UNITED STATES REPORTS VOLUME 339 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1949 From February 20, 1950, Through June 5, 1950 (End of Term) WALTER WYATT REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1950 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $3.75 (Buckram) 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 O. DOUGLAS, Associate Justice. ROBERT H. JACKSON, Associate Justice. HAROLD H. BURTON, Associate Justice. TOM C. CLARK, Associate Justice. SHERMAN MINTON, Associate Justice. J. HOWARD McGRATH, Attorney General. PHILIP B. PERLMAN, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. WALTER WYATT, Reporter. THOMAS ENNALLS WAGGAMAN, Marshal. HELEN NEWMAN, Librarian. *The proceedings in the Supreme Court on May 8, 1950, in memory of Mr. Chief Justice Hughes are reported in 338 U. S., pp. XIII-XXVIII. ni 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, pursuant to Title 28, United States Code, section 42, and that such allotment be entered of record, viz: For the District of Columbia Circuit, Fred M. Vinson, Chief Justice. 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, Sherman Minton, Associate Justice. For the Eighth Circuit, Tom C. Clark, Associate Justice. For the Ninth Circuit, William 0. Douglas, Associate Justice. For the Tenth Circuit, Tom C. Clark, Associate Justice. October 14, 1949. (For next previous allotment, see 337 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............................. 497 Ackermann v. United States............................... 962 Adams v. Ragen........................................... 945 Adkins v. Du Pont de Nemours & Co........................ 935 Administrator. See name of administrator; Federal Security Administrator; Housing Expediter; Veterans’ Administration. Affolder v. New York, C. & St. L. R. Co................... 96 Agnew, American President Lines v........................ 951 Ahearn v. New York....................................... 969 Alabama, Arrington v................................... 950 Alabama, Ball v.......................................... 929 Alabama, Fitzhugh v...................................... 986 Albrecht v. Indiana Harbor Belt R. Co.................... 949 Alemite Company, Jiffy Lubricator Co. v................912,939 Allied Oil Corp. v. Socony-Vacuum Oil Co................. 938 Alltmont v. United States............................... 967 Almeida v. Pennsylvania.............................. 924,950 Aired v. Bennett......................................... 985 Aired v. United States................................... 921 Alvis, Burson v........................................ 969 American Bantam Car Co. v. Commissioner.................. 920 American Communications Assn. v. Douds............... 382,990 American Machine & Metals Co., De Bothezat Co. v....... 979 American President Lines v. Agnew........................ 951 American President Lines v. Federer...................... 951 American President Lines v. Griffin...................... 951 Anderson v. United States................................ 965 Anheuser-Busch, Inc. v. Du Bois Brewing Co........... 934,959 Arkansas, Rowland v.................................. 952,991 Arkansas, Smith v........................................ 916 Arlington, Inc. v. Mayer................................. 965 Arrington v. Alabama..................................... 950 Ashe, Campbell v....................................... 915,970 Ashe, Duffy v............................................ 971 v VI TABLE OF CASES REPORTED. Page Ashe, Gibbs v............................................. 961 Ashe, Hovis v............................................. 970 Ashe, McMorris v.......................................... 971 Ashe, Spencer v.......................................... 990 Atchison, T. & S. F. R. Co., Lyle v....................... 913 Atchison, T. & S. F. R. Co. v. Murphy..................... 918 Atlantic Coast Line R. Co. v. St. Joe Paper Co............ 929 Atlantic Coast Line R. Co. v. Scarborough................. 919 Atlantic Company, Citizens Ice & Cold Storage Co. v...... 953 Atlantic & Pacific Tea Co. v. Supermarket Corp............ 947 Atlantic Refining Co., Marron v........................... 923 Atlas Auto Rebuild, Teamsters Union v................. 470,991 Attorney General, Joint Anti-Fascist Committee v.......... 910 Attorney General v. Kristensen............................ 956 Attorney General, Lancaster v............................. 908 Attorney General, National Council of Friendship v....... 956 Attorney General v. Paramount Pictures.................... 953 Attorney General, Wong Yang Sung v....................... 33,908 Automatic Radio Mfg. Co. v. Hazeltine Research............ 827 Automobile Drivers Union v. Cline.................... 470,991 Automobile Workers v. O’Brien............................. 454 Avelino v. Heinze......................................... 916 Bailey v. Heinze.......................................... 905 Bailey v. Richardson...................................... 977 Baker v. California....................................... 954 Baker v. Kentucky......................................... 915 Baldi, Henry v............................................ 970 Baldi, Mills v............................................ 986 Baldwin v. Hiatt.......................................... 969 Balkcom, Solesbee v..................................... 9,926 Ball v. Alabama........................................... 929 Ball v. Moore........................................... 958 Ball, Paramount Pictures v................................ 911 Ball, Yates v............................................. 964 Baltimore & O. R. Co. v. Hopper Paper Co.................. 943 Banks v. Ragen............................................ 969 Banque Mellie Iran v. Bell........................ 841,902,909 Banque Mellie Iran v. Lyon........................ 841,902,909 Barker v. United States................................... 968 Barnes v. Illinois........................................ 944 Barsky v. United States................................... 971 Bary v. United States..................................... 958 Basalt Rock Co., Commissioner v........................... 966 Baumet v. United States............................... 923,973 TABLE OF CASES REPORTED. VII Page Becker v. Solomon......................................... 937 Beets v. Hunter........................................... 963 Behrle, London Guarantee & Accident Co. v................. 928 Bell v. Banque Mellie Iran.......................... 841,902,909 Bell v. Singer.................................... 841,902,909 Bennett, Aired v.......................................... 985 Bennett, Mahon v....................................... 980 Berest, 4278 Hazel Building Corp, v....................... 961 Berlinsky v. Woods.................................... 949,991 Berman, Levine v.......................................... 982 Beverage v. Farm Bureau Auto. Ins. Co..................... 914 Biddle, Gregoire v........................................ 949 Bindrin v. Illinois....................................... 939 Bisiker v. Commissioner................................... 932 Blaksley v. Michigan...................................... 971 Blanchard Machine Co. v. R. F. C. Price Board............. 912 Bland v. Ellis............................................ 988 Blau v. United States..................................... 956 Block v. Detroit Harbor Terminals......................... 913 Blondin v. Massachusetts.................................. 984 Blue v. Ragen............................................ 939 Board of Censors of Memphis, United Artists Corp, v..... 952 Board of Regents of University v. Illinois................ 906 Board of Supervisors of Elections, Tedesco v.............. 940 Board of Trustees of Prison, Rash v....................... 962 Bond Bros., Louisville & Jefferson County Sewer Dist. v. 943 Borday v. Burke........................................... 924 Borelli, Sterba v......................................... 944 Boyle, Pine v............................................. 969 Breuner Co., Commissioner v............................... 967 Brice, Capitol Greyhound Lines v.......................... 542 Bridges v. North Carolina................................. 939 Bridges v. Ragen.......................................... 976 Britton, Minton v......................................... 992 Brock v. Solomon.......................................... 937 Brooks v. Ragen........................................... 924 Brooks v. St. Louis-San Francisco R. Co................... 966 Brooks, Spruill v......................................... 989 Brotherhood of Railroad Trainmen v. Conner................ 919 Brotherhood of Teamsters Union v. Hanke............... 470,991 Brown, Hiatt v........................................ 103,939 Brown v. Royall......................................... 952,991 Brown Shoe Co. v. Commissioner............................ 583 Bryan v. Georgia.......................................... 904 VIII TABLE OF CASES REPORTED. Page Bryan, United States v................................... 323,991 Buck, Snyder v.............................................. 951 Buffalo, Plainfield Hotel Corp, v........................... 942 Building Service Employees Union v. Gazzam.............. 532,991 Burchfield v. Hiatt........................................ 987 Burford, Darr v............................................. 200 Burford, O’Hara v........................................... 990 Burford, Plaine v........................................... 925 Burford, Story v............................................ 926 Burford, Wild v............................................. 939 Burke, Borday v............................................. 924 Burke, U. S. ex rel. Monaghan v............................. 909 Burlington Transportation Co. v. Stoltz..................... 929 Burnison, United States v.................................... 87 Burns v. Mutual Benefit Life Ins. Co........................ 947 Burson v. Alvis............................................. 969 Busch’s Kredit Jewelry Co., Commissioner v.................. 967 Bute v. Ragen............................................ 925 Buteau v. Connecticut....................................... 903 Byers v. Hunter............................................. 944 Byers v. Keech.............................................. 955 Byers v. Temple............................................. 987 Byers v. United States...................................... 976 California, Baker v...........i............................. 954 California, Ekberg v........................................ 969 California, Holt v....................................... 950 California, Leder v......................................... 962 California, Luse v.......................................... 908 California, Mitchell v...................................... 944 California, Moranda v....................................... 971 California, Sampsell v...................................... 990 California, Sewell v.............................i........ 958 California, United States v................................. 975 California, Young v.......................... >Si.......... 950 California-Michigan Land & Water Co. v. Pasadena......... 937 Cameron v. Shahedy.......................................... 909 Campbell v. Ashe......................................... 915,970 Capitol Greyhound Lines v. Brice............................ 542 Capitol Steel & Iron Co., Eckert-Fair Co. v................. 928 Caribe, Swift & Co. Packers v............................... 684 Carmichael, Schoeps v........"7............................. 914 Carpenter v. Erie R. Co..................................912,939 Carpenter v. North Carolina................................. 932 Carpet & Floor Decorators’ Union v. Day ton Co.............. 906 TABLE OF CASES REPORTED. IX Page Carroll v. Swenson......................................... 971 Carter v. Hoey............................................. 966 Cassell v. Texas........................................... 282 Castleman v. Overholser.................................... 976 Cates, Ellis v............................................. 964 Cawthorn v. United States.................................. 916 Central Hanover Bank & Trust Co., Mullane v................ 306 Chandler v. U. S. District Court........................... 976 Chapman, Parkerson v................................... 953 Chapman v. U. S. District Court............................ 976 Charles Peckat Mfg. Co., Jacobs v.......................... 915 Charter Oak Fire Ins. Co. v. Gerrity....................... 949 Cherney, Eagle v........................................... 906 Choolokian v. Mission of Immaculate Virgin................. 912 Church v. Michigan......................................... 918 Circuit Court Judge, Atchison, T. & S. F. R. Co. v......... 918 Circuit Court Judge, Southern R. Co. v..................... 918 Citizens Ice & Cold Storage Co. v. Atlantic Co............. 953 City. See name of city. Civil Aeronautics Board, Seaboard & Western Airlines v... 963 Civil Service Commissioners, Connelly v.................... 983 Civil Service Commissioners, Drury v...................... 983 Clark v. Order of United Commercial Travelers.............. 922 Clement v. Woods.................................. 911,939 Cline, Automobile Drivers Union v...................... 470,991 Coffing, Glover v.......................................... 904 Cohen v. United States............................. 914,920,936 Cohnstaedt v. Immigration & Naturalization Service....... 901 Coleman, Kadans v.......................................... 976 Collector, Continental Oil Co. v............i.............. 931 Collector, Phillips Petroleum Co. v........................ 904 Collector, Strong v........................................ 931 Collector of Internal Revenue. See Collector. Collins v. Letts........................................... 951 Columbia Steel Co., Washington v........................ 903 Commanding General, Murray v............................... 980 Commissioner, American Bantam Car Co. v.................... 920 Commissioner v. Basalt Rock Co............................. 966 Commissioner, Bisiker v.................................... 932 Commissioner v. Breuner Co................................. 967 Commissioner, Brown Shoe Co. v............................. 583 Commissioner v. Busch’s Kredit Jewelry Co.................. 967 Commissioner, Harris v................................. 917,946 Commissioner v. Korell..................................... 619 X TABLE OF CASES REPORTED. Page Commissioner, Marx v...................................... 964 Commissioner, Mathey v.................................... 943 Commissioner v. McKay Products Corp.................... 961 Commissioner, Phillips v.................................. 932 Commissioner, Phillips Estate v........................... 932 Commissioner, Piedmont Cotton Mills v.................... 919 Commissioner, Rheim v................................. 925,946 Commissioner, Shoong v.................................... 974 Commissioner, Sic v....................................... 913 Commissioner, Succop v.................................... 932 Commissioner, Transport, Trading & Terminal Corp, v.... 916 Commissioner of Internal Revenue. See Commissioner. Commissioner of Motor Vehicles, Capitol Greyhound Lines v. 542 Commission of Public Utilities v. N. Y., N. H. & H. R. Co.. 943,972 Commodities Trading Corp. v. United States............ 121,950 Commonwealth. See name of Commonwealth. Compagna v. Hiatt......................................... 955 Compania Colombiana Del Caribe, Swift & Co. Packers v.... 684 Connecticut, Buteau v..................................... 903 Connelly v. Hurley........................................ 983 Conner, Brotherhood of Railroad Trainmen v............... 919 Conner v. Pennsylvania R. Co.............................. 919 Consolidated Edison Co. v. Maltbie........................ 973 Consolidated Textile Co., Willis v........................ 957 Continental Oil Co. v. Jones.............................. 931 Corporation Comm’n, Travelers Health Assn, v.............. 643 Cotton Valley Operators Committee, United States v..... 940,972 County. See name of county. Couture v. Cranor......................................... 917 Cradle v. United States................................... 929 Crain v. United States.................................... 911 Cranor, Couture v......................................... 917 Cranor, Pierce v.......................................... 917 Crebs v. Hudspeth......................................... 970 Creel v. Lone Star Defense Corp........................... 497 Croessant v. United States................................ 927 Crombie v. Ragen.......................................... 921 Cromelin v. United States................................ 944 Crowe v. United States.................................... 916 Cubbier v. New Jersey................................. 939,959 Curtis v. United States................................... 965 Curtis Publishing Co., Pennsylvania v..................... 928 Dalton v. Florida......................................... 923 Daniels v. North Carolina................................. 954 TABLE OF CASES REPORTED. XI Page Darman v. New York....................................... 968 Darr v. Burford.......................................... 200 David H. Berman Co., Levine v............................ 982 Davis v. Prose........................................... 920 Davis v. Smyth........................................... 989 Davison v. United States................................. 968 Davison v. U. S. District Court.......................... 962 Dawson v. United States.................................. 985 Day ton v. Hunter........................................ 972 Dayton Co., Carpet & Floor Decorators’ Union v........... 906 De Bothezat Impeller Co. v. American Machine Co........ 979 De Korwin v. First National Bank......................... 982 De Korwin, Koch v........................................ 982 De Korwin, Pratt v... .•................................. 982 Delaware, L. & W. R. Co., Slocum v....................... 239 Dennis v. United States.............................. 162,950 Department of Utilities v. N. Y., N. H. & H. R. Co..... 943,972 Deputy Commissioner, Minton v............................ 992 De Sairigne v. Gould..................................... 912 Detroit Harbor Terminals, Block v........................ 913 Director of Revenue, Standard Dredging Corp, v........... 907 Di Silvestro v. U. S. Veterans’ Administration........... 989 District Commandant, U. S. Navy, Kelly v................. 922 District Court. See U. S. District Court. District Director of Immigration, Lee Wo Shing v......... 906 District Director of Immigration, Schoeps v................. 914 District Judge. See U. S. District Judge. District of Columbia v. Little............................. 1 Dorsey v. Stuyvesant Town Corp........................... 981 Douds, American Communications Assn, v............... 382,990 Douds, Osman v........................................... 846 Dover v. North Carolina.................................. 933 Drury v. Hurley.......................................... 983 Du Bois Brewing Co., Anheuser-Busch, Inc. v.......... 934,959 Duffy v. Ashe............................................ 971 Duffy, Epple v........................................... 946 Duffy, Swain v........................................... 976 Duggan, Magidson v....................................... 965 Dunaway v. Standard Oil Co............................... 965 Dunaway Corp. v. Hygienic Products Co.................... 948 Duncan Coffee Co. v. R. F. C........................... 947,991 Dunlevy v. Robinson...................................... 939 Du Pont de Nemours & Co., Adkins v....................... 935 Du Pont de Nemours & Co. v. United States................ 959 XII TABLE OF CASES REPORTED. Page Du Pont de Nemours & Co. v. U. S. District Court........... 941 DuPre, Shipman v........................................... 321 Duty v. Robinson........................................... 970 Eagle v. Chemey............................................ 906 East Ohio Gas Co., Federal Power Comm’n v.................. 905 East Side Canal & Irrigation Co., United States v.......... 978 E. B. Kaiser Co. v. Ric-Wil Co............................ 958 Eckert-Fair Construction Co. v. Capitol Steel Co........... 928 Eddy v. Prudence Bonds Corp................................ 941 Edmondston, Moody v........................................ 981 Edwards, Loomis v.......................................... 970 Ehrhardt, Johnson v........................................ 763 Eichenlaub v. United States................................ 983 Eidson, Frederick v....................................... 923 Eidson, Holland v.......................................... 936 Eidson, Potter v........................................... 937 E. I. Du Pont de Nemours & Co., Adkins v.................. 935 E. I. Du Pont de Nemours & Co. v. United States........... 959 E. I. Du Pont de Nemours & Co. v. U. S. District Court.. 941 Eisentrager, Johnson v..................................... 763 Ekberg v. California....................................... 969 Eleazer v. United States................................... 903 Election Board, Tedesco v.................................. 940 Ellis, Bland v........................................... 988 Ellis v. Cates............................................. 964 Emery Transportation Co. v. United States.............. 955,992 Emmerling v. Schroeder..................................... 978 Emmerling, Simonsen v...................................... 978 Epperson v. Moore....................................'.... 909 Epple v. Duffy............................................. 946 Erie R. Co., Carpenter v............................... 912,939 Erreca, United States v.................................... 725 Essex County Juvenile Court, Stizza v...................... 926 Estate. See name of estate. Evans v. Robinson.......................................... 985 Everhart v. Texas.......................................... 935 Ewing v. Mytinger & Casselberry............................ 594 Ewing, Willapoint Oysters, Inc. v.......................... 945 Ex parte. See name of party. Fagan, Timmons v........................................... 992 Falkenstein v. New York................................ 936,992 Farm Bureau Automobile Ins. Co., Beverage v.............. 914 Farnsworth v. Foster....................................... 961 Farval Corporation, Republic Steel Corp, v................. 938 TABLE OF CASES REPORTED. XIII Page Federal Power Comm’n v. East Ohio Gas Co..................... 905 Federal Power Comm’n, Iowa v................................. 979 Federal Power Comm’n, Safe Harbor Water Power Corp, v... 957 Federal Security Administrator v. Mytinger & Casselberry... 594 Federal Trade Comm’n, Standard Oil Co. v..................... 975 Federer, American President Lines v.......................... 951 Feiner v. New York........................................... 962 Felman v. United States...................................... 973 Feres v. United States....................................... 910 Ferguson v. Ferguson......................................... 916 Feuerstein, Kalb v........................................... 912 Figlia Mia Oil v. United States.............................. 963 Fireman’s Fund Ins. Co. v. McConnell......................... 952 Firemen’s Ins. Co. v. Smith.................................. 980 First National Bank, De Korwin v............................. 982 Fishermen & Allied Workers v. United States.................. 947 Fitzhugh v. Alabama.......................................... 986 Five Cases of Figlia Mia Oil v. United States................ 963 Fleet v. Swenson............................................. 976 Fleischman, United States v.............................. 349,991 Florida, Dalton v............................................ 923 Florida, Tillman v........................................... 976 Flowers v. Mississippi....................................... 946 Fogarty v. United States..................................... 909 Fontenot, Standard Dredging Corp, v........................ 907 Ford, Bacon & Davis, Aaron v................................. 497 4278 Hazel Building Corp. v. Berest.......................... 961 Foster, Farnsworth v......................................... 961 Foster, Schectman v.......................................... 924 Franklin v. Harper........................................... 946 Frantz v. United States...................................... 963 Frederick v. Eidson.......................................... 923 Gagnon v. Minnesota.......................................... 988 Gara v. United States........................................ 927 Gardner, Johnson v........................................... 935 Gaye tty, United States ...................................... 87 Gazzam, Building Service Employees Union v............... 532,991 Gellatly v. Wetmore.......................................... 905 General Steel Castings Corp. v. Kroese....................... 983 George v. Leonard............................................ 965 George Bennett Construction Co., Mahon v................ 980 Georgia, Bryan .............................................. 904 Georgia, Patterson v.................................. .. j.. 916 Georgia v. Pennsylvania R. Co................................ 975 XIV TABLE OF CASES REPORTED. Page Georgia Democratic Executive Committee, South v........ 276,959 Georgia Railroad & Banking Co. v. Redwine.............. 901 Gerlach Live Stock Co., United States v................... 725 Gerrity, Charter Oak Fire Ins. Co. v...................... 949 Gibbs v. Ashe............................................. 961 Givens v. Moll............................................ 964 Glissmann v. Omaha........................................ 960 Glover v. Coffing......................................... 904 Goodall v. United States.................................. 987 Gordon v. United States................................... 935 Gould, De Sairigne v...................................... 912 Grant v. Overholser....................................... 961 Graver Tank & Mfg. Co. v. Linde Air Products Co........... 605 Gray v. Oldland........................................... 948 Great A. & P. Tea Co. v. Supermarket Corp................. 947 Green, Rowe v......................................... 935,973 Gregoire v. Biddle........................................ 949 Griffin, American President Lines v....................... 951 Griffin v. United States.................................. 916 Griggs, United States v................................... 951 Gusik v. Schilder......................................... 977 Gutowsky, Jones v......................................... 948 Hackworth v. Hiatt........................................ 962 Haines v. Ragen........................................... 917 Hale, Kronberg v.......................................... 969 Hamby v. Ragen............................................ 905 Hammond, Lancaster v...................................... 908 Hampton v. Virginia....................................... 989 Handwork v. Young..................................... 949,991 Hanke, Brotherhood of Teamsters Union v............... 470,991 Hans, In re............................................... 976 Harper, Franklin v........................................ 946 Harris v. Commissioner................................ 917,946 Harris v. Illinois........................................ 989 Harris v. Robinson........................................ 971 Harrod v. Kentucky........................................ 915 Hart v. United States..................................... 985 Hartford Fire Ins. Co. v. Roberto......................... 920 Harty, Logan v......................................... 989 Hawk v. Nebraska.......................................... 923 Hazel Building Corp. v. Berest............................ 961 Hazeltine Research, Automatic Radio Mfg. Co. v............ 827 Heinze, Avelino v......................................... 916 Heinze, Bailey v.......................................... 905 TABLE OF CASES REPORTED. xv Page Heinze, Porter v......................................... 961 Heinze, Tate v....................................... 926,950 Helm v. Nevada........................................... 942 Henderson v. United States........................... 816,963 Henjes v. United States.................................. 978 Henry v. Baldi........................................... 970 Henry E. Jacobs & Co. v. Peckat Mfg. Co.................. 915 Hiatt, Baldwin v......................................... 969 Hiatt v. Brown....................................... 103,939 Hiatt, Burchfield v...................................... 987 Hiatt, Compagna v........................................ 955 Hiatt, Hackworth v....................................... 962 Hiatt, Jackson v......................................... 968 Hiatt, Krause v.......................................... 988 Hiatt, McCormack v....................................... 904 Hiatt, McGough v......................................... 921 Hiatt, St. Clair v....................................... 967 Hill, Oden v............................................. 987 Hillebrecht, Victor v.................................... 980 Hobbs v. Swenson........................................ 946 Hoey, Carter v........................................... 966 Hoey, Simon v............................................ 966 Hoffman v. O’Brien....................................... 955 Hoffpauir v. Hoxsey...................................... 953 Holiday v. Maryland...................................... 971 Holland v. Eidson........................................ 936 Holmes v. Swenson........................................ 936 Holmes v. United States.............................. 927,954 Holt v. California....................................... 950 Holt, Smith v........................................ 938,992 Holt v. United States.................................... 922 Hopkins v. Maryland...................................... 940 Hopper Paper Co., Baltimore & Ohio R. Co. v.............. 943 Horner v. United States.................................. 916 Housing Expediter, Berlinsky v....................... 949,991 Housing Expediter, Clement v......................... 911,939 Housing Expediter, Snyder v.............................. 930 Housing Expediter, Tamez v............................... 942 Hovis v. Ashe............................................ 970 Howe, Insurance Company of North America v............... 948 Hoxsey, Hoffpauir ....................................... 953 Hudson v. United States.................................. 981 Hudspeth, Crebs ......................................... 970 Hughes v. Superior Court................................. 460 XVI TABLE OF CASES REPORTED. Page Humphrey, Lowe v............................................. 962,988 Hunter, Beets v................................................. 963 Hunter, Byers v................................................. 944 Hunter, Dayton v................................................ 972 Hunter, Kissinger v............................................. 902 Hunter, McMahan v............................................... 968 Hunter, Powers v................................................ 986 Hunter, Simmons v............................................... 968 Huntington Palisades Property Corp. v. Finance Corp.......... 980 Hurley, Connelly v.............................................. 983 Hurley, Drury v................................................. 983 Hygienic Products Co. v. Judson Dunaway Corp.................... 948 Hyman v. Velsicol Corp........................................ 966 Illinois, Barnes v.............................................. 944 Illinois, Bindrin v............................................. 939 Illinois, Board of Regents of University v...................... 906 Illinois, Harris v.............................................. 989 Illinois, Marino v.............................................. 921 Illinois, Moore v............................................... 924 Illinois, Paquette v............................................ 976 Illinois, Seger v............................................... 936 Illinois, Valecek v............................................. 925 Illinois, Varela v............................................. 936 Illinois, Williams v............................................ 971 Illinois ex rel. Marino v. Ragen................................ 