . .” Sabatini v. Commissioner, 98 F. 2d 753, 755 (C. A. 2d Cir.). COMMISSIONER v. WODEHOUSE. 417 369 Frankfurter, J., dissenting. The passage of the Internal Revenue Code, including §211 (a) (1) (A), is hardly a ground for implying legislative adoption of the construction placed on § 119 (a) (4) by the Court of Appeals for the Second Circuit. Helvering v. Hallock, 309 U. S. 106, 120-21, n. 7. When the entirely distinct problem involved in § 211 (a) (1) (A) came before the Court of Appeals for the Second Circuit, it based its decision on the determination that the proceeds were for the use of the copyright rather than a sale.12 That decision, like the Sabatini case, was based primarily on the doctrine of the indivisibility of a copyright.13 When that doctrine is rejected, it has been held to follow, as we have seen, that the proceeds are not included. That was the basis of decision in the Fourth Circuit, now under review. Moreover, the Court of Appeals for the Second Circuit has reached a result contrary to its copyright cases when dealing with the proceeds from the transfer of some but not all of the rights conferred by the patent 12 This case was not decided until 1946. Rohmer n. Commissioner, 153 F. 2d 61 (C. A. 2d Cir.). Molnar v. Commissioner, 156 F. 2d 924 (C. A. 2d Cir.), is not such a case. The court there dealt solely with the apportionment problem involved in computing taxpayer’s income when the copyright was to be used in both the United States and other parts of the world. 13In Rohmer v. Commissioner, 153 F. 2d 61 (C. A. 2d Cir.), the court said: "Where a copyright owner transfers to any particular transferee substantially less than the entire ‘bundle of rights’ conferred by the copyright, then payment therefor, whether in one sum or in several payments, constitutes royalties within the meaning of §211 (a) (1) (A). For such a transfer is the grant of a license. Payment for the grant of such a license is measured by reference to the future use or expected use of the license by the licensee . . . . It is like interest paid for several years.” P. 63. That the doctrine of indivisibility determined decision appears from Standard Oil Co. v. Clark, 163 F. 2d 917, 936, 939 (C. A. 2d Cir.). The decision in Sabatini v. Commissioner, 98 F. 2d 753, 755 (C. A. 2d Cir.), also turned on the doctrine of the indivisibility of a copyright. 418 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. statute.14 It did so despite the fact that the term “royalties” includes proceeds for the use of patents, 26 U. S. C. § 119 (a) (4), and that, as will be seen, the theory of the indivisibility of a copyright had its genesis in a doctrine first applied in the patent field. 5. Thus we are brought to the question which the Treasury, the courts and the parties here have regarded as determinative of this controversy: may serial rights under a copyright be sold in law as they constantly are sold in the literary market? Specifically, is there some inherent obstacle of law which precludes the sale of such serial rights from having the usual incidents of a commercial sale? If it were impossible to make a sale, then the proceeds arguably are “royalties” because in that event the transfer can have been only for the use. There would still remain the difficulty of getting the lump-sum payments within the reasonable meaning of § 211 (a) (1) (A). For, it is fair to recall, § 119 (a) (4) would only determine whether the payment is from a source within the United States, not whether it is taxable. There would be the further difficulty of calling a payment a “royalty” when its amount bears only that relation to the future proceeds obtained by the transferee in exploiting the literary product as would be reflected in the purchase price of any income-producing property. If, on the other hand, the valuable right that, commercially speaking, was in fact sold, may as a matter of law also be treated as a sale, the proceeds would not be included. This conclusion, derived from a reading of §211 (a) (1) (A), is made explicit by the Regulations and the House and Senate Reports. See ante, pp. 410-411. 14 General Aniline & Film Corp. n. Commissioner, 139 F. 2d 759 (C. A. 2d Cir.); see also Commissioner v. Celanese Corp., 78 U. S. App. D. C. 292, 140 F. 2d 339. Both cases are under § 143 (b), the section with which §211 (a) (1) (A) was made coterminous. COMMISSIONER v. WODEHOUSE. 419 369 Frankfurter, J., dissenting. The notion that the attributes of literary property are by nature indivisible and therefore incapable of being sold separately, is derived from a misapplication by lower courts of two early cases in this Court. These were concerned with the right of the transferee of less than all the rights conferred by a patent to sue an infringer. The inherent nature of the interests in intellectual property and their commercial negotiability were not involved. The Court determined the procedural problem before it so that the infringer would not “be harassed by a multiplicity of suits instead of one,” and would be not subjected to “successive recoveries of damages by different persons holding different portions of the patent right in the same place.” Gayler v. Wilder, 10 How. 477, 494r-95 (U. S. 1850); Waterman v. Mackenzie, 138 U. S. 252, 255. But in its bearing on the procedural point, one of these cases recognized the saleability of less than all of the patented rights so long as the transfer consisted of at least one of the three rights separately listed in the patent statute. Waterman v. Mackenzie, supra. We thus find scant illumination of the intrinsic and legal nature of property rights in a copyright in the procedural analysis of these cases. Keener insight into such rights has been given by Mr. Justice Holmes in a case involving substantive questions in the law of copyrights: “The notion of property starts, I suppose, from confirmed possession of a tangible object and consists in the right to exclude others from interference with the more or less free doing with it as one wills. But in copyright property has reached a more abstract expression. The right to exclude is not directed to an object in possession or owned, but is in vacuo, so to speak. It restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit. It is a pro- 837446 0—49-----------31 420 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. hibition of conduct remote from the persons or tangibles of the party having the right. It may be infringed a thousand miles from the owner and without his ever becoming aware of the wrong. It is a right which could not be recognized or endured for more than a limited time, and therefore, I may remark in passing, it is one which hardly can be conceived except as a product of statute, as the authorities now agree.” White-Smith Music Co. n. Apollo Co., 209 U. S. 1, 18, 19; see also Learned Hand, J., in Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 F. 374, 378 (S. D. N. Y.). The “right to exclude others from interference with the more or less free doing with it as one wills” is precisely the right that Wodehouse transferred to Curtis. To the extent that the Copyright Law gave Wodehouse protection in the United States, he transferred all he had in property of considerable value—the serial rights in his novels—and Curtis acquired all of it. For the duration of the monopoly granted by the Copyright Law, Curtis could assert the monopoly against the whole world, including Wodehouse himself. Nothing in the law of copyrights bars or limits sale of any one of the numerous exclusive rights conferred by the various subdivisions of § 1. Congress has not disallowed such sales and nothing in the due enforcement of the Copyright Law suggests their disallowance. Quite the contrary. See II Ladas, The International Protection of Literary and Artistic Property, pp. 775-792 (1938). The scheme and details of the Copyright legislation manifest a separate treatment of the various exclusive rights conferred by the statute. 61 Stat. 652, 17 U. S. C. §§ 1 et seq. It segregates these rights into sepa- COMMISSIONER v. WODEHOUSE. 421 369 Frankfurter, J., dissenting. rately numbered paragraphs.15 In each paragraph there is listed, in the alternative, a more detailed subdivision of the various rights. Each of these rights is substantial and exists separately from the others,16 and has of course 15 Section one of the Copyright Law provides : “§ 1. Exclusive Rights as to Copyrighted Works.—Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right : “(a) To print, reprint, publish, copy, and vend the copyrighted work; “(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art ; “(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production ; “(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever ; and “(e) To perform the copyrighted work publicly for profit if it be a musical composition ; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: . . . .” 61 Stat. 652,17 U. S. C. § 1. 18 “A man having general statutory dramatic rights like Kauffman might make a play and perform it under his common-law rights without publication, or he might copyright the play, and he would still not have copyrighted or published his moving picture rights. If he wrote such a scenario and made his film, he could get a separate copyright upon that. Of course, he could sell his statutory or com- 422 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. been considered a property right. See Photo Drama Motion Picture Co. n. Social Uplift Film Corp., 213 F. 374, 377 (S. D. N. Y.); see Fulda, Copyright Assignments and the Capital Gains Tax, 58 Yale L. J. 245, 256 (1949). Moreover, the Copyright Office will record these partial assignments, thus protecting the transferee and thereby increasing the marketability of the separate rights. 61 Stat. 652, 17 U. S. C. § 30; see Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 F. 374, 376-377; see II Ladas, The International Protection of Literary and Artistic Property, p. 802 (1938). Only the other day the House of Lords, dealing with a similar copyright law, held that the sums received from the transfer of the motion-picture rights in a novel were proceeds from a sale of property rather than a license and therefore not taxable as “annual profits or gains.” Withers v. Nethersole, [1948] 1 All E. R. 400. There was there, as here, the need to determine if the proceeds were from a sale. The taxpayer had transferred for ten years “the sole and exclusive motion picture rights throughout the world.” The House of Lords held that the proceeds were not “annual profits or gains” since the transaction was an outright sale, not a license to mon-law copyright of the play and keep the moving picture copyright, or he could sell each. “It seems to me clear that, if he could do this, he could sell separately the right to dramatize and the right to make a moving picture play, dividing his statutory dramatizing rights, and thus giving each assignee the right when he had exercised those rights to get his own copyright for a drama, or for a moving picture show.” Learned Hand, J., in Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 F. 374, 377 (S. D. N. Y.). See also Withers v. Nethersole, [1948] 1 All E. R. 400. “The effect of a partial assignment of copyright for a period less than the whole term is not to create any new right, but only to divide the existing right. In the result, there are two separate owners each with a distinct property. Neither holds under the other.” At p. 404. COMMISSIONER v. WODEHOUSE. 423 369 Frankfurter, J., dissenting. use the copyright. This portion of the late Lord Uth-watt’s judgment is especially pertinent: “The fact that the same commercial result as that produced by the assignment might equally well have been achieved by an appropriately worded licence is irrelevant. It is irrelevant that the consideration may be assumed to represent the value of the whole copyright so far as it relates to motion pictures for a period of years, but the consideration was paid, not in respect of the temporary use of another’s property, but for the purchase of property with a limited life. The taxpayer may have exploited her property, but she did so only by dividing it and selling part of it. . . . The relevant fact is that an owner of an asset, entitled by law to divide it into two distinct assets, has done so by selling one of those assets for an agreed consideration payable in a lump sum. A sale, not in the way of trade, of an asset does not attract tax on the consideration. Whatever else comes within the ambit of annual profits and gains, the consideration received by the taxpayer does not.” Withers v. Nethersole, [1948] 1 All E. R. 400, 405. I am not suggesting that the decision of the House of Lords requires our concurrence. To pass it over in silence, however, is not to answer it. Another case likewise deserves attention. In the Second Circuit, interestingly enough, it was held that a transfer of exclusive motion-picture rights was “a sale” of a “capital asset” for the purpose of § 117. Goldsmith v. Commissioner, 143 F. 2d 466 (C. A. 2d Cir.). But if the transfer was a sale of a capital asset, it could not also have been within § 211 (a) (1) (A). See S. Rep. No. 2156, 74th Cong., 2d Sess., p. 21 (1936); H. R. Rep. No. 2475, 74th Cong., 2d Sess., pp. 9-10 (1936). 424 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. To treat the transfer of any one of the various rights conferred by the Copyright Law as a sale would accord not only with analysis of their essential character and the scheme of the Copyright Law, but with the way these rights are treated by authors and purveyors of products of the mind for whose protection the Copyright Law was designed because of the belief that the interests of society would be furthered. The various exclusive rights have different attributes and therefore different significance. For that reason they may be sold separately and form the basis for a new copyright. The author “could sell separately the right to dramatize and the right to make a moving picture play.” Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 F. 374, 377 (S. D. N. Y.), aff’d, 220 F. 448. See as to the commercial practice, Fulda, Copyright Assignments and the Capital Gains Tax, 58 Yale L. J. 245, 253-54 (1949); see also Ladas, The International Protection of Literary and Artistic Property, passim (1938). Thus it would seem as a matter of legal doctrine that where a person transfers absolutely to another, under terms of payment which do not depend on future use by the transferee, a distinct right conferred by the Copyright Law granting the transferee a monopoly in all the territory to which the Copyright Law itself extends, legal doctrine should reflect business practice in recognizing that the proceeds are from “the sale of personal property,” rather than amounts received as “fixed or determinable annual or periodical gains, profits, and income.” It is argued that Congress doubtless intended to tax an alien author for the proceeds of a sale of serial rights, because such proceeds are taxable to an American author. By this mode of reasoning the Court ought to hold that since an American author is taxed when he sells all his rights, the proceeds derived by an alien author from the COMMISSIONER v, WODEHOUSE. 425 369 Frankfurter, J., dissenting. sale of all his rights in this country are also taxable for that is a much larger source of potential revenue. Yet Congress has chosen not to tax the alien author for such larger income than is received from the sale merely of serial rights, although the native author is so taxed. It is for Congress to make differentiations between alien and American authors and we should respect the differentiations Congress has made for the sale both of serial and total rights as between alien and American authors. The need for revenue is no justification for warping the provisions of the 1936 legislation to deny immunity from taxation to a nonresident alien author for the entire transfer of some of the property interests explicitly conferred by § 1, particularly in view of the fact that Congress knowingly chose to leave untouched the more sizeable source of revenue available where the nonresident alien sells all the rights conferred by § 1. Wodehouse made an absolute transfer of some of those rights. He did not receive royalties but instead gave up that chance in return for a lump sum, just as the seller of a house gives up the right to receive rent in return for the purchase price. That transaction can only be regarded as a sale. As the revenue laws now stand, it was nontaxable. I would affirm the judgment below. 426 OCTOBER TERM, 1948. Syllabus. 337 U. S. UNITED STATES v. INTERSTATE COMMERCE COMMISSION et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. No. 330. Argued March 2, 1949.—Decided June 20, 1949. The United States, as a shipper, having undertaken to provide wharfage and handling services at certain piers, requested the railroads to make an allowance for expenses thus incurred, since the shipside rates allegedly included charges for wharfage and handling services. The railroads refused to make an allowance and to perform the services. The United States thereupon filed with the Interstate Commerce Commission a complaint alleging that, in refusing to make an allowance for wharfage and handling services, the railroads had exacted payment of rates which were unreasonable, unjustly discriminatory, and otherwise in violation of the Interstate Commerce Act, and asking that the Commission find the charges unlawful and award the Government reparations. The Commission denied reparations and ordered the complaint dismissed. The United States then sued in the District Court to set aside the Commission order. The Interstate Commerce Commission and the United States itself were made defendants. The District Court, composed of three judges, dismissed the suit. On direct appeal to this Court, held: The dismissal of the suit was error and the case should have been considered on its merits. Pp. 428-430. 1. Although the case be that of United States v. United States et al., the principle that a person may not maintain an action against himself is inapplicable, since there are involved here controversies of a type which are traditionally justiciable. Pp. 430-431. 2. Provisions of law making the United States a statutory defendant in court actions challenging Commission orders do not evidence a congressional purpose to bar the Government from challenging such orders. Pp. 431-432. (a) Congress did not intend to make it impossible for the Government to press a just claim which could be vindicated only by challenging a Commission order in Court. P. 431. (b) However anomalous it may be for the Attorney General to appear on both sides of the same controversy, nothing in the UNITED STATES v. I. C. C. 427 426 Counsel for Parties. Interstate Commerce Act indicates a congressional purpose to amend prior statutes which imposed primary responsibility on the Attorney General to seek judicial redress for the Government. Pp. 431-432. (c) The Interstate Commerce Act contains adequate provisions for protection of Commission orders by the Commission and by the railroads when, as here, they are the real parties in interest; and the Commission and the railroads in this case have availed themselves of the statutory authorization. P. 432. 3. The District Court had jurisdiction of the action under 28 U. S. C. §41 (28) [now § 1336], and that jurisdiction was not barred in this case by § 9 of the Interstate Commerce Act, 49 U. S. C. § 9. Pp. 432-440. (a) Section 9 does not give complete finality to a Commission order merely because a shipper elected to file a complaint with the Commission. Pp. 433-440. (b) A Commission order dismissing a shipper’s claim for damages under 49 U. S. C. § 9 is an “order” subject to challenge under 28 U. S. C. § 41 (28) [now § 1336]. Pp. 440-441. 4. Judicial review of a Commission order denying reparations does not require a three-judge court. Pp. 441-443. 5. The fact that this case was heard and determined by a District Court of three judges, rather than by one judge, does not require dismissal here; and the cause is remanded to the District Court for determination on the merits of the allegations of the complaint. Pp. 443-444. 78 F. Supp. 580, reversed. A District Court of three judges dismissed a suit brought by the United States to set aside an order of the Interstate Commerce Commission (269 I. C. C. 141) denying an award of reparations to the Government as a shipper. 78 F. Supp. 580. The United States took a direct appeal to this Court. Reversed and remanded, p. 444. Stanley M. Silverberg and David O. Mathews argued the cause for the United States. With them on the brief were Solicitor General Perlman, Assistant Attorney General Bergson and Philip Elman. 428 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. Daniel W. Knowlton argued the cause and filed a brief for the Interstate Commerce Commission, appellee. Windsor F. Cousins argued the cause for the Pennsylvania Railroad Co. et al., appellees. With him on the brief were Hugh B. Cox, Robert C. Barnard, Charles P. Reynolds and Charles Clark. Mr. Justice Black delivered the opinion of the Court. It is contended here that the United States as a shipper is barred from challenging in federal courts an Interstate Commerce Commission order which denies the Government a recovery in damages for exaction of an allegedly unlawful railroad rate. Other contentions if sustained would deny federal courts all power to entertain an action by any shipper challenging a Commission order denying damages to the shipper. During the war, existing tariffs of many railroads embodied wharfage charges to compensate the railroads for moving goods from railroad cars to piers and from piers to railroad cars. When the United States took over certain piers at Norfolk, Virginia, it began to perform these wharfage services for itself and requested the railroads to make the United States an allowance for the expenses incurred in performing the services. The railroads refused to make an allowance. Upon this refusal the Government requested the railroads to perform the services themselves. The railroads refused to perform the services. The United States filed with the Interstate Commerce Commission a complaint against the railroads charging that exaction of pay for unperformed services was unjust, unreasonable, discriminatory, excessive, and in violation of certain sections of the Interstate Commerce Act.1 The M9 U. S. C. §§ 1 (5) (a), 1 (6), 2, 6 (8), 15 (13). UNITED STATES v. I. C. C. 429 426 Opinion of the Court. complaint asked the Commission to find the charges unlawful. Further relief asked, under the Interstate Commerce Act,2 was that the Government be awarded damages (reparations) on account of the alleged unlawful exactions. The Commission found that the charges were not unjustly discriminatory, unreasonable, or otherwise in violation of the Act. Accordingly, the Commission denied reparations and ordered the complaint dismissed. United States v. Aberdeen & Rockfish R. Co., 269 I. C. C. 141 (1947). The United States brought this action in a United States District Court to set aside the Commission order. The complaint charged that the Commission’s conclusions were not supported by its findings, that the findings were not supported by any substantial evidence, that the order was based on a misapplication of law and was “otherwise arbitrary, capricious and without support in and contrary to law and the evidence.” The Interstate Commerce Commission was made a defendant. The United States was also made a defendant because of a statutory requirement that any action to set aside an order of the Interstate Commerce Commission “shall be brought . . . against the United States.” 28 U. S. C. (1946 ed.) § 46, now § 2322. Railroads that collected the wharfage charges intervened as defendants under authority of 28 U. S. C. (1946 ed.) § 45a, now § 2323. The Attorney General appeared for the Government as both plaintiff and defendant. Without reaching the merits of the case, the District Court composed of three judges dismissed the cause on the theory that the Government could not maintain a suit against itself. The court also indicated its belief that a three-judge court was without jurisdiction 2 49 U. 8. C. §§ 8, 9. The complaint also sought relief from future exactions, but prior to the Commission’s final order the piers were returned to private ownership and this prayer was abandoned. 430 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. of the suit. 78 F. Supp. 580. The case is here on direct appeal under 28 U. S. C. (1946 ed.) § 47a, now § 1253. In this Court the Commission and the railroad intervenor defendants support the District Court’s dismissal for the reasons given by that court. Alternative reasons are also urged. We hold that the dismissal was error and that the case should have been considered on its merits. First. There is much argument with citation of many cases to establish the long-recognized general principle that no person may sue himself. Properly understood the general principle is sound, for courts only adjudicate justiciable controversies. They do not engage in the academic pastime of rendering judgments in favor of persons against themselves. Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine. But one person named John Smith might have a justiciable controversy with another John Smith. This illustrates that courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented. While this case is United States v. United States, et al., it involves controversies of a type which are traditionally justiciable. The basic question is whether railroads have illegally exacted sums of money from the United States. Unless barred by statute, the Government is not less entitled than any other shipper to invoke administrative and judicial protection. To collect the alleged illegal exactions from the railroads the United States instituted proceedings before the Interstate Commerce Commission. In pursuit of the same objective the Government challenged the legality of the Commission’s action. This suit therefore is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads. The order if valid would defeat the Government’s claim to that UNITED STATES v. I. C. C. 431 426 Opinion of the Court. money. But the Government charged that the order was issued arbitrarily and without substantial evidence. This charge alone would be enough to present a justiciable controversy. Chicago Junction Case, 264 U. S. 258, 262-266. Consequently, the established principle that a person cannot create a justiciable controversy against himself has no application here. . Second. It is contended that the provisions of the Act making the Government a statutory defendant in court actions challenging Commission orders, show a congressional purpose to bar the Government from challenging such orders. Legislative history is cited in support of this contention. If the contention be accepted, Congress by making the Government a statutory defendant in such cases has deprived the United States as a shipper of powers of self-protection accorded all other shippers. We cannot agree that Congress intended to make it impossible for the Government to press a just claim which could be vindicated only by a court challenge of a Commission order. See United States v. San Jacinto Tin Co., 125 U. S. 273, 279. In support of their contention that Congress did not intend for the Government to press its claims as a shipper, the Commission and railroads emphasize the anomaly of having the Attorney General appear on both sides of the same controversy. However anomalous, this situation results from the statutes defining the Attorney General’s duties. The Interstate Commerce Act requires the Attorney General to appear for the Government as a statutory defendant in cases challenging Commission orders. 28 U. S. C. (1946 ed.) § 45a, now § 2323. The Attorney General is also under a statutory duty “to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases.” United States v. San Jacinto Tin Co., 125 U. S. 273, 279. See also United 432 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. States v. California, 332 U. S. 19, 26-29. Nothing in the Interstate Commerce Act indicates a congressional purpose to amend prior statutes which had imposed primary responsibility on the Attorney General to seek judicial redress for the Government. Although the formal appearance of the Attorney General for the Government as statutory defendant does create a surface anomaly, his representation of the Government as a shipper does not in any way prevent a full defense of the Commission’s order. The Interstate Commerce Act contains adequate provisions for protection of Commission orders by the Commission and by the railroads when, as here, they are the real parties in interest. For, whether the Attorney General defends or not, the Commission and the railroads are authorized to interpose all defenses to the Government’s charges and claims that can be interposed to charges and claims of other shippers. In this case the Commission and the railroads have availed themselves of this statutory authorization. They have vigorously defended the legality of the allowances and the validity of the Commission order at every stage of the litigation. Third. 28 U. S. C. (1946 ed.) § 41 (28)3 provides that “The district courts shall have original jurisdiction . . . Of cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission.” The legal consequences of this order if upheld will finally relieve the railroad of any obligations to the Government on account of the alleged unlawful 3 The substance of 28 U. S. C. § 41 (28) of the 1946 United States Code now appears as § 1336 of the 1948 Code. The provision for judicial review of Interstate Commerce Commission orders first appeared in 1910 in an Act creating the Commerce Court. 36 Stat. 539. Congress abolished the Commerce Court in 1913 and transferred to district courts the Commerce Court’s jurisdiction to review Commission orders. Urgent Deficiencies Act, 38 Stat. 208, 219-220. UNITED STATES v. I. C. C. 433 426 Opinion of the Court. charges; the order thus falls squarely within the type made subject to judicial review by § 41 (28). Rochester Telephone Corp. v. United States, 307 U. S. 125, 131-132, 142-143; El Dorado Oil Works v. United States, 328 U. S. 12, 18-19. The Commission and the railroads contend, however, that § 9 of the Interstate Commerce Act, 49 U. S. C. § 9, bars the United States or any other shipper from judicial review of an order denying damages in reparation proceedings initiated before the Commission. Section 9 provides in part: “Any person or persons claiming to be damaged by any common carrier . . . may either make complaint to the commission ... or may bring suit . . . for the recovery of the damages ... in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.” The contention of the Commission and the railroads as to § 9 is this. A shipper has an alternative. He may bring his action before the Commission or before the courts. But he must make an election. If he elects to “bring suit” in a court and is unsuccessful, he retains the customary right of appellate review. If he elects to “make complaint to” the Commission, as the Government did, and relief is denied, he is said to be barred by the statutory language of § 9 from seeking any judicial review of the Commission order. Under the contention the order is final and not reviewable by any court even though entered arbitrarily, without substantial supporting evidence, and in defiance of law. Such a sweeping contention for administrative finality is out of harmony with the general legislative pattern of 434 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. administrative and judicial relationships.4 See, e. g., Shields v. Utah I. C. R. Co., 305 U. S. 177, 181-185; Stark v. Wickard, 321 U. S. 288, 307-310. And this Court has consistently held Commission orders reviewable upon charges that the Commission had exceeded its lawful powers. See, e. g., Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 91-93; Chicago Junction Case, 264 U. S. 258, 266. The language of § 9 does not suggest an abandonment of these consistent holdings. It does suggest that a shipper who elects either to “make complaint to” the Commission or to “bring suit” in a court is thereafter precluded from initiating a § 9 proceeding in the other. It may therefore be assumed that after a shipper has elected to initiate a Commission proceeding for damages he could not later initiate an original district court action for the same damages. But forfeiture of the right to initiate his claim in the court under § 9 is one thing; forfeiture of his right under 28 U. S. C. (1946 ed.) § 41 (28), now § 1336, to obtain judicial review of an unlawful Commission order is another. Section 9’s language controls the forum in which reparation claims may be begun and tried to judgment or order; it does not purport to give complete finality to a court judgment or to a Commission order merely because 4 The Administrative Procedure Act, 60 Stat. 237, 243, 5 U. S. C. §§ 1001 (d), 1009, provides: “Sec. 2. . . . (d) Order and Adjudication.—'Order’ means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing. ‘Adjudication’ means agency process for the formulation of an order.” “Sec. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion— “(a) Right of review.—Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.” UNITED STATES v. I. C. C. 435 426 Opinion of the Court. a shipper elected to proceed in one forum rather than the other. So we can find nothing in the language of § 9 that bars a court from reviewing a reparation order upon allegations by a shipper that the order was entered in defiance of standards established by Congress to determine when reparations are due. Furthermore, the section’s careful provision for judicial protection of railroads against improper Commission awards argues against interpretation of the same section to deny to shippers any judicial review whatever. Under the suggested interpretation a shipper could recover nothing if the Commission decided against him. But a Commission award favorable to a shipper is not final or binding upon the railroad. Such an award “only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. ... Nor does it in any wise work a denial of due process of law.” Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430. And see Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90-91. It hardly seems possible to find from the language of § 9 a congressional intent to guarantee railroads complete judicial review of adverse reparation orders while denying shippers any judicial review at all. What we have said would dispose of the § 9 contention but for the argument of the Commission and the railroads that their suggested interpretation of the section is required by this Court’s holding in Standard Oil Co. n. United States, 283 U. S. 235, and other cases that followed it. In that case the Standard Oil Co., a shipper, was denied the right to judicial review of a Commission order denying reparations. Judicial review was denied on four grounds: (1) The order in the Standard Oil case denying reparations was “negative” in form, and was therefore beyond judicial appraisal under the 837446 0—49----32 436 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. “negative order” doctrine. This doctrine was wholly abandoned in Rochester Tel. Corp. v. United States, 307 U. S. 125. (2) The decision in the Standard Oil case held that the Commission order was supported by substantial evidence and was not otherwise in violation of law. The Government’s claim here is that this order cannot meet that test. (3) The third ground for denial of judicial review was that having elected to test its damage claim before the Commission, Standard was precluded from judicial review. (4) A three-judge court was an improper tribunal to adjudicate damage claims under § 9. The Standard Oil interpretation of § 9 denying shippers any judicial review was made by a court usually careful to protect against arbitrary or unlawful administrative action. And, as shown, the court there first satisfied itself that the Commission order was not the product of an unlawful exercise of power by the Commission. Furthermore, the “negative order” philosophy, then at its peak, clearly barred review of all orders denying reparations. Consequently, the Standard Oil § 9 interpretation barred judicial review of no class of Commission orders except orders already immune from such review under the “negative order” doctrine. The Standard Oil holding was thus clearly supported by and rooted in the now rejected “negative order” doctrine.5 Another reason for the Court’s construction of § 9 in the Standard Oil case was that Standard’s damage claim 5 Mr. Justice Cardozo so treated the Standard Oil holding in I. C. C. v. United States, 289 U. S. 385, 388, a case decided prior to this Court’s repudiation of the “negative order” doctrine. He there said that in denying reparations “the Commission speaks with finality. Its orders purely negative—negative in form and substance— are not subject to review by this court or any other.” Authorities for this statement were “negative order” cases. These same cases were relied on by the court in a later case that referred with approval to the Standard Oil § 9 interpretation. Terminal Warehouse Co. V. Pennsylvania R. Co., 297 U. S. 500, 507-508. UNITED STATES v. I. C. C. 437 426 Opinion of the Court. could have been adjudicated by a district court since it involved no question as to reasonableness of rates that called for exercise of the Commission’s primary jurisdiction. The importance of this factor was emphasized by this Court in applying the Standard Oil construction of § 9 in Baltimore & 0. R. Co. n. Brady, 288 U. S. 448, 457-459. First pointing out that there was no question in that case “requiring the exercise of the Commission’s administrative powers,” the Court said: “It is to be remembered that, by electing to call on the Commission for the determination of his damages, plaintiff waived his right to maintain an action at law upon his claim. But the carriers made no such election. Undoubtedly it was to the end that they be not denied the right of trial by jury that Congress saved their right to be heard in court upon the merits of claims asserted against them. The right of election given to a claimant reasonably may have been deemed an adequate ground for making the Commission’s award final as to him.” And see Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U. S. 500, 507-508. Thus, a crucial support for the Court’s holding in the Standard Oil and Brady cases was that the shippers in those cases could have commenced original § 9 actions in the district court. But it has been established doctrine since this Court’s holding in Texas & P. R. Co. v. Abilene Oil Co., 204 U. S. 426, that a shipper cannot file a § 9 proceeding in a district court where his claim for damages necessarily involves a question of “reasonableness” calling for exercise of the Commission’s primary jurisdiction.6 The Government’s claim here does involve such a question of “reasonableness.” For the allowances 6 See cases collected in Rochester Tel. Corp. v. United States, 307 U. S. 125, 139, n. 22, and Armour & Co. v. Alton R. Co., 312 U. S. 195; Skinner & Eddy Corp. v. United States, 249 U. S. 557, 562. 438 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. exacted from the Government were authorized in the railroads’ published tariffs and were therefore not unlawful unless “unreasonable.” Consequently the Government here had no “right of election” between Commission and court that could be “deemed an adequate ground for making the Commission’s award final . . . Baltimore & O. R. Co. v. Brady, supra, at 458.7 Ashland Coal Co. v. United States, 325 U. S. 840, is the only case in this Court that relied on the Standard Oil decision after we had abandoned the “negative order” doctrine. Cf. Allison & Co. v. United States, 296 U. S. 546. And it is doubtful if the shipper in the Ashland Coal Co. case could have sought reparations in a district court under the “primary jurisdiction” doctrine. In affirming without argument the judgment of a three-judge court in the Ashland Coal Co. case, this Court’s per curiam opinion cited two pages of the Standard Oil opinion that support the interpretation of § 9 urged here by the Commission and railroads. It is a fair inference that the pages were cited for that interpretation although other grounds for the Court’s decision also appear there. One such ground was that a three-judge court is an improper 7 The Commission argues that § 9 does authorize a shipper to initiate damage claims in a district court even though the claim necessarily involves questions upon which the Commission’s primary jurisdiction must be invoked. The railroads more cautiously say that such suits can be filed upon an initial showing by a shipper that it might work a hardship on a shipper for the court to refuse to entertain the case. Both contentions run counter to this Court’s previous cases. Particular circumstances were held sufficient in one case to justify a court in staying further judicial proceedings to await Commission action. Mitchell Coal Co. n. Pennsylvania R-Co., 230 U. S. 247, 266-267. The same course was followed in another case, over the Commission’s objection, where the action was in assumpsit, and the administrative problem did not emerge until the case was in course of litigation. Tank Car Corp. v. Terminal Co., 308 U. S. 422, 432. UNITED STATES v. I. C. C. 439 426 Opinion of the Court. tribunal for the review of such Commission orders. Another ground was that there was “nothing to suggest that the Commission acted arbitrarily or without evidence to support its conclusions, or that it transcended its constitutional or statutory powers.” The three-judge district court in the Ashland case in sustaining the Commission order had also held that a three-judge court was not a proper tribunal and that the Commission order was supported by substantial evidence and was in accordance with law. Ashland Coal & Ice Co. v. United States, 61 F. Supp. 708, 713. We cannot accept the Ashland Coal Co. per curiam holding nor the Standard Oil case on which it rested as requiring the interpretation of § 9 which the railroads and Commission here urge. Our acceptance of that interpretation would mean that a shipper who submitted to the Commission only a question of the reasonableness of rates could have an adverse order reviewed by a court, Skinner & Eddy Corp. v. United States, 249 U. S. 557, 562-563, while a shipper who asked for that administrative determination plus reparations could get no judicial review at all. Terminal Warehouse Co. n. Pennsylvania R. Co., supra, at 507-508. On any ground except the now discarded “negative order” doctrine, this would appear to be an unsupportable and totally illogical limitation of the congressional command for judicial review.8 See Chicago 8 The “negative order” doctrine was first adopted by this Court in Procter & Gamble n. United States, 225 U. S. 282, decided in 1912. A shipper there brought action in the Commerce Court to set aside a Commission order dismissing the shipper’s complaint. The complaint was that the charges were unjust and unreasonable. The Commerce Court was asked to annul the Commission’s order of dismissal, to enjoin future collection of the charges, and to require the railroads to repay sums alleged to have been wrongfully collected from the shipper. The Commerce Court reviewed the action of the Commission and on the merits declined to grant the shipper the re- 440 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. Junction Case, 264 U. S. 258, 269-270; Southern R. Co. v. Tift, 206 U. S. 428, 440. Accordingly we hold that § 9 does not impair the right of shippers to obtain judicial review of adverse Commission orders under § 41 (28) merely because the order is sought as a basis for reparations. Fourth. For reasons already stated we hold that a Commission order dismissing a shipper’s claim for dam- quested relief. This Court held that this “negative” order was not reviewable at the instance of the shipper. The Court’s ruling brought sharp criticism in Congress. Corrective legislation was proposed, exhaustive committee hearings were held, debate was taken to the floor of Congress. In spite of the strenuous efforts to get Congress to repudiate the “negative order” doctrine, Congress in 1913 declined to act. But in all of the congressional hearings and debates on the subject, the critics of the Procter & Gamble “negative order” rule urged without contradiction that repudiation of the “negative order” rule would afford shippers the same judicial review of reparation and other orders then afforded to railroads. Not once do we find the argument suggested that 49 U. S. C. § 9 would bar shippers from judicial review of adverse reparation orders by the Commission, although this section was at the time part of the original Interstate Commerce Act, enacted in 1887, more than a quarter of a century before this congressional consideration. This Court nevertheless abandoned the “negative order” doctrine in 1938, and in doing so effectively overruled a host of prior decisions. See cases collected in footnote to Mr. Justice Butler’s opinion in the Rochester case, 307 U. S. 146, 148. The effect of today’s decision is merely to recognize that the Standard Oil doctrine, barring judicial review to shippers, cannot stand consistently with the Rochester case which itself overruled the Procter & Gamble and other “negative order” decisions. It was therefore the Rochester case, not today’s decision, that overruled a line of cases and granted relief where Congress had declined to afford any. H. R. Rep. No. 1012, 62d Cong., 2d Sess. 1-4 (1912); Hearings before the subcommittee of the Senate Committee on Appropriations on H. R. 7898, 63d Cong., 1st Sess. 140-148 (1913); Hearings before the subcommittee of the Senate Committee on Appropriations on H. R. 7898, 63d Cong., 1st Sess. 305-343 (1913); Hearings before the House Committee on Interstate and Foreign Commerce on H. R. 25596 and H. R. 25572, 62d Cong., 2d Sess. 1-298 (1912); 50 Cong. Rec. 4532-4537, 4542-4545 (1913). UNITED STATES v. I. C. C. 441 426 Opinion of the Court. ages under 49 U. S. C. § 9 is an “order” subject to challenge under 28 U. S. C. (1946 ed.) § 41 (28). The remaining question is whether a district court entertaining such a challenge shall be composed of one judge or three judges and whether the judgment of a district court in such a case can be appealed directly to this Court. The Urgent Deficiencies Act from which § 41 (28) was derived contains provisions for a three-judge district court to hear and determine suits brought to set aside a Commission “order,” and authorizes judgments rendered in such cases to be appealed directly to this Court.9 For reasons now stated we hold that judicial review of an order denying reparations does not require a three-judge court. The provisions of the Urgent Deficiencies Act here considered derive from a 1910 congressional enactment creating the Commerce Court, defining its powers and providing for review of its judgments.10 That court was given jurisdiction of all actions to enjoin, set aside and modify Commission orders. Section 2 provided for direct appeals from the Commerce Court to the Supreme Court. The purpose of creating the Commerce Court with such direct appeals was expedition of final determination of the validity of certain types of Commission orders. This expedition was sought for orders of national or widespread interest, such, for example, as railroad rate orders. Congress saw the necessity for an accelerated appellate procedure to prevent railroads from nullifying the effect of such orders in prolonged litigation.11 The Commerce Act itself indicated that the same expedition necessary in cases affecting the public generally was not 9 38 Stat. 208, 219, 220; 28 U. S. C. §2325 (1948). See also 28 U. S. C. (1946 ed.) §47. 10 36 Stat. 539. 11 See President’s Message to Congress, 45 Cong. Rec. 7567-7568 (1910). 442 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. necessary in other kinds of cases involving “local and isolated questions which arise in the ordinary courts.”12 The Act’s first section excluded from the Commerce Court’s jurisdiction power to enforce “any order of the Interstate Commerce Commission ... for the payment of money.”13 Provisions of the Urgent Deficiencies Act of 1913 abolished the Commerce Court and transferred its jurisdiction to district courts composed of three judges. In considering this Act Congress was urged to bear in mind the necessity for providing a forum that could expeditiously review Commission orders of widespread importance.14 But in passing the 1913 Act Congress denied power to three-judge courts to enforce Commission orders for the payment of money.15 And in a case not involving reparations this Court held that orders relating merely to the payment of money are not likely to be of sufficient public importance to justify use of the three-judge procedure. See United States v. Griffin, 303 U. S. 226, 233, 234-237. But cf. El Dorado Oil Works v. United States, 328 U. S. 12, 18-19; United States v. Jones, 336 U. S. 641, 647. The Urgent Deficiencies Act with 49 U. S. C. § 9, which requires enforcement of Commission reparation awards in one-judge courts, indicates the belief of Congress that such orders are not of sufficient public importance to justify the accelerated judicial review procedure. 12 S. Rep. No. 355, 61st Cong., 2d Sess. 1-2 (1910). 13 See Procter & Gamble n. United States, 225 U. S. 282; Texas & P. R. Co. v. Abilene Oil Co., 204 U. S. 426. 14 Hearings before the subcommittee of the Senate Committee on Appropriations on H. R. 7898, 63d Cong., 1st Sess. 293-299, 300 (1913). 15 It is also significant that the new judicial code does not give a three-judge court jurisdiction to adjudicate the validity of commission orders “for the payment of money.” 28 U. S. C. § 2321. UNITED STATES v. I. C. C. 443 426 Opinion of the Court. While the Government here does not seek enforcement of a Commission order for the payment of money, the root of the controversy concerns the payment of money damages under 49 U. S. C. §§ 8, 9. Had the Commission made an award to the Government it could have filed a civil suit to recover money damages under the provisions of 49 U. S. C. § 16 (2). That section provides that such a suit “shall proceed in all respects like other civil suits for damages . . —that is, before one district judge. And an appeal from a judgment in such a case goes to the Court of Appeals. The same one-judge trial and appeal procedure available for enforcement of an award order would appear to be an equally appropriate and adequate tribunal for adjudication of validity of a Commission order denying reparations. For actions to enforce Commission orders awarding reparation, and actions to challenge Commission orders denying reparations, basically involve the same parties, the same disputes, the same claims for money damages, and the same statutes. We think the orders in both instances should be reviewed in the same one-judge tribunal. We have frequently pointed out the importance of limiting the three-judge court procedure within its expressly stated confines.16 We are confident that in holding that one judge rather than three should entertain cases challenging Commission reparation orders we interpret the congressional expediting procedure and the Interstate Commerce Act in accordance with their basic purpose. Fifth. There remains the question of the proper disposition of this case. Three judges heard it. This, however, is no reason for dismissal of the cause. See Stain- 16 United States v. Griffin, supra, 234r-237; Ayrshire Corp. v. United States, 331 U. S. 132, 136-137; Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 378, n. 19; Phillips v. United States, 312 U. S. 246, 250. 444 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. back v. Mo Hock Ke Lok Po, 336 U. S. 368, 381. If the allegations of the bill are true, the Commission’s order cannot stand. Chicago Junction Case, 264 U. S. 258, 264-266. Since the District Court did not pass on the merits of the allegations of the complaint, the cause is remanded to it for that purpose. Reversed and remanded. Mr. Justice Frankfurter, with whom Mr. Justice Jackson and Mr. Justice Burton join, dissenting. Four times shippers have asked this Court to recognize the right to review orders of the Interstate Commerce Commission denying claims for reparations against carriers; four times the United States resisted the right to such judicial review; four times this Court sustained the United States and held that the courts were without jurisdiction to review orders of the Commission denying reparations. Twice the decisions followed full argument: Standard Oil Co. v. United States, 283 U. S. 235, in which the bar of the Interstate Commerce Act to such review was expounded, and Brady v. United States, 283 U. S. 804, which relied on the Standard Oil case decided only a few weeks before. Twice thereafter the dismissal by district courts, for want of jurisdiction, of attempts to review such reparation orders was summarily affirmed without argument, so definitively had the Standard Oil case settled the matter. Allison & Co. n. United States, 296 U. S. 546, affirming 12 F. Supp. 862; Ashland Coal & Ice Co. v. United States, 325 U. S. 840, affirming 61 F. Supp. 708, decided less than four years ago. In order to recover a money claim of its own, the Government in this case has suddenly shifted a position consistently maintained by it for nearly twenty years against all other shippers and urges the right to review an order denying reparations. Indeed, at the very same time that the Govern- UNITED STATES v. I. C. C. 445 426 Frankfurter, J., dissenting. ment was arguing before the District Court for the District of Columbia for the right to review an order denying it reparations, the Government successfully resisted precisely the same argument by a private shipper in a suit in the District Court for the Eastern District of Michigan. Great Lakes Steel Corp. n. United States, 81 F. Supp. 450. And the Government did so on the basis of the controlling series of cases in this Court decided on grounds which we are now asked to disregard.1 We are vouchsafed no explanation for the fact that the United States should have urged four times upon this Court, and contemporaneously with these proceedings in another district court, that an order resulting from a reparation proceeding before the Interstate Commerce Commission is not reviewable, and yet seeks review in this instance. The only explanation that lies on the surface is that in all the other cases the United States was resisting the claims of private shippers, while in this case the Government itself is the shipper. No doubt enlightenment sometimes comes through self-interest. But this Court’s construction of the Interstate Commerce Act, long matured in a series of cases, ought not to shift with a shift in the Government’s interest. The Interstate Commerce Commission rightly protests against it. To yield to the Government’s new contention is not only to reverse a settled course of decision. To do so is to mutilate the whole scheme of the Interstate Commerce 1 Compare Brief for United States and Interstate Commerce Commission, pp. 7-22, Great Lakes Steel Corp. v. United States, 81 F. Supp. 450, with Brief for United States, pp. 14-39, United States v. Interstate Commerce Commission, 78 F. Supp. 780. Since the argument of this case the Great Lakes Steel case has been brought here on appeal, No. 749, this Term, and the Government has acknowledged the conflict. See Motion to Defer Consideration of the Statement of Jurisdiction, Great Lakes Steel Corp. n. United States, No. 749, this Term. 446 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. Act by disregarding the distribution of authority Congress saw fit to make between the Commission and the courts for the enforcement of that Act. One would suppose that four uniform decisions of this Court, rendered after thorough consideration of a statutory scheme, constitute such a body of law as not to be overruled, wholly apart from any argument that this Court’s construction of legislation is confirmed by Congress by reenactment without change. The Transportation Act of 19402 reenacted the relevant provisions of the Interstate Commerce Act after this Court had ruled three times that a shipper who has unsuccessfully asked the Commission for damages is bound by its determination and cannot thereafter have another go at it in the courts. The construction which these decisions have made should be adhered to not only because the precise issue has already been decided by this Court but because the Interstate Commerce Act requires it. “When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized.” Labor Board v. Cheney California Lumber Co., 327 U. S. 385, 388. It will hardly be suggested that the Constitution requires judicial review of a reparation order by the Commission. Such a notion is precluded by Cary v. Curtis, 3 How. 236, and the whole unfolding of administrative law during the hundred years since that decision. This is not one of those exceptional cases where “the sanction afforded by judicial proceedings” is implied in the guaranty of due process of law. Ng Fung Ho n. White, 259 U. S. 276, 284-5. Therefore, it is as true of the Interstate Commerce Act as it is of the National Labor Relations Act, that “Congress was entitled to determine what remedy it would provide, the way 2 54 Stat. 899,49 U. S. C. § 1 et seq. UNITED STATES v. I. C. C. 447 426 Frankfurter, J., dissenting. that remedy should be sought, the extent to which it should be afforded, and the means by which it should be made effective.” Mr. Chief Justice Hughes, speaking for the Court in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261, 264. In the reticulated scheme for enforcement of the new rights and obligations created by the Interstate Commerce Act, Congress clearly indicated where the judiciary comes in and where the judiciary is to keep out. More particularly, Congress has provided in detail for judicial review in certain aspects of reparation claims that come before the Commission; it has afforded an alternative procedure as between Commission and courts in some instances; it has specifically precluded resort to judicial review where the shipper has chosen resort to the Commission. If the scheme of legislation that Congress has devised is to be respected, judicial review of the Commission’s order denying it reparations is not open to the Government. A summary of what this case involves should precede a detailed analysis of the Act, so far as relevant to its disposition. At the time this controversy arose it had long been the practice for railroads reaching Atlantic ports to absorb the cost of wharfage and handling services furnished by them for goods destined for shipment overseas. This applied only to services rendered on so-called public wharves, excluding, that is, services so required on wharves operated by a shipper himself. The wharves in question were piers owned by the Government, but leased by it for commercial peacetime operations as public terminal facilities of the railroads. Up to June 15,1942, these piers were operated by the Transport Trading and Terminal Corporation, as agent of the defendant railroads. War conditions made it necessary for the Government to cancel its leases with the Terminal Corporation and, on June 15, 1942, it took over the operation of these piers for the movement of 448 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. military freight, almost entirely outbound. The railroads refused allowances for the cost of services which they had theretofore absorbed, and declined a later request of the Army to perform the handling services because the Army, not the railroads, controlled the piers. Claiming to be damaged by the refusal of the railroads to grant allowances for the Government’s handling of its goods on its own piers, when it excluded the Terminal Corporation and took over the piers, the Government initiated these proceedings before the Commission for reparations under § 8 of the Interstate Commerce Act.3 It filed its complaint under §§ 9 and 13 of that Act.4 Claiming that the rates under the existing tariffs were unjust and unreasonable, and that it was discriminated against because other shippers were furnished wharfage and handling services which it performed at its own expense, the Government sought relief against continuance of alleged violations of §§ 1 (5) (a), 1 (6), and 15 (13) of the Interstate Commerce Act. The complaint was sustained by Division 2, with one Commissioner dissenting. United States v. Aberdeen & Rockfish R. Co., 263 I. C. C. 303. The full Commission reversed the findings of Division 2 and ordered the complaint dismissed, four Commissioners dissenting. 264 I. C. C. 683. On reargument the full Commission adhered to its findings, five Commissioners dissenting.5 3 24 Stat. 382, as amended, 49 U. S. C. § 8. 4 24 Stat. 382, as amended, 49 U. S. C. § 9, 24 Stat. 383, as amended, 49 U. S. C. § 13. 3 It held that the rates for export applied only when the wharves were public, which these wharves were not. The Commission also pointed out that the railroads had made other concessions to the Government; that the rates charged, together with a reasonable allowance for the services not provided, were still below the upper limits of reasonableness; that the wharfage charges had been absorbed because of competitive conditions. 264 I. C. C. 683, 269 I. C. C. 141. UNITED STATES v. I. C. C. 449 426 Frankfurter, J., dissenting. 269 I. C. C. 141. At the time of its final report, it was assumed that the operation of the piers reverted to the situation existing prior to June 15, 1942, so that the purpose of the proceeding before the Commission was deemed to be for reparations only. 269 I. C. C. at 147. Invoking the procedure of the Urgent Deficiencies Act of 1913, the Government then sought to set aside the order of the Commission dismissing the Government’s complaint. (Act of October 22, 1913, 38 Stat. 219-21, now 28 U. S. C. §§ 1253, 1336, 2101, 2284, 2321-2325.) A duly constituted district court, with three judges sitting, found itself without jurisdiction to review the Commission’s order. 78 F. Supp. 580. This judgment should be affirmed, insofar as it held that an order of the Commission denying damages by way of reparations in proceedings brought before the Commission is not reviewable in the courts. To ascertain whether an order of the Interstate Commerce Commission is open to judicial review, it should rigorously be borne in mind that jurisdiction to review such an order must have been conferred by Congress. To assume that an order of the Commission for which reviewing power is not conferred, is presumably reviewable by the courts is to start with the answer of the problem to be solved. Unless Congress has chosen to give the courts oversight of a determination by the Commission, the courts have not the power of oversight where, as here, the Constitution does not require it. If Congress has made no grant of power to courts to review the Commission’s order denying a claim for reparation, and, in fact, has explicitly withheld resort to the courts after such denial by the Commission, it is wholly immaterial that as to other types of orders the right to review has been given to the courts, or that a determination by the Commission closely related to reparations, but not in fact a claim for damages, does not bar access to the courts. 450 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. When dealing with the Interstate Commerce Act we are dealing not with an episodic bit of legislation to which the general jurisdiction of the federal courts presumably applies. We are dealing with the oldest regulatory scheme which, by successive amendments and enlargements, established a comprehensive, self-contained regime both of administration and adjudication. The scheme as a whole ought not to be dislocated to meet the exigencies of a particular situation. First. Judicial review of an order by the Commission dismissing a complaint for reparations has heretofore been urged exclusively on the basis of the Urgent Deficiencies Act. The jurisdiction of the district court in this case was invoked under that Act. This is the sole basis of jurisdiction urged by the Government here in its comprehensive brief and argument, and the Court rejects it. It rightly rejects it. But the compelling considerations for this rejection demand a further analysis of the structure and details of the jurisdictional provisions relating to orders of the Interstate Commerce Commission. Such analysis is essential to lay bare the equally compelling considerations against jurisdiction under the general equity powers of the district courts. Section 8 of the Interstate Commerce Act created a civil liability of carriers for damages caused by violation of the new obligations imposed by that Act. In the absence of specific remedies, it would be fair to assume that these new rights were enforceable in the district courts under their general jurisdiction over suits “arising under any Act of Congress regulating commerce.” 28 U. S. C. § 1337. But the Interstate Commerce Act did not stop with a mere declaration of liability. It defined a specific course of procedure; it particularized the remedies available to those to whom new rights were given and the way in which they were to be pursued. “In such a case the specification of one remedy normally excludes UNITED STATES v. I. C. C. 451 426 Frankfurter, J., dissenting. another.” Switchmens Union of North America v. National Mediation Board, 320 U. S. 297, 301. For charging more than the tariff rate or charging a discriminatory-rate, the Act provides alternative procedures set forth in detail in § 9. These are the relevant provisions: “any person or persons claiming to be damaged by any common carrier . . . may either make complaint to the Commission as hereinafter provided for, or may bring suit ... in any district . . . court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.” 24 Stat. 379, 382, as amended, 49 U. S. C. § 9. With qualifications shortly to be noted, a suit begun in a district court follows the course of any other action there. On the other hand, if the shipper prefers to pursue the alternative course—the administrative route—to obtain damages for a violation of the Act, he files his complaint with the Commission. As to a proceeding before the Commission, whether for damages or for a rate adjustment, § 13 defines the procedure;6 the role of the courts in relation to the Commission’s orders is defined by §§ 167 and 17 (9).8 Section 16 fixes the time for filing a complaint either in the courts or before the Commission; it also provides for the enforcement of an order awarding damages, limiting the time within which such an action must be brought, and stating the effect to be given to the Commission’s award. Since 1940, the provisions of the Urgent Deficiencies Act of 1913 (38 Stat. 219-21), conferring on the district courts the jurisdiction in suits on orders of the Commission theretofore vested in the abolished Commerce Court, were 6 24 Stat. 383, as amended, 49 U. S. C. § 13. 7 24 Stat. 384, as amended, 49 U. S. C. § 16. 8 54 Stat. 916, 49 U. S. C. § 17 (9). 837446 0—49------------33 452 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. incorporated in § 17 (9). A few years previous the procedural provisions of the Urgent Deficiencies Act of 1913 became part of Title 28 of the United States Code. By this scheme of law enforcement, carefully apportioned between Commission and courts, Congress has provided that insofar as any order, provided it is not one for money damages, can be enjoined, set aside and enforced it must be under the provisions dealing with suits to enforce, enjoin, or set aside orders of the Commission, “but not otherwise.” 54 Stat. 916, 49 U. S. C. § 17 (9). By this limitation Congress has made it as clear as language can that if an order is not within § 16, because not one for money damages, if review is available, it must be under § 17. If the Commission action does not fall within § 16 or § 17, it is not reviewable at all. Orders under § 17 are reviewable only as provided for in the Urgent Deficiencies Act. But the Urgent Deficiencies Act furnishes only procedural details; it merely defines the method of review and not the kinds of cases for which review is available. It did not make reviewable actions previously unreviewable. 50 Cong. Rec. 4536, 4542. Cf. Standard Oil Co. v. United States, 283 U. S. 235, 241; United States v. Jones, 336 U. S. 641, 647-8. It is the body of law constituting the Interstate Commerce Act which determines whether and under what circumstances review may be had. A long course of judicial application in a field of law, fairly to be called technical, has gradually ascertained from the context of the comprehensive scheme of legislation the kind and the characteristics of orders that are reviewable. If the dismissal of a reparation complaint is not within the phrase “any order” in § 17 (9) of the Interstate Commerce Act, it is also not within the “any order” phrase of the sections of Title 28 (§41 (28) and § 46 of the 1946 ed., and §§ 1336 and 2324 of the present Title 28), which embody the review provisions formerly in UNITED STATES v. I. C. C. 453 426 Frankfurter, J., dissenting. the Urgent Deficiencies Act of 1913, which provisions in turn were taken from the Commerce Court Act. 36 Stat. 539. Although § 2321 of Title 28 of the Revised Code requires that “any order” of the Interstate Commerce Commission other than one “for the payment of money” should be reviewed according to the procedure under the provisions providing for a three-judge court, it is clear that “there are many orders of the Commission which are not judicially reviewable under the provision now incorporated in the Urgent Deficiencies Act.” United States v. Los Angeles & S. L. R. Co., 273 U. S. 299, 309. In the Los Angeles & S. L. R. Co. case it was held that the district court had no jurisdiction to review a final valuation order—neither by virtue of the Urgent Deficiencies Act, nor under its general equity powers. This result was reached partly because of want of equity, but also because it was found, upon full consideration, that not every order of the Commission is “any order” within the jurisdictional authorization of the Interstate Commerce Act and the applicable provisions of the Urgent Deficiencies Act. So, also, an order refusing to increase the allowance for railroad mail compensation is not reviewable under the Urgent Deficiencies Act. United States v. Griffin, 303 U. S. 226; see also Great Northern R. Co. v. United States, 211 U. S. 172. The ground given in the Griffin case was that, although there was a case or controversy and final action, this type of order was not within the Urgent Deficiencies Act—and this, as we reaffirmed the other day, quite apart from the obsolete “negative order” doctrine. United States v. Jones, 336 U. S. 641, 647. Finally—and it ought to be decisive—on four occasions this Court has held that the Commission’s refusal to award reparations, when the shipper, as here, proceeded under § 13 of the Act, is not reviewable. Standard Oil Co. v. United States, 283 U. S. 235; Brady v. Interstate Commerce Comm’n, 43 F. 2d 847, affirmed per curiam 454 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. after argument, Brady n. United States, 283 U. S. 804; Allison & Co. v. United States, 12 F. Supp. 862, affirmed per curiam, 296 U. S. 546; Ashland Coal & Ice Co. v. United States, 61 F. Supp. 708, affirmed per curiam, 325 U. S. 840. These decisions were based upon the fact that the Interstate Commerce Act precludes review by the courts when the shipper had first sought damages before the Commission. The extraordinary consequences of jurisdiction under the Urgent Deficiencies Act—direct appeal to this Court, a district court of three judges, precedence over other cases on both trial and appeal—were to come into play in strictly limited situations. These can be fairly summarized as covering only the kinds of administrative orders which generally are “of public importance because of the widespread effect of the decisions” rendered by the Commission. United States v. Griffin, supra, 303 U. S. at 233. The reparation orders here involved, as is true of all reparation orders, since the shipper must show actual damages, concern only the shipper and the common carrier which charged the rate. An underlying legal issue which may be of wider public importance can, of course, be adjudicated in a way which permits judicial review. Thus, an order dealing with future rates is reviewable under the provisions for a three-judge court. But there is another reason why reparation orders are not reviewable under the three-judge court provisions. Section 17, incorporating the Urgent Deficiencies’ mode of review, is not concerned with reparation claims but with a wholly different matter. Reparation claims have been specifically dealt with in other sections of the Act, and, to the extent that review was intended, it is specifically provided for. By the original Act, orders for the payment of money were enforceable in equity. Interstate Commerce Act of 1887, § 16, 24 Stat. 379, 384-385. UNITED STATES v. I. C. C. 455 426 Frankfurter, J., dissenting. On the suggestion that this was a denial of the common carrier’s right to trial by jury guaranteed by the Seventh Amendment, see 19 Cong. Rec. 5149-50, Congress promptly provided that a successful shipper before the Commission had to sue at law on his award. 25 Stat. 855, 859-60, as amended, 49 U. S. C. § 16 (2). But there was no occasion for court review of a rate order because the original Interstate Commerce Act, while giving the shipper a right to damage for past violations, did not give the Commission rate-making authority. Interstate Commerce Commission v. Cincinnati, N. 0. & T. Pac. R. Co., 167 U. S. 479. The rate-making power was first conferred by the Hepburn Act of 1906. 34 Stat. 584, 586-587. For the review of such rate orders Congress enacted what is now § 17 (9). Then, for the first time, the courts were given jurisdiction over a suit “to enjoin, set aside, annul, or suspend any order or requirement of the Commission,” and “jurisdiction to hear and determine such suits” was thereby vested in the circuit court of the district in which the common carrier was located. 34 Stat. 592; see H. R. Rep. No. 591,59th Cong., 1st Sess. 4-5 (1906); H. R. Rep. No. 4093, 58th Cong., 3d Sess. 2, 5 (1905); United States v. Los Angeles & S. L. R. Co., 273 U. S. 299, 309. In 1910, this identical jurisdiction was transferred from the circuit courts and conferred upon the newly created Commerce Court, but it was expressly provided: “Nothing contained in this Act shall be construed as enlarging the jurisdiction now possessed by the circuit courts of the United States . . . .” 36 Stat. 539. This provision was inserted in the legislation so “that the creation of this court shall not be construed as giving to the Commerce Court any greater jurisdiction than is now possessed by the circuit courts of the United States over similar matters.” H. R. Rep. No. 923, 61st Cong., 2d Sess. 7 (1910); see S. Rep. No. 355, 61st Cong., 2d Sess. 456 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. 4, Pt. 2, 4-5 (1910); see S. Doc. No. 606, Vol. 54, 61st Cong., 2d Sess. 2 (1910). By this legislation of 1910, Congress merely provided for a shift of jurisdiction, from the old circuit courts to the new centralized Commerce Court, and not an enlargement of jurisdiction. When in 1913 the Commerce Court was abolished the same jurisdiction was revested in the district courts, the circuit courts having been abolished in the meantime: “the jurisdiction vested in said Commerce Court . . . [was] transferred to and vested in the several district courts of the United States.” 38 Stat. 219. Indisputably Congress did not make reviewable orders which could not have been reviewed by the Commerce Court.9 Therefore, even putting to one side § 9, the dismissal of the reparation complaint was clearly not within the words “any order” in §17 (9): (l)ifit were within § 17 (9) it would be reviewable only by a three-judge court, 9 There was no Committee Report on this legislation; it was added to an appropriation bill. See 50 Cong. Rec. 4527-8. Mr. Fitzgerald, the sponsor of the amendment, said that its sole purpose was to abolish the Commerce Court and make provision for the litigation over which that court had jurisdiction. “It does not give any new right to any parties.” 50 Cong. Rec. 4532, 4536, 4542. There was an attempt to enlarge the review provision so as to give shippers review where previously it did not exist, but this amendment was defeated after debate. 50 Cong. Rec. 4532, 4543-44. It was said: “The legislation contained in this bill simply abolishes a court that ought never to have been created and vests the jurisdiction which it now exercises in the district courts of the United States. That is all of it, and that is all there ought to be of it. There ought not to be any attempt to enact substantive law in this bill. There ought not to be any attempt to have an increase or decrease of the powers of the commission, and there ought not to be any attempt to increase or decrease the jurisdiction of the district courts over that of the Commerce Court. The only reason why the district courts are designated instead of the circuit courts is that the circuit courts have been abolished since the Commerce Court was created.” 50 Cong. Rec. 4536. UNITED STATES v. I. C. C. 457 426 Frankfurter, J., dissenting. but that reviewing device is not applicable to reparation claims; (2) reparation claims are not within § 17 (9) because they have been treated by a different scheme throughout the history of the Act. If review is to be found within the Act, it must be because of provisions other than those in § 17 (9). Second. The only other provision in the Interstate Commerce Act which affords judicial review of an order is § 16. That section, however, comes into force only when an award for damages is made. Rejection by the Commission of a money claim is outside the express terms of that section and not within what can fairly be implied from any language in it. A general argument of fairness is made that since this section provides for court review when an award is made where the carrier loses, the shipper is entitled to review when the carrier wins. Leaving aside, temporarily, the fact that what Congress has written in § 9 forecloses court review, to yield to such an inference in favor of a shipper whose claim is denied raises insuperable difficulties once we leave the text and scheme of the Act and go at large as to court review. Thus there would be no limit on the time in which review of the Commission’s dismissal of the reparation claim could be brought, whereas § 16 fixes a time limit for suits against the carrier on awards by the Commission. 43 Stat. 633, as amended, 49 U. S. C. § 16 (3) (f). This is just one of the obstructions if we are to imply court review of orders disallowing reparation claims because Congress has seen fit to allow suits on orders granting an award. In other respects the Court would have to legislate for Congress. What effect is to be given to the Commission’s finding? If the shipper receives an award of damages and sues the carrier thereon, § 16 (2) provides that the Commission’s findings are prima facie evidence. 41 Stat. 491, as amended, 49 U. S. C. § 16 (2). Are we to create the same rule judicially, though Congress 458 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. has not done so, when the shipper fails before the Commission ? May the shipper introduce new evidence in the district court? When the shipper sues the common carrier, the Commission’s action in making an award “cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury.” Meeker & Co. n. Lehigh Valley R. Co., 236 U. S. 412, 430. But if the unsuccessful shipper can save up evidence until he gets in court, the advantages of a Commission hearing are destroyed. What will be the scope of the Court’s jurisdiction? Would the district court determine only liability, or also the amount to be recovered, or only that the Commission acted without justification in fact or contrary to law? The answer to none of these questions can be found in § 16. Yet, one would suppose, if review in this situation is to be derived from §16, some guides for its exercise should also be found in that section, considering the particularities with which it defines review in the instances authorizing court action. Therefore, this Court has held: “Section 16 (2) does not permit suit in the absence of an award, and if the Commission denies him relief, a claimant is remediless.” Baltimore & Ohio R. Co. v. Brady, 288 U. S. 448, 458. Money damages are part of the regulatory scheme. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 258. But while the Commission may determine that rates for the future be reduced, it is not required to award damages for the higher rates in the past. Thus it is not at all strange that its action be not subject to court review where the shipper has failed to persuade the Commission to award damages. Baltimore & Ohio R. Co. v. Brady, 288 U. S. 448, 458. Especially is this true when Congress has provided for an alternative procedure whereby the shipper would have been able to go to court. Therefore, even without any explicit provision it would be a reasonable inference that Congress did not intend UNITED STATES v. I. C. C. 459 426 Frankfurter, J., dissenting. to grant a review where the shipper has decided to seek his damages before the Commission. Even though Congress provided alternate methods of securing damages, and authorized court review when the Commission sustained a money claim, but not when it denied such a claim, Congress did not leave merely to rational inference that upon denial of a money award by the Commission, the shipper could not again try his luck in court. By § 9 Congress gave the shipper his choice of forum: he could ask for damages either from the Commission or a court, but could “not have the right to pursue both of said remedies”; he “must in each case elect which one of the two methods of procedure herein provided for he . . . will adopt.” 24 Stat. 382, as amended, 49 U. S. C. § 9. If the shipper asks the Commission to award him damages and it goes against him, Congress has barred review of the denial or revision of the amount of the award. Baltimore & 0. R. Co. v. Brady, 288 U. S. 448, 458-59. Since Congress gave the shipper the alternative of administrative or judicial relief, there can be no question but that Congress was constitutionally free to make final the administrative choice. Third. Since access to court review of an order denying reparations was barred by the Interstate Commerce Act, such review is not available under the general jurisdiction of the district courts. 28 U. S. C. § 1337. It has never been suggested, during some sixty years of active litigation over this problem, that for review of such an order resort may be had to a court of equity outside the framework of the Interstate Commerce Act. Even the Government does not now suggest it, and naturally so. Due regard for the explicit provisions of the Act precludes it. And for these reasons: (1) The specific terms of § 17 (9) which alone give reviewing power to the courts, save in cases where the carrier has been held to owe money, do so “under those pro- 460 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. visions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.” 54 Stat. 916, 49 U. S. C. § 17 (9). It is obvious that review would be “otherwise” if the unsuccessful shipper be permitted to bring an action under 28 U. S. C. § 1337. This reason exists independently of the fact that § 9 also prohibits court action after an attempt to recover damages is made before the Commission. It is also independent of the fact that provisions of Title 28 do not make reviewable orders for which the Interstate Commerce Act does not provide review. (2) Because of these provisions, review of reparation claims differs from the situation in Shields v. Utah I. C. R. Co., 305 U. S. 177. There the Court was not confronted with an enactment which said that if a person sought the Commission’s aid he could not thereafter go to court. The Shields case is inapposite on another ground. By determining that a certain railroad was subject to the Interstate Commerce Act, the Commission placed the railroad under the active hazards of criminal sanctions. Equity was invoked for one of its ancient functions of staying a multiplicity of criminal prosecutions to avoid irreparable harm. See 305 U. S. at 183, and Switchmen’s Union of North America v. National Mediation Board, 320 U. S. 297, 306. Here there is not the remotest ground for appeal to equity. It is merely a matter of dollars and cents—not the hazards of criminal prosecution—and an insistence on having two modes of recovering money damages when Congress has given shippers the choice of one or the other. There is a total absence of any of the traditional grounds for equitable relief. Cf. United States n. Los Angeles & S. L. R. Co., 273 U. S. 299, 314-5. Nor is review permitted under § 1336 of Title 28 (1948), if it is determined that the type of order involved is not of the nature calling for a three-judge court. The UNITED STATES v. I. C. C. 461 426 Frankfurter, J., dissenting. Government relied on the special scheme of the Urgent Deficiencies Act as incorporated in the Interstate Commerce Act conferring jurisdiction to review orders of the Commission. This scheme requires review by a three-judge court. The Court rejects that claim on the ground that a reparation order is not the type of order so reviewable. Instead the Court finds jurisdiction in the district court to entertain a petition to review an order of the Commission denying reparation in § 41 (28) of Title 28 (1946 ed.), now § 1336. But jurisdiction under § 41 (28) carries also the requirement of a three-judge court. See §§ 41-47, now c. 157 of Title 28 of the Revised Code. No jurisdiction can be derived from § 41 (28) of Title 28 unless the order is of the type that is reviewable by a three-judge court. To reject the latter is necessarily to hold that no jurisdiction of the district court is derivable from § 41 (28) of Title 28, now § 1336.10 10 In United States v. Griffin, 303 U. S. 226, it was held that because the type of order there involved was not the type reviewable by a three-judge court, the phrase the “district courts shall have jurisdiction ‘of cases brought to enjoin, set aside, annul or suspend in whole or in part any order of the Interstate Commerce Commission’,” did not confer jurisdiction on the district court. 303 U. S. at 227-228. The quoted words are the provision in the Urgent Deficiencies Act and are precisely the same provision that was carried over to §41 (28). When we had this general problem here the other day in United States v. Jones, 336 U. S. 641, it was not suggested that there was jurisdiction to review an order of the Commission under §41 (28), now § 1336 of Title 28. Instead, the Court agreed with the Griffin case that the order there involved was not of a type calling for a three-judge court and therefore that the jurisdictional provisions of §41 (28), now § 1336 of Title 28, were not applicable. The Court significantly referred to the provisions of §41 (6), now § 1339 of Title 28, the section giving general jurisdiction over suits arising under the postal laws, as the only possible source of jurisdiction. In the context of this case the comparable provision is § 41 (8), now § 1337. The only reason why the Court now seeks to warp the whole structure of Title 28 rather than to rely on the only section 462 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. Moreover, a suit filed under the jurisdiction of § 41 (28) of Title 28 is one against the United States with the Interstate Commerce Commission as a party only if it chooses to intervene. 28 U. S. C. §§ 2322, 2323. Congressional consent is required to authorize such a suit and congressional consent has been authorized only under the conditions requisite for a three-judge court proceeding for which this Court finds no jurisdiction, 28 U. S. C. §§ 2321-2325. On the basis of the result in this case the decision below in the Great Lakes Steel case, No. 749 this Term, must of course be reversed. And so this Court would direct the allowance of a suit against the United States, although Congress has not given consent thereto. The only possible escape from this conclusion is that jurisdiction is to be denied when a private shipper seeks to go into court after the Commission has dismissed his complaint for damages, as in the Great Lakes Steel case, but jurisdiction somehow or other should be acknowledged when the Government is the shipper. The defense of sovereign immunity, moreover, cannot be avoided by directing that the suit proceed only against the Interstate Commerce Commission. There is no claim that the Commission acted unconstitutionally, or that it proceeded under an unconstitutional statute, or that it acted beyond the authority conferred by a valid statute. It merely acted within the scope of its authority and made a determination, as it was legally bound to do, based upon the law and the facts. The difficulty of which conceivably gives jurisdiction to a one-judge court is in order to escape the embarrassing fact that such a suit would be squarely in the face of § 9 of the Interstate Commerce Act. Of course even the procedure adopted is in the face of § 9 of the Interstate Commerce Act as interpreted in four previous decisions of the Court. But reliance on §41 (8), now § 1337, would at least have the virtue of only mutilating one Act—that is, the Interstate Commerce Act— rather than both that Act and § 41 (28) of Title 28 (1946 ed.), now § 1336 and c. 157 of Title 28 of the Revised Code. UNITED STATES v. I. C. C. 463 426 Frankfurter, J., dissenting. sovereign immunity forcibly demonstrates again why a method of court review cannot be found outside the provisions of the Interstate Commerce Act. Fourth. We now turn to § 9. The language leaves no room for doubt. But it is now urged (though the Government has not so argued in the four decisions that went against private shippers) that where the damage claim was based on other than a mere arithmetical overcharge, the election afforded by § 9 is illusory. This is so, it is argued, because when complaint is made that rates were unfair, prejudicial or unreasonable, the doctrine of Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, is brought into operation. It is said that the Government never had an opportunity to go into court until the Commission dismissed its complaint. Sufficient respect is given to § 9, so the argument runs, by reading it to bar “initiating” another action in the court after it has failed before the Commission, not to reviewing the Commission’s action. So to argue is to rewrite what Congress has written. Congress did not bar “initiating”; it barred “the right to pursue.” The Court concedes that § 9 is a bar when a shipper could have gone in the first instance to the courts. This was so ruled in Baltimore & 0. R. Co. v. Brady, 288 U. S. 448. But what language affords a basis for a distinction when a determination of a transportation issue must be made by the Commission before the case can proceed to judgment? Moreover, the result of the Court’s decision is to make the Commission’s decision final in those instances where the Commission is acting purely judicially—merely a matter of applying the law to the facts—but not final when the Commission, acting in the realm of its administrative expertness, found a practice legal, and therefore denied damages. Adjudication and settled practice before the Commission likewise disprove this discovery that the choice given by Congress in § 9 is a sham. 464 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. The Commission must often pass on the legality of a particular practice of a carrier; such proceedings may serve as the basis for reparations. Under Part I of the Transportation Act, relating to rail carriers, the shipper may ask the Commission for a declaration that a practice has been illegal and base a claim of damages on such illegality under § 8 of the Act. His other course is to secure a Commission determination only as to the illegality of the practice and not ask for an award, reserving the claim of damages for court action. This may be done in one of two ways. He may begin by filing his suit in court and ask the court to hold the case until he has obtained an administrative determination from the Commission.11 There is no jurisdictional bar to such a procedure. In Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, the Court said the case should be dismissed, but preoccupation was with the necessity for prior administrative determination, not with whether there was jurisdiction in the sense of power to hold the case until there had been a Commission determination. Cases—decided after the Abilene case—have clearly rec- 11 For the period since April 28, 1948, although there have been no instances in which the shipper has asked for a determination of the legality of a practice under Part I of the Act, in a complaint which also stated that a court action was being held in abeyance, there have been thirteen instances where complaints were filed before the Commission asking only for a determination of the legality of a practice because the complainant there was the defendant in a civil action in the courts. Since January, 1948, there have been five proceedings under Part II of the Act in which the shipper first instituted suit in the courts and then asked that the suit be held in abeyance until the Commission made a determination as to the legality of a particular practice. It should be pointed out that under Part II of the Act the Commission has no power to award damages; the doctrine of primary jurisdiction, however, is nevertheless applicable. Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337, 342-343. UNITED STATES v. I. C. C. 465 426 Frankfurter, J., dissenting. ognized that there is jurisdiction to hold the case, and this procedure has been suggested in a number of them.12 Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 267; Morrisdale Coal Co. n. Pennsylvania R. Co., 230 U. S. 304, 314-5; see Smith v. Hoboken R. Co., 328 U. S. 123, 133; Thompson v. Texas Mexican R. Co., 12 The El Dorado Terminal Co. litigation did not involve a claim by a shipper for recovery of an overcharge by a carrier. Therefore, the decisions in General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, and El Dorado Oil Works n. United States, 328 U. S. 12, did not involve the statutory scheme relating to reparations. The cases have no bearing on the problem here—namely the jurisdictional requirements of § 9 in the context of the Interstate Commerce Act. The El Dorado litigation was an ordinary action on a contract. Entangled, however, in the proper construction of that contract was the ascertainment of a transportation fact, which, with due regard to the Abilene doctrine, made prior determination by the Interstate Commerce Commission appropriate. To that end it was ruled, in the first El Dorado case, that the action in the District Court should be held for such administrative determination. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422. That ruling does establish that simply because a prior determination by the Interstate Commerce Commission is required before a litigation can proceed to judgment does not deprive a district court of jurisdiction. This circumstance merely calls for the suspension of the exercise of jurisdiction until the appropriate fact is established by the Interstate Commerce Commission and then introduced in evidence in the pending court case, instead of being established independently in court, as is usually the case. “While we rejected the Commission’s contention that the District Court had no jurisdiction to hear the case, we accepted its contention that determination of the validity of the challenged past practices was for the Commission.” El Dorado Oil Works v. United States, 328 U. S. 12, 17. The order made by the Interstate Commerce Commission in response to the requirement of the first El Dorado case was not an order of dismissal in a reparation suit. Procedurally it did not make very much difference, therefore, whether this order of the Interstate Commerce Commission should have been entered in the pending litigation or was allowed to be considered in a new proceeding before the District Court. As a matter of procedural elegance it was more appropriate 466 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. 328 U. S. 134, 151; see also Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337, 343. The other method open to a shipper who desires to avail himself of the court remedy given by § 9 is to initiate proceedings before the Commission and to ask merely for a declaration regarding the legality of a past practice, but not for damages. This course is manifested by the complaints before the Commission, asking merely for a declaration without any ad damnum. For the period between July, 1947, and February, 1949, 46 such cases were filed under Part I of the Act. Under Part II, 22 complaints have been filed since January 1, 1948, requesting such a declaration as to the legality of a practice.13 for it to have formed part of the then pending litigation which was suspended precisely for the purpose of obtaining such an order. In Armour & Co. v. Alton R. Co., 312 U. S. 195, the essential question was whether a particular issue could be determined by the court or, in conformity with the Abilene doctrine, required Commission determination. The preoccupation of the case was with that issue. After holding that the doctrine of the Abilene case was applicable, the Court affirmed the judgment below requiring a ruling from the Interstate Commerce Commission, without considering whether there was jurisdiction in the sense of power to entertain but hold the case. 13 These figures are not given to imply that in every instance, or even in most instances, Commission action is followed by a suit in the court for damages. Their sole purpose is to show that, by not seeking damages from the Commission, a complainant leaves himself free, under § 9, to go to the courts. The Commission prefers that the shipper first file a suit in the court before asking the Commission for a declaration. This procedure has the advantage of preventing the statute of limitations from running on the shipper while awaiting Commission decision. Also, “In circumstances such as described, it is apparent that precautions should be taken to prevent the filing of frivolous or moot complaints. Without attempting at this time to devise a precise rule, we think it pertinent to point out that, generally speaking, adversary proceedings involving past unreasonableness, unjust discrimination, UNITED STATES v. I. C. C. 467 426 Frankfurter, J., dissenting. The Government thus had a real choice. Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U. S. 500, 507-8. But, having first sought the advantages of a Commission award, it foreclosed itself from pursuing a judicial remedy when its expectations failed. A double remedy which Congress denied, this Court ought not to grant. The Government “had a choice . . . between a remedy at the hands of the Commission and a remedy by suit, but by express provision of the statute it could not have them both.” Terminal Warehouse Co. v. Pennsylvania R. Co., supra, p. 508. The conclusion reached by a reading of the statute is reenforced by the adjudicated cases. In Standard Oil Co. v. United States, 283 U. S. 235, three distinct grounds were given for affirming the district court’s dismissal for want of jurisdiction of a suit to review an order of the Commission dismissing a claim for damages. One reason was that the order was “a negative order”; that reason has been displaced by Rochester Telephone Corp. n. United States, 307 U. S. 125. But the Standard Oil decision was left intact by the Rochester decision, for the opinion in that case explicitly pointed out that “the main basis” of the Standard Oil decision “was not the ‘negative order’ doctrine but [that] the statutory scheme dealing with reparations” precluded review of an order denying money damages. 307 U. S. at p. 140, n. 23. The “stat- or undue prejudice under part II should not be brought before us prior to the institution of a suit in court in which damages are sought predicated upon the unlawfulness alleged in the complaint. The complaint should show that such suit has been brought within the period allowed by the applicable statute of limitations. There may be other situations in which we should exercise this jurisdiction. In this connection, it may be noted that it is a recognized practice to hold in abeyance court proceedings pending the determination by the Commission of administrative questions.” Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337,343. 837446 0—49------------34 468 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U. S. utory scheme” was thus defined in the Standard Oil case: “Having elected to proceed and having proceeded to a determination before the Commission, appellant was, by force of this provision [§ 9], precluded from seeking reparation upon the same claims by the alternative method of procedure.” 283 U. S. at 241; see also Mr. Justice Cardozo for the Court in Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U. S. 500, 507-8. The Standard Oil Company as a shipper was precisely in the same situation as the United States in this case; the United States pursued the same course in this case as did the Standard Oil Company. The Standard Oil Company was not “initiating” an action in the district court but was seeking judicial review of the Commission’s action, and this is precisely what the United States is doing in this case. The only difference between the Standard Oil case and this case is that in the earlier case the Standard Oil Company was the plaintiff, and in this case it is the Government. What the Court said in the Standard Oil case is equally applicable here. “It is of no importance that the adjudication sought is to take the form of a direction to the Commission to grant the prayer of the complaints filed before that body, etc., instead of a plenary judgment to the same end, for the prayer in that form is nothing less than an attempt to avoid the statute by indirection.” 283 U. S. at p. 241. In view of the fact that the Rochester case expressly saved that phase of the Standard Oil decision which is decisive of the problem before us now—“the statutory scheme dealing with reparations”—the Court’s holding that the Rochester case impliedly overruled the Standard Oil case means of course that to this extent the Court today overrules the Rochester case, not that the Rochester case had overruled the Standard Oil case, wholly apart from the fact that the Standard Oil decision was the UNITED STATES v. I. C. C. 469 426 Frankfurter, J., dissenting. basis of a decision long after the Rochester case.14 Ashland Coal & Ice Co. v. United States, 325 U. S. 840. And to what end these dislocations of so many decisions? We have been vouchsafed no considerations of policy, no revealed injustice flowing from the construction thus far placed upon the reparations provision of the Interstate Commerce Act, no difficulties in its ad- 14 No decision of this Court has ever expressly or impliedly overruled the decision in the Standard Oil case. Least of all can it be said that Rochester Telephone Corp. N. United States, 307 U. S. 125, overruled the case, for the opinion with great care stated that the Standard Oil case was not overruled in its holding that orders dismissing a claim for reparations were not reviewable because of § 9 of the Interstate Commerce Act. See 307 U. S. at p. 140, n. 23. The Court there did only what the Court the other day did in United States v. Jones, 336 U. S. 641, 647-8, that is, it decided that for reasons wholly unrelated to the “negative order” doctrine an order of the Commission was not reviewable. If anything, the conclusion in the Standard Oil case was reinforced by the Rochester decision in that it was reaffirmed by the very decision that put the “negative order” doctrine and decisions dealing with it under the strictest scrutiny. That examination revealed that only one case out of the whole series of cases examined was really determined by the “negative order” doctrine. That was the only case the Court overruled. And even Mr. Justice Butler, who filed a separate opinion, did not say that other cases were being overruled. He objected, essentially, to their reexamination. He said: “The case presents no debatable question as to the jurisdiction of the district court. A statement of the facts alleged conclusively shows that in purpose, terms and effect the final order constitutes not mere determination or declaration but affirmative commands. There is no occasion to review earlier decisions dealing with affirmative and negative administrative orders and obviously none to overrule any of them or to repudiate or impair the doctrine they establish.” Rochester Telephone Corp. v. United States, 307 U. S. 125, 146, 147-48. That the Rochester case did not overrule Standard Oil is conclusively proved by the fact that this Court relied on that case less than four years ago to affirm a judgment dismissing a petition to review an order dismissing a claim for reparation. Ashland Coal & Ice Co. v. United States, 325 U. S. 840. 470 OCTOBER TERM, 1948. Frankfurter, J., dissenting. 337 U.S. ministration, no disclosure of new materials for the proper construction of an old statute. And the current of settled judicial construction as well as administrative practice is now reversed against the vigorous protest of the agency charged with the administration of the law although only a week ago we greatly relied on administrative practice as the basis of judicial interpretation. The result reached in the Standard Oil case was not limited to controversies which did not involve the “primary jurisdiction” doctrine. The district court in that case did assume arguendo that the issue involved nothing which required administrative determination before it addressed itself to the basic jurisdictional question. See Standard Oil Co. n. United States, 41 F. 2d 836. On appeal, however, this Court did not confine in any way the bar imposed by § 9 to resort to a district court after an unsuccessful resort to the Commission for reparations. It read § 9 as it was written, as a provision for a choice of tribunals so that, if damages are sought from the Commission and denied by it, the courts are closed to a further consideration of such a claim. The suggestion at this late date that the election so specifically defined by § 9 applies only to those instances in which no need for Commission determination of transportation issues may be required is completely dispelled by Brady v. United States, 283 U. S. 804. In the Brady case, damages were based on the claim that the carrier’s practices were unjust, unreasonable and unduly prejudicial—the exact grounds urged in this case. The Commission refused to award reparations in the amount claimed by Brady and the shipper brought precisely the same kind of suit that the United States as shipper brought here. Brady argued that since the controversy was within the Commission’s so-called “primary jurisdiction,” he never had the choice of proceeding in court rather than UNITED STATES v. I. C. C. 471 426 Frankfurter, J., dissenting. going to the Commission. The district court dismissed his suit for want of jurisdiction to review the action of the Commission and this Court sustained that denial of jurisdiction. It did so on the basis of the Standard Oil decision which had been rendered a month before, for the Standard Oil case, as did the Brady case, and as does this case, involved questions which, as such, required preliminary Commission determination. The scope of the Standard Oil and Brady cases is made unambiguously clear by reliance on them for the decision in Allison & Co. v. United States, 296 U. S. 546, 664, and Ashland Coal & Ice Co. v. United States, 325 U. S. 840. In each case issues were involved which indubitably fell under the requirement of the “primary jurisdiction” doctrine. In each of these cases the shipper relied on the claim that his case was distinguishable from the Standard Oil and the Brady cases. The same distinctions which are now advanced by the Government were then advanced by the shipper but resisted by the Government. The Government then rightly insisted that the Standard Oil and the Brady cases could not be restricted to situations where the “primary jurisdiction” doctrine was inoperative and that the decision in those cases—that § 9 is unqualified in precluding resort to judicial review in all cases where damages had first been denied by the Commission—was compelled by a proper construction of § 9. This position of the Government was considered so incontestable that the Court deemed oral argument needless and granted the Government’s motion to affirm. The Government’s interest has changed, but not the force of its position when it was without self-interest. I would affirm. 472 OCTOBER TERM, 1948. Syllabus. 337 U. S. PROPPER, RECEIVER, v. CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 390. Argued March 28-29, 1949.—Decided June 20, 1949. Pursuant to § 5 (b) of the Trading with the Enemy Act, as amended, the President promulgated Executive Order No. 8389 prohibiting certain transactions in property of nationals of certain foreign countries except when licensed by the Secretary of the Treasury. Two days before this was made applicable to Austria by Executive Order No. 8785, petitioner was designated by a New York court as temporary receiver of the assets of an Austrian national (AKM). The asset was a debt owed by the American Society of Composers, Authors and Publishers (ASCAP), and no license permitting its transfer was issued. After issuance of Executive Order No. 8785, petitioner was designated permanent receiver. Subsequently, the Alien Property Custodian issued an order vesting in himself title to the claim of AKM against ASCAP. Held: In a suit by the Custodian against petitioner and ASCAP, judgments were properly entered declaring that petitioner had no right, title or interest in the claim and directing ASCAP to pay it to the Custodian. Pp. 474-493. 1. The Joint Resolution of May 7, 1940, amending § 5 (b) of the Trading with the Enemy Act, and Executive Order No. 8389, issued April 10, 1940, put into effect a valid plan for control of the property covered by the Executive Order that prohibited any change of title to the property here involved by reason of the subsequent appointment of petitioner as permanent receiver. Pp. 476-486. (a) The Joint Resolution of May 7, 1940, ratified Executive Order No. 8389, issued April 10, 1940, including the broad definition of “banking institution” as including “any person holding credits for others as a direct or incidental part of his business.” Pp. 478-479. (b) Not being defined, the term “credit,” as used in the Trading with the Enemy Act, the Executive Orders and the regulations thereunder, is given its ordinary meaning of the obligation due on accounting between parties to transactions. P. 480. PROPPER v. CLARK. 473 472 Statement of the Case. (c) Petitioner and ASCAP are “banking institutions” within the meaning of the definitions of that term in the Executive Orders and the prohibition against “transfers of credit between any banking institutions.” Pp. 480-482. (d) A transfer of the credit here involved from a liability owed by ASCAP to AKM to a liability owed by ASCAP to petitioner would violate the prohibition against “transfers of credit.” P. 482. (e) Although title to the claim in question had not been vested in the Custodian when petitioner was appointed permanent receiver, the Executive Orders prevented title from being transferred to petitioner, even by judicial action. Pp. 482-485. (f) A different result is not required by the administrative interpretation of the Executive Orders. Pp. 485—486. 2. Under § 977-b of the New York Civil Practice Act, title to the claim did not pass to petitioner by virtue of his appointment as temporary receiver before issuance of Executive Order No. 8785. Pp. 486-492. (a) Although the state statute is susceptible of varying interpretations and the point has not been ruled upon by the state courts, this Court accepts the reasonable interpretation given to it by the Federal District Court and Court of Appeals, which are skilled in the laws of New York. Pp. 486-489. (b) This Court rejects petitioner’s suggestion that a decision in the federal courts should be delayed until the courts of New York have settled the issue of state law. Pp. 489-492. 3. The federal courts were not precluded from adjudging the rights of the respective parties in this case on the ground that the property was in the hands of the state court by virtue of a state receivership. Pp. 492—493. 169 F. 2d 324, affirmed. In a suit by the Alien Property Custodian under § 17 of the Trading with the Enemy Act, a Federal District Court entered judgments declaring that a receiver appointed by a state court had no right, title or interest in a debt owed to an Austrian national and directing the debtor to pay the debt to the Custodian. 70 F. Supp. 202. The Court of Appeals affirmed. 169 F. 2d 324. This Court granted certiorari; limited to two issues. 335 U. S. 902. Affirmed, p. 493. 474 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. A. Walter Socolow and Joseph M. Cohen argued the cause and filed a brief for petitioner. David Schwartz argued the cause for Clark, Attorney General, respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon, James L. Morrisson and Joseph Laujer. Louis D. Frohlich argued the cause and filed a brief for Deems Taylor, as President of the American Society of Composers, Authors and Publishers. Mr. Justice Reed delivered the opinion of the Court. The Alien Property Custodian1 on April 22,1946, began this action under § 17 of the Trading with the Enemy Act in the United States District Court for the Southern District of New York to obtain the payment, and a declaration of title in him as against the petitioner as receiver, of certain royalties owed by the American Society of Composers, Authors and Publishers (ASCAP) to Staatlich Genehmigte Gesellschaft der Autoren, Kom-ponisten und Musikverleger (AKM), an Austrian association, pursuant to the provisions of Vesting Order No. 2097, Office of Alien Property Custodian, September 4, 1943, 8 Fed. Reg. 16463, whereby the Custodian had vested in himself title to certain property of AKM, specifically claims for royalties under copyrights for the performance of musical compositions. By contract ASCAP had been authorized by AKM to license on royalty the use in this country of musical copyrights belonging to AKM. ASCAP and the petitioner, who is the state-appointed receiver of the royalties involved, were made defendants. The District Court, on motion for summary judgment or judgment on the pleadings, entered a judgment declaring 1 Tom C. Clark, Attorney General, was duly substituted as Successor to the Alien Property Custodian. PROPPER v. CLARK. 475 472 Opinion of the Court. that the petitioner had no right, title or interest in the claim in question, Markham v. Taylor, 70 F. Supp. 202, and later, a second judgment directing ASCAP to pay the debt to the Custodian. The United States Court of Appeals for the Second Circuit, on appeal by the petitioner,2 affirmed. Clark v. Propper, 169 F. 2d 324. The pertinent facts underlying this controversy are as follows: On June 12, 1941, on an ex parte application by a creditor of AKM, the New York Supreme Court appointed petitioner temporary receiver of that association, pursuant to § 977-b of the New York Civil Practice Act, which provides for the liquidation of the local assets of a foreign corporation when it has ceased to do business for one reason or another not here important. Proceedings under this Act are to enable claimants against the foreign corporation to secure payment of their claims by an equitable apportionment of the available assets. The order of appointment directed him “to take, receive and reduce to his possession any and all assets . . . tangible and intangible, within the State of New York, of the defendant [AKM], and hold the same until the further order of this Court.” On June 14, 1941, pursuant to § 5 (b) of the Trading with the Enemy Act of 1917, 40 Stat. 411, 415, as amended,3 the President promulgated Executive Order No. 8785/ a so-called “freezing order,” which prohibited certain transactions involving Austrian property except as they were specifically licensed by the Secretary of the Treasury. On July 29,1941, petitioner, as receiver, began an action in the courts of New 2 ASCAP, having stipulated to the entry of a judgment against it, did not appeal. It filed a motion here to be made a party. It was permitted to argue and there is now no occasion to grant the motion. It is denied. 3 By the Joint Resolution of May 7,1940, 54 Stat. 179. 4 6 Fed. Reg. 2897. 476 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. York against ASCAP to recover the royalties which it owed AKM.5 Its disposition is awaiting the outcome of this case. On September 29, 1941, petitioner, upon the default of AKM, was appointed permanent receiver of that association’s assets. Thereafter followed the vesting order, September 4,1943, and this suit, April 22,1946. Upon the limited grant of the petition for certiorari, 335 U. S. 902, the issues argued before this Court and now to be decided are whether the appointment of petitioner as temporary receiver on June 12, 1941, or his appointment as permanent receiver on September 29,1941, by relation back, passed title to him of the claim for royalties as of June 12, 1941. Furthermore, since, as will subsequently appear, we conclude these issues against petitioner, we must consider whether the freezing order barred a subsequent unlicensed judicial transfer by the order appointing the petitioner permanent receiver.6 First. The appointment as permanent receiver on September 29, 1941, concededly would have vested in petitioner as permanent receiver all right, title and interest of AKM in its claim against ASCAP if the freezing order of June 14, 1941, had not intervened after petitioner’s appointment as temporary receiver on June 12, 1941. 