921 Immigration Director. See District Director of Immigration. Immigration & Naturalization Service, Cohnstaedt v........... 901 Indiana, Johnson v.............................................. 970 Indiana, Marshall v............................................. 970 Indiana, Rivers v............................................... 944 Indiana Harbor Belt R. Co., Albrecht v.......................... 949 Indiana State Prison Board, Rash v.............................. 962 In re. See name of party. Insurance Company of North America v. Howe...................... 948 International Brotherhood of Teamsters v. Hanke.............. 470,991 International Fishermen Local 36 v. United States............ 947 International Union of Auto. Workers v. O’Brien................. 454 Iowa v. Federal Power Comm’n.................................... 979 Iowa, Linnaberry v.............................................. 915 Iowa-Wisconsin Bridge Co., United States v...................... 982 Jackson v. Hiatt................................................ 968 Jackson v. Ruthazer............................................. 980 Jackson, Spillmann v........................................ 941,973 Jackson v. United States........................................ 981 TABLE OF CASES REPORTED. XVII Page Jackson v. Vance......................................... 937 Jackson & Co. v. Royal Norwegian Government.............. 914 Jackson & Horan v. Vance................................. 937 Jacobs v. Peckat Mfg. Co................................ 915 Jacques, Slade v......................................... 941 James v. Ragen........................................... 926 James v. United States................................... 922 James J. Stevinson, Inc., United States v................ 725 Jefferson v. United States............................... 910 Jeronis v. Michigan...................................... 930 Jiffy Lubricator Co. v. Alemite Co................... 912,939 John Breuner Co., Commissioner v........................ 967 Johnson v. Eisentrager................................... 763 Johnson v. Gardner....................................... 935 Johnson v. Indiana....................................... 970 Johnson, Madsen v.................................... 975,983 Johnson, Nelson v.................................... 957,991 Johnson v. Ragen......................................... 905 Johnson & Johnson, Montmarquet v....................... 979 Joint Anti-Fascist Refugee Committee v. McGrath.......... 910 Jones, Continental Oil Co. v............................ 931 Jones v. Gutowsky........................................ 948 Jones, Phillips Petroleum Co. v.......................... 904 Jones v. United States................................... 922 Judson Dunaway Corp. v. Hygienic Products Co............. 948 Kadans v. Coleman........................................ 976 Kaiser Co. v. Ric-Wil Co................................. 958 Kalb v. Feuerstein....................................... 912 Kamp v. United States.................................... 957 Kansas City Life Ins. Co., United States v............... 799 Keech, Byers ............................................ 955 Keith v. Miller...................................... 946,989 Keith v. Wyoming......................................... 970 Kelly v. District Commandant, U. S. Navy................. 922 Kemmerer v. Michigan..................................... 989 Kent v. Michigan......................................... 938 Kentucky, Baker ......................................... 915 Kentucky, Harrod ........................................ 915 Keokuk Steel Casting Co. v. Lawrence..................... 931 Keyes v. Madsen.......................................... 928 Killinger, Lowe ...................................... 949,972 King v. United States.................................... 964 Kinney v. United States.................................. 922 Kissinger v. Hunter...................................... 902 874433 0—50----2 XVIII TABLE OF CASES REPORTED. Page Kjar v. United States..................................... 942 Kleinbord v. United States................................ 958 Knight, United States v.................................. 978 Koch v. De Korwin......................................... 982 Korell, Commissioner v.................................... 619 Krause v. Hiatt........................................... 988 Kristensen, McGrath v..................................... 956 Kroese, General Steel Castings Corp, v.................... 983 Kronberg v. Hale.......................................... 969 Labor Board, American Communications Assn, v........... 382,990 Labor Board, La Salle Steel Co. v......................... 963 Labor Board v. Mexia Textile Mills........................ 563 Labor Board, National Maritime Union v.................... 926 Labor Board, Osman v...................................... 846 Labor Board v. Pittsburgh Steamship Co.................... 951 Labor Board v. Pool Manufacturing Co...................... 577 Labor Board, United Steelworkers v..................... 382,990 Labor Board, Universal Camera Corp, v.................... 962 Labor Board Director, American Communications Assn, v.. 382,990 Lammers v. United States.................................. 976 Lamora v. Ohio............................................ 987 Lancaster v. Hammond...................................... 908 Lancour v. Michigan....................................... 902 Langford v. United States................................. 938 La Salle Steel Co. v. Labor Board......................... 963 Lawrence, Keokuk Steel Casting Co. v..................... 931 Lawson v. United States............................... 934,972 Leder v. California....................................... 962 Lee v. Pan American Airways.............................. 920 Lee Wo Shing v. Shaughnessy............................... 906 Leonard, George v......................................... 965 Letts, Collins v.......................................... 951 Levine v. Berman.......................................... 982 Lewis v. Ragen............................................ 968 Libby, McNeill & Libby v. United States................... 977 Licznerski v. United States............................... 987 Linde Air Products Co., Graver Tank & Mfg. Co. v.,........ 605 Linnaberry v. Iowa........................................ 915 Little, District of Columbia v.............................. 1 Litton v. United States................................... 921 L. N. Jackson & Co. v. Royal Norwegian Government....... 914 Local 36, Fishermen & Allied Workers v. United States... 947 Loew’s, Inc. v. United States............................. 974 Logan v. Harty............................................ 989 TABLE OF CASES REPORTED. xix Page London Guarantee & Accident Co. v. Behrle................. 928 Lone Star Defense Corp., Creel v.......................... 497 Loomis v. Edwards......................................... 970 Lord Manufacturing Co. v. United States................... 956 Loucopantis v. The Olympos................................ 933 Louisiana, Simpson v...................................... 929 Louisiana, United States v................................ 699 Louisiana, Wagner v....................................... 917 Louisiana ex rel. Fontenot, Standard Dredging Corp, v. 907 Louisville & Jefferson County Sewer Dist. v. Bond Bros......... 943 Lowe v. Humphrey..................................... 962,988 Lowe v. Killinger..................................... 949,972 Lowrey v. United States................................... 969 Luse v. California........................................ 908 Lyle v. Atchison, T. & S. F. R. Co........................ 913 Lynch v. United States.................................... 981 Lyon v. Banque Mellie Iran........................ 841,902,909 Lyon v. Singer.................................... 841,902,909 Lyons, Rheim v........................................ 925,946 Mac. See also Me. MacDonald v. United States................................ 911 Madsen v. Johnson..................................... 975,983 Madsen, Keyes v........................................ 928 Magidson v. Duggan........................................ 965 Mahana v. United States................................... 978 Mahon v. Bennett.......................................... 980 Majestic Amusement Co., Steinway v...................... 947 Maltbie, Consolidated Edison Co. v............ 973 Maneja, Waialua Agricultural Co. v........................ 920 Mansavage v. United States................................ 931 Marino v. Illinois........................................ 921 Marino v. Ragen........................................... 921 Maritime Union v. Labor Board............................. 926 Marks v. Ragen............................................ 926 Marron v. Atlantic Refining Co............................ 923 Marshall v. Indiana....................................... 970 Marshall v. United States............................. 933,959 Martin v. United States................................... 957 Marx v. Commissioner...................................... 964 Maryland, Holiday ........................................ 971 Maryland, Hopkins ........................................ 940 Maryland, Winkler ........................................ 919 Masi, Mestice ........................................ 921,946 Massachusetts, Blondin ................................... 984 XX TABLE OF CASES REPORTED. Page Massachusetts, Melanson v............................... 984 Massachusetts, Morin v.................................. 984 Massachusetts Util. Comm’n v. N. Y., N. H. & H. R. Co... 943,972 Masterson v. United States.............................. 988 Mathey v. Commissioner.................................. 943 Matthews v. United States............................... 910 Mayer, Arlington, Inc. v................................ 965 Mayfield, Missouri ex rel. Southern R. Co. v............ 918 Me. See also Mac. McClannahan v. Michigan................................. 984 McConnell, Fireman’s Fund Ins. Co. v................... 952 McCormack v. Hiatt...................................... 904 McCullough v. New York.................................. 924 McDonald, Whelchel v.................................... 977 McGarty v. O’Brien...................................... 966 McGee v. Mississippi.................................... 958 McGough v. Hiatt........................................ 921 McGrath, Joint Anti-Fascist Refugee Committee v......... 910 McGrath v. Kristensen................................... 956 McGrath, National Council of American-Soviet Friendship v. 956 McGrath v. Paramount Pictures........................... 953 McGrath, Wong Yang Sung v............................. 33,908 McIntosh v. United States............................... 967 McKay Products Corp., Commissioner v.................... 961 McLaughlin, Ruoff v..................................... 930 McLaurin v. Oklahoma State Regents...................... 637 McMahan v. Hunter....................................... 968 McMorris v. Ashe........................................ 971 Melanson v. Massachusetts............................... 984 Memphis Board of Censors, United Artists Corp, v........ 952 Mestice v. Masi..................................... 921,946 Metropolitan Finance Corp., Huntington Palisades Corp, v... 980 Mexia Textile Mills, Labor Board v....................... 563 Meyer, Vermillion v................................. 915,973 Meyers v. Ragen......................................... 924 Meyers v. United States................................. 983 Michigan, Blaksley v................................... 971 Michigan, Church v...................................... 918 Michigan, Jeronis v..................................... 930 Michigan, Kemmerer v................................. 989 Michigan, Kent v........................................ 938 Michigan, Lancour v..................................... 902 Michigan, McClannahan v................................. 984 Michigan, Nonn v........................................ 925 TABLE OF CASES REPORTED. XXI Page Michigan, Null v........................................... 924 Michigan, Pardee v......................................... 961 Michigan, Quicksail v...................................... 660 Michigan, Reed v........................................... 988 Michigan, Wade v....................................... 954,991 Michigan, Walshfer v.................................. 971,976 Miller, Keith v........................................ 946,989 Miller v. Spokane.......................................... 907 Mills v. Baldi............................................. 986 Minneapolis Street R. Co. v. Minneapolis................... 907 Minnesota, Gagnon v........................................ 988 Minton v. Britton.......................................... 992 Mission of Immaculate Virgin, Choolokian v................. 912 Mississippi, Flowers v..................................... 946 Mississippi, McGee v....................................... 958 Missouri, Thomasson v...................................... 938 Missouri ex rel. A., T. & S. F. R. Co. v. Murphy........... 918 Missouri ex rel. Southern R. Co. v. Mayfield............... 918 Missouri Pacific R. Co., Reider v...................... 113,936 Mitchell v. California..................................... 944 Mitchell v. White Consolidated, Inc........................ 913 M. & M. Transportation Co. v. New York City................ 948 Moll, Givens v............................................. 964 Monaghan v. Burke.......................................... 909 Monolith Portland Midwest Co. v. R. F. C............... 932,954 Montmarquet v. Johnson & Johnson........................... 979 Moody v. Edmondston........................................ 981 Moore, Ball v.............................................. 958 Moore, Epperson v.......................................... 909 Moore v. Illinois.......................................... 924 Moore v. Shuttleworth...................................... 987 Morairty v. Mutual Life Ins. Co............................ 937 Moranda v. California...................................... 971 Morford v. United States................................... 258 Morhous, Treadway v........................................ 924 Morin v. Massachusetts.................................... 984 Morton v. Steele........................................... 969 Moss v. Steele............................................. 976 Moss v. United States...................................... 922 Mullane v. Central Hanover Bank & Trust Co................. 306 Munsingwear, Inc., United States .......................... 941 Murphy, Missouri ex rel. Atchison, T. & S. F. R. Co. v... 918 Murphy, Overlakes Freight Corp, ........................... 913 Murray v. Wedemeyer........................................ 980 XXII TABLE OF CASES REPORTED. Page Mutual Benefit Life Ins. Co., Bums v...................... 947 Mutual Life Ins. Co., Morairty v.......................... 937 Mutual Life Ins. Co., Wilmington Trust Co. v.............. 931 Mytinger & Casselberry, Ewing v........................... 594 National Acceptance Co., Richardson v.................... 981 National Assn, of Real Estate Boards, United States v.... 485 National Council of American-Soviet Friendship v. McGrath.. 956 National Labor Relations Board. See Labor Board. National Maritime Union v. Labor Board.................... 926 Nebraska, Hawk v.......................................... 923 Nelson v. Johnson..................................... 957,991 Nelson v. Ragen........................................... 945 Nemec v. United States.................................... 985 Nevada, Helm v............................................ 942 New Jersey, Cubbier v.............................. 939,959 Newstead, Ex parte.................................... 909,939 New York, Ahearn v........................................ 969 New York, Darman v........................................ 968 New York, Falkenstein v............................... 936,992 New York, Feiner v....................................... 962 New York, McCullough v.................................... 924 New York, M. & M. Transportation Co. v.................... 948 New York, Oddo v.......................................... 961 New York, Perez v......................................... 916 New York, Quinn v......................................... 915 New York, Vaccaro v....................................... 971 New York Central R. Co., Skinner v........................ 988 New York Central R. Co., Young v........................ 986 New York, C. & St. L. R. Co., Affolder v................... 96 New York ex rel. Choolokian v. Mission.................... 912 New York Life Ins. Co. v. Schiel.......................... 931 New York, N. H. & H. R. Co., Commission of Utilities v... 943,972 Nonn v. Michigan.......................................... 925 North Carolina, Bridges v................................ 939 North Carolina, Carpenter v.............................. 932 North Carolina, Daniels v................................ 954 North Carolina, Dover v.................................. 933 North Carolina, Stinnett v...............'................ 933 Norwegian Government, Jackson & Co. v..................... 914 Novak v. Pennsylvania..................................... 924 Null v. Michigan.......................................... 924 O’Brien, Hoffman v........................................ 955 O’Brien, International Union of Automobile Workers v..... 454 O’Brien, McGarty v........................................ 966 TABLE OF CASES REPORTED. XXIII Page 0. C. Manufacturing Co. v. Johnson & Johnson.............. 979 Oddo v. New York.......................................... 961 Oden v. Hill.............................................. 987 O’Donnell, Rohde v........................................ 990 O’Hara v. Burford......................................... 990 Ohio, Lamora v............................................ 987 Ohio, Petrek v........................................... 970 Oklahoma State Regents, McLaurin v...................... 637 Oldland, Gray v........................................... 948 Olympos, The, Loucopantis v............................... 933 Omaha, Glissmann v........................................ 960 O’Neill, In re............................................ 917 Order of Railroad Telegraphers v. D., L. & W. R. Co..... 239 Order of Railway Conductors v. Southern R. Co............. 255 Order of United Commercial Travelers, Clark v............. 922 Osman v. Douds............................................ 846 Overholser, Castleman v................................... 976 Overholser, Grant v....................................... 961 Overholser, Ruthven v..................................... 909 Overholser, Williams v.................................... 976 Overlakes Freight Corp. v. Murphy......................... 913 Owens v. United States.................................... 916 Page, Stephenson v.................................... 971,989 Painter, Sweatt v......................................... 629 Pan American Airways, Lee v............................... 920 Pannell v. United States.................................. 927 Paquette v. Illinois...................................... 976 Paramount Pictures v. Ball................................ 911 Paramount Pictures, McGrath v............................. 953 Paramount Pictures, Sparling v............................ 953 Pardee v. Michigan........................................ 961 Parkerson v. Chapman...................................... 953 Pasadena, California-Michigan Land & Water Co. v........ 937 Patterson v. Georgia...................................... 916 Paymaster General of the Navy, Snyder .................... 951 Peckat Manufacturing Co., Jacobs v........................ 915 Pennsylvania, Almeida v................................. 924,950 Pennsylvania v. Curtis Publishing Co...................... 928 Pennsylvania, Novak ...................................... 924 Pennsylvania R. Co. v. Conner............................. 919 Pennsylvania R. Co., Georgia ............................. 975 Pennsylvania R. Co., Womsley ............................. 903 Perez v. New York......................................... 916 Perrozzi v. Ragen......................................... 945 XXIV TABLE OF CASES REPORTED. Page Perry Burrus Elevators v. Texas & Pacific R. Co............ 930 Peters, South v........................................ 276,959 Petrek v. Ohio............................................. 970 Pevely Dairy Co., United States v.......................... 942 Phillips v. Commissioner................................... 932 Phillips Estate v. Commissioner............................ 932 Phillips Petroleum Co. v. Jones............................ 904 Phillips Petroleum Co., Skelly Oil Co. v................... 667 Piedmont Cotton Mills v. Commissioner...................... 919 Pierce v. Cranor........................................... 917 Pilson v. Salvoni.......................................... 981 Pine v. Boyle.............................................. 969 Pittsburgh Steamship Co., Labor Board v.................... 951 Plaine v. Burford.......................................... 925 Plainfield Hotel Corp. v. Buffalo.......................... 942 Pointer v. Six Wheel Corp.................................. 911 Police Commissioner, Hoffman v............................. 955 Pool Manufacturing Co., Labor Board v................... 577 Porter v. Heinze........................................... 961 Potter v. Eidson......................................... 937 Potter, United States v.................................... 725 Powell v. U. S. Cartridge Co............................... 497 Powell v. Young........................................... 948 Power Commission v. East Ohio Gas Co....................... 905 Power Commission, Iowa v................................... 979 Power Commission, Safe Harbor Power Corp, v................ 957 Powers v. Hunter........................................... 986 Pratt v. De Korwin......................................... 982 Price v. Swope............................................. 985 Prichard v. United States.................................. 974 Prose, Davis .............................................. 920 Prosser, Seaboard Air Line R. Co. v........................ 911 Prudence Bonds Corp., Eddy v........................... 941 Public Utilities Comm’n v. N. Y., N. H. & H. R. Co..... 943,972 Quapaw Indians v. United States............................ 937 Quicksail v. Michigan...................................... 660 Quillian v. Sweeney........................................ 945 Quinn v. New York.......................................... 915 Rabinowitz, United States v................................. 66 Ragen, Adams .............................................. 945 Ragen, Banks .............................................. 969 Ragen, Blue v.............................................. 939 Ragen, Bridges ............................................ 976 Ragen, Brooks v............................................ 924 TABLE OF CASES REPORTED. XXV Page Ragen, Bute v............................................. 925 Ragen, Crombie v.......................................... 921 Ragen, Haines v........................................... 917 Ragen, Hamby v............................................ 905 Ragen, Illinois ex rel. Marino v.......................... 921 Ragen, James v............................................ 926 Ragen, Johnson v.......................................... 905 Ragen, Lewis v............................................ 968 Ragen, Marks v........................................... 926 Ragen, Meyers v........................................... 924 Ragen, Nelson v........................................... 945 Ragen, Perrozzi v......................................... 945 Ragen, Rohde v............................................ 944 Ragen, Sherman v.......................................... 968 Ragen, Siegel v........................................... 990 Ragen, Smith v........................................ 905,968 Ragen, Stevens v.......................................... 925 Ragen, Tanthorey v........................................ 925 Ragen, Taylor v........................................... 925 Ragen, Thompson v......................................... 968 Ragen, Wagner v........................................... 945 Ragen, Wilson v....................................... 905,923 Ragen, Zubr .............................................. 905 Railroad Telegraphers v. Delaware, L. & W. R. Co.......... 239 Railroad Trainmen v. Conner............................... 919 Railway Conductors v. Southern R. Co...................... 255 Railway Labor Executives’ Assn. v. United States........ 142,950 Randolph Laboratories v. Specialties Development Corp... 952 Rash v. Board of Trustees of Prison....................... 962 Real Estate Boards, United States v....................... 485 Reconstruction Finance Corp., Duncan Coffee Co. v....... 947,991 Reconstruction Finance Corp., Monolith Portland Co. v... 932,954 Reconstruction Finance Corp. Price Bd., Blanchard Co. v. 912 Red River Cotton Oil Co., Texas & Pacific R. Co. v........ 953 Redwine, Georgia Railroad & Banking Co. v................. 901 Reed v. Michigan.......................................... 988 Regents for Higher Education, McLaurin v.................. 637 Regents of Wisconsin University v. Illinois............... 906 Regional Director, American Communications Assn, v...... 382,990 Reichman-Crosby Co., Stone v............................ 917 Reider v. Thompson.................................... 113,936 Republic Steel Corp. v. Farval Corporation................ 938 Revenue Comm’r, Georgia R. & B. Co. v..................... 901 XXVI TABLE OF CASES REPORTED. Page Rheim v. Lyons........................................ 925,946 Richardson, Bailey v...................................... 977 Richardson v. National Acceptance Co...................... 981 Ric-Wil Co., Kaiser Co. v................................. 958 Ridge, Spencer v.......................................... 968 Ring Construction Corp. v. Secretary of War............... 943 Rivers v. Indiana......................................... 944 Roberto, Hartford Fire Ins. Co. v......................... 920 Roberts v. United States.................................. 937 Roberts v. U. S. District Court........................... 844 Robinson, Dunlevy v....................................... 939 Robinson, Duty v.......................................... 970 Robinson, Evans v......................................... 985 Robinson, Harris v........................................ 971 Robinson, Skinner v....................................... 925 Robinson, Thompson v.............................. 916,936,954 Robinson v. United States................................. 923 Robinson, Wulsch v........................................ 945 Rogers v. United States............................... 956,958 Rohde v. O’Donnell........................................ 990 Rohde v. Ragen............................................ 944 Rowe v. Green......................................... 935,973 Rowland v. Arkansas................................... 952,991 Royal v. Royal............................................ 923 Royall, Brown v...................................... 952,991 Royal Norwegian Government, Jackson & Co. v............... 914 Ruoff v. McLaughlin....................................... 930 Ruthazer, Jackson v....................................... 980 Ruthven v. Overholser..................................... 909 Safe Harbor Water Power Corp. v. Power Comm’n............. 957 Safeway Stores v. West.................................... 952 St. Clair v. Hiatt........................................ 967 St. Joe Paper Co., Atlantic Coast Line R. Co. v.............. 929 St. Louis Dairy Co., United States v...................... 942 St. Louis-San Francisco R. Co., Brooks v.................. 966 St. Louis-San Francisco R. Co., Throckmorton v............ 944 Salvoni, Pilson v......................................... 981 Sampsell v. California................................... 990 Sanders v. Swope......................................... 985 Savorgnan v. United States................................ 916 Sawyer, U. S. Graphite Co. v............................. 904 Scarborough, Atlantic Coast Line R. Co. v................. 919 Schamus, In re............................................ 902 Schectman v. Foster....................................... 924 TABLE OF CASES REPORTED. XXVII Page Schiel, New York Life Ins. Co. v.......w.................... 931 Schilder, Gusik v.......................................... 977 Schmidt, In re.............................................. 976 Schmidt v. United States.................................... 986 Schoeps v. Carmichael....................................... 914 Schroeder, Emmerling v...................................... 978 Schurink v. United States................................... 928 Seaboard Air Line R. Co. v. Prosser......................... 911 Seaboard & Western Airlines v. Civil Aeronautics Board.. 963 Seavey v. United States..................................... 979 Secretary of Commerce, U. S. Graphite Co v.................. 904 Secretary of Defense v. Eisentrager......................... 763 Secretary of Defense, Madsen v.............................. 983 Secretary of Defense, Nelson v.......................... 957,991 Secretary of the Army, Brown v.......................... 952,991 Secretary of the Treasury, Standard Tobacco Co. v.......918,954 Secretary of War, Ring Construction Corp, v................. 943 Security Administrator v. Mytinger & Casselberry............ 594 Security Trust & Savings Bank, United States v.............. 947 Seger v. Illinois........................................... 936 Serna v. Walters............................................ 973 Sewell v. California........................................ 958 Shafer v. United States..................................... 979 Shahedy, Cameron v.......................................... 909 Shaughnessy, U. S. ex rel. Lee Wo Shing v................... 906 Shaw v. United States..................................... 967 Sherman v. Ragen............................................ 968 Shipman v. DuPre............................................ 321 Shoong v. Commissioner...................................... 974 Shufflebarger v. United States.............................. 963 Shuttleworth, Moore v....................................... 987 Sic v. Commissioner......................................... 913 Siegel v. Ragen............................................. 990 Simmons v. Hunter........................................... 968 Simon v. Hoey............................................... 966 Simonsen v. Emmerling....................................... 978 Simpson v. Louisiana........................................ 929 Singer, Bell v...................................... 841,902,909 Singer, Lyon v...................................... 841,902,909 Singer v. Yokohama Specie Bank...................... 841,902,909 Six Wheel Corp., Pointer ................................... 911 Skelly Oil Co. v. Phillips Petroleum Co..................... 667 Skinner v. New York Central R. Co........................... 988 Skinner v. Robinson......................................... 925 xxviii TABLE OF CASES REPORTED. Page Slade v. Jacques.......................................... 941 Slocum v. Delaware, L. & W. R. Co......................... 239 Smith v. Arkansas......................................... 916 Smith, Firemen’s Ins. Co. v............................... 980 Smith v. Holt......................................... 938,992 Smith v. Ragen........................................ 905,968 Smith, Strong v........................................... 931 Smith v. United States.................................... 990 Smyth, Davis v............................................ 989 Smyth, Swoveland v........................................ 944 Snyder v. Buck............................................ 951 Snyder, Standard Commercial Tobacco Co. v...............918,954 Snyder v. Woods........................................... 930 Socony-Vacuum Oil Co., Allied Oil Corp, v................. 938 Solesbee v. Balkcom......................................9,926 Solomon, Becker v........................................ 937 Solomon, Brock v........................................ 937 South v. Peters....................................... 276,959 Southern R. Co. v. Mayfield.............................. 918 Southern R. Co., Order of Railway Conductors v............ 255 Sparling v. Paramount Pictures............................ 953 Specialties Development Corp., Randolph Laboratories v.. 952 Spencer v. Ashe........................................... 990 Spencer v. Ridge.......................................... 968 Spillmann v. Jackson................................ 941,973 Spokane, Miller v......................................... 907 Spruill v. Brooks......................................... 989 Squier, Taylor v.......................................... 917 Standard Commercial Tobacco Co. v. Snyder..............918,954 Standard Dredging Corp. v. Louisiana ex rel. Fontenot... 907 Standard Oil Co., Dunaway v............................... 965 Standard Oil Co. v. Federal Trade Comm’n.................. 975 Standard Oil Co. v. United States......................... 977 Standard-Vacuum Oil Co. v. United States.................. 157 State. See name of State. State Corporation Comm’n, Travelers Health Assn, v...... 643 State Revenue Comm’r, Georgia R. & B. Co. v............... 901 State Tax Commission v. Reichman-Crosby Co................ 917 Steele, Morton v.......................................... 969 Steele, Moss v............................................ 976 Steelworkers v. Labor Board........................... 382,990 Steinway v. Majestic Amusement Co......................... 947 Stephenson v. Page.................................... 971,989 Sterba v. Borelli......................................... 944 TABLE OF CASES REPORTED. XXIX Page Stevens v. Ragen.......................................... 925 Stevinson, United States v................................ 725 Stinnett v. North Carolina................................ 933 Stizza v. Essex County Juvenile Court..................... 926 Stoltz, Burlington Transportation Co. v................... 929 Stone v. Reichman-Crosby Co............................... 917 Story v. Burford.......................................... 926 Strong v. Smith........................................... 931 Sturm v. United States.................................... 986 Stuyvesant Town Corp., Dorsey v........................... 981 Succop v. Commissioner.................................... 932 Suddoth, Watson v..................................... 935,959 Superintendent of Banks v. Banque Mellie Iran..... 841,902,909 Superintendent of Banks v. Paramount Pictures............. 953 Superintendent of Banks v. Singer................. 841,902,909 Superintendent of Five Tribes v. United States............ 937 Superior Court, Hughes v.................................. 460 Superior Court, Washington Water Power Co. v.............. 907 Supermarket Equipment Corp., Great A. & P. Tea Co. v.... 947 Supervisors of Elections, Tedesco v....................... 940 Supreme Court of Indiana, Wicks v......................... 925 Swain v. Duffy............................................ 976 Sweatt v. Painter......................................... 629 Sweeney, Quillian v....................................... 945 Sweeney, Woodall v........................................ 945 Swenson, Carroll v........................ i..........*.. 971 Swenson, Fleet v......................................... 976 Swenson, Hobbs v.......................................... 946 Swenson, Holmes v......................................... 936 Swenson, Winegard v....................................... 938 Swift & Co. Packers v. Compania Colombiana Del Caribe.... 684 Swope, Price v............................................ 985 Swope, Sanders v.......................................... 985 Swope, Wilfong v......................................... 915 Swoveland v. Smyth........................................ 944 Symons v. United States................................... 985 Tamez v. Woods............................................ 942 Tanthorey v. Ragen........................................ 925 Tate v. Heinze........................................ 926,950 Tax Commission v. Reichman-Crosby Co...................... 917 Tax Commission v. Weyerhaeuser Sales Co................... 903 Taylor v. Ragen........................................... 925 Taylor v. Squier.......................................... 917 Taylor v. United States................................... 988 XXX TABLE OF CASES REPORTED. Page Teamsters Union v. Hanke.............................. 470,991 Tedesco v. Board of Supervisors of Elections.............. 940 Temple, Byers v........................................... 987 Tennessee, Vance v........................................ 988 Texas, Cassell v.......................................... 282 Texas, Everhart v......................................... 935 Texas, United States v.................................... 707 Texas & Pacific R. Co. v. Red River Cotton Oil Co......... 953 Tex-O-Kan Flour Mills Co. v. Texas & Pacific R. Co....... 930 Thomasson v. Missouri............................... 938 Thompson v. Ragen................................... 968 Thompson, Reider v.................................V* 113,936 Thompson v. Robinson.............................. 916,936,954 3-H Securities Co., United States v....................... 725 Throckmorton v. St. Louis-San Francisco R. Co....... 944 Tillman v. Florida........................................ 976 Timmons v. Fagan.......................................... 992 Trade Commission, Standard Oil Co. v...................... 975 Trainmen’s Union v. Conner................................ 919 Transport, Trading & Terminal Corp. v. Commissioner...... 916 Trapp v. United States.................................... 913 Travelers Health Assn. v. Virginia ex rel. Corp. Comm’n.. 643 Treadway v. Morhous....................................... 924 Trumbo v. United States............................... 934,972 Twentieth Century-Fox Film Corp. v. United States........ 974 Union Bleachery v. United States.......................... 964 Union Pacific R. Co. v. United States..................... 942 Union Pacific R. Co., United States v..................... 930 United Artists Corp. v. Board of Censors.................. 952 United Automobile Workers v. O’Brien...................... 454 United Commercial Travelers, Clark v...................... 922 United States. See also U. S. ex rel. United States, Ackermann v................................ 962 United States, Alltmont v................................ 967 United States, Aired ..................................... 921 United States, Anderson ................................ 965 United States, Barker .................................... 968 United States, Barsky v................i.................. 971 United States, Bary .................................... 958 United States, Baumet ................................... 923,973 United States, Blau v..................................... 956 United States v. Bryan................................ 323,991 United States v. Bumison................................... 87 United States, Byers ..................................... 976 TABLE OF CASES REPORTED. XXXI Page United States v. California.................................... 975 United States, Cawthorn v...................................... 916 United States, Cohen v................................. 914,920,936 United States v. Commodities Trading Corp.................. 121,950 United States v. Cotton Valley Operators Committee......... 940,972 United States, Cradle v........................................ 929 United States, Crain v......................................... 911 United States, Croessant v..................................... 927 United States, Cromelin v...................................... 944 United States, Crowe v......................................... 916 United States, Curtis v........................................ 965 United States, Davison v....................................... 968 United States, Dawson v........................................ 985 United States, Dennis v.................................... 162,950 United States, Du Pont de Nemours & Co. v...................... 959 United States v. East Side Canal Co............................ 978 United States, Eichenlaub v.................................... 983 United States, Eleazer v....................................... 903 United States, Emery Transportation Co. v.................. 955,992 United States v. Erreca...................................... 725 United States, Felman v........................................ 973 United States, Feres v......................................... 910 United States, Fishermen & Allied Workers v.................... 947 United States, Five Cases of Figlia Mia Oil v.................. 963 United States v. Fleischman................................ 349,991 United States, Fogarty v...................................... 909 United States, Frantz v........................................ 963 United States, Gara v.......................................... 927 United States v. Gayetty........................................ 87 United States v. Gerlach Live Stock Co......................... 725 United States, Goodall v....................................... 987 United States, Gordon ......................................... 935 United States, Griffin v..................................... 916 United States v. Griggs........................................ 951 United States v. Gypsum Co..................................... 960 United States, Gypsum Co. v.................................... 959 United States, Hart v.......................................... 985 United States, Henderson v................................. 816,963 United States, Henjes v........................................ 978 United States, Holmes v.................................... 927,954 United States, Holt v.......................................... 922 United States, Horner v........................................ 916 United States, Hudson ......................................... 981 United States v. Iowa-Wisconsin Bridge Co...................... 982 XXXII TABLE OF CASES REPORTED. Page United States, Jackson v...................................... 981 United States, James v........................................ 922 United States v. James J. Stevinson, Inc...................... 725 United States, Jefferson v.................................... 910 United States, Jones v........................................ 922 United States, Kamp v......................................... 957 United States v. Kansas City Life Ins. Co..................... 799 United States, King v...................................... , 964 United States, Kinney v....................................... 922 United States, Kjar v......................................... 942 United States, Kleinbord v.................................... 958 United States v. Knight....................................... 978 United States, Lammers v................................ 976 United States, Langford v..................................... 938 United States, Lawson v.................................... 934,972 United States, Libby, McNeill & Libby v...................... 977 United States, Licznerski v.................................. 987 United States, Litton v....................................... 921 United States, Local 36, Fishermen & Allied Workers v...... 947 United States v. Loew’s, Inc.................................. 974 United States, Lord Mfg. Co. v.......................... 956 United States v. Louisiana.................................... 699 United States, Lowrey v.:..................................... 969 United States, Lynch v........................................ 981 United States, MacDonald v.................................... 911 United States, Mahana v....................................... 978 United States, Mansavage v.................................... 931 United States, Marshall v................................. 933,959 United States v. Martin....................................... 957 United States, Masterson v.................................... 988 United States, Matthews v..................................... 910 United States, McIntosh v..................................... 967 United States, Meyers v....................................... 983 United States, Morford v...................................... 258 United States, Moss v......................................... 922 United States v. Munsingwear, Inc........................... 941 United States v. National Assn, of Real Estate Boards...... 485 United States, Nemec v........................................ 985 United States, Owens v........................................ 916 United States, Pannell v...................................... 927 United States v. Pevely Dairy Co.............................. 942 United States v. Potter....................................... 725 United States, Prichard v..................................... 974 United States v. Rabinowitz.................................. 56 TABLE OF CASES REPORTED. xxxm Page United States, Railway Labor Executives’ Assn, v.......... 142,950 United States v. Real Estate Boards.......................... 485 United States, Roberts v..................................... 937 United States, Robinson v.................................... 923 United States, Rogers v................................... 956,958 United States v. St. Louis Dairy Co.......................... 942 United States, Savorgnan v................................. 916 United States, Schmidt v.................................... 986 United States, Schurink v................................... 928 United States, Seavey v..................................... 979 United States v. Security Trust & Savings Bank............... 947 United States, Shafer v...................................... 979 United States, Shaw v........................................ 967 United States, Shufflebarger v............................... 963 United States, Smith v....................................... 990 United States, Standard Oil Co. v............................ 977 United States, Standard-Vacuum Oil Co. v.................. 157 United States v. Stevinson................................... 725 United States, Sturm v....................................... 986 United States, Symons v...................................... 985 United States, Taylor v...................................... 988 United States v. Texas....................................... 707 United States v. 3-H Securities Co........................... 725 United States, Trapp v................................... 913 United States, Trumbo v................................... 934,972 United States, Twentieth Century-Fox Film Corp, v......... 974 United States, Union Bleachery v............................. 964 United States v. Union Pacific R. Co....................... 930 United States, Union Pacific R. Co. v........................ 942 United States v. U. S. Gypsum Co............................. 960 United States, U. S. Gypsum Co. v............................ 959 United States v. U. S. Smelting & Mining Co.............. 186,972 United States, Waley v....................................... 967 United States, Warner Bros. Pictures v.................... 974 United States v. Westinghouse Electric & Mfg. Co............. 261 United States, White v....................................... 970 United States, Wildman v..................................... 963 United States, Wilkins v..................................... 989 United States, Williams v.................................... 904 United States, Wixom v................................... • 981 United States, Wooton ....................................... 903 United States, Young v...................................... 913 U. S. Cartridge Co., Powell v................................ 497 U. S. District Court, Chandler .............................. 976 874433 0—50-----3 xxxiv TABLE OF CASES REPORTED. Page U. S. District Court, Chapman v............................. 976 U. S. District Court, Davison v............................. 962 U. S. District Court, Du Pont de Nemours & Co. v............ 941 U. S. District Court, Roberts v............................. 844 U. S. District Judge, Byers v............................... 955 U. S. District Judge, Collins v............................. 951 U. S. District Judge, Ruoff v............................... 930 U. S. District Judge, Spencer v............................. 968 U. S. ex rel. Lee Wo Shing v. Shaughnessy................... 906 U. S. ex rel. Monaghan v. Burke............................. 909 U. S. Graphite Co. v. Sawyer................................ 904 U. S. Gypsum Co. v. United States........................... 959 U. S. Gypsum Co., United States v........................... 960 U. S. Navy District Commandant, Kelly v..................... 922 U. S. Smelting & Mining Co., United States v............ 186,972 U. S. Veterans’ Administration, Di Silvestro v.............. 989 United Steelworkers v. Labor Board...................... 382,990 Universal Camera Corp. v. Labor Board....................... 962 University of Wisconsin v. Illinois..................... 906 Utilities Dept, of Mass. v. N. Y., N. H. & H. R. Co..... 943,972 Vaccaro v. New York..................................... 971 Valecek v. Illinois..................................... 925 Vance, Jackson v........................................ 937 Vance v. Tennessee...................................... 988 Varela v. Illinois........................................ 936 Velsicol Corporation, Hyman v........................... 966 Vermillion v. Meyer..................................... 915,973 Veterans’ Administration, Di Silvestro v................ 989 Victor v. Hillebrecht................................... 980 Virginia, Hampton v..................................... 989 Virginia ex rel. Corporation Comm’n, Travelers Assn, v.... 643 Wade v. Michigan........................................ 954,991 Wagner v. Louisiana..................................... 917 Wagner v. Ragen......................................... 945 Waialua Agricultural Co. v. Maneja...................... 920 Waley v. United States.................................. 967 Walsh v. Walsh............................................. 914 Walshfer v. Michigan.................................... 971,976 Walters, Sema v......................................... 973 Warner Bros. Pictures v. United States.................. 974 Washington v. Columbia Steel Co......................... 903 Washington Water Power Co. v. Superior Court............ 907 Watson v. Suddoth....................................... 935,959 Wedemeyer, Murray v..................................... 980 TABLE OF CASES REPORTED. XXXV Page West, Safeway Stores v................................... 952 Westinghouse Electric & Mfg. Co., United States v........ 261 Wetmore, Gellatly v...................................... 905 Weyerhaeuser Sales Co., Tax Commission v................. 903 Whelchel v. McDonald..................................... 977 White v. United States................................... 970 White Consolidated, Inc., Mitchell v..................... 913 Wicks v. Supreme Court of Indiana........................ 925 Wild v. Burford.......................................... 939 Wildman v. United States................................. 963 Wilfong v. Swope......................................... 915 Wilkins v. United States................................. 989 Willapoint Oysters, Inc. v. Ewing........................ 945 Williams v. Illinois..................................... 971 Williams v. Overholser................................... 976 Williams v. United States................................ 904 Willis v. Consolidated Textile Co........................ 957 Wilmington Trust Co. v. Mutual Life Ins. Co.............. 931 Wilson v. Ragen....................................... 905,923 Winegard v. Swenson...................................... 938 Winkler v. Maryland...................................... 919 Wisconsin University v. Illinois......................... 906 Wissner v. Wissner....................................... 926 Wixom v. United States................................... 981 Womsley v. Pennsylvania R. Co............................ 903 Wong Yang Sung v. McGrath.........................>... 33,908 Woodall v. Sweeney...................................•. 945 Woods, Berlinsky v................................... 949,991 Woods, Clement v..................................... 911,939 Woods, Snyder v.......................................... 930 Woods, Tamez v........................................... 942 Wooton v. United States.................................. 903 Wulsch v. Robinson....................................... 945 Wyoming, Keith v......................................... 970 Yates v. Ball............................................ 964 Yokohama Specie Bank, Singer v.................... 841,902,909 Young v. California...................................... 950 Young, Handwork v.................................... 949,991 Young v. New York Central R. Co......................... 986 Young, Powell v.......................................... 948 Young v. United States................................... 913 Zubr v. Ragen............................................ 905 TABLE OF CASES Cited in Opinions Page Aaron v. Ford, Bacon & Davis, 339 U. S. 497 522,524 Abernathy, Ex parte, 320 U. S. 219 207,234 Abrams v. United States, 250 U. S. 616 395,396 Adams v. N. Y., C. & St. L. R. Co., 121 F. 2d 808 246 Adler Metal Co. v. United States, 108 Ct. Cl. 102 126 Aero Transit Co. v. Comm’n, 295 U. S. 285 547, 551,552,558,561 Aero Transit Co. v. Comm’rs, 332 U. S. 495 545, 551,553,559,561 Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 671 A. F. of L. v. Swing, 312 U. S.321 465, 479,482,483,536-539 A. F. of L. v. Watson, 327 U. S. 582 322 Agnello v. United States, 269 U. S. 20 61,77 Ahrens v. Clark, 335 U. S. 188 767,778,790 Akins v. Texas, 325 U. S.« 398 283-296 Alabama v. King & Boozer, 314 U. S. 1 508 A. L. A. Schechter Corp. v. United States, 295 U. S. 495 515 Albright v. Comm’n, 71 N.. J. L. 303 274 Alfani v. Superior Court, 139 Wash. 125 28 A11 e n-Bradley Local v. Board, 315 U. S. 740 459 Allgeyer v. Louisiana, 165 U. S. 578 650 Alwine v. Penn. R. Co., 141 Pa. Super. 558 117 Page American Column Co. v. United States, 257 U. S. 377 489 American Communications Assn. v. Douds, 339 U. S. 382 846,847 American Fed. of Labor v. Swing, 312 U. S. 321 465, 479,482,483,536-539 American Fed. of Labor v. Watson, 327 U. S. 582 322 American Land Co. v. Zeiss, 219 U. S. 47 315 American Medical Assn. v. United States, 317 U. S. 519 490,491 American Optical Co. v. N. J. Optical Co., 58 F. Supp. 601 833 American Steel Foundries v. Tri-City Council, 257 U. S. 184 466 Arney v. Long, 9 East 473 366 Amos v. United States, 255 U. S. 313 75 Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 523 Anderson v. United States, 171 U. S. 604 492 Anderson Bank v. Luckett, 321 U. S. 233 316 A. O. Smith Corp. v. United States, 301 U. S. 669 190 Apex Hosiery Co. v. Leader, 310 U. S. 469 490 Applegate v. Franklin, 109 Mo. App. 293 814 Argetakis v. State, 24 Ariz. 599 63 Arkansas v. Kansas & Tex. Coal Co., 183 U. S. 185 673 Armour & Co. v. Ft. Morgan S. S. Co., 270 U. S 253 692 XXXVII XXXVIII TABLE OF CASES CITED. Page Armour & Co v. Wantock, 323 U. S. 126 480 Arundel-Brooks Corp. v. Comm’r, 129 F. 2d 762 592 Asiatic Petroleum Corp. v. Italia Societa, 119 F. 2d 610 695,698 Associated Press v. United States, 326 U. S. 1 491,495 Atlantic Cleaners, Inc. v. United States, 286 U. S. 427 488,491,492 Atlantic Coast Line v. Phillips, 332 U. S. 168 628 Attorney General v. Delaware & Hudson Co., 213 U. S. 366 407 Automobile Workers Union v. Board, 336 U. S. 245 459 Baker v. Grice, 169 U. S. 284 206 Bakery Drivers Local v. Wohl, 315 U. S. 769 465, 466,479-483,537 Ballard v. Hunter, 204 U. S. 241 316 Baltimore & O. R. Co. v. Montgomery & Co., 19 Ga. App. 29 117 Baltimore & O. R. Co. v. United States, 305 U. S. 507 197 Bank of New York, Matter of, 189 Mise. 459 311 Banque Mellie Iran v. Yokohama Bank, 299 N. Y. 139 842 Barksdale v. Ford, Bacon & Davis, 70 F. Supp. 690 503, 504 Barrett v. Commonwealth, 202 Ky. 153 29 Barrett v. Northern Pac. R. Co., 29 Idaho 139 117 Barry v. Edmunds, 116 U. S. 550 101 Barsky v. United States, 83 U. S. App. D. C. 127 335,359 Barton v. Barbour, 104 U. S. 126 706 Bautista v. Jones, 25 Cal. 2d 746 478 Bay Ridge Operating Co. v. Aaron, 334 U. S. 446 523 Page B. B. Chemical Co. v. Ellis, 314 U. S. 495 830,834 Beavers v. Henkel, 194 U. S. 73 599 Bell v. Chapman, 10 Johns. 183 776 Bell v. Hood, 327 U. S. 678 792 Bell v. Porter, 159 F. 2d 117 512 Benito Estenger, The, 176 U. S. 568 769,772 Berge v. Superior Court, 154 Wash. 144 334 Berry v. Midtown Service Corp., 104 F. 2d 107 371 Bethlehem Steel Co. v. Board, 330 U. S. 767 457,459 Betts v. Brady, 316 U. S. 455 661,666 Bevan v. Krieger, 289 U. S. 459 333 Bingham v. State, 82 Okla. Crim. 305 29 Birdsall v. Germain Co., 227 F. 953 693 Blackmer v. United States, 284 U. S. 421 331,334 Blair v. United States, 250 U. S.273 331 Blanchard v. Golden Age Co., 188 Wash. 396 536 Blinn v. Nelson, 222 U. S. 1 315-319 Board of Comm’rs v. Mer- chant, 103 N. Y. 143 362 Board of Education v. Bar- nette, 319 U. S. 624 404,443 Board of Education v. Illi- nois, 203 U. S. 553 95 Board of Governors v. Ag- new, 329 U. S. 441 392 Bollenbach v. United States, 326 U. S. 607 373 Bonds v. State, 8 Tenn. 142 28 Boquillas Cattle Co. v. Cur- tis, 213 U. S. 339 744 Botwinski, Ex parte, 314 U. S. 586 207 Bowles v. Willingham, 321 U. S. 503 128,134,204,599 Boyd v. United States, 116 U. S. 616 61,69,74,81 Brandt v. United States, 333 U. S. 836 768 TABLE OF CASES CITED. XXXIX Page Brashear Freight Lines v. Comm’n, 23 F. Supp. 865 547 Bridges v. California, 314 U. S. 252 397-401 Bridges v. Wixon, 326 U. S. 135 48,420,771 Broder v. Water Co., 101 U. S. 274 748 Brooklyn Savings Bank v. O’Neil, 324 U. S. 697 523 Brooks v. United States, 267 U. S. 432 510,512 Brotherhood of Carpenters v. United States, 330 U. S. 395 376 Brotherhood of Teamsters v. Hanke, 339 U. S. 470 496 Brown v. United States, 8 Cranch 110 775,788 Brown v. United States, 276 U. S. 134 358 Brown v. Walker, 161 U. S. 591 336 Brown v. Wilson, 348 Mo. 658 811 Bryant v. Zimmerman, 278 U. S. 63 207 Buerger, In re, 338 U. S. 884 768 Building Service Employees v. Gazzam, 339 U. S. 532 481 Bulger v. People, 61 Colo. 187 27 Burke v. Georgia, 338 U. S. 941 215,232 Burnison Estate, 33 Cal. 2d 638 88,89 Burns v. United States, 287 U. S. 216 11 Bush v. Kentucky, 107 U. S. 110 301 Bute v. Illinois, 333 U. S. 640 661,666 Butler County v. P., H., B. & N. C. R. Co., 298 Pa. 347 357 Byars v. United States, 273 U. S. 28 75 Cafeteria Employees v. Angelos, 320 U. S. 293 465, 479-484,537,541 California Oregon Power Co. v. Beaver Co., 295 U. S. 142 734,759 Page Cameron v. United States, 231 U. S. 710 337,342 Caminetti v. United States, 242 U. S. 470 512 Canada Malting Co. v. Paterson, Ltd., 285 U. S. 413 697,698 Canizio v. New York, 327 U. S. 82 661,665 Cantwell v. Connecticut, 310 U. S. 296 393,403,445 Caperton v. Bowyer, 14 Wall. 216 777 Carbice Corp. v. Am. Patents Corp., 283 U. S. 27 830, 837,838 Carlson v. California, 310 U. S. 106 482,537 Carpenters & Joiners v. United States, 330 U. S. 395 376 Carpenters Union v. Ritter’s Cafe, 315 U. S. 722 466, 467,481,537 Carroll v. Greenwich Ins. Co., 199 U. S. 401 469 Carroll v. United States, 267 U. S. 132 60,61,73,76,77 Carter v. A. & St. A. B. R. Co., 338 U. S. 430 98-103 Carter v. Illinois, 329 U. S. 173 661 Case Co. v. Board, 321 U. S. 332 401 Case of Fries, 9 Fed. Cas. 826 774 Cassell v. State, 216 S. W. 2d 813 283-286 Castillo v. McConnico, 168 U. S. 674 467 Central Greyhound Lines v. Mealey, 334 U. S. 653 558 Central Lumber Co. v. South Dakota, 226 U. S. 157 468 Chapman, In re, 166 U. S. 661 327 Chicago & So. Air Lines v. Waterman Corp., 333 U. S. 103 789 Chin Yow v. United States, 208 U. S. 8 769 Chirurg v. Knickerbocker Co., 174 F. 188 692 XL TABLE OF CASES CITED. Page Christoffel v. United States, 338 U. S. 84 329,343,344 Church of Latter-Day Saints v. Porterville, 338 U. S. 805 398 Citizens Protective League v. Clark, 81 U. S. App. D. C. 116 775 City. See name of city. City of Agra, The, 35 F. Supp. 351 698 Claflin v. Houseman, 93 U. S. 130 94,246 Clark v. Allen, 331 U. S. 503 93 Clark v. Paul Gray, Inc., 306 U. S. 583 547-555,561 Clark v. Poor, 274 U. S. 554 551, 559,561 Clarke v. Deckebach, 274 U. S. 392 391 Clarke v. Morey, 10 Johns. 70 776,777 C. L. Downey Co. v. Comm’r, 172 F. 2d 810 589 Closson v. Morrison, 47 N. H. 482 72 Clyde Mallory Lines v. Alabama, 296 U. S. 261 550 Cobbledick v. United States, 309 U. S. 323 689 Coffey v. United States, 116 U. S. 436 493 Cohen v. Beneficial Loan Corp., 337 U. S. 541 688,845 Cohens v. Virginia, 6 Wheat. 264 214,480 Cole v. Arkansas, 333 U. S. 196 373 Colegrove v. Green, 328 U. S. 549 277-280,672 Collett, Ex parte, 337 U. S. 55 845 Collier v. Chicago & A. R. Co., 48 Mo. App. 398 814 Colonna, Ex parte, 314 U. S. 510 777 Columbia, The, 100 F. 890 695 Columbia River Packers v. Hinton, 315 U. S. 143 490 Commissioner v. Arundel- Brooks Corp., 152 F. 2d 225 589,591 Page Commissioner v. Korell, 339 U. S. 619 974 Commissioner v. McKay Products Corp., 178 F. 2d 639 584,590 Commissioner v. Shoong, 177 F. 2d 131 621,628 Commissioners v. Sellew, 99 U. S. 624 354-358,369 Commonwealth. See also name of Commonwealth. Commonwealth v. Barnes, 280 Pa. 351 29 Commonwealth v. Schmidt, 287 Pa. 150 357 Comstock v. Ramsey, 55 Colo. 244 750 Conger v. Weaver, 6 Cal. 548 744 Conklin v. State, 144 Tex. Cr. R. 210 285 Connecticut Ins. Co. v. Moore, 333 U. S. 541 95 Connecticut Ins. Co. v. Spratley, 172 U. S. 602 649 Consolidated Edison Co. v. Board, 305 U. S. 197 567 Continental Baking Co. v. Woodring, 286 U. S. 352 550, 561 Continental Bank & Tr. Co., Matter of, 189 Mise. 795 311 Continental Paper Bag Co. v. Eastern Co., 210 U. S. 405 608 Cook v. Hart, 146 U. S. 183 205 Cooke v. New River Co., 38 Ch. D. 56 214 Com Products Co. v. United States, 331 U. S. 790 190,195 Corporation of Latter-Day Saints v. Porterville, 338 U. S. 805 398 Counselman v. Hitchcock, 142 U. S. 547 336,347 County. See name of county. Covell v. Heyman, 111 U. S. 176 205 Cox v. New Hampshire, 312 U. S. 569 398-403 Coyle v. Smith, 221 U. S. 559 720 TABLE OF CASES CITED. XLI Page Craig v. Harney, 331 U. S. 367 398 Cramer v. United States, 325 U. S. 1 437 Crandall v. Woods, 8 Cal. 136 749 Crane v. Comm’r, 331 U. S. 1 628 Crawford v. United States, 212 U. S. 183 165 Creel v. Lone Star Corp., 339 U. S. 497 522 Cuddy, In re, 131 U. S. 280 218 Cummings v. Missouri, 4 Wall. 277 413,414 Cunnius v. Reading School Dist., 198 U. S. 458 317 Curry v. United States, 314 U. S. 14 508 Cushing v. Laird, 107 U. S. 69 689,693,695 Daisy, The, 29 F. 300 692 Dammann, In re, 336 U. S. 922 768 Darr, Ex parte, 84 Okla. Cr. 352 202,219 Davis, Ex parte, 317 U. S. 592 207 Davis v. Beason, 133 U. S. 333 398 Davis v. Burke, 179 U. S. 399 203 Davis v. State, 30 Okla. Cr. 61 63 Davis v. United States, 328 U. S. 582 70,74 Debs v. United States, 249 U. S. 211 395 De Jonge v. Oregon, 299 U. S. 353 402,453 De Lacey v. United States, 249 F. 625 775 Delaware, L. & W. R. Co. v. Slocum, 299 N. Y. 496 246 De Lovio v. Boit, 7 Fed. Cas. 418 691 De Meerleer v. Michigan, 329 U. S. 663 661 Demorest v. City Bank Co., 321 U. S. 36 92 Dennis v. United States, 339 U. S. 162 259,260 Page Denver v. New York Trust Co., 229 U. S. 123 95 Detroit Edison Co. v. Comm’r, 319 U. S. 98 588-591 Diamond v. State, 195 Ind. 285 31 Diaz v. Gonzalez, 261 U. S. 102 231 Dillon v. O’Brien & Davis, 16 Cox C. C. 245 76 Dinoffria v. Brotherhood of Teamsters, 331 Ill. App. 129 478 Dixie Ohio Express Co. v. Comm’n, 306 U. S. 72 548-551,561 Dorchy v. Kansas, 272 U. S. 306 466 Dorsey v. Gill, 80 U. S. App. D. C. 9 216 Dotson v. State, 149 Tex. Cr. R. 434 30 Douglas v. Jeannette, 319 U. S. 157 304,444 Douglas v. N. Y., N. H. & H. R. Co., 279 U. S. 377 94 Dow v. Johnson, 100 U. S. 158 793 Downes v. Bidwell, 182 U. S. 244 784,797 Downey Co. v. Comm’r, 172 F. 2d 810 589 Dreyer v. Illinois, 187 U. S. 71 467,479 Duncan, In re, 139 U. S. 449 206 Duncan v. Kahanamoka, 327 U. S. 304 786 Dunne v. United States, 320 U. S. 790 388 Eastern States Lbr. Assn. v. United States, 234 U. S. 600 489 Eavey Co. v. Dept, of Treasury, 216 Ind. 255 547 Eckstein, In re, 335 U. S. 851 768 Eclipse, The, 135 U. S. 599 690 Edelstein v. United States, 149 F. 636 341,342 Edward Ratzinger Co. v. Chicago Mfg. Co., 329 U. S. 394 836,839 XLII TABLE OF CASES CITED. Page Edwards v. California, 314 U. S. 160 512,545 Edwards v. Capital Airlines, 84 U. S. App. D. C. 346 252 Ehlen, In re, 334 U. S. 836 768 Eichel, In re, 333 U. S. 865 768 Eisler v. Clark, 77 F. Supp. 610 47 Eisner v. Macomber, 252 U. S. 189 678 Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711 242, 245 250 Endo, Ex parte, 323 U. S. 283 790 Erie R. Co. v. Board, 254 U. 8. 