5 For opinions of the New York courts relating to the petitioner’s action against ASCAP, see Propper v. Buck, 106 N. Y. Law Journal, No. 101, October 29, 1941, p. 1268, col. 5; Propper v. Buck, 263 App. Div. 807, 32 N. Y. S. 2d 103 (1st Dept.); Propper v. Buck, 178 Mise. 76, 33 N. Y. S. 2d 11 (Sup. Ct. N. Y. Co.), affirmed, 263 App. Div. 948, 34 N. Y. S. 2d 134; Propper v. Taylor, 186 Mise. 70, 58 N. Y. S. 2d 829 (Sup. Ct. N. Y. Co.), affirmed, 270 App. Div. 890, 62 N. Y. S. 2d 602 (1st Dept.); Propper v. Taylor, 186 Mise. 72, 58 N. Y. S. 2d 831 (Sup. Ct. N. Y. Co.), modified, 270 App. Div. 890, 62 N. Y. S. 2d 601 (1st Dept.). 6 This latter issue was brought forward by the petition for certiorari, Question Presented No. 3, and before argument its discussion by brief and at the bar was formally requested by this Court, although no order to that effect was entered. PROPPER v. CLARK. 477 472 Opinion of the Court. Accepting that position, the question of whether the appointment as permanent receiver related back to the date of the temporary receivership, so as to place title to the claim in the permanent receiver as of June 12, 1941, and the question as to whether the appointment as permanent receiver itself vested title in the petitioner, notwithstanding the prior freezing order, depend alike upon a determination as to whether the freezing order made invalid any subsequent transfer of title by judicial action. The vesting order here in question, Vesting Order No. 2097, 8 Fed. Reg. 16463, was executed on September 4, 1943, a date subsequent to the appointment of petitioner as permanent receiver. So far as the parties to this litigation are concerned, by its specific terms it vested in the Custodian title to the property of AKM only.7 Nothing presented in this case calls our attention to any effort made by the Custodian to vest in himself any title to the claim that might be in the permanent receiver for the benefit of creditors and ultimately for AKM or those entitled to its assets on distribution,8 nor do we adjudicate 7 See Trading with the Enemy Act, 50 U. S. C. App. §§ 7 (c) and 616: “§ 616. . . . and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes; . . . .” See Clark v. Uebersee Finanz-Korp., 332 U. S. 480. 8 Compare Great Northern R. Co. v. Sutherland, 273 U. S. 182, where the Custodian vested in himself by order on a corporation the shares of stock appearing on the corporation’s books in the name of an alien enemy. It may be that all property subject to blocking may not be sub- 478 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. his right to do so. The order, so far as pertinent, vested in the Custodian “All . . . claim [of AKM to] all right to receive monies ... by way of royalty, share of profits or other emolument,” together with “all causes of action . . . with respect to” the aforesaid copyrights. This claim was a debt of ASCAP to AKM, property of AKM, as defined in the regulations of April 10, 1940, 5 Fed. Reg. 1401 (c), and June 14,1941, 6 Fed. Reg. 2905. The latter citation refers to the regulation defining property, under the Trading with the Enemy Act, effective at the time of the vesting order.9 Prior to petitioner’s appointment as permanent receiver and the later vesting order, the President, on June 14, 1941, had prescribed by Executive Order No. 8785, 6 Fed. Reg. 2897, that certain transactions by or on behalf of Austrian associations such as AKM were prohibited unless licensed. No license for the judicial order appointing petitioner as permanent receiver was asked for or obtained. Order No. 8785 was issued pursuant to the authority granted the President by § 5 (b) of the Act of October 6, 1917, as amended, particularly by the Joint Resolution of May 7, 1940.10 The order forbade, § 1A, “All transfers of credit between any banking institutions within the United States; . . . .” Authority during war ject to vesting. Trading with the Enemy Act, as amended by First War Powers Act, 55 Stat. 838, 839, Title III (1) (B). Compare Bishop, Judicial Construction of the Trading with the Enemy Act, 62 Harv. L. Rev. 721,723. 9 55 Stat. 838, 840,50 U. S. C. App. § 617. 10 54 Stat. 179: “During time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by or to banking institutions as defined by the President, . . . PROPPER v. CLARK. 479 472 Opinion of the Court. or any other period of national emergency to prohibit such transfers was given the President by the Joint Resolution. Order No. 8785 declared “the existence of a period of unlimited national emergency.” The same Resolution authorized the President to issue rules and regulations and specifically to define “banking institutions.” The President had on April 10, 1940, issued a similar order prohibiting similar transfers applicable to nationals of Norway and Denmark to guard against such transfers brought about by the German invasion of those countries. Executive Order No. 8389, 5 Fed. Reg. 1400. It contained to all intents and purposes the same definition of “banking institutions.” See § 11 C thereof. The order and regulations thereunder, and therefore the definition, were approved by the Joint Resolution.11 The definition applicable to transactions of this Austrian national, AKM, under the freezing order of June 14, 1941, is set out below.12 We accept this definition as authorized by the Resolution. By the order appointing a permanent receiver, the claim of AKM against ASCAP was directed to be transferred from AKM to the petitioner. From ASCAP’s point of view it was a debt; from AKM’s a claim. The shift of obligation contemplated by the order for a per- 1154 Stat. 179: “Sec. 2. Executive Order Numbered 8389 of April 10, 1940, and the regulations and general rulings issued thereunder by the Secretary of the Treasury are hereby approved and confirmed.” 12 6Fed. Reg. 2898, §5: “F. The term ‘banking institution’ as used in this Order shall include any person engaged primarily or incidentally in the business of banking, of granting or transferring credits, or of purchasing or selling foreign exchange or procuring purchasers and sellers thereof, as principal or agent, or any person holding credits for others as a direct or incidental part of his business, or brokers; and, each principal, agent, home office, branch or correspondent of any person so engaged shall be regarded as a separate ‘banking institution.’ ” 480 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. manent receiver was a transaction that involved “property in which” there was an “interest of any nature whatsoever, direct or indirect,” in aliens of designated countries, including Austria.13 But the Executive Order of June 14,1941, did not prohibit all transactions without license involving Austrian-owned property. It specified the prohibited transactions, however, by categories so all-inclusive as to make it clear that the purpose was to require transactions involving property of nationals of designated foreign countries to be carried out under regulations of this Government, except certain transactions such as are provided for in General Ruling No. 12, April 21, 1942, 7 Fed. Reg. 2991. The Executive Order forbids transfers of credit. As “credit” is not defined by the Order or regulation, we, in considering credits as property subject to vesting under the Trading with the Enemy Act, give it its ordinary meaning of the obligation due on accounting between parties to transactions. This credit, owed by ASCAP to AKM, was in effect directed to be transferred by the permanent receiver order from AKM to the petitioner as receiver. There is, we think, no doubt that a voluntary transfer by a bank of a credit in the transferring bank from the account of a known Austrian to the account of another banking institution would violate Executive Order No. 8785 as a transfer of credit between banking institutions. It remains, then, to determine whether ASCAP and petitioner are banking institutions of such a character as to be subject to the prohibition of Executive Order No. 8785, § 1 A against “transfers of credit between any banking institutions.” A reading of the President’s definition, note 12 supra, shows that they do fall within the words “any person holding credits for others as a direct or incidental part of his business . . . It is true that 13 Executive Order No. 8785, supra. PROPPER v. CLARK. 481 472 Opinion of the Court. to make ASCAP or the petitioner a banking institution by definition is a departure from the ordinary conception of the meaning of “banking institution.” Petitioner says to so construe the definition is “utter fantasy.” The definition, however, as we have pointed out, has had congressional ratification. Furthermore, the obvious intention of Congress to allow flexibility in the term “banking institution” by leaving its definition to the President sheds light on its purpose. The phrase “banking institution” used and defined in the Bank Holiday Proclamation of March 6, 1933, 48 Stat. 1689, 1690, was adopted by the Emergency Banking Relief Act of March 9, 1933, 48 Stat. 1, with a delegation to the President of the power of definition. Evidently the delegation was to permit him to bring atypical forms of financial institutions within the reach of the emergency act. The Act of March 9 was grafted on to the Trading with the Enemy Act of 1917 and, when that Act was again extended to meet the foreign assets problem, the President’s wide power to define “banking institution” was a ready instrument to cope with the myriad circumstances arising in the control of shifts of foreign assets. The power in peace and in war must be given generous scope to accomplish its purpose. Through the Trading with the Enemy Act, in its various forms, the nation sought to deprive enemies, actual or potential, of the opportunity to secure advantages to themselves or to perpetrate wrongs against the United States or its citizens through the use of assets that happened to be in this country.14 To do so has necessitated some inconvenience to our citizens and others who, as here, are not involved in any actions adverse to the nation’s interest. That fact, however, cannot lead 14 See United States Treasury Department, Administration of the Wartime Financial & Property Controls of the United States Government (1942), pp. 1-4. 482 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. us to narrow the broad coverage of the Executive Order. Our prior decisions have made that clear.15 ASCAP and petitioner, the receiver, each hold credits for others as an “incidental part of [their] business,” and are therefore “banking institutions.” ASCAP held a credit for AKM and, after the permanent receivership order, would hold that credit for the receiver, who in turn would hold it for AKM’s creditors and AKM. We hold that a transfer of this credit from a liability owed by ASCAP to AKM, to a liability owed by ASCAP to the receiver, would violate the prohibition against transfers of credit. We turn now to an examination of the effect of the federal Executive Order No. 8785 of June 14, 1941, the so-called “freezing order,” on the subsequent state court order of September 29, 1941, appointing the petitioner permanent receiver. That examination is to be made with recognition of the fact that, at the time of the state order, title to the AKM claim against ASCAP had not been vested in the Custodian. That development did not take place until the vesting order of September 4, 1943. It is petitioner’s contention that a mere freezing order does not prohibit a subsequent judicial order transferring title to blocked assets covered by the previous freezing order. We will deal subsequently in this opinion with the question of whether the title to the claim passed to the temporary receiver, under New York law, on his appointment. At this point, we assume this did not happen and examine only the question of the effect of a freezing order on the subsequent judicial order. Petitioner’s argument is that such a construction would immobilize frozen property until it suits the Custodian’s convenience 15 Central Trust Co. v. Garvan, 254 U. S. 554; United States v. Chemical Foundation, 272 U. S. 1; Great Northern R. Co. v. Sutherland, 273 U. S. 182; Markham v. Allen, 326 U. S. 490; Clark v. Uebersee Finanz-Korp., 332 U. S. 480. PROPPER v. CLARK. 483 472 Opinion of the Court. to vest, contrary to the need for protection against transfers of foreign funds. These needs, petitioner says, will be served by the provision against payments to claimants from frozen funds without a license. E. 0. 8785, § IB.16 He further argues that by the Joint Resolution Congress did not empower the President to deprive New York of all power to deal with the ASCAP debt in a proceeding under Civil Practice Act § 977-b, covering actions of receivers to liquidate local assets of defunct foreign corporations. It is true that state litigation between local claimants and foreign owners or those in possession of blocked or frozen assets could proceed to a determination of rights between the claimant and the foreign national without the blocked property passing into hands that might use it to the detriment of the welfare of this nation, so long as payment could not be made without a license. Nothing in the Trading with the Enemy Act or regulations specifically forbids eo nomine litigation in state courts. The plan for prohibition of unlicensed transactions by foreign nationals comprehends blocking of transfers of credits and vesting of local assets of such nationals under the Trading with the Enemy Act and regulations thereunder. If transactions are blocked, vesting may or may not follow. When the Custodian vests blocked property, title passes to the Custodian and his authority to vest 18 There is a suggestion that Congress could not, because of the Tenth Amendment, constitutionally abrogate the power of New York through its courts, in peacetime, to deal with the local assets of defunct foreign corporations. The chief reliance is placed upon Clark v. Williard, 294 U. S. 211, a case that held that, as between states, the state of the location of corporate assets had control of their distribution in liquidation. It cannot be seriously doubted that the danger of war was sufficiently grave at the time of the freezing order, June 14, 1941, to justify the President’s action respecting Austrian property. Cf. Silesian-American Corp. n. Clark, 332 U. S. 469, 474-477. 837446 0—49------------35 484 OCTOBER TERM, 1948. Opinion of the Court. 337U.S. and hold cannot be questioned except as provided in the Trading with the Enemy Act.17 The freezing order of June 14, 1941, immobilized the assets covered by its terms so that title to them might not shift from person to person, except by license, until the Government could determine whether those assets were needed for prosecution of the threatened war or to compensate our citizens or ourselves for the damages done by the governments of the nationals affected. United States v. Chemical Foundation, 272 U. S. 1, 11; Silesian-American Corp. v. Clark, 332 U. S. 469, 476. We assume that the Court of Appeals of New York held in Singer v. Yokohama Specie Bank that title to blocked assets could pass without license from a statutory receiver to a creditor.18 As the Trading with the Enemy Act is federal legislation founded on federal constitutional provisions, however, the United States has authority to make all laws necessary and proper for carrying the power into execution. The power to enact carries with it final authority to declare the meaning of the legislation. Prudence Corp. v. Geist, 316 U. S. 89, 95. Federal 17 50 U. S. C. App. §§ 7 (c), 9 (a). Cf. Clark n. Uebersee Finanz-Korp., 332 U. S. 480, 487; Central Trust Co. v. Garvan, 254 U. S. 554, 567-68; Great Northern R. Co. v. Sutherland, 273 U. 8. 182, 194; Becker Co. n. Cummings, 296 U. S. 74, 79; Josephberg v. Markham, 152 F. 2d 644,649. 18 293 N. Y. 542,550, 58 N. E. 2d 726,728: “The fact that Federal regulations governing transactions in foreign exchange prevent the payment to Standard until a license under Executive Order No. 8389, as amended, is procured does not make conditional the obligation of the New York Agency to pay. (See United States Treasury Department, General Ruling No. 12 (4) under Executive Order No. 8389 as amended; also Feuchtwanger v. Central Hanover Bank, 288 N. Y. 342.)” Cf. id., 121 N. Y. L. J., No. 95, May 16, 1949, p. 1735. Compare Polish Relief Comm’n v. Banco N. A. Rumaniei, 288 N. Y. 332, 43 N. E. 2d 345. PROPPER v. CLARK. 485 472 Opinion of the Court. courts have so held as to this issue in this case, 169 F. 2d 324, 327, and in Bernstein v. N. V. Nederlandsche-Amerikaansche etc., 173 F. 2d 71, 73. The Trading with the Enemy Act is national in range. The effect of a federal freezing order should be the same on subsequent transfers of title in all states. State law determines the effect of the appointment of a receiver on title to the property administered, but federal law determines whether the event of appointment can free the property from the prior control. Cf. Lyeth v. Hoey, 305 U. S. 188, 191, et seq. Petitioner contends also that the administrative interpretation of the Executive Order of June 14, 1941, has been to permit litigation as to rights in the frozen assets. That is borne out by General Ruling No. 12 of April 21, 1942, 7 Fed. Reg. 2991, promulgated after petitioner had begun his suit against ASCAP and referring to Executive Order No. 8389, as amended June 14, 1941. The applicable section is set out in the margin.19 It is to be observed, however, that the proviso of § (d) limits the rights a litigant may obtain to such right as the owner of blocked property could confer by voluntary act. General Ruling No. 12, as it came after the suit by the receiver against ASCAP was started and after the order appointing petitioner as permanent receiver, is not treated by us as 19 “(d) Any transfer affected by the Order and/or this general ruling and involved in, or arising out of, any action or proceeding in any Court within the United States shall, so far as affected by the Order and/or this general ruling, be valid and enforceable for the purpose of determining for the parties to the action or proceeding the rights and liabilities therein litigated; Provided, however, That no attachment, judgment, decree, lien, execution, garnishment, or other judicial process shall confer or create a greater right, power, or privilege with respect to, or interest in, any property in a blocked account than the owner of such property could create or confer by voluntary act prior to the issuance of an appropriate license.” See also Public Circular No. 31, August 2, 1946, 11 Fed. Reg. 8351. 486 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. decisive in this case. It is useful only as a statement of the administrative determination as to the effect of litigation without a license. It is our conclusion that the Joint Resolution of May 7, 1940, and the Executive Order of April 10, 1940, put into effect a valid plan for control of the property covered by the regulation that prohibited any change of title to that property by reason of the subsequent appointment of petitioner as permanent receiver. We do not now undertake to say whether every determination of rights concerning blocked property in unlicensed litigation is voidable. We base our determination on the purpose of Congress to prevent shifts in title to blocked assets and the prohibition of the Executive Order against transfers of such a credit as this. The language of the order prohibits more than payment. It prohibits transfers of credit. We do not think the administrative rulings are to the contrary. Second. The petitioner advances the contention, however, that title to AKM’s claim against ASCAP had passed to him by his appointment as temporary receiver on June 12, 1941, prior to the freezing or blocking order of June 14, 1941. Therefore, petitioner argues, AKM had nothing that could be frozen by the immobilization order or taken by the vesting order. The precise issue of state law involved, i. e., whether the temporary receiver under § 977-b of the New York Civil Practice Act is vested with title by virtue of his appointment, is one which has not been decided by the New York courts. Both the District Court and the Court of Appeals faced this question and answered it in the negative. In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown PROPPER v. CLARK. 487 472 Opinion of the Court. to be unreasonable. Estate of Spiegel N. Commissioner, 335 U. S. 701, 707-708; Helvering v. Stuart, 317 U. S. 154; MacGregor n. State Mutual Co., 315 U. S. 280. We shall examine the problem from that point of view. Having no state case on the precise statute before it, the Court of Appeals turned to cases dealing with temporary receiverships in equity proceedings and under analogous statutes. These cases seem to hold that temporary receivers of neither the equity20 nor statutory21 class obtain title, but, on the contrary, merely a right to possession. The courts below found nothing in § 977-b which evidenced an intent that the result under that section should be otherwise. Admittedly there is no express declaration of such an intent. The statutory language is easily susceptible of varying interpretations. See subsections 4, 10, 11, 12 and 19. These sections are not clear as to the title taken by the temporary receiver or the authority granted to him for the holding or handling of claims against debtors. The Court of Appeals concluded, however, that where in subsection 12 the statute said that “any receiver appointed . . . shall have all the powers and duties . . . 20 E. g., Decker n. Gardner, 124 N. Y. 334, 26 N. E. 814; see Keeney v. Home Insurance Co.,l\N.N. 396,401. 21E. g., Mutual Brewing Co. v. N. Y. & C. P. F. Co., 16 App. Div. 149, 45 N. Y. S. 101; Metropolitan Life Ins. Co. v. Sanborn, 34 Mise. 531, 69 N. Y. S. 1009; see N. Y. General Corporation Law §§ 162, 163, 168, and annotations thereto. Petitioner calls our attention to Nealis n. American Tube & Iron Co., 150 N. Y. 42, 45, 44 N. E. 944, 945, a case not cited to the Court of Appeals. This case says that a temporary receiver under a different statute “is vested with title and represents the corporation and its creditors as fully as a permanent receiver after final judgment of dissolution.” P. 45. This case, however, involved the right of a temporary receiver to sue and the opinion deals with that problem rather than the distinction between a right to obtain possession and title. See In re Warren E. Smith Co., 31 App. Div. 39,52 N. Y. S. 877,884. 488 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. possessed by and conferred upon receivers and trustees by the laws of the state of New York,” the meaning was “that a temporary receiver under this provision takes the usual powers of other temporary receivers in New York.” 169 F. 2d 324, 327. It was pointed out that otherwise the specific and restricted grant of powers to a temporary receiver by subsection 4 would be purposeless. Petitioner contends here for the first time that a vesting of title in the temporary receiver is an essential prerequisite to the exercise of jurisdiction in rem over the assets within the state of a nonresident association which is served by publication. The contention is that an affirmance of the court below on the issue of state law will render proceedings under § 977-b subject to an attack on constitutional grounds under the doctrine of Pennoyer n. Nefj, 95 U. S. 714. In our opinion the argument is without merit. Pennoyer v. Nefj merely holds that a personal judgment cannot be obtained against a nonresident on service by publication. It recognizes at p. 733 that for an in rem action it is sufficient that the property be within the state, subject to the control of the court, and that there be some form of service which is reasonably calculated to give notice to parties whose interests may be affected by the judgment. Cf. Milliken v. Meyer, 311 U. S. 457, 463. The first requirement can be met in other ways than seizure of title, e. g., by an injunction against transfer of the property, Pennington v. Fourth National Bank, 243 U. S. 269; by an attachment, Herbert n. Bicknell, 233 U. S. 70; or by personal service on the party holding the property within the state, Security Savings Bank n. California, 263 U. S. 282. We have no doubt that where property is in a state and comes under the control of a court, as here by appointment of the temporary receiver, it is fair to permit substituted service. Anderson Nat. Bank v. Luckett, 321 PROPPER v. CLARK. 489 472 Opinion of the Court. U. S. 233, 240, et seq.; see McDonald n. Mabee, 243 U. S. 90. Since the determination of the state law issue concerning the title of the temporary receiver by the courts below is not unreasonable, we accept it as correct for the purposes of this case. A suggestion appears in petitioner’s briefs, but not in the questions presented by the petition for certiorari, that the judgments below should be vacated and the case remanded to the District Court to be held until the parties can secure from the courts of New York a decision as to whether the temporary receiver took title to the claim against ASCAP. Waiving the failure to raise the issue by the petition for certiorari,22 we consider the contention in deference to the earnestness with which the point is pressed in the dissent.23 If the state law is that title passed to the temporary receiver on his appointment prior to the freezing order, the Custodian, by the assumption of the opinion, would obtain nothing by his order vesting AKM property. Such a ruling would make unnecessary consideration of any other issue. This suggested procedure has been followed in order to avoid a decision on a federal constitutional issue— Spector Motor Co. v. McLaughlin, 323 U. S. 101; Chicago v. Fieldcrest Dairies, 316 U. S. 168; Railroad Comm’n v. Pullman Co., 312 U. S. 496; but cf. Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 462-63— and where the only issue in the case was one of state law, although federal jurisdiction was based on the Bankruptcy Act. Thompson v. Magnolia Petroleum Co., 309 U. S. 478. We have refused in a diversity of citizenship case to allow the difficulty of an issue of state law to deter us 22 Connecticut R. & L. Co. v. Palmer, 305 U. S. 493. 23 Cf. West v. Rutledge Timber Co., 244 U. S. 90, 100. 490 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. from exercising our jurisdiction when federal determination was subject to equitable discretion and the state issue was the only one in the case. Meredith v. Winter Haven, 320 U. S. 228.24 To refrain from deciding it, we there said, would be to enervate diversity jurisdiction. Where a case involves a nonconstitutional federal issue, however, the necessity for deciding which depends upon the decision on an underlying issue of state law, the practice in federal courts has been, when necessary, to decide both issues. This was the course we followed in Markham v. Allen, 326 U. S. 490, 495-6, a case arising under the Trading with the Enemy Act, where an issue was the construction of a state statute. The state law question in Estate of Spiegel v. Commissioner, supra, was concededly difficult and unsettled; its decision admittedly controlled the existence of a federal question, since a finding that there was no possibility of reverter under Illinois law would have finally determined the issue on which the case was decided. And yet, although a method may have existed for obtaining an adjudication on the issue from the Illinois courts, 335 U. S. 632, 673-4, this Court followed the procedure which we adopt here of depending upon the determination of state law by the Court of Appeals. 335 U. S. 701, 707-8. In so doing, it followed the decision in Helvering v. Stuart, 317 U. S. 154, 161, et seq. Erie R. Co. v. Tompkins, 304 U. S. 64, a commonlaw case, is itself a precedent against any general ruling that cases properly in the federal courts that depend upon 24 Where there is no suggestion to hold and send to a state court for the resolution of a state issue, we decide issues of state law. See cases in federal courts under diversity jurisdiction. Wichita Royalty Co. v. City National Bank, 306 U. S. 103; West v. A. T. & T. Co., 311 U. S. 223; Fidelity Trust Co. v. Field, 311 U. S. 169; Six Companies v. Highway Dist., 311 U. S. 180; Stoner n. New York Life Ins. Co., 311 U. S. 464; Palmer n. Hofjman, 318 U. S. 109, 117. PROPPER v. CLARK. 491 472 Opinion of the Court. state law should have that issue submitted to state courts for decision. See the later decision in the same case, Tompkins v. Erie R. Co., 98 F. 2d 49. The cases mentioned above where this Court required submission of single issues, excised from the controversy, to state courts were cases in equity. The discretion of equity as to the terms upon which it would grant its remedies, in the light of our rule to avoid an interpretation of the Federal Constitution unless necessary, was relied upon to justify a departure from normal procedure. In the Magnolia case, we directed that the trustee file plenary proceedings to determine title in a state court litigation necessarily complete in itself. The complaint here in a single count seeks recovery of the debt from ASCAP and determination of the Custodian’s title to the claim vis-à-vis the receiver. Assuming that quieting title to a chattel is an equitable proceeding and that the District Court can, by cutting out the title issue and by refusing to proceed in the controversy unless obeyed, compel the Custodian by whatever proceedings New York may provide to litigate only the narrow issue of title in the temporary receiver, there would remain the problem of control of the receiver, by threats of contempt action, to keep him from raising in such proceedings federal issues such as the right to secure title as permanent receiver through state judicial action after the freezing or immobilization order. This federal issue we decided above. Furthermore, as the state court could reasonably require complete adjudication of the controversy, the District Court would perhaps be compelled to stay proceedings in the state court to protect its own jurisdiction. 28 U. S. C. § 2283. Otherwise, in sending a fragment of the litigation to a state court, the federal court might find itself blocked by res judicata, with the result that the entire federal controversy would be ousted from the 492 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. federal courts, where it was placed by Congress. See note 17, supra. The submission of special issues is a useful device in judicial administration in such circumstances as existed in the Magnolia, Spector, Fieldcrest and Pullman cases, supra, but in the absence of special circumstances, 320 U. S. at 236, 237, it is not to be used to impede the normal course of action where federal courts have been granted jurisdiction of the controversy. We reject the suggestion that a decision in this case in the federal courts should be delayed until the courts of New York have settled the issue of state law. Third. The petitioner makes the further point that the judgment below determining that he had no right, title or interest to the claim of AKM against ASCAP is beyond the competence of the federal district court because that property was in the hands of the state court by virtue of the receivership. Even if title did not pass, he argues, he, and through him the state court, had possession of the claim by virtue of his appointment as temporary receiver before the promulgation of the freezing order. Reliance is placed on the rulings of cases like Kline n. Burke Construction Co., 260 U. S. 226, 229, 231; Princess Lida v. Thompson, 305 U. S. 456, 466; and Farmers’ Loan Co. v. Lake St. R. Co., 177 U. S. 51, 61. The rule declared by these cases is that when one court has taken possession and control of a res, a second court is disabled from exercising a power over that res. The circumstances of this controversy do not present such an interference with state control of a res. We are dealing with a situation more closely resembling determinations of rights to participate in res in the hands of state courts.25 What 25 See Markham v. Allen, 326 U. S. 490; Commonwealth Trust Co. N. Bradford, 297 U. S. 613; Clark v. Tibbetts, 167 F. 2d 397, 401. PROPPER v. CLARK. 493 472 Frankfurter, J., dissenting in part. the state court had, at most, was a claim against a debtor, ASCAP. The judgment enabled the Custodian to collect the debt that ASCAP owed AKM. Although this judgment determined title to AKM’s claim against ASCAP when the adverse claimant was a state receiver, those facts did not prevent the federal court from giving a judicial declaration of the right to the claim. The scheme of the Trading with the Enemy Act contemplates that federal courts may provide such determinations. § 17; cf. Markham v. Allen, 326 U. S. 490, 495. The congressional purpose to put control of foreign assets in the hands of the President through the Custodian, so that there might be a unified national policy in the administration of the Act, argues strongly for federal determination of issues of rights in the blocked assets. Comity does not require abnegation to the extent that a federal court cannot adjudicate rights to the claim involved. Affirmed. Mr. Chief Justice Vinson took no part in the consideration or decision of this case. Mr. Justice Jackson dissents on the ground that ASCAP is not a banking institution under the definition in Executive Order No. 8785. Mr. Justice Frankfurter, dissenting in part. The Court recognizes that central to determining the effect of the Alien Property Custodian’s freezing and vesting orders is the effect under New York law of petitioner’s appointment as temporary receiver on June 13, 1941. It observes that “The precise issue of state law involved, i- e., whether the temporary receiver under § 977-b of the New York Civil Practice Act is vested with title by virtue of his appointment, is one which has not been 494 OCTOBER TERM, 1948. Frankfurter, J., dissenting in part. 337 U. S. decided by the New York courts.” And it concedes that the language of the relevant New York statutes “is easily susceptible of varying interpretations.” Yet it puts its own interpretation on those statutes though that interpretation may be displaced tomorrow by the only courts which have power to render an authoritative interpretation of New York law—the courts of the State of New York. In other cases that have come before us in which decision of a federal issue or the necessity for its decision depended on a seriously doubtful question of State law, we have directed that application should first be made to the courts of the State for final disposition of the State question. Thompson v. Magnolia Petroleum Co., 309 U. S. 478; Railroad Comm’n of Texas v. Pullman Co., 312 U. S. 496; Chicago v. Fieldcrest Dairies, 316 U. S. 168; Spector Motor Service, Inc. n. McLaughlin, 323 U. S. 101; A. F. of L. n. Watson, 327 U. S. 582. In each of these cases the discretion of a federal court of equity could practicably be exercised in a way which retained ultimate jurisdiction of the case while permitting adjudication of the State question in the State courts. In each there were available State procedures capable of providing a prompt decision, and the litigation had not already consumed such an unconscionable amount of time as to make recourse to them inexpedient. Cf. Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456. The present case meets all those conditions, see N. Y. Civ. Prac. Act § 473, and should receive the same disposition. It is true that in all but one of these cases recourse to the State courts also served the purpose of avoiding what might have proved to be unnecessary decision of a constitutional issue. But see Thompson v. Magnolia Petroleum Co., 309 U. S. 478. Even more fundamental, however, was recognition of the importance of maintain PROPPER v. CLARK. 495 472 Frankfurter, J., dissenting in part. ing harmonious relations between parallel systems of State and federal courts in a situation where, because State law controlled, the State courts had the last word and so a federal court at best could make only an informed guess. That this was a dominant consideration in the mind of the Court appears plainly in the language of its opinions. The following passages are illustrative: 1. “The last word on the meaning of Article 6445 of the Texas Civil Statutes, and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the supreme court of Texas. In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. . . . The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. . . . “Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, Fenner v. Boykin, 271 U. S. 240; Spielman Motor Co. v. Dodge, 295 U. S. 89; or the administration of a specialized scheme for liquidating embarrassed business enterprises, Pennsylvania v. Williams, 294 U. S. 176; or the final authority of a state court to interpret doubtful regulatory laws of the state, Gilchrist v. Interborough Co., 279 U. S. 159; cf. Hawks n. Hamill, 288 U. S. 52, 61. These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, ‘exercising a wise discretion,’ restrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ and for the smooth working of the federal judiciary. See Cavanaugh v. Looney, 248 U. S. 453, 457; Di Gio- 496 OCTOBER TERM, 1948. Frankfurter, J., dissenting in part. 337 U. S. vanni v. Camden Ins. Assn., 296 U. S. 64, 73.” Railroad Comm’n of Texas v. Pullman Co., 312 U. S. 496, 499-501. 2. “We are of the opinion that the procedure which we followed in the Pullman case should be followed here. Illinois has the final say as to the meaning of the ordinance in question. It also has the final word on the alleged conflict between the ordinance and the state Act. The determination which the District Court, the Circuit Court of Appeals, or we, might make could not be anything more than a forecast—a prediction as to the ultimate decision of the Supreme Court of Illinois. ... As we said in the Pullman case, ‘The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision’ and any ‘needless friction with state policies.’ . . . It is an exercise of a ‘sound discretion, which guides the determination of courts of equity.’ Beal v. Missouri Pacific R. Co., [312 U. S. 45, 50]. In this case, that discretion calls for a remission of the parties to the state courts, which alone can give a definitive answer to the major questions posed. Plainly, they constitute the more appropriate forum for the trial of those issues. See 54 Harv. L. Rev. 1379. Considerations of delay, inconvenience, and cost to the parties, which have been urged upon us, do not call for a different result. For we are here concerned with the much larger issue as to the appropriate relationship between federal and state authorities functioning as a harmonious whole.” Chicago n. Fieldcrest Dairies, 316 U. S. 168, 171-73. 3. “. . . if, as the District Court thought, this Florida law is not self-executing, suits seeking to raise the due process question or any other constitutional question would be premature until Florida supplied sanctions for its enforcement. A decision today on the merits might, therefore, amount to no more than an advisory opinion. . . . The resources of equity are not inadequate PROPPER v. CLARK. 497 472 Frankfurter, J., dissenting in part. to deal with the problem so as to avoid unnecessary friction with state policies, while selective cases go forward in the state courts for an orderly and expeditious adjudication of the state law questions.” A. F. of L. v. Watson, 327 U. S. 582, 598-99. So here, though no constitutional issue is present, regard for the respective orbits of State and federal tribunals is the best of reasons, as a matter of judicial administration, for requiring a definitive adjudication by the New York courts rather than proceeding on the basis of our own tentative guess as to the meaning of the New York statutes. That federal issues may remain is no justification for refusing to submit to the New York courts a separable issue of New York law. We have no occasion to assume that they will go on to decide these federal questions when a federal court has expressly retained jurisdiction to decide them. Cf. Federal Power Comm’n n. Pacific Power & L. Co., 307 U. S. 156, 160. We should remand the case to the District Court with instructions to retain jurisdiction pending submission to the courts of New York by appropriate proceedings of the question whether title to AKM’s claim against ASCAP passed to petitioner upon his appointment as temporary receiver. 498 OCTOBER TERM, 1948. Syllabus. 337 U. S. FEDERAL POWER COMMISSION v. PANHANDLE EASTERN PIPE LINE CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 558. Argued April 22, 1949.—Decided June 20, 1949. A natural-gas company which is subject to the Natural Gas Act may sell the leases covering an estimated 12% of its total gas reserves without the approval and contrary to an order of the Federal Power Commission. Pp. 499-507. 1. Section 1 (b) of the Natural Gas Act, excluding “the production or gathering of natural gas” from the Commission’s jurisdiction, left the transfer of gas leases to state regulation and outside the scope of the Commission’s regulatory powers. Pp. 502-505. 2. Sections 5 (b), 6 (a) and (b), 8 (a), 9 (a), 10 (a) and 14 (b), empowering the Commission to make investigations, to prescribe rules for the keeping of accounts and records by natural-gas companies, and to require them to file such reports as are deemed necessary by the Commission in the proper administration of the Act, do not require a different result. Pp. 505-507. 3. Nor is a different result required by §§ 7 (c), 4, 5 and 16, authorizing the Commission to issue certificates of convenience and necessity for the interstate transportation and sale of natural gas, to determine reasonable rates for such transportation and sale, and to do the things appropriate to carry out the provisions of the Act—even when the leases involved were used to justify the issuance of certificates of convenience and necessity. Pp. 507-508. 4. Nor is a different result required by § 7 (b), which forbids any natural-gas company to abandon any of its facilities subject to the jurisdiction of the Commission without the prior approval of the Commission. Pp. 508-513. 5. The conclusion here reached is supported by the undisputed finding by the District Court that it has been the practice for natural-gas companies to trade freely in gas leases and that the Commission has never before asserted the right to regulate the transfer of such leases. Pp. 513-514. 6. Since the Commission could not stop the transfer of a gas lease, it was not entitled to an injunction delaying such a transfer until it could complete an investigation and determine its own power and the necessity for using it. Pp. 514-516. 172 F. 2d 57, affirmed. POWER COMM’N v. PANHANDLE CO. 499 498 Opinion of the Court. A Federal District Court denied an injunction sought by the Federal Power Commission to bar the sale of certain gas leases by a natural-gas company subject to the Natural Gas Act. The Court of Appeals affirmed. 172 F. 2d 57. This Court granted certiorari. 336 U. S. 935. Affirmed, p. 516. Bradford Ross argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Philip Elman, Paul A. Sweeney, Melvin Richter, Morton Hollander, Bernard A. Foster, Jr. and Howell Purdue. Robert P. Patterson and Jeff A. Robertson argued the cause for respondents. With Mr. Patterson on the brief for the Panhandle Eastern Pipe Line Co. were E. Ennalls Berl, John S. L. Yost and Francis J. Sypher. With Mr. Robertson on the brief for the State Corporation Commission of Kansas were Jay Kyle and Douglas Gleason. Arthur G. Connolly, Kevin McInerney, Gerard C. Smith and Peter H. Kaminer filed a brief for certain stockholders, respondents. Charles S. Layton was also of counsel. Mr. Justice Reed delivered the opinion of the Court. Stated broadly this certiorari brings before us for review a problem involving the scope of the power over the gas reserves of a natural-gas company given to the Federal Power Commission by the Natural Gas Act. 52 Stat. 821, as amended, 56 Stat. 83. Specifically the question to be decided is whether a natural-gas company, subject to the Act, may sell the leases covering an estimated twelve per cent of its total gas reserves without the approval and contrary to an order of the Commission. The issue is made very sharply because the District Court and the Court of Appeals have refused an injunction, sought by the Commission, to hold the consumma- 837446 0—49-------------36 500 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. tion of the sale in abeyance until the Commission, through an admittedly permissible investigation, can determine whether the disposal of these reserves will impair the ability of Panhandle to supply its present and prospective customers in the area which it has undertaken to serve as a public utility. The Commission may find that public interest will best be served by requiring Panhandle to retain these reserves. The public interest has strong appeal to a court of equity for its remedies once a legal right is fairly in controversy.1 Respondent, Panhandle Eastern Pipe Line Company (herein called Panhandle), a Delaware corporation, transports and markets natural gas in interstate commerce by means of its pipe-line system which runs from Texas into Michigan. In addition it owns or controls gasproducing properties in Kansas, Oklahoma, and Texas. In September, 1948, Panhandle organized Hugoton Production Company (hereinafter called Hugoton), also a Delaware corporation. On October 11, 1948, pursuant to a written agreement between the two companies, Panhandle transferred to Hugoton gas leases on approximately 97,000 acres of land in Kansas and $675,000 in cash. In return Panhandle received all the outstanding capital stock of Hugoton and the option to purchase on or after January 1, 1965, all or part of the gas produced from this land, which is at present undeveloped and not connected with any pipe-line system. The gas reserves under this acreage are estimated at approximately 700 billion cubic feet. Hugoton thereafter contracted to sell to the Kansas Power and Light Company for a period of fifteen years from November 1, 1949, to November 1, 1964, the gas produced from these leases, which, according 1 Porter n. Warner Co., 328 U. S. 395, 398; Yakus v. United States, 321 U. S. 414, 440; Hecht Co. v. Bowles, 321 U. S. 321, 331; Virginian R. Co. v. System Federation, 300 U. S. 515, 552; Harrisonville v. Dickey Clay Co., 289 U. S. 334, 338. POWER COMM’N v. PANHANDLE CO. 501 498 Opinion of the Court. to the contract, was to be consumed wholly within the State of Kansas. On the same date as the transaction between Panhandle and Hugoton, Panhandle declared a dividend of the Hugoton stock to the holders of its common stock at the rate of one-half share of Hugoton stock for each share of common stock of Panhandle. The dividend was to be paid November 17, 1948, to Panhandle’s stockholders of record on October 29, 1948. Nothing called to our attention indicates any control retained by Panhandle over the Hugoton stock. On October 26, 1948, the Federal Power Commission (hereinafter called the Commission) ordered an investigation “pursuant to the provisions of Section 14 of the Natural Gas Act, of the facts and circumstances involved in the formation and proposed operation of the Hugoton Production Company and the transfer to said company by Panhandle Eastern of the natural-gas reserves . . . .” By a supplementary order of November 10, 1948, Hugoton was joined as a party, a date for a public hearing was fixed, and Hugoton and Panhandle ordered to show cause why they should not be directed to cancel the contract, and why Panhandle should not be prohibited from transferring the leases without the consent of the Commission and from distributing the Hugoton stock to its stockholders. Pending a final determination, the Commission ordered that the status quo be maintained by Panhandle and Hugoton. Upon the apparent refusal of Panhandle to comply with this order, the Commission on November 13, 1948, instituted the instant suit in the United States District Court for the District of Delaware, seeking a preliminary injunction and a temporary restraining order to compel Panhandle to proceed no further with the stock distribution and to maintain the status quo pending the final determination of the questions for which the hearing 502 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. before the Commission had been set. The District Court issued the temporary restraining order which has been kept in effect by successive orders and which enjoined Panhandle from issuing to its stockholders the dividend of Hugoton stock. Panhandle was ordered to cause Hugoton to refrain from transferring any of the gas leases and from issuing or transferring any of its capital stock. After a hearing, the District Court refused to grant the preliminary injunction, on the ground that there had not been shown any basis for the relief sought by the Commission. On appeal, the Court of Appeals for the Third Circuit affirmed the judgment of the District Court on the ground that § 1 (b) of the Natural Gas Act, excluding “the production or gathering of natural gas” from the Commission’s jurisdiction, left the transfer of gas leases to state regulation and outside the scope of the Commission’s regulatory powers. 172 F. 2d 57. The State Corporation Commission of Kansas had been granted leave to intervene in the Court of Appeals in opposition to the Federal Power Commission. To consider the important question of the applicability of the Natural Gas Act to this transaction, we granted certiorari. 336 U. S. 935. Without entering upon another review of its legislative history,2 suffice it to say that the Natural Gas Act did not envisage federal regulation of the entire natural-gas field to the limit of constitutional power. Rather it con- 2 The legislative history has been discussed by our prior opinions in Panhandle Eastern Pipe Line Co. n. Public Service Comm’n of Indiana, 332 U. S. 507, 514-521; Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U. S. 682, 689-690; Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 601-603; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 609-613; Illinois Natural Gas Co. v. Central Illinois Pub. Serv. Co., 314 U. S. 498, 506-508. POWER COMM’N v. PANHANDLE CO. 503 498 Opinion of the Court. templated the exercise of federal power as specified in the Act, particularly in that interstate segment which the states were powerless to regulate because of the Commerce Clause of the Federal Constitution.3 The jurisdiction of the Federal Power Commission was to complement that of the state regulatory bodies.4 Accordingly, Congress in § 1 (b) of the Act not only prescribed the intended reach of the Commission’s power, but also specified the areas into which this power was not to extend. Section 1 (b) provides as follows: “(b) The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” “This section determines the Act’s coverage and does so in the light of the situation existing at the time. Three things and three only Congress drew within its own regulatory power, delegated by the Act to its agent, the Federal Power Commission. These were: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale.” Panhandle Eastern Pipe Line Co. v. Public Service Com 3 See H. R. Rep. No. 2651, 74th Cong., 2d Sess., pp. 1-3; H. R. Rep. No. 709, 75th Cong., 1st Sess., pp. 1-4; S. Rep. No. 1162, 75th Cong., 1st Sess., pp. 1-3. 4 See Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 467; Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 332 U. S. 507, 517-518. 504 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. mission of Indiana, 332 U. S. 507, 516. The Act, moreover, expressly exempts from its coverage5 ( 1 ) any other transportation or sale of natural gas; (2) the local distribution of natural gas; (3) the facilities used for local distribution; and (4) the production and gathering of natural gas. The Commission seeks to distinguish between the activities of production and gathering, such as drilling, spacing wells, or collecting gas, and the facilities, such as reserves and gas leases, used therefor and argues that only the former were excluded from the coverage of the Act. In support of this position it is pointed out that the section specifically exempts both the local distribution and the facilities used therefor, while it makes no mention of the facilities used for production or gathering.6 In the face of the unambiguous language of the Act and its legislative background, we cannot ascribe such a narrow meaning to the words, “the production or gathering of natural gas.” In Colorado Interstate Gas Co. v. Federal Power Commission, 324 U. S. 581, 603, we said 5 The House report on the Act, after quoting the exemption provisions of § 1 (b), says: “The quoted words are not actually necessary, as the matters specified therein could not be said fairly to be covered by the language affirmatively stating the jurisdiction of the Commission, but similar language was in previous bills, and, rather than invite the contention, however unfounded, that the elimination of the negative language would broaden the scope of the act, the committee has included it in this bill.” H. R. Rep. No. 709, 75th Cong., 1st Sess., p. 3. 6 Actually, in the words of the House report, “That part of the negative declaration stating that the act shall not apply to 'the local distribution of natural gas’ is surplusage by reason of the fact that distribution is made only to consumers in connection with sales, and since no jurisdiction is given to the Commission to regulate sales to consumers the Commission would have no authority over distribution, whether or not local in character.” H. R. Rep. No. 709, 75th Cong., 1st Sess., p. 3. POWER COMM’N v. PANHANDLE CO. 505 498 Opinion of the Court. that this phrase comprehended the producing properties and gathering facilities of a natural-gas company. We now adhere to this natural and clear meaning of the words and their obvious expression of congressional intent.7 Of course leases are an essential part of production. The Commission cites §§ 5 (b), 6 (a) and (b), 8 (a), 9 (a), 10 (a), and 14 (b) to show that Congress intended “to confer a certain measure of authority upon the Commission” over the production and gathering of gas. These sections empower the Commission to make investigations, to prescribe rules for the keeping of accounts and records by the natural-gas companies, and to require that the companies file such reports as are deemed necessary by the Commission in the proper administration of the Act. These powers are inquisitorial in nature and were designed to aid the Commission in exercising its powers and “to serve as a basis for recommending further legislation to the Congress.” Section 14 (b), quoted below, comes closest to supporting the Commission’s argu- 7 In a brief prepared by the Solicitor of the Federal Power Commission for the House Committee on Interstate and Foreign Commerce on the constitutionality of H. R. 11662, an earlier bill substantially similar to the Natural Gas Act, the following appears as part of the analysis of the bill: “The bill makes no attempt to regulate the production or gathering facilities of a natural-gas company, this function being purely local in character, nor is any attempt made to exercise control over distribution facilities.” Hearings before a subcommittee of the House Committee on Interstate and Foreign Commerce on H. R. 11662, 74th Cong., 2d Sess., p. 17. The Solicitor of the Federal Power Commission in testifying at the same hearing also answered the following question: “Mr. Cole [Member of Committee]. Does this bill give anywhere the Commission power over the source of natural gas in the different fields in a manner which we might call comparable to that which your Commission now has over hydroelectric generating plants? “Mr. DeVane [Solicitor of the F. P. C.]. It does not; no. It does not attempt to regulate the gathering rates or the gathering business. Section 11,1 believe it is, of the bill deals with that.” P. 34. 506 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. ment but that confers only power to obtain information.8 Although these sections bear evidence of congressional consideration of the relationship of production properties to other elements of the natural-gas business, they do not even by implication suggest to us an extension of the regulatory provisions of the Act to cover incidents connected with the production or gathering of gas. In Colorado Interstate Gas Co. v. Federal Power Commission, supra, at 602, the Court in considering the more important of these sections said that they described powers which were aids to the “normal conventions” of rate making. We held that the Commission in exercising its rate-making authority could include the fair value of the producing and gathering facilities in the rate base of a natural-gas company. The primary duty of the Commission is to fix just and reasonable rates for the transportation and sale of natural gas in interstate commerce for resale. For this purpose the Court permitted the Commission to examine and consider the cost of production and gathering. The use of such data for rate making is not a precedent for regulation of any part of production or marketing. Before the Colorado Interstate decision, it was apparent that the value of producing facilities and the cost of gas bought by a 8 “(b) The Commission may, after hearing, determine the adequacy or inadequacy of the gas reserves held or controlled by any natural-gas company, or by anyone on its behalf, including its owned or leased properties or royalty contracts; and may also, after hearing, determine the propriety and reasonableness of the inclusion in operating expenses, capital, or surplus of all delay rentals or other forms of rental or compensation for unoperated lands and leases. For the purpose of such determinations, the Commission may require any natural-gas company to file with the Commission true copies of all its lease and royalty agreements with respect to such gas reserves.” See H. R. Rep. No. 709, 75th Cong., 1st Sess., p. 7. POWER COMM’N v. PANHANDLE CO. 507 498 Opinion of the Court. natural-gas company from producers would be weighty factors in rate making whether a rate-base method or other method for fixing rates was used. Low valuation by the Commission of producing properties or low-cost allowance for purchased gas discourages exploration for gas or its sale in interstate commerce.9 Congress knew this necessary relationship between production and distribution but excluded the Commission from exercising any direct control or regulation over the actual production and gathering of natural gas. The Commission urges it has jurisdiction over the transaction between Panhandle and Hugoton from the powers granted to it by § 7 (c) of the Act which authorizes it to issue certificates of convenience and necessity for the interstate transportation and sale of natural gas and those granted to it by §§ 4 and 5 to determine reasonable rates for such transportation and sale. It is pointed out that Panhandle in three applications for certificates of convenience and necessity to construct additional pipeline facilities had included the acreage here involved as part of its gas reserves, and certificates were issued upon the finding by the Commission that Panhandle had adequate reserves to warrant its expansion.10 Moreover Panhandle had been permitted to include these reserves in its rate base as “used and useful property.” The Commission, therefore, argues that these gas leases which Panhandle proposes to grant to Hugoton have been dedicated to the discharge of Panhandle’s public-utility obligation to render adequate service at reasonable and nondiscriminatory rates. From these circumstances, the 9 Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 603; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 610, 612. 