394 467 Estate. See name of estate. Ethyl Gasoline Corp. v. United States, 309 U. S. 436 830,832 Everett v. Truman, 334 U. S. 824 768 Ex parte. See name of party. Farmers & Merchants Bank v. Fed. Reserve Bank, 262 U. S. 649 468 Farmers Reservoir & Irrig. Co. v. McComb, 337 U. S. 755 523,529 Fay v. New York, 332 U. S. 261 283-291 Federal Lank Bank v. Bismarck Lumber Co., 314 U. S. 95 91 Federal Trade Comm’n v. Goodyear Tire Co., 304 U. S. 257 567,582 Federal Trade Comm’n v. Pacific Paper Assn., 273 U. S. 52 489 Feldman v. United States, 322 U. S. 487 68 Felsch, In re, 337 U. S. 953 768 Fidelity Trust Co. v. Field, 311 U. S. 169 753 Fisher v. Hurst, 333 U. S. 147 635 Fiske v. Kansas, 274 U. S. 380 402 Fleming v. People, 27 N. Y. 329 362 Page Fonda, Ex parte, 117 U. S. 516 205 Fong v. Superior Court, 29 Wash. 2d 601 63 Ford v. Surget, 97 U. S. 594 793 Ford Motor Co. v. Board, 305 U. S. 364 198 Ford & Son v. Little Falls Co., 280 U. S. 369 734,757 Forster v. Scott, 136 N. Y. 577 274 Forthoffer v. Swope, 103 F. 2d 707 20 Foster v. Illinois, 332 U. S. 134 661,666 Fox’s Will, Matter of, 52 N. Y. 530 90 Francis v. Resweber, 329 U. S. 459 11 Frank v. Mangum, 237 U. S. 309 183,233 Franks Bros. Co. v. Board, 321 U. S. 702 568 Frazier v. United States, 335 U. S. 497 165-177,181,260 Frederich, In re, 149 U. S. 70 206 Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129 654 Fries’ Case, 9 Fed. Cas. 826 774 Frohwerk v. United States, 249 U. S. 204 395 Fronklin, Ex parte, 253 F. 984 775 Gaines v. Canada, 305 U. S. 337 635,639,825 Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 558 Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481 115 Gardner v. Dantzler Co., 98 F. 2d 478 690 Gardner v. New Jersey, 329 U. S.565 231 Garland, Ex parte, 4 Wall. 333 413 Gayes v. New York, 332 U. S. 145 661 General Committee v. M.- K.-T. R. Co., 320 U. S. 323 250 Getchell v. Page, 103 Me. 387 77 TABLE OF CASES CITED. XLIII Page Gibbs v. Burke, 337 U. S. 773 661,666 Giboney v. Empire Co., 336 U. S. 490 398, 400,466,469,481,537-541 Gibson v. Mississippi, 162 U. S. 565 301 Gibson v. United States, 166 U. S. 269 756,805 Gilroy, Ex parte, 257 F. 110 775 Gin S. Chow v. Santa Bar- bara, 217 Cal. 673 754 Girke, In re, 334 U. S. 836 768 Girouard v. United States, 328 U. S. 61 237,901 Gitlow v. New York, 268 U. S. 652 395,401 Glickstein v. United States, 222 U. S. 139 338,341 Go-Bart Importing Co. v. United States, 282 U. S. 344 62,63,78 Goll v. Railroad, 271 Mo. 655 814 Gompers v. Bucks Stove Co., 221 U. S. 418 364 Gompers v. United States, 233 U. S. 604 394 Gooch v. United States, 297 U. S. 124 510,512 Goodman Lumber Co. v. United States, 301 U. S. 669 190 Goodrich v. Ferris, 214 U. S. 71 314 Gordon v. Scudder, 163 F. 2d 518 211 Gottenetroeter v. Kapple- mann, 83 Mo. App. 290 814 Gould v. Rees, 15 Wall. 187 608 Gouled v. United States, 255 U. S. 298 64,69,74 Graber, Ex parte, 247 F. 882 775 Graham v. Locomotive Fire- men, 338 U. S. 232 402,463 Grahl v. United States, 261 F. 487 775 Grammer, In re, 104 Neb. 744 20,30 Grannis v. Ordean, 234 U. S. 385 314 Graver Tank Co. v. Linde Co., 336 U. S. 271 614 Page Graver Tank Co. v. Linde Co., 339 U. S. 605 840 Graves v. N. Y. ex rel. O’Keefe, 306 U. S. 466 91 Great Lakes Dredge Co. v. Huffman, 319 U. S. 293 762 Greenleaf Johnson Lbr. Co. v. Garrison, 237 U. S. 251 805 Gregory v. Helvering, 293 U. S. 465 91 Greisinger v. Klinhardt, 321 Mo. 186 811,814 Griffin v. United States, 336 U. S. 704 4,570 Grimley, In re, 137 U. S. 147 111 Griswold v. Waddington, 16 Johns. 437 769,772,776 Gronwald, In re, 334 U. S. 857 768 Grosjean v. Am. Press Co., 297 U. S. 233 403 Grossi v. Long, 136 Wash. 133 28 Grossman, Ex parte, 267 U. S. 87 20 Gryger v. Burke, 334 U. S. 728 661,665 Gulf Ins. Co. v. Live Oak City, 126 Fla. 132 357 Gulf Oil Co. v. Gilbert, 330 U. S. 501 649 Gully v. First Nat. Bank, 299 U. S. 109 672,673 Gutierres v. Albuquerque Land Co., 188 U. S. 545 744 Guy v. Utecht, 144 F. 2d 913 211 Hague v. C. I. O., 307 U. S. 496 304,403 Hale v. Henkel, 201 U. S. 43 334 Hale v. Kentucky, 303 U. S. 613 301 Hall v. Geiger-Jones Co., 242 U. S. 539 646,653 Hamilton v. Regents, 293 U.S. 245 391,405,411 Hamilton, G. & C. T. Co. v. Parish, 67 Ohio St. 181 274 Hammer v. Dagenhart, 247 U. S. 251 510 Hanna Furnace Corp. v. United States, 323 U. S. 667 190 XLIV TABLE OF CASES CITED. Page Hans, In re, 339 U. S. 976 768 Harper v. State, 90 Tex. Cr. R.252 283 Harris v. United States, 331 U. S. 145 63,70,74,78 H a r t f o r d-Empire Co. v. United States, 323 U. S. 386 833 Harvester Co. v. Evatt, 329 U. S. 416 546 Harvester Co. v. Kentucky, 234 U. S. 216 135 Hatch v. Reardon, 204 U. S. 152 410 Hawk, Ex parte, 321 U. S. 114 207-215,230,234-237 Hawk v. Jones, 160 F. 2d 807; 66 F. Supp. 195 231 Hawk v. Nebraska, 339 U. S. 923 230 Hawk v. Olson, 326 U. S. 271 203,204,218,230 Hawk v. Olson, 145 Neb. 306 230 Hawk v. Olson, 146 Neb. 875 230 Hawk v. State, 151 Neb. 717 231 Hazeltine Research v. Admiral Corp., 87 F. Supp. 72 833 Hazeltine Research v. De Wald Corp., 84 N. Y. S. 2d 597 834 Heather v. Palmyra, 317 Mo. 1320 357 Hebert v. Louisiana, 272 U. S. 312 467 Hedger Transp. Corp. v. Bushey & Sons, 155 F. 2d 321 693 Heike v. United States, 227 U. S. 131 342 Heim, In re, 335 U. S. 856 768 Helvering v. Claiborne-Annapolis Ferry Co., 93 F. 2d 875 590 Helvering v. Davis, 301 U. S. 619 739 Helvering v. Flaccus Leather Co., 313 U. S. 247 628 Helvering v. Hallock, 309 U. S. 106 47 Helvering v. Mitchell, 303 U. S. 391 492-494 Page Helvering v. San Joaquin Fruit Co., 297 U. S. 496 628 Hendrick v. Maryland, 235 U. S. 610 551,561 Hendrix Estate, 77 Cal. App. 2d 647 89 Henry v. Hodges, 171 F. 2d 401 107,108 Henry Ford & Son v. Little Falls Co., 280 U. S. 369 734, 757 Herminghaus v. So. Cal. Edison Co., 200 Cal. 81 749 Herndon v. Lowry, 301 U. S. 242 402 Herron, In re, 77 N. J. L. 315 27 Herzog v. Colpoys, 79 U. S. App. D. C. 81 211 Hess v. Pawloski, 274 U. S. 352 315 Hicklin v. Coney, 290 U. S. 169 551,553,559,561 Hill v. Florida, 325 U. S. 538 457,459 Hill v. State, 144 Tex. Cr. R. 415 289 Hill v. Texas, 316 U. S. 400 283- 301 Hillside Water Co. v. Los Angeles, 10 Cal. 2d 677 754 Hipolite Egg Co. v. United States, 220 U. S. 45 510 Hirabayashi v. United States, 320 U. S. 81 391 Hirota v. MacArthur, 338 U. S. 197 781,798 Hirshberg v. Cooke, 336 U. S. 210 109 Hoaglund, Matter of, 297 N. Y. 920; 272 App. Div. 1040; 194 Mise. 803 311 Hoke v. United States, 227 U. S. 308 510 Holiday v. Johnson, 313 U. S. 342 204 Holker v. Hennessey, 141 Mo. 527 72 Honeyman v. Hanan, 300 U. S. 14 678 Hooper v. California, 155 U. S. 648 654 TABLE OF CASES CITED. xlv Page Hoopeston Canning Co. v. Cullen, 318 U. S. 313 647, 650,654,659 Hopkins v. United States, 171 U. S. 578 492 Hotel Employees’ Local v. Board, 315 U. S. 437 466, 480,481,537 House v. Mayo, 324 U. S. 42 208,215 Howard v. Thompson, 72 F. Supp. 695 252 Howell v. Kincannon, 181 Ark. 58 28 Howell v. Todhunter, 181 Ark.250 28 H-P-M Development Corp. v. Watson Co., 71 F. Supp. 906 833 Hudson County Water Co. v. McCarter, 209 U. S. 349 134,560 Hughes v. Superior Court, 339 U. S. 460 474,479 Huling v. Kaw Valley R. Co., 130 U. S. 559 316 Humphrey v. Smith, 336 U.S. 695 111,783 Humphreys T. Co. v. Frank, 46 Colo. 524 750 Huron Holding Corp. v. Lincoln Co., 312 U. S. 183 649 Hurtado v. California, 110 U. S. 516 302 Hyatt v. Corkran, 188 U. S. 691 651 Hygrade Provision Co. v. Sherman, 266 U. S. 497 413 Hynes v. Grimes Packing Co^.337 U. S. 86 722 Imhaeuser v. Buerk, 101 U. S. 647 608 Indiana Farmer’s Guide v. Prairie Co., 293 U. S. 268 491 Ingels v. Morf, 300 U. S. 290 544,547,556,561 Inland Empire Council v. Millis, 325 U. S. 697 598 In re. See name of party. Insurance Group v. D. & R. G. W. R. Co., 329 U. S. 607 198 Page International Auto. Workers v. Board, 336 U. S. 245 459 International Brotherhood of Teamsters v. Hanke, 339 U. S. 470 496 International Bus. Mach. Corp. v. United States, 298 U. S. 131 830 International Carbonic Co. v. Nat. Carbonic Products, 158 F. 2d 285; 57 F. Supp. 248 833,834 International Grain Co. v. Dill, 13 Fed. Cas. 70 686 International Harvester Co. v. Evatt, 329 U. S. 416 546 International Harvester Co. v. Kentucky, 234 U. S. 216 135 International Paper Co. v. United States, 282 U. S. 399 737,739 International Salt Co. v. United States, 332 U. S. 392 830 International Shoe Co. v. Washington, 326 U. S. 310 648-651,654,658 Interstate Busses Corp. v. Blodgett, 276 U. S. 245 550, 561 Interstate Commerce Comm’n v. Hoboken Mfrs. R. Co., 320 U. S. 368 193 Interstate Commerce Comm’n v. Railway Labor Assn., 315 U. S. 373 148-154 Interstate Transit v. Lindsey, 283 U. S. 183 544, 550,551,561 Irving Trust Co. v. Day, 314 U. S. 556 92 Irwin v. Phillips, 5 Cal. 140 747 Italiano v. State, 141 Fla. 249 63 Jackman v. Rosenbaum Co., 260 U. S. 22 17,134 Jackson v. Decker, 11 Johns. 418 776 Jacob v. Roberts^ 223 U. S. 261 317 Jacobson v. Massachusetts, 197 U. S. 11 398 XLVI TABLE OF CASES CITED. Page James v. Marinship Corp., 25 Cal. 2d 721 463 James-Dickinson Co. v. Harry, 273 U. S. 119 468 Japanese Immigrant Case, 189 U. S.86 48,50,771 Jennison v. Kirk, 98 U. S. 453 748 Jewell Ridge Corp. v. Local No. 6167, 325 U. S. 161 523 J. I. Case Co. v. Board, 321 U. S. 332 401 Johnson v. Alexander, 87 Utah 376 30 Johnson v. Leazenby, 202 Mo. App. 232 814 Johnson v. Stevenson, 170 F. 2d 108 . 277 Johnson v. United States, 333 U. S. 10 85 Johnson v. Zerbst, 304 U. S. 458 218 Jones v. Opelika, 316 U. S. 584 445 Jordan v. State, 124 Tenn. 81 28 Juggins v. Executive Coun- cil, 257 Mass. 386 31 Jugiro, In re, 140 U. S. 291 206 Jumey v. MacCracken, 294 U. S. 125 327, 331,339,340,366 Kahn v. Anderson, 255 U. S. 1 108 Kaiser v. United States, 108 Ct. Cl. 47 126 Kane v. New Jersey, 242 U. S. 160 544,551,561 Kansas v. Colorado, 185 U. S. 125 715 Kaplan Bros., In re, 213 F. 753 342 Katzinger Co. v. Chicago Mfg. Co., 329 U. S. 394 836, 839 Kawato, Ex parte, 317 U. S. 69 776,792,796 Keener v. Sharp, 341 Mo. 1192 811,814 Keller v. Potomac Power Co., 261 U. S. 428 467 Kendall v. Winsor, 21 How. 322 837 Page Kennedy v. Silas Mason Co., 334 U. S. 249 499,502,527,678 Kennedy v. Silas Mason Co., 164 F. 2d 1016 508 Kennedy v. Tyler, 269 U. S. 13 206,234 Kentucky Mfg. Co. v. Elliott County Court, 239 Ky. 797 357 Kentucky Whip Co. v. Ill. Cent. R. Co., 299 U. S. 334 510 Keokee Coke Co. v. Taylor, 234 U. S. 224 468 Kershaw v. Kelsey, 100 Mass. 561 769 Keystone Bridge Co. v. Phoenix Co., 95 U. S. 274 615 King v. Order of Travelers, 333 U. S. 153 753 King v. Turner, 5 Mau. & Sei. 206 361 Kingston Dry Dock Co. v. Lake Champlain Co., 31 F. 2d 265 690,693 Kneeland v. Connally, 70 Ga. 424 77 Knight v. U. S. Land Assn., 142 U. S. 161 716 Kohl v. United States, 91 U. S. 367 93 Koster v. Lumbermens Cas. Co., 330 U. S. 518 697 Kovacs v. Cooper, 336 U. S. 77 398,444 Krautwurst, In re, 334 U. S. 826 768 Krulewitch v. United States, 336 U. S. 440 432 Kwock Jan Fat v. White, 253 U. S. 454 48 LaBelle Iron Works v. United States, 256 U. S. 377 589,592 Labor Board v. American Creosoting Co., 139 F. 2d 193 580 Labor Board v. American Potash Corp., 98 F. 2d 488 567,569 Labor Board v. Andrew Jer-gens Co., 175 F. 2d 130 581 Labor Board v. Bachelder, 125 F. 2d 387 567 TABLE OF CASES CITED. XLVII Page Labor Board v. Baltimore Transit Co., 140 F. 2d 51 567 Labor Board v. Biles-Coleman Lumber Co., 96 F. 2d 197 568 Labor Board v. Condenser Corp., 128 F. 2d 67 567,569 Labor Board v. Cooper Co., 179 F. 2d 241 567,571,575 Labor Board v. Crompton-Highland Mills, 337 U. S. 217 567,581 Labor Board v. Crompton-Highland Mills, 167 F. 2d 662 581 Labor Board v. Donnelly Garment Co., 330 U. S. 219 569,570,574 Labor Board v. Draper Corp., 159 F. 2d 294 567 Labor Board v. Eanet, 85 U. S. App. D. C. 371 582 Labor Board v. Electric Vacuum Cleaner Co., 315 U. S. 685 580 Labor Board v. Fansteel Corp., 306 U. S. 240 459 Labor Board v. Fickett- Brown Mfg. Co., 140 F. 2d 883 567 Labor Board v. General Motors Corp., 179 F. 2d 221 568, 581 Labor Board v. Hearst Publications, 322 U. S. Ill 761 Labor Board v. Indiana & Michigan Elec. Co., 318 U. S. 9 569 Labor Board v. Jones & Laughlin, 301 U. S. 1 387,468 Labor Board v. Mexia Textile Mills, 339 U. S. 563 578, 579 Labor Board v. N. Y. Merchandise Co., 134 F. 2d 949 371 Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 567,582 Labor Board v. Pool Mfg. Co., 339 U. S. 577 570 Labor Board v. Remington Rand, 94 F. 2d 862 567,568 Page Labor Board v. Swift & Co., 129 F. 2d 222 567,569 Labor Board v. Todd Co., 173 F. 2d 705 581 Labor Board v. Toledo Desk Co., 158 F. 2d 426 567 La Crosse Tel. Corp. v. Board, 336 U. S. 18 457,459 Lamar v. Browne, 92 U. S. 187 772 Lammers v. United States, 339 U. S. 976 768 Landis v. North American Co., 299 U. S. 248 602,605 Lang, In re, 77 N. J. L. 207 27 Lang v. Comm’r, 289 U. S. 109 628 Lanzetta v. New Jersey, 306 U. S. 451 82 Lapides v. Clark, 85 U. S. App. D. C. 101 391 La Tourette v. McMaster, 248 U. S. 465 95 Latter-Day Saints v. Porterville, 338 U. S. 805 398 Leber v. United States, 170 F. 881 334 Lee v. Thompson, 15 Fed. Cas. 233 694 Leitch Mfg. Co. v. Barber Co., 302 U. S. 458 830 Levinson v. Spector Motor Service, 330 U. S. 649 517 Lewis Blue Pt. Oyster Co. v. Briggs, 229 U. S. 82 805 Lichter v. United States, 334 U. S. 742 499,506,598 Liggett Co. v. Lee, 288 U. S. 517 475 Lindsley v. Natural Gas Co., 220 U. S. 61 468 Littlefield v. Town of Adel, 151 Ga. 684 357 Lockington v. Smith, 15 Fed. Cas. 758 775 Lockington’s Case, Brightly (Pa., 1813), 269 775 Lodi v. East Bay Util. Dist., 7 Cal. 2d 316 754 London Guarantee Co. v. Doyle & Doak, 134 F. 125 334 Los Angeles v. Glendale, 23 Cal. 2d 68 754 XLVIII TABLE OF CASES CITED. Page Lottery Case, 188 U. S. 321 510 Loubriel v. United States, 9 F. 2d 807 335 Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 11 Louis K. Liggett Co. v. Lee, 288 U. S. 517 475 Louisville & N. R. Co. v. Mottley, 211 U. S. 149 672 Louisville Underwriters, In re, 134 U. S. 488 698 Lovell v. Griffin, 303 U. S. 444 403 Low Wah Suey v. Backus, 225 U. S. 460 771 Luckenbach S. S. Co. v. Grace & Co., 267 F. 676 689 Ludecke v. Watkins, 335 U. S. 160 775,784 Luria v. United States, 231 U. S.9 391 Lux v. Haggin, 69 Cal. 255 749, 750 L. Vogelstein & Co. v. United States, 262 U. S. 337 130 137 Lyeth v. Hoey, 305 U. S. 188* 92 Lykes Bros. S. S. Co. v. Comm’r, 126 F. 2d 725 590 Lyon v. Harkness, 151 F. 2d 731 211 Mac. See also Me. MacDougall v. Green, 335 U. S. 281 277,280 MacGregor v. Westinghouse Co., 329 U. S. 402 836,839 Machine Co. v. Murphy, 97 U. S. 120 608 Mackenzie v. Hare, 239 U. S. 299 391 Mager v. Grima, 8 How. 490 92 Mahn v. Harwood, 112 U. S. 354 618 Makowski v. Benson, 158 F. 2d 158 211 Manro v. Almeida, 10 Wheat. 473 693 Marbury v. Madison, 1 Cranch 137 124 Marconi Wireless Co. v. United States, 320 U. S. 1 614 Marino v. Ragen, 332 U. S. 561 208,661 Page Marion & R. V. R. Co. v. United States, 270 U. S. 280 128 Markuson v. Boucher, 175 U. S. 184 206,235 Marron v. United States, 275 U. S. 192 61,62,78 Martin v. Mott, 12 Wheat. 19 108 Martin v. Struthers, 319 U. S. 141 444 Martin v. Texas, 200 U. S. 316 297 Martin v. Waddell, 16 Pet. 367 722 Mary, The, 9 Cranch 126 316 Massachusetts v. Missouri, 308 U. S. 1 695 Massachusetts v. New York, 271 U. S. 65 717 Masterson v. Howard, 18 Wall. 99 777 Matter of. See name of party. Maurer v. Hamilton, 309 U. S. 598 547 Maxwell v. Bugbee, 250 U. S. 525 92,95 Mayo v. United States, 319 U. S. 441 92 Me. See also Mac. McBoyle v. United States, 283 U. S. 25 380 McCabe v. A., T. & S. F. R. Co., 235 U. S. 151 825 McCarroll v. Dixie Greyhound Lines, 309 U. S. 176 551,561 McCarthy v. Arndstein, 266 U. S. 34 342 McClain v. Ortmayer, 141 U. S. 419 618 McComb v. McKay, 164 F. 2d 40 528 McCulloch v. State, 174 Ind. 525 357 McDonald v. Mabee, 243 U. S. 90 320 McDonald v. United States, 335 U. S. 451 85 McFarland v. United States, 295 F. 648 371 TABLE OF CASES CITED. XLIX Page McGahern v. Koppers Coal Co., 108 F. 2d 652 693 McGinnis, Ex parte, 14 W. N. Cas. (Pa.) 221 29 McGrain v. Daugherty, 273 U. S. 135 380 McKenna v. Fisk, 1 How. 241 796 McKnett v. St. L. & S. F. R. Co., 292 U. S. 230 94 McLaurin v. Oklahoma Regents, 339 U. S. 637 631,825 McNabb v. United States, 318 U. S. 332 67 McNaghten’s Case, 10 Cl. & F. 200 14 McNally v. Hill, 293 U. S. 131 203 Mehonray v. Foster, 132 Mo. App. 229 814 Mercoid Corp. v. Mid-Continent Co., 320 U. S. 661 830, 832,834,837,839 Mercoid Corp. v. Minneapolis-Honeywell Co., 320 U. S. 680 830 Meredith v. Winter Haven, 320 U. S. 228 251 Meridian, Ltd. v. San Francisco, 13 Cal. 2d 424 754 Merrick v. Halsey & Co., 242 U. S. 568 653 Merrill v. Yeomans, 94 U. S. 568 615 Messenger v. Anderson, 225 U. S. 436 198 Metcalf v. Watertown, 128 U. S. 586 672 Metropolis Theatre Co. v. Chicago, 228 U. S. 61 468 Mexican Power Co. v. Texas M. R. Co., 331 U. S. 731 118 Michaelson v. United States, 266 U. S. 42 364 Middle States Utilities Co. v. Osceola, 231 Iowa 462 357 Milch v. United States, 332 U. S. 789 768 Milcor Steel Co. v. Fuller Co., 316 U. S. 143 616,618 Milk Wagon Drivers v. Meadowmoor Dairies, 312 U. S. 287 466,467,481,537 874433 0—50----4 Page Miller v. Brass Co., 104 U. S. 350 614,615 Miller v. Wilson, 236 U. S. 373 468 Milliken v. Meyer, 311 U. S. 457 314 Millikin, Ex parte, 108 Tex. Cr. R. 121 30 Millikin v. Jeffrey, 117 Tex. 134 30 Minneapolis v. Minneapolis St. R. Co., 154 Minn. 401 357 Minnesota v. Brundage, 180 U. S. 499 206 Minnesota Commercial Men’s Assn. v. Benn, 261 U. S. 140 647 Minotto v. Bradley, 252 F. 600 775 Missouri v. Dockery, 191 U. S. 165 467,479 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 635, 639,825 Missouri Pac. R. Co. v. Porter, 273 U. S. 341 116,119 Mitchell v. United States, 267 U. S. 341 757,802 Mitchell v. United States, 313 U. S. 80 823,825 Monongahela Bridge Co. v. United States, 216 U. S. 177 604 Monongahela Nav. Co. v. United States, 148 U. S. 312 124 Monsky v. Warden of Clinton Prison, 163 F. 2d 978 211 Mooney v. Holohan, 294 U. S. 103 207,221,230,234 Moore v. Dempsey, 261 U. S. 86 210,233 Moore v. Ill. Cent. R. Co., 312 U. S. 630 241,244,247 Moore v. Smaw, 17 Cal. 199 719 Morf v. Bingaman, 298 U. S. 407 545,551, 553,561 Morhous v. Supreme Court, 293 N. Y. 131 230 Morris v. Williams, 149 F. 2d 703 304 Morrison v. California, 291 U. S.82 362,377 L TABLE OF CASES CITED. Page Morton Salt Co. v. Suppiger Co., 314 U. S. 488 830,832,837 Motion Pict. Pat. Co. v. Universal Co., 243 U. S. 502 830,837 Muhlbauer, In re, 336 U. S. 964 768 Mullan v. United States, 140 U. S. 240 108 Mullane v. Central Hanover Bank, 339 U. S. 306 651 Mumford v. Wardwell, 6 Wall. 423 716 Munroe v. United States, 216 F. 107 366 Murphy v. United States, 272 U. S. 630 494 Murray’s Lessee v. Hoboken Land Co., 18 How. 272 253 Murrell v. Commonwealth, 291 Ky. 65 29 Musser v. Utah, 333 U. S. 95 420 Myerson v. Samuel, 74 F. Supp. 315 304 Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362 467 National Labor Relations Board. See Labor Board. National Lockwasher Co. v. Garrett Co., 137 F. 2d 255 831 Neal v. Delaware, 103 U. S. 370 283,287,290,301 Near v. Minnesota, 283 U. S. 697 402 Nebraska v. Wyoming, 295 U. S. 40 734 Nebraska v. Wyoming, 325 U. S. 589 734,759 Neirbo Co. v. Bethlehem Corp., 308 U. S. 165 674 New Negro Alliance v. Sani- tary Grocery Co., 303 U. S. 552 463 New Orleans v. United States, 10 Pet. 662 704 New York, The, 113 F. 810 695 New York v. Eno, 155 U. S. 89 206 New York City, Matter of, 196 N. Y. 255 274 New York, C.&St.L. R. Co. v. Affolder, 174 F. 2d 486 101 Page New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 207 New York ex rel. Whitman v. Wilson, 318 U. S. 688 230 New York Life Ins. Co. v. Edwards, 271 U. S. 109 621, 627 New York Rapid Transit Corp. v. New York, 303 U. S. 573 95 Ng Fung Ho v. White, 259 U. S. 276 24,253 Nixon v. Herndon, 273 U. S. 536 277,280,281 Nobles v. Georgia, 168 U. S. 398 11,12 Norris v. Alabama, 294 U. S. 587 283,286 North American Co. v. Comm’n, 327 U. S. 686 406 Nusser v. Aderhold, 164 F. 2d 127 211 Nymph, The, 18 Fed. Cas. 506 490 O’Donnell v. E., J. & E. R. Co., 338 U. S. 384 98-101 Ohio Citizens Trust Co. v. Air-Way Corp., 56 F. Supp. 1010 833 Ohio ex rel. Clarke v. Decke-bach, 274 U. S. 392 391 Oklahoma v. Texas, 253 U. S. 465 715 Oklahoma ex rel. Phillips v. Atkinson Co., 313 U. S. 508 736 Old Colony R. Co. v. Comm’r, 284 U. S. 552 621, 627 Old Wayne Life Assn. v. Mc- Donough, 204 U. S. 8 653,658 Oliver, In re, 333 U. S. 257 23,24 Olson v. United States, 292 U. S. 246 123 Omaechevarria v. Idaho, 246 U. S. 343 413 O’Neil v. Building Employees Union, 9 Wash. 2d 507 536 O’Neill v. Cunard White Star, 160 F. 2d 446 697 Opp Cotton Mills v. Adm’r, 312 U. S. 126 598 TABLE OF CASES CITED. LI Page Order of Railway Conductors v. Pitney, 326 U. S. 561 242,243,251,256 Osborn v. Ozlin, 310 U. S. 53 647,650,659 Overnight Motor Co. v. Missel, 316 U. S. 572 517 Oyama v. California, 332 U. S. 633 93 Palko v. Connecticut, 302 U.S. 319 464 P a n a g h i a Kathariotisa, The, 165 F. 2d 430 689 Panhandle Oil Co. v. Knox, 277 U. S. 218 410 Pantex Press. Mach. Co. v. United States, 108 Ct. Cl. 735 126 Parker v. Los Angeles County, 338 U. S. 327 657 Peabody v. Vallejo, 2 Cal. 2d 351 754 Pearl Assurance Co. v. Harrington, 313 U. S. 549 391 Pennekamp v. Florida, 328 U. S. 331 398 Pennock v. Dialogue, 2 Pet. 1 837 Pennoyer v. Neff, 95 U. S. 714 23,311,658 Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 134 Pennsylvania Lumbermen’s Ins. Co. v. Meyer, 197 U. S. 407 649 People v. Chiagles, 237 N. Y. 193 72 People v. Geary, 298 Ill. 236 20,27 People v. Preston, 345 Ill. 11 27 People v. Sadness, 300 N. Y. 69 230 People v. Skwirsky, 213 N. Y. 151 32 Pepke v. Cronan, 155 U. S. 100 206 Perkins v. Elg, 307 U. S. 325 770 Phillips v. Atkinson Co., 313 U. S. 508 736 Phillips v. Comm’r, 283 U. S. 589 599 Phyle v. Duffy, 334 U. S. 431 10,13-15 Page Phyle v. Duffy, 34 Cal. 2d 144 29 Pierce v. United States, 252 U. S. 239 395 Pierce v. United States, 314 U. S.306 367 Pierre v. Louisiana, 306 U. S. 354 283,286,289-301 Pipe Line Cases, 234 U. S. 548 134 Pittman v. Home Owners’ Loan Corp., 308 U. S. 21 91 Plankinton Packing Co. v. Board, 338 U. S. 953 457,459 Platt v. New York, 276 App. Div. 873; 196 Mise. 360 274 Plessy v. Ferguson, 163 U. S. 537 636 Plummer v. Coler, 178 U. S. 115 92 Pollard’s Lessee v. Hagan, 3 How. 212 704,716,720,722 Pope Mfg. Co. v. Gormully, 144 U. S. 224 839 Potter v. Deyo, 19 Wend. 361 362 Powell v. Alabama, 287 U. S. 45 221 Powell v. U. S. Cartridge Co., 339 U. S. 497 503,522 Prentis v. Atlantic Coast Line, 211 U. S. 210 467,479 Presiding Bishop v. Porterville, 338 U. S. 805 398 Price v. Johnston, 334 U. S. 266 204 Priest v. Las Vegas, 232 U. S. 604 23,314 Prince v. Massachusetts, 321 U. S. 158 398,399 Propper v. Clark, 337 U. S. 472 251,843 Provident Savings Assn. v. Kentucky, 239 U. S. 103 653 Public Workers v. Mitchell, 330 U. S. 75 398,401,404,405 Pueblo Gas Co. v. Board, 118 F. 2d 304 567 Pumpelly v. Green Bay Co., 13 Wall. 166 809 Pyramid Motor Corp. v. Is- pass, 330 U. S. 695 517 LII TABLE OF CASES CITED. Page Pyrene Mfg. Co. v. Ur- quhart, 69 F. Supp. 555 833 Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 95 Quirin, Ex parte, 317 U. S. 1 779,781,786,790-794 Radio Corporation of Amer- ica v. Lord, 28 F. 2d 257 831 Railway Conductors v. Pit- ney, 326 U. S. 561 242, 243,251,256 Railway Mail Assn. v. Corsi, 326 U. S. 88 402,463 Rank v. Krug (D. C. S. D. Cal., Apr. 12, 1950) 753,759 Rapid, The, 8 Cranch 155 772 Rast v. Van Deman & Lewis, 240 U. S. 342 95 Reid v. Jones, 187 U. S. 153 206 Reifsnyder v. Lee, 44 Iowa 101 72 Reisinger v. Comm’r, 144 F. 2d 475 592 Rescue Army v. Municipal Court, 331 U. S. 549 4,631 Rex v. Davies, [1945] 1 K. B. 435 183 Reynolds v. United States, 98 U. S. 145 398,399 Rice v. Dreifus Co., 96 F. 2d 80 692 Rice v. O. S. L. R. Co., 33 Idaho 565 117 Risse, Ex parte, 257 F. 102 775 Robertson v. Baldwin, 165 U. S. 275 72 Robertson v. California, 328 U. S. 440 652 Roland Electric Co. v. Wall- ing, 326 U. S. 657 510,511 Roles v. Board, 61 F. Supp. 395 304 Roller v. Holly, 176 U. S. 398 314 Roschen v. Ward, 279 U. S. 337 380 Ross v. Nierstheimer, 159 F. 2d 994 211 Rossi v. United States, 289 U. S. 89 361,377 Roumanian, The, [1916] 1 A. C. 124; 1915, Prob. Div. 26 769 Page Royall, Ex parte, 117 U. S. 241 205,210,215,222,236 Royal Typewriter Co. v. Remington Rand, 168 F. 2d 691 608 Rutherford Food Corp. v. McComb, 331 U. S. 722 528 Sacramento & San Joaquin Drain. Dist. Co. v. Superior Court, 196 Cal. 414 753 Saia v. New York, 334 U. S. 558 444 St. Louis-S. F. R. Co. v. Russell, 358 Mo. 1136 252 Salinger v. Loisel, 265 U. S. 224 215,224 Sanborn Estate, 33 Cal. 2d 647 88 Sanitary Refrigerator Co. v. Winters, 280 U. S. 30 608 Saveall v. Demers, 322 Mass. 70 478 Schaefer v. United States, 251 U. S. 466 395 Schechter Corp. v. United States, 295 U. S. 495 515 Schechtman v. Foster, 172 F. 2d 339 228 Schenck v. United States, 249 U. S. 47 393, 395,397 Schine Theatres v. United States, 334 U. S. 110 493 Schmidt, In re, 339 U. S. 976 768 Schneider v. State, 308 U. S. 147 400,403 Schneiderman v. United States, 320 U. S. 118 452 Schwarzkopf v. Uhl, 137 F. 2d 898 775 Scott Paper Co. v. Marcalus Co., 326 U. S. 249 839 Scranton v. Wheeler, 179 U. S. 141 805,809 Screws v. United States, 325 U. S. 91 413 Seaboard Air Line R. Co. v. United States, 261 U. S. 299 762 Second Employers’ Liability Cases, 223 U. S. 1 94 Security Savings Bank v. California, 263 U. S. 282 316 TABLE OF CASES CITED. LIII Page Security Trust Co., Matter of, 189 Mise. 748 311 Senn v. Tile Layers Union, 301 U. S. 468 465, 476,477,482,483,537 Seven-Up Bottling Co. v. United States, 107 Ct. Cl. 402 125 Seymour v. Osborne, 11 Wall. 516 608 Shank v. Todhunter, 189 Ark. 881 28 Shapiro v. United States, 335 U. S. 1 421 Shelley v, Kraemer, 334 U. S. 1 635,641,826 Shields v. Thomas, 18 How. 253 706 Shields v. Utah Idaho R. Co., 305 U. S. 177 252 Shively v. Bowlby, 152 U. S. 1 716,745 Silas Mason Co. v. Comm’n, 302 U. S. 186 734,759 Silverthorne Lumber Co. v. United States, 251 U. S. 385 69,74 Sinclair Refining Co. v. Jenkins Co., 289 U. S. 689 267 Singer v. Yokohama Bank, 293 N. Y. 542; 299 N. Y. .113 842 Sipuel v. Board of Regents, 332 U. S. 631 635,639 Skiriotes v. Florida, 313 U. S. 69 467 Slocum v. D., L. & W. R. Co., 339 U. S. 239 255-257 Smith, In re, 25 N. M. 48 20 Smith v. Allwright, 321 U. S. 649 277 Smith v. Lott, 156 Ga. 590 357 Smith v. Texas, 311 U. S. 128 283-289,298,301 Smith v. United States, 337 U. S.137 347 Smith Corp. v. United States, 301 U. S. 669 190 Snowden v. Hughes, 321 U. S. 1 467 Sola Electric Co. v. Jefferson Co., 317 U. S. 173 838 Page Solesbee v. Balkcom, 205 Ga. 122 31 Soliah v. Heskin, 222 U. S. 522 467 Sontag Stores Co. v. National Nut Co., 310 U. S. 281 617,618 South Carolina v. Georgia, 93 U. S. 4 737 Southern California Edison Co. v. Herminghaus, 275 U. S. 486 749 Southern Pacific Co. v. Edwards, 57 F. 2d 891 593 Southern R. Co. v. Clift, 260 U. S. 316 199 Southern R. Co. v. Railway Conductors, 210 S. C. 121 246 Southland Gasoline Co. v. Bayley, 319 U. S. 44 517 Southport Petroleum Co. v. Board, 315 U. S. 100 569,574 Spencer, Ex parte, 228 U. S. 652 207 Spieres v. Parker, 1 T. R. 144 362 Springfield Waterworks Co. v. Jenkins, 62 Mo. App. 74 814 Sproles v. Binford, 286 U. S. 374 468 Sprout v. South Bend, 277 U. S. 163 544,549,558,561 Stafford v. Wallace, 258 U. S. 495 492 Standard Oil Co. v. Johnson, 316 U. S. 481 678 Standard Oil Co. v. United States, 283 U. S. 163 836 Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20 493 Stark v. Wickard, 321 U. S. 288 250,251 State. See also name of State. State v. Adams, 103 W. Ya. 77 63 State v. Allen, 204 La. 513 22,27 State v. Bethune, 88 S. C. 401 28 State v. Carenza, 357 Mo. 1172 63 LIV TABLE OF CASES CITED. Page State v. Conner, 59 Idaho 695 63 State v. Davis, 6 Wash. 2d 696 28 State v. Godwin, 216 N. C. 49 27 State v. Green, 88 Utah 491 30 State v. Gunter, 208 La. 694 27 State v. Hebert, 187 La. 318 27 State v. Nordstrom, 21 Wash. 403 28 State v. Sullivan, 229 N. C. 251 27 State v. Vann, 84 N. C. 722 27 State ex rel. Alfani v. Superior Court, 139 Wash. 125 28 State ex rel. Berge v. Superior Court, 154 Wash. 144 334 State ex rel. Fong v. Superior Court, 29 Wash. 2d 601 63 State ex rel. Gulf Ins. Co. v. Live Oak City, 126 Fla. 132 357 State ex rel. Johnson v. Alexander, 87 Utah 376 30 State ex rel. Minneapolis v. Minneapolis St. R. Co., 154 Minn. 401 357 State ex rel. St. Louis-S. F. R. Co. v. Russell, 358 Mo. 1136 252 State ex rel. Wong You v. District Court, 106 Mont. 347 63 Stattmann, In re, 335 U. S. 805 768 Stearns v. Minnesota, 179 U. S. 223 716,722 Steele v. L. & N. R. Co., 323 U. S. 192 244, 250,252,402,463 Stone v. United States, 167 U. S. 178 494 Stonebreaker v. Smyth, 163 F. 2d 498 211 Strassheim v. Daily, 221 U. S. 280 651 Strauder v. West Virginia, 100 U. S. 303 301 Stromberg v. California, 283 U. S. 359 402 Page Stucker v. Commonwealth, 261 Ky. 618 29 Summers, In re, 325 U. S. 561 391,398,405,411,448 Swaim v. United States, 165 U. S. 553 108,111 Sweatt v. Painter, 339 U. S. 629 638,642 Swenson v. Seattle Labor Council, 27 Wash. 2d 193 536 S & W Fine Foods v. Retail Drivers, 11 Wash. 2d 262 536 Switchmen’s Union v. Board, 320 U. S. 297 250,601 Sylvester’s Case, 7 Mod. 150 769 Takahashi v. Fish & Game Comm’n, 334 U. S. 410 391 Tanner v. Little, 240 U. S. 369 267 Taylor v. Anderson, 234 U. S. 74 672 Taylor v. United States, 286 U. S. 1 64,65,75,84 Teamsters Union v. Hanke, 339 U. S. 470 496 Techt v. Hughes, 229 N. Y. 222 769,772 Tennessee v. Union & Plant- ers’ Bank, 152 U. S. 454 672, 673 Terminal R. Assn. v. United States, 266 U. S. 17 371 Terminiello v. Chicago, 337 U. S. 1 409,444 Texas & N. O. R. Co. v. Brotherhood of Clerks, 281 U. S. 548 250 Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. Ill l16 Texas & P. R. Co. v. Abilene Co., 204 U. S. 426 248,249 Texas & P. R. Co. v. United States, 286 U. S. 285 590 Thomas v. Collins, 323 U. S. 516 399,403,433,444 Thornhill v. Alabama, 310 U. S. 88 465,474,482,537 Thornton v. United States, 271 U. S. 414 512 Tigner v. Texas, 310 U. S. 141 467 TABLE OF CASES CITED. LV Page Tillson v. United States, 100 U. S. 43 739 Tinsley v. Anderson, 171 U. S. 101 206,234,235 Tisi v. Tod, 264 U. S. 131 771 Toomer v. Witsell, 334 U. S. 385 704 Tot v. United States, 319 U. S. 463 362,376 Towne v. Eisner, 245 U. S. 418 678 Townsend v. Burke, 334 U. S. 736 661 Transparent-Wrap Mach. Corp. v. Stokes & Smith, 329 U. S. 637 834 Travelers Health Assn. v. Virginia, 188 Va. 877 654 Truax v. Raich, 239 U. S. 33 391 Trupiano v. United States, 334 U. S. 699 59,64-67,84 Tumey v. Ohio, 273 U. S. 510 175,176 Tunstall v. Locomotive Firemen, 323 U. S. 210 252, 402,463 Twin City Pipe Line Co. v. Harding Co., 283 U. S. 353 538 Union Brokerage Co. v. Jensen, 322 U. S. 202 558 United Auto. Workers v. Board, 336 U. S. 245 459 United Brotherhood of Carpenters v. United States, 330 U. S. 395 376 United Public Workers v. Mitchell, 330 U. S. 75 398-405 United Shoe Mach. Corp. v. United States, 258 U. S. T 451 830,831 United States. See also U. S. ex rel. United States, Ex parte, 242 U. S. 27 12 United States, Ex parte, 287 U. S. 241 599 United States v. Alexander, 148 U. S. 186 802 United States v. American Medical Assn., 72 App. D. C. 12 491 Page United States v. American Sheet & Tin Co., 301 U. S. 402 190,193,197 United States v. American Trucking Assns., 310 U. S. 534 517,761 United States v. Appalachian Power Co., 311 U. S. 377 736,737,756 United States v. Ballard, 322 U. S. 78 443 United States v. Bank of New York, 296 U. S. 463 246 United States v. Barsky, 72 F. Supp. 165 335 United States v. Belmont, 301 U. S. 324 91,718 United States v. Bryan, 339 U. S. 323 351,352,374,375 United States v. Burley, 172 F. 615 750 United States v. Burr, 25 Fed. Cas. 14,692g 176 United States v. Butler, 297 U. S.1 738 United States v. California, 332 U. S. 19 704,705,712-724 United States v. Carolene Products Co., 304 U. S. 144 423 United States v. Carver, 260 U. S. 482 226 United States v. Causby, 328 U. S. 256 810,812 United States v. Certain Parcels of Land, 55 F. Supp.257 273 United States v. Chandler-Dunbar Co., 229 U. S. 53 736,737,805,812 United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592 801,805-814 United States v. C. I. O., 335 U. S. 106 407,421 United States v. Classic, 313 U. S. 299 277,279 United States v. Commodore Park, Inc., 324 U. S. 386 736,737,756,805,810 United States v. Cress, 243 U. S. 316 806,809-812 LVI TABLE OF CASES CITED. Page United States v. Curtiss-Wright Corp., 299 U. S. 304 789 United States v. Darby, 312 U. S. 100 92,510 United States v. Di Re, 332 U. S. 581 85 United States v. Erie R. Co., 280 U. S. 98 116,119 United States v. Felin & Co., 334 U. S. 624 123,140 United States v. Fleischman, 339 U. S. 349 348 United States v. Fox, 94 U. S. 315 90-92 United States v. General Motors Corp., 323 U. S. 373 263-266,269 United States v. Goldman, 277 U. S. 229 364 United States v. Goldstein, 105 F. 2d 150 331 United States v. Goltra, 312 U. S. 203 739,762 United States v. Gypsum 832,838,840 United States v. Harvey Steel Co., 196 U. S. 310 836 United States v. Hayward, 26 Fed. Cas. 240 362 United States v. Hill, 248 U. S. 420 512 United States v. Hutcheson, 312 U. S. 219 490 United States v. Johnson, 327 U..S. 106 570 United States v. Joint Traffic Assn., 171 U. S. 505 491 United States v. Kirby, 7 Wall. 482 338 United States v. Kirschen-blatt, 16 F. 2d 202 80 United States v. Lefkowitz, 285 U. S. 452 62,64,74, 78,80 United States v. Line Material Co., 333 U. S. 287 840 United States v. Los Angeles & S. L. R. Co., 273 U. S. 299 600 United States v. Louisiana, 339 U. S. 699 709,712,720 Page United States v. Lovett, 328 U. S. 303 413,414,421 United States v. Lowden, 308 U. S. 225 148,153,154 United States v. Lynah, 188 U. S. 445 806,809,810 United States v. Manzi, 276 U. S. 463 770 United States v. Masonite Corp., 316 U. S. 265 837 United States v. Miller, 317 U. S. 369 123 United States v. Mission Rock Co., 189 U. S. 391 716 United States v. Monia, 317 U. S. 424 337,347 United States v. Oregon, 295 U. S.1 716 United States v. Pan Am. Petrol. Corp., 304 U. S. 156 190,193 United States v. Paramount Pictures, 334 U. S. 131 489, 831 United States v. Parrott, 1 McAll. 271 747 United States v. Perkins, 163 U. S. 625 92,93,907 United States v. Petty Motor Co., 327 U. S. 372 263, 265,269 United States v. Poller, 43 F. 2d 911 64 United States v. Ragen, 314 U. S. 513 413 United States v. Realty Co., 163 U. S. 427 757 United States v. Rio Grande Irrig. Co., 174 U. S. 690 756 United States v. River Rouge Imp. Co., 269 U. S. 411 737 United States v. Saylor, 322 U. S. 385 . 279 United States v. Schwimmer, 279 U. S. 644 439 United States v. Socony-Vacuum Oil Co., 310 U. S. 150 489 United States v. South-Eastern Underwriters Assn., 322 U. S. 533 512,652 TABLE OF CASES CITED. LVII Page United States v. Sprague, 282 U. S. 716 92 United States v. Texas, 143 U. S. 621 701 United States v. Texas, 162 U. S. 1 715 United States v. Thayer-West Hotel Co., 329 U. S. 585 739,762 United States v. Trans-Mo. Freight Assn., 166 U. S. 290 491 United States v. Turner, 266 F. 248 362 United States v. United Mine Workers, 330 U. S. 258 528 United States v. U. S. Gypsum Co., 333 U. S. 364 495, 832,838,840 United States v. Wabash R. Co., 321 U. S. 403 190, 193,195 United States v. Wallace & Tiernan, 336 U. S. 793 199 United States v. Welch, 217 U. S. 333 809 United States v. White, 322 U. S. 694 358,377 United States v. Williams, 188 U. S. 445 809 United States v. Willow River Power Co., 324 U. S. 499 736,737,756,805-815 United States v. Wittek, 337 U. S. 346 531 United States v. Women’s Sportswear Assn., 336 U. S. 460 490 United States v. Wood, 299 U. S. 123 165-168, T 172,176,177 United States v. Yellow Cab Co., 338 U. S. 338 495 U. S. ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 407 U- S. ex rel. Hirshberg v. Cooke, 336 U. S. 210 109 0- S. ex rel. Kennedy v. Tyler, 269 U. S. 13 206,234 Page U. S. ex rel. Monsky v. Warden of Clinton Prison, 163 F. 2d 978 211 U. S. ex rel. Ross v. Nierst-heimer, 159 F. 2d 994 211 U. S. ex rel. Schwarzkopf v. Uhl, 137 F. 2d 898 775 U. S. ex rel. Tisi v. Tod, 264 U. S. 131 771 U. S. ex rel. Vajtauer v. Comm’r, 273 U. S. 103 771 U. S. Merchants’ Ins. Co. v. A/S Afrika Line, 65 F. 2d 392 697 United Steelworkers v. Board, 339 U. S. 382 846 Urquhart v. Brown, 205 U. S. 179 206,234 Uveges v. Pennsylvania, 335 U. S. 437 661,666 Vajtauer v. Comm’r, 273 U. S. 103 771 Valentine v. Chrestensen, 316 U. S. 52 412 Vetter, In re, 335 U. S. 841 768 Virginia, Ex parte, 100 U. S. 339 303 Virginian R. Co. v. System Fed., 300 U. S. 515 242,250 Vogelstein & Co. v. United States, 262 U. S. 337 130,137 Wade v. Hunter, 336 U. S. 684 783 Wade v. Mayo, 334 U. S. 672 208, 209, 213, 217, 221-223, 228, 236, 237, 661, 666 Walker v. Johnston, 312 U. S. 275 218,778 Wallace Corp. v. Board, 323 U. S. 248 402 Walling v. Portland Terminal Co., 330 U. S. 148 528 Washington Terminal Co. v. Boswell, 319 U. S. 732; 75 U. S. App. D. C. 1 252 Watts v. Indiana, 338 U. S. 49 292 Weber v. Comm’rs, 18 Wall. 57 716 Weeks v. United States, 232 U. S. 383 60,61,69,74-77,82 LVIII TABLE OF CASES CITED. Page Weems v. State, 148 Tex. Cr. R. 154 294,297 W. E. Hedger Transp. Corp, v. Bushey & Sons, 155 F. 2d 321 693 Westinghouse v. Boyden Brake Co., 170 U. S. 537 609 Westinghouse Electric Corp, v. Bulldog Electric Co., 179 F. 2d 139 835 West Va. Board of Education v. Barnette, 319 U. S. 624 404,443 White v. Burnley, 20 How. 235 769,772 White v. Dunbar, 119 U. S. 47 614 White v. Ragen, 324 U. S. 760 208-210,215,234 Whitman v. Wilson, 318 U. S. 688 230 Whitney v. California, 274 U. S. 357 395,397,402 Whitten v. Tomlinson, 160 U S 231 206 Wilkerson v. McCarthy, 336 U. S. 53 102 Willem Van Driel, Sr., The, 252 F. 35 689 Williams, Ex parte, 317 U. S. 604 207 Williams v. Brotherhood of Boilermakers, 27 Cal. 2d 586 463 Williams v. New York, 337 U. S. 241 12,20 Williams v. United States, 78 U. S. App. D. C. 147 362 Williams v. United States, 104 F. 50 809 Willink v. United States, 240 U. S. 572 805 Will of Fox, Matter of, 52 N. Y. 530 90 Page Wilson v. United States, 221 U. S. 361 354- 358,363,364,369,381 Winans v. Denmead, 15 How. 330 608,837 Winters v. New York, 333 U. S. 507 420,444 Wolf v. Colorado, 338 U. S. 25 66 Wong Yang Sung v. McGrath, 339 U. S. 33 771, 906 Wong You v. District Court, 106 Mont. 347 63 Wood, In re, 140 U. S. 278 206 Wood v. Broom, 287 U. S. 1 277 Wright v. United States, 302 U. S. 583 214 Wuchter v. Pizzutti, 276 U. S. 13 315,318 Yakus v. United States, 321 U. S. 414 599 Yamashita, In re, 327 U. S. 1 111,779-783, 786-790,794,795 Yarbrough, Ex parte, 110 U. S. 651 279 Yem Hem v. United States, 268 U. S. 178 362 Yick Wo v. Hopkins, 118 U. S. 356 771 Yone Suzuki v. Cent. A. R. Co., 27 F. 2d 795 689,690 Young v. Ragen, 337 U. S. 235 208,210,236 Youtsey v. United States, 97 F. 937 20 Yu Cong Eng v. Trinidad, 271 U. S. 500 422 Zimmerman v. Maryland, 336 U. S. 901 284 Zimmerman v. State, 59 A. 2d 675 284 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page 1793, Feb. 18, c. 8, 1 Stat. 305 ......................... 485 Mar. 2, c. 22, §5, 1 Stat. 333.................... 200 1798, June 25, c. 58, 1 Stat. 570 ......................... 763 July 6, c. 66, 1 Stat. 577 ................. 763 July 14, c. 74, 1 Stat. 596 ................. 763 1804, Mar. 26, c. 38, 2 Stat. 283 ......................... 699 1811, Feb. 20, c. 21, 2 Stat. 641 ......................... 699 1812, Apr. 8, c. 50, 2 Stat. 701 ......................... 699 1837, Mar. 3, c. 33, 5 Stat. 163 ......................... 707 1845, Mar. 1, No. 8, 5 Stat. 797 ............... 707 1857, Jan. 24, c. 19, 11 Stat. 155 ............... 349 § 2.............323 1862, Jan. 24, c. 11, 12 Stat. 333 393 May 20, c. 75, 12 Stat. 309 79K 1866, July 26, c, 262,14 Stat. 9.M 79R 1867, Feb. 5,’ c. 27, ’ 14 Stat. .385 900 1868, July 27,’ c. 249,’ 15 Stat. 993 7fi3 1871, Apr. 20, c. 22, 17 Stat. 13 989 1872, June 1, c. 255, 17 Stat. 196 ......................... 282 1875, Mar. 1, c. 114, §4, 18 Stat. 335.................... 282 Mar. 3, c. 137, 18 Stat. 470 ......................... 667 1884, May 13, c. 46, 23 Stat. 21 .......................... 382 Page 1887, Feb. 4, c. 104, § 3, 24 Stat. 379................... 816 § 6............... 186 1890, July 2, c. 647, § 3, 26 Stat. 209 ................. 485 1893, Mar. 2, c. 196, 27 Stat. 531 ......................... 96 1902, June 17, c. 1093, §8, 32 Stat. 388........ 725 1903, Feb. 11, c. 544,32 Stat. 823 ........................ 485 1906, Apr. 14, c. 1626, 34 Stat. 114..................... 1 May 1, c. 2073, § 11, 34 Stat. 157............ 1 June 29, c. 3591, 34 Stat. 584............. 113 1908, Apr. 22, c. 149, 35 Stat. 65.................... 96 1910, June 25, c. 407, § 4, 36 Stat. 835.................. 725 1911, Mar. 3, c. 231, §156, 36 Stat. 1087....... 157 1914, Oct. 15, c. 323, § 6, 38 Stat. 730.................. 485 1916, Sept. 6, c. 448, 39 Stat. 726 ........................ 200 1917, Feb. 5, c. 29, §§ 16, 19, 39 Stat. 874......... 33 June 15, c. 30, Tit. XI, 40 Stat. 217................. 56 July 2, c. 35, 40 Stat. 241 .................. 261 1918, July 9, c. 143, Chap. XII, §4, 40 Stat. 845 ................ 763 1919, Feb. 26, c. 48, 40 Stat. 1181 ....................... 282 1920, Feb. 28, c. 91, § 1, 41 Stat. 477........... 142 June 4, c. 227, 41 Stat. 759 ........................ 103 LIX LX TABLE OF STATUTES CITED. Page 1924, Dec. 5, c. 4, §4, 43 Stat. 672 ................. 725 1925, Feb. 13, c. 229,43 Stat. 936 ....................... 200 1926, May 20, c. 347, § 8, 44 Stat. 577.................. 239 1928, Dec. 21, c. 42, 45 Stat. 1057 ...................... 725 1930, May 23, c. 312,46 Stat. 376 ....................... 827 July 3, c. 847, 46 Stat. 918 799 1933, May 27, c. 38,§§ 3, 18, 48 Stat. 74................ 643 June 16, c. 89, §§30, 32,48 Stat. 162............ 382 June 16, c. 90, 48 Stat. 195 ................. 497 June 16, c. 91, § 7, 48 Stat. 211.................. 142 1934, Apr. 30, c. 170, 48 Stat. 648.................. 282 June 14, c. 512, 48 Stat. 955.................. 667 June 21, c. 691, § 2, 48 Stat. 1185................. 239 § 3 ................... 239,255 § R 920 1935, Apr. 8, c. 48, §4^ 49 Stat. 115.................. 725 July 5, c. 372, §§ 2, 7, 49 Stat. 449............... 454 §8 . 382,454,563,577 §9................ 382 § 10 .......... 563,577 §13 ........................454 §§ 16, 303...... 382 Aug. 22, c. 605, 49 Stat. 682.............. 162,382 Aug. 30, c. 831, 49 Stat. 1028............. 725,799 1936, June 22, c. 689, 49 Stat. 1597................. 725 June 25, c. 802, § 10, 49 Stat. 1917........... 1 June 30, c. 881, 49 Stat. 2036................. 497 1937, Aug. 9, c. 570, 50 Stat. 564 ....................... 725 Aug. 26, c. 832, 50 Stat. 844.................. 799 §§ 2, 7, 8............... 725 Page 1938, May 9, c. 187, 52 Stat. 291 ....................... 725 June 21, c. 556, §§ 7, 16, 19-21, 52 Stat. 821 ....................... 667 June 22, c. 594, 52 Stat. 942 ...... 323,349 June 25, c. 675, §§ 304, 307, 401, 403, 404, 406, 501, 502, 504, 505, 604, 701, 52 Stat. 1040 ................ 594 June 25, c. 676, §§ 1-4, 6, 7, 13, 15, 16, 18, 52 Stat. 1060 .... 497 1939, May 10, c. 119, 53 Stat. 685............ 725 Aug. 9, c. 605, 53 Stat. 1266 ........................ 497 1940, June 26, c. 432, 54 Stat. 611.............497 June 28, c. 440, §§2, 8, 54 Stat. 676. 497 July 2, c. 508, 54 Stat. Sept. 18, c. 722, 54 Stat. 898 .................. 816 §5................ 142 Oct. 8, c. 757, 54 Stat. 974 ........... 583 Oct. 14, c. 876, 54 Stat. 1137..... 763 Oct. 17, c. 895, 54 Stat. 1198 ............. 725 1941, June 28, c. 259, 55 Stat. 303 ......... 725 Oct. 29, c. 461, 55 Stat. 756.......... 497 Dec. 18, c. 593, § 301, 55 Stat. 838 .. 841 1942, Jan. 30, c. 26, §§ 1, 2, 4, 56 Stat. 23..... 121 Mar. 27, c. 199, Tit. II, §201, 56 Stat. 176 ........................ 261 May 13, c. 306, 56 Stat. 277 .................. 497 July 2, c. 473, 56 Stat. 506 ........................ 725 Oct. 21, c. 619, 56 Stat. 798...... 619 1943, July 12, c. 219, 57 Stat. 451............ 725 TABLE OF STATUTES CITED. LXI Page 1945, Mar. 9, c. 20, 59 Stat. 33 ....................... 643 Nov. 8, c. 453, 59 Stat. 556 ....................... 583 1946, June 11, c. 324, §§ 5, 7, 8, 11, 60 Stat. 927 33 July 1, c. 529, 60 Stat. 348 795 1947, May 14,' c. 52 , § 1, 61 Stat. 84 ................. 497 June 23, c. 120,61 Stat. 136 ................... 382,846 §§2, 7, 8..................454 §9 563 §10 ....... 563,577 §§ 13,202-204,206- 210 ............454 §303 .................... 470 July 25, c. 337, 61 Stat. 460 ................ 725 July 31, c. 414, 61 Stat. 695 ....................... 162 1948, June 24, c. 613, 62 Stat. 582 ....................... 594 June 24, c. 625, 62 Stat. 604....... 103,763 June 25, c. 645, §21, 62 Stat. 683 ....... 282 June 25, c. 646, 62 Stat. 869 ......... 157, 485,594,699 §39 ......... 282,763 June 29, c. 754, 62 Stat. 1112 ...................... 725 1949, May 24, c. 139, § 110, 63 Stat. 89 ............... 282 July 20, c. 352, 63 Stat. 446 ....................... 497 Oct. 26, c. 736, §§ 11, 14, 63 Stat. 910....497 Oct. 27, c. 767, 63 Stat. 938 ....................... 306 Constitution. See Index at end of volume. Criminal Code............. 282 T §35A .................382 Internal Revenue Code. §23 ................... 583 §§ 25, 26 .................. 619 § 113 583,619 § 114...................... 583 §125....................... 619 Page Internal Revenue Code— Continued. §§ 710 et seq., 718, 723, 728 ................. 583 Judicial Code................282 §156................... 157 §262 ..................... 200 Revised Statutes. § 102 ............ 162,323,349 § 104 .................... 323 §754 ..................... 200 §859 ................. 323,349 §860 ..................... 323 §2339 .................... 725 §4888 .................... 605 U. S. Code. Title 1, §§ 112, 204.... 33 Title 2, § 192 .... 162,323,349 § 194 .......... 323 Title 5, §16................. 382 § § 1000 et seq., 1004, 1006, 1010 ....... 33 Title 8, §43 .................... 282 § § 152, 155......... 33 § 801 ........... 844 §§903, 903b................... 763 Title 10, §§ 1479, 1564. 103 Title 11, §25......... 323 Title 12, §§ 77, 78.... 382 Title 15, §§ 3, 17, 29..... 485 § 77a et seq............. 643 § 717f ................. 667 §§1011-1015............... 643 Title 18, §3.................. 349 §243 ................... 282 §§261,265,268.... 56 §§ 554a, 556.............. 282 §1001 .................. 382 §3486 .............. 323,349 Title 21, §§301, 334, 355, 371............ 594 Title 26, §718........... 583 Title 28, §1 ...............975 §§41, 43-48 ............. 816 §243 ................... 282 §262 ................... 157 §349 ................... 763 LXII TABLE OF STATUTES CITED. Page U. S. Code—Continued. Title 28—Continued. §391 ................... 282 §463c .................. 103 §1253 ................. 142, 186,594,816 §1254 .................. 103 § 1257 .................. 9, 306, 542, 643, 667, 908, 917, 946, 973 §1291 .................. §44 §1331 .................. 667 § 1336 .............. 142,816 § 1398 ................. 816 §1651 .................. 200 §1872 .................. 699 §1915 .................. 844 §2101 ... 142,594,816 §2103 ......... 908, 917,946,973 §2106 .................. 667 §2109 .................. 975 §2111 .................. 282 §2201 .................. 667 §2242 .................. 200 §2243 .................. 763 §§2254, 2281............ 200 §2282 .................. 594 §2283 .................. 200 §2284 ................. 142, 200,594,816 §2321 .................. 816 §2322 .................. 142 §2325 .............. 142,816 §2501 .................. 157 Titlp 90 § 141 .... 382,454,846 §141etseq... 563,577 §151 ........... 454 § 151 et seq. 382, 563,577 § 158 .................. 470 §159 ............... 382,846 §160 ................... 563 §§201-219,251-262 . 497 Title 35, §33 .................... 605 §40 .................... 827 §64 .................... 605 Title 41, § 35 et seq.... 497 Title 43, §§371 et seq., 661 .............. 725 Title 45, §§2, 51-60........ 96 U. S. Code—Continued. Title 45—Continued. § 151a .......... 239 § 153 ........... 239,255 Title 49, §1 .......... 142 §3 ..................816 §5................... 142 §§ 6, 9, 13, 15...... 186 §17 ..................816 § 20............... 113 §302 ................ 542 Title 50, § 21 et seq.... 763 Appendix, §454 ....... 763 §632 ....... 261 §§901,902,904. 121 §§ 1152, 1158.. 497 § 1171 ... 261,497 § 1172 ..... 497 Administrative Procedure Act ................... 33 Alien Enemy Act......... 763 Articles of War......... 103 Banking Act..............382 Bankruptcy Act...........323 Carmack Amendment........ 113 Civil Rights Act.........282 Clayton Act..............485 Coasting & Fishery Act.... 485 Declaratory Judgment Act. 667 Emergency Price Control Act .................. 121 Emergency Railroad Transportation Act......... 142 Emergency Relief Appropriation Act...............725 Employers’ Liability Act... 96 Enabling Act (Louisiana).. 699 Fair Labor Standards Act.. 497 Federal Declaratory Judgment Act............... 667 Federal Emergency Relief Appropriation Act....... 725 Federal Employers’ Liability Act ..................... 96 Federal Food, Drug, & Cosmetic Act..............."94 Federal Reclamation Act... 725 Federal Safety Appliance Act .....................96 First Deficiency Appropna-tion Act, 1936......... 72 First War Powers Act...... TABLE OF STATUTES CITED. LXIII Page Food, Drug, & Cosmetic Act. 594 Homestead Act............. 725 Immigration Act........... 33 Interstate Commerce Act. 113, 142,186,497,816 Judiciary Act............. 200 Labor Management Rela- tions Act.............. 382, 454,470,563,577,846 Louisiana Enabling Act.... 699 McCarran Act.............. 643 Motor Carrier Act.... 497,542 National Industrial Recov- ery Act................. 497 National Labor Relations Act.................... 382, 454,470,497,563,577,846 National Prohibition Act... 56 Natural Gas Act........... 667 Page Portal-to-Portal Act......497 Railway Labor Act....... 239, 255,497 Reclamation Act ......... 725 Revenue Acts, 1917, 1932, 1934, 1936, 1938....... 583 Revenue Act, 1942........ 619 Rivers & Harbors Acts..... 725 Safety Appliance Act...... 96 Second Revenue Act, 1940 . 583 Second War Powers Act.... 261 Securities Act........... 643 Selective Service Act.....763 Sherman Act.............. 485 Taft-Hartley Act.......... 382, 454,470,563,577,846 Transportation Act........ 142 Wagner Act........... 497,563 Walsh-Healey Act..........497 (B) Statutes of the States and Territories. Alabama. 1949 Laws, Act 262.... 306 Code Ann., 1940, Tit. 15, §427............ 9 1947 Cum. Supp., Tit. 58, §§88- 103 ..................... 306 Arizona. Code Ann., 1939, §§ 44- 2307, 44-2309 ............. 9 1949 Cum. Supp., §§ 51-1101 to 51-1104 ........... 306 Arkansas. Stats. Ann., 1947, §§ 41-109, 43-2622.......... 9 §§ 58-110 to 58-112 306 California. Constitution, Art. XIV, §3.................. 725 1933 Stats., 2643 .......... 725 Civil Practice Act, 1851, Apr. 29, §621....... 725 Code Civil Procedure, §748 ............... 725 Deering 1949 Banking Code Ann., § 1564... 306 Penal Code, § 1367 ................ 9 §2600 ...................... 844 §§3701-3703 ............... 9 Probate Code, § 27.... 87 Colorado. Stats. Ann., 1935, c. 48, §§ 6, 7................ 9 1947 Cum. Supp., c. 18, §§ 173-178.. 306 Connecticut. General Stats., 1949, § 8817 ................ 9 Rev. Gen. Stats., 1949, §5805 ............... 306 Delaware. 1943 Laws, c. 171......306 1947 Laws, c. 268..... 306 Revised Code, 1935, §§3083, 3084 ............ 9 §4401 ............... 306 District of Columbia. Code, 1940, § 11-1420.. 162 Florida. 1941 Stats., §§ 655.29 to 655.34 .................... 306 § 922.07 .................. 9 Georgia. 1903 Acts, p. 77............. 9 Code Ann., §§ 27-2601, 27-2602 .............. 9 Code Ann., 1936, §§ 27-2601, 27-2602......... 9 Code Ann., 1937 (1947 Cum. Supp.), §§ 109-601 to 109-622 ... 306 Penal Code, §§ 1073, 1074 ................. 9 LXIV TABLE OF STATUTES CITED. Page Idaho. Code Ann., 1948, §§ 19-2709 to 19-2712, 19- 3301 ...................... 9 Code Ann., 1949 (1949 Cum. Supp.), §§68-701 to 68-703...... 306 Illinois. 1949 Laws, p. 722.......... 926 Rev. Stats., 1949, c. 16%, §§57-63............. 306 C. 38, §§593,594.. 9 Indiana. Burns 1950 Stats. Ann., §§ 18-2009 to 18-2014 ................ 306 Iowa. Code, 1946, §§ 792.5 to 792.7 ................. 9 Kansas. Gen. Stats. Ann., 1935, §62-2406 .............. 9 Kentucky. Codes, Criminal Practice, 1948, §§ 295,296. 9 Revised Stats., 1948, §287.230 ............ 306 § 431.240 9 Louisiana. 1918 Laws, Act No. 261, p. 483................. 9 Code Crim. Law & Proc. Ann., 1943, Art. 267 . 9 Gen. Stats. Ann., 1939, §9850.64 ............ 306 6 Dart 1939 Gen. Stats., §§9311.1 to 9311.4.. 699 Maine. Rev. Stats., 1944, c. 117, §1 .................... 9 Maryland. Declaration of Rights.. 382 1947 Laws, cc. 326, 560. 542 Code Gen. Laws Ann., 1939, Art. 27, §798; Art. 59, §47................ 9 Code Gen. Laws Ann., 1939 (1947 Cum. Supp.), Art. 11, §62A 306 Art. 66y2, §25A; Art. 81, §218... 542 Massachusetts. Gen. Laws, 1932, c. 279, § 48................... 9 Page Massachusetts—Continued. Laws Ann., 1933 (1949 Cum.Supp.),c.203A. 306 Michigan. Compiled Laws, 1948, §423.1 et seq..............454 § 750.316 ................. 9 Henderson 1938 Stats. Ann., §§28.548, 28.-550, 28.854, 28.1058 . 660 Stats. Ann. (1949 Cum. Supp.), §§9, 9a, 17.- 454 et seq., 22 .......... 454 Stats. Ann., §§ 23.1141 to 23.1153.......... 306 Minnesota. 1945 Stats., § 48.84.... 306 1947 Laws, c. 234........ 306 Henderson 1945 Stats., § 619.07 ............. 9 Mississippi. Code Ann., 1942, § 2558 9 Missouri. Rev. Stats. Ann., 1939, §§4192-4194 .......... 9 Montana. Rev. Codes Ann., 1947, §§ 94-8009 to 94r-8012 9 Nebraska. Rev. Stats., 1943, § 29-2509 ................. 9 Nevada. Comp. Laws Ann. (1945 Supp.), §§11192.01 to 11192.06........... 9 New Jersey. Stats. Ann., 1939, §2:-193-12 ............... 9 1949 Cum. Supp., §§ 17:9A-36 to 17:9A-46 ...... 306 New Mexico. Stats. Ann., 1941, §§ 42-1404 to 42-1407.... 9 New York. Constitution, 1938, Art. 1, §12.............. 56 1937 Laws, c. 687, § 100-c ............ 1943 Laws, c. 602........ 1944 Laws, c. 158..........3 Banking Law.............. .. §606 ......................q Criminal Code, § 495a.. TABLE OF STATUTES CITED. lxv Page New York—Continued. McKinney Consol. Laws (1949 Supp.), §§26-39 ................. 261 New York City General Law..................261 North Carolina. Gen. Stats., §§ 36-47 to 36-52 .............. 306 1949 Supp., §§ 122- 84, 122-85...... 9 North Dakota. Rev. Code, 1943, § 12-2713 ................. 9 Ohio. Gen. Code Ann., 1939, §§ 13456-8, 13456-9. 9 Page 1946 Gen. Code Ann., §§715 to 720, 722 ............... 306 Oklahoma. Stats. Ann., 1937, Tit. 18, §452.......... 667 Tit. 22, §§ 1005-1008 ............. 9 Stats. Ann., 1941 (1949 Cum. Supp.), Tit. 60, §162 .............. 306 70 Stats. (1941), §§ 455-457 ................. 637 70 Stats. Ann. (1950), „ §§455-457 ......... 637 Oregon. Comp. Laws Ann., 1940, §§26-930, 26-931... 9 Pennsylvania. Declaration of Rights.. 382 Statutes Ann. (1948 Supp.), Tit. 50, §48. 9 1949 Cum. Supp., Tit. 7, §§ 819-1109 to 819-, U09d .............. 306 Rhode Island. Gen. Laws, 1938, c. 606, South Dakota. 1941 Laws, c. 20.......... 306 Code, 1939, §§34.2001 to 34.2004................ 9 Code Ann., 1942, § 6239. 9 lennessee. Williams 1934 Code Ann., §§4476, 4502.. 9 874433 O-50-5 Page Texas. Constitution, Art. 5, § 13; Art. 6, § 2......282 Art. 7, §§7, 14... 629 1941 Laws, Act of May 16, p. 454.......... 707 1947 Laws, Act of May 23, p. 451.......... 707 1947 Laws, c. 29, §11.. 629 Code Criminal Procedure, 1948, Arts. 921-927 ................. 9 Rev. Civ. Stats. Ann., 1939 (1949 Cum. Supp.), Art. 7425b-48 ............... 306 2 Gammels Laws 655, 880, 886, 889, 905... 707 1 Laws of Republic, pp. 6, 133.................... 707 Vernon 1925 Rev. Civ. Stats., Arts. 2643b (1949 Supp.), 2719, 2900 ............. 629 Vernon 1948 Code of Criminal Procedure, Arts. 333-340, 355, 357, 360............ 282 Vernon 1948 Stats., Art. 2955 ............... 282 Utah. Code Annotated, 1943, §§ 105-37-9 to 105-37-12 ................ 9 Vermont. Revised Stats., 1947, §8873 .............. 306 Virginia. 1928 Acts, c. 529, § 6, p. 1373 ............ 643 1932 Acts, c. 236, § 6, p. 434 ...................... 643 Code Ann., 1950, §§ 6-569 to 6-576........ 306 §§ 19-208, 37-93... 9 Michie 1942 Code, § 3848 et seq....... 643 Blue Sky Law.......... 643 Securities Law, §§ 6, 15, 17 ................. 643 Washington. Remington Rev. Stats. (1940 Supp.), §§7612, 7612-2.... 532 LXVI TABLE OF STATUTES CITED. Page Washington—Continued. Rev. Stats. Ann. (1943 Supp.), §§3388 to 3388-6 ............ 306 Labor Disputes Act... 532 West Virginia. Code Annotated, 1949, § 4219 (1) et seq.... 306 §6198.................. 9 (C) Treaties and Oti 1803, Apr. 30, 8 Stat. 200 (France) ................ 699 1919, June 28, Art. 228, Treaty of Versailles..... 763 Geneva Convention, July 27, 1929, 47 Stat. 2021... 763 (D) Forek England. 13 Car. II, Stat. 2, c. 1. 382 13 & 14 Car. II, cc. 1, 4, 33 .......................... 382 22 Car. II, c. 1........ 382 25 Car. II, c. 2........ 382 30 Car. II, Stat. 2.............382 1 Eliz., c. 1.................. 382 5 Eliz., c. 1.................. 382 Page Wisconsin. 1947 Stats., §223.055.. 306 §340.02 ................. 9 Wyoming. Compiled Stats. Ann., 1945, §§ 10-1701, 10-1702 ............... 9 i International Acts. Hague Convention, Oct. 18, 1907, Art. 35, 36 Stat. 2277 ................. 763 Statutes. England—Continued. 35 Eliz., cc. 1, 2.........382 3 Jac. I, cc. 4, 5......382 7 Jac. I, cc. 2, 6......382 3 Halsbury’s Laws, 1929, p. 27................ 763 Magna Carta, c. 30.... 763 France. Napoleonic Code............725 CASES ADJUDGED IN THE SUPBEME COUBT OF THE UNITED STATES AT OCTOBER TERM, 1949. DISTRICT OF COLUMBIA v. LITTLE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 302. Argued January 11-12, 1950.—Decided February 20, 1950. Receiving information that respondent’s home was in an unsanitary condition, a health officer went there, without a search warrant, for the purpose of inspecting it. Respondent was away and the door was locked; but she returned while the officer was standing outside the door. She protested his right to enter, claiming that it would violate her constitutional rights, and she refused to unlock the door; but she neither used nor threatened force of any kind. She was convicted of violating a District of Columbia regulation making it a misdemeanor to interfere with or prevent the inspection of any building reported to be in an unsanitary condition. Held: 1. Respondent’s mere refusal to unlock the door on substantial constitutional grounds was not the kind of interference prohibited by the regulation. Pp. 4-7. 2. The foregoing conclusion makes it unnecessary to decide whether the Fourth Amendment forbade the health officer to enter respondent’s home without a search warrant. Pp. 3—4. 85 U. S. App. D. C. 242, 178 F. 2d 13, affirmed on other grounds. Respondent was convicted of violating a District of Columbia regulation making it a misdemeanor to interfere with or prevent the inspection of a building reported to be in an unsanitary condition. The Municipal Court of Appeals of the District of Columbia reversed on con- 1 2 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. stitutional grounds. 62 A. 2d 874. The Court of Appeals affirmed. 85 U. S. App. D. C. 242, 178 F. 2d 13. This Court granted certiorari. 338 U. S. 866. Affirmed on other grounds, p. 7. Chester H. Gray argued the cause for petitioner. With him on the brief were Vernon E. West, Lee F. Dante and Edward A. Beard. By special leave of Court, Anne X. Alpern argued the cause for the National Institute of Municipal Law Officers, as amicus curiae, urging reversal. With her on the brief were John P. McGrath, Ray L. Chesebro, Benjamin S. Adamowski, Alexander G. Brown and Charles S. Rhyne. Jeff Busby argued the cause and filed a brief for respondent. Mr. Justice Black delivered the opinion of the Court. An information was filed against the respondent Geraldine Little in the Municipal Court for the District of Columbia charging that she had interfered with a District Health Department inspector in the performance of his official duties. The evidence showed that respondent had told the health officer, who had no search warrant, not to enter her home to inspect its sanitary condition; she had also refused to unlock her door. She was convicted and fined $25. The Municipal Court of Appeals reversed, holding that the Fourth Amendment’s prohibition against unreasonable searches and seizures forbade the health officer to enter respondent’s private home without a search warrant. 62 A. 2d 874. The United States Court of Appeals for the District of Columbia Circuit affirmed on the same grounds. 85 U. S. App. D. C. 242, 178 F. 2d 13. The case raises important questions concerning legal provisions for protecting the health of the people by special and periodic inspection DISTRICT OF COLUMBIA v. LITTLE. 3 1 Opinion of the Court. and elimination of potential sources of disease. We granted certiorari, 338 U. S. 866. In this Court the constitutional arguments have extended far beyond the comparatively narrow issues involved in the particular case. At one extreme the District argues that the Fourth Amendment has no application whatever to inspections and investigations made by health officers; that to preserve the public health, officers may without judicial warrants enter premises, public buildings and private residences at any reasonable hour, with or without the owner’s consent. At the opposite extreme, it is argued that no sanitary inspection can ever be made by health officers without a search warrant, except with a property owner’s consent. Between these two extremes are suggestions that the Fourth Amendment requires search warrants to inspect premises where the object of inspections is to obtain evidence for criminal punishment or where there are conditions imminently dangerous to life and health, but that municipalities and other governing agencies may lawfully provide for general routine inspections at reasonable hours without search warrants. An impressive array of facts is also presented concerning the uniform practices of agencies of local governments to provide for such general routine inspections in connection with sanitation, plumbing, buildings, etc. Neither the facts of this case, nor the District law on which the prosecution rests, provide a basis for a sweeping determination of the Fourth Amendment’s application to all these varied types of investigations, inspections and searches. Yet a decision of the constitutional requirement for a search in this particular case might have far-reaching and unexpected implications as to closely related questions not now before us. This is therefore an appropriate case in which to apply our sound general policy against deciding constitutional questions if the record 4 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. permits final disposition of a cause on non-constitutional grounds. See Rescue Army v. Municipal Court, 331 U. S. 549, 568-575, and cases there cited. Applying this policy, we find it unnecessary to decide whether the Fourth Amendment required a search warrant here. For even if the Health Officer had a lawful right to inspect the premises without a warrant, we are persuaded that respondent’s statements to the officer were not an “interference” that made her guilty of a misdemeanor under the controlling District law.1 The District regulation which respondent was convicted of violating is set out in part below.2 It requires 1 The lower courts, apparently preoccupied with the constitutional issue, did not refer to this question. Ordinarily we would hesitate to decide questions of District law on which the courts of the District have not spoken. See, e. g., Griffin v. United States, 336 U. S. 704, 718, and cases there cited. Here, however, the interpretative question is so enmeshed with constitutional issues that complete disposition by this Court is in order. 