10 5 F. P. C. 544, 546, 949, 952; F. P. C. Docket G-876, Order of June 10, 1948. 508 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. Commission concludes that these leases cannot be relinquished by Panhandle without the consent of the Commission, which has the implied power to protect its ratemaking function and to insure the maintenance of adequate service by a natural-gas company. Sections 4, 5 and 7 do not concern the producing or gathering of natural gas; rather they have reference to the interstate sale and transportation of gas and are so limited by their express terms. Thus §§ 4 (a), (b), (c), 5 (a) and 7 (c) speak of “transportation or sale of natural gas subject to the jurisdiction of the Commission” while § 7 (a) and (b) refer respectively to “transportation facilities” and “facilities subject to the jurisdiction of the Commission.” 11 Nothing in the sections indicates that the power given to the Commission over natural-gas companies by § 1 (b) could have been intended to swallow all the exceptions of the same section and thus extend the power of the Commission to the constitutional limit of congressional authority over commerce. The repetition of the words “subject to the jurisdiction” makes clear to us the intent to keep the Commission’s hands out of the excepted local matters. The same answer applies to petitioner’s argument that § 16 gives it authority to stop sales of leases.12 The power to do the things appropriate to carry out the provisions of the Act can hardly be taken to rescind a prohibition against certain actions. The Federal Power Commission leans heavily upon § 7 (b), which provides that no natural-gas company may abandon any of its facilities subject to the jurisdiction 11 Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 598. 12 “Sec. 16. The Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act. . . .” POWER COMM’N v. PANHANDLE CO. 509 498 Opinion of the Court. of the Commission without the prior approval of the Commission.13 The argument here is that since natural gas is the “lifeblood” of a pipe-line system, a company by disposing of its gas reserves, unhampered by Commission control, may render itself unable to continue service; consequently abandonment of facilities and service without the consent of the Commission will result. The argument begs the question. The section, like those above, covers only “facilities subject to the jurisdiction of the Commission.” To accept these arguments springing from power to allow interstate service, fix rates, and control abandonment would establish wide control by the Federal Power Commission over the production and gathering of gas. It would invite expansion of power into other phases of the forbidden area.14 It would be an assumption of powers specifically denied the Commission by the words of the Act as explained in the report and on the floor of both Houses of Congress.15 The legislative history 13 “(b) No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.” 14 Would it soon be contended that statutory power to require extension of service, § 7 (a), included power to require exploration or acquisition of leases or allocation of production to interstate pipe lines in order to serve the public interest? 15 The report of the House Committee on Interstate and Foreign Commerce on H. R. 6586, 75th Cong., 1st Sess., which became the Natural Gas Act, was adopted without change by the Senate Committee on Interstate Commerce as its report on the same bill. See note 3, supra. The following excerpts are taken from the report as particularly pertinent: “The bill is substantially identical with H. R. 12680 which, as 510 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. Footnote 15—Continued. amended, was reported by the Committee on Interstate and Foreign Commerce of the Seventy-fourth Congress, second session, with a recommendation that it pass. If enacted, the present bill would for the first time provide for the regulation of natural-gas companies transporting and selling natural gas in interstate commerce. It confers jurisdiction upon the Federal Power Commission over the transportation of natural gas in interstate commerce, and the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use. The States have, of course, for many years regulated sales of natural gas to consumers in intrastate transactions. The States have also been able to regulate sales to consumers even though such sales are in interstate commerce, such sales being considered local in character and in the absence of congressional prohibition subject to State regulation. (See Pennsylvania Gas Co. v. Public Service Commission (1920), 252 U. S. 23.) There is no intention in enacting the present legislation to disturb the States in their exercise of such jurisdiction. However, in the case of sales for resale, or so-called wholesale sales, in interstate commerce (for example, sales by producing companies to distributing companies) the legal situation is different. Such transactions have been considered to be not local in character and, even in the absence of Congressional action, not subject to State regulation. (See Missouri v. Kansas Gas Co. (1924), 265 U. S. 298, and Public Utilities Commission v. Attleboro Steam & Electric Co. (1927), 273 U. S. 83.) The basic purpose of the present legislation is to occupy this field in which the Supreme Court has held that the States may not act. “. . . The bill takes no authority from State commissions, and is so drawn as to complement and in no manner usurp State regulatory authority, and contains provisions for cooperative action with State regulatory bodies. . . . “Your committee believes that this legislation is highly desirable to fill the gap in regulation that now exists by reason of the lack of authority of the State commissions.” H. R. Rep. No. 709, 75th Cong., 1st Sess., pp. 1-3. During the debate on the bill in the House, its sponsor, Chairman Lea of the Committee on Interstate and Foreign Commerce, made the following explanatory statements: POWER COMM’N v. PANHANDLE CO. 511 498 Opinion of the Court. Footnote 15—Continued. “The primary purpose of the pending bill is to provide Federal regulation, in those cases where the State commissions lack authority, under the interstate-commerce law. This bill takes nothing from the State commissions; they retain all the State power they have at the present time. This bill would apply to the transportation of natural gas in interstate commerce and to the sale of natural gas in interstate commerce for resale or public consumption. “The bill does not apply to the production and gathering of gas.” 81 Cong. Rec. 6721. Likewise on the floor of the Senate, Chairman Wheeler of the Committee on Interstate Commerce gave a similar interpretation to the Act: “Mr. AUSTIN. Mr. President, may I ask the Senator from Montana [Mr. Wheeler] a question concerning this bill? Does the bill undertake to regulate the production of natural gas, or does it undertake to regulate the producers of natural gas ? “Mr. WHEELER. It does not attempt to regulate the producers of natural gas or the distributors of natural gas; only those who sell it wholesale in interstate commerce. . . . “Mr. AUSTIN. Mr. President, will the Senator yield for one other inquiry? “Mr. WHEELER. Yes. “Mr. AUSTIN. Is the bill limited in its scope to the regulation of transportation ? “Mr. WHEELER. Yes; it is limited to transportation in interstate commerce, and it affects only those who sell gas wholesale. “Mr. KING. Mr. President, I should like to obtain information from the Senator as to the implications that arise from the bill, and what States it would affect. As an illustration, if gas is produced in Wyoming and is transported for consumption into the Senator’s State or my State, would the Federal Power Commission have to do with such an activity? “Mr. WHEELER. No; and let me say to the Senator that, as a matter of fact, the bill does not interfere with the State regulation, in any way, shape, or form.” 81 Cong. Rec. 9312. “Mr. CONNALLY. Is it not also true, even though the utility commissioners advocate it, that whenever a Federal agency takes over an activity such as this the State authorities begin to shift or lose 512 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. of this Act is replete with evidence of the care taken by Congress to keep the power over the production and gathering of gas within the states.16 This probably occurred because the state legislatures, in the interests of conservation, had delegated broad and elaborate power to their their responsibility? If we turn this over to the Interstate Commerce Commission, essentially what they do will be reflected all over the country, because the interstate rates will be superimposed on the State commissions and they must necessarily be governed by them. Did not that happen to the railroads? “Mr. WHEELER. There is no doubt about that, but this is an entirely different situation. “Mr. CONNALLY. Yes; one involves the railroads and the other involves gas. “Mr. WHEELER. No. There is no attempt and can be no attempt under the provisions of the bill to regulate anything in the field except where it is not regulated at the present time. It applies only as to interstate commerce and only to the wholesale price of gas.” 81 Cong. Rec. 9313. “Mr. AUSTIN. Then, it would leave to the future the right to meet any effort on the part of the central government to acquire the natural resources of the State of Montana, or the State of Vermont, or any other State? “Mr. WHEELER. Oh, yes. It does not touch it in any way, shape, or form, except to require the furnishing of information. “Mr. AUSTIN. I have great fear of these occult methods of acquiring the natural resources of our several States.” 81 Cong. Rec. 9314. 16 While Congress was considering the passage of the Natural Gas Act, a bill (H. R. 5711 and S. 1919, 75th Cong., 1st Sess.) was introduced in both houses of Congress on March 17, 1937, which provided that “this Act shall apply to the procurement of natural gas for the purpose of its transmission through pipe lines and its sale, exchange, transmission, or distribution in interstate commerce . . . .” The jurisdiction of the Federal Power Commission was defined as follows: “The [Federal Power] Commission shall have jurisdiction over all facilities for the procurement of natural gas for its transmission through pipe lines and its sale, or for exchange, or distribution in interstate commerce, and over the transmission of natural gas in pipe lines in interstate commerce and over the sale, or exchange of natural gas in interstate commerce, and over all facilities connected POWER COMM’N v. PANHANDLE CO. 513 498 Opinion of the Court. regulatory bodies over all aspects of producing gas.17 The Natural Gas Act was designed to supplement state power and to produce a harmonious and comprehensive regulation of the industry.18 Neither state nor federal regulatory body was to encroach upon the jurisdiction of the other.19 Congress enacted this Act after full consideration of the problems of production and distribution. It considered the state interests as well as the national interest. It had both producers and consumers in mind. Legislative adjustments were made to reconcile the conflicting views. The District Court found as a fact, and the finding is undisputed by the Commission, that, “It has been the practice in the natural gas industry for companies to trade freely in gas leases, and the Commission has never heretofore asserted the right to regulate transfers of such leases.” Thus for over ten years the Commission has never claimed the right to regulate dealings in gas acreage. Failure to use such an important power for so long a time indicates to us that the Commission did not believe the power existed.20 In the light of that history we should therewith as parts of a system of natural-gas transmission operated in more than one State.” The provisions of this bill, however, failed of adoption; instead Congress enacted § 1 (b) with its specific exemptions from the coverage of the Act. 17 See, for example, Kansas Gen. Stat., §§55-701 to 55-713 (1947 Supp.); Mich. Stat. Ann., c. 97, §§ 13.138 (l)-13.140 (10) (Supp. 1947); Okla. Stat. Ann., tit. 52, c. 3, §§81-247; Texas Rev. Civ. Stat., tit. 102, Art. 6008 et seq. (Vernon, 1925, with Supp. 1948); La. Gen. Stat. §§ 4766-4826.2. 18 Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 467. 19 Interstate Natural Gas Co. n. Federal Power Comm’n, 331 IT. S. 682, 690. 20Federal Trade Comm’n v. Bunte Brothers, 312 U. S. 349, 352; Norwegian Nitrogen Prod. Co. v. United States, 288 U. S. 294, 315. 514 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. not by an extravagant, even if abstractly possible, mode of interpretation push powers granted over transportation and rates so as to include production. If possible, all sections of the Act must be reconciled so as to produce a symmetrical whole.21 We cannot attribute to Congress the intent to grant such far-reaching powers as implicit in the Act when that body has endeavored to be precise and explicit in defining the limits to the exercise of federal power.22 The Commission sought by injunction to enforce its order halting the transaction between Panhandle and 21 Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 602. 22 Section 5 (b) reads: “(b) The Commission upon its own motion, or upon the request of any State commission, whenever it can do so without prejudice to the efficient and proper conduct of its affairs, may investigate and determine the cost of the production or transportation of natural gas by a natural-gas company in cases where the Commission has no authority to establish a rate governing the transportation or sale of such natural gas.” When the provisions of the bill which became the Natural Gas Act were being read for amendment on the floor of the House, § 5 (b) was amended by inserting the italicized words. Mr. Boren, a member of the House Committee on Interstate and Foreign Commerce, who submitted this amendment, explained the purpose of it as follows : “Mr. BOREN. Mr. Chairman, my amendment has been agreed to by the committee. I offer the amendment in order to keep the jurisdiction of the Federal Government as clearly defined as possible from the jurisdiction of the State government in cases arising under the provisions of this bill. “During the hearings I offered this amendment and made the following statement: “ ‘Mr. Chairman, I would like to make this observation for the record and as a challenge to the proponents of this bill: That subsection B of section 5 provides for a growth and for the extension of the influence of a Federal bureau, or commission, in a realm POWER COMM’N v. PANHANDLE CO. 515 498 Opinion of the Court. Hugoton pending the outcome of its investigation. The Commission argues that, at any rate, the transfer should be enjoined until it can determine its own power and the necessity of using it. Injunctive aid was requested under § 20 (a)23 of the Act and the general equity power of the District Court. To be entitled to judicial assistance, however, the order issued by the Commission must be valid and based on a statutory grant of power to the Commission. As we have held above that the transfer of undeveloped gas leases is an activity related to the production and gathering of natural gas and beyond the coverage of the Act, the authority of the Commission cannot reach the sales. A proposed transfer cannot be stopped by the Commission. It should not be permitted to delay what it cannot prevent.24 If the Commission is of the opinion that it should have power to control the wherein this proposal submits on its own acknowledgment that the Federal authority and responsibility does not rightfully exist.’ “Mr. Chairman, this amendment clarifies the jurisdiction as between the Federal and State governments, and assures us that the Federal Government will not go into a realm where the State government already has proper authority to handle the problem. “The committee has approved the amendment, and I have nothing further to say.” 81 Cong. Rec. 6728. 23 “Sec. 20. (a) Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this Act, or of any rule, regulation, or order thereunder, it may in its discretion bring an action in the proper district court of the United States, the District Court of the United States for the District of Columbia, or the United States courts of any Territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices and to enforce compliance with this Act or any rule, regulation, or order thereunder, . . . .” 24 Cf. Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456,468. 837446 0—49------------37 516 OCTOBER TERM, 1948. Black, J., dissenting. 337 U. S. disposition of leases by natural-gas companies, it is authorized to call the attention of Congress to that fact.23 The judgment of the Court of Appeals is accordingly Affirmed. Mr. Justice Murphy took no part in the consideration or decision of this case. Mr. Justice Black, with whom Mr. Justice Douglas and Mr. Justice Rutledge concur, dissenting. The Court’s judgment and opinion in this case go far toward scuttling the Natural Gas Act. 52 Stat. 821, as amended, 56 Stat. 83. In that Act Congress declared it “necessary in the public interest” for the Federal Government to regulate natural-gas companies engaged in 25 In an analogous situation before the institution of this litigation, there had been uncertainty of opinion in the Commission as to the reach of the Act toward sales by independent producers and gatherers to natural-gas companies for transportation in interstate commerce. See reports of the Federal Power Commission on its Natural Gas Investigation (Docket No. G-580), transmitted to Congress on April 28, 1948. In Part IV of the report subscribed to by Commissioners Smith and Wimberly, it is concluded at pp. 38 and 40: “No reasonable basis is found in the Act or its legislative history for a conclusion that, although the ‘activities’ of production and gathering are exempt under Section 1 (b), sales of natural gas which are made at arm’s length by producers and gatherers who do not thereafter transport it in interstate commerce may be regulated. Unless such a distinction is specifically disclaimed, doubts and uncertainties will continue to be felt and expressed regarding the possible jurisdiction under the Natural Gas Act of those who only produce and gather natural gas and then sell it to others transporting such gas in interstate commerce.” Pp. 38-39. “In view of the present unsettled state of this matter, it is desirable, as the Commission has heretofore recommended, that the Congress should adopt appropriate amendatory legislation to make it clear that independent producers or gatherers of natural gas, and their sales thereof to interstate pipe lines, are not subject to the provisions of the Natural Gas Act. Such action will confirm what clearly ap- POWER COMM’N v. PANHANDLE CO. 517 498 Black, J., dissenting. the interstate transportation and sale of natural gas. Many sections of the Act detailed the authority granted the Federal Power Commission to regulate such companies and in addition § 16 granted broad congressional authority to the Commission “to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as . . . necessary or appropriate to carry out the provisions” of the Act. Today’s opinion interprets this Act as denying the Commission all authority to perform any action or issue any order to regulate an interstate company’s interest in natural-gas properties. This interpretation deprives the Commission of the power to discharge its congressionally imposed duty to protect the public interest. The Court’s sterilizing interpretation rests on an exception to Commission authority appearing in § 1 (b) of the Act.1 That exception provides that the Act shall not pears to have been the original intent of Congress when it enacted the Natural Gas Act in 1938.” Pp. 40-41. See also the report subscribed to by Commissioners Olds and Draper, pp. 12-14. Congress is now giving consideration to this problem. See H. R. 79, H. R. 1758, H. R. 982, S. 1498, and S. 1831, 81st Cong., 1st Sess., and committee hearings thereon. 1 Today’s opinion also relies on a “finding of fact” by the District Court that the Commission had never heretofore “asserted the right to regulate transfers of such leases.” The majority opinion views this “finding” as an evidence that for ten years “the Commission did not believe the power existed.” But this “finding” of fact rests only on affidavits offered in respect to a motion for a preliminary injunction and should not be utilized as a prop to support the Court’s interpretation of the Act. Moreover, the Commission points out that until the present time no such trading as is involved here had taken place. The Commission states in its brief that the finding of fact “does not reflect the full picture. Until this time, such trading has taken place with the view of blocking in reserves and improving service, and so far as the Commission is presently aware, not to achieve results which would derogate from the Commission’s jurisdiction.” 518 OCTOBER TERM, 1948. Black, J., dissenting. 337 U. S. apply to “the production or gathering of natural gas.” I agree with the Court that this language is “unambiguous” and that this Court should give the language its “natural and clear meaning.” “Production” of gas would thus mean the act of bringing forth gas from the earth, and “gathering” would mean the act of collecting gas after it has been brought forth. Such are the “natural and clear” meanings we had heretofore attributed to these word symbols. Colorado Interstate Gas Co. v. Comm’n, 324 U. S. 581, 597-604; Interstate Gas Co. v. Power Comm’n, 331 U. S. 682, 689-691. It was the physical acts incident to the “production and gathering” of gas— local activities—that our prior decisions emphasized Congress intended to leave states free to regulate. Today the Court reads this congressionally granted privilege of states to regulate the act of “production” as an absolute bar to the Federal Power Commission’s regulation of the ownership of gas-reserve properties. Gas reserves are indispensable to proper service of interstate customers of an interstate natural-gas company. And in thus limiting the Commission’s jurisdiction the Court leaves the Commission impotent to protect the public’s interest in having interstate companies maintain adequate gas reserves. This disabling interpretation reads the Federal Act as though it contemplated “ineffective regulation,” an interpretation directly opposed to that we gave the Act in Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 332 U. S. 507,520. Section 7 (e) of the Act requires the Commission to issue certificates of convenience and necessity only if an interstate company is “able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission thereunder . . . As authorized by § 7 (d), the Commission requires appli- POWER COMM’N v. PANHANDLE CO. 519 498 Black, J., dissenting. cants for certificates to show “the gas reserves which are to supply the market which is proposed to be served.”2 And § 7 (b) denies a company power to “abandon all or any portion of its facilities subject to the jurisdiction of the Commission . . . .” If evidence were needed to show the importance Congress attributed to the gas reserve facilities of a company, that evidence appears in §§ 7 (b), 7 (c) and 7 (e). Jurisdiction to regulate a natural-gas company without jurisdiction to regulate its gas reserves would be like granting jurisdiction to regulate railroads without power to regulate the tracks, routes, rights-of-way, etc. And we have held that the Commission has jurisdiction under the Natural Gas Act to consider the gas-producing properties in fixing rates. Colorado Interstate Co. v. Federal Power Commission, 324 U. S. 581; Panhandle Co. v. Power Comm’n, 324 U. S. 635, 648-649. The respondent company had its rate base fixed and its ability to serve the public determined on its claim to ownership of the very gas reserve properties the Court now permits it to sell to an affiliate over the protest of the Commission. According to allegations in the Commission’s complaint the respondent gas company has already received from its customers large sums of money from rates which reflected expenses incurred in maintaining these reserves and for exploration and development costs in relation to them. But under the Court’s holding today, these properties, increased in value by consumer contributions, can be given away by the respondent company to its newly formed affiliate. Congress could not have intended to render the Commission powerless to protect gas reserves necessary to continued consumer service and paid for by rates fixed to allow development of the reserves. 2 §57.5 (f) of the Commission’s Order No. 99 (7 Fed. Reg. 6844). 520 OCTOBER TERM, 1948. Black, J., dissenting. 337 U. S. Furthermore the reserves, costing only $160,000, have now apparently been capitalized by the respondent’s affiliated “purchaser” at $10,000,000. If the gas reserves continue to be held by the respondent company the rates will be fixed on the basis of the original $160,000 cost. Panhandle Co. v. Power Comm’n, 324 U. S. 635, 648. It is at least doubtful whether after today’s holding the company can be prevented from hereafter charging rates based on the $10,000,000 inflated valuation. Thus the unwholesome practices that the Natural Gas Act was primarily designed to prevent are given a new lease on life. For a purpose of the Act was to protect consumers and one of the evils it was aimed to prevent was the holding company technique of transfers and retransfers between parent corporations, their offsprings and affiliates. Federal Power Comm’n n. Hope Gas Co., 320 U. S. 591, 610. It seems inconceivable that Congress would have passed an Act to regulate natural-gas companies with a wholly neutralizing exception to bar regulation of the gas reserves upon which the whole gas business depended. I cannot attribute such a meaningless and deceptive action to the Congress. While the Act itself grants broad Commission powers effectively to regulate gas companies, the Court’s interpretation deprives the Commission of power essential to fixing fair rates and to protecting continued services during the life of a company’s gas reserves. Today’s opinion regards Congress’ action like that of a parent who ordered his offspring to go swimming with a stern admonition not to go near the water. I would reverse. AERONAUTICAL LODGE v. CAMPBELL. 521 Syllabus. AERONAUTICAL INDUSTRIAL DISTRICT LODGE 727 v. CAMPBELL et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 333. Argued January 31, 1949.—Decided June 20, 1949. After his discharge from military service in World War II, a veteran was reemployed by his former private employer, in accordance with § 8 of the Selective Training and Service Act of 1940. During his military service, the collective bargaining agreement between his union and the employer had been modified so as to give union chairmen top seniority in the event of layoffs. Within one year after his reemployment, the veteran was laid off temporarily, although union chairmen who had less time with the company were retained. The employer refused to compensate the veteran for the period of the layoff. Held: The veteran’s rights under § 8 of the Act were not infringed. Pp. 522-529. 169 F. 2d 252, reversed. Three veterans sued for compensation for the period of a layoff, alleged to have been in violation of their rights under the Selective Training and Service Act of 1940. The District Court gave judgment for the veterans. A labor union, which had been allowed to intervene to protect its labor contract, appealed to the Court of Appeals, which affirmed the judgment. 169 F. 2d 252. This Court granted certiorari. 335 U. S. 869. Reversed, p. 529. Maurice J. Hindin argued the cause and filed a brief for petitioner. Assistant Attorney General Morison argued the cause for Campbell et al., individual respondents. With him on the brief were Solicitor General Perlman, Paul A. Sweeney and Morton Hollander. Robert H. Canan submitted on brief for the Lockheed Aircraft Corporation, respondent. 522 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. Mr. Justice Frankfurter delivered the opinion of the Court. We brought this case here, 335 U. S. 869, to resolve a conflict of views between two Courts of Appeals in their interpretation of the rights given to veterans of World War II by § 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 885, 890, 58 Stat. 798, 50 U. S. C. App. § 308. Three veterans brought this suit for compensation for the period of a layoff while employed at Lockheed Aircraft Corporation, a respondent here. The facts controlling the legal claims of all three may be represented by the circumstances attending Kirk’s employment and layoff.1 The petitioner, Aeronautical Industrial District Lodge No. 727, was the duly recognized collective bargaining agent of the employees at Lockheed Aircraft Corporation. In September, 1941, the Union had negotiated an agreement with Lockheed covering the range of subjects touching conditions of employment typical of such agreements in the aircraft industry. This agreement was in effect when Kirk was employed in August, 1942, by Vega Aircraft Corporation, which afterwards was merged with Lockheed. He joined the Union and has remained a member throughout this controversy. He left Lockheed two years later to enter the Army, from which he was honorably discharged in January, 1946, and was restored to his job at Lockheed in accordance with § 8 (a) of the Selective Service Act. 54 Stat. 885, 890, as amended, 50 U. S. C. App. § 308 (a). While Kirk was in military service his Union made a new agreement with Lockheed modi- 1 One of the three veterans, James L. Campbell, withdrew from the Union on the first day of March, 1946, but this did not affect his status as an employee with the company. There is no contention that his withdrawal from the Union affects in any manner his rights under § 8 of the Act, or that withdrawal from the Union should cause a different result. AERONAUTICAL LODGE v. CAMPBELL. 523 521 Opinion of the Court. fying the terms of the 1941 agreement in various particulars. Crucial to the issue here was a change in the seniority provisions of the former agreement. The change provided that “Union Chairmen who have acquired seniority shall be deemed to have top seniority so long as they remain Chairmen.” 2 In plain English this means that thereafter employees who served as 2 The collective bargaining agreement signed in 1941, so far as seniority was concerned, provided: “In case of a slack in production, layoffs are to be made primarily on the basis of the principle of seniority. Due consideration will be given, however, to (a) knowledge, training, ability, skill and efficiency, and (b) deportment record and other factors. If it becomes necessary to reduce the working force in any plant or department, a plan of layoff procedure will be prepared by the management and submitted to the Union for approval. If such plan is not acceptable to the Union the Company agrees to enter negotiations with the Union and to attempt to arrive at a mutually agreeable plan. If, however, at the end of one working week from the date the Company submitted its original plan of layoff procedure to the Union no new plan has been mutually agreed to, the Company may proceed according to its proposed plan of layoff subject to Article II, Section 6.” 1941 Agreement, Art. Ill, § 5. The later agreement provided: “(A) General Layoff Procedure. Layoffs shall be made in order of Company-wide seniority applied by occupation where ability, skill and efficiency are substantially equal. However, in the case of employees with four years’ or more seniority, the Company may, in its discretion, retain them in order of their Company-wide seniority, regardless of occupation, where ability, skill and efficiency are substantially equal. Any claim of unjust discrimination in the exercise of such discretion may be taken up as a grievance. Employees who have not acquired seniority rights may be laid off without regard to relative length of service. “(D) Top Seniority for Union Chairmen for Purpose of Layoffs. For the purpose of applying the Temporary and General Layoff Procedures, Union Chairmen who have acquired seniority shall be deemed to have top seniority so long as they remain Chairmen. . . .” 1945 Agreement, Art. IV, §3 (A), (D). 524 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. union chairmen were entitled to be retained in case of layoffs regardless of their length of service in the plant. In the latter part of June, 1946, and within a year after Kirk’s reemployment, it was necessary to lay off employees in Kirk’s industrial unit. These layoffs followed the conventional sequence of seniority, time for military service being duly credited, with the exception that union chairmen were retained in accordance with the 1945 agreement, even though they had less time with the company than those who were laid off, veterans or not. Kirk was among those laid off, and the retention as union chairmen of men who were junior to him is the basis of his claim that § 8 of the Act had been infringed.3 Kirk 3 These are the relevant statutory provisions: “(a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3 (b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. . . . “(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year— “(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; “(c) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be AERONAUTICAL LODGE v. CAMPBELL. 525 521 Opinion of the Court. was brought back to work within a month, but Lockheed refused to pay him for the time he was laid off. For this sum he brought this suit. Petitioner Union was allowed to intervene in order to protect its labor contract. Judgment went for Kirk, and the Union alone took the case to the Court of Appeals for the Ninth Circuit. That court affirmed the judgment,4 169 F. 2d 252, holding that § 8 of the Act forbade disregard of length of employment, so far as veterans are affected, in enforcing provisions in a collective agreement for the retention of union chairmen in the event of layoffs, regardless of their length of service. In so holding it ran counter to a series of decisions in the Court of Appeals for the Third Circuit. Gauweiler v. Elastic Stop Nut Corp., 162 F. 2d 448; Koury v. Elastic Stop Nut Corp., 162 F. 2d 544; Di Maggio n. Elastic Stop Nut Corp., 162 F. 2d 546, and Payne v. Wright Aeronautical Corp., 162 F. 2d 549. It is of the essence of collective bargaining that it is a continuous process. Neither the conditions to which it addresses itself nor the benefits to be secured by it remain static. They are not frozen even by war. Thus, under the Act the veteran accumulates time toward his seniority while in the service; he also becomes the beneficiary of considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.” 54 Stat. 885, 890, as amended, 50 U. S. C. App. § 308. 4 Lockheed, the respondent in the District Court, did not appeal. But since the judgment was not merely for money damages but also involved the construction of the collective agreement, the Union had the right to appeal. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 281-84. 526 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. those gains the achievement of which is the constant thrust of collective bargaining. In other words, the Act gives him the status of one who has been “on furlough or leave of absence” but uninterruptedly a member of the working force on whose behalf successive collective agreements are made. In this way the Act protects the furloughed employee from being prejudiced by any change in the terms of a collective agreement because he is “on furlough,” but he is not to be favored as a furloughed employee as against his fellows. This is the essence of our decision in Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275. In providing that a veteran shall be restored to the position he had before he entered the military service “without loss of seniority,” § 8 of the Act uses the term “seniority” without definition. It is thus apparent that Congress was not creating a system of seniority but recognizing its operation as part of the process of collective bargaining. We must therefore look to the conventional uses of the seniority system in the process of collective bargaining in order to determine the rights of seniority which the Selective Service Act guaranteed the veteran. Barring legislation not here involved, seniority rights derive their scope and significance from union contracts, confined as they almost exclusively are to unionized industry. See Trailmobile Co. v. Whirls, 331 U. S. 40, 53, n. 21. There are great variations in the use of the seniority principle through collective bargaining bearing on the time when seniority begins, determination of the units subject to the same seniority, and the consequences which flow from seniority. All these variations disclose limitations upon the dogmatic use of the principle of seniority in the interest of the ultimate aims of collective bargaining. Thus, probationary conditions must often be met before seniority begins to operate; sometimes it becomes retroactive to the date of employment; in other AERONAUTICAL LODGE v. CAMPBELL. 527 521 Opinion of the Court. instances it is effective only as from the qualifying date; in some industries it is determined on a company basis, in others the occupation or the plant is taken as the unit for seniority determination; sometimes special provisions are made for workers in key positions; and then again these factors are found in varying combinations. See Williamson & Harris, Trends in Collective Bargaining, 100-102 (1945); Harbison, Seniority Policies and Procedures as Developed through Collective Bargaining 1-10 (1941). To draw from the Selective Service Act an implication that date of employment is the inflexible basis for determining seniority rights as reflected in layoffs is to ignore a vast body of long-established controlling practices in the process of collective bargaining of which the seniority system to which that Act refers is a part. One of the safeguards insisted upon by unions for the effective functioning of collective bargaining is continuity in office for its shop stewards or union chairmen. To that end provision is made, as it was made here, against laying them off merely on the basis of temporal seniority. Because they are union chairmen they are not regarded as merely individual members of the union; they are in a special position in relation to collective bargaining for the benefit of the whole union. To retain them as such is not an encroachment on the seniority system but a due regard of union interests which embrace the system of seniority rights. These considerations are decisive of the case. The agreements made by the Union with Lockheed represent familiar developments in the process of collective bargaining which the Selective Service Act presupposes and in the context of which it must be placed. Kirk’s rights, including seniority, before he entered the service were derived from the agreement of 1941. So, likewise, were his rights, including seniority, as an employee on fur- 528 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. lough defined by the agreement of 1945, inasmuch as that agreement in no wise disadvantaged his position because he was in the military service. In the ordinary and orderly course of formulating the terms of employment, the 1945 agreement between the Union and Lockheed in some directions modified the provisions of the 1941 agreement. A labor agreement is a code for the government of an industrial enterprise and, like all government, ultimately depends for its effectiveness on the quality of enforcement of its code. Because a labor agreement assumes the proper adjustment of grievances at their source, the union chairmen play a very important role in the whole process of collective bargaining. Therefore it is deemed highly desirable that union chairmen have the authority and skill which are derived from continuity in office. A provision for the retention of union chairmen beyond the routine requirements of seniority is not at all uncommon and surely ought not to be deemed arbitrary or discriminatory.5 The fact that it may involve, as in Kirk’s case, the temporary layoff of a 5 See Greenman, Getting Along With Unions 26 (1948); Union Agreements in the Cotton-Textile Industry, U. S. Dept, of Labor, Bull. No. 885, p. 28 (1946); Thomas, Automobile Unionism 56 (1941); Collective Bargaining Provisions, Seniority Provisions, U. S. Dept, of Labor 28-29 (1948); Collective Bargaining in the Office, American Management Assn., Research Rep. No. 12, p. 72. The advantage of this modification in seniority according to length of service in the plant is “the mutual interest of union and management in preserving the continuity of the bargaining and grievance adjustment personnel.” Seniority Provisions in Union Agreements, U. S. Dept, of Labor, Serial No. R. 1308, p. 7 (1941). While there is not complete agreement on the advantage of seniority for union chairmen, it is certainly within the area of collective bargaining. See Williamson and Harris, Trends in Collective Bargaining 101-103 (1945); see Greenman, Getting Along With Unions 85-86 (1948). The National War Labor Board recognized “that the functions of AERONAUTICAL LODGE v. CAMPBELL. 529 521 Opinion of the Court. veteran while a non veteran chairman with less time at the plant is retained, is wholly unrelated to the veteran’s absence in the service. Under the 1945 agreement chairmen were to be elected once a year, and unless the election occurred on the day before a veteran returned to the plant, his chance of election would be the same as that of persons who had been continuously at work in the plant. Of course, the Selective Service Act restricts a readjustment of seniority rights during the veteran’s absence to the disadvantage of the veteran. But it would be an undue restriction of the process of collective bargaining (without compensating gain to the veteran) to forbid changes in collective bargaining arrangements which secure a fixed tenure for union chairmen, whereby veterans as well as nonveterans are benefited by promoting greater protection of their rights and smoother operation of labor-management relations. All this presupposes, obviously, that an agreement containing the 1945 provisions expresses honest desires for the protection of the interests of all members of the Union and is not a skillful device of hostility to veterans. There is not the remotest suggestion that the 1945 agreement was other than what it purported to be—the means for securing both to veterans and to non veterans better working conditions through elected leaders not subject to the contingencies of a labor turnover. Reversed. Mr. Justice Douglas concurs in the result. shop stewards and other local union officials were of value to a company as well as to its employees in settling and preventing labor grievances. For this reason, it usually directed seniority preference for union officials in disputes over the issue.” The Termination Report of the National War Labor Board, U. S. Dept, of Labor, Vol. I, p. 148. 530 OCTOBER TERM, 1948. Syllabus. 337 U. S. RAGAN v. MERCHANTS TRANSFER & WAREHOUSE CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 522. Argued April 20, 1949.—Decided June 20, 1949. Solely on grounds of diversity of citizenship, petitioner sued in the Federal District Court for Kansas to recover damages for injuries sustained in a highway accident which occurred less than two years before his complaint was filed; but the summons was not served until more than two years after the date of the accident. The complaint was filed and the summons issued in accordance with the Federal Rules of Civil Procedure; but Kansas has a two-year statute of limitations applicable to such tort claims which the Court of Appeals held is not tolled until service of a summons. Held: The suit was barred by the state statute of limitations. Pp. 531-534. (a) This result necessarily follows from Erie R. Co. v. Tompkins, 304 U. S. 64, since otherwise the plaintiff’s rights under local law would be different in the federal courts from what they would be in the state courts. Pp. 532-533. (b) A different result is not required by the fact that the Federal Rules of Civil Procedure govern the manner in which an action is commenced in a federal court. Pp. 532-533. (c) Nor is a different result required by the fact that local law brought the cause of action to an end after, rather than before, suit was started in the federal court. Pp. 533-534. (d) In accordance with its usual practice of accepting the determination of local law by the Court of Appeals, this Court accepts the holding of the Court of Appeals that a Kansas statute providing that an action is commenced when summons is served on the defendant is an integral part of the Kansas statute of limitations. P. 534. 170 F. 2d 987, affirmed. Having jurisdiction solely on grounds of diversity of citizenship, a Federal District Court granted petitioner a judgment for damages sustained in a highway accident. The Court of Appeals reversed. 170 F. 2d 987. This Court granted certiorari. 336 U. S. 917. Affirmed, p. 534. RAGAN v. MERCHANTS TRANSFER CO. 531 530 Opinion of the Court. Cornelius Roach argued the cause for petitioner. With him on the brief was Daniel L. Brenner. Douglas Hudson argued the cause and filed a brief for respondent. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Justice Reed. This case, involving a highway accident which occurred on October 1, 1943, came to the District Court for Kansas by reason of diversity of citizenship. Petitioner instituted it there on September 4, 1945, by filing the complaint with the court—the procedure specified by the Federal Rules of Civil Procedure.1 As prescribed by those Rules, a summons was issued.2 Service was had on December 28, 1945. Kansas has a two-year statute of limitations applicable to such tort claims.3 Respondent pleaded it and moved for summary judgment. Petitioner claimed that the filing of the complaint tolled the statute. Respondent argued that by reason of a Kansas statute4 the statute of limitations was not tolled until service of the summons. 1 Rule 3 provides, “A civil action is commenced by filing a complaint with the court.” 2Rule 4 (a) provides: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it. Upon request of the plaintiff separate or additional summons shall issue against any defendants.” An earlier summons issued on September 7, 1945, and thereafter served had been quashed. 3 Kan. Gen. Stats. 1935, § 60-306. 4 Id., § 60-308 provides, “An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him. Where service by publication 837446 0—49------38 532 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. The District Court struck the defense and denied respondent’s motion. A trial was had and a verdict rendered for petitioner. The Court of Appeals reversed. 170 F. 2d 987. It ruled, after a review of Kansas authorities, that the requirement of service of summons within the statutory period was an integral part of that state’s statute of limitations. It accordingly held that Guaranty Trust Co. n. York, 326 U. S. 99, governed and that respondent’s motion for summary judgment should have been sustained. The case is here on a petition for certiorari which we granted because of the importance of the question presented. 336 U. S. 917. Erie R. Co. n. Tompkins, 304 U. S. 64, was premised on the theory that in diversity cases the rights enjoyed under local law should not vary because enforcement of those rights was sought in the federal court rather than in the state court. If recovery could not be had in the state court, it should be denied in the federal court. Otherwise, those authorized to invoke the diversity jurisdiction would gain advantages over those confined to state courts. Guaranty Trust Co. v. York applied that principle to statutes of limitations on the theory that, where one is barred from recovery in the state court, he should likewise be barred in the federal court. It is conceded that if the present case were in a Kansas court it would be barred. The theory of Guaranty Trust Co. n. York would therefore seem to bar it in the federal court, as the Court of Appeals held. The force of that reasoning is sought to be avoided by the argument that is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.” RAGAN v. MERCHANTS TRANSFER CO. 533 530 Opinion of the Court. the Federal Rules of Civil Procedure determine the manner in which an action is commenced in the federal courts—a matter of procedure which the principle of Erie R. Co. v. Tompkins does not control. It is accordingly argued that since the suit was properly commenced in the federal court before the Kansas statute of limitations ran, it tolled the statute. That was the reasoning and result in Bomar v. Keyes, 162 F. 2d 136, 141. But that case was a suit to enforce rights under a federal statute.5 Here, as in that case, there can be no doubt that the suit was properly commenced in the federal court. But in the present case we look to local law to find the cause of action on which suit is brought. Since that cause of action is created by local law, the measure of it is to be found only in local law. It carries the same burden and is subject to the same defenses in the federal court as in the state court. See Cities Service Co. v. Dunlap, 308 U. S. 208; Palmer v. Hoffman, 318 U. S. 109, 117. It accrues and comes to an end when local law so declares. West v. American Tel. & T. Co., 311 U. S. 223; Guaranty Trust Co. v. York, supra. Where local law qualifies or abridges it, the federal court must follow suit. Otherwise there is a different measure of the cause of action in one court than in the other, and the principle of Erie R. Co. v. Tompkins is transgressed. We can draw no distinction in this case because local law brought the cause of action to an end after, rather than before, suit was started in the federal court. In both cases local law created the right which the federal court was asked to enforce. In both cases local law undertook to determine the life of the cause of action. We cannot give it longer life in the federal court than it 5 Civil Rights Act, 8 U. S. C. § 43. 534 OCTOBER TERM, 1948. Dissent. 337 U. S. would have had in the state court without adding something to the cause of action. We may not do that consistently with Erie R. Co. v. Tompkins. It is argued that the Kansas statute in question6 is not an integral part of the Kansas statute of limitations. But the Court of Appeals on a careful canvass of Kansas law in an opinion written by Judge Huxman, a distinguished member of the Kansas bar, has held to the contrary. We ordinarily accept the determination of local law by the Court of Appeals (see Huddleston v. Dwyer, 322 U. S. 232, 237), and we will not disturb it here. Affirmed. Mr. Justice Rutledge dissents. See his dissenting opinion in Nos. 442 and 512, Cohen v. Beneficial Industrial Loan Corp., post, p. 557. 6 Note 4, supra. WOODS v. INTERSTATE REALTY CO. 535 Opinion of the Court. WOODS v. INTERSTATE REALTY CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 465. Argued March 30-31, 1949.—Decided June 20, 1949. In an action brought by a foreign corporation in a Federal District Court solely on grounds of diversity of citizenship to recover a broker’s commission for the sale of real estate in the State, defendant moved for summary judgment on the ground that plaintiff had not qualified to do business in the State under a state statute which the Court of Appeals construed as not making the contract void but only unenforcible in the state courts. Held: The motion for summary judgment was properly granted. Erie R. Co. v. Tompkins, 304 U. S. 64. Pp. 535-538. 170 F. 2d 694, reversed. Having jurisdiction solely on grounds of diversity of citizenship, a Federal District Court granted a defendant’s motion for summary judgment in a suit to recover a broker’s commission, on the ground that the plaintiff, a foreign corporation, had not qualified to do business in the State as required by state law. The Court of Appeals reversed, 168 F. 2d 701; granted rehearing, 170 F. 2d 74; and reaffirmed its reversal, 170 F. 2d 694. This Court granted certiorari. 336 U. S. 909. Reversed, p. 538. P. H. Eager, Jr. argued the cause for petitioner. With him on the brief were William H. Watkins and Thomas H. Watkins. John A. Osoinach and Phil Stone argued the cause for respondent. Mr. Osoinach also filed a brief. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Justice Reed. This case was brought in the District Court for Mississippi on the grounds of diversity of citizenship. Respondent, a Tennessee corporation, sued petitioner, a 536 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. resident of Mississippi, for a broker’s commission alleged to be due for the sale of real estate of petitioner in Mississippi. The District Court found on motion for summary judgment that the contract was void under Mississippi law, since respondent was doing business in Mississippi without qualifying under a Mississippi statute.1 It therefore dismissed the complaint with prejudice. The Court of Appeals reversed. It reviewed the Mississippi decisions under the Mississippi statute and concluded that the contract was not void but only unen-forcible in the Mississippi courts. It held in reliance on David Lupton’s Sons Co. v. Automobile Club, 225 U. S. 489, that the fact that respondent could not sue in the Mississippi courts did not close the doors of the federal court sitting in that State. Accordingly it reversed the judgment of the District Court. 168 F. 2d 701. It granted rehearing, 170 F. 2d 74, and reaffirmed its reversal, 170 F. 2d 694. The case is here on a petition for writ of certiorari which we granted because of the seeming conflict of that holding with our recent ruling in Angel v. Bullington, 330 U. S. 183. If the Lupton’s Sons case controls, it is clear that the Court of Appeals was right in allowing the action to be maintained in the federal court. In that case a New York statute provided that no foreign corporation could “maintain any action in this state” without a certificate that it had qualified to do business there. The Court held that a contract on which the corporation could not 1 Miss. Code 1942, § 5319, requires a foreign corporation doing business in the State to file a written power of attorney designating an agent on whom service of process may be had. It also provides, “Any foreign corporation failing to comply with the above provisions shall not be permitted to bring or maintain any action or suit in any of the courts of this state.” WOODS v. INTERSTATE REALTY CO. 537 535 Opinion of the Court. sue in the courts of New York by reason of that statute nevertheless could be enforced in the federal court in a diversity suit. The Court said, 225 U. S. p. 500, “The State could not prescribe the qualifications of suitors in the courts of the United States, and could not deprive of their privileges those who were entitled under the Constitution and laws of the United States to resort to the Federal courts for the enforcement of a valid contract.” We said in Angel v. Bullington that the case of Lupton’s Sons had become “obsolete” insofar as it was “based on a view of diversity jurisdiction which came to an end with Erie Railroad v. Tompkins, 304 U. S. 64.” 330 U. S. p. 192. Bullington had sued Angel in a North Carolina court for a deficiency judgment on the sale of realty under a deed of trust. The Supreme Court of North Carolina dismissed the action because of a North Carolina statute which disallowed a deficiency judgment in such a case and which the North Carolina Supreme Court construed to be “a limitation of the jurisdiction of the courts of this State.” 220 N. C. 18, 20, 16 S. E. 2d 411, 412. Thereafter Bullington sued in the federal court of North Carolina by reason of diversity of citizenship. We held that that suit could not be maintained because (1) the prior suit was res judicata; and (2) the policy of Erie R. Co. v. Tompkins precluded maintenance in the federal court in diversity cases of suits to which the State had closed its courts. The Court of Appeals concluded that the latter reason was argumentatory, the real basis of the decision being that Bullington was denied recovery on the doctrine of res judicata. But where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum. United States v. Title Ins. Co., 265 U. S. 472, 486; Massachusetts v. United States, 333 U. S. 611, 623. 