2 “2. That it shall be the duty of every person occupying any premises, or any part of any premises, in the District of Columbia, or if such premises be not occupied, of the owner thereof, to keep such premises or part . . . clean and wholesome; if, upon inspection by the Health Officer or an Inspector of the Health Department it be ascertained that any such premises, or any part thereof, or any building, yard, ... is not in such condition as herein required, the occupant or occupants of such premises or part, or the owner thereof, as hereinbefore specified, shall be notified thereof and required to place the same in a clean and wholesome condition; and in case any person shall fail or neglect to place such premises or part in such condition within the time allowed by said notice he shall be liable to the penalties hereinafter provided. “10. That the Health Officer shall examine or cause to be examined any building supposed or reported to be in an unsanitary condition, and make a record of such examination; . . . . “12. That any person violating, or aiding or abetting in violating, any of the provisions of these regulations, or interfering with or DISTRICT OF COLUMBIA v. LITTLE. 5 1 Opinion of the Court. that occupants of premises in the District shall keep them “clean and wholesome”; that Health Officers shall “examine or cause to be examined any building supposed or reported to be in an unsanitary condition”; and that “any person violating . . . any of the provisions of these regulations, or interfering with or preventing any inspection authorized thereby, shall be deemed guilty of a misdemeanor . . . .” An occupant of respondent’s house reported to the Health Officer that conditions inside her home were very far from “clean and wholesome.”3 The Health Officer then went to respondent’s home. She was away and the door was locked. The officer had no search warrant. While he was standing outside the door, respondent returned. She protested the right of the inspector to enter her private home, claiming that his entry would violate her constitutional rights. She neither used nor threatened force of any kind.4 In view of these facts found by the courts below, the question boils down to whether respondent’s mere refusal to unlock preventing any inspection authorized thereby, shall be deemed guilty of a misdemeanor, and shall, upon conviction in the Police Court, be punished by a fine of not less than $5 nor more than $45.” Commissioners’ Regulations Concerning the Use and Occupancy of Buildings and Grounds, promulgated April 22, 1897, amended July 28, 1922. 3 The complaint was that “there was an accumulation of loose and uncovered garbage and trash in the halls of said premises and that certain of the persons residing therein had failed to avail themselves of the toilet facilities.” 4 There was evidence that some distance away from the home respondent attempted to grab some papers from the officer. The Municipal Court of Appeals and the Court of Appeals for the District both held that the information on which respondent was convicted was not based on this incident. Those courts and the Municipal Court in which respondent was convicted all treated the conviction as having been based on respondent’s refusal to unlock the door on the ground that the officer was without constitutional right to enter. 6 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. the door accompanied by remonstrances on substantial constitutional grounds was the kind of interference prohibited by the regulation.5 We hold that it was not. Although force or threatened force is not always an indispensable ingredient of the offense of interfering with an officer in the discharge of his duties, mere remonstrances or even criticisms of an officer are not usually held to be the equivalent of unlawful interference.6 Nor does any express language in the District regulation controlling here impose any duty on home owners to assist health officers to enter and inspect their homes. It does not even prohibit “hindering” or “refusing to permit any lawful inspection,” in sharp contrast with a separate inspection statute enacted by Congress for the District which adds these phrases to prohibitions against “interference” and “prevention.”7 The word “interfere” in 5 The information charged that respondent “did . . . hinder, obstruct, and interfere with an inspector of the Health Department . . . .” The regulation on which the prosecution was based does not include the words “hinder” and “obstruct.” These words do appear in an Act of Congress which provides for an abatement of nuisances in the District and specifically authorizes persons delegated by the District Commissioners to enter premises “during all reasonable hours, to inspect the same and to do whatever may be necessary to correct” a condition amounting to a nuisance. 34 Stat. 115. But that Act is not involved in this case. 6 See cases collected in Notes, 48 A. L. R. 746, 749, 755; Ann. Cas. 1914B, 814. 7 “Sec. 11. That no person shall interfere with any member of the board for the condemnation of insanitary buildings or with any person acting under authority and by direction of said board in the discharge of his lawful duties, nor hinder, prevent, or refuse to permit any lawful inspection or the performance of any work authorized by this Act to be done by or by authority and direction of said board.” 34 Stat. 157, 159. There is another interesting difference between the above statute and the regulation here involved. The statute expressly limits inspection to the hours between 8 a. m. and 5 p. m.; the regulation has DISTRICT OF COLUMBIA v. LITTLE. 7 1 Burton, J., dissenting. this regulation cannot fairly be interpreted to encompass respondent’s failure to unlock her door and her remonstrances on constitutional grounds. Had the respondent not objected to the officer’s entry of her house without a search warrant, she might thereby have waived her constitutional objections.8 The right to privacy in the home holds too high a place in our system of laws to justify a statutory interpretation that would impose a criminal punishment on one who does nothing more than respondent did here. The judgment of the Court of Appeals affirming the Municipal Court of Appeals judgment setting aside the conviction is Affirmed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Burton, with whom Mr. Justice Reed concurs, dissenting. If this Court is to interpret an ordinance of the District of Columbia, it seems to me that the action of the respondent was an effective interference with an inspector of the District Health Department in the performance of his official duties, and that such conduct of the respondent violated the ordinance that is before us. In my opinion, also, the duties which the inspector was seeking to perform, under the authority of the District, were of such a reasonable, general, routine, accepted and important character, in the protection of the public health and safety, that they were being performed lawfully without such a search warrant as is required by the Fourth no limitation of this or indeed of any other type, though petitioner admits that a requirement of “reasonableness” should be read into it. See also 49 Stat. 1917,1919, § 10. 8 See collections cited in note 6 supra. 8 OCTOBER TERM, 1949. Burton, J., dissenting. 339 U. S. Amendment to protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Accordingly, the conviction of the respondent should be sustained, and the judgment of the United States Court of Appeals affirming the judgment of the Municipal Court of Appeals setting aside that conviction should be reversed. SOLESBEE v. BALKCOM. 9 Opinion of the Court. SOLESBEE v. BALKCOM, WARDEN. APPEAL FROM THE SUPREME COURT OF GEORGIA. No. 77. Argued November 15, 1949.—Decided February 20, 1950. Where a state policy is against execution of a condemned convict who has become insane after conviction and sentence, it is not a denial of due process under the Fourteenth Amendment to vest discretionary authority in the Governor (aided by physicians) to determine whether a condemned convict has become insane after sentence and, if so, whether he should be committed to an insane asylum—even though the Governor’s decision is not subject to judicial review and the statute makes no provision for an adversary hearing at which the convict may appear in person or by counsel or through friends and cross-examine witnesses and offer evidence. Pp. 9-14. 205 Ga. 122, 52 S. E. 2d 433, affirmed. In a habeas corpus proceeding, a Georgia trial court sustained the constitutional validity of Ga. Code § 27-2602, which leaves determination of sanity after conviction of a capital offense to the Governor supported by the report of physicians. The Supreme Court of Georgia affirmed. 205 Ga. 122, 52 S. E. 2d 433. On appeal to this Court, affirmed, p. 14. Benjamin E. Pierce argued the cause and filed a brief for appellant. Eugene Cook, Attorney General of Georgia, submitted on brief for appellee. With him on the brief were Claude Shaw, Deputy Assistant Attorney General, and J. R. Parham, Assistant Attorney General. Mr. Justice Black delivered the opinion of the Court. Petitioner was convicted of murder in a Georgia state court. His sentence was death by electrocution. Subsequently he asked the Governor to postpone execution 10 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. on the ground that after conviction and sentence he had become insane. Acting under authority granted by § 27-2602 of the Georgia Code1 the Governor appointed three physicians who examined petitioner and declared him sane. Petitioner then filed this habeas corpus proceeding again alleging his insanity. He contended that the due process clause of the Fourteenth Amendment required that his claim of insanity after sentence be originally determined by a judicial or administrative tribunal after notice and hearings in which he could be represented by counsel, cross-examine witnesses and offer evidence. He further contended that if the tribunal was administrative its findings must be subject to judicial review. The trial court sustained the constitutional validity of § 27-2602, holding that determination of petitioner’s sanity by the Governor supported by the report of physicians had met the standards of due process. The State Supreme Court affirmed, 205 Ga. 122, 52 S. E. 2d 433. The constitutional questions being substantial, see Phyle v. Dufjy, 334 U. S. 431, 439, the case is here on appeal under 28 U. S. C. § 1257 (2). In affirming, the State Supreme Court held that a person legally convicted and sentenced to death had no statutory or constitutional right to a judicially conducted 1 “Disposition of insane convicts. . . . Upon satisfactory evidence being offered to the Governor that the person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, within his discretion, have said person examined by such expert physicians as the Governor may choose; and said physicians shall report to the Governor the result of their investigation; and the Governor may, if he shall determine that the person convicted has become insane, have the power of committing him to the Milledgeville State Hospital until his sanity shall have been restored, as determined by laws now in force. . . .” Ga. Code Ann. § 27-2602 (1074 P. C.); Acts 1903, p. 77. SOLESBEE v. BALKCOM. 11 9 Opinion of the Court. or supervised “inquisition or trial” on the question of insanity subsequent to sentence.2 It viewed the Georgia statutory procedure for determination of this question as motivated solely by a sense of “public propriety and decency”—an “act of grace” which could be “bestowed or withheld by the State at will” and therefore not subject to due process requirements of notice and hearing. The court cited as authority, among others, our holding in Nobles v. Georgia, 168 U. S. 398. Compare Burns v. United States, 287 U. S. 216, 223. In accordance with established policy we shall not go beyond the constitutional issues necessarily raised by this record. At the outset we lay aside the contention that execution of an insane person is a type of “cruel and unusual punishment” forbidden by the Fourteenth Amendment. See Francis v. Resweber, 329 U. S. 459. For the controlling Georgia statutes neither approve the practice of executing insane persons, nor is this petitioner about to be executed on such a premise. It is suggested that the reasoning of the Georgia Supreme Court in this case requires us to pass upon the state statute as though it had established a state practice designed to execute persons while insane. But we shall not measure the statute by some possible future application. Our holding is limited to the question of whether the method applied by Georgia here to determine the sanity of an already convicted defendant offends due process. Postponement of execution because of insanity bears a close affinity not to trial for a crime but rather to reprieves of sentences in general. The power to reprieve has usually sprung from the same source as the power to 2 “No person who has been convicted of a capital offense shall be entitled to any inquisition or trial to determine his sanity.” Ga. Code Ann. § 27-2601 (1073 P. C.); Acts 1903, p. 77. 12 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. pardon. Power of executive clemency in this country undoubtedly derived from the practice as it had existed in England. Such power has traditionally rested in governors or the President, although some of that power is often delegated to agencies such as pardon or parole boards. Seldom, if ever, has this power of executive clemency been subjected to review by the courts. See Ex parte United States, 242 U. S. 27, 42, and cases collected in Note, 38 L. R. A. 577, 587. We are unable to say that it offends due process for a state to deem its Governor an “apt and special tribunal” 3 to pass upon a question so closely related to powers that from the beginning have been entrusted to governors. And here the governor had the aid of physicians specially trained in appraising the elusive and often deceptive symptoms of insanity. It is true that governors and physicians might make errors of judgment. But the search for truth in this field is always beset by difficulties that may beget error. Even judicial determination of sanity might be wrong. Recently we have pointed out the necessary and inherent differences between trial procedures and postconviction procedures such as sentencing. Williams v. New York, 337 U. S. 241. In that case we emphasized that certain trial procedure safeguards are not applicable to the process of sentencing. This principle applies even more forcefully to an effort to transplant every trial safeguard to a determination of sanity after conviction. As was pointed out in the Nobles case, supra, to require judicial review every time a convicted defendant suggested insanity would make the possibility of carrying out a sentence depend upon “fecundity in making suggestion after suggestion of insanity.” Nobles 3 Nobles v. Georgia, 168 U. S. 398,409. SOLESBEE v. BALKCOM. 13 9 Opinion of the Court. v. Georgia, supra, at 405-406. See also Phyle v. Duffy, supra. To protect itself society must have power to try, convict, and execute sentences. Our legal system demands that this governmental duty be performed with scrupulous fairness to an accused. We cannot say that it offends due process to leave the question of a convicted person’s sanity to the solemn responsibility of a state’s highest executive with authority to invoke the aid of the most skillful class of experts on the crucial questions involved. This leaves the contention that the Georgia statutes do not make provisions for an adversary hearing in which a convicted defendant can be present by friends, attorneys, or in person, with the privilege of cross-examining witnesses and offering evidence. Whether this Governor declined to hear any statements on petitioner’s behalf, this record does not show. We would suppose that most if not all governors, like most if not all judges, would welcome any information which might be suggested in cases where human lives depend upon their decision. Both the Nobles and the Phyle cases stand for the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. This discretion has usually been held nonreviewable by appellate courts.4 The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence. We cannot say that the trust thus reposed in judges should be denied governors, traditionally charged with saying the last word that spells life or death. There is no indication 4 See cases collected in Notes, Ann. Cas. 1916E, 424 et seq.; 49 A. L. R. 801 et seq.; 38 L. R. A. 577 et seq. 14 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. that either the Governor or the physicians who acted on petitioner’s application violated the humanitarian policy of Georgia against execution of the insane. We hold that the Georgia statute as applied is not a denial of due process of law. Affirmed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting. In the history of murder, the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon. The legal problems which such supervening insanity raises happily do not involve explorations of the pathological processes which give rise to the conflict between so-called legal and medical insanity. See M’Naghtens Case, 10 Cl. & F. 200 (1843); Glueck, Mental Disorder and the Criminal Law passim (1925); Minutes of Evidence before the 1949 Royal Commission on Capital Punishment. The case now before the Court presents a familiar constitutional issue placed in the setting of a claim of supervening insanity. The question is this: may a State without offending the Due Process Clause of the Fourteenth Amendment put to death one on whose behalf it is claimed that he became insane while awaiting execution, if all opportunity to have his case put is denied and the claim of supervening insanity is rejected on the basis of an ex parte inquiry by the Governor of the State? This issue was before the Court very recently, but in the circumstances the matter was not ripe for decision. Phyle V. Duffy, 334 U. S. 431. On the record before us the issue must be met. Unlike the situation in Phyle N. Duffy, it cannot be urged that the Georgia judgment under SOLESBEE v. BALKCOM. 15 9 Frankfurter, J., dissenting. review leaves open the opportunity for a hearing which was given when Phyle v. Duffy went back to the California courts. 34 Cal. 2d 144, 208 P. 2d 668. We cannot avoid now deciding whether one awaiting electrocution who makes a substantial claim that he has become insane can be denied opportunity to address the mind of the Governor, or those who advise him, in order to establish the fact of such insanity. In Phyle’s case, the Court recognized “the gravity of the questions here raised under the due process clause.” 334 U. S. at 439. Apparently between June 1948 and today the gravity seems to have been dispelled. These grave questions are now almost summarily answered. It cannot be due to the weightiness of the argument presented at the bar of this Court for none was made here by Georgia, and its slight brief hardly discusses the problems. The immediate question before us depends on the view one takes of the legal right of a State to execute a person become insane after sentence. If the Due Process Clause of the Fourteenth Amendment does not bar the State from infliction of the death sentence while such insanity persists, of course it need make no inquiry into the existence of supervening insanity. If it chooses to make any inquiry it may do so entirely on its own terms. If the Due Process Clause does limit the State’s power to execute such an insane person, this Court must assert the supremacy of the Due Process Clause and prohibit its violation by a State. The Court in an easy, quick way puts this crucial problem to one side as not before us. But in determining what procedural safeguards a State must provide, it makes all the difference in the world whether the United States Constitution places a substantive restriction on the State’s power to take the life of an insane man. If not to execute is merely a benevolent withholding of the 874433 0—50---6 16 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. right to kill, the State may exercise its benevolence as it sees fit. But if Georgia is precluded by the Due Process Clause from executing a man who has temporarily or permanently become insane, it is not a matter of grace to assert that right on behalf of the life about to be taken. If taking life under such circumstances is forbidden by the Constitution, then it is not within the benevolent discretion of Georgia to determine how it will ascertain sanity. Georgia must afford the rudimentary safeguards for establishing the fact. If Georgia denies them she transgresses the substance of the limits that the Constitution places upon her. Does the Due Process Clause then bar a State from executing a man under sentence of death while insane? It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due process is that which comports with the deepest notions of what is fair and right and just. The more fundamental the beliefs are the less likely they are to be explicitly stated. But respect for them is of the very essence of the Due Process Clause. In enforcing them this Court does not translate personal views into constitutional limitations. In applying such a large, untech-nical concept as “due process,” the Court enforces those permanent and pervasive feelings of our society as to which there is compelling evidence of the kind relevant to judgments on social institutions. That it offends our historic heritage to kill a man who has become insane while awaiting sentence cannot be gainsaid. This limitation on the power of the State to take life has been part of our law for centuries, recognized during periods of English history when feelings were more barbarous and men recoiled less from brutal SOLESBEE v. BALKCOM. 17 9 Frankfurter, J., dissenting. action than we like to think is true of our time. Due process is itself “a historical product,” Jackman v. Rosenbaum Co., 260 U. S. 22, 31, and it requires no expansion of its purposes to find in the Fourteenth Amendment a restriction upon State action that carries such impressive credentials of history as does that forbidding the State to kill an insane man though under sentence of death: “It was further provided by the said Act of 33 H. 8. that if a man attainted of treason became mad, that notwithstanding he should be executed; which cruell and inhumane law lived not long, but was repealed, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos, metus ad omnes perveniat, as before is said: but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty, and can be no example to others.” Coke, Third Institutes 6 (1644). “And it seems agreed at this Day, That if one who has committed a capital Offence, become Non Compos before Conviction, he shall not be arraigned; and if after Conviction, that he shall not be executed.” 1 Hawkins, Pleas of the Crown 2 (1716). “. . . for nothing is more certain in Law, than that a Person who falls mad after a Crime suppos’d to be committed, shall not be try’d for it; and if he fall mad after Judgment, he shall not be executed: tho I do not think the reason given for the Law in that Point will maintain it, which is, that the End of Punishment is the striking a Terror into others, but the execution of a Madman had not that effect; which is not true, for the Terror to the 18 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. living is equal, whether the Person be mad or in his Senses . . . But the true reason of the Law I think to be this, a Person of non sana Memoria, and a Lunatick during his Lunacy, is by an Act of God (for so it is call’d, tho the means may be humane, be it violent, as hard Imprisonment, terror of Death, or natural, as Sickness) disabled to make his just Defence, there may be Circumstances lying in his private Knowledg, which would prove his Innocency, of which he can have no advantage, because not known to the Persons who shall take upon them his Defence .... “The King is therefore no otherwise benefited by the destruction of his Subjects, than that the Example deters others from committing the like Crimes; and there being so many to be made Examples of, besides those on whom the misfortunes of Madness fall, it is inconsistent with humanity to make Examples of them; it is inconsistent with Religion, as being against Christian Charity to send a great Offender quick, as it is stil’d, into another World, when he is not of a capacity to fit himself for it. But whatever the reason of the Law is, it is plain the Law is so . . . .” Remarks on the Tryal of Charles Bateman by Sir John Hawles, Solicitor-General in the reign of King William III, 3 State-Tryals 651, 652-53 (1719). “If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment . . . And if such person after his plea, and SOLESBEE v. BALKCOM. 19 9 Frankfurter, J., dissenting. before his trial, become of non sane memory, he shall not be tried; or, if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution.” 1 Hale, The History of the Pleas of the Crown 34-35 (1736).1 “Another cause of regular reprieve is, if the offender become non compos ... if after judgment, he shall not be ordered for execution: for ‘furiosus solo furore punitur,’ and the law knows not but he might have offered some reason, if in his senses, to have stayed these respective proceedings.” 4 Bl. Comm. 388-89 (1769). However quaint some of these ancient authorities of our law may sound to our ears, the Twentieth Century has not so far progressed as to outmode their reasoning. We should not be less humane than were Englishmen in the centuries that preceded this Republic.2 And the practical considerations are not less relevant today than they were when urged by Sir John Hawles and Hale and Hawkins and Blackstone in writings which nurtured so many founders of the Republic. If a man has gone insane, is he still himself? Is he still the man who was convicted? In any event “were he of sound memory, he might allege somewhat” to save himself from doom. It is not an idle fancy that one under sentence of death ought not, by becoming non compos, be denied the means to “allege somewhat” that might free him. Such an 1 The first publication of Hale’s Pleas of the Crown was of course based upon the manuscript left by him at his death in 1676. See 6 Holdsworth, A History of English Law 574, 589-90 (1924). 2 See Report of the Committee on Insanity and Crime, Cmd. No. 2005, pp. 17,19 (1923). 20 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. opportunity may save life, as the last minute applications to this Court from time to time and not always without success amply attest.3 The short of it is that American law is not more brutal than what is revealed as the unbroken command of English law for centuries preceding the separation of the Colonies. The Court puts out of sight, as it were, what is basic to a disposition of this case, namely, that not a State in the Union supports the notion that an insane man under sentence of death would legally be executed. If respect is to be given to claims so deeply rooted in our common heritage as this limitation upon State power, the Fourteenth Amendment stands on guard to enforce it. Unless this restriction on State power is fully recognized and its implications are duly respected, the crucial questions presented by this case are avoided. We are here not dealing with the Crown’s prerogative of mercy continued through the pardoning power in this country as an exercise of grace. See Ex parte Grossman, 267 U. S. 87. Nor are we dealing with the range of discretion vested in judges by penal laws carrying flexible instead of fixed penalties. See Williams v. New York, 337 U. S. 241. We are dealing with a restriction upon the States against taking life if a certain fact is established, to-wit, insanity, 3 Insane persons do not have the capacity to plead or be tried. See Youtsey v. United States, 97 F. 937; Forthofier v. Swope, 103 F. 2d 707. After sentence of death, the test of insanity is whether the prisoner has not “from the defects of his faculties, sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful, and the intelligence requisite to convey such information to his attorneys or the court.” In re Smith, 25 N. M. 48, 59, 176 P. 819, 823. See also People n. Geary, 298 Ill. 236, 131 N. E. 652; In re Grammer, 104 Neb. 744, 178 N. W. 624. SOLESBEE v. BALKCOM. 21 9 Frankfurter, J., dissenting. like unto other restrictions upon the State in taking liberty or property. In view of the Due Process Clause it is not for the State to say: “I choose not to take life if a man under sentence becomes insane.” The Due Process Clause says to a State: “Thou shalt not.” And so we come to the implications of this constitutional restriction upon a State in order to determine whether it can deny all opportunity to lay before some agency of government facts and circumstances which, if true, must stay the executioner’s hand. The manner in which the States have dealt with this problem furnishes a fair reflex, for purposes of the Due Process Clause, of the underlying feelings of our society about the treatment of persons who become insane while under sentence of death. Six States no longer have the death penalty. (See Appendix, Part A.) As to the remaining 42: I. In 30 States, execution of the death penalty is suspended upon a determination of insanity supervening after sentence. (a) Of these, 9 States provide (5 by statute and 4 under common law) that the inquiry shall be entirely judicial. (Part B.) (b) Of these, 14 States provide for the ultimate determination of sanity or insanity by a judge or jury after a hearing, upon initiation of the hearing by a designated prison or police official. (1) Of these, 2 States provide for judicial review of the official’s decision not to initiate a hearing. (Part C-I.) (2) Of these, 12 States have no legislation or adjudication defining whether the official’s decision is subject to review. (Part C-II.) 22 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. (c) Of these, 7 States provide for the ultimate determination of sanity by the Governor or by a body of physicians and laymen. (1) Of these, 1 State appears to afford an opportunity to be heard. (Part D-I.) (2) Of these, 3 States appear to provide for an ex parte inquiry. (Part D-II.) (3) Of these, 3 States have no provision indicating the nature of the inquiry. (Part D-III.) II. In 3 States, suspension of execution of the death penalty because of insanity is at the discretion of the Governor. (Part E.) III. As to 9 States, the available legislation and decisions afford no clear basis for classification. Of these, 4 give strong indications that execution of the death penalty is suspended upon insanity supervening after sentence,4 3 offer insufficient material even for inference, and 2 offer no relevant material. (Part F.) We start with the fact that not a single State gives any indication of having uprooted the heritage of the common law which deemed it too barbarous to execute a man while insane. This brings us to the mode of establishing the crucial basis for the lawful killing by a State, namely, that it kill not an insane person. Nine States make the necessary inquiry entirely judicial. Fourteen more States put the responsibility for initiating judicial inquiry, with various alternatives of judge and jury, upon an appropriate official. In ten States the determination of sanity is vested in the Governor either with or with- 4 In these 4 States, 3 have statutory provisions dealing with insanity after conviction but before sentence, and 1 has a provision dealing with insanity after conviction. Compare State v. Allen, 204 La. 513,15 So. 2d 870. SOLESBEE v. BALKCOM. 23 9 Frankfurter, J., dissenting. out the aid of advisors or in a separate administrative board. But even as to these, in only six States, including Georgia, is it clear that such an inquiry may be entirely behind closed doors without any opportunity for submission of facts on behalf of the person whose sanity is to be determined as a prerequisite to killing him. This impressive body of State legislation signifies more than the historic continuity of our repulsion against killing an insane man even though he be under sentence of death. The vindication of this concern turns on the ascertainment of what is called a fact, but which in the present state of the mental sciences is at best a hazardous guess however conscientious. If the deeply rooted principle in our society against killing an insane man is to be respected, at least the minimum provision for assuring a fair application of that principle is inherent in the principle itself. And the minimum assurance that the life-and-death guess will be a truly informed guess requires respect for the basic ingredient of due process, namely, an opportunity to be allowed to substantiate a claim before it is rejected. This is a requirement that this Court has enforced again and again when mere interests of property were involved. See e. g., Pennoy er v. Neff, 95 U. S. 714; Priest v. Trustees of Las Vegas, 232 U. S. 604. It cannot be that the Court is more concerned about property losses that are not irremediable than about irretrievable human claims. If, as was held only the other day, due process saves a man from being sent to jail for sixty days on a charge of contempt because he was tried in secret, In re Oliver, 333 U. S. 257, due process ought also to vindicate the self-respect of society by not sending a man to his death on the basis of a proceeding as to his sanity in which all opportunity on his behalf has been denied to 24 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. show that he is in fact in that condition of insanity which bars the State from killing him. He should not be denied the opportunity to inform the mind of the tribunal—be it a Governor, a board or a judge—that has to decide between life and death, not as a matter of grace but on the basis of law. For if he be insane his life cannot be forfeit except in violation of the law of the land. If a man “is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged” before being convicted, In re Oliver, supra at 272, he should no less be allowed to have someone speak for him when the issue is not merely a prerogative of mercy or the exercise of discretion which modern penological thought, translated into legislation, vests in judges in imposing sentence. The killing of an insane man under sentence, it needs to be repeated, is in our law not a matter of discretion. Not to kill such an insane man “has its roots in our English common law heritage” no less deep than not to convict him without a hearing. See In re Oliver, supra at 266. The rule against killing an insane person embedded so deeply in our law as to be protected by substantive aspects of due process requires as part of procedural due process that the victim be given an opportunity through counsel or the next of kin to invoke the substantive principle of due process. Since it does not go to the question of guilt but to its consequences, the determination of the issue of insanity after sentence does not require the safeguards of a judicial proceeding. See Ng Fung Ho v. White, 259 U. S. 276, 284r-85. Nor need the proceeding be open; it may be in camera. But precisely because the inquiry need not be open and may be made in camera, it must be fair in relation to the issue for determination. In the present state of the tentative and dubious knowl- SOLESBEE v. BALKCOM. 25 9 Frankfurter, J., dissenting. edge as to mental diseases and the great strife of schools in regard to them, it surely operates unfairly to make such determinations not only behind closed doors but without any opportunity for the submission of relevant considerations on the part of the man whose life hangs in the balance. To say that an inquiry so conducted is unfair because of the treacherous uncertainties in the present state of psychiatric knowledge is not to impugn the good faith of Governors or boards in excluding what is sought to be put before them on behalf of a putative insane person. The fact that a conclusion is reached in good conscience is no proof of its reliability. The validity of a conclusion depends largely on the mode by which it was reached. A Governor might not want to have it on his conscience to have sent a man to death after hearing conflicting views, equally persuasive, regarding the man’s sanity. Claims obviously frivolous need of course not be heard, even as this Court does not listen to claims that raise no substantial question. It is not suggested that petitioner’s claim of insanity was baseless. It is a groundless fear to assume that it would obstruct the rigorous administration of criminal justice to allow the case to be put for a claim of insanity, however informal and expeditious the procedure for dealing with the claim. The time needed for such a fair procedure could not unreasonably delay the execution of the sentence unless in all fairness and with due respect for a basic principle in our law the execution should be delayed. The risk of an undue delay is hardly comparable to the grim risk of the barbarous execution of an insane man because of a hurried, one-sided, untested determination of the question of insanity, the answers to which are as yet so wrapped in confusion and conflict and so dependent on elucidation by more than one-sided partisanship. 26 OCTOBER TERM, 1949. Frankfurter, J., dissenting—Appendix. 339U.S. To deny all opportunity to make the claim that was here made on behalf of the petitioner is in my view a denial of due process of law. APPENDIX TO OPINION OF FRANKFURTER, J. State legislation and judicial decisions concerning execution of death penalty where insanity supervenes after sentence.1 A. States in which problem does not arise because they have no death penalty:2 (1) Me. Rev. Stat. c. 117, § 1 (1944). (2) Mich. Comp. Laws § 750.316 (1948). (3) Minn. Stat. §619.07 (Henderson 1945). (4) N. D. Rev. Code § 12-2713 (1943).3 (5) R. I. Gen. Laws c. 606, § 2 (1938).3 (6) Wis. Stat. § 340.02 (1947). 1 It is appropriate to give warning that the meaning attributed to some of the statutes cited in this Appendix does not have the benefit of guiding State adjudication and that, even when such adjudication is available to throw light on statutory meaning or on the States common law, classification has been based on judicial pronouncements which are not always explicit holdings. The ascertainment of the law of a State when there is not a clear ruling by the highest court of that State is treacherous business. It should also be added that while this Appendix is based on the latest legal materials in the Library of this Court that is no guarantee that there may not be sti later relevant local materials. 2 The statutes cited give the penalty for first degree murder. See also Griinhut, Penal Reform 7 (1948). 3 The penalty for first degree murder is life imprisonment unless a person is under sentence of life imprisonment at the time conviction. SOLESBEE v. BALKCOM. 27 9 Frankfurter, J., dissenting—Appendix. B. States suspending execution of death penalty under statutory or common law provisions for hearing before judge or judge and jury upon initiation by judge:4 I. Statutory procedure: (7) Ala. Code Ann. tit. 15, § 427 (1940). (8) Colo. Stat. Ann. c. 48, § § 6, 7 (1935). See Bulger n. People, 61 Colo. 187,156 P. 800. (9) Ill. Rev. Stat. c. 38, §§ 593-94 (1949). See People v. Geary, 298 Ill. 236, 131 N. E. 652; People v. Preston, 345 Ill. 11, 177 N. E. 761. (10) La. Code Crim. Law & Proc. Ann. art. 267 (1943). See State v. Allen, 204 La. 513, 15 So. 2d 870, 18 Tulane L. Rev. 497; State v. Gunter, 208 La. 694, 23 So. 2d 305; State v. Hebert, 187 La. 318, 174 So. 369; La. Laws 1918, No. 261, p. 483. (11) N. J. Stat. Ann. § 2:193-12 (1939) in connection with In re Lang, 77 N. J. L. 207, 71 A. 47; In re Herron, 77 N. J. L. 315, 72 A. 133; 79 N. J. L. 67, 73 A. 599. II. Common law procedure: (12) North Carolina. See State v. Vann, 84 N. C. 722, 724; State v. Godwin, 216 N. C. 49, 3 S. E. 2d 347; State v. __________Sullivan, 229 N. C. 251, 49 S. E. 2d 4 In all States providing for suspension of death penalty upon supervening insanity, the procedural problem raises two questions: (1) who shall decide whether there has been a sufficient prima facie showing of insanity to warrant initiation of a further proceeding; (2) who shall be the fact finder in such proceeding. 28 OCTOBER TERM, 1949. Frankfurter, J., dissenting—Appendix. 339 U. S. 458. See also N. C. Gen. Stat. Ann. §§ 122-84, 122-85 (Supp. 1949). (13) South Carolina. See State v. Bethune, 88 S. C. 401, 71 S. E. 29. See also S. C. Code Ann. § 6239 (1942). (14) Tennessee. See Jordan v. State, 124 Tenn. 81, 90-91, 135 S. W. 327, 329-30; Bonds v. State, 8 Tenn. 142. See also Tenn. Code Ann. §§ 4476, 4502 (Williams 1934). (15) Washington. See State v. Nordstrom, 21 Wash. 403, 58 P. 248; Grossi v. Long, 136 Wash. 133, 238 P. 983; State ex rel. Alfani v. Superior Court, 139 Wash. 125, 245 P. 929; State v. Davis, 6 Wash. 2d 696, 717, 108 P. 2d 641, 650-51. C. States suspending execution of death penalty under statutory provisions for hearing before judge or jury upon initiation by designated prison or police official:8 I. Official’s refusal to initiate subject to judicial review: (16) Ark. Stat. Ann. §§41-109, 43-2622 (1947). See Howell v. Kincannon, 181 Ark. 58, 24 S. W. 2d 953; Howell v. Todhunter, 181 Ark. 250, 25 S. W. 2d 21; Shank v. Todhunter, 189 Ark. 881, 75 S. W. 2d 382. 5 See note 4 supra. Most of the States in Parts C and D require the official responsible for initiating the further inquiry to act if there is “good reason,” or a like ground, for believing that the convicted man is insane. In some of these States the relevant statute provides that the official “may” act where “good reason” exists, thereby raising the familiar problem as to when “may,” considering its function, means “must” in legislative English. Compare Howell v. Todhunter, 181 Ark. 250,25 S.W. 2d 21. SOLESBEE v. BALKCOM. 29 9 Frankfurter, J., dissenting—Appendix. (17) Cal. Pen. Code §§ 1367, 3701-03 (1949). See Phyle v. Duffy, 34 Cal. 2d 144, 208 P. 2d 668. II. Whether official’s refusal to initiate inquiry is subject to review undefined by legislation or adjudication: (18) Idaho Code Ann. §§ 19-2709 to 19-2712, 19-3301 (1948). (19) Ky. Rev. Stat. § 431.240 (1948). See Ky. Codes, Crim. Prac. §§ 295-96 (1948); Barrett n. Commonwealth, 202 Ky. 153, 259 S. W. 25; Stucker v. Commonwealth, 261 Ky. 618, 88 S. W. 2d 280; Murrell v. Commonwealth, 291 Ky. 65, 163 S. W. 2d 1. (20) Mo. Rev. Stat. Ann. §§4192-94 (1939). (21) Mont. Rev. Codes Ann. §§ 94U8009 to 94-8012 (1947). (22) Nev. Comp. Laws Ann. §§ 11192.01 to 11192.06 (Supp. 1945). (23) N. M. Stat. Ann. §§ 42-1404 to 42-1407 (1941). (24) Ohio Gen. Code Ann. §§ 13456-8, 13456-9 (1939). (25) Okla. Stat. Ann. tit. 22, §§ 1005-08 (1937). See Bingham v. State, 82 Okla. Crim. 305, 169 P. 2d 311. (26) Pa. Stat. Ann. tit. 50, § 48 (Supp. 1948). See Commonwealth v. Barnes, 280 Pa. 351, 124 A. 636 (whether statute applies after conviction and sentence or whether common law princi-ciples govern is not clear). But cf. Ex parte McGinnis, 14 W. N. C. 221 (Pa. Sup. Ct.). 30 OCTOBER TERM, 1949. - Frankfurter, J., dissenting—Appendix. 339 U. S. (27) Tex. Stat., Code Crim. Proc. arts. 921-27 (1948). See Dotson n. State, 149 Tex. Crim. 434, 195 S. W. 2d 372. A hearing may also be initiated on the affidavits of two private physicians. Cf. Ex parte Millikin, 108 Tex. Crim. 121, 299 S. W. 433; Millikin v. Jeffrey, 117 Tex. 134, 299 S. W. 393 (similar earlier statute). (28) Utah Code Ann. §§ 105-37-9 to 105-37-12 (1943). See State ex rel. Johnson v. Alexander, 87 Utah 376, 49 P. 2d 408; State v. Green, 88 Utah 491, 55 P. 2d 1324. (29) Wyo. Comp. Stat. Ann. §§ 10-1701, 10-1702 (1945). III. Official’s refusal to initiate given explicit finality without review: None. D. States suspending execution of death penalty under statutory provisions for inquiry by Governor or by a body of physicians and laymen on initiation by designated prison or police official: I. Proceeding appears to afford opportunity to be heard: (30) Iowa Code §§ 792.5 to 792.7 (1946). II. Proceeding appears to be ex parte: (31) Conn. Gen. Stat. §8817 (1949). (32) Kan. Gen. Stat. Ann. § 62-2406 (1935). (33) Neb. Rev. Stat. § 29-2509 (1943). See In re Grammer, 104 Neb. 744,178 N. W. 624. SOLESBEE v. BALKCOM. 31 9 Frankfurter, J., dissenting—Appendix. III. Whether proceeding is ex parte or affords opportunity to be heard is uncertain: (34) Ariz. Code Ann. §§ 44-2307, 44-2309 (1939). (35) Fla. Stat. § 922.07 (1941). (36) Miss. Code Ann. § 2558 (1942). E. States in which suspension of execution of death penalty because of insanity is at discretion of Governor: (37) Ga. Code Ann. §§27-2601, 27-2602 (1936), Solesbee v. Balkcom, 205 Ga. 122, 52 S. E. 2d 433. (38) Indiana. Diamond n. State, 195 Ind. 285, 144 N. E. 466 (only remedy is reprieve by Governor). (39) Mass. Gen. Laws c. 279, § 48 (1932), Juggins n. Executive Council, 257 Mass. 386, 154 N. E. 72 (only remedy seems to be reprieve by Governor with advice and consent of Executive Council). E. States as to which legislation or judicial decisions afford no clear basis for classification: (40) Delaware. Compare Del. Rev. Code § 3083 (1935) (insanity after conviction but before sentence in capital cases); id. § 3084 (insanity while serving imprisonment sentence). (41) Maryland. Compare Md. Ann. Code Gen. Laws art. 27, § 798; art. 59, § 47 (1939) (insanity while serving imprisonment sentence). (42) New Hampshire. 874433 O—50--7 32 OCTOBER TERM, 1949. Frankfurter, J., dissenting—Appendix. 339 U. S. (43) N. Y. Crim. Code § 495a. Compare 2 Rep. Atty. Gen. N. Y. 294, 297 (1914), with People v. Skwirsky, 213 N. Y. 151, 153-54, 107 N. E. 47-48. (44) Oregon. Compare Ore. Comp. Laws Ann. §§26-930, 26-931 (1940) (insanity at trial). (45) South Dakota. Compare S. D. Code § 34.2001 (1939) (a person cannot “be tried, adjudged to punishment, or punished for a public offense while he is insane”); id. §§ 34.2002 to 34.2004 (insanity after conviction but before sentence). (46) Vermont. (47) Virginia. Compare Va. Code Ann. §§ 19-208, 37-93 (1950) (insanity after conviction but before sentence); id. § 19-209 (insanity while serving imprisonment sentence). (48) West Virginia. Compare W. Va. Code Ann. § 6198 (1949) (insanity after conviction or while serving sentence). WONG YANG SUNG v. McGRATH. 33 Syllabus. WONG YANG SUNG v. McGRATH, ATTORNEY GENERAL, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 154. Argued December 6, 1949.—Decided February 20, 1950. 1. Administrative hearings in proceedings for the deportation of aliens must conform to the requirements of the Administrative Procedure Act, 5 U. S. C. §§ 1001 et seq. Pp. 35-53. 2. The history of this Act discloses that it is remedial legislation which should be construed, so far as its text permits, to give effect to its remedial purposes where the evils it was aimed at appear. Pp. 36-41. 3. One of the fundamental purposes of the Act was to ameliorate the evils resulting from the practice of commingling in one person the duties of prosecutor and judge. Pp. 41-45, 46. 4. A hearing in a proceeding for the deportation of an alien was presided over by a “presiding inspector” of the Immigration Service, who had not investigated that particular case but whose general duties included the investigation of similar cases. There being no “examining inspector” present to conduct the prosecution, it was the duty of the “presiding inspector” to conduct the interrogation of the alien and the Government’s witnesses, cross-examine the alien’s witnesses, and “present such evidence as is necessary to support the charges in the warrant of arrest.” It might become his duty to lodge an additional charge against the alien and hear the evidence on that charge. After the hearing, he was required to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order, for the consideration of the Commissioner of Immigration. Held: This was contrary to the purpose of the Administrative Procedure Act to ameliorate the evils resulting from a combination of the prosecuting and adjudicating functions in administrative proceedings. Pp. 45-48. 5- Section 5 of the Administrative Procedure Act, which establishes certain formal requirements for every “adjudication required by statute to be determined on the record after opportunity for agency hearing,” applies to deportation proceedings conducted by the Im- 34 OCTOBER TERM, 1949. Counsel for Parties. 339 U. S. migration Service, although the Immigration Act contains no express requirement for hearings in deportation proceedings. Pp. 48-51. (a) The limitation of § 5 of the Administrative Procedure Act to hearings “required by statute” does not exempt hearings held by compulsion but only those which administrative agencies may hold by regulation, rule, custom, or special dispensation. P. 50. (b) They do not exempt hearings the requirement for which has been read into a statute by this Court in order to save the statute from constitutional invalidity. Pp. 50-51. 6. The exception in § 7 (a) of the Administrative Procedure Act of proceedings before “officers specially provided for by or designated pursuant to statute” does not exempt deportation hearings held before immigrant inspectors. Pp. 51-53. (a) Nothing in the Immigration Act specifically provides that immigrant inspectors shall conduct deportation hearings or be designated to do so. Pp. 51-52. 84 U. S. App. D. C. 419, 174 F. 2d 158, reversed. In a habeas corpus proceeding, the District Court held that the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U. S. C. §§ 1001 et seq., does not apply to deportation hearings. 80 F. Supp. 235. The Court of Appeals affirmed. 84 U. S. App. D. C. 419, 174 F. 2d 158. This Court granted certiorari. 338 U. S. 812. Reversed, p. 53. Irving Jaffe argued the cause for petitioner. With him on the brief were Jack Wasserman, Gaspare Cusumano and Thomas A. Farrell. Robert W. Ginnane argued the cause for respondents. With him on the brief were Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl, L. Paul Wining s and Charles Gordon. Wendell Berge, A. Alvis Layne, Jr. and John B. Gage filed a brief for Riss & Co., Inc., as amicus curiae, supporting petitioner. WONG YANG SUNG v. McGRATH. 35 33 Opinion of the Court. Mr. Justice Jackson delivered the opinion of the Court. This habeas corpus proceeding involves a single ultimate question—whether administrative hearings in deportation cases must conform to requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U. S. C. §§ 1001 et seq. Wong Yang Sung, native and citizen of China, was arrested by immigration officials on a charge of being unlawfully in the United States through having overstayed shore leave as one of a shipping crew. A hearing was held before an immigrant inspector who recommended deportation. The Acting Commissioner approved; and the Board of Immigration Appeals affirmed. Wong Yang Sung then sought release from custody by habeas corpus proceedings in District Court for the District of Columbia, upon the sole ground that the administrative hearing was not conducted in conformity with §§ 5 and 11 of the Administrative Procedure Act.1 Particularly invoked are §5 (c), 60 Stat. 237, 240, 5 U. S. C. § 1004 (c), which provides in part: “The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision or initial decision required by section 8 except where such officers become unavailable to the agency. Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. . . and § 11, 60 Stat, at 244, 5 U. s. C. § 1010, which provides in part: “Subject to the civil-service 36 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. The Government admitted noncompliance, but asserted that the Act did not apply. The court, after hearing, discharged the writ and remanded the prisoner to custody, holding the Administrative Procedure Act inapplicable to deportation hearings. 80 F. Supp. 235. The Court of Appeals affirmed. 84 U. S. App. D. C. 419, 174 F. 2d 158. Prisoner’s petition for certiorari was not opposed by the Government and, because the question presented has obvious importance in the administration of the immigration laws, we granted review. 338 U. S. 812. I. The Administrative Procedure Act of June 11, 1946, supra, is a new, basic and comprehensive regulation of procedures in many agencies, more than a few of which can advance arguments that its generalities should not or do not include them. Determination of questions of its coverage may well be approached through consideration of its purposes as disclosed by its background. Multiplication of federal administrative agencies and expansion of their functions to include adjudications and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratings and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as amended, and the provisions of section 9 of said Act, as amended, shall not be applicable. . . • WONG YANG SUNG v. McGRATH. 37 33 Opinion of the Court. which have serious impact on private rights has been one of the dramatic legal developments of the past half-century.2 Partly from restriction by statute, partly from judicial self-restraint, and partly by necessity—from the nature of their multitudinous and semilegislative or executive tasks—the decisions of administrative tribunals were accorded considerable finality, and especially with respect to fact finding.3 The conviction developed, particularly within the legal profession, that this power was not sufficiently safeguarded and sometimes was put to arbitrary and biased use.4 Concern over administrative impartiality and response to growing discontent was reflected in Congress as early as 1929, when Senator Norris introduced a bill to create 2 See e. g., Blachly and Oatman, Administrative Legislation and Adjudication 1 (1934); Landis, The Administrative Process 1 (1938); Pound, Administrative Law 27 (1942); Carrow, The Background of Administrative Law 1 (1948); The Federal Administrative Procedure Act and the Administrative Agencies 4 (N. Y. U. 1947); Final Report of Attorney General’s Committee on Administrative Procedure 7 (1941), contained in S. Doc. No. 8, 77th Cong., 1st Sess. (1941); Cushman, The Independent Regulatory Commissions, cc. II-V (1941); Frankfurter, The Task of Administrative Law, 75 U. of Pa. L. Rev. 614 (1927); materials cited in n. 4, infra. 3 See e. g., Dickinson, Administrative Justice and the Supremacy of Law, passim (1927); Final Report of Attorney General’s Committee on Administrative Procedure, supra, at 11-18, 75-92; and see materials cited in n. 4, infra. *E. g., Root, Public Service by the Bar, 41 A. B. A. Rep. 355, 368 (1916); Hughes, Some Aspects of the Development of American Law, 39 N. Y. B. A. Rep. 266, 269 (1916); Sutherland, Private Rights and Government Control, 42 A. B. A. Rep. 197, 205 (1917); Address of President Guthrie, 46 N. Y. B. A. Rep. 169, 186 (1923). After 1933, when the American Bar Association formed a Special Committee on Administrative Law, the Bar’s concern can be traced in this Committee’s reports. E. g., 58 A. B. A. Rep. 197, 407 (1933); 59 A. B. A. Rep. 539 (1934); 61 A. B. A. Rep. 720 (1936); 62 A. B. A. Rep. 789 (1937). 38 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. a separate administrative court.5 Fears and dissatisfactions increased as tribunals grew in number and jurisdiction, and a succession of bills offering various remedies appeared in Congress.6 Inquiries into the practices of state agencies, which tended to parallel or follow the federal pattern, were instituted in several states, and some studies noteworthy for thoroughness, impartiality and vision resulted.7 The Executive Branch of the Federal Government also became concerned as to whether the structure and procedure of these bodies was conducive to fairness in the administrative process. President Roosevelt’s Committee on Administrative Management in 1937 recommended complete separation of adjudicating functions and personnel from those having to do with investigation or prosecution.8 The President early in 1939 also directed the Attorney General to name “a committee of eminent lawyers, jurists, scholars, and administrators to review the entire administrative process in the various 5 S. 5154, 70th Cong., 2d Sess. (1929). 6 8. 1835, 73d Cong., 1st Sess. (1933); S. 3787, H. R. 12297, 74th Cong., 2d Sess. (1936); S. 3676, 75th Cong., 3d Sess. (1938); H. R. 6324, H. R. 4235, H. R. 4236, S. 915, S. 916, 76th Cong., 1st Sess. (1939); S. 674, S. 675, S. 918, H. R. 3464, H. R. 4238, H. R. 4782, 77th Cong., 1st Sess. (1941); H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944); H. R. 1203, S. 7, 79th Cong., 1st Sess. (1945). 7 E. g., Benjamin, Administrative Adjudication in the State of New York (1942); Tenth Biennial Report of the Judicial Council to the Governor and Legislature of California (1944). See also Fesler, The Independence of State Regulatory Agencies (1942); Handbook of the National Conference of Commissioners on Uniform State Laws, 226 et seq. (1943); 63 A. B. A. Rep. 623 (1938). 8 Administrative Management in the Government of the United States, Report of the President’s Committee on Administrative Management 37 (1937). WONG YANG SUNG v. McGRATH. 39 33 Opinion of the Court. departments of the executive Government and to recommend improvements, including the suggestion of any needed legislation.”9 So strong was the demand for reform, however, that Congress did not await the Committee’s report but passed what was known as the Walter-Logan bill, a comprehensive and rigid prescription of standardized procedures for administrative agencies.10 This bill was vetoed by President Roosevelt December 18, 1940,11 and the veto was sustained by the House.12 But the President’s veto message made no denial of the need for reform. Rather it pointed out that the task of the Committee, whose objective was “to suggest improvements to make the process more workable and more just,” had proved “unexpectedly complex.” The President said, “I should desire to await their report and recommendations before approving any measure in this complicated field.”13 The committee divided in its views and both the majority and the minority submitted bills14 which were introduced in 1941. A subcommittee of the Senate Judiciary Committee held exhaustive hearings on three proposed 9 The quoted statement is from President Roosevelt’s message to Congress of December 18, 1940, vetoing H. R. 6324, the so-called Walter-Logan bill. H. R. Doc. No. 986, 76th Cong., 3d Sess., 3-4 (1940). The origin and orders leading to the creation of the Attorney General’s Committee are set out in Appendix A of the Committee’s Final Report, supra. 10 S. 915, H. R. 6324,76th Cong., 1st Sess. (1939). 1186 Cong. Rec. 13942-3 (1940), reprinted in H. R. Doc. No. 986, 76th Cong., 3d Sess. (1940). 12 86 Cong. Rec. 13953 (1940). 13 86 Cong. Rec. at 13943; H. R. Doc. No. 986, supra, 4. 14 These bills appear at pp. 192 and 217 of the Committee’s Final Report, supra. The majority bill became S. 675, 77th Cong., 1st Sess. (1941) and the minority recommendation was embodied in S. 674, 77th Cong., 1st Sess. (1941). 40 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. measures,15 but, before the gathering storm of national emergency and war, consideration of the problem was put aside. Though bills on the subject reappeared in 1944,16 they did not attract much attention. The McCarran-Sumners bill, which evolved into the present Act, was introduced in 1945.17 Its consideration and hearing, especially of agency interests, was painstaking. All administrative agencies were invited to submit their views in writing. A tentative revised bill was then prepared and interested parties again were invited to submit criticisms.18 The Attorney General named representatives of the Department of Justice to canvass the agencies and report their criticisms, and submitted a favorable report on the bill as finally revised.19 It passed both Houses without opposition and was signed by President Truman June 11, 1946.20 The Act thus represents a long period of study and strife; it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest. It contains many compromises and generalities and, no doubt, some am- 15 The hearings ran from April 2 to July 2, 1941, and, with an appendix, have been collected in four parts and over 1,600 pages. Hearings before Subcommittee of the Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. (1941). 16 H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944). 17 S. 7 and H. R. 1203,79th Cong., 1st Sess. (1945). 18 See H. R. Rep. No. 1980, 79th Cong., 2d Sess. 14-15 (1946); S. Rep. No. 752, 79th Cong., 1st Sess. 4-5 (1945), reprinted in S. Doc. No. 248, 79th Cong., 2d Sess., at 233, 248-249, and 185, 190-191, respectively. 19 S. Rep. No. 752, 79th Cong., 1st Sess. 37-45 (1945); 92 Cong. Rec. App. A-2982-5 (1946). 2092 Cong. Rec. 2167 (1946) (passage by the Senate); 92 Cong. Rec. 5668 (1946) (amended version passed by House); 92 Cong. Rec. 5791 (1946) (House version agreed to by Senate); 92 Cong. Rec. 6706 (1946) (approved by the President). WONG YANG SUNG v. McGRATH. 41 33 Opinion of the Court. biguities. Experience may reveal defects. But it would be a disservice to our form of government and to the administrative process itself if the courts should fail, so far as the terms of the Act warrant, to give effect to its remedial purposes where the evils it was aimed at appear. II. Of the several administrative evils sought to be cured or minimized, only two are particularly relevant to issues before us today. One purpose was to introduce greater uniformity of procedure and standardization of administrative practice among the diverse agencies whose customs had departed widely from each other.21 We pursue this no further than to note that any exception we may find to its applicability would tend to defeat this purpose. More fundamental, however, was the purpose to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge. The President’s Committee on Administrative Management voiced in 1937 the theme which, with variations in language, was reiterated throughout the legislative history of the Act. The Committee’s report, which President Roosevelt transmitted to Congress with his approval as “a great document of permanent importance,” 22 said: “. . . the independent commission is obliged to carry on judicial functions under conditions which 21H. R. Rep. No. 1980, 79th Cong., 2d Sess. 16 (1946); Final Report of the Attorney General’s Committee on Administrative Procedure, 20 (1941); McFarland, Analysis of the Federal Administrative Procedure Act, in Federal Administrative Procedure Act and the Administrative Agencies 16, 22 (N. Y. U. 1947). See also Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H. R. 4236, H. R. 6198, and H. R. 6324, 76th Cong., 1st Sess. 14, 31 (1939); S. Rep. No. 442, 76th Cong., 1st Sess. 9 (1939); H. R. Rep. No. 1149, 76th Cong., 1st Sess. 2-3 (1939); S. Doc. No. 71, 76th Cong., 1st Sess. 5 (1939). 22 81 Cong. Rec. 187,191 (1937). 42 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. threaten the impartial performance of that judicial work. The discretionary work of the administrator is merged with that of the judge. Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible. “Furthermore, the same men are obliged to serve both as prosecutors and as judges. This not only undermines judicial fairness; it weakens public confidence in that fairness. Commission decisions affecting private rights and conduct lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself.” Administrative Management in the Government of the United States, Report of the President’s Committee on Administrative Management, 36-37 (1937). The Committee therefore recommended a redistribution of functions within the regulatory agencies. “[I]t would be divided into an administrative section and a judicial section” and the administrative section “would formulate rules, initiate action, investigate complaints . . and the judicial section “would sit as an impartial, independent body to make decisions affecting the public interest and private rights upon the basis of the records and findings presented to it by the administrative section.” Id. at 37. Another study was made by a distinguished committee named by the Secretary of Labor, whose jurisdiction at the time included the Immigration and Naturalization Service. Some of the committee’s observations have relevancy to the procedure under examination here. It said: WONG YANG SUNG v. McGRATH. 43 33 Opinion of the Court. “The inspector who presides over the formal hearing is in many respects comparable to a trial judge. He has, at a minimum, the function of determining— subject to objection on the alien’s behalf—what goes into the written record upon which decision ultimately is to be based. Under the existing practice he has also the function of counsel representing the moving party—he does not merely admit evidence against the alien; he has the responsibility of seeing that such evidence is put into the record. The precise scope of his appropriate functions is the first question to be considered.” The Secretary of Labor’s Committee on Administrative Procedure, The Immigration and Naturalization Service, 77 (Mimeo. 1940). Further: “Merely to provide that in particular cases different inspectors shall investigate and hear is an insufficient guarantee of insulation and independence of the presiding official. The present organization of the field staff not only gives work of both kinds commonly to the same inspector but tends toward an identity of viewpoint as between inspectors who are chiefly doing only one or the other kind of work. . . . “. . . We recommend that the presiding inspectors be relieved of their present duties of presenting the case against aliens and be confirmed [sic] entirely to the duties customary for a judge. This, of course, would require the assignment of another officer to perform the task of a prosecuting attorney. The appropriate officer for this purpose would seem to be the investigating inspector who, having prepared the case against the alien, is already thoroughly familiar with it. . . . 