538 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. Angel v. Bullington in its alternative ground followed the view of Guaranty Trust Co.n. York, 326 U. S. 99, 108, that for purposes of diversity jurisdiction a federal court is, “in effect, only another court of the State . . . .” In that case we required the federal court in a diversity case to apply the statute of limitations of the State in equity actions and thus to follow local law, as had previously been done in cases involving burden of proof (Cities Service Co. v. Dunlap, 308 U. S. 208; cf. Stoner n. New York Life Ins. Co., 311 U. S. 464); contributory negligence (Palmer v. Hoffman, 318 U. S. 109, 117); conflict of laws (Klaxon Co. v. Stentor Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498); and accrual of the cause of action (West v. American Tel. & T. Co., 311 U. S. 223). The York case was premised on the theory that a right which local law creates but which it does not supply with a remedy is no right at all for purposes of enforcement in a federal court in a diversity case; that where in such cases one is barred from recovery in the state court, he should likewise be barred in the federal court. The contrary result would create discriminations against citizens of the State in favor of those authorized to invoke the diversity jurisdiction of the federal courts. It was that element of discrimination that Erie R. Co. v. Tompkins was designed to eliminate. Reversed. Mr. Justice Rutledge dissents. See his dissenting opinion in Nos. 442 and 512, Cohen n. Beneficial Industrial Loan Corp., post, p. 557. Mr. Justice Jackson, dissenting. Erie R. Co.n. Tompkins, 304 U. S. 64, required federal courts in diversity cases to apply state decisional law as the Rules of Decision Act required them to apply state statutes. WOODS v. INTERSTATE REALTY CO. 539 535 Jackson, J., dissenting. That is what the Court of Appeals tried to do in this case. The State of Mississippi has a statute which says that if a corporation does not qualify to do business within the State it “shall not be permitted to bring or maintain any action or suit in any of the courts of this state.” (Emphasis supplied.) The Court of Appeals reviewed state court decisions, some of which are not free from ambiguity, and found that the law of Mississippi intends to go no farther than to withhold the aid of state-maintained courts from a noncomplying corporation and that the state law does not deprive contracts of their validity or intend to foreclose foreign corporations from resort to federal courts or to any self-enforcing remedies they may have. This Court refuses to give the statute that limited effect. I understand it to rule that Mississippi cannot enact a law closing its own courts to such foreign corporations without also closing the federal courts. In this we seem to be doing the very thing we profess to avoid; that is, giving the state law a different meaning in federal court than the state courts have given it. The Mississippi statute follows a pattern general among the states in requiring qualification and payment of fees by foreign corporations. State courts have generally held such Acts to do no more than to withhold state help from the noncomplying corporation but to leave their rights otherwise unimpaired. This interpretation left such corporations a basis on which to get the help of any other court—federal or state—that could otherwise take jurisdiction, and free to resort to pledged property, offset and various other methods of self-help. The state statute as now interpreted by this Court is a harsh, capricious and vindictive measure. It either refuses to entertain a cause of action, not impaired by state law, or it holds it invalid with unknown effects on 540 OCTOBER TERM, 1948. Jackson, J., dissenting. 337 U. S. amounts already collected. In either case the amount of this punishment bears no relation to the amount of wrong done the State in failure to qualify and pay its taxes. The penalty thus suffered does not go to the State, which sustained the injury, but results in unjust enrichment of the debtor, who has suffered no injury from the creditors’ default in qualification. If the state court had held its statute to have this effect, I should agree that federal courts should so apply it; but the whole basis of our decision is contrary to that of the state courts. I think the Court’s action in refusing to accept the state court’s determination of the effect of its own statute is a perversion of the Erie R. Co. v. Tompkins doctrine. I would affirm the court below. Mr. Justice Rutledge and Mr. Justice Burton join in this opinion. COHEN v. BENEFICIAL LOAN CORP. 541 Syllabus. COHEN, EXECUTRIX, et al. v. BENEFICIAL INDUSTRIAL LOAN CORP, et al. NO. 442. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.* Argued April 18, 1949.—Decided June 20, 1949. 1. Under 28 U. S. C. § 1291, appeal may be taken from an order of a Federal District Court denying a corporation’s motion that the plaintiff in a stockholder’s derivative action be required, pursuant to a state statute, to give security for reasonable expenses of the defendants, in connection with the action. Pp. 545-547. (a) The matters embraced in such an order are not of such an interlocutory nature as to affect, or to be affected by, a decision on the merits. P. 546. (b) The order is appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. Pp. 546-547. 2. A state statute providing that, in any stockholder’s derivative action pending at the time of its enactment or thereafter brought, in which the plaintiff’s interest as a shareholder is less than 5% of the value of all outstanding shares and has a market value of less than $50,000, he may be required at any stage of the proceeding to give security for the reasonable expenses, including counsel fees, which the corporation may incur or for which it may become liable, does not violate the Federal Constitution. Pp. 547-555. (a) The Federal Constitution does not oblige a state to place its litigating and adjudicating processes at the disposal of a plaintiff in a stockholder’s derivative suit, at least without imposing standards of responsibility, liability and accountability which it considers will protect the interests he elects himself to represent. Pp. 547-551. (b) The statute here involved does not violate the Contract Clause of the Constitution. P. 551. (c) For a state to close its courts to this type of litigation if the condition of reasonable security is not met does not violate the Due Process Clause. Pp. 551-552. *Together with No. 512, Beneficial Industrial Loan Corp. n. Smith, United States District Judge, et al., also on certiorari to the same Court. 542 OCTOBER TERM, 1948. Counsel for Parties. 337 U. S. (d) The limitation of the requirement of the statute to stockholders whose interest is less than 5% and has a market value of less than $50,000, does not violate the Equal Protection Clause of the Constitution. Pp. 552-553. (e) Assuming that the statute will not be construed as imposing liability for expenses incurred before its enactment, or perhaps before the granting of security in a particular case, the provision making it applicable to actions pending at the time of its enactment does not give it such a retroactive effect as to render it unconstitutional under the Due Process Clause. Pp. 553-554. 3. That a corporation which was the subject of a stockholder’s derivative action in New Jersey was organized under the laws of Delaware does not make inapplicable a New Jersey statute providing that the plaintiff may be required to give security for reasonable expenses of the corporation. Pp. 554-555. 4. A federal court, having jurisdiction of a stockholder’s derivative action only because of diversity of citizenship, must apply a statute of the forum State which makes the plaintiff, if unsuccessful, liable for reasonable expenses, including attorney’s fees, of the defense and provides that the corporation may require the plaintiff to give security for their payment as a condition of prosecuting the action. Pp. 543-545, 555-557. (a) A statute which so conditions the stockholder’s action cannot be disregarded by the federal court as a mere procedural device. Pp. 555-556. (b) A different result is not required by Rule 23 of the Federal Rules of Civil Procedure, since there is no conflict between that rule and the state statute. P. 556. 170 F. 2d 44, affirmed. A Federal District Court, having jurisdiction of a stockholder’s derivative action solely because of diversity of citizenship, denied a motion to require the plaintiff to post security for reasonable expenses incurred by the defense, as required by a statute of the forum State. 7 F. R. D. 352. The Court of Appeals reversed. 170 F. 2d 44. This Court granted certiorari. 336 U. S. 917. Affirmed, p. 556. Charles Hershenstein and Philip B. Kurland argued the cause for petitioners in No. 442 and respondents in COHEN v. BENEFICIAL LOAN CORP. 543 541 Opinion of the Court. No. 512. With them on the brief were Edward J. O’Mara, Samuel Dreskin and David F. Cohen. John M. Harlan argued the cause for the Beneficial Industrial Loan Corp., respondent in No. 442 and petitioner in No. 512. With him on the brief were Charles Danzig and Walter Pond. Briefs of amici curiae in support of petitioners in No. 442 and respondents in No. 512 were filed by Julius Levy for Weinberger; and by Lewis M. Dabney, Jr. Mr. Justice Jackson delivered the opinion of the Court. The ultimate question here is whether a federal court, having jurisdiction of a stockholder’s derivative action only because the parties are of diverse citizenship, must apply a statute of the forum state which makes the plaintiff, if unsuccessful, liable for the reasonable expenses, including attorney’s fees, of the defense and entitles the corporation to require security for their payment. Petitioners’ decedent, as plaintiff, brought in the United States District Court for New Jersey an action in the right of the Beneficial Industrial Loan Corporation, a Delaware corporation doing business in New Jersey. The defendants were the corporation and certain of its managers and directors. The complaint alleged generally that since 1929 the individual defendants engaged in a continuing and successful conspiracy to enrich themselves at the expense of the corporation. Specific charges of mismanagement and fraud extended over a period of eighteen years and the assets allegedly wasted or diverted thereby were said to exceed $100,000,000. The stockholder had demanded that the corporation institute proceedings for its recovery but, by their control of the corporation, the individual defendants prevented it from doing so. This stockholder, therefore, sought to assert 544 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. the right of the corporation. One of 16,000 stockholders, he owned 100 of its more than two million shares, so that his holdings, together with 150 shares held by the intervenor, approximated 0.0125% of the outstanding stock and had a market value that had never exceeded $9,000. The action was brought in 1943, and various proceedings had been taken therein when, in 1945, New Jersey enacted the statute which is here involved.1 Its general effect is to make a plaintiff having so small an interest liable for the reasonable expenses and attorney’s fees of 1 Chapter 131, New Jersey Laws of 1945, provides in pertinent part as follows: “1. In any action instituted or maintained in the right of any domestic or foreign corporation by the holder or holders of shares, or of voting trust certificates representing shares, of such corporation having a total par value or stated capital value of less than five per centum (5%) of the aggregate par value or stated capital value of all the outstanding shares of such corporation’s stock of every class . . . unless the shares or voting trust certificates held by such holder or holders have a market value in excess of fifty thousand dollars ($50,000.00), the corporation in whose right such action is brought shall be entitled, at any stage of the proceeding before final judgment, to require the complainant or complainants to give security for the reasonable expenses, including counsel fees, which may be incurred by it in connection with such action and by the other parties defendant in connection therewith for which it may become subject pursuant to law, its certificate of incorporation, its by-laws or under equitable principles, to which the corporation shall have recourse in such amount as the court having jurisdiction shall determine upon the termination of such action. The amount of such security may thereafter, from time to time, be increased or decreased in the discretion of the court having jurisdiction of such action upon showing that the security provided has or may become inadequate or is excessive. “2. In any action, suit or proceeding brought or maintained in the right of a domestic or foreign corporation by the holder or holders of shares, or of voting trust certificates representing shares, of such corporation, it must be made to appear that the complainant was a shareholder or the holder of a voting trust certificate at the time COHEN v. BENEFICIAL LOAN CORP. 545 541 Opinion of the Court. the defense if he fails to make good his complaint and to entitle the corporation to indemnity before the case can be prosecuted. These conditions are made applicable to pending actions. The corporate defendant therefore moved to require security, pointed to its by-laws by which it might be required to indemnify the individual defendants, and averred that a bond of $125,000 would be appropriate. The District Court was of the opinion that the state enactment is not applicable to such an action when pending in a federal court, 7 F. R. D. 352. The Court of Appeals was of a contrary opinion and reversed, 170 F. 2d 44, and we granted certiorari. 336 U. S. 917. Appealability. At the threshold we are met with the question whether the District Court’s order refusing to apply the statute was an appealable one. Title 28 U. S. C. § 1291 provides, as did its predecessors, for appeal only “from all final decisions of the district courts,” except when direct appeal to this Court is provided. Section 1292 allows appeals also from certain interlocutory orders, decrees and judgments, not material to this case except as they indicate the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties. It is obvious that, if Congress had allowed appeals only from those final judgments which terminate an action, this order would not be appealable. of the transaction of which he complains or that his share or voting trust certificate thereafter devolved upon him by operation of law. “3. This act shall take effect immediately and shall apply to all such actions, suits or proceedings now pending in which no final judgment has been entered, and to all future actions, suits and proceedings.” 546 OCTOBER TERM, 1948. Opinion of the Court. 337 U.S. The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. But the District Court’s action upon this application was concluded and closed and its decision final in that sense before the appeal was taken. Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order, and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably. We conclude that the matters embraced in the decision appealed from are not of such an interlocutory nature as to affect, or to be affected by, decision of the merits of this case. This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction. Bank of Columbia v. Sweeny, 1 Pet. 567, 569; United States n. River Rouge Co., 269 U. S. 411, 414; Cobbledick v. United States, 309 U. S. 323, 328. We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient COHEN v. BENEFICIAL LOAN CORP. 547 541 Opinion of the Court. of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question. Since this order may be reviewed on appeal, the petition in No. 512, whereby the corporation asserts the right to compel security by mandamus, is dismissed. Constitutionality. Petitioners deny the validity of the statute under the Federal Constitution and the New Jersey Constitution. The latter question is ultimately for the state courts, and since they have made no contrary determination, we shall presume in the circumstances of this case that the statute conforms with the state constitution. Federal constitutional questions we must consider, because a federal court would not give effect, in either a diversity or nondiversity case, to a state statute that violates the Constitution of the United States. The background of stockholder litigation with which this statute deals requires no more than general notice. As business enterprise increasingly sought the advantages of incorporation, management became vested with almost uncontrolled discretion in handling other people’s money. The vast aggregate of funds committed to corporate control came to be drawn to a considerable extent from numerous and scattered holders of small interests. The director was not subject to an effective accountability. That created strong temptation for managers to profit personally at expense of their trust. The business code became all too tolerant of such practices. Corporate laws 837446 0—49-------------39 548 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. were lax and were not self-enforcing, and stockholders, in face of gravest abuses, were singularly impotent in obtaining redress of abuses of trust. Equity came to the relief of the stockholder, who had no standing to bring civil action at law against faithless directors and managers. Equity, however, allowed him to step into the corporation’s shoes and to seek in its right the restitution he could not demand in his own. It required him first to demand that the corporation vindicate its own rights, but when, as was usual, those who perpetrated the wrongs also were able to obstruct any remedy, equity would hear and adjudge the corporation’s cause through its stockholder with the corporation as a defendant, albeit a rather nominal one. This remedy, born of stockholder helplessness, was long the chief regulator of corporate management and has afforded no small incentive to avoid at least grosser forms of betrayal of stockholders’ interests. It is argued, and not without reason, that without it there would be little practical check on such abuses. Unfortunately, the remedy itself provided opportunity for abuse, which was not neglected. Suits sometimes were brought not to redress real wrongs, but to realize upon their nuisance value. They were bought off by secret settlements in which any wrongs to the general body of share owners were compounded by the suing stockholder, who was mollified by payments from corporate assets. These litigations were aptly characterized in professional slang as “strike suits.” And it was said that these suits were more commonly brought by small and irresponsible than by large stockholders, because the former put less to risk and a small interest was more often within the capacity and readiness of management to compromise than a large one. We need not determine the measure of these abuses or the evils they produced on the one hand or prevented COHEN v. BENEFICIAL LOAN CORP. 549 541 Opinion of the Court. and redressed on the other. The Legislature of New Jersey, like that of other states,2 considered them sufficient to warrant some remedial measures. The very nature of the stockholder’s derivative action makes it one in the regulation of which the legislature of a state has wide powers. Whatever theory one may hold as to the nature of the corporate entity, it remains a wholly artificial creation whose internal relations between management and stockholders are dependent upon state law and may be subject to most complete and penetrating regulation, either by public authority or by some form of stockholder action. Directors and managers, if not technically trustees, occupy positions of a fiduciary nature, and nothing in the Federal Constitution prohibits a state from imposing on them the strictest measure of responsibility, liability and accountability, either as a condition of assuming office or as a consequence of holding it. Likewise, a stockholder who brings suit on a cause of action derived from the corporation assumes a position, not technically as a trustee perhaps, but one of a fiduciary character. He sues, not for himself alone, but as representative of a class comprising all who are similarly situated. The interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity. And while the stockholders have chosen the corporate director or manager, they have no such election as to a plaintiff who steps forward to represent them. He is a self-chosen representative and a volunteer champion. The Federal Constitution does not oblige the state to place its litigating and adjudicating processes at the disposal of such a 2 See New York General Corporation Law, § 61—b; 12 Pa. Stat. Ann. § 1322 ; Laws of Maryland, 1945, c. 989 ; Wisconsin Stat. §180.13 (1945). 550 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. representative, at least without imposing standards of responsibility, liability and accountability which it considers will protect the interests he elects himself to represent. It is not without significance that this Court has found it necessary long ago in the Equity Rules3 and now in the Federal Rules of Civil Procedure4 to impose procedural regulations of the class action not applicable to any other. We conclude that the state has plenary power over this type of litigation. In considering specific objections to the way in which the state has exercised its power in this particular statute, it should be unnecessary to say that we are concerned only with objections which go to constitutionality. The wisdom and the policy of this and similar statutes are involved in controversies amply debated in legal literature 5 but not for us to judge, and hence not for us to remark upon. The Federal Constitution does not invalidate state legislation because it fails to embody the 3 Old Equity Rule 94, 104 U. S. ix; Equity Rule 27, 226 U. S. 649,656. 4 Rule 23 (b). 5 See Hornstein, Problems of Procedure in Stockholder’s Derivative Suits, 42 Col. L. R. 574; Hornstein, Directors’ Expenses in Stockholders’ Suits, 43 id. 301; Koessler, The Stockholder’s Suit: A Comparative View, 46 id. 238; Hornstein, New Aspects of Stockholders’ Derivative Suits, 47 id. 1; Carson, Current Phases of Derivative Actions Against Directors, 40 Mich. L. R. 1125; P. E. Jackson, Reorganization of the Corporate Concept And the Effect of Section 61-b of the New York General Corporation Law, A5 Am. Bankr. Rev. 323; Carson, Further Phases of Derivative Actions Against Directors, 29 Cornell L. Q. 431; House, Stockholders’ Suits And the Coudert-Mitchell Laws, 20 N. Y. U. L. Q. Rev. 377; Hornstein, The Death Knell of Stockholders’ Derivative Suits in New York, 32 California L. R. 123; Zlinkoff, The American Investor And the Constitutionality of Section 61-b of the New York General Corporation Law, 54 Yale L. J. 352. See Douglas, Directors Who Do Not Direct, 47 Harv. L. R. 1305. COHEN v. BENEFICIAL LOAN CORP. 551 541 Opinion of the Court. highest wisdom or provide the best conceivable remedies. Nor can legislation be set aside by courts because of the fact, if it be such, that it has been sponsored and promoted by those who advantage from it.8 In dealing with such difficult and controversial subjects, only experience will verify or disclose weaknesses and defects of any policy and teach lessons which may be applied by amendment. Within the area of constitutionality, the states should not be restrained from devising experiments, even those we might think dubious, in the effort to preserve the maximum good which equity sought in creating the derivative stockholder’s action and at the same time to eliminate as much as possible its defects and evils. It is said that this statute transgresses the Due Process Clause by being “arbitrary, capricious and unreasonable”; the Equal Protection Clause by singling out small stockholders to burden most heavily; that it violates the Contract Clause; and that its application to pending litigation renders it unconstitutionally retroactive. The contention that this statute violates the Contract Clause of the Constitution is one in which we see not the slightest merit. Plaintiff’s suit is entertained by equity largely because he had no contract rights on which to base an action at law, and hence none which is impaired by this legislation. In considering whether the statute offends the Due Process Clause we can judge it only by its own terms, for it has had no interpretation or application as yet. It imposes liability and requires security for “the reasonable expenses, including counsel fees, which may be incurred” (emphasis supplied) by the corporation and by other parties defendant. The amount of security is subject to increase if the progress of the litigation reveals 6 Daniel v. Family Insurance Co., 336 U. S. 220. 552 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. that it is inadequate, or to decrease if it is proved to be excessive. A state may set the terms on which it will permit litigations in its courts. No type of litigation is more susceptible of regulation than that of a fiduciary nature. And it cannot seriously be said that a state makes such unreasonable use of its power as to violate the Constitution when it provides liability and security for payment of reasonable expenses if a litigation of this character is adjudged to be unsustainable. It is urged that such a requirement will foreclose resort by most stockholders to the only available judicial remedy for the protection of their rights. Of course, to require security for the payment of any kind of costs, or the necessity for bearing any kind of expense of litigation, has a deterring effect. But we deal with power, not wisdom; and we think, notwithstanding this tendency, it is within the power of a state to close its courts to this type of litigation if the condition of reasonable security is not met. The contention that the statute denies equal protection of the laws is based upon the fact that it enables a stockholder who owns 5% of a corporation’s outstanding shares, or $50,000 in market value, to proceed without either security or liability and imposes both upon those who elect to proceed with a smaller interest. We do not think the state is forbidden to use the amount of one’s financial interest, which measures his individual injury from the misconduct to be redressed, as some measure of the good faith and responsibility of one who seeks at his own election to act as custodian of the interests of all stockholders, and as an indication that he volunteers for the large burdens of the litigation from a real sense of grievance and is not putting forward a claim to capitalize personally on its harassment value. These may not be the best ways of precluding “strike lawsuits,” but we are unable to say that a classification for these pur- COHEN v. BENEFICIAL LOAN CORP. 553 541 Opinion of the Court. poses, based upon the percentage or market value of the stock alleged to be injured by the wrongs, is an unconstitutional one. Where any classification is based on a percentage or an amount, it is necessarily somewhat arbitrary. It is difficult to say of many lines drawn by legislation that they give those just above and those just below the line a perfectly equal protection. A taxpayer with $10,000.01 of income does not think it is equality to tax him at a different rate than one who has $9,999.99, or to require returns from one just above and not from one just below a certain figure. It is difficult to say that a stockholder who has 49.99% of a company’s stock should be unable to elect any representative to its Board of Directors while one who owns 50.01% may name the entire Board. If there is power, as we think there is, to draw a line based on considerations of proportion or amount, it is a rare case, of which this is not one, that a constitutional objection may be made to the particular point which the legislature has chosen. The contention also is made that the provision which applies this statute to actions pending upon its enactment, in which no final judgment has been entered, renders it void under the Due Process Clause for retroactivity. While by its terms the statute applies to pending cases, it does not provide the manner of application; nor do the New Jersey courts appear to have settled what its effect is to be. Its terms do not appear to require an interpretation that it creates new liability against the plaintiff for expenses incurred by the defense previous to its enactment. The statute would admit of a construction that plaintiff’s liability begins only from the time when the Act was passed or perhaps when the corporation’s application for security is granted and that security for expenses and counsel fees which “may be incurred” does not include those which have been in- 554 OCTOBER TERM, 1Ô48. Opinion of the Court. 337 U. S. curred before one or the other of these periods. We would not, for the purpose of considering constitutionality, construe the statute in absence of a state decision as imposing liability for events before its enactment. On this basis its alleged retroactivity amounts only to a stay of further proceedings unless and until security is furnished for expense incurred in the future, and does not extend either to destruction of an existing cause of action or to creation of a new liability for past events. The mere fact that a statute applies to a civil action retrospectively does not render it unconstitutional. Blount v. Windley, 95 U. S. 173,180; Western Union Telegraph Co. v. L. & N. R. Co., 258 U. S. 13; Chase Securities Corp. n. Donaldson, 325 U. S. 304. Looking upon the statute as we have indicated, its retroactive effect, if any, is certainly less drastic and prejudicial than that held not to be unconstitutional in these decisions. We do not find in the bare statute any such retroactive effect as renders it unconstitutional under the Due Process Clause, and of course we express no opinion as to the effect of an application other than we have indicated. It is also contended that this statute may not be applied in this case because the cause of action derives from a Delaware corporation and hence Delaware law governs it. But it is the plaintiff who has brought the case in New Jersey. The trial will very likely involve questions of conflict of laws as to which the law of New Jersey will apply, Klaxon Co. v. Stentor Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498, and perhaps questions of full faith and credit. These are not before us now. A plaintiff cannot avail himself of the New Jersey forum and at the same time escape the terms on which it is made available, if the law is applicable to a federal court sitting in that State, which we later consider. We conclude, therefore, that, so far as the Federal Constitution is concerned, New Jersey’s security statute is COHEN v. BENEFICIAL LOAN CORP. 555 541 Opinion of the Court. a valid law of that State and the question remains as to whether it must be applied by federal courts in that State to suits brought therein on diversity grounds. Applicability in Federal Court. The Rules of Decision Act, in effect since the First Congress of the United States and now found at 28 U. S. C. § 1652, provides: “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” This Court in Erie R. Co. v. Tompkins, 304 U. S. 64, held that judicial decisions are laws of the states within its meaning. But Erie R. Co. v. Tompkins and its progeny have wrought a more far-reaching change in the relation of state and federal courts and the application of state law in the latter whereby in diversity cases the federal court administers the state system of law in all except details related to its own conduct of business. Guaranty Trust Co. v. York, 326 U. S. 99. The only substantial argument that this New Jersey statute is not applicable here is that its provisions are mere rules of procedure rather than rules of substantive law. Even if we were to agree that the New Jersey statute is procedural, it would not determine that it is not applicable. Rules which lawyers call procedural do not always exhaust their effect by regulating procedure. But this statute is not merely a regulation of procedure. With it or without it the main action takes the same course. However, it creates a new liability where none existed before, for it makes a stockholder who institutes a derivative action liable for the expense to which he puts the corporation and other defendants, if he does not make good his claims. Such liability is not usual and it goes beyond payment of what we know as “costs.” If all 556 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. the Act did was to create this liability, it would clearly be substantive. But this new liability would be without meaning and value in many cases if it resulted in nothing but a judgment for expenses at or after the end of the case. Therefore, a procedure is prescribed by which the liability is insured by entitling the corporate defendant to a bond of indemnity before the outlay is incurred. We do not think a statute which so conditions the stockholder’s action can be disregarded by the federal court as a mere procedural device. It is urged, however, that Federal Rule of Civil Procedure No. 23 deals with plaintiff’s right to maintain such an action in federal court and that therefore the subject is recognized as procedural and the federal rule alone prevails. Rule 23 requires the stockholder’s complaint to be verified by oath and to show that the plaintiff was a stockholder at the time of the transaction of which he complains or that his share thereafter devolved upon him by operation of law. In other words, the federal court will not permit itself to be used to litigate a purchased grievance or become a party to speculation in wrongs done to corporations. It also requires a showing that an action is not a collusive one to confer jurisdiction and to set forth the facts showing that the plaintiff has endeavored to obtain his remedy through the corporation itself. It further provides that the class action shall not be dismissed or compromised without approval of the court, with notice to the members of the class. These provisions neither create nor exempt from liabilities, but require complete disclosure to the court and notice to the parties in interest. None conflict with the statute in question and all may be observed by a federal court, even if not applicable in state court. We see no reason why the policy stated in Guaranty Trust Co. n. York, 326 U. S. 99, should not apply. COHEN v. BENEFICIAL LOAN CORP. 557 541 Rutledge, J., dissenting. We hold that the New Jersey statute applies in federal courts and that the District Court erred in declining to fix the amount of indemnity reasonably to be exacted as a condition of further prosecution of the suit. The judgment of the Court of Appeals is Affirmed. Mr. Justice Douglas, with whom Mr. Justice Frankfurter concurs, dissenting in part. The cause of action on which this suit is brought is a derivative one. Though it belongs to the corporation, the stockholders are entitled under state law to enforce it. The measure of the cause of action is the claim which the corporation has against the alleged wrongdoers. This New Jersey statute does not add one iota to nor subtract one iota from that cause of action. It merely prescribes the method by which stockholders may enforce it. Each state has numerous regulations governing the institution of suits in its courts. They may favor the litigation or they may affect it adversely. But they do not fall under the principle of Erie R. Co. v. Tompkins, 304 U. S. 64, unless they define, qualify or delimit the cause of action or otherwise relate to it. This New Jersey statute, like statutes governing security for costs, regulates only the procedure for instituting a particular cause of action and hence need not be applied in this diversity suit in the federal court. Rule 23 of the Federal Rules of Civil Procedure defines that procedure for the federal courts. Mr. Justice Rutledge, dissenting. I am in accord with the dissenting opinion of Mr. Justice Douglas in this case. I also agree with the dissenting views of Mr. Justice Jackson in No. 465, Woods v. 558 OCTOBER TERM, 1948. Rutledge, J., dissenting. 337 U. S. Interstate Realty Co., ante, p. 538, decided today. And I have noted my dissent in No. 522, Ragan v. Merchants Transfer & Warehouse Co., ante, p. 530, also decided today. Without undertaking to discuss each case in detail, I think the three decisions taken together demonstrate the extreme extent to which the Court is going in submitting the control of diversity litigation in the federal courts to the states rather than to Congress, where it properly belongs. This is done in the guise of applying the rule of Erie R. Co. v. Tompkins, 304 U. S. 64. But in my opinion it was never the purpose of that decision to put such matters as those involved here outside the power of Congress to regulate and to confer that authority exclusively upon the states. What is being applied is a gloss on the Erie rule, not the rule itself. That case held that federal courts in diversity cases must apply state law, decisional as well as statutory, in determining matters of substantive law, in particular and apart from procedural limitations upon its assertion—whether a cause of action exists. I accept that view generally and insofar as it involves a wise rule of administration for the federal courts, though I have grave doubt that it has any solid constitutional foundation. But the Erie case made no ruling that in so deciding diversity cases a federal court is “merely another court of the state in which it sits,” and hence that in every situation in which the doors of state courts are closed to a suitor, so must be also those of the federal courts. Not only is this not true when the state bar is raised by a purely procedural obstacle. There is sound historical reason for believing that one of the purposes of the diversity clause was to afford a federal court remedy when, for at least some reasons of state policy, none would be available in the state courts. It is the gloss which has COHEN v. BENEFICIAL LOAN CORP. 559 541 Rutledge, J., dissenting. been put upon the Erie ruling by later decisions, e. g., Guaranty Trust Co. v. York, 326 U. S. 99, which in my opinion is being applied to extend the Erie ruling far beyond its original purpose or intent and, in my judgment, with consequences and implications seriously impairing Congress’ power, within its proper sphere of action, to control this type of litigation in the federal courts. The accepted dichotomy is the familiar “proceduralsubstantive” one. This of course is a subject of endless discussion, which hardly needs to be repeated here. Suffice it to say that actually in many situations procedure and substance are so interwoven that rational separation becomes well-nigh impossible. But, even so, this fact cannot dispense with the necessity of making a distinction. For, as the matter stands, it is Congress which has the power to govern the procedure of the federal courts in diversity cases, and the states which have that power over matters clearly substantive in nature. Judges therefore cannot escape making the division. And they must make it where the two constituent elements are Siamese twins as well as where they are not twins or even blood brothers. The real question is not whether the separation shall be made, but how it shall be made: whether mechanically by reference to whether the state courts’ doors are open or closed, or by a consideration of the policies which close them and their relation to accommodating the policy of the Erie rule with Congress’ power to govern the incidents of litigation in diversity suits. It is in these close cases, this borderland area, that I think we are going too far. It is one thing to decide that Pennsylvania does or does not create a cause of action in tort for injuries inflicted by specified conduct and to have that determination govern the outcome of 560 OCTOBER TERM, 1948. Rutledge, J., dissenting. 337 U. S. a diversity suit in Pennsylvania or New York.1 It is another, in my view, to require a bond for costs or for payment of the opposing party’s expenses and attorney’s fees in the event the claimant is unsuccessful. Whether or not the latter is conceived as creating a new substantive right, it is too close to controlling the incidents of the litigation rather than its outcome to be identified with the former. It is a matter which in my opinion lies within Congress’ control for diversity cases, not one for state control or to be governed by the fact that the state shuts the doors of its courts unless the state requirements concerning such incidents of litigation are complied with. In my view Rule 23 of the Federal Rules of Civil Procedure, derived from the former Equity Rules and now having the sanction of Congress, is valid and governs in the Cohen case. If, however, the State of New Jersey has the power to govern federal diversity suits within its 1 It may be noted that the disposition of the local law problem apparently presented in Erie was not consistent, either here or on remand, with the current view that a federal district court is required to treat a diversity case exactly as would a state court of the state in which the district court is sitting: The Erie case arose out of an alleged Pennsylvania tort, and this Court stated that the court of appeals had erred when it “declined to decide the issue of state law,” 304 U. S. at 80—i. e., “the Pennsylvania law.” Ibid. But the Erie case was initiated by Tompkins, “a citizen of Pennsylvania ... in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State.” 304 U. S. at 69 (emphasis added). Accordingly, as Erie is now construed, the issue on remand should have been what law a New York state court would have applied to the Pennsylvania tort. But the sole issue determined on remand was the applicable Pennsylvania law, without mention of the probable attitude of the New York courts. Tompkins n. Erie R. Co., 98 F. 2d 49. It was not until after Justice Brandeis had retired that this Court held that federal district courts were required to follow local conflict of laws doctrine in the resolution of diversity cases. Klaxon Co. n. Stentor Co., 313 U. S. 487. COHEN v. BENEFICIAL LOAN CORP. 561 541 Rutledge, J., dissenting. borders as to all matters having a substantive tinge or aspect, then it may be questioned whether, in the event of conflict with some local policy, a federal court sitting in that state could give effect to the Rule’s requirement that the complaint aver “that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law . . . .” For in any strict and abstract sense that provision would seem to be as much a “substantive” one as the New Jersey requirements for bond, etc. And, if so, then it would seem highly doubtful, on any automatic or mechanical application of the substantive-procedural dichotomy, that either Congress or this Court could create such a limitation on diversity litigation, since as a substantive matter this would be for the states to control. See 3 Moore, Federal Practice (2d ed., 1948) 3493-3506. For myself I have no doubt of the validity of Rule 23 or of the power of Congress to enact such a rule, even though it has a substantive aspect. Notwithstanding that aspect, the rule is too closely related to procedural and other matters affecting litigation in the federal courts for me to conceive of its invalidity. So also in the present cases I think the state regulations, though each may be regarded as having a substantive aspect, are too closely related to the modes and methods of conducting litigation in the federal courts to be capable of displacing Congress’ power of regulation in those respects or the federal courts’ power to hear and determine the respective controversies. Accordingly I would reverse the judgments in the Cohen and Ragan cases and affirm that in the Woods case. 562 OCTOBER TERM, 1948. Syllabus. 337 U. S. WHEELING STEEL CORP. v. GLANDER, TAX COMMISSIONER OF OHIO. NO. 447. APPEAL FROM THE SUPREME COURT OF OHIO.* Argued March 29, 1945.—Decided June 20, 1949. Certain foreign corporations which had been authorized to do business in Ohio and which operated manufacturing plants there had their principal places of business in other states, where all orders were accepted, credits extended, books kept and where all accounts receivable were payable. The corporations had paid all franchise taxes and all taxes on real and personal property located within Ohio. In addition, the State levied an ad valorem tax on their accounts receivable derived from sales of goods manufactured within the State. The accounts receivable were not used in the conduct of the business of the corporations in Ohio, but in their general business. Accounts receivable of identical nature which were owned by residents and domestic corporations were exempt from the tax. Held: 1. The tax denied the foreign corporations the equal protection of the laws, in violation of the Fourteenth Amendment of the Federal Constitution. Pp. 563-574. (a) After a state has chosen to admit foreign corporations to do business within it, they are entitled to equal protection with domestic corporations, at least to the extent that their property is entitled to an equally favorable ad valorem tax basis. Pp. 571-572. (b) The inequality to which the foreign corporations are subjected is not based on Ohio’s relation to the decisive transaction, but solely on difference in residence of the owner of the accounts receivable. P. 572. 2. The tax was not saved from constitutional invalidity by the “reciprocity” provisions of the statute imposing it, since the plan of reciprocity is not one which by credits or otherwise protects the nonresident or foreign corporation against the discriminations apparent in the Ohio statute. Pp. 572-574. 150 Ohio St. 229,80 N. E. 2d 863, reversed. *Together with No. 448, National Distillers Products Corp. V. Glander, Tax Commissioner of Ohio, on appeal from the same Court, argued March 30,1949. WHEELING STEEL CORP. v. GLANDER. 563 562 Opinion of the Court. An Ohio ad valorem tax on foreign corporations, challenged as violating the Federal Constitution, was sustained by the State Supreme Court. 150 Ohio St. 229, 80 N. E. 2d 863. On appeals to this Court, reversed, p. 574. John M. Caren argued the cause for appellant in No. 447. With him on the brief were Carlton 8. Dargusch, Wright Hugus and J. E. Bruce. Charles H. Tuttle argued the cause for appellant in No. 448. With him on the brief were Isadore Topper, R. Brooke Alloway and Paul L. Peyton. W. H. Annat, Assistant Attorney General of Ohio, argued the cause for appellee. With him on the briefs was Herbert 8. Dufiy, Attorney General. Mr. Justice Jackson delivered the opinion of the Court. The State of Ohio has laid an ad valorem tax against certain intangible property, consisting of notes, accounts receivable and prepaid insurance, owned by foreign corporations. As applied to appellants in these two cases, the tax is challenged as violating the Federal Constitution on several grounds which may conveniently be considered in a single opinion. Facts are not in dispute. Appellant Wheeling Steel Corporation is organized under the laws of Delaware, where it maintains a statutory office. Ohio has authorized it to do business in that State and four of its eight manufacturing plants are located there. General offices, from which its entire business is controlled and conducted, are in Wheeling, West Virginia. Its officers there have custody of its money, notes and books of account. In twelve other states, including Ohio, it maintains sales offices which solicit and receive orders for its products subject to acceptance or rejection at the Wheeling office, to which all are for-837446 0—49--40 564 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. warded. From this office only may credit be extended to purchasers. Accounts are billed and collected from the Wheeling office and the sales offices have no powers or duties with respect to collection. All accounts or notes receivable are payable at Wheeling, where the written evidences thereof are kept. Proceeds from receivables are taken into appellant’s treasury at Wheeling and there applied to general purposes of the business. Appellant National Distillers Products Corporation is organized under the laws of Virginia, where it has a statutory office and holds annual stockholders meetings. It is admitted to do business in Ohio, where it maintains a distillery, or rectifying plant, and warehouse, as it does also in six other states. Pay roll checks for plant employees are drawn on funds deposited in banks in the locality of the plant. Appellant also is licensed to do business in New York, where it maintains its principal business office and conducts its fiscal affairs and from which all business activities are directed and controlled. The corporation maintains regional sales offices in various of those states which permit private distribution of liquor. In such states customers are solicited and orders taken, subject to acceptance or rejection at New York. It maintains no sales office in Ohio, where dispensing liquor is a state monopoly. Orders from Ohio state authorities are forwarded directly to the offices in New York and are subject to acceptance or rejection there. When the New York office accepts an order from any source, it sends shipping orders to various plants, none of which makes any shipments except upon such orders. Only in New York can any credits be approved and all books, records and evidences of accounts receivable are kept there. Collections are managed from New York, which is the place of payment of all receivables. During the tax year in question, the corporation solicited and took orders through agents in states other than Ohio WHEELING STEEL CORP. v. GLANDER. 565 562 Opinion of the Court. for a large quantity of liquor shipped from its plants and warehouses in Ohio to customers elsewhere. It is stipulated that appellants each paid all franchise or other taxes required by Ohio for admission to do business in the State and paid all taxes assessed upon real and personal property located in said State. The Wheeling Company also paid to the State of West Virginia, for the year in question, ad valorem taxes on all of its receivables, including those sought to be taxed by Ohio, pursuant to this Court’s decision in Wheeling Steel Corp. v. Fox, 298 U. S. 193. Neither Virginia nor New York has sought to tax the accounts receivable of National Distillers involved herein. The Ohio Tax Commissioner, applying §§ 5328-1 and 5328-2 of the General Code of Ohio,1 assessed for taxa- 1 Pertinent parts of the Ohio law read as follows: “Sec. 5328-1. . . . Property of the kinds and classes mentioned in section 5328-2 of the General Code, used in and arising out of business transacted in this state by, for or on behalf of a non-resident person . . . shall be subject to taxation; and all such property of persons residing in this state used in and arising out of business transacted outside of this state by, for or on behalf of such persons . . . shall not be subject to taxation. . . . “Sec. 5328-2. . . . Property of the kinds and classes herein mentioned, when used in business, shall be considered to arise out of business transacted in a state other than that in which the owner thereof resides in the cases and under the circumstances following: “In the case of accounts receivable, when resulting from the sale of property sold by an agent having an office in such other state or from a stock of goods maintained therein, or from services performed by an officer, agent or employe connected with, sent from, or reporting to any officer or at any office located in such other state. “The provisions of this section shall be reciprocally applied, to the end that all property of the kinds and classes mentioned in this section having a business situs in this state shall be taxed herein 566 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. tion in Ohio a large amount of notes and accounts receivable which each appellant derived from shipments originating at Ohio manufacturing plants. The specific ground stated for assessment was that such receivables “result from the sale of property from a stock of goods maintained within this state.” The Board of Tax Appeals affirmed both assessments and in the Distiller’s case set forth the above-mentioned statutes and pointed out wherein its own views and practices as to their application to accounts receivable had been modified by decisions of the Ohio Supreme Court, whose interpretations, for our purposes, become a part of the statutes. The Board said: and no property of such kinds and classes belonging to a person residing in this state and having a business situs outside of this state shall be taxed. It is hereby declared that the assignment of a business situs outside of this state to property of a person residing in this state in any case and under any circumstances mentioned in this section is inseparable from the assignment of such situs in this state to property of a person residing outside of this state in a like case and under similar circumstances. . . .” “Sec. 5325-1. . . . Moneys, deposits, investments, accounts receivable and prepaid items, and other taxable intangibles shall be considered to be 'used’ when they or the avails thereof are being applied, or are intended to be applied in the conduct of the business, whether in this state or elsewhere. . . . “Sec. 5638. . . . Annual taxes are hereby levied on the kinds and classes of intangible property, hereinafter enumerated, on the classified tax list in the offices of the county auditors and duplicates thereof in the offices of the county treasurers at the following rates, to wit: “. . . moneys, credits and all other taxable intangibles so listed, three mills on the dollar. . . .” “Sec. 5327. . . . The term 'credits’ as so used, means the excess of the sum of all current accounts receivable and prepaid items [used] in business when added together estimating every such account and item at its true value in money, over and above the sum of current accounts payable of the business, other than taxes and assessments. . . .” Ohio Gen. Code Ann. (1945). WHEELING STEEL CORP. v. GLANDER. 567 562 Opinion of the Court. . . On a consideration of the statutory provisions above noted, the Board of Tax Appeals was of the view that before a business situs of accounts receivable and other intangible property, for purposes of taxation, could be given to a state other than the state of the domicile of the taxpayer, it must appear that such receivables or other intangible property not only arose in the conduct of the business of the taxpayer in such other state, but were therein so used as to become an integral part of the business carried on in such other state; and that it was not sufficient that such accounts receivable and other intangible property be used in business generally by the taxpayer. And on this view the Board held that the accounts receivable there in question, although they arose in the conduct of taxpayer’s business in the States of Indiana and Michigan, did not have a business situs in such states, and that such accounts receivable were taxable in Ohio. “On the appeal of the decision of the Board of Tax Appeals in The Ransom & Randolph Co. case to the Supreme Court of Ohio, that Court reversed the decision of the Board of Tax Appeals upon the point above indicated. 142 O. S. 398, 404. That Court, upon consideration of the applicable provisions of section 5328-2 and related sections of the General Code above noted, held that the accounts receivable of a taxpayer which arose in the conduct of its business in a state or states other than the state in which it had its domicile or place of residence, had a business situs in such other state or states if such accounts receivable or the avails thereof are being applied or are intended to be applied in the conduct of the taxpayer’s business, whether in this State or elsewhere. This view of the Supreme 568 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. Court as to the construction to be placed upon the statutory provisions here in question was later followed by that Court in its decisions in the cases of The Haverfield Company v. Evatt, Tax Commr., 143 0. S. 58, and National Cash Register Company v. Evatt, Tax Commr., 145 0. S. 597. “. . . In this situation, and applying the statutory provisions here in question as the same have been construed by the Supreme Court of this State, it follows that since the accounts receivable of the appellant corporation involved in this case arose— as this Board hereby find—, in the conduct of its business in the State of Ohio by the sale of its products from a stock of goods located in this State, and since, further, such accounts receivable or the avails thereof were used or were intended to be used by the appellant in its business, whether in this State or elsewhere, such accounts receivable have a business and taxable situs in the State of Ohio, as found and determined by the tax commissioner. “With respect to a question such as that here presented, to wit, that as to the taxation of the accounts receivable of a foreign corporation arising in the conduct of its business in this State, the application of the above noted provisions of sections 5328-1, 5328-2 and other related sections of the General Code, as the same have been construed by the Supreme Court, presents, to our mind, a serious question as to the constitutionality of said statutory provisions as so construed under the Due Process of Law clause of the Federal Constitution. . . .” The Ohio Supreme Court affirmed in both cases,2 which were brought here by appeals.3 2 150 Ohio St. 229, 80 N. E. 2d 863. 328U. S. C. § 1257 (2). WHEELING STEEL CORP. v. GLANDER. 569 562 Opinion of the Court. Appellants urge that the question which the Board of Tax Appeals regarded as serious should be resolved against the State on the ground that these intangibles had no situs in Ohio to sustain its power under the Due Process Clause so to tax them and also that to do so imposes an undue burden on interstate commerce in violation of the Commerce Clause. They point out that the credits sought to be taxed here were not created in Ohio, not payable there, and neither the payor nor payee, debtor nor creditor, was resident there. Moreover, the receivables arose from a contract for sale of goods, but the contracts were not made in Ohio nor performed in Ohio, and neither buyer nor seller resided there. On the assumption that Ohio could not follow tangible goods into a foreign state and tax them, either in the hands of the vendor before delivery or in the hands of a vendee after delivery, it is argued that she has no greater power to tax intangibles substituted in a foreign state for them and has no right to tax intangible proceeds of the sale of tangible goods that had passed beyond her taxing power. In their original application of the statutory scheme the taxing authorities sought to overcome this hurdle by requiring an additional and more substantial connection between the taxed intangibles and the state taxing power. For purpose of an Ohio tax the Board of Tax Appeals held intangibles to have a situs in that State only when and to the extent “so used as to become an integral part of the business carried on” in Ohio. It was this requirement which the Supreme Court of the State eliminated by Ransom & Randolph Co. v. Evatt, 142 Ohio St. 398, 52 N. E. 2d 738, when it held that any use of the intangibles in the general business was sufficient to make them taxable. Thus was cut the connection which the Board of Tax Appeals originally invoked to confer juris- 570 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. diction to tax, and thus was raised the question of constitutionality regarded by the Board as serious. However, we find it inappropriate to decide the Due Process question. The state action, which is reviewable under the Fourteenth Amendment, is the composite result of both legislation and its judicial interpretation. Ohio does not attempt and has not asserted power to tax all such intangibles, but only those owned by nonresidents and foreign corporations. It has given no indication that it intends to or would reach out to tax such intangibles as we have here unless it may at the same time exempt identical ones owned by its residents and domestic corporations. The contrary is indicated by § 5328-2, which makes the two inseparable. We deal with the taxing plan as an entirety as we find it in operation and pass only on the constitutionality of that which the State has asserted power and purpose to do. The state action and policy resulting from statute and decisions is certified to us by the appellee, the Tax Commissioner of Ohio, to be as follows: “. . . since the decision of the Supreme Court of Ohio in Ransom & Randolph v. Evatt, 142 Ohio State 398 (January 12, 1944), and in obedience thereto, it has been the policy and practice of the Department of Taxation of Ohio to construe and apply sections 5328-1 and 5328-2 of the General Code of Ohio “(A) so as to exempt from taxation in Ohio accounts receivable of Ohio residents, including domestic corporations, which arise “(1) from a sale of goods by an agent having an office in another state, even though such goods be shipped from Ohio, or “(2) from a sale of goods shipped from another state, even though such goods be sold by an agent having an office in Ohio: WHEELING STEEL CORP. v. GLANDER. 571 562 Opinion of the Court. “(B) so as to tax in Ohio accounts receivable of non-residents of Ohio, including foreign corporations, which arise either “(1) from a sale of goods shipped from Ohio, even though such goods be sold by an agent having an office in another state, or “(2) from a sale of goods by an agent having an office in Ohio, even though such goods be shipped from another state: “That the foregoing have been in effect as the only tests of taxability of accounts receivable in Ohio since the decision of the Supreme Court of Ohio in the case of Ransom & Randolph v. Evatt, 142 Ohio State 398, and that said tests have been applied without deviation both by affiant and by his predecessor in office, William S. Evatt, as the result of the holding in that case.” Under long-settled principles of our Federation, Ohio was not required to admit these foreign corporations to carry on intrastate business within its borders. The State may arbitrarily exclude them or may license them upon any terms it sees fit, apart from exacting surrender of rights derived from the Constitution of the United States. Hanover Insurance Co. v. Harding, 272 U. S. 494, 507; Connecticut General Co. v. Johnson, 303 U. S. 77, 79-80. Ohio elected, however, to admit these corporations to transact businesses and operate manufacturing plants in the State. For that privilege they have paid all that the State required by way of franchise or privilege tax, which includes in its measure the value of all property owned and business done in Ohio. §§ 5495, 5497, 5498 and 5499 of the Ohio General Code. See International Harvester Co. v. Evatt, 329 U. S. 416. After a state has chosen to domesticate foreign corporations, the adopted corporations are entitled to equal protection with the state’s own corporate progeny, at least to the extent that 572 OCTOBER TERM, 1948. Opinion of the Court. 337 U. S. their property is entitled to an equally favorable ad valorem tax basis. Hanover Insurance Co. v. Harding, 272 U. S. 494, 510-511; Power Co. v. Saunders, 274 U. S. 490, 493, 497. Ohio holds this tax on intangibles to be an ad valorem property tax, Bennett v. Evatt, 145 Ohio St. 587, 62 N. E. 2d 345, and in no sense a franchise, privilege, occupation or income tax. The Ohio statutory scheme assimilates its own corporate creations to natural residents and all others to nonresidents. While this classification is a permissible basis for some different rights and liabilities, we have held, as to taxation of intangibles, that the federal right of a nonresident “is the right to equal treatment.” Hillsborough v. Cromwell, 326 U. S, 620, 623. The certificate of the Tax Commissioner discloses how fundamentally discriminatory is the application of this ad valorem tax to intangibles when owned by a resident or a domestic corporation as contrasted with its application when those are owned by a domesticated corporation or a nonresident. If on the taxing date one of these petitioners and an Ohio competitor each owns an account receivable of the same amount from the same out-of-state customer for the same kind of commodity, both shipped from a manufacturing plant in Ohio and both sold out of Ohio by an agent having an office out of the State, appellant’s account receivable would be subject to Ohio’s ad valorem tax and the one held by the competing domestic corporation would not. It seems obvious that appellants are not accorded equal treatment, and the inequality is not because of the slightest difference in Ohio’s relation to the decisive transaction, but solely because of the different residence of the owner. The State does not seriously deny this unequal application of its own tax but claims that reciprocity provisions of the statute reestablish equality. Those provisions therefore require scrutiny. WHEELING STEEL CORP. v. GLANDER. 573 562 Opinion of the Court. This entire taxing plan rests on a statutory formula for fixing situs of intangible property both within and without the State. This is provided by § 5328-2 of the Code. These intangibles “shall be considered to arise out of business transacted in a state other than that in which the owner thereof resides” under certain circumstances. (Emphasis supplied.) This basic rule separates the situs of intangibles from the residence of their owner whereas it has traditionally been at such residence, though with some exceptions. The effect is that intangibles of nonresident owners are assigned a situs within the taxing reach of Ohio while those of its residents are assigned a situs without. The plan may be said to be logically consistent in that, while it draws all such intangibles of nonresidents within the taxing power of Ohio, it by the same formula excludes those of residents. The exempted intangibles of residents are offered up to the taxing power of other states which may embrace this doctrine of a tax situs separate from residence. This is what is meant here by reciprocity, and the two provisions are declared inseparable; so that if the formula by which Ohio takes unto itself the accounts of nonresidents is held invalid, “such decision shall be deemed also to affect such provision as applied to property of a resident.” It is hard to see that this offer of reciprocity restores to appellants any of the equality which the application of the Ohio tax, considered alone, so obviously denies. There is no indication of a readiness by other states to copy Ohio’s situs scheme so as to tax that which Ohio exempts. The proffered exchange of residents for intangible tax purposes may not commend itself as an even bargain between states. Ohio, being large, populous and highly industrialized, with heavy and basic industries, may well have much more to gain from a plan the effect of which is to tax credit exports to other states, than most states would have from a privilege to tax its own 574 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. exports into Ohio. In the several years that the Ohio statute has been on the books, no other state has sought to take advantage of the “reciprocity” proffer. And if it did, the equality of rates which would also be necessary to equalize the burden between nonresidents and their resident competitors could be hardly expected nor is it provided for. Far from acceding to the situs doctrine which allocates these receivables to Ohio, the State of West Virginia stands on the very different situs doctrine approved by this Court in Wheeling Steel Corp. v. Fox, 298 U. S. 193, and under its authority has for the year in question taxed all of the receivables of the Wheeling Company, including those Ohio seeks to claim as having situs in Ohio. It is clear that this plan of “reciprocity” is not one which by credits or otherwise protects the nonresident or foreign corporation against the discriminations apparent in the Ohio statute. We think these discriminations deny appellants equal protection of Ohio law. The judgments are reversed and the causes remanded for proceedings not inconsistent herewith. Reversed. By Mr. Justice Jackson. The writer of the Court’s opinion deems it necessary to complete the record by pointing out why, in writing by assignment for the Court, he assumed without discussion that the protections of the Fourteenth Amendment are available to a corporation. It was not questioned by the State in this case, nor was it considered by the courts below. It has consistently been held by this Court that the Fourteenth Amendment assures corporations equal protection of the laws, at least since 1886, Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394, 396, and that it entitles them to due process of law, at least since 1889, Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 28. WHEELING STEEL CORP. v. GLANDER. 575 562 Opinion of Jackson, J. It is true that this proposition was once challenged by one Justice. Connecticut General Co. v. Johnson, 303 U. S. 77, 83 (dissenting opinion). But the challenge did not commend itself, even to such consistent liberals as Mr. Justice Brandeis and Mr. Justice Stone, and I had supposed it was no longer pressed. See the same Justice’s separate opinion in International Shoe Co. v. Washington, 326 U. S. 310, 322, making no mention of this issue. Without pretending to a complete analysis, I find that in at least two cases during this current term the same question was appropriate for consideration, as here. In Railway Express Agency v. New York, 336 U. S. 106, a corporation claimed to be deprived of both due process and equal protection of the law, and in Ott v. Mississippi Barge Line, 336 U. S. 169, a corporation claimed to be denied due process of law. At prior terms, in many cases the question was also inherent, for corporations made similar claims under the Fourteenth Amendment. See, e. g., Illinois Central R. Co. v. Minnesota, 309 U. S. 157; Lincoln Life Insurance Co. v. Read, 325 U. S. 673; Queenside Hills Co. v. Saxl, 328 U. S. 80. Although the author of the present dissent was the writer of each of the cited Court’s opinions, it was not intimated therein that there was even doubt whether the corporations had standing to raise the questions or were entitled to protection of the Amendment. Instead, in each case the author, as I have done in this case, proceeded to discuss and dispose of the corporation’s contentions on their merits, a quite improper procedure, I should think, if the corporation had no standing to raise the constitutional questions. Indeed, if the corporation had no such right, it is difficult to see how this Court would have jurisdiction to consider the case at all. It may be said that in the foregoing cases other grounds might have been found upon which to defeat the corporations’ claims, while in the present case apparently there is none. 576 OCTOBER TERM, 1948. Douglas, J., dissenting. 337 U. S. However, in at least two cases this Court, joined by both Justices now asserting that corporations have no rights under the Fourteenth Amendment, recently has granted relief to corporations by striking down state action as conflicting with corporate rights under that Amendment. In Times-Mirror Co. v. Superior Court, companion case to Bridges v. California, 314 U. S. 252, a newspaper corporation persuaded this Court that a $500 fine assessed against it violated its rights under the Fourteenth Amendment. In Pennekamp v. Florida, 328 U. S. 331, a newspaper corporation was convicted along with an individual defendant, and this Court set aside the conviction upon the ground that the Fourteenth Amendment prohibited such state action. In neither of these cases was the corporation’s right to raise the issue questioned and the result in each case was irreconcilable with the position now asserted in dissent. It cannot be suggested that in cases where the author is the mere instrument of the Court he must forego expression of his own convictions. Mr. Justice Cardozo taught us how Justices may write for the Court and still reserve their own positions, though overruled. Helvering v. Davis, 301 U. S. 619, 639. In view of this record I did not, and still do not, consider it necessary for the Court opinion to review the considerations which justify the assumption that these corporations have standing to raise the issues decided. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. It has been implicit in all of our decisions since 1886 that a corporation is a “person” within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pac. R. Co., 118 U. S. 394, 396, so held. The Court was cryptic in its decision. It was so sure of its ground that it wrote no WHEELING STEEL CORP. v. GLANDER. 577 562 Douglas, J., dissenting. opinion on the point, Chief Justice Waite announcing from the bench: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.” There was no history, logic, or reason given to support that view. Nor was the result so obvious that exposition was unnecessary. The Fourteenth Amendment became a part of the Constitution in 1868. In 1871 a corporation claimed that Louisiana had imposed on it a tax that violated the Equal Protection Clause of the new Amendment. Mr. Justice Woods (then Circuit Judge) held that “person” as there used did not include a corporation and added, “This construction of the section is strengthened by the history of the submission by congress, and the adoption by the states of the 14th amendment, so fresh in all minds as to need no rehearsal.” Insurance Co. n. New Orleans, 1 Woods 85, 88. What was obvious to Mr. Justice Woods in 1871 was still plain to the Court in 1873. Mr. Justice Miller in the Slaughter-House Cases, 16 Wall. 36, 71, adverted to events “almost too recent to be called history” to show that the purpose of the Amendment was to protect human rights—primarily the rights of a race which had just won its freedom. And as respects the Equal Protection Clause he stated, “The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.” P. 81. Moreover what was clear to these earlier judges was apparently plain to the people who voted to make the 578 OCTOBER TERM, 1948. Douglas, J., dissenting. 337 U. S. Fourteenth Amendment a part of our Constitution. For as Mr. Justice Black pointed out in his dissent in Connecticut General Co. v. Johnson, 303 U. S. 77, 87, the submission of the Amendment to the people was on the basis that it protected human beings. There was no suggestion in its submission that it was designed to put negroes and corporations into one class and so dilute the police power of the States over corporate affairs. Arthur Twining Hadley once wrote that “The Fourteenth Amendment was framed to protect the negroes from oppression by the whites, not to protect corporations from oppression by the legislature. It is doubtful whether a single one of the members of Congress who voted for it had any idea that it would touch the question of corporate regulation at all.”1 Both Mr. Justice Woods in Insurance Co. v. New Orleans, supra, p. 88, and Mr. Justice Black in his dissent in Connecticut General Co. n. Johnson, supra, pp. 88-89, have shown how strained a construction it is of the Fourteenth Amendment so to hold. Section 1 of the Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without 1 The Constitutional Position of Property in America, 64 Independent 834, 836 (1908). He went on to say that the Dartmouth College case (4 Wheat. 518) and the construction given the Fourteenth Amendment in the Santa Clara case “have had the effect of placing the modern industrial corporation in an almost impregnable constitutional position.” Id., p. 836. As to whether the framers of the Amendment may have had such an undisclosed purpose, see Graham, The “Conspiracy Theory” of the Fourteenth Amendment, 47 Yale L. J. 371. WHEELING STEEL CORP. v. GLANDER. 579 562 Douglas, J., dissenting. due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Italics added.) “Persons” in the first sentence plainly includes only human beings, for corporations are not “born or naturalized.” Corporations are not “citizens” within the meaning of the first clause of the second sentence. Western Turf Assn. v. Greenberg, 204 U. S. 359, 363; Selover, Bates & Co. v. Walsh, 226 U. S. 112, 126.2 It has never been held that they are persons whom a State may not deprive of “life” within the meaning of the second clause of the second sentence. “Liberty” in that clause is “the liberty of natural, not artificial, persons.” Western Turf Assn. v. Greenberg, supra, p. 363. But “property” as used in that clause has been held to include that of a corporation since 1889 when Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, was decided. It requires distortion to read “person” as meaning one thing, then another within the same clause and from clause to clause. It means, in my opinion, a substantial revision of the Fourteenth Amendment. As to the matter of construction, the sense seems to me to be with Mr. Justice Woods in Insurance Co. n. New Orleans, supra, p. 88, where he said, “The plain and evident meaning of' * the section is, that the persons to whom the equal protection of the law is secured are persons born or naturalized or endowed with life and liberty, and consequently natural and not artificial persons.” History has gone the other way. Since 1886 the Court has repeatedly struck down state legislation as applied 2 Cf. McGovney, A Supreme Court Fiction, 56 Harv. L. Rev. 853, 1090, 1225, dealing with corporations in the diverse citizenship jurisdiction of the federal courts. 837446 0—49-------------41 580 OCTOBER TERM, 1948. Douglas, J., dissenting. 337 U. S. to corporations on the ground that it violated the Equal Protection Clause.3 Every one of our decisions upholding legislation as applied to corporations over the objection that it violated the Equal Protection Clause has assumed that they are entitled to the constitutional protection. But in those cases it was not necessary to meet the issue since the state law was not found to contain the elements of discrimination which the Equal Protection Clause condemns. But now that the question is squarely presented I can only conclude that the Santa Clara case was wrong and should be overruled. One hesitates to overrule cases even in the constitutional field that are of an old vintage. But that has never been a deterrent heretofore4 and should not be now. 3 See Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; Gulf, Colorado & Santa Fe R. Co. n. Ellis, 165 U. S. 150; Cotting v. Kansas City Stockyards Co., 183 U. S. 79; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Southern R. Co. v. Greene, 216 U. S. 400; Herndon v. Chicago, Rock Island & Pac. R. Co., 218 U. S. 135; Roach v. Atchison, T. & Santa Fe R. Co., 218 U. S. 159; Atchison, T. & S. F. R. Co. v. Vosburg, 238 U. S. 56; Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55; McFarland n. American Sugar Co., 241 U. S. 79; Royster Guano Co. v. Virginia, 253 U. S. 412; Bethlehem Motors Corp. v. Flynt, 256 U. S. 421; Kansas City So. R. Co. v. Road Imp. Dist. No. 6, 256 U. S. 658; C. & N. W. R. Co. v. Nye Co., 260 U. S. 35; Sioux City Bridge Co. v. Dakota County, 260 U. S. 441; Thomas v. Kansas City So. R. Co., 261 U. S. 481; Kentucky Co. v. Paramount Exch., 262 U. S. 544; Air-Way Corp. v. Day, 266 U. S. 71; Hanover Ins. Co. n. Harding, 272 U. S. 494; Power Co. n. Saunders, 274 U. S. 490; Louisville Gas Co. v. Coleman, 277 U. S. 32; Quaker City Cab Co. v. Penna., 277 U. S. 389; Cumberland Coal Co. v. Board, 284 U. S. 23; Liggett Co. n. Lee, 288 U. S. 517; Concordia Ins. Co. v. Illinois, 292 U. S. 535; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550; Mayflower Farms v. Ten Eyck, 297 U. S. 266; Hartford Co. v. Harrison, 301 U. S. 459. * In re Ayers, 123 U. S. 443, overruled in part Osborn n. United States Bank, 9 Wheat. 738, a decision 63 years old; Leisy v. Hardin, 135 U. S. 100, overruled Peirce v. New Hampshire, 5 How. 504, a decision 42 years old. Erie R. Co. v. Tompkins, 304 U. S. 64, over WHEELING STEEL CORP. v. GLANDER. 581 562 Douglas, J., dissenting. We are dealing with a question of vital concern to the people of the nation. It may be most desirable to give corporations this protection from the operation of the legislative process. But that question is not for us. It is for the people. If they want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation,5 they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation. ruled Swift v. Tyson, 16 Pet. 1, a decision 95 years old; Graves v. N. Y. ex rel. O’Keefe, 306 U. S. 466, overruled Collector v. Day, 11 Wall. 113, a decision 68 years old. United States v. Underwriters Assn., 322 U. S. 533, overruled in part Paul n. Virginia, 8 Wall. 168, a decision 75 years old. 5 The restrictions on state power which are contained in the Commerce Clause and which may prevent the States from burdening interstate commerce (see Southern Pacific Co. v. Arizona, 325 U. S. 761; Morgan v. Virginia, 328 U. S. 373) or discriminating against it (see Nippert v. Richmond, 327 U. S. 416) rise from a different source and are not relevant here. 582 OCTOBER TERM, 1948. Syllabus. 337 U. S. NATIONAL MUTUAL INSURANCE CO. v. TIDEWATER TRANSFER CO., INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 29. Argued November 8, 1948.—Decided June 20, 1949. The Act of April 20, 1940, c. 117, 54 Stat. 143 (now 28 U. S. C. § 1332), conferred on the federal district courts jurisdiction of civil actions (involving no federal question) between citizens of the District of Columbia and citizens of a State. A District of Columbia corporation instituted in the Federal District Court for Maryland an action against a Virginia corporation, wherein the jurisdiction depended solely on diversity of citizenship. The District Court held the Act unconstitutional and dismissed the complaint. The Court of Appeals affirmed. Held: The Act is constitutional and the judgment is reversed. Pp. 583-585, 604. 165 F. 2d 531, reversed. A District of Columbia corporation sued a Virginia corporation in the Federal District Court for Maryland, the jurisdiction depending solely on diversity of citizenship. The District Court dismissed the complaint. The Court of Appeals affirmed. 165 F. 2d 531. This Court granted certiorari. 333 U. S. 860. Reversed, p. 604. David G. Bress argued the cause for petitioner. With him on the brief were Alvin L. Newmyer and Sheldon E. Bernstein. By special leave of Court, Solicitor General Perlman argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Morison, Arnold Raum, Paul A. Sweeney and Harry I. Rand. Wendell D. Allen and Francis B. Burch argued the cause and filed a brief for respondent. NATIONAL INS. CO. v. TIDEWATER CO. 583 582 Opinion of Jackson, J. Mr. Justice Jackson announced the judgment of the Court and an opinion in which Mr. Justice Black and Mr. Justice Burton join. This case calls up for review a holding that it is unconstitutional for Congress to open federal courts in the several states to action by a citizen of the District of Columbia against a citizen of one of the states. The petitioner, as plaintiff, commenced in the United States District Court for Maryland an action for a money judgment on a claim arising out of an insurance contract. No cause of action under the laws or Constitution of the United States was pleaded, jurisdiction being predicated only upon an allegation of diverse citizenship. The diversity set forth was that plaintiff is a corporation created by District of Columbia law, while the defendant is a corporation chartered by Virginia, amenable to suit in Maryland by virtue of a license to do business there. The learned District Judge concluded that, while this diversity met jurisdictional requirements under the Act of Congress,1 it did not comply with diversity requirements of the Constitution as to federal jurisdiction, and so dismissed.2 The Court of Appeals, by a divided court, affirmed.3 Of twelve district courts that had considered the question up to the time review in this Court was sought, all except three had held the enabling Act unconstitutional,4 and the two Courts of Appeals which had 1 Act of April 20, 1940, c. 117, 54 Stat. 143. For terms of the statute see note 10. 2 No opinion was filed by the District Court, which in dismissing the complaint for lack of jurisdiction relied upon its former decision and opinion in Feely n. Sidney S. Schupper Interstate Hauling System, Inc., 72 F. Supp. 663. 3165 F. 2d 531. 4 The Act had been upheld in Winkler v. Daniels, 43 F. Supp. 265; Glaeser v. Acacia Mutual Life Association, 55 F. Supp. 925; and in Duze v. Woolley, 72 F. Supp. 422 (with respect to Hawaii). It 584 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. spoken on the subject agreed with that conclusion.5 The controversy obviously was an appropriate one for review here and writ of certiorari issued in the case.6 The history of the controversy begins with that of the Republic. In defining the cases and controversies to which the judicial power of the United States could extend, the Constitution included those “between Citizens of different States.” 7 In the Judiciary Act of 1789, Congress created a system of federal courts of first instance and gave them jurisdiction of suits “between a citizen of the State where the suit is brought, and a citizen of another State.”8 In 1804, the Supreme Court, through Chief Justice Marshall, held that a citizen of the District of Columbia was not a citizen of a State within the meaning and intendment of this Act.9 This decision closed federal courts in the states to citizens of the District of Columbia in diversity cases, and for 136 years they remained closed. In 1940 Congress enacted the statute challenged here. It confers on such courts jurisdiction if the action “Is between citizens of different States, or had been held unconstitutional in the District Court in the instant case; in Central States Co-operatives v. Watson Bros. Transportation Co., affirmed 165 F. 2d 392, and in McGarry v. City of Bethlehem, 45 F. Supp. 385; Behlert v. James Foundation, 60 F. Supp. 706; Ostrow n. Samuel Brilliant Co., 66 F. Supp. 593; Wilson v. Guggenheim, 70 F. Supp. 417; Feely v. Sidney S. Schupper Interstate Hauling System, 72 F. Supp. 663; Willis n. Dennis, 72 F. Supp. 853; and in Mutual Ben. Health & Acc. Assn. v. Dailey, 75 F. Supp. 832. 5 The Act had been held invalid by the Court of Appeals for the Fourth Circuit in the instant case, 165 F. 2d 531, with Judge Parker dissenting; and by the Court of Appeals for the Seventh Circuit in Central States Co-operatives v. Watson Bros. Transportation Co., 165 F. 2d 392, with Judge Evans dissenting. 6 333 U. S. 860. 7 U. S. Const. Art. Ill, § 2, cl. 1. 8 § 11 of the Act of Sept. 24,1789, c. 20,1 Stat. 73,78. 9 Hepburn & Dundas v. Ellzey, 2 Cranch 445. NATIONAL INS. CO. v. TIDEWATER CO. 585 582 Opinion of Jackson, J. citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory.”10 The issue here depends upon the validity of this Act, which, in substance, was reenacted by a later Congress11 as part of the Judicial Code.12 Before concentrating on detail, it may be well to place the general issue in a larger perspective. This constitutional issue affects only the mechanics of administering justice in our federation. It does not involve an extension or a denial of any fundamental right or immunity which goes to make up our freedoms. Those rights and freedoms do not include immunity from suit by a citizen of Columbia or exemption from process of the federal courts. Defendant concedes that it can presently be sued in some court of law, if not this one, and it grants that Congress may make it suable at plaintiff’s complaint in some, if not this, federal court. Defendant’s contention only amounts to this: that it cannot be made to answer this plaintiff in the particular court which Congress has decided is the just and convenient forum. The considerations which bid us strictly to apply the Constitution to congressional enactments which invade fundamental freedoms or which reach for powers that would substantially disturb the balance between the Union and its component states, are not present here. In mere mechanics of government and administration we 10 The effect of the Act was to amend 28 U. S. C. (1946 ed.) § 41 (1) so that it read in pertinent part: “The district courts shall have original jurisdiction as follows: ... Of all suits of a civil nature, at common law or in equity . . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and . . , (b) Is between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory . . . .” 11 Act of June 25,1948,62 Stat. 869. 12 28 U. S. C. § 1332. 586 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. should, so far as the language of the great Charter fairly will permit, give Congress freedom to adapt its machinery to the needs of changing times. In no case could the admonition of the great Chief Justice be more appropriately heeded—. . we must never forget, that it is a constitution we are expounding.”13 Our first inquiry is whether, under the third, or Judiciary, Article of the Constitution,14 extending the judicial power of the United States to cases or controversies “between Citizens of different States,” a citizen of the District of Columbia has the standing of a citizen of one of the states of the Union. This is the question which the opinion of Chief Justice Marshall answered in the negative, by way of dicta if not of actual decision. Hepburn & Dundas n. Ellzey, 2 Cranch 445. To be sure, nothing was before that Court except interpretation of a statute15 which conferred jurisdiction substantially in the words of the Constitution with nothing in the text or context to show that Congress intended to regard the District as a state. But Marshall resolved the statutory question by invoking the analogy of the constitutional provisions of the same tenor and reasoned that the District was not a state for purposes of the Constitution and, hence, was not for purposes of the Act. The opinion summarily disposed of arguments to the contrary, including the one repeated here that other provisions of the Constitution indicate that “the term state is sometimes used in its more enlarged sense.” Here, as there, “on examining the passages quoted, they do not prove what was to be shown by them.” 2 Cranch 445, 453. Among his contemporaries at least, Chief Justice Marshall was not generally censured for undue literalness in interpreting the lan- 13 McCulloch n. Maryland, 4 Wheat. 316, 407. 14 U. S. Const. Art. Ill, § 2, cl. 1. 15 See note 8. NATIONAL INS. CO. v. TIDEWATER CO. 587 582 Opinion of Jackson, J. guage of the Constitution to deny federal power and he wrote from close personal knowledge of the Founders and the foundation of our constitutional structure. Nor did he underestimate the equitable claims which his decision denied to residents of the District, for he said that “It is true that as citizens of the United States, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them.— But this is a subject for legislative not for judicial consideration.”16 The latter sentence, to which much importance is attached, is somewhat ambiguous, because constitutional amendment as well as statutory revision is for legislative, not judicial, consideration. But the opinion as a whole leaves no doubt that the Court did not then regard the District as a state for diversity purposes. To now overrule this early decision of the Court on this point and hold that the District of Columbia is a state would, as that opinion pointed out, give to the word “state” a meaning in the Article which sets up the judicial establishment quite different from that which it carries in those Articles which set up the political departments and in other Articles of the instrument. While the word is one which can contain many meanings, such inconsistency in a single instrument is to be implied only where the context clearly requires it. There is no evidence that the Founders, pressed by more general and immediate anxieties, thought of the special problems of the District of Columbia in connection with the judiciary. This is not strange, for the District was then only a contemplated entity. But, had they thought of it, there is nothing to indicate that it would have been referred to as a state and 16 Hepburn & Dundas v. Ellzey, 2 Cranch 445,453. 588 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. much to indicate that it would have required special provisions to fit its anomalous relationship into the new judicial system, just as it did to fit it into the new political system. In referring to the “States” in the fateful instrument which amalgamated them into the “United States,” the Founders obviously were not speaking of states in the abstract. They referred to those concrete organized societies which were thereby contributing to the federation by delegating some part of their sovereign powers and to those that should later be organized and admitted to the partnership in the method prescribed. They obviously did not contemplate unorganized and dependent spaces as states. The District of Columbia being nonexistent in any form, much less as a state, at the time of the compact, certainly was not taken into the Union of states by it, nor has it since been admitted as a new state is required to be admitted. We therefore decline to overrule the opinion of Chief Justice Marshall, and we hold that the District of Columbia is not a state within Article III of the Constitution. In other words, cases between citizens of the District and those of the states were not included in the catalogue of controversies over which the Congress could give jurisdiction to the federal courts by virtue of Art. III. This conclusion does not, however, determine that Congress lacks power under other provisions of the Constitution to enact this legislation. Congress, by the Act in question, sought not to challenge or disagree with the decision of Chief Justice Marshall that the District of Columbia is not a state for such purposes. It was careful to avoid conflict with that decision by basing the new legislation on powers that had not been relied upon by the First Congress in passing the Act of 1789. The Judiciary Committee of the House of Representatives recommended the Act of April 20, 1940, as “a rea- NATIONAL INS. CO. v. TIDEWATER CO. 589 582 Opinion of Jackson, J. sonable exercise of the constitutional power of Congress to legislate for the District of Columbia and for the Territories.”17 This power the Constitution confers in broad terms. By Art. I, Congress is empowered “to exercise exclusive Legislation in all Cases whatsoever, over such District.”18 And of course it was also authorized “To make all Laws which shall be necessary and proper for carrying into Execution” such powers.19 These provisions were not relevant in Chief Justice Marshall’s interpretation of the Act of 1789 because it did not refer in terms to the District but only to states. It is therefore significant that, having decided that District citizens’ cases were not brought within federal jurisdiction by Art. Ill and the statute enacted pursuant to it, the Chief Justice added, as we have seen, that it was extraordinary that the federal courts should be closed to the citizens of “that particular district which is subject to the jurisdiction of congress.” Such language clearly refers to Congress’ Art. I power of “exclusive Legislation in all Cases whatsoever, over such District.” And mention of that power seems particularly significant in the context of Marshall’s further statement that the matter is a subject for “legislative not for judicial consideration.” Even if it be considered speculation to say that this was an expression by the Chief Justice that Congress had the requisite power under Art. I, it would be in the teeth of his language to say that it is a denial of such power. The Congress has acted on the belief that it possesses that power. We believe their conclusion is well founded. 17H. R. Rep. No. 1756, 76th Cong., 3d Sess., p. 3. The Senate Judiciary Committee’s report consists only of a recommendation that the bill (H. R. 8822) be passed. Senate Report No. 1399, 76th Cong., 3d Sess. Passage in each House was without discussion. 86 Cong. Rec., Pt. 3, p. 3015; 86 Cong. Rec., Pt. 4, p. 4286. 18 U. S. Const. Art. I, § 8, cl. 17. 19 U. S. Const. Art. I, § 8, cl. 18. 590 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. It is elementary that the exclusive responsibility of Congress for the welfare of the District includes both power and duty to provide its inhabitants and citizens with courts adequate to adjudge not only controversies among themselves but also their claims against, as well as suits brought by, citizens of the various states. It long has been held that Congress may clothe District of Columbia courts not only with the jurisdiction and powers of federal courts in the several states but with such authority as a state may confer on her courts. Kendall v. United States, 12 Pet. 524, 619; Capital Traction Co. v. Hof, 174 U. S. 1; O’Donoghue v. United States, 289 U. S. 516. The defendant here does not challenge the power of Congress to assure justice to the citizens of the District by means of federal instrumentalities, or to empower a federal court within the District to run its process to summon defendants here from any part of the country. And no reason has been advanced why a special statutory court for cases of District citizens could not be authorized to proceed elsewhere in the United States to sit, where necessary or proper, to discharge the duties of Congress toward District citizens. However, it is contended that Congress may not combine this function, under Art. I, with those under Art. Ill, in district courts of the United States. Two objections are urged to this. One is that no jurisdiction other than specified in Art. Ill can be imposed on courts that exercise the judicial power of the United States thereunder. The other is that Art. I powers over the District of Columbia must be exercised solely within that geographic area. Of course there are limits to the nature of duties which Congress may impose on the constitutional courts vested with the federal judicial power. The doctrine of separation of powers is fundamental in our system. It arises, NATIONAL INS. CO. v. TIDEWATER CO. 591 582 Opinion of Jackson, J. however, not from Art. Ill nor any other single provision of the Constitution, but because “behind the words of the constitutional provisions are postulates which limit and control.” Chief Justice Hughes in Monaco n. Mississippi, 292 U. S. 313, 323. The permeative nature of this doctrine was early recognized during the Constitutional Convention. Objection that the present provision giving federal courts jurisdiction of cases arising “under this Constitution” would permit usurpation of nonjudicial functions by the federal courts was overruled as unwarranted since it was “generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.” 2 Farrand, Records of the Federal Convention, 430. And this statute reflects that doctrine. It does not authorize or require either the district courts or this Court to participate in any legislative, administrative, political or other non judicial function or to render any advisory opinion. The jurisdiction conferred is limited to controversies of a justiciable nature, the sole feature distinguishing them from countless other controversies handled by the same courts being the fact that one party is a District citizen. Nor has the Congress by this statute attempted to usurp any judicial power. It has deliberately chosen the district courts as the appropriate instrumentality through which to exercise part of the judicial functions incidental to exertion of sovereignty over the District and its citizens. Unless we are to deny to Congress the same choice of means through which to govern the District of Columbia that we have held it to have in exercising other legislative powers enumerated in the same Article, we cannot hold that Congress lacked the power it sought to exercise in the Act before us. It is too late to hold that judicial functions incidental to Art. I powers of Congress cannot be conferred on 592 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. courts existing under Art. Ill, for it has been done with this Court’s approval. O’Donoghue v. United States, 289 U. S. 516. In that case it "was held that, although District of Columbia courts are Art. Ill courts, they can also exercise judicial power conferred by Congress pursuant to Art. I. The fact that District of Columbia courts, as local courts, can also be given administrative or legislative functions which other Art. Ill courts cannot exercise, does but emphasize the fact that, although the latter are limited to the exercise of judicial power, it may constitutionally be received from either Art. Ill or Art. I, and that congressional power over the District, flowing from Art. I, is plenary in every respect. It is likewise too late to say that we should reach this result by overruling Chief Justice Marshall’s view, unless we are prepared also to overrule much more, including some of our own very recent utterances. Many powers of Congress other than its power to govern Columbia require for their intelligent and discriminating exercise determination of controversies of a justiciable character. In no instance has this Court yet held that jurisdiction of such cases could not be placed in the regular federal courts that Congress has been authorized to ordain and establish. We turn to some analogous situations in which we have approved the very course that Congress has taken here. Congress is given power by Art. I to pay debts of the United States. That involves as an incident the determination of disputed claims. We have held unanimously that congressional authority under Art. I, not the Art. Ill jurisdiction over suits to which the United States is a party, is the sole source of power to establish the Court of Claims and of the judicial power which that court exercises. Williams n. United States, 289 U. S. 553. In that decision we also noted that it is this same Art. I power that is conferred on district courts by the NATIONAL INS. CO. v. TIDEWATER CO. 593 582 Opinion of Jackson, J. Tucker Act20 which authorizes them to hear and determine such claims in limited amounts. Since a legislative court such as the Court of Claims is “incapable of receiving” Art. Ill judicial power, American Insurance Co. v. Canter, 1 Pet. 511, 546, it is clear that the power thus exercised by that court and concurrently by the district courts flows from Art. I, not Art. III. Indeed, more recently and again unanimously, this Court has said that by the Tucker Act the Congress authorized the district courts to sit as a court of claims21 exercising the same but no more judicial power. United States v. Sherwood, 312 U. S. 584, 591. And but a few terms ago, in considering an Act by which Congress directed rehearing of a rejected claim and its redetermination in conformity with directions given in the Act, Chief Justice Stone, with the concurrence of all sitting colleagues, reasoned that “The problem presented here is no different than if Congress had given a like direction to any district court to be followed as in other Tucker Act cases.” Pope n. United States, 323 U. S. 1, 14. Congress has taken us at our word and recently conferred on the district courts exclusive jurisdiction of tort claims cognizable under the Federal Tort Claims Act, 60 Stat. 842, 843, also enacted 20 Act of March 3,1887, c. 359,24 Stat. 505. 21 This concurrent jurisdiction of the district courts has frequently been referred to in opinions of this Court with no indication that it presented any constitutional problem with respect to the jurisdiction of either the district courts or this Court. See, for example, Pope v. United States, 323 U. S. 1; United States v. Sherwood, 312 U. S. 584; United States v. Shaw, 309 U. S. 495; Williams v. United States, 289 U. S. 553; Nassau Smelting Works v. United States, 266 U. S. 101; United States v. Pfitsch, 256 U. S. 547; Tempel v. United States, 248 U. S. 121; United States v. Greathouse, 166 U. S. 601; United States v. Jones, 131 IT. S. 1. The legislative basis for the grant of jurisdiction to the district courts is delineated in Bates Mfg. Co. v. United States, 303 U. S. 567. 594 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. pursuant to Art. I powers.22 See Brooks n. United States, ante, p. 49. Congress also is given power in Art. I to make uniform laws on the subject of bankruptcies. That this, and not the judicial power under Art. Ill, is the source of our system of reorganizations and bankruptcy is obvious, Continental Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648. Not only may the district courts be required to handle these proceedings, but Congress may add to their jurisdiction cases between the trustee and others that, but for the bankruptcy powers, would be beyond their jurisdiction because of lack of diversity required under Art. III. Schumacher n. Beeler, 293 U. S. 367. In that case, Chief Justice Hughes for a unanimous court wrote that, by virtue of its Art. I authority over bankruptcies, the Congress could confer on the regular district courts jurisdiction of “all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants” to the extent specified in § 23b of the Bankruptcy Act as amended. Such jurisdiction was there upheld in a plenary suit, in a district court, by which the trustee sought equitable relief rely- 22 The suggestion here that claims against the United States, adjudicated by the Court of Claims and by the district courts solely by virtue of the waiver of sovereign immunity and the jurisdiction granted under the Tucker Act, may be cases arising “under the laws of the United States” is both erroneous and self-defeating. The unanimous decision in the Williams case, 289 U. S. 553, holds clearly to the contrary, stating, at 289 U. S. 577, that controversies to which the United States may by statute be made a party defendant “lie wholly outside the scope of the judicial power vested by Art. Ill . . . " And see Monaco v. Mississippi, 292 U. S. 313, 321. Moreover, the Tucker Act simply opens those courts to plaintiffs already possessed of a cause of action. If that is sufficient to make the case one arising under the laws of the United States, the same is true of this suit and all others like it. No one urges that view of the present statute, nor could they. See note 23 and text. NATIONAL INS. CO. v. TIDEWATER CO. 595 582 Opinion of Jackson, J. ing on allegations raising only questions of Ohio law concerning the validity under that law of a sheriff’s levy and execution. Possession by the trustee not being shown, and there being no diversity, jurisdiction in the district court could flow only from the statute. Chief Justice Hughes noted that the distinction between proceedings in bankruptcy and suits at law and in equity was recognized by the terms of the statute itself, but held that “Congress, by virtue of its constitutional authority over bankruptcies, could confer or withhold jurisdiction to entertain such suits and could prescribe the conditions upon which the federal courts should have jurisdiction. . . . Exercising that power, the Congress prescribed in § 23b the condition of consent on the part of the defendant sued by the trustee. Section 23b was thus in effect a grant of jurisdiction subject to that condition.” 293 U. S. 367, 374. He concluded that the statute granted jurisdiction to the district court “although the bankrupt could not have brought suit there if proceedings in bankruptcy had not been instituted . . . .” 293 U. S. 367, 377. And he stated the correct view to be that § 23 conferred substantive jurisdiction, 293 U. S. 367, 371, disapproving statements in an earlier case that Congress lacked power to confer such jurisdiction. Id. at 377. Thus, the Court held that Congress had power to authorize an Art. Ill court to entertain a non-Art. Ill suit because such judicial power was conferred under Art. I. Indeed, the present Court has assumed, without even discussion, that Congress has such power. In Williams v. Austrian, 331 U. S. 642, 657, the Chief Justice, speaking for the Court, said that “. . . Congress intended by the elimination of § 23 [from Chapter X of the Bankruptcy Act] to establish the jurisdiction of federal courts to hear plenary suits brought by a reorganization trustee, even though diversity or other usual ground for federal jurisdiction is lacking.” (Em- 837446 0—49-------------42 596 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. phasis supplied.) There was vigorous dissent as to the meaning of the statute, but the dissenting Justices referred to the Court’s holding that “a Chapter X trustee may bring this plenary suit in personam in a federal district court not the reorganization court, although neither diversity of citizenship nor other ground of federal jurisdiction exists.” 331 U. S. 642, 664. And the dissent continued: “No doubt Congress could authorize such a suit. See Schumacher n. Beeler, 293 U. S. 367, 374.” Ibid. This assumption by the Court in the Beeler and Austrian cases, that the Congress had power to confer on the district courts jurisdiction of nondiversity suits involving only state law questions, made unnecessary any discussion of the source of the assumed power. In view of Congress’ plenary control over bankruptcies, the Court may have grounded such assumption on Art. I. Or it might have considered that the jurisdiction was based on Art. Ill, and statutes enacted pursuant to it, giving the district courts jurisdiction over suits arising under the Constitution and laws of the United States. Had the Court held such a view, this latter might have commended itself as the most obvious answer. Consequently, silence in this respect, in the decision of each case, seems significant, particularly in contrast with repeated reference to Art. I power in the Beeler case, and sweeping language in the Austrian case that such jurisdiction existed despite lack of diversity “or other usual ground for federal jurisdiction.” Nevertheless, it is now asserted, in retrospect, that those cases did arise under the laws of the United States. No justification is offered for that conclusion and there is no effort to say just why or how the cases did so arise. This would indeed be difficult if we still adhere to the doctrine of Mr. Justice Holmes that “a suit arises under the law that creates the cause NATIONAL INS. CO. v. TIDEWATER CO. 597 582 Opinion of Jackson, J. of action,” American Well Works Co. v. Layne Co., 241 U. S. 257, 260, for the cause of action in each case rested solely on state law. But the matter does not rest on inference alone. Other decisions of this Court demonstrate conclusively that jurisdiction over the Beeler and Austrian suits was not and could not have been conferred under Art. Ill and statutes concerning suits arising under the laws of the United States. A most thoroughly-considered utterance of this Court on that subject was given by Mr. Justice Cardozo, in Gully v. First National Bank, 299 U. S. 109, where he said, without dissent, “How and when a case arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. . . . [Emphasis added.] The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. ... A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto . . . and the controversy must be disclosed upon the face of the complaint . . . .” 299 U. S. 109, 112-113. After reviewing previous cases, Mr. Justice Cardozo referred to a then recent opinion by Mr. Justice Stone in which he said, for a unanimous court, that federal jurisdiction “may not be invoked where the right asserted is non-federal, merely because the plaintiff’s right to sue is derived from federal law, or because the property involved was obtained under federal statute. The federal nature of the right to be established is decisive—not the source of the authority to establish it.” Puerto Rico v. Russell & Co., 288 U. S. 598 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. 476, 483. (Emphasis added.)23 See also Switchmen’s Union v. Board, 320 U. S. 297; General Committee v. M.-K.-T. R. Co., 320 U. S. 323. Neither the Austrian nor the Beeler case meets these tests, required before a case can be said to arise under the laws of the United States, any more than does the case before us. Austrian, as trustee, sued in equity for an accounting based on a charge that affairs of a state-created corporation had been conducted by the officers in violation of state law. Beeler, as trustee, sued on a contention that a levy on property by an Ohio sheriff was void under state law. Both controversies, like the one before 23 The books are replete with authority on this point. For example, in Shoshone Mining Co. v. Rutter, 177 U. S. 505, it was said, at p. 507: “The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. . . .” And at p. 513: . . the mere fact that a suit is an adverse suit authorized by the statutes of Congress is not in and of itself sufficient to vest jurisdiction in the Federal courts.” And again at p. 507 it is considered “well settled that a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the Constitution or laws of the United States . . . .” In Bankers Casualty Co. v. Minneapolis, St. P. & S. S. M. R. Co., 192 U. S. 371, at p. 384: “. . . suits though involving the Constitution or laws of the United States are not suits arising under the Constitution or laws where they do not turn on a controversy between the parties in regard to the operation of the Constitution or laws, on the facts. . . .” And at p. 385: “We repeat that the rule is settled that a case does not arise under the Constitution or laws of the United States unless it appears from plaintiff’s own statement, in the outset, that some title, right, privilege or immunity on which recovery depends will be defeated by one construction of the Constitution or laws of the United States, or sustained by the opposite construction.” In Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152, allegations designed to establish that the case arises under the Constitution are said to be insufficient if they do not show that “the suit, that is, the plaintiff’s original cause of action,’ does so arise. NATIONAL INS. CO. v. TIDEWATER CO. 599 582 Opinion of Jackson, J. us, called for a determination of no law question except those arising under state laws. The only way in which any law of the United States contributed to the case was in opening the district courts to the trustee, under Art. I powers of Congress, just as the present statute, under the same Article, opens those courts to residents of the District of Columbia. In each case, in the words of Chief Justice Stone, the federal law provided, not the right sought to be established, but only the authority of the trustee to establish it. The fact that the congressional power over bankruptcy granted by Art. I could open the court to the trustee does not mean that such suits arise under the laws of the United States; but it does mean that Art. I can supply a source of judicial power for their adjudication. The distinction is important and it is decisive on this issue. Neither the Beeler nor the Austrian case was one arising under the laws of the United States within the clear language of recent holdings by this Court. Unless we are to deny the jurisdiction in such cases which has consistently been upheld, we must rely on the Art. I powers of the Congress. We have been cited to no holding that such jurisdiction cannot spring from that Article. Under Art. I the Congress has given the district courts not only jurisdiction over cases arising under the bankruptcy law but also judicial power over nondiversity cases which do not arise under that or any other federal law. And this Court has upheld the latter grant. Consequently, we can deny validity to this present Act of Congress, only by saying that the power over the District given by Art. I is somehow less ample than that over bankruptcy given by the same Article. If Congress could require this district court to decide this very case if it were brought by a trustee, it is hard to see why it may not require its decision for a solvent claimant when done in pursuance of other Art. I powers. 600 OCTOBER TERM, 1948. Opinion of Jackson, J. 337 U. S. We conclude that where Congress in the exercise of its powers under Art. I finds it necessary to provide those on whom its power is exerted with access to some kind of court or tribunal for determination of controversies that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship. The basis of the holdings we have discussed is that, when Congress deems that for such purposes it owes a forum to claimants and trustees, it may execute its power in this manner. The Congress, with equal justification, apparently considers that it also owes such a forum to the residents of the District of Columbia in execution of its power and duty under the same Article. We do not see how the one could be sustained and the other denied. We therefore hold that Congress may exert its power to govern the District of Columbia by imposing the judicial function of adjudicating justiciable controversies on the regular federal courts24 which under the Constitution it has the power to ordain and establish and which it may invest with jurisdiction and from which it may withhold jurisdiction “in the exact degrees and character which to Congress may seem proper for the public good.” Lock-erty v. Phillips, 319 U. S. 182, 187. The argument that congressional powers over the District are not to be exercised outside of its territorial limits also is pressed upon us. But this same contention has long been held by this Court to be untenable. In Cohens 24 No question has been raised here as to the source of this Court’s appellate jurisdiction over such cases. Nor do we see how that issue could be raised without challenging our past and present exercise of jurisdiction over cases adjudicated in the district courts and in the Court of Claims, solely under the Tucker Act, see Pope n. United States, 323 U. S. 1, 13-14, and see notes 21,22; and under the Federal Tort Claims Act, see Brooks v. United States, ante, p. 49. NATIONAL INS. CO. v. TIDEWATER CO. 601 582 Opinion of Jackson, J. v. Virginia, 6 Wheat. 264, 425,429, Chief Justice Marshall, answering the argument that Congress, when legislating for the District, “was reduced to a mere local legislature, whose laws could possess no obligation out of the ten miles square,” said “Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution.” In O’Donoghue v. United States, 289 U. S. 516, 539, this Court approved a statement made by Circuit Judge Taft, later Chief Justice of this Court, speaking for himself and Judge (later Mr. Justice) Lurton, that “The object of the grant of exclusive legislation over the district was, therefore, national in the highest sense, and the city organized under the grant became the city, not of a state, not of a district, but of a nation. In the same article which granted the powers of exclusive legislation over its seat of government are conferred all the other great powers which make the nation, including the power to borrow money on the credit of the United States. He would be a strict constructionist, indeed, who should deny to congress the exercise of this latter power in furtherance of that of organizing and maintaining a proper local government at the seat of government. Each is for a national purpose, and the one may be used in aid of the other. . . .” And, just prior to enactment of the statute now challenged on this ground, the Court of Appeals for the District itself, sitting en banc, and relying on the foregoing authorities, had said that Congress “possesses full and unlimited jurisdiction to provide for the general welfare” of District citizens “by any and every act of legislation which it may deem conducive to that end . . . 602 OCTOBER TERM, 1948. Opinion of Jackson, J. 337U.S. when it legislates for the District, Congress acts as a legislature of national character, exercising complete legislative control as contrasted with the limited power of a state legislature, on the one hand, and as contrasted with the limited sovereignty which Congress exercises within the boundaries of the states, on the other.” Neild v. District of Columbia, 71 App. D. C. 306, 310, 110 F. 2d 246, 250. We could not of course countenance any exercise of this plenary power either within or without the District if it were such as to draw into congressional control subjects over which there has been no delegation of power to the Federal Government. But, as we have pointed out, the power to make this defendant suable by a District citizen is not claimed to be outside of federal competence. If Congress has power to bring the defendant from his home all the way to a forum within the District, there seems little basis for denying it power to require him to meet the plaintiff part way in another forum. The practical issue here is whether, if defendant is to be suable at all by District citizens, he must be compelled to come to the courts of the District of Columbia or perhaps to a special statutory court sitting outside of it, or whether Congress may authorize the regular federal courts to entertain the suit. We see no justification for holding that Congress in accomplishing an end admittedly within its power is restricted to those means which are most cumbersome and burdensome to a defendant. Since it may provide the District citizen with a federal forum in which to sue the citizens of one of the states, it is hard to imagine a fairer or less prejudiced one than the regular federal courts sitting in the defendant’s own state. To vest the jurisdiction in them rather than in courts sitting in the District of Columbia would seem less harsh to defendants and more consistent with the principles of venue that prevail in our system NATIONAL INS. CO. v. TIDEWATER CO. 603 582 Opinion of Jackson, J. under which defendants are generally suable in their home forums. The Act before us, as we see it, is not a resort by Congress to these means to reach forbidden ends. Rather, Congress is reaching permissible ends by a choice of means which certainly are not expressly forbidden by the Constitution. No good reason is advanced for the Court to deny them by implication. In no matter should we pay more deference to the opinions of Congress than in its choice of instrumentalities to perform a function that is within its power.25 To put federally administered justice within the reach of District citizens, in claims against citizens of another state, is an object which Congress has a right to accomplish. Its own carefully considered view that it has the power and that it is necessary and proper to utilize United States District Courts as means to this end, is entitled to great respect. Our own ideas as to the wisdom or desirability of such a statute or the constitutional provision authorizing it are totally irrelevant. Such a law of Congress should be stricken down 25 Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 420-421, said: “The result of the most careful and attentive consideration bestowed upon this [the ‘necessary and proper’] clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. . . . We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 604 OCTOBER TERM, 1948. Rutledge, J., concurring. 337U.S. only on a clear showing that it transgresses constitutional limitations. We think no such showing has been made.28 The Act is valid. The judgment is Reversed. Mr. Justice Rutledge, with whom Mr. Justice Murphy agrees, concurring. I join in the Court’s judgment. But I strongly dissent from the reasons assigned to support it in the opinion of Mr. Justice Jackson. While giving lip service to the venerable decision in Hepburn & Dundas n. Ellzey, 2 Cranch 445, and purporting to distinguish it, that opinion ignores nearly a century and a half of subsequent consistent construction.1 In all practical consequence, it would overrule that decision with its later reaffirmations. Pertinently it may be asked, how and where are those decisions to operate, if not just in the situation presented by this case? And, if there is no other, would they not be effectively overruled? What is far worse and more important, the manner in which this reversal would be made, if adhered to by a majority of the Court, would entangle every district court of the United States for the first time in all of the contradictions, complexities and subtleties which have 26 It would not be profitable to review the numerous cases in which, during the consideration of other problems, this Court has made statements concerning the nature and extent of Congress’ power to legislate for the District of Columbia and its control over the jurisdiction of both constitutional and legislative courts. The issue now presented squarely for decision was not decided in any of them. We adhere to Chief Justice Marshall’s admonition in Cohens n. Virginia, 6 Wheat. 264, 399, that such expressions “ought not to control the judgment in a subsequent suit when the very point is presented for decision.” 1 See notes 3 and 4 and text infra. NATIONAL INS. CO. v. TIDEWATER CO. 605 582 Rutledge, J., concurring. surrounded the courts of the District of Columbia in the maze woven by the “legislative court—constitutional court” controversy running through this Court’s decisions concerning them.2 In my opinion it would be better to continue following what I conceive to be the original error of the Hepburn decision and its progeny than thus to ensnarl the general system of federal courts. Jurisdictional and doctrinal troubles enough we have concerning them without adding others by ruling now that they have the origin and jurisdiction of “legislative” courts in addition to that of “constitutional” courts created under Article III, with which alone they heretofore have been held endowed. Moreover, however this case may be decided, there is no real escape from deciding what the word “State” as used in Article III, § 2 of the Constitution means. For if it is a limitation on Congress’ power as to courts created under that Article, it is hard to see how it becomes no limitation when Congress decides to cast it off under some other Article, even one relating to its authority over the District of Columbia. If this may be done in the name of practical convenience and dual authority, or because Congress might find some other constitutional way to make citizens of the District suable elsewhere or to bring here for suit citizens from any part of the country, then what is a limitation imposed on the federal courts generally is none when Congress decides to disregard it by purporting to act under some other authorization. The Constitution is not so self-contradictory. Nor are its limitations to be so easily evaded. The very essence of the problem is whether the Constitution meant to cut out from the diversity jurisdiction of courts created under Article III suits brought by or against citizens of the 2 See text infra and authorities cited at notes 7-9. 606 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. District of Columbia. That question is not answered by saying in one breath that it did and in the next that it did not. I. Prior to enactment of the 1940 statute today considered, federal courts of the District of Columbia were the only federal courts which had jurisdiction to try nonfed-eral civil actions between citizens of the District and citizens of the several states. The doors of federal courts in every state, open to suits between parties of diverse state citizenship by virtue of Article III, § 2 (as implemented by continuous congressional enactment), were closed to citizens of the District of Columbia. The 1940 statute was Congress’ first express attempt to remedy the inequality which has obtained ever since Chief Justice Marshall, in Hepburn & Dundas v. Ellzey, supra, construed the first Judiciary Act to exclude citizens of the District of Columbia. Marshall’s construction of the 1789 statute was founded on his conclusion that the comparable language of the diversity clause in Article III, § 2—“Citizens of different States”—did not embrace citizens of the District. Marshall’s view of the 1789 Act, iterated in his later dictum, New Orleans v. Winter, 1 Wheat. 91, 94; cf. Sere v. Pitot, 6 Cranch 332, 336, has been consistently adhered to in judicial interpretation of later congressional grants of jurisdiction.3 And, by accretion, the rule of the Hepburn case has acquired the force of a considered determination that, within the meaning of Article III, § 2, “the District of Columbia is not a State”4 and its citizens are therefore not citizens of any state within that Article’s meaning. 3 Barney v. Baltimore, 6 Wall. 280; Hooe n. Jamieson, 166 U. S. 395; Hooe n. Werner, 166 U. S. 399. 4 Hooe v. Jamieson, 166 U. S. 395, 397; cf. Downes v. Bidwell, 182 U. S. 244,270. NATIONAL INS. CO. v. TIDEWATER CO. 607 582 Rutledge, J., concurring. The opinion of Mr. Justice Jackson in words “reaffirms” this view of the diversity clause. Nevertheless, faced with an explicit congressional command to extend jurisdiction in nonfederal cases to the citizens of the District of Columbia, it finds that Congress has power to add to the Article III jurisdiction of federal district courts such further jurisdiction as Congress may think “necessary and proper,” Const., Art. I, § 8, cl. 18, to implement its power of “exclusive Legislation,” Const., Art. I, § 8, cl. 17, over the District of Columbia; and thereby to escape from the limitations of Article III. From this reasoning I dissent. For I think that the Article III courts in the several states cannot be vested, by virtue of other provisions of the Constitution, with powers specifically denied them by the terms of Article III. If we accept the elementary doctrine that the words of Article III are not self-exercising grants of jurisdiction to the inferior federal courts,5 then I think those words must mark the limits of the power Congress may confer on the district courts in the several states. And I do not think we or Congress can override those limits through invocation of Article I without making the Constitution a self-contradicting instrument. If Marshall correctly read Article III as preventing Congress from unlocking 5 “Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it.” United States v. Hudson, 7 Cranch 32, 33. And see Justice Chase’s remarks in Turner v. Bank of North America, 4 Dall. 8,10, n. 1. But cf. Martin v. Hunter’s Lessee, 1 Wheat. 304, 328-331. For recent reaffirmation of the prevailing view see Kline v. Burke Construction Co., 260 U. S. 226, 233-234. And see the comprehensive survey of congressional power over the jurisdiction of federal courts prepared for the Judiciary Committee of the House of Representatives by Mr. Justice Frankfurter before his accession to this bench. H. R. Rep. No. 669, 72d Cong., 1st Sess. 12-14. 608 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. the courthouse door to citizens of the District, it seems past belief that Article I was designed to enable Congress to pick the lock. For the diversity jurisdiction here thus sustained is identical in all respects with the diversity jurisdiction thought to be closed to District citizens by Article III: It is justice administered in the same courtroom and under the supervision of the same judge; it is, presumptively, justice fashioned by the Federal Rules of Civil Procedure and, now, under the aegis of Erie R. Co. v. Tompkins? The jurisdiction today thus upheld is not simply an expurgated version of a banned original; it is the real thing. To circumvent the limits of Article III, it is said, after finding a contrary and overriding intent in Article I, that Article III district courts in the several states can also be vested with jurisdiction springing from Article I. The only express holding which conceivably could lend comfort to this doctrine of dual jurisdiction is this Court’s conclusion in O’Donoghue v. United States, 289 U. S. 516, that certain courts of the District of Columbia, theretofore deemed legislative courts created under Article I,7 owe their jurisdiction to Article I and 6 304 U. S. 64. If it were assumed that the Constitution requires the application of local law in traditional diversity suits (cf. id. at 77-80; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, dissenting opinion at 533; but cf. Cohen v. Industrial Loan Corp., post at 541, dissenting opinion at 557), it may be wondered whether that requirement would also govern the rationale of jurisdiction today advanced: Under this rationale, Congress might well find in Article I power to authorize articulation of a body of federal substantive law for the decision of diversity cases involving citizens of the District of Columbia. 7 Federal Radio Commission v. General Electric Co., 281 U. S. 464; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693; Keller n. Potomac Electric Co., 261 U. S. 428. Cf. Ex parte Bakelite Corp., 279 U. S. 438, 450; Federal Radio Commission n. Nelson Bros., 289 U. S. 266, 274-276; United States v. Jones, 336 U. S. 641, 652, n. 12. NATIONAL INS. CO. v. TIDEWATER CO. 609 582 Rutledge, J., concurring. Article III. With the merits of the O’Donoghue decision in holding that Article III barred salary reductions for judges of the courts in question, we are not presently concerned. Suffice it to point out that the express language of the O’Donoghue decision negatives the view that federal courts in the several states share this hybrid heritage: . Congress derives from the District clause distinct powers in respect of the constitutional courts of the District which Congress does not possess in respect of such courts outside the District.”8 The limits of the O’Donoghue decision are only underscored by the dissenting view of Chief Justice Hughes and Justices Van De van ter and Cardozo that all District of Columbia courts are solely the creatures of Article I: “As the courts of the District do not rest for their creation on § 1 of Article III, their creation is not subject to any of the limitations of that provision. Nor would those limitations, if considered to be applicable, be susceptible of division so that some might be deemed obligatory and others might be ignored.” 289 U. S. at 552. Comfort is sought to be drawn, however, from this Court’s rationale in Williams v. United States, 289 U. S. 553, which, in sanctioning salary reductions for judges of the Court of Claims, held that that court did not derive its jurisdiction from Article III. That conclusion stemmed in part from the proposition that suits against the United States are not “Controversies to which the United States shall be a Party,” within the meaning of Article III, § 2. Hence, it is said, the permissible inference is that the long-established concurrent jurisdiction of district courts over claims against the United States 8 O'Donoghue x. United States, 289 U. S. 516, 551. Cf. Pitts v. Peak, 60 App. D. C. 195,197. 610 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. is likewise not derived from Article III.9 We need not today determine the nature of district court jurisdiction of suits against the United States. Suffice it to say that, if such suits are not “Controversies to which the United States shall be a Party,” they are presumptively within the purview of the federal-question jurisdiction to which Mr. Justice Frankfurter’s opinion directs our attention—the Article III, § 2 grant of power over “Cases . . . arising under . . . the Laws of the United States.” This is, at least, the conventional view of district court jurisdiction under the Tucker Act. 2 Moore, Federal Practice (2d ed., 1948) 1633. But, in any event, to rely on Williams as dispositive of the present case is to rely on a bending reed: Williams and O’Donoghue were companion cases, argued together and decided together; and the opinions were written by the same Justice. Accordingly, what was said in one must be read in the light of what was said in the other. O’Donoghue, as has been observed, expressly rejected the proposition today announced—that Congress can vest in constitutional courts outside the District of Columbia jurisdiction derived from the District clause of Article I. But O’Donoghue went further, and in so doing undermined any implication in Williams that Article III courts outside the District could be vested with any form of non-Article III jurisdiction, when it pointed out that no courts of the District of Columbia could be granted “administrative and other jurisdiction,” if, “in creating and defining the jurisdiction of the courts of the District, Congress were limited to Art. Ill, as it is in dealing with the other federal courts . . . .” 289 U. S. at 546. Moreover, the Justices who dissented from the O’Donoghue rationale of dual jurisdiction expressed no disagreement with the Williams opinion. In these circumstances, cer- 9 See Comments, 43 Yale L. J. 316,319 (1933). NATIONAL INS. CO. v. TIDEWATER CO. 611 582 Rutledge, J., concurring. tainly no more strength can be drawn from the language of a case upholding salary reductions for one group of judges than from the holding in a case striking down salary reductions for another group of judges. Nor is there merit in the view that the bankruptcy jurisdiction of district courts does not stem from Article III. Of course it is true that Article I is the source of congressional power over bankruptcy, as it is the source of congressional power over interstate commerce, taxation, the coining of money, and other powers confided by the states to the exclusive exercise of the national legislature. But, as Mr. Justice Frankfurter’s opinion makes clear, federal court adjudication of disputes arising pursuant to bankruptcy and other legislation is conventional federal-question jurisdiction. And no case cited in any of today’s opinions remotely suggests the contrary. Furthermore, no case cited supports the view that jurisdiction over a suit to collect estate assets under § 23 (b) of the Bankruptcy Act, brought by the trustee in a district court with the “consent” of the defendant, is a departure from the general rule and is derived from Article I alone. To be sure, although this Court indicated a contrary view in the early case of Lovell v. Newman & Son, 227 U. S. 412, 426, Chief Justice Hughes’ opinion in Schumacher v. Beeler, 293 U. S. 367, made it perfectly clear that district courts can, with the consent of the proposed defendant, entertain trustee suits under § 23 (b) which the bankrupt, but for the Bankruptcy Act, could not have prosecuted in a federal court absent diversity or some independent federal question “arising under . . . the Laws of the United States.” The opinion stated: “Conflicting views have been held of the meaning of the provision for consent in § 23 (b). In one view, the provision relates merely to venue, that is, only to a consent to the ‘local jurisdiction.’ . . . 837446 0—49------------43 612 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. The opposing view was set forth by the court below in Toledo Fence & Post Co. v. Lyons, 290 Fed. 637, 645, and that decision was followed in the instant case. ... It proceeds upon the ground that the Congress had power to permit suits by trustees in bankruptcy in the federal courts against adverse claimants, regardless of diversity of citizenship, and that by § 23 (b) the Congress intended that the federal courts should have that jurisdiction in cases where the defendant gave consent, and, without that consent, in cases which fell within the stated exceptions. “We think that the latter view is the correct one.” 293 U. S. at 371. Chief Justice Hughes’ opinion does not intimate that this “consent jurisdiction” arises solely from Article I. Quite the contrary, the opinion by Judge Denison outlining the “view” which the Chief Justice described as “the correct one” expressly stated that such suits are a segment of the district court’s federal-question jurisdiction: “The trustee must allege and prove that valid proceedings were taken under the Bankruptcy Act, leading to a valid adjudication, whereby title passed, and that by valid proceedings under the act he was chosen as trustee. If the proof fails in any of these particulars, the suit fails. The suit is one step in the collection of assets in the execution of the Bankruptcy Act. That such a case would be one ‘arising under the laws of the United States’ we think is the result of well-settled principles. It will be observed that under the constitutional limitations of the federal judicial power (article 3, sec. 2), and with exceptions not to this question important, Congress has no power to confer jurisdiction on the inferior federal courts excepting as to suits which do so arise; and every decision which upholds the right to sue in the NATIONAL INS. CO. v. TIDEWATER CO. 613 582 Rutledge, J., concurring. federal court by one who merely acquires title through the operation of a federal law is therefore, by necessary implication, a holding that such a suit ‘arises under’ federal laws.” Toledo Fence & Post Co. v. Lyons, 290 F. 637, 641; and cf. Beeler n. Schumacher, 71 F. 2d 831, 833. There seems no reason therefore to suppose that this Court, in holding “correct” the view that district courts have jurisdiction over a trustee suit which could not have been brought by the bankrupt, rejected the explicit Article III basis of that jurisdiction. And neither reliance on Gully n. First National Bank, 299 U. S. 109; Puerto Rico v. Russell & Co., 288 U. S. 476, and related cases, nor the suggestion that “a suit arises under the law that creates the cause of action,” American Well Works v. Layne, 241 U. S. 257, 260, compels the conclusion that Congress could not and did not classify § 23 (b) suits to collect estate assets as federal-question cases arising under the Bankruptcy Act. As this Court has had occasion to observe, a 11 ‘cause of action’ may mean one thing for one purpose and something different for another.” United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67-68; and see Gully v. First National Bank, supra, at 117. Similarly, as students of federal jurisdiction have taken pains to point out, the “substantial identity of the words” in the constitutional and statutory grants of federal-question jurisdiction, “does not, of course, require, on that score alone, an identical interpretation.” Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L. J. 393, 405, n. 47 (1936). Confusion of the two is a natural, but not an insurmountable, hazard. The Gully and Puerto Rico cases were concerned with the general statutory grant to district courts of jurisdiction over federal questions; they were not concerned with the constitutional grant of jurisdiction, nor with the specific 614 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. statutory grant of jurisdiction found in the Bankruptcy Act and approved in Schumacher v. Beeler, supra. It has never heretofore been doubted that the constitutional grant of power is broader than the general federal-question jurisdiction which Congress has from time to time thought to confer on district courts by statute. In one of the federal land-grant cases relied on in Mr. Justice Jackson’s opinion, this Court had occasion to make this distinction clear: “By the Constitution (art. 3, sec. 2) the judicial power of the United States extends ‘to all cases, in law and equity, arising under this Constitution, the laws of the United States’ and to controversies ‘between citizens of different States.’ By article 4, s. 3, cl. 2, Congress is given ‘power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.’ Under these clauses Congress might doubtless provide that any controversy of a judicial nature arising in or growing out of the disposal of the public lands should be litigated only in the courts of the United States. The question, therefore, is not one of the power of Congress, but of its intent. It has so constructed the judicial system of the United States that the great bulk of litigation respecting rights of property, although those rights may in their inception go back to some law of the United States, is in fact carried on in the courts of the several States.” Shoshone Mining Company v. Rutter, 177 U. S. 505, 506. Indeed, were we to adopt the view that the Gully rule is a test applicable to the constitutional phrase, we would effectively repudiate Chief Justice Marshall’s conclusion in Osborn v. Bank of the United States, 9 Wheat. 738, that Congress can allow a federally chartered corporation to bring all its litigation into federal courts NATIONAL INS. CO. v. TIDEWATER CO. 615 582 Rutledge, J., concurring. for the reason that, solely by virtue of the corporation’s federal origin, all suits to which the corporation is a party are suits “arising under . . . the Laws of the United States” within the meaning of Article III. The rule of the Bank of the United States case, reiterated in The Pacific Railroad Removal Cases, 115 U. S. 1; Matter of Dunn, 212 U. S. 374; American Bank & Trust Co. n. Federal Bank, 256 U. S. 350; Sowell v. Federal Reserve Bank, 268 U. S. 449; and Federal Bank v. Mitchell, 277 U. S. 213, has been limited by statute but never by subsequent constitutional construction. The survival of the rule was acknowledged by Mr. Justice Stone in Puerto Rico v. Russell & Co., supra at 485, and by Mr. Justice Cardozo in Gully v. First National Bank, supra, at 114. In short, Congress has at no time conferred on federal district courts original jurisdiction over all federal questions, preferring to leave trial of many and perhaps most such questions to state adjudication, subject to the ultimate review of this Court. But exceptions to the congressional policy of limitation there have been, and one of these is the trustee suit under § 23(b). 2 Moore, Federal Practice (2d ed., 1948) 1633. Thus I see no warrant for gymnastic expansion of the jurisdiction of federal courts outside the District. At least as to these latter courts sitting in the states, I have thought it plain that Article III described and defined their “judicial Power,” and that where “power proposed to be conferred . . . was not judicial power within the meaning of the Constitution . . . [it] was, therefore, unconstitutional, and could not lawfully be exercised by the courts.” 10 10 Note by Chief Justice Taney inserted by order of the Court after the opinion in United States v. Ferreira, 13 How. 40, 53, summarizing the Court’s conclusions in Hayburn’s Case, 2 Dall. 409, and United States v. Yale Todd, decided without opinion by this Court on February 17, 1794, and apparently unreported. 616 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. If Article III were no longer to serve as the criterion of district court jurisdiction, I should be at a loss to understand what tasks, within the constitutional competence of Congress, might not be assigned to district courts. At all events, intimations that district courts could only undertake the determination of “justiciable” controversies seem inappropriate, since the very clause of Article I today relied on has long been regarded as the source of the “legislative,” Keller v. Potomac Electric Co., 261 U. S. 428, and “administrative,” Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, powers of the courts of the District of Columbia. Moreover, the suggestion that the Constitutional Convention recognized a constructive limitation of federal jurisdiction to “cases of a Judiciary nature,” II Farrand, Records of the Federal Convention 430-431, merely lays bare the ultimate fallacy underlying rejection of the boundaries of Article III. For the constructive limitation referred to in the Convention debates is a limitation imposed by Article III, and the opinion of Mr. Justice Jackson by hypothesis denies that Article III expresses the full measure of power which can be delegated to federal district courts. If district courts are—as I agree they are—confined to “cases of a Judiciary nature,” then too they are confined to cases “between Citizens of different States,” except insofar as other Article III provisions expand the potential grant of jurisdiction. For—to borrow the words of the O’Donoghue dissent—the limitations of Article III, “if considered to be applicable, [would not] be susceptible of division so that some might be deemed obligatory and others might be ignored.” 289 U. S. at 552. In view of the rationale adopted by Mr. Justice Jackson’s opinion, I do not understand the necessity for its examination of the limits of the diversity clause of Article III. That opinion has, however, made clear the view that the diversity clause excludes citizens of the NATIONAL INS. CO. v. TIDEWATER CO. 617 582 Rutledge, J., concurring. District of Columbia, although where that view may now be applied it does not point out. If I concurred in that conception of the diversity clause I would vote to affirm the judgment of the Court of Appeals. II. However, nothing but naked precedent, the great age of the Hepburn ruling, and the prestige of Marshall’s name, supports such a result. It is doubtful whether anyone could be found who now would write into the Constitution such an unjust and discriminatory exclusion of District citizens from the federal courts. All of the reasons of justice, convenience, and practicality which have been set forth for allowing District citizens a furtive access to federal courts, point to the conclusion that they should enter freely and fully as other citizens and even aliens do. Precedent of course is not lightly to be disregarded, even in the greater fluidity of decision which the process of constitutional adjudication concededly affords.11 And 11 Cf. Screws v. United States, 325 U. S. 91, 112-113. See the trenchant discussion by Mr. Justice Brandeis of the lesser impact of stare decisis in the realm of constitutional construction, Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-410 (dissenting opinion), and the views of Mr. Justice Frankfurter dissenting in Commissioner v. Estate of Church, 335 U. S. 632, 676-677. Instances in which this Court has overruled prior constitutional determinations are catalogued in Burnet n. Coronado Oil & Gas Co., supra at 407, n. 2, 409, n. 4, and in Helvering v. Griffiths, 318 U. S. 371, 401, n. 52; compare Mr. Justice Brandeis’ compilations in Burnet v. Coronado Oil & Gas Co., supra at 406, n. 1, and in his dissenting opinion in Washington v. Dawson & Co., 264 U. S. 219, 238, n. 21. Chief Justice Stone, speaking for the Court on the death of Mr. Justice Brandeis, took occasion to note the prime role played by the latter in liberating the Court from mechanical adherence to precedent where constitutional issues are at stake: “He never lost sight of the fact that the Constitution is primarily a great charter of government, and often repeated Marshall’s words: ‘it is a constitution we are expounding’ 'intended to endure for ages to come, and, consequently, to be adapted to the various crises 618 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. Marshall’s sponsorship in such matters always is weighty. But when long experience has disclosed the fallacy of a ruling, time has shown its injustice, and nothing remains but a technicality the only effect of which is to perpetuate inequity, hardship and wrong, those are the circumstances which this Court repeatedly has said call for reexamination of prior decisions. If those conditions are fulfilled in any case, they are in this one. The Hepburn decision was made before time, through later decisions here, had destroyed its basic premise and at the beginning of Marshall’s judicial career, when he had hardly started upon his great work of expounding the Constitution. The very brevity of the opinion and its groundings, especially in their ambiguity, show that the master hand which later made his work immortal faltered.12 of human affairs.’ Hence, its provisions were to be read not with the narrow literalism of a municipal code or a penal statute, but so that its high purposes should illumine every sentence and phrase of the document and be given effect as a part of a harmonious framework of government. Notwithstanding the doctrine of stare decisis, judicial interpretations of the Constitution, since they were beyond legislative correction, could not be taken as the final word. They were open to reconsideration, in the light of new experience and greater knowledge and wisdom.” 317 U. S. xlh, xlvii. 12 The Hepburn case was not the only one in those earlier years where the master touch was lacking. Cf. Bank of the United States v. Deveaux, 5 Cranch 61; Hope Insurance Co. v. Boardman, 5 Cranch 57; Maryland Insurance Co. n. Woods, 6 Cranch 29, 7 Cranch 402; McGovney, A Supreme Court Fiction, 56 Harv. L. Rev. 853, 863-885 (1943). See particularly the discussion at 876-883. By positing the capacity of a corporation to sue or be sued under the diversity clause on the citizenship of its shareholders, the Deveaux decision opened the way for corporations ultimately to be brought within the diversity jurisdiction, but only by the long and tortuous evolution of the law through the stages first of rebuttable and finally of conclusive presumption (now most often contrary to the fact) that all the shareholders are citizens of the state of incorporation. See Louisville, C. & C. R. Co. v. Letson, 2 How. 497. NATIONAL INS. CO. v. TIDEWATER CO. 619 582 Rutledge, J., concurring. The sole reason Marshall assigned for the decision was “a conviction that the members of the American confederacy only are the states contemplated in the constitution,” a conviction resulting as he said from an examination of the use of that word in the charter to determine “whether Columbia is a state in the sense of that instrument.” 2 Cranch at 452. “When the same term which has been used plainly in this limited sense [as designating a member of the union] in the articles respecting the legislative and executive departments, is also employed in that which respects the judicial department, it must be understood as retaining the sense originally given to it.” Ibid. This narrow and literal reading was grounded exclusively on three constitutional provisions: the requirements that members of the House of Representatives be chosen by the people of the several states; that the Senate shall be composed of two Senators from each state; and that each state “shall appoint, for the election of the executive,” the specified number of electors; all, be it noted, provisions relating to the organization and structure of the political departments of the government, not to the civil rights of citizens as such. Put to one side were other provisions advanced in argument as showing “that the term state is sometimes used in its more enlarged sense” on the ground that “they do not prove what was to be shown by them.” Ibid. But cf. 446-448, 450. Whether or not this answer was adequate at the time,13 13 Counsel for the plaintiffs had made, among others, two different, though closely related, arguments. One was that “state” as used in the diversity clause should be given what Marshall characterized as “the signification attached to it by writers on the law of nations,” a political entity in a broad and general sense. To this argument his answer was obviously appropriate. But in view of other constitutional provisions relied upon in the argument, 2 Cranch 446-448, 450, it seems at least questionable that the answer met the other contention, namely, that “those territories which are under the exclu 620 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. our Constitution today would be very different from what it is if such a narrow and literal construction of each of its terms had been transmuted into an inflexible rule of constitutional interpretation. It is to be remembered, as bearing on the very issue before us, that the Sixth Amendment’s guarantee of “an impartial jury of the State . . . wherein the crime shall have been committed” extends to criminal prosecutions in the Nation’s capital.14 Similarly, the word “Citizens” has a broader sive government of the United States are to be considered in some respects as included in the term 'states’ as used in the constitution.” Id. at 446. 14 The Court’s initial determination that District residents were entitled to a jury trial in criminal cases, Callan v. Wilson, 127 U. S. 540, rested in large measure on the more inclusive language of Article III, §2: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” The Court in the Callan case rejected the Government’s argument that Article III, § 2, permits Congress to dispense with a jury when the crime takes place in the District rather than in a state. But Article III does not seem to have been the sole basis of decision, for the Court said, 127 U. S. at 550: “In Reynolds v. United States, 98 U. S. 145, 154, it was taken for granted that the Sixth Amendment of the Constitution secured to the people of the Territories the right of trial by jury in criminal prosecutions; . . . We cannot think that the people of this District have, in that regard, less rights than those accorded to the people of the Territories of the United States.” See District of Columbia v. Clawans, 300 U. S. 617, 624; Capital Traction Co. v. Hof, 174 U. S. 1, 5; cf. Thompson v. Utah, 170 U. S. 343, 348-349. But, though it be true that “The Sixth Amendment was not needed to require trial by jury in cases of crimes,” United States v. Wood, 299 U. S. 123, 142, nevertheless the recognized right of District residents to an “impartial jury” is conferred by the force of the Sixth Amendment. See Frazier v. United States, 335 U. S. 497, 498, 514. Nor is this distinction a mere form of words: In United States v. Wood, supra, at 142-143, Chief Justice Hughes, in weighing the impartiality of a District of Columbia jury, noted the Article III NATIONAL INS. CO. v. TIDEWATER CO. 621 582 Rutledge, J., concurring. meaning in Article III, § 2, where it now includes corporations,15 than it has in the privileges and immunities clause of Article IV, § 2,16 or in the like clause of the Fourteenth Amendment.17 Instances might, but need not, be multiplied. In construing the diversity clause we are faced with the apparent fact that the Framers gave no deliberate consideration one way or another to the diversity litigation of citizens of the District of Columbia. And indeed, since the District was not in existence when the guarantee of a jury trial and then observed: “The Sixth Amendment provided further assurances. It added that in all criminal prosecutions the accused shall enjoy the right ‘to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.’ ” Thus it has been uniformly assumed that in criminal prosecutions a resident of the District of Columbia is possessed of Sixth Amendment rights “to a speedy . . . trial,” United States v. McWilliams, 69 F. Supp. 812, affirmed 163 F. 2d 695; “to be informed of the nature and cause of the accusation,” cf. Johnson n. United States, 225 U. S. 405, 409, 411; “to be confronted with the witnesses against him,” Curtis v. Rives, 123 F. 2d 936, 937; Jordon v. Bondy, 114 F. 2d 599, 602, “to have compulsory process for obtaining witnesses in his favor,” ibid.; “and to have the Assistance of Counsel for his defence,” Noble n. Eicher, 143 F. 2d 1001; see Williams v. Huff, 142 F. 2d 91, 146 F. 2d 867. 15 See note 12 supra. Compare Louisville, C. & C. R. Co. v. Letson, 2 How. 497, with Bank of the United States v. Deveaux, 5 Cranch 61. 16 Paul v. Virginia, 8 Wall. 168, 177. It is to be noted, however, that Hamilton’s 80th Federalist expressly justified the grant of diversity jurisdiction as effectively implementing the guaranties of the privileges and immunities clause of Article IV. 17 Hague v. C. I. O., 307 U. S. 496, 514, cf. id. at 527; Grosjean v. American Press Co., 297 U. S. 233, 244; Orient Insurance Company v. Daggs, 172 U. S. 557, 561. 622 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. Constitution was drafted, it seems in no way surprising that the Framers, after conferring on Congress plenary power over the future federal capital, made no express provision for litigating outside the boundaries of a hypothetical city conjectured controversies between unborn citizens and their unknown neighbors. Under these circumstances I cannot accept the proposition that absence of affirmative inclusion is, here, tantamount to deliberate exclusion. If exclusion of District citizens is not compelled by the language of the diversity clause, it likewise cannot be spelled out by inference from the historic purposes of that clause. We have, needless to say, no concern with the merits of diversity jurisdiction;18 nor need we resolve scholarly dispute over the substantiality of those local prejudices which, when the Constitution was drafted, the grant of diversity jurisdiction was designed to nullify.19 Our only duty is to determine the scope of the jurisdictional grant, and we must bow to congressional determination of whether federal adjudication of local issues does more good than harm. But, in resolving the imme- 18 For contrasting views prior to Erie R. Co. v. Tompkins, 304 U. S. 64, compare Yntema, The Jurisdiction of the Federal Courts in Controversies between Citizens of Different States, 19 A. B. A. J. 71 (1933), and Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction, 79 U. Pa. L. Rev. 869 (1931), with Frankfurter, A Note on Diversity Jurisdiction—In Reply to Professor Yntema, 79 U. Pa. L. Rev. 1097 (1931), and Frankfurter, Distribution of Judicial Power between United States and State Courts, 13 Corn. L. Q. 499, 520-530 (1928). For post-Erie analyses see Shulman, The Demise of Swift v. Tyson, 47 Yale L. J. 1336 (1938); Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 Yale L. J. 267 (1946). 19 See note 18, and see also Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483 (1928); Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-90 (1923); Frank, Historical Bases of the Federal Judicial System, 13 Law & Contem. Prob. 3,22-28 (1948). NATIONAL INS. CO. v. TIDEWATER CO. 623 582 Rutledge, J., concurring. diate issue, we should not blink the fact that, whatever the need for federal jurisdiction over suits between litigant citizens of the several states, the same need equally compels the safeguards of federal trial for suits brought by citizens of the District of Columbia against citizens of the several states. Conversely, if we assume that today’s ruling tacitly validates suits brought by state citizens against citizens of the District of Columbia, it would seem the plaintiff citizen of a state is as deserving of a federal forum when suing a District defendant as when suing a defendant in a neighbor state. Marshall’s sole premise of decision in the Hepburn case has failed, under the stress of time and later decision, as a test of constitutional construction. Key words like “state,” “citizen,” and “person” do not always and invariably mean the same thing.20 His literal application disregarded any possible distinction between the purely political clauses and those affecting civil rights of citizens, a distinction later to receive recognition. Moreover, Marshall himself recognized the incongruity of the decision: “It is true that as citizens of the United States, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them.” But, he added, “this is a subject for legislative not for judicial consideration.” 2 Cranch at 453. With all this we may well agree, with one reservation. In spite of subsequent contrary interpretation and Marshall’s own identification of the statutory word “state” with the same word in the Constitution, we cannot be unreservedly sure that the last-quoted sentence referred to the process of constitutional amendment rather than 20 Cf. notes 14-17 supra and text. 624 OCTOBER TERM, 1948. Rutledge, J., concurring. 337 U. S. congressional reconsideration. If the former had been the intent, it seems likely it would have been stated in words not so characteristic of the latter process. The Court was construing the statute,21 which made no explicit inclusion of citizens of the District. Whether, if it had done so, the Court’s ruling would have been the same or, if a later act had sought to include District citizens, it would have been held unconstitutional, we can only speculate. But I do not rest on this ambiguity, more especially in view of the later decisions clearly accepting the Hepburn decision as one of constitutional import. On the other hand, the later and general repudiation of the decision’s narrow and literal rule for construing the Constitution, in which Marshall’s own part was not small, has cut from beneath the Hepburn case its only grounding and with it, in my judgment, the anomaly in result which the ruling always has been. It is perhaps unnecessary to go so far in criticizing the decision as was done by a judge who long afterwards bowed to it.22 But the time has come 21 The arguments for the defendant were two, one statutory, the other constitutional. They were stated as follows: “Even if the constitution of the United States authorises a more enlarged jurisdiction than the judiciary act of 1789 has given, yet the court can take no jurisdiction which is not given by the act. . . . “This is not a case between citizens of different states, within the meaning of the constitution.” 2 Cranch at 449-450. 22 After noting that the Hepburn decision had been extended by New Orleans n. Winter, 1 Wheat. 91, to territories and their citizens, the opinion in Watson V. Brooks, 13 F. 540, stated at 543-544: “But it is very doubtful if this ruling would now be made if the question was one of first impression; and it is to be hoped it may yet be reviewed and overthrown. “By it, and upon a narrow and technical construction of the word 'state,’ unsupported by any argument worthy of the able and distinguished judge who announced the opinion of the court, the large and growing population of American citizens resident in the District of Columbia and the eight territories of the United States are deprived of the privilege accorded to all other American citizens, as NATIONAL INS. CO. v. TIDEWATER CO. 625 582 Rutledge, J., concurring. when the hope he expressed for removing this highly unjust discrimination from a group of our citizens larger than the population of several states of the Union should be realized. III. Pragmatically stated, perhaps, the problem is not of earth-shaking proportions. For, by present hypothesis, federal court disposition of diversity suits must be in accord with local law in all matters of substance. But symbolically the matter is of very considerable importance. Reasonable men may differ perhaps over whether or, more appropriately, to what extent citizens of the District should have political status and equality with their fellow citizens. But with reference to their civil rights, especially in such a matter as equal access to the federal courts, none now can be found to defend discrimination against them save strictly on the ground of precedent. I cannot believe that the Framers intended to impose so purposeless and indefensible a discrimination, although they may have been guilty of understandable oversight in not providing explicitly against it. Despite its great age and subsequent acceptance, I think the Hepburn decision was ill-considered and wrongly decided. Nothing hangs on it now except the continuance or removal of a gross and wholly anomalous inequality applied against a substantial group of American citizens, not in relation to their substantive rights, but in respect to the forums available for their determination. This Court has not well as aliens, of going into the national courts when obliged to assert or defend their legal rights away from home. Indeed, in the language of the court in Hepburn v. Ellzey, supra, they may well say: ‘It is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the Union, should be closed upon them.’ But so long as this ruling remains in force, the judgment of this court must be governed by it.” 626 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U. S. hesitated to override even long-standing decisions when much more by way of substantial change was involved and the action taken was much less clearly justified than in this case, a most pertinent instance being Erie R. Co. v. Tompkins, supra. That course should be followed here. It should be followed directly, not deviously. Although I agree with the Court’s judgment, I think it overrules the Hepburn decision in all practical effect. With that I am in accord. But I am not in accord with the proposed extension of “legislative” jurisdiction under Article I for the first time to the federal district courts outside the District of Columbia organized pursuant to Article III, and the consequent impairment of the latter Article’s limitations upon judicial power; and I would dissent from such a holding even more strongly than I would from a decision today reaffirming the Hepburn ruling. That extension, in my opinion, would be the most important part of today’s decision, were it accepted by a majority of the Court. It is a dangerous doctrine which would return to plague both the district courts and ourselves in the future, to what extent it is impossible to say. The O’Donoghue and Williams decisions would then take on an importance they have never before had and were never considered likely to attain. Mr. Chief Justice Vinson, with whom Mr. Justice Douglas joins, dissenting. While I agree with the views expressed by Mr. Justice Frankfurter and Mr. Justice Rutledge which relate to the power of Congress under Art. I of the Constitution to vest federal district courts with jurisdiction over suits between citizens of States and the District of Columbia, and with the views of Mr. Justice Frankfurter and Mr. Justice Jackson as to the proper interpretation of the word “States” in the diversity clause of Art. Ill, I NATIONAL INS. CO. v. TIDEWATER CO. 627 582 Vinson, C. J., dissenting. am constrained to state my views individually because of the importance of these questions to the administration of the federal court system. I. The question whether Congress has the power to extend the diversity jurisdiction of the federal district courts to citizens of the District of Columbia by virtue of its authority over the District under Art. I of the Constitution depends, in turn, upon whether the enumeration in Art. Ill of the cases to which the judicial power of the United States shall extend defines the outer limits of that power or is merely a listing of the types of jurisdiction with which Congress may invest federal courts without invoking any of the specific powers granted that body by other Articles of the Constitution. It has long been settled that inferior federal courts receive no powers directly from the Constitution but only such authority as is vested in them by the Congress. Turner n. Bank of North-America, 4 Dall. 8 (1799); McIntire v. Wood, 7 Cranch 504 (1813); Kendall v. United States, 12 Pet. 524 (1838); Cary v. Curtis, 3 How. 236 (1845).1 Since, therefore, there is no minimum of power prescribed for the inferior federal courts, and Congress need not have established any such courts, Lockerty v. Phillips, 319 U. S. 182,187 (1943), the question is whether the enumeration of cases in Art. Ill, § 2 prescribes a maximum of power or performs only the very limited office mentioned above.2 The theory that § 2 of Art. Ill is merely a supplement to the powers specifically granted Congress by the Con- 1 See also Sheldon v. Sill, 8 How. 441 (1850); Kline v. Burke Construction Co., 260 U. S. 226 (1922); Lauf v. E. G. Shinner & Co., 303 U. S. 323 (1938); Lockerty n. Phillips, 319 U. S. 182 (1943). 21. e., is an enumeration of cases to which Congress may extend the jurisdiction of the federal courts without invoking other of its powers under the Constitution. 837446 0—49------------44 628 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U. S. stitution is not, however, accepted at face value even by those who urge it. For they still would require that a case or controversy be presented. We are told that “Of course there are limits to the nature of duties which Congress may impose on the constitutional courts vested with the federal judicial power . . . [but] this statute . . . does not authorize or require either the district courts or this Court to participate in any legislative, administrative, political or other nonjudicial function or to render any advisory opinion.” Ante, pp. 590-591. But as my Brothers Frankfurter and Rutledge have pointed out, if Art. Ill contains merely a grant of power to Congress, there is no more reason to find any limitation in the fact that the judicial power extends only to cases and controversies than in the specific enumeration of the kinds of cases or controversies to which it shall extend. The fundamental error in this position, as I see it, is the failure to distinguish between two entirely different principles embodied in Art. Ill, as elsewhere in the Constitution, both of which were repeatedly adverted to in the Constitutional Convention and have since been followed by this Court without substantial deviation. The first of these principles is that the three branches of government established by the Constitution are of coordinate rank, and that none may encroach upon the powers and functions entrusted to the others by that instrument. This principle found expression in the requirement of Art. Ill that the judicial power shall extend only to cases and controversies. Of equal importance, however, was the second principle, that the Constitution contains a grant of power by the states to the federal government, and that all powers not specifically granted were reserved to the states or to the people.3 The powers 3 This principle, implicit in the arguments at the Constitutional Convention, was made explicit in the 10th Amendment. NATIONAL INS. CO. v. TIDEWATER CO. 629 582 Vinson, C. J., dissenting. granted the federal judiciary were spelled out with care and precision in Art. Ill by a delineation of the kinds of cases to which the judicial power could be extended. The first principle is not now under attack, but proper perspective in viewing the second requires some examination of its origin and history. The framers of the Constitution were presented with, and rejected, proposals which would have vested non judicial powers in the national judiciary. Charles Pinckney of South Carolina proposed, for example, that “Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.”4 Early in the Convention, however, the principle that the courts to be established should have jurisdiction only over cases became fixed. Thus it was that when the proposal was made on the floor of the Convention that the words, “arising under this Constitution” be inserted before “the Laws of the United States,” in what is now Art. Ill, § 2, Madison’s objection that it was “going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature” was met by the answer that it was, in his own words, “generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—.”5 Clear as this principle is, however, it was attacked in this Court on precisely the same grounds now asserted to sustain the diversity jurisdiction here in question. In Keller v. Potomac Electric Co., 261 U. S. 428 (1923), where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission 4 2 Farrand, Records of the Federal Convention 341, hereinafter cited as Farrand. 5 Id. at 430. 630 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U. S. of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that “Although Art. Ill of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction, where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution.” 261 U. S. at 435. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing the note to Hayburn's Case, 2 Dall. 409, 410 (1792); United States v. Ferreira, 13 How. 40, note, p. 52 (1851), and Gordon v. United States, 117 U. S. 697 (1864). These and other decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1 Cranch 137 (1803), the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 219 U. S. 346 (1911); Gordon n. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Co., supra; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693 (1927). While “judicial power,” “cases,” and “controversies” have sometimes been given separate definitions,6 these concepts are inextricably intertwined. The term “Judicial power” was itself sub- 6See Muskrat v. United States, 219 U. S. 346, 356 (1911). NATIONAL INS. CO. v. TIDEWATER CO. 631 582 Vinson, C. J., dissenting. stituted for the phrase, “The jurisdiction of the Supreme Court” to conform Art. Ill to the use of the terms “legislative Powers” and “executive Power” in Arts. I and II.7 It thus draws life from that to which it extends: to cases and controversies. That much, at any rate, is clear. Whether it draws life from any cases or controversies other than those specifically enumerated in Art. Ill must now be considered. The second principle, that any powers not specifically granted to the national judiciary by Art. Ill were reserved to the states or the people, is here challenged. The reason such an attack is possible at this late date is, ironically enough, because of the implicit acceptance of that principle by the framers, by Congress, and by litigants ever since. Unlike the question of the relations between the branches of government, which first arose during Washington’s presidency and subsequently gave rise, in the cases previously adverted to, to frequent definition of the nature of cases and controversies, acceptance of the principle that Art. Ill contains a limitation on the power of the federal judiciary was so complete that the question did not often arise directly. Nevertheless, it is possible to demonstrate in a number of contexts the true intent of the framers. First, the examination and rejection of various alternative proposals concerning the jurisdiction of the national judiciary by the Convention throws considerable light upon the compromise reached.8 On the one hand 7 2 Far rand 425. 8 The propriety of considering the proposals and debates of the Constitutional Convention was long ago considered by those most intimately concerned with its formulation. Washington, in his message to the House of Representatives refusing the demands of that body for the papers relating to Jay’s treaty, stated: “If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found 632 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U. S. were those who thought that no inferior federal tribunals should be authorized; that state courts should be entrusted with the decision of all federal questions, subject to appeal to one Supreme Court. Madison’s notes reveal that “Mr. Rutlidge havg. obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause . . . should be expunged: arguing that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts: that it was making an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system.”9 The motion was carried and the clause establishing inferior federal tribunals excised from the draft Constitution. Madison, however, immediately moved “that the National Legislature be empowered to institute inferior tribunals,” urging that some provision for such courts was a necessity in a federal system. Madison’s notes then record the reaction of Pierce Butler of South Carolina to this proposal: in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, ‘that no Treaty should be binding on the United States which was not ratified by a law,’ and that the proposition was explicitly rejected.” 5 Annals of Congress, Fourth Congress, 1st Sess., p. 761. See also the comment of Madison at a later date. 9 Writings of James Madison 240. 9 1 Farrand 124. See the argument of Luther Martin before the Maryland House of Representatives opposing ratification of the Constitution in 3 Farrand 156. See also 2 Elliot, Debates 408; 3 id. at 562 et seq. NATIONAL INS. CO. v. TIDEWATER CO. 633 582 Vinson, C. J., dissenting. “The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Govt, he could devise; but the best they wd. receive.”10 On the other hand, some members of the Convention favored a wider federal jurisdiction than was ultimately authorized. The Connecticut delegation, led by Roger Sherman, proposed “That the legislature of the United States be authorised to institute one supreme tribunal, and such other tribunals as they may judge necessary for the purpose aforesaid, and ascertain their respective powers and jurisdictions.”11 This proposal, which is not substantially different in its effect from the interpretation now urged upon us, was not adopted by the Convention. When it became established that inferior federal courts were to be authorized by the Constitution, the limits of their jurisdiction immediately became an issue of paramount importance. The outline of federal jurisdiction was established only after much give and take, proposal and counterproposal, and—in the end— compromise. It was early proposed, for example, that federal jurisdiction be made to extend to “all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.”12 But this was only one of many proposals concerning the extent 10 This account, taken from Madison’s notes, is found in 1 Farrand 124-125. 113 Farrand 616. 121 Farrand at 22. 634 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U. S. of federal jurisdiction,13 and not before many concessions and compromises had been made was the enumeration of cases now found in Art. Ill, § 2 agreed upon. The judicial power was thus jealously guarded by the states and unwillingly granted to the national judiciary. Only when it could be demonstrated that a particular head of jurisdiction was acutely needed for the purposes of uniformity and national harmony was it granted. In every state convention for ratification of the Constitution, advocates and opponents of ratification considered in detail the kinds of cases and controversies to which the national judicial power was to extend. Each had to be justified.14 Far from assuming that the judicial power could be, by any means short of constitutional amendment, extended beyond those cases expressly provided for in Art. Ill, that Article was subjected to severe attacks on the ground that those powers specifically given 13 Id. at 231. The sense of the Convention at this point was expressed in Yates’ Notes as follows: “Gov. Randolph observed the difficulty in establishing the powers of the judiciary—the object however at present is to establish this principle, to wit, the security of foreigners where treaties are in their favor, and to preserve the harmony of states and that of the citizens thereof. This being once established, it will be the business of a sub-committee to detail it; and therefore moved to obliterate such parts of the resolve so as only to establish the principle, to wit, that the jurisdiction of the national judiciary shall extend to all cases of national revenue, impeachment of national officers, and questions which involve the national peace or harmony. Agreed to unanimously.” 1 Farrand 238. 14 See, e. g., Madison’s defense of the Judiciary Article before the Virginia Convention, 5 Writings of James Madison 216-225; 2 Elliot, Debates 109; id. at 409, where among the resolutions affecting Art. Ill was one which “Resolved, as the opinion of this committee, that the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, ought not, in any case, to be increased, enlarged, or extended, by any fiction, collusion, or mere suggestion”; id. at 489-494; 3 Elliot, Debates 517-584. NATIONAL INS. CO. v. TIDEWATER CO. 635 582 Vinson, C. J., dissenting. would destroy the state courts. A delegate to the Virginia Convention, for example, stated that “My next objection to the federal judiciary is, that it is not expressed in a definite manner. The jurisdiction of all cases arising under the Constitution and the laws of the Union is of stupendous magnitude.”15 If, in addition to justifying every particle of power given to federal courts by the Constitution, its defenders had been obliged to justify the competence of Congress—itself suspect by those who opposed ratification—to extend that jurisdiction whenever it was thought necessary to effectuate one of the powers expressly given that body, their task would have been insuperable. The debates make that fact plain. That the federal judicial power was restricted to those classes of cases set forth in Art. Ill was clearly the opinion of those who had most to do with its drafting and acceptance. In the 80th Number of The Federalist, Hamilton listed the types of cases to which it was thought necessary that the judiciary authority of the nation should extend. All are found represented in Art. III.16 In the 81st Number, he wrote: 15 3 Elliot, Debates 565. And see Patrick Henry’s remarks, id. at 539-546. 10 The cases enumerated were the following: “1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the peace of the Confederacy, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.” P. 494. 636 OCTOBER TERM, 1948. Vinson, C. J., dissenting. 337 U. S. “The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature . . . .” P. 511. (Emphasis added.) while in No. 82, the following appears: “The only outlines described [for inferior courts] are that they shall be ‘inferior to the Supreme Court,’ and that they shall not exceed the specified limits of the federal judiciary.” P. 516. (Emphasis added.) And Madison, in a letter to a correspondent who had contended that the common law had been incorporated by the Constitution as federal law, wrote: “A characteristic peculiarity of the Govt, of the U. States is, that its powers consist of special grants taken from the general mass of power, whereas other Govts, possess the general mass with special exceptions only. Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd. be a part of the national code, have omitted to express or distinctly indicate the intention; when so many far inferior provisions are so carefully inserted, and such appears to have been the public view taken of the Instrument, whether we recur to the period of its ratification by the States, or to the federal practice under it.”17 17 9 Writings of James Madison 199-200. And see United States v. Hudson and Goodwin, 7 Cranch 32 (1812) ; Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). NATIONAL INS. CO. v. TIDEWATER CO. 637 582 Vinson, C. J., dissenting. Cases in this Court which support the view that Art. Ill, § 2 limits the power of constitutional courts are not lacking. In The Mayor n. Cooper, 6 Wall. 247, 252 (1867), the Court defined the jurisdiction of inferior federal courts as follows: “As regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. Their concurrence is necessary to vest it. It is the duty of Congress to act for that purpose up to the limits of the granted power. They may jail short oj it, but cannot exceed it.” (Emphasis added.) And in a series of three cases decided between 1800 and 1809, the Court refused to give literal effect to § 11 of the Judiciary Act of 1789, which had extended the jurisdiction of Circuit Courts to suits where “an alien is a party,” because of the limitations imposed by Art. III. In Mossman v. Higginson, 4 Dall. 12, 14 (1800), it was decided that “as the legislative power of conferring jurisdiction on the federal Courts, is, in this respect, confined to suits between citizens and joreigners, we must so expound the terms of the law, as to meet the case, ‘where, indeed, an alien is one party,’ but a citizen is the other.” This construction of the statute was adhered to in Mon-talet v. Murray, 4 Cranch 46 (1807); and in Hodgson v. Bowerbank, 5 Cranch 303 (1809), where Chief Justice Marshall dismissed the contention that 106, 109, 184, 37® and 374, ante, p. 235.) No. 486. Boyd v. Grand Trunk Western Railroad Co. Supreme Court of Michigan. Certiorari granted. Melvin L. Griffith, Francis H. Monek and John L. Mechem for petitioner. H. Victor Spike for respondent. Reported below: 321 Mich. 693, 33 N. W. 2d 120. No. 713. Darr v. Burford, Warden. C. A. 10th Cir. Certiorari granted. John B. Ogden for petitioner. Reported below: 172 F. 2d 668. No. 742. Manufacturers Trust Co., Trustee, v. Becker et al. C. A. 2d Cir. Certiorari granted. Edward K. Hanlon for petitioner. David W. Kahn for respondents. Solicitor General Perlman and Roger S. Foster filed a brief for the Securities & Exchange Commission, as amicus curiae, supporting the petition. Reported below: 173 F. 2d 944. No. 746. Creel et al. v. Lone Star Defense Corp. C. A. 5th Cir. Certiorari granted. C. M. Kennedy and Pat Coon for petitioners. Otto Atchley for respondent. Reported below: 173 F. 2d 964. No. 751. Reo Motors, Inc. v. Commissioner of Internal Revenue. C. A. 6th Cir. Certiorari granted. James O. Wynn and N. Barr Miller for petitioner. Solicitor General Perlman filed a memorandum for respondent. Reported below: 170 F. 2d 1001. 924 OCTOBER TERM, 1948. June 6, 1949. 337 U. S. No. 744. Commissioner of Internal Revenue v. Connelly et ux. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Solicitor General Perlman for petitioner. Caesar L. Aiello and A. Murray Preston for respondents. Reported below: 84 U. S. App. D. C. 260, 172 F. 2d 877. Certiorari Denied. (See also No. 805 and No. 535, Mise., supra.) No. 672. Vlavianos et al. v. The Cypress et al.; and No. 752. Maryland Drydock Co. v. Vlavianos et al. C. A. 4th Cir. Certiorari denied. I. Duke Avnet for petitioners in No. 672. David R. Owen for the Maryland Drydock Co., petitioner in No. 752 and respondent in No. 672. Reported below: 171 F. 2d 435. No. 674. Waterman Steamship Corp. v. Dean et al.; and No. 753. Dean et al. v. Waterman Steamship Corp. C. A. 4th Cir. Certiorari denied. Robert S. Erskine and Robert W. Williams for petitioner in No. 674 and respondent in No. 753. I. Duke Avnet for petitioners in No. 753 and respondents in No. 674. Reported below: 171 F. 2d 408. No. 701. COBLEIGH ET AL. V. WOODS, HOUSING EXPEDITER. C. A. 1st Cir. Certiorari denied. Neil Tolman for petitioners. Solicitor General Perlman, John R. Benney, Ed Dupree, Hugo V. Prucha and Nathan Siegel for respondent. Reported below: 172 F. 2d 167. No. 724. Kohinoor Coal Co. v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari denied. James J. Dougherty for petitioner. Solicitor General DECISIONS PER CURIAM ETC. 925 337 U. S. June 6, 1949. Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Morton K. Rothschild and Joseph W. Bishop, Jr. for respondent. Reported below: 171 F. 2d 880. No. 727. Todorow et al. v. United States. C. A. 9th Cir. Certiorari denied. Morris Lavine for petitioners. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen for the United States. Reported below: 173 F. 2d 439. No. 734. Peterson v. United States; No. 735. Niznik v. United States; and No. 736. Comodor v. United States. C. A. 6th Cir. Certiorari denied. Hayden C. Covington, Victor F. Schmidt and Grover C. Powell for petitioners. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 173 F. 2d 111, 328. No. 737. Gibson v. Reynolds et al. C. A. 8th Cir. Certiorari denied. Hayden C. Covington and Grover C. Powell for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, John R. Benney and Paul A. Sweeney for respondents. Reported below: 172 F. 2d 95. No. 740. Tibbals et al. v. Mica Mountain Mines, Inc. et al. C. A. 10th Cir. Certiorari denied. Reported below: 172 F. 2d 449. No. 747. Standard Brands, Inc. et al. v. Eastern Shore Canning Co., Inc. C. A. 4th Cir. Certiorari denied. Ellis W. Leavenworth for petitioners. George M. Lanning for respondent. Reported below: 172 F. 2d 144. 926 OCTOBER TERM, 1948. June 6, 1949. 337 U. S. No. 765. Grayson Shops, Inc. v. Stone. C. A. 2d Cir. Certiorari denied. David Mackay for petitioner. Thomas A. Gaffney for respondent. Reported below: 173 F. 2d 135. No. 305, Mise. Chadwick v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 170 F. 2d 986. No. 378, Mise. Butler v. Clemmer. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Richard L. Tedrow for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Joseph M. Howard for respondent. Reported below: 84 U. S. App. D. C. 58, 171 F. 2d 132. No. 478, Mise. Todd v. Todd. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. M. Edward Buckley, Jr. for petitioner. Reported below: 84 U. S. App. D. C. 100, 171 F. 2d 143. No. 489, Mise. Butler v. Penix, Receiver. C. A. 5th Cir. Certiorari denied. Reported below: 173 F. 2d 761. No. 558, Mise. Cohen v. Decker et al. C. A. 5th Cir. Certiorari denied. Reported below: 170 F. 2d 479. No. 562, Mise. Lucas v. Moore, Warden. Court of Criminal Appeals of Texas. Certiorari denied. No. 564, Mise. Mohler v. Smith, Superintendent. Supreme Court of Washington. Certiorari denied. No. 580, Mise. D’Ostroph v. United States Court of Appeals for the Eighth Circuit et al. C. A. 8th Cir. Certiorari denied. Reported below: 173 F. 2d 897. DECISIONS PER CURIAM ETC. 927 337 U. S. June 6, 13, 1949. No. 593, Mise. Binkowski v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 594, Mise. Cordts v. Illinois. Circuit Court of St. Clair County, Illinois. Certiorari denied. No. 595, Mise. Adams v. Nierstheimer, Warden. Supreme Court of Illinois. Certiorari denied. No. 603, Mise. Cantoo v. Ragen, Warden. Circuit Court of Rock Island County, Illinois. Certiorari denied. No. 624, Mise. Messina v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. Rehearing Denied. No. 598. Henry v. Smith, Commanding General, 336 U. S. 968. Rehearing denied. No. 612. Leishman v. Richards & Conover Co., 336 U. S. 952. Rehearing denied. No. 638. Chesapeake & Ohio Railway Co. v. Morris, 336 U. S. 967. Rehearing denied. No. 480, Mise. Agnew v. California, 337 U. S. 909. Rehearing denied. No. 539, Mise. Wilson v. Hinman et al., 336 U. S. 970. Rehearing denied. June 13, 1949. Miscellaneous Orders. No. 26. United States v. Kansas City Life Insurance Co. This case is ordered restored to the docket for reargument. 928 OCTOBER TERM, 1948. June 13, 1949. 337 U. S. No. 299. United States v. Gerlach Live Stock Co.; No. 300. United States v. Potter; No. 301. United States v. Erreca; No. 302. United States v. James J. Stevinson (a corporation) ; No. 303. United States v. Stevinson; and No. 304. United States v. 3-H Securities Co. These cases are ordered restored to the docket for reargument. No. 13, Original. United States v. Louisiana, 337 U. S. 902. The petition for rehearing is denied. The objections to the granting of leave to file the complaint are overruled and the State of Louisiana is directed to answer the allegations of the complaint within the time specified in the subpoena, otherwise the plaintiff may proceed ex parte. Rule 6, par. 2 and 3. Mr. Justice Jackson took no part in the consideration or disposition of the petition for rehearing. Bolivar E. Kemp, Jr., Attorney General of Louisiana, John L. Madden, Assistant Attorney General, L. H. Perez and F. Trowbridge vom Baur for defendant. No. 500. Union National Bank v. Lamb, 337 U. S. 38. Petition for rehearing and alternative request for modification of the opinion denied. No. 582, Mise. No. 601, Mise. No. 606, Mise. No. 607, Mise. No. 619, Mise. Stephenson v. New Jersey; In re Gruetter; Gibson v. Lainson, Warden; Roberts v. Heinze, Warden; and Joyner v. Wright, Warden. The motions for leave to file petitions for writs of habeas corpus are severally denied. DECISIONS PER CURIAM ETC. 929 337 U. S. June 13, 1949. No. 598, Mise. Shotkin et al. v. Denver Publishing Co. et al.; and No. 615, Mise. Smith v. Witsell. Applications denied. No. 614, Mise. Lemmons v. Foster, Warden. Motion for leave to file petition for certiorari denied. No. 633, Mise. Hilliard v. Underwood, U. S. District Judge; and No. 637, Mise. McIntosh v. Steele, Warden. The motions for leave to file petitions for writs of mandamus are denied. Certiorari Granted. No. 711. Parker et al. v. County of Los Angeles et al.; and No. 712. Steiner v. County of Los Angeles et al. District Court of Appeal, 2d Appellate District, of California. Certiorari granted. Lee Pressman, A. L. Wir in and Fred Okrand for petitioners. Harold W. Kennedy for respondents. Reported below: 88 Cal. App. 2d 481, 199 P. 2d 429. No. 743. O’Donnell, Administratrix, v. Elgin, Joliet & Eastern Railway Co. C. A. 7th Cir. Certiorari granted. Joseph D. Ryan for petitioner. Harlan L. Hackbert for respondent. Reported below: 171 F. 2d 973. No. 762. Cole et al. v. Arkansas. Supreme Court of Arkansas. Certiorari granted. Arthur J. Goldberg and Thomas E. Harris for petitioners. Ike Murry, Attorney General of Arkansas, Wyatt Cleveland Holland and Jeff Duty, Assistant Attorneys General, for respondent. Reported below: 214 Ark. 387, 216 S. W. 2d 402. 930 OCTOBER TERM, 1948. June 13, 1949. 337 U. S. Certiorari Denied. (See also No. 614, Mise., supra.) No. 685. Mahoney v. Michigan. Supreme Court of Michigan. Certiorari denied. William G. Fitzpatrick for petitioner. Stephen J. Roth, Attorney General of Michigan, and Edmund E. Shepherd, Solicitor General, for respondent. Reported below: 322 Mich. 474, 34 N. W. 2d 15. No. 689. Carlson v. Federal Communications Commission et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Philip M. Baker and Charles E. Thompson for petitioner. Solicitor General Perlman and Benedict P. Cottone for the Federal Communications Commission; and Vincent B. Welch for Louise C. Carlson, respondents. Reported below: 84 U. S. App. D. C. 415,172 F. 2d 766. No. 750. American Surety Co. v. United States. C. A. 2d Cir. Certiorari denied. Cyril Coleman and William H. Timbers for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States. Alexander M. Heron filed a brief for the Association of Casualty & Surety Companies, as amicus curiae, supporting the petition. Reported below: 172 F. 2d 135. No. 766. Travelers Fire Insurance Co. et al. v. Ranney-Davis Mercantile Co. C. A. 10th Cir. Certiorari denied. F. A. Rittenhouse for petitioners. W. L. Cunningham and D. Arthur Walker for respondent. Reported below: 173 F. 2d 844. No. 776. Rhodes v. Metropolitan Life Insurance Co. C. A. 5th Cir. Certiorari denied. Fred G. Benton for petitioner. Benj. B. Taylor, C. V. Porter, L. W. Brooks and Benj. B. Taylor, Jr. for respondent. Reported below: 172 F. 2d 183. DECISIONS PER CURIAM ETC. 931 337 U.S. June 13, 1949. No. 800. Mercury Press, Inc. v. District of Columbia. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Herbert G. Pil-len for petitioner. Vernon E. West, Chester H. Gray and George C. Updegraff for respondent. Reported below: 84 U. S. App. D. C. 203, 173 F. 2d 636. No. 777. Snyder v. United States. Court of Claims. Certiorari denied. Reported below: 113 Ct. Cl. 61, 82 F. Supp. 335. No. 803. United States v. 25.406 Acres of Land in Arlington County, Virginia, et al. C. A. 4th Cir. Certiorari denied. Mr. Justice Black took no part in the consideration or decision of this application. Solicitor General Perlman for the United States. Francis M. Shea, Warner W. Gardner and Gardner L. Boothe for respondents. Reported below: 172 F. 2d 990. No. 415, Mise. Rockower v. United States. C. A. 2d Cir. Certiorari denied. Hancock Griffin, Jr. for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 171 F. 2d 423. No. 416, Mise. Grimaldi v. United States. C. A. 2d Cir. Certiorari denied. Henry K. Chapman for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 171 F. 2d 619. No. 417, Mise. Whelan v. United States. C. A. 2d Cir. Certiorari denied. Vine H. Smith for petitioner. Solicitor General Perlman, Assistant Attorney General 932 OCTOBER TERM, 1948. June 13, 1949. 337 U. S. Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 171 F. 2d 619. No. 425, Mise. Hasson v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. No. 440, Mise. Wilde v. Louisiana. Supreme Court of Louisiana. Certiorari denied. Reported below: 214 La. 453, 38 So. 2d 72. No. 486, Mise. McAffee v. Clemmer, Director. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Edward E. O’Neill for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Joseph M. Howard for respondent. Reported below: 84 U. S. App. D. C. 57,171 F. 2d 131. No. 557, Mise. Glazewski v. Pennington, Superintendent. Supreme Court of Pennsylvania. Certiorari denied. Leo W. White for petitioner. Mitchell Jenkins for respondent. No. 576, Mise. Nicholson, Administrator, et al. v. Thompson, Trustee. C. A. 6th Cir. Certiorari denied. William A. McTighe for petitioners. Walter P. Armstrong for respondent. Reported below: 171 F. 2d 295. No. 583, Mise. Darden v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. No. 584, Mise. Wright v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. DECISIONS PER CURIAM ETC. 933 337 U.S. June 13, 1949. No. 600, Mise. Smith v. Duffy, Warden. Supreme Court of California. Certiorari denied. No. 608, Mise. Mackey v. Martin, Warden. C. A. 2d Cir. Certiorari denied. No. 609, Mise. Blauvelt v. Jackson, Warden. Court of Appeals of New York. Certiorari denied. Reported below: See 298 N. Y. 928, 85 N. E. 2d 67. No. 613, Mise. Wright v. Ragen, Warden, et al. Circuit Court of Peoria County, Illinois. Certiorari denied. No. 618, Mise. Winn v. California et al. Supreme Court of California. Certiorari denied. No. 620, Mise. Nottebaum v. Mayo, State Prison Custodian. C. A. 5th Cir. Certiorari denied. Reported below: 173 F. 2d 574. No. 622, Mise. Goodman v. Swenson, Warden. Court of Appeals of Maryland. Certiorari denied. Reported below: -----Md.-------, 60 A. 2d 527. No. 625, Mise. Blake v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 632, Mise. Fisher v. Swenson, Warden. Court of Appeals of Maryland. Certiorari denied. Reported below: -----Md.------, 64 A. 2d 124. No. 636, Mise. Smith v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. 934 OCTOBER TERM, 1948. June 13, 1949. 337 U. S. No. 638, Mise. O’Malley v. California. Supreme Court of California. Certiorari denied. No. 644, Mise. Cordts v. Ragen, Warden, et al. Circuit Court of St. Clair County, Illinois. Certiorari denied. Rehearing Denied. (See also No. 13, Original and No. 500, supra.) No. 679. Kennedy v. Walker, Warden, 337 U. S. 901. Motion for leave to file petition for rehearing denied. No. 268. Weber v. United States, 335 U. S. 872. Rehearing denied. No. 272. Terminiello v. Chicago, 337 U. S. 1. Rehearing denied. No. 457. Humphrey, Warden, v. Smith, 336 U. S. 695. Rehearing denied. No. 647. Momand v. Universal Film Exchanges, Inc. et al., 336 U. S. 967. Rehearing denied. No. 648. DeWar v. Hunter, Warden, 337 U. S. 908. Rehearing denied. No. 379, Mise. In re Bush, 336 U. S. 971. Rehearing denied. No. 490, Mise. Coyle v. California, 337 U. S. 909. Rehearing denied. No. 560, Mise. Wakat v. Ragen, Warden, 337 U. S. 909. Rehearing denied. DECISIONS PER CURIAM ETC. 935 337 U. S. June 20, 1949. June 20,1949. Per Curiam Decisions. No. 4. Loftus v. Illinois. Certiorari to the Supreme Court of Illinois. Per Curiam: Certiorari was granted in this case, 333 U. S. 831, because of petitioner’s serious claim that he was denied the assistance of counsel under circumstances which constitute a disregard of the safeguards to which he was entitled under the Due Process Clause of the Fourteenth Amendment. After hearing argument, we continued the cause to enable the Supreme Court of Illinois to advise us whether its affirmance of petitioner’s conviction was intended to rest on an adequate independent State ground or whether decision of the claim under the Fourteenth Amendment was necessary to its judgment inasmuch as it was urged on behalf of Illinois that the constitutional claim was not properly before the Illinois Supreme Court on writ of error, but must be pursued in Illinois by habeas corpus. 334 U. S. 804. That Court’s response in People v. Lojtus, 400 Ill. 432, 81 N. E. 2d 495, makes it clear that its judgment rested upon an independent State ground. The writ of certiorari heretofore granted is therefore dismissed. Henry H. Fowler for petitioner. George F. Barrett, then Attorney General of Illinois, and William C. Wines, Assistant Attorney General, for respondent. No. 102, Mise. Thompson v. Nierstheimer, Warden. On petition for writ of certiorari to the Circuit Court of Randolph County, Illinois. Per Curiam: The petition for writ of certiorari is granted. The order denying the petition for habeas corpus is vacated and the cause is remanded to the Circuit Court of Randolph County, Illinois, for consideration of the petition in the light of the opinions of the Supreme Court of Illinois in People v. Lojtus, 400 Ill. 432, 81 N. E. 2d 495; People n. Shoffner, 837446 0—49-----------58 936 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. 400 Ill. 174, 79 N. E. 2d 200; and People v. Wilson, 399 Ill. 437, 78 N. E. 2d 514. See Young v. Ragen, 337 U. S. 235. No. 847. Gulfstream Park Racing Association, Inc. v. Robert L. Weed, Architect, Inc. 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 appellant. Thomas H. Anderson for appellee. Reported below: 39 So. 2d 921. Miscellaneous Orders. No. 451, Mise. Chaney v. United States; and No. 561, Mise. Hanna v. United States. The motions for leave to file petitions for writs of certiorari in these cases are denied. James J. Laughlin for petitioner in No. 561, Mise. No. 612, Mise. Rought v. United States District Court for the Western District of Missouri et al. Motion for leave to file petition for writ of mandamus denied. No. 631, Mise. No. 635, Mise. No. 642, Mise. No. 653, Mise. No. 661, Mise. No. 664, Mise. No. 672, Mise. Miller v. Hiatt, Warden; Krepper v. United States; Roberts v. Frisbie, Warden; Ruthven v. Overholser; McIntosh v. Steele, Warden, et al. ; Pullins v. Ohio et al. ; and Fincham v. Lillard, Sheriff. The motions for leave to file petitions for writs of habeas corpus in these cases are severally denied. No. 670, Mise. Edwards v. Clemmer, Director. Application denied. DECISIONS PER CURIAM ETC. 937 337 U. S. June 20, 1949. No. 773. Estate of Hager et al. v. Commissioner of Internal Revenue. Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit dismissed per stipulation of counsel. Hugo Kohl-mann for petitioner. Solicitor General Perlman for respondent. Reported below: 173 F. 2d 613. Certiorari Granted. (See also No. 102, Mise., supra.) No. 789. Federal Power Commission v. East Ohio Gas Co. et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Mr. Justice Burton took no part in the consideration or decision of this application. Solicitor General Perlman and Bradford Ross for petitioner. Herbert S. Dufjy, Attorney General of Ohio, Kenneth B. Johnston, Assistant Attorney General, William B. Cockley, Walter J. Milde, Wm. A. Dougherty and Sturgis Warner for respondents. Reported below: 84 U. S. App. D. C. 312, 173 F. 2d 429. No. 801. Wilmette Park District v. Campbell, Collector of Internal Revenue. C. A. 7th Cir. Certiorari granted. Edward R. Johnston for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Melva M. Graney for respondent. Reported below: 172 F. 2d 885. Certiorari Denied. (See also Nos. ^51 and 561, Mise., supra.) No. 659. Fujino v. Clark, Attorney General of the United States. C. A. 9th Cir. Certiorari denied. J. Garner Anthony for petitioner. Solicitor General Perlman, Assistant Attorney General Bazelon and James L. Morrisson for respondent. Reported below: 172 F. 2d 384. 938 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 725. Calhoun et al. v. United States. C. A. 5th Cir. Certiorari denied. William H. Fryer for petitioners. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 172 F. 2d 457. No. 756. Estate of MacManus et al. v. Commissioner of Internal Revenue. C. A. 6th Cir. Certiorari denied. John J. Sloan and Harold Goodman for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Morton K. Rothschild and Joseph W. Bishop, Jr. for respondent. Reported below: 172 F. 2d 697. No. 757. Great Northern Railway Co. et al. v. Lehman et al. Supreme Court of Minnesota. Certiorari denied. Edwin C. Matthias, Anthony Kane, James L. Hetland and A. Rea Williams for petitioners. Bert McMullen for respondents. Reported below: 227 Minn. 482, 36 N. W. 2d 336. No. 758. Sgambati v. United States. C. A. 2d Cir. Certiorari denied. Jacob Rassner for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States. Reported below: 172 F. 2d 297. No. 759. Roth, doing business as Psychic Research Press, v. Goldman, Postmaster. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney, John R. Benney and Joseph Kovner for respondent. Reported below: 172 F. 2d 788. No. 772. Noland, Trustee, v. Westover, Collector, United States Treasury Department, et al. C. A. 9th DECISIONS PER CURIAM ETC. 939 337 U. S. June 20, 1949. Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman for respondents. Reported below: 172 F. 2d 614. No. 774. Pittsburgh & West Virginia Railway Co. v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari denied. W. A. Seifert, William R. Spofford and Norman D. Keller for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Hilbert P. Zarky for respondent. Reported below: 172 F. 2d 1010. No. 775. Matson Navigation Co. v. War Damage Corp. C. A. 9th Cir. Certiorari denied. Herman Phle-ger, Gregory A. Harrison and Lyman Henry for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Joseph Kovner for respondent. Reported below: 172 F. 2d 942. No. 778. Kan v. Tsang. C. A. 9th Cir. Certiorari denied. Gilbert S. Woolworth for petitioner. Lemuel H. Matthews for respondent. Reported below: 173 F. 2d 204. No. 780. District of Columbia v. Smoot Sand & Gravel Corp. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Vernon E. West, Chester H. Gray and George C. Updegraff for petitioner. David R. Shelton for respondent. Reported below: 84 U. S. App. D. C. 367,174 F. 2d 505. No. 782. Lockard et al. v. Los Angeles et al. Supreme Court of California. Certiorari denied. Albert H. Allen and Hyman Goldman for petitioners. Ray L. Chesebro and Bourke Jones for respondents. Reported below: 33 Cal. 2d 453, 202 P. 2d 38. 940 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 788. Latta et al. v. Western Investment Co. et al. C. A. 9th Cir. Certiorari denied. James D. Meredith for petitioners. Stanley A. Weigel, Horace B. Wulff and Evan J. Foulds for respondents. Reported below: 173 F. 2d 99. No. 790. Sales Affiliates, Inc. v. National Mineral Co., now Helene Curtis Industries, Inc. C. A. 7th Cir. Certiorari denied. Hobart N. Durham and George B. Finnegan, Jr. for petitioner. Casper W. Ooms for respondent. Reported below: 172 F. 2d 608. No. 791. Continental Casualty Co. v. United States for the use of Schaefer, doing business as Concrete Construction Co., et al. C. A. 9th Cir. Certiorari denied. George W. Wilkins for petitioner. Cutler W. Halverson for Schaefer, respondent. Reported below: 173 F. 2d 5. No. 792. International Harvester Co. v. Troutman, Administratrix. C. A. 6th Cir. Certiorari denied. Louis Seelbach for petitioner. Lawrence S. Grauman and Herman Cohen for respondent. Reported below: 173 F. 2d 895. No. 794. Union Trust Co. v. United States. C. A. 7th Cir. Certiorari denied. Lucien L. Dunbar for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson, L. W. Post and Joseph W. Bishop, Jr. for the United States. Reported below: 173 F. 2d 54. No. 813. Plough v. Baltimore & Ohio Railroad Co. ; No. 814. Hanson, Administratrix, v. Baltimore & Ohio Railroad Co.; DECISIONS PER CURIAM ETC. 941 337 U. S. June 20, 1949. No. 815. Van Slyke v. Baltimore & Ohio Railroad Co.; and No. 816. Lynch, Administratrix, v. Baltimore & Ohio Railroad Co. C. A. 2d Cir. Certiorari denied. Frank G. Raichle for petitioners. William C. Combs for respondent. Reported below: 172 F. 2d 396. No. 819. Berger, doing business as Berger Sales Co., v. Brannan, Secretary of Agriculture, suing on behalf of the United States. C. A. 10th Cir. Certiorari denied. Byron G. Rogers for petitioner. Reported below: 172 F. 2d 241. No. 826. Whetstone v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman for the United States. No. 830. Riccardi v. United States. C. A. 3d Cir. Certiorari denied. Frederic M. P. Pearse for petitioner. Solicitor General Perlman for the United States. Reported below: 174 F. 2d 883. No. 691. Petersen et al. v. Christ’s Church of the Golden Rule et al. C. A. 9th Cir. The motion for leave to withdraw the appearance of Howard B. Crittenden, Jr. as counsel for the petitioners is denied. Certiorari denied. Howard B. Crittenden, Jr. for petitioners. Reported below: 170 F. 2d 555. No. 748. Zimmermann v. United States. C. A. 5th Cir. Certiorari denied. Coleman Gay and Henry H. Brooks for petitioner. Solicitor General Perlman for the United States. Reported below: 171 F. 2d 790. 942 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 832. Lyons v. Capital Transit Co. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. No. 867. United States ex rel. Schirrmeister v. Watkins, District Director, Immigration and Naturalization Service. The petition for writ of certiorari to the United States Court of Appeals for the Second Circuit is denied for the reason that application therefor was not made within the time provided by law. 28 U. S. C. § 2101 (c). P. Bateman Ennis for petitioner. Solicitor General Perlman for respondent. Reported below: 171 F. 2d 858. No. 302, Mise. Pippin v. Nierstheimer, Warden. The petition for writ of certiorari to the Supreme Court of Illinois is denied without prejudice to the filing of an application for writ of habeas corpus in any State court of competent jurisdiction. See Young n. Rogen, 337 U. S. 235. Petitioner pro se. Ivan A. Elliott, Attorney General of Illinois, and William C. Wines, Assistant Attorney General, for respondent. No. 359, Mise. Koenig v. Smith, Superintendent. The motion to strike respondent’s brief is denied. The petition for writ of certiorari to the Supreme Court of Washington is also denied. Petitioner pro se. Smith Troy, Attorney General of the State of Washington, and C. John Newlands, Assistant Attorney General, for respondent. No. 2, Mise. Thompson v. Illinois. Circuit Court of St. Clair County, Illinois. Certiorari denied. Peti- DECISIONS PER CURIAM ETC. 943 337 U. S. June 20, 1949. tioner pro se. George F. Barrett, then Attorney General of Illinois, William C. Wines, James C. Murray and Raymond S. Sarnow, Assistant Attorneys General, for respondent. No. 10, Mise. Thompson v. Illinois. Supreme Court of Illinois. Certiorari denied. No. 373, Mise. Banks v. Nierstheimer, Warden, et al. Criminal Court of Cook County, Illinois. Certiorari denied. No. 377, Mise. Ferguson, Temporary Administrator, et al. v. Ferguson. Court of Civil Appeals, 3d Supreme Judicial District, of Texas. Certiorari denied. No. 414, Mise. Thomas v. Moore, Warden. District Court of Walker County, Texas. Certiorari denied. Petitioner pro se. Price Daniel, Attorney General of Texas, Frank Lake, Assistant Attorney General, and Joe R. Greenhill, First Assistant Attorney General, for respondent. No. 424, Mise. Oddo v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 171 F. 2d 854. No. 450, Mise. De Normand et al. v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 171 F. 2d 854. 944 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 476, Mise. Lowe v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 173 F. 2d 346. No. 477, Mise. Wagner v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 171 F. 2d 354. No. 484, Mise. Flynn v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl for the United States. Reported below: 172 F. 2d 12. No. 491, Mise. Birtch v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 173 F. 2d 316. No. 533, Mise. Marion v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 171 F. 2d 185. No. 540, Mise. Pascal v. Burke, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 542, Mise. Shoe v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 170 F. 2d 480. No. 546, Mise. Lowe v. Humphrey, Warden. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for respondent. DECISIONS PER CURIAM ETC. 945 337 U. S. June 20, 1949. No. 553, Mise. Gould v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 173 F. 2d 30. No. 555, Mise. Hicks v. United States. C. A. 4th Cir. Certiorari denied. William Alfred Hall, Jr. for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl for the United States. Reported below: 173 F. 2d 570. No. 574, Mise. Haley v. Ohio. Supreme Court of Ohio. Certiorari denied. E. L. Mills and Edgar W. Jones for petitioner. D. Deane McLaughlin and John Rossetti for respondent. Reported below: 151 Ohio St. 80, 84 N. E. 2d 217. No. 581, Mise. Gay v. Fidelity Union Trust Co., Executor. Supreme Court of New Jersey. Certiorari denied. Petitioner pro se. Charles Danzig for respondent. Reported below: 1 N. J. 581, 65 A. 2d 60. No. 586, Mise. Jackson v. Hiatt, Warden. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for respondent. Reported below: 173 F. 2d 760. No. 590, Mise. Garner et al. v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. T. Emmett McKenzie for petitioners. Solicitor General Perlman, As-sistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen for the United States. Reported below: 84 U. S. App. D. C. 361,174 F. 2d 499. No. 596, Mise. Skinner v. Robinson, Warden. Circuit Court of Lee County, Illinois. Certiorari denied. 946 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 599, Mise. Godwin v. Smyth, Superintendent. Supreme Court of Appeals of Virginia. Certiorari denied. Reported below: 188 Va. 753, 51 S. E. 2d 230. No. 605, Mise. Fiamengo et al. v. The San Francisco et al. C. A. 9th Cir. Certiorari denied. David A. Fall for petitioners. Arch E. Ekdale for respondents. Reported below: 172 F. 2d 767. No. 611, Mise. Burch v. Kieren, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 174 F. 2d 324. No. 616, Mise. Carter v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 173 F. 2d 685. No. 621, Mise. Rodda v. Rodda. Supreme Court of Oregon. Certiorari denied. Reported below: 185 Ore. 140, 202 P. 2d 638. No. 623, Mise. Adams v. Hiatt, Warden. C. A. 3d Cir. Certiorari denied. Wm. H. Ramsey for petitioner. Reported below: 173 F. 2d 896. No. 626, Mise. Howell v. United States. C. A. 8th and 10th Circuits. Certiorari denied. No. 627, Mise. Loper v. Texas. Court of Criminal Appeals of Texas. Certiorari denied. Reported below: 152 Tex. Cr. Rep.----, 219 S. W. 2d 81. No. 628, Mise. Reeves v. Georgia. Court of Appeals of Georgia. Certiorari denied. W. A. Bootle for petitioner. Eugene Cook, Attorney General of Georgia, Claude Shaw, Deputy Assistant Attorney General, and J. R. Parham, Assistant Attorney General, for respondent. Reported below: 78 Ga. App. 702, 50 S. E. 2d 708. DECISIONS PER CURIAM ETC. 947 337 U. S. June 20, 1949. No. 629, Mise. Wallace v. United States. C. A. 8th Cir. Certiorari denied. George J. Danforth for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 174 F. 2d 112. No. 630, Mise. Story v. United States. C. A. 8th Cir. Certiorari denied. George J. Danforth for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 174 F. 2d 120. No. 639, Mise. Fuller v. Michigan. Supreme Court of Michigan. Certiorari denied. No. 640, Mise. Pope v. Mayo, Custodian. Supreme Court of Florida. Certiorari denied. Reported below: 160 Fla. 788, 39 So. 2d 286. No. 641, Mise. Tabor v. Swenson, Warden. Court of Appeals of Maryland. Certiorari denied. Reported below:-----Md.-------, 66 A. 2d 205. No. 645, Mise. Edmondson v. Wright, Warden. Court of Appeals of Maryland. Certiorari denied. No. 646, Mise. Taylor v. Hudspeth, Warden. Supreme Court of Kansas. Certiorari denied. No. 647, Mise. Smith v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 648, Mise. Edwards v. Heinze, Warden. Supreme Court of California. Certiorari denied. 948 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 649, Mise. Darden v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 650, Mise. Current v. Hudspeth, Warden. Supreme Court of Kansas. Certiorari denied. No. 654, Mise. Noorlander v. California. Superior Court for the County of Los Angeles, California. Certiorari denied. No. 656, Mise. Goodman v. Iowa. Supreme Court of Iowa. Certiorari denied. No. 657, Mise. Goodman v. Lainson, Warden. District Court of Lee County, Iowa. Certiorari denied. No. 658, Mise. Wright v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 659, Mise. Kranz v. Humphrey, Warden. C. A. 3d Cir. Certiorari denied. Reported below: 174 F. 2d 741. No. 660, Mise. Gryger v. Burke, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 662, Mise. Phillips v. Hudspeth, Warden. Supreme Court of Kansas. Certiorari denied. No. 663, Mise. Manchester v. California et al. Supreme Court of California. Certiorari denied. Reported below: 33 Cal. 2d 740, 204 P. 2d 881. No. 665, Mise. Whalen et al. v. Michigan. Supreme Court of Michigan. Certiorari denied. DECISIONS PER CURIAM ETC. 949 337 U. S. June 20, 1949. No. 666, Mise. Edelman v. California. Appellate Department of the Superior Court of California. Certiorari denied. No. 667, Mise. Clark v. Eidson, Warden. Supreme Court of Missouri. Certiorari denied. No. 669, Mise. Kimbrel v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Frederick Bernays Wiener for petitioner. Reported below: 85 U. S. App. D. C. -----------, 174 F. 2d 672. No. 673, Mise. Dessaure v. New York. Court of Appeals of New York. Certiorari denied. Franklin H. Williams and Thurgood Marshall for petitioner. Reported below: 299 N. Y. 126, 85 N. E. 2d 900. No. 674, Mise. Hall v. Illinois. Supreme Court of Illinois. Certiorari denied. No. 675, Mise. Tennant v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 676, Mise. Manning v. Illinois. Supreme Court of Illinois. Certiorari denied. No. 677, Mise. Cordts v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. No. 678, Mise. Williams v. New York. Supreme Court of New York. Certiorari denied. No. 679, Mise. Meyer v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. 950 OCTOBER TERM, 1948. June 20, 1949. 337 U. S. No. 680, Mise. Wilde v. Wyoming. Supreme Court of Wyoming. Certiorari denied. Rehearing Denied. No. 197. National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U. S. 217. Rehearing denied. No. 690. Smith v. California, 336 U. S. 957. Motion for leave to file petition for rehearing denied. No. 719. Kelly, Administrator, et al. v. Shamrock Oil & Gas Corp., 337 U. S. 917. The motion for an extension of time within which to file petition for rehearing is granted and the petition is denied. No. 720. Thys et al., doing business as Thys & Miller, v. State of Washington, 337 U. S. 917. Rehearing denied. No. 721. Francis v. United States, 337 U. S. 918. Rehearing denied. No. 338, Mise. Gann v. Hiatt, Warden, 337 U. S. 920. Rehearing denied. No. 472, Mise. MacKenna v. New York, 336 U. S. 969. Rehearing denied. No. 580, Mise. D’Ostroph v. United States Court of Appeals for the Eighth Circuit et al., 337 U. S. 926. Rehearing denied. No. 550, Mise. Morant v. New York, 337 U. S. 909. Motion for leave to file petition for rehearing denied. DECISIONS PER CURIAM ETC. 951 337 U. S. June 27, 1949. June 27, 1949. Per Curiam Decisions. No. 43. Central States Cooperatives, Inc. v. Watson Bros. Transportation Co., 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 is vacated and the cause is remanded to that court for further consideration in the light of National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582. Thomas G. McBride and George E. Billett for petitioner. Julius L. Sherwin and Theodore R. Sherwin for respondent. Reported below: 165 F. 2d 392. No. 493. United States Gypsum Co. v. Glander, Tax Commissioner. Appeal from the Supreme Court of Ohio. Per Curiam: The judgment of the Supreme Court of Ohio is vacated and the cause is remanded to that court in order to enable it to reexamine its decision in the light of Wheeling Steel Corp. n. Glander, 337 U. S. 562. Mr. Justice Black dissents. Charles M. Price and Clarence D. Laylin for appellant. Reported below: 150 Ohio St. 229, 80 N. E. 2d 863. No. 494. United States Gypsum Co. v. Glander, Tax Commissioner. Appeal from the Supreme Court of Ohio. Per Curiam: Judgment reversed. Wheeling Steel Corp. v. Glander, 337 U. S. 562. Mr. Justice Black dissents. Charles M. Price and Clarence D. Laylin for appellant. Reported below: 150 Ohio St. 229, 80 N. E. 2d 863. No. 604. Ajax Trucking Co., Inc. v. Browne et al., CONSTITUTING THE STATE TAX COMMISSION. Appeal from the Court of Appeals of New York. Per Curiam: The appeal is dismissed. Matson Navigation Co. v. State 837446 0—49--59 952 OCTOBER TERM, 1948. June 27, 1949. 337 U. S. Board of Equalization, 297 U. S. 441. Sidney Meyers for appellant. Reported below: 298 N. Y. 736, 83 N. E. 2d 144. No. 749. Great Lakes Steel Corp. v. United States et al. Appeal from the United States District Court for the Eastern District of Michigan. Per Curiam: Judgment reversed. United States v. Interstate Commerce Comm’n, 337 U. S. 426. Mr. Justice Frankfurter, Mr. Justice Jackson, and Mr. Justice Burton dissent for reasons stated in the dissenting opinion in United States v. Interstate Commerce Comm’n, 337 U. S. 426, 444. Sherwin A. Hill, Edward T. Goodrich, James McEvoy, Jr. and Harry D. Fenske for appellant. Solicitor General Perlman for the United States; Daniel W. Knowlton, Edward M. Reidy and Daniel H. Kunkel for the Interstate Commerce Commission; and W. T. Pierson and Frank H. Cole, Jr. for the Baltimore & Ohio Railroad Co. et al., appellees. Reported below: 81 F. Supp. 450. Miscellaneous Orders. No. 12, Original. United States v. California. The report of the Special Master is received and ordered filed. No. 12, Original. United States v. California. The order of February 12, 1949, appointing William H. Davis, Esquire, of New York City, Special Master herein is continued and he is directed to proceed with all convenient speed, with respect to the seven coastal segments enumerated in Groups I and II of the Master’s Report, to consider: (1) a simplification of the issues; (2) statements of the issues and amendments thereto in the nature of pleadings; (3) the nature and form of evidence proposed to be submitted, including admission of facts and of documents which will avoid unnecessary proof; and report thereon to the Court. DECISIONS PER CURIAM ETC. 953 337 U. S. June 27, 1949. Should the office of Master become vacant during the recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein. Mr. Justice Jackson took no part in the consideration or decision of this question. No. 386. Clark, Attorney General, as Successor to the Alien Property Custodian, v. Manufacturers Trust Co.; and No. 443. Manufacturers Trust Co. v. Clark, Attorney General, as Successor to the Alien Property Custodian. The motions for leave to file petitions for rehearing are granted and the petitions for rehearing are granted. The orders entered January 17, 1949, denying certiorari, 335 U. S. 910, are vacated and the petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit are granted. Solicitor General Perlman for petitioner in No. 386 and respondent in No. 443. Lester E. Denonn and Henry Landau for respondents in No. 386 and petitioner in No. 443. Reported below: No. 386, 169 F. 2d 932. No. 683, Mise. Edgeman v. Ohio et al. ; and No. 689, Mise. Brown v. Minnesota. The motions for leave to file petitions for writs of habeas corpus are denied. No. 686, Mise. In re Felsch. Treating the application in this case as a motion for leave to file a petition 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 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. 954 OCTOBER TERM, 1948. June 27, 1949. 337U. S. United States, 332 U. S. 789 (1947); Brandt v. 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 motion for leave to file the petition in order to settle what remedy, if any, the petitioner has. Mr. Justice Jackson took no part in the consideration or decision of this application. Certiorari Granted. (See also Nos. /¡S, 386 and ^3, supra.} No. 436. Dennis v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted limited to the question whether government employees could properly serve on the jury which tried petitioner. Mr. Justice Burton took no part in the consideration or decision of these applications. Earl Dickerson and Harry Sacher for petitioner. Solicitor General Perlman, Robert S. Erdahl and Beatrice Rosenberg for the United States. Arthur G. Silverman filed a brief for the National Lawyers Guild, as amicus curiae, supporting the petition. Reported below: 84 U. S. App. D. C. 31,171 F. 2d 986. . No. 452. Graham et al. v. Brotherhood of Locomotive Firemen & Enginemen. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. The motion of petitioners to vacate the stay and to reinstate the injunction is denied. Joseph L. Rauh, Jr., Irving J. Levy and Henry Epstein for petitioners. Lester P. Schoene, Milton Kramer, Harold C. Heiss and Russell B. Day for respondent. Solicitor General Perlman and Robert L. Stern filed a brief for the United States, as amicus curiae, supporting the petition. Reported below: 84 U. S. App. D. C. 67, 175 F. 2d 802. DECISIONS PER CURIAM ETC. 955 337U.S. June 27, 1949. No. 783. Sinclair v. United States. C. A. 3d Cir. Certiorari granted. David Berger for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Israel Convisser for the United States. Reported below: 174 F. 2d 933. No. 787. Manning, Collector of Internal Revenue, v. Seeley Tube & Box Co. C. A. 3d Cir. Certiorari granted. Solicitor General Perlman for petitioner. Nathan Bilder and George G. Tyler for respondent. Reported below: 172 F. 2d 77. No. 809. Aaron et al. v. Ford, Bacon & Davis, Inc. C. A. 8th Cir. Certiorari granted. Paul E. Talley, Charles H. Earl, Cooper Jacoway and June P. Wooten for petitioners. Grover T. Owens and E. L. McHaney, Jr. for respondent. Solicitor General Perlman and Wi7-liam S. Tyson filed a brief for the United States, as amicus curiae, supporting the petition. Reported below: 174 F. 2d 730. No. 817. United States ex rel. Willumeit v. Watkins, District Director, Immigration & Naturalization Service. C. A. 2d Cir. Certiorari granted. William Dean Embree for petitioner. Solicitor General Perlman for respondent. Reported below: 171 F. 2d 773. No. 260. United States ex rel. Eichenlaub v. Watkins, District Director of Immigration & Naturalization. The order entered November 15, 1948, denying certiorari, 335 U. S. 867, is vacated. The petition for writ of certiorari to the United States Court of Appeals for the Second Circuit is granted. Charles E. Wallington for petitioner. Solicitor General Perlman, Robert S. Erdahl and Josephine H. Klein for respondent. Reported below: 167 F. 2d 659. 956 OCTOBER TERM, 1948. June 27, 1949. 337 U. S. Certiorari Denied. No. 71. Fong et al. v. Superior Court of Washington for King County et al. Supreme Court of Washington. Certiorari denied. John J. Kennett for petitioners. Reported below: 29 Wash. 2d 601, 188 P. 2d 125. No. 178. United States ex rel. Sutton v. Mulcahy, United States Marshal, et al. C. A. 2d Cir. Certiorari denied. Burton B. Turkus for petitioner. George A. Ferris for respondents. Reported below: 169 F. 2d 94. No. 391. A. F. Wagner Iron Works et al. v. War Assets Administration et al. C. A. 7th Cir. Certiorari denied. Harold W. Norman for petitioners. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Alvin 0. West for respondents. No. 509. Kohl v. Commissioner of Internal Revenue. C. A. 8th Cir. Certiorari denied. Tyrrell M. Ingersoll and Charles T. Akre for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Harry Baum for respondent. Reported below: 170 F. 2d 531. No. 525. Moore v. Commissioner of Internal Revenue. C. A. 4th Cir. Certiorari denied. Walter H. Liebman for petitioner. Solicitor General Perlman, As-sistant Attorney General Caudle, Ellis N. Slack and Harry Baum for respondent. Reported below: 170 F. 2d 191. No. 641. Becker v. Virginia. Supreme Court of Appeals of Virginia. Certiorari denied. Thomas H. Willcox and Harry H. Kanter for petitioner. Reported below: 188 Va. Ixv. DECISIONS PER CURIAM ETC. 957 337 U. S. June 27, 1949. No. 675. Polizio v. New York. Court of Appeals of New York. Certiorari denied. Edward H. Levine for petitioner. Howard R. Lonergan for respondent. Reported below: 298 N. Y. 814, 83 N. E. 2d 861. No. 703. Stinnett v. United States. C. A. 4th Cir. Certiorari denied. George E. Allen for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, James M. McInerney and Ellis N. Slack for the United States. Reported below: 173 F. 2d 129. No. 779. Paterno et al. v. United States. C. A. 5th Cir. Certiorari denied. Anthony A. Calandra for petitioners. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Andrew F. Oehmann for the United States. Reported below: 173 F. 2d 757. No. 781. Duncan, Transferee, v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. J. B. Lewright for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Irving I. Axelrad for respondent. Reported below: 173 F. 2d 218. No. 784. Campbell v. United States. C. A. 5th Cir. Certiorari denied. Benj. B. Taylor, C. V. Porter, L. W. Brooks and Benj. B. Taylor, Jr. for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Morton Hollander for the United States. Reported below: 172 F. 2d 500. No. 795. Fainblatt v. Commissioner of Internal Revenue; and No. 796. Fainblatt v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Mark H. Johnson for petitioners. Solicitor General Perlman, As- 958 OCTOBER TERM, 1948. June 27, 1949. 337 U. S. sistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Morton K. Rothschild for respondent. Reported below: 172 F. 2d 389. No. 799. Graylyn Bainbridge Corp. v. Woods, Housing Expediter. C. A. 8th Cir. Certiorari denied. William G. Boatright for petitioner. Solicitor General Perlman, John R. Benney, Ed Dupree, Hugo V. Prucha and Nathan Siegel for respondent. Reported below: 173 F. 2d 790. No. 804. Missouri-Kansas-Texas Railroad Co. v. United States ex rel. Deavers. C. A. 5th Cir. Certiorari denied. C. S. Burg, M. E. Clinton, Dan Moody and J. B. Robertson for petitioner. Solicitor General Perlman, Newell A. Clapp and Samuel D. Slade for respondent. Reported below: 171 F. 2d 961. No. 810. Carter Oil Co. v. Ramsey et al. C. A. 7th Cir. Certiorari denied. William M. Acton for petitioner. Charles Wham for respondents. Reported below: 172 F. 2d 622. No. 818. Farmakis v. Farmakis et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. David Rein for petitioner. Solicitor General Perlman for the United States; and Warren E. Miller and David S. Allshouse for Farmakis, respondents. Reported below: 84 U. S. App. D. C. 297, 172 F. 2d 291. No. 845. Eisler v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. David Rein, Abraham J. Isserman, Carol King and Joseph Forer for petitioner. Solicitor General Perlman for the United States. Reported below: 84 U. S. App. D. C. 404,176 F. 2d 21. DECISIONS PER CURIAM ETC. 959 337U.S. June 27, 1949. No. 860. Empire Packing Co. et al. v. United States. C. A. 7th Cir. Certiorari denied. Michael F. Mulcahy and Henry W. Dieringer for petitioners. Solicitor General Perlman for the United States. Reported below: 174 F. 2d 16. No. 877. Keating v. United States. C. A. 7th Cir. Certiorari denied. Maurice J. Walsh for petitioner. Solicitor General Perlman for the United States. No. 520. Commissioner of Internal Revenue v. Hartz. C. A. 8th Cir. Certiorari denied. Mr. Justice Black is of the opinion the petition should be granted. Solicitor General Perlman for petitioner. Donald B. Smith for respondent. Reported below: 170 F. 2d 313. No. 843. Fitz Simons & Connell Dredge & Dock Co. v. Mullen; and No. 844. Fitz Simons & Connell Dredge & Dock Co. v. Savela. C. A. 7th Cir. Certiorari denied. Edward B. Hayes for petitioner. Irving Breakstone for respondents. Reported below: 172 F. 2d 601. No. 186, Mise. Palardy v. American-Hawaiian Steamship Co. C. A. 3d Cir. Certiorari denied. Abraham E. Freedman for petitioner. Thomas E. Byrne, Jr. for respondent. Abraham M. Fisch filed a brief for the International Longshoremen’s Association, as amicus curiae, supporting the petition. Reported below: 169 F. 2d 619. No. 291, Mise. Aird v. Weyerhaeuser Steamship Co. C. A. 3d Cir. Certiorari denied. Abraham E. Freedman for petitioner. Thomas E. Byrne, Jr. for respondent. Reported below: 169 F. 2d 606. 960 OCTOBER TERM, 1948. June 27, 1949. 337 U.S. No. 634, Mise. Thomas v. Furness (Pacific) Limited et al. C. A. 9th Cir. Certiorari denied. Herbert Resner for petitioner. Farnham P. Griffiths for respondents. Reported below: 171 F. 2d 434. No. 651, Mise. McDonald v. Swope, Warden. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman for respondent. Reported below: 173 F. 2d 852. No. 671, Mise. McCormick v. Michigan. Supreme Court of Michigan. Certiorari denied. No. 681, Mise. Hinton v. Reid, Superintendent. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. T. Emmett McKenzie for petitioner. No. 682, Mise. Bramble v. California et al. Supreme Court of California. Certiorari denied. No. 684, Mise. Westbrook v. Ragen, Warden. Circuit Court of Christian County, Illinois. Certiorari denied. No. 685, Mise. Maimone v. United States. C. A. 2d Cir. Certiorari denied. No. 687, Mise. Kamrowski v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 688, Mise. Bassinger v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 403 Ill. 108, 85 N. E. 2d 758. DECISIONS PER CURIAM ETC. 961 337U.S. June 27, 1949. No. 690, Mise. Holderfield v. Ragen, Warden. Circuit Court of Franklin County, Illinois. Certiorari denied. No. 691, Mise. United States ex rel. Rooney et al. v. Ragen, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 173 F. 2d 668. No. 692, Mise. Collins v. Duffy, Warden. Supreme Court of California. Certiorari denied. Rehearing Granted. {See Nos. 386 and supra.) Rehearing Denied. No. 156. Donovan v. Queensboro Corporation et al.; and No. 49, Mise. Donovan v. Queensboro Corporation et al., 335 U. S. 804. Motion for leave to file petition for rehearing denied. No. 513. Burnham Chemical Co. v. Borax Consolidated, Ltd. et al., 336 U. S. 924. The motion for an extension of time within which to file a second petition for rehearing is denied. No. 647. Momand v. Universal Film Exchanges, Inc. et al., 336 U. S. 967. Second petition for rehearing denied. No. 671. Williams v. New York, 337 U. S. 241. Petition for rehearing and motion for a stay of mandate denied. No. 708. Sonnesen v. Panama Transport Co., 337 U. S. 919. The motion to enlarge the time to file petition for rehearing is denied. 962 OCTOBER TERM, 1948. June 27, 1949. 337 U. S. No. 805. Doles v. Metropolitan Life Insurance Co., 337 U. S. 922. Rehearing denied. No. 425, Mise. Hasson v. United States, 337 U. S. 932. Rehearing denied. No. 437, Mise. Tate v. California, 337 U. S. 903. Rehearing denied. No. 489, Mise. Butler v. Penix, Receiver, 337 U. S. 926. Rehearing denied. rr, I© »H CO CO «O C0 "2 00 O CO 00 rH b- CO r—< 2? CO Tf rH Tf Ci °* Q Q 3 < t>. Ç0 T—t *S 1 ’2 • 1 Qj á S g !g|| ; Q Ë 2 co th I o g ! § 11 Î 3 g 22 g ! « d pá - g g s ® g : r-T-, K ------------------- <« S q o o ¡ po ao ci b- ci ° “ o ö ! 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