44 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. “A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. Nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of the investigation. ...” Id. at 81-82. And the Attorney General’s Committee on Administrative Procedure, which divided as to the appropriate remedy,23 was unanimous that this evil existed. Its Final Report said: “These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable. But they are also avoidable and should be avoided by appropriate internal division of labor. For the disqualifications produced by investigation or advocacy are personal psychological ones which result from engaging in those types of activity; and the problem is simply one of isolating those who engage in the activity. Creation of independent hearing commissioners insulated from all phases of a case other than hearing and deciding will, the Committee believes, go far toward solving this problem at the level of the initial hearing provided the proper safeguards are established to assure the insulation. . . .” Rep. Atty. Gen. Comm. Ad. Proc. 56 (1941), S. Doc. No. 8, 77th Cong., 1st Sess. 56 (1941). The Act before us adopts in general this recommended form of remedial action. A minority of the Committee had, furthermore, urged an even more thoroughgoing 23 See n. 14, supra. WONG YANG SUNG v. McGRATH. 45 33 Opinion of the Court. separation and supported it with a cogent report. Id. at 203 et seq. Such were the evils found by disinterested and competent students. Such were the facts before Congress which gave impetus to the demand for the reform which this Act was intended to accomplish. It is the plain duty of the courts, regardless of their views of the wisdom or policy of the Act, to construe this remedial legislation to eliminate, so far as its text permits, the practices it condemns. III. Turning now to the case before us, we find the administrative hearing a perfect exemplification of the practices so unanimously condemned. This hearing, which followed the uniform practice of the Immigration Service,24 was before an immigrant inspector, who, for purposes of the hearing, is called the “presiding inspector.” Except with consent of the alien, the presiding inspector may not be the one who investigated the case. 8 C. F. R. 150.6 (b).25 But the inspector’s duties include investigation of like cases; and while he is today hearing cases investigated by a colleague, tomorrow his investigation of a case may be heard before the inspector whose case he passes on today. An “examining inspector” may be designated to conduct the prosecution, 8 C. F. R. 150.6 (n), but none was in this case; and, in any event, the examining inspector also has the same mixed prosecutive and hearing functions. The presiding 24 See 8 C. F. R. 150.1 et seq. 25 The initial step in a deportation case is the investigation of an alien by an immigrant inspector. 8 C. F. R. 150.1. This is followed by issuance of a warrant of arrest, 8 C. F. R. 150.2-150.4, and incarceration, unless the alien is released under bond. 8 C. F. R. 150.5. The formal hearing follows. 46 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. inspector, when no examining inspector is present, is required to “conduct the interrogation of the alien and the witnesses in behalf of the Government and shall cross-examine the alien’s witnesses and present such evidence as is necessary to support the charges in the warrant of arrest.” 8 C. F. R. 150.6 (b). It may even become his duty to lodge an additional charge against the alien and proceed to hear his own accusation in like manner. 8 C. F. R. 150.6 (1). Then, as soon as practicable, he is to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order. A copy is furnished the alien or his counsel, who may file exceptions and brief, 8 C. F. R. 150.7, whereupon the whole is forwarded to the Commissioner. 8 C. F. R. 150.9. The Administrative Procedure Act did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions. But that the safeguards it did set up were intended to ameliorate the evils from the commingling of functions as exemplified here is beyond doubt. And this commingling, if objectionable anywhere, would seem to be particularly so in the deportation proceeding, where we frequently meet with a voteless class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused. Nothing in the nature of the parties or proceedings suggests that we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to federal agencies. Nor can we accord any weight to the argument that to apply the Act to such hearings will cause inconvenience and added expense to the Immigration Service. Of course it will, as it will to nearly every agency to which it is applied. But the power of the purse belongs to Congress, and Congress has determined that the price WONG YANG SUNG v. McGRATH. 47 33 Opinion of the Court. for greater fairness is not too high. The agencies, unlike the aliens, have ready and persuasive access to the legislative ear and if error is made by including them, relief from Congress is a simple matter. This brings us to contentions both parties have advanced based on the pendency in Congress of bills to exempt this agency from the Act. Following an adverse decision,26 the Department asked Congress for exempting legislation,27 which appropriate committees of both Houses reported favorably but in different form and substance.28 Congress adjourned without further action. The Government argues that Congress knows that the Immigration Service has construed the Act as not applying to deportation proceedings, and that it “has taken no action indicating disagreement with that interpretation”; that therefore it “is at least arguable that Congress was prepared to specifically confirm the administrative construction by clarifying legislation.” We do not think we can draw that inference from incompleted steps in the legislative process. Cf. Helvering v. Hallock, 309 U. S. 106, 119-120. On the other hand, we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations. We do not feel justified in holding that a request for and failure to get in a single session of Congress clarifying legislation on a genuinely debatable point of agency procedure admits weakness in the agency’s contentions. We draw, therefore, no inference in favor of either construction of the Act—from the 26 Eisler v. Clark (D. D. C. 1948), 77 F. Supp. 610. 27 S. 2755 and H. R. 6652,80th Cong., 2d Sess. (1948). 28 S. Rep. No. 1588, H. R. Rep. No. 2140, 80th Cong., 2d Sess. (1948). 874433 O—50-----8 48 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. Department’s request for legislative clarification, from the congressional committees’ willingness to consider it, or from Congress’ failure to enact it. We come, then, to examination of the text of the Act to determine whether the Government is right in its contentions: first, that the general scope of § 5 of the Act does not cover deportation proceedings; and, second, that even if it does, the proceedings are excluded from the requirements of the Act by virtue of § 7. IV. The Administrative Procedure Act, § 5, establishes a number of formal requirements to be applicable “In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” The argument here depends upon the words “adjudication required by statute.” The Government contends that there is no express requirement for any hearing or adjudication in the statute authorizing deportation,29 and that this omission shields these proceedings from the impact of § 5. Petitioner, on the other hand, contends that deportation hearings, though not expressly required by statute, are required under the decisions of this Court,30 29 Section 19 (a) of the Immigration Act of February 5, 1917, 39 Stat. 874, 889, as amended, 8 U. S. C. § 155 (a), provides in part: “. . . any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. ... In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final.” See Note 33, infra. 30 The Japanese Immigrant Case, 189 U. S. 86, 100, 101; Kwock Jan Fat v. White, 253 U. S. 454, 459, 464; Bridges v. Wixon, 326 U.S. 135,160 (concurringopinion). WONG YANG SUNG v. McGRATH. 49 33 Opinion of the Court. and the proceedings, therefore, are within the scope of §5. Both parties invoke many citations to legislative history as to the meaning given to these key words by the framers, advocates or opponents of the Administrative Procedure Act. Because § 5 in the original bill applied to hearings required “by law,”31 because it was suggested by the Attorney General that it should be changed to “required by statute or Constitution,”32 and because it finally emerged “required by statute,” the Government argues that the section is intended to apply only when explicit statutory words granting a right to adjudication can be pointed out. Petitioner on the other hand cites references which would indicate that the limitation to statutory hearing was merely to avoid creating by inference a new right to hearings where no right existed otherwise. We do not know. The legislative history is more conflicting than the text is ambiguous. But the difficulty with any argument premised on the proposition that the deportation statute does not require a hearing is that, without such hearing, there would be no constitutional authority for deportation. The constitutional requirement of procedural due process of law derives from the same source as Congress’ power to legislate and, where applicable, permeates every valid enactment of that body. It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and 31 Section 301 of the bills proposed in the majority and minority recommendations of the Final Report of the Attorney General’s Committee on Administrative Procedure, pp. 195, 232-233. 32 Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. 1456 (1941). 50 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. who had been here some time even if illegally. The Court said: “This is the reasonable construction of the acts of Congress here in question, and they need not be otherwise interpreted. In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution.” The Japanese Immigrant Case, 189 U. S. 86, 101. We think that the limitation to hearings “required by statute” in § 5 of the Administrative Procedure Act exempts from that section’s application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We do not think the limiting words render the Administrative Procedure Act inapplicable to hearings, the requirement for which has been read into a statute by the Court in order to save the statute from invalidity. They exempt hearings of less than statutory authority, not those of more than statutory authority. We would hardly attribute to Congress a purpose to be less scrupulous about the fairness of a hearing necessitated by the Constitution than one granted by it as a matter of expediency. Indeed, to so construe the Immigration Act might again bring it into constitutional jeopardy. When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself. It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceed- WONG YANG SUNG v. McGRATH. 51 33 Opinion of the Court. ings the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake. We hold that the Administrative Procedure Act, § 5, does cover deportation proceedings conducted by the Immigration Service. V. The remaining question is whether the exception of § 7 (a) of the Administrative Procedure Act exempts deportation hearings held before immigrant inspectors. It provides: “Sec. 7. In hearings which section 4 or 5 requires to be conducted pursuant to this section— “(a) Presiding officers.—There shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided in this Act; but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute. . . ” 60 Stat. 237, 241, 5 U. S. C. § 1006. The Government argues that immigrant inspectors are “specially provided for by or designated pursuant to” § 16 of the Immigration Act, which, in pertinent part, reads: “. . . The inspection ... of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act,33 shall be conducted by 33 The original Act, 39 Stat. 886, reads “under this Act,” although in the codification, 8 U. S. C. § 152, it reads “under this section.” The former is controlling. 1 U. S. C. (Supp. II, 1949) §§ 112, 204 (a). 52 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. immigrant inspectors, except as hereinafter provided in regard to boards of special inquiry. . . . Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; . . 39 Stat. 874, 885, as amended, 8 U. S. C. § 152. Certainly nothing here specifically provides that immigrant inspectors shall conduct deportation hearings or be designated to do so. This language does direct them to conduct border inspections of aliens seeking admission. They may administer oaths and take, record, and consider evidence. But these functions are indispensable to investigations which are concededly within their competence. And these functions are likewise necessary to enable the preparation of complaints for prosecutive purposes. But that Congress by grant of these powers has specially constituted them or provided for their designation as hearing officers in deportation proceedings does not appear. Section 7 (a) qualifies as presiding officers at hearings the agency and one or more of the members of the body comprising the agency, and it also leaves untouched any others whose responsibilities and duties as hearing officers are established by other statutory provision. But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process. We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards WONG YANG SUNG v. McGRATH. 53 33 Reed, J., dissenting. enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.* Reversed. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case. Mr. Justice Reed, dissenting. The Court, it seems to me, has disregarded a congressional exemption of certain agencies, including the Immigration and Naturalization Service, from some of the requirements of the Administrative Procedure Act. Such judicial intrusion into the legislative domain justifies a protest. It may be useful to call attention to the necessity of recognizing specific exceptions to general rules. This protest is rested on the ground that immigrant inspectors performing duties under § 16 of the Immigration Act are within the exception provided by § 7 (a) of the Administrative Procedure Act. The Court’s opinion discusses this point under subdivision V. The sections are there set out and can be examined by the reader. In this case no one questions the constitutionality of the hearing Wong received before the immigrant inspector, with administrative review by the Commissioner and the Board of Immigration Appeals. The question on which I disagree with the Court is whether the Administrative Procedure Act permits an inspector of the Immigration and Naturalization Service to serve as a presiding officer at a deportation hearing. *[For order modifying the judgment, see post, p. 908.] 54 OCTOBER TERM, 1949. Reed, J., dissenting. 339 U. S. Section 7 (a) of the Administrative Procedure Act provides that the official presiding at the taking of evidence shall be an agency, an agency member or an examiner appointed under that Act. There is an exception to this requirement. It reads as follows: “but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute.” It is this exception that made it proper for an immigrant inspector to preside at this deportation hearing. Under § 16 of the Immigration Act, 39 Stat. 874, 885, the “inspection ... of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act, shall be conducted by immigrant inspectors, .... Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; . . . .” It seems to me obvious that the exception provided in § 7 (a) covers immigrant inspectors dealing with the arrest of an alien for violation of the Immigration Act. The examination of arrested aliens at a deportation proceeding is surely a specified class of proceedings under § 7 (a) of the Administrative Procedure Act, and it is surely conducted by an officer “specially provided for by . . . statute.” The reason for the exception in § 7 (a) was not spelled out in the legislative history or in the Act itself. The WONG YANG SUNG v. McGRATH. 55 33 Reed, J., dissenting. exception may have been made to retain smoothness of operation in the several agencies where there were officials specially provided for by statute or designated pursuant to a statute. When making exceptions from the requirements as to separation of the investigatory and adjudicatory functions, it was natural to include officers specially designated by statute to sit in judgment. Agency members are excluded from these requirements of the Administrative Procedure Act. They, too, have investigatory and adjudicatory duties. Since the members of the agency and the statutorily designated officers were specially selected for the functions they were to perform, Congress probably reposed confidence in their experience and expertness. It doubtless did not wish to disorganize administration until time showed whether that confidence was well placed.1 Since the Court does not accept my view of the reach of § 7 (a), it would be useless to undertake an analysis of the other questions presented by the petition for certiorari. 1 Thus the congressional committee warned that should the exception “be a loophole for avoidance of the examiner system in any real sense, corrective legislation would be necessary. That provision is not intended to permit agencies to avoid the use of examiners but to preserve special statutory types of hearing officers who contribute something more than examiners could contribute and at the same time assure the parties fair and impartial procedure.” S. Doc. No. 248,79th Cong., 2d Sess., p. 216. 56 OCTOBER TERM, 1949. Syllabus. 339 U. S. UNITED STATES v. RABINOWITZ. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 293. Argued January 11, 1950.—Decided February 20, 1950. 1. Knowing that respondent had sold four forged postage stamps to a government agent and probably possessed many more in his one-room place of business which was open to the public, officers obtained a warrant for his arrest; but they did not obtain a search warrant. They arrested him in his place of business, searched the desk, safe and file cabinets and seized 573 forged stamps. He was indicted for possessing and concealing the stamps so seized and for selling the four that had been purchased. The seized stamps were admitted in evidence over his objection, and he was convicted on both counts. Held: The search and seizure were incident to a lawful arrest, they were not unreasonable, and they did not violate the Fourth Amendment. Pp. 57-66. (a) What is a reasonable search is not to be determined by any fixed formula. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. P. 63. (b) Here the search and seizure were reasonable because: (1) they were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; and (5) the possession of the forged stamps was a crime. Pp. 63-64. 2. Trupiano v. United States, 334 U. S. 699, overruled to the extent that it requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest. Pp. 65-66. 176 F. 2d 732, reversed. Respondent was convicted of violating 18 U. S. C. (1946 ed.) §§ 265, 268. The Court of Appeals reversed. 176 F. 2d 732. This Court granted certiorari. 338 U. S. 884. Reversed, p. 66. UNITED STATES v. RABINOWITZ. 57 56 Opinion of the Court. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen. Abraham Lillienthal argued the cause and filed a brief for respondent. Mr. Justice Minton delivered the opinion of the Court. Respondent was convicted of selling and of possessing and concealing forged and altered obligations of the United States with intent to defraud. The question presented here is the reasonableness of a search without a search warrant of a place of business consisting of a one-room office, incident to a valid arrest. On February 1, 1943, a printer who possessed plates for forging “overprints” on canceled stamps was taken into custody. He disclosed that respondent, a dealer in stamps, was one of the customers to whom he had delivered large numbers of stamps bearing forged overprints.1 On Saturday, February 6, 1943, with this information concerning respondent and his activities in the hands of Government officers, a postal employee was sent to respondent’s place of business to buy stamps bearing overprints. He bought four stamps. On Monday, February 8, the stamps were sent to an expert to determine whether the overprints were genuine. On February 9 the report was received showing the overprints to be forgeries, having been placed upon the stamps after cancellation, and not before as was the Government’s practice. On February 11 a further statement was obtained 1 The stamps involved were genuine postage stamps. At certain times the Government has printed the name of a particular state or possession on stamps prior to post office sale. Canceled stamps bearing these overprints have an unusual value for stamp collectors. 58 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. from the printer who had made the overprints. On February 16, 1943, a warrant for the arrest of respondent was obtained. In 1941 respondent had been convicted and sentenced to three months’ imprisonment on a plea of guilty to a two-count indictment charging the alteration of obligations of the United States, that is, of overprinting Government postage stamps, and the possession of a plate from which a similitude of a United States obligation had been printed. Thus, when the warrant for arrest was obtained, the officers had reliable information that respondent was an old offender, that he had sold four forged and altered stamps to an agent of the Government, and that he probably possessed several thousand altered stamps bearing forged overprints. While the warrant of arrest was not put in evidence it contained, as a Government witness testified on cross-examination, authority to arrest for more than the sale of the four stamps; it covered all the Government officers’ information.2 Armed with this valid warrant for arrest, the Government officers, accompanied by two stamp experts, went to respondent’s place of business, a one-room office open to the public. The officers thereupon arrested the re- 2 “Q. Now, when you went to Mr. Rabinowitz’s place of business, all you had with you was a warrant to arrest him in connection with the alleged sale of those four stamps; is that correct ? “A. And all information contained in the arrest warrant; yes. “Q. I didn’t hear the last part of your answer. “A. In our questions a few minutes back, I stated that the four stamps were specifically mentioned in the application for the warrant for arrest, but that there was other information in my possession that was included in that warrant for arrest. “Q. Well, wasn’t the warrant of arrest issued solely on the charge that Mr. Rabinowitz had sold four stamps containing false or altered overprints? Wasn’t that what the warrant of arrest was issued for? “A. Primarily, yes, but not completely.” UNITED STATES v. RABINOWITZ. 59 56 Opinion of the Court. spondent, and over his objection searched the desk, safe, and file cabinets in the office for about an hour and a half. They found and seized 573 stamps, on which it was later determined that overprints had been forged, along with some other stamps which were subsequently returned to respondent. Respondent was indicted on two counts. He was charged in count one with selling four forged and altered stamps, knowing they were forged and altered and with the intent that they be passed as genuine.3 The second count charged that he did keep in his possession and conceal, with intent to defraud, the 573 forged and altered stamps.4 Respondent made timely motions for suppression and to strike the evidence pertaining to the 573 stamps, all of which were eventually denied. Respondent was convicted on both counts after trial before a jury in which he offered no evidence. Relying on Trupiano v. United States, 334 U. S. 699, the Court of Appeals, one judge dissenting, reversed on the ground that since the officers had had time in which to procure a search warrant and had failed to do so the search was illegal, and the evidence therefore should have been excluded. 176 F. 2d 732. We granted certiorari to determine the validity of the search because of the question’s importance in the administration of the law of search and seizure. 338 U. S. 884. Were the 573 stamps, the fruits of this search, admissible in evidence? If legally obtained, these stamps were competent evidence to show intent under the first count of the indictment, and they were the very things the possession of which was the crime charged in the second count. 318 U.S. C. (1946 ed.) §268. 4 18 U. S. C. (1946 ed.) § 265. All of these stamps are defined by statute as obligations of the United States. 18 U. S. C. (1946 ed.) §261. 60 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It is unreasonable searches that are prohibited by the Fourth Amendment. Carroll v. United States, 267 U. S. 132, 147. It was recognized by the framers of the Constitution that there were reasonable searches for which no warrant was required. The right of the “people to be secure in their persons” was certainly of as much concern to the framers of the Constitution as the property of the person. Yet no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks n. United States, 232 U. S. 383, 392. Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him. Of course, a search without warrant incident to an arrest is dependent initially on a valid arrest. Here the officers had a warrant for respondent’s arrest which was, as far as can be ascertained, broad enough to cover the crime of possession charged in the second count, and consequently respondent was properly arrested. Even if the warrant of arrest were not sufficient to authorize the arrest for possession of the stamps, the arrest therefor was valid because the officers had probable cause to believe that a felony was being committed in their very presence. Carroll v. United States, 267 U. S. 132, 156-57. The arrest was therefore valid in any event, and respondent’s person could be lawfully searched. Could the UNITED STATES v. RABINOWITZ. 61 56 Opinion of the Court. officers search his desk, safe and file cabinets, all within plain sight of the parties, and all located under respondent’s immediate control in his one-room office open to the public? Decisions of this Court have often recognized that there is a permissible area of search beyond the person proper. Thus in Agnello v. United States, 269 U. S. 20, 30, this Court stated: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.” The right “to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed” seems to have stemmed not only from the acknowledged authority to search the person, but also from the longstanding practice of searching for other proofs of guilt within the control of the accused found upon arrest. Weeks v. United States, 232 U. S. 383, 392. It became accepted that the premises where the arrest was made, which premises were under the control of the person arrested and where the crime was being committed, were subject to search without a search warrant. Such a search was not “unreasonable.” Agnello N. United States, 269 U. S. 20, 30; Carroll v. United States, 267 U. S. 132, 158; Boyd v. United States, 116 U. S. 616, 623-24. In Marron v. United States, 275 U. S. 192, the officers had a warrant to search for liquor, but the warrant did not describe a certain ledger and invoices pertaining to the operation of the business. The latter were seized during the search of the place of business but were not 62 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. returned on the search warrant as they were not described therein. The offense of maintaining a nuisance under the National Prohibition Act was being committed in the room by the arrested bartender in the officers’ presence. The search warrant was held not to cover the articles seized, but the arrest for the offense being committed in the presence of the officers was held to authorize the search for and seizure of the ledger and invoices, this Court saying: “The officers were authorized to arrest for crime being committed in their presence, and they lawfully arrested Birdsall. They had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise. . . . The closet in which liquor and the ledger were found was used as a part of the saloon. And, if the ledger was not as essential to the maintenance of the establishment as were bottles, liquors and glasses, it was none the less a part of the outfit or equipment actually used to commit the offense. And, while it was not on Birdsall’s person at the time of his arrest, it was in his immediate possession and control. The authority of officers to search and seize the things by which the nuisance was being maintained, extended to all parts of the premises used for the unlawful purpose.” Marron v. United States, 275 U. S. 192, 198-199. We do not understand the Marron case to have been drained of contemporary vitality by Go-Bart Co. N. United States, 282 U. S. 344, and United States v. Lefkowitz, 285 U. S. 452. Those cases condemned general exploratory searches, which cannot be undertaken by officers with or without a warrant. In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe UNITED STATES v. RABINOWITZ. 63 56 Opinion of the Court. that respondent was conducting his business illegally. The search was fop stamps overprinted illegally, which were thought upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control and in which he had been selling such stamps unlawfully. Harris N. United States, 331 U. S. 145, which has not been overruled, is ample authority for the more limited search here considered. In all the years of our Nation’s existence, with special attention to the Prohibition Era, it seems never to have been questioned seriously that a limited search such as here conducted as incident to a lawful arrest was a reasonable search and therefore valid.5 It has been considered in the same pattern as search of the person after lawful arrest. What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are “unreasonable” searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Co. n. United States, 282 U. S. 344, 357. Reasonableness is in the first instance for the District Court to determine. We think the District Court’s conclusion 5 When construing state safeguards similar to the Fourth Amendment of the Federal Constitution, state courts have shown little hesitancy in holding that incident to a lawful arrest upon premises within the control of the arrested person, a search of the premises at least to the extent conducted in the instant case is not unreasonable. See, e. g.: Argetakis v. State, 24 Ariz. 599, 212 P. 372; Italiano v. State, 141 Fla. 249, 193 So. 48; State v. Conner, 59 Idaho 695, 89 P. 2d 197; State v. Carenza, 357 Mo. 1172, 212 S. W. 2d 743; State ex rel. Wong You v. District Court, 106 Mont. 347, 78 P. 2d 353; Davis v. State, 30 Okla. Cr. 61, 234 P. 787; State ex rel. Fong v. Superior Court, 29 Wash. 2d 601, 188 P. 2d 125; State v. Adams, 103 W. Ya. 77,136 S. E. 703. 874433 O—50--------9 64 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. that here the search and seizure were reasonable should be sustained because: (1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars’ tools, lottery tickets or counterfeit money.6 Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not, because the search was otherwise reasonable, as previously concluded. In a recent opinion, Trupiano v. United States, 334 U. S. 699, this Court first enunciated the requirement that search warrants must be procured when “practicable” in a case of search incident to arrest. On the occasion of the previous suggestion of such a test, Tay-lor v. United States, 286 U. S. 1, the Court had been scrupulous to restrict the opinion to the familiar situation there presented. Prohibition agents, having received complaints for about a year, went at 2:30 a. m. to a garage adjacent to a house, flashed a light through a small opening, and then broke in and seized liquor. The Court emphasized that “No one was within the place and there was no reason to think otherwise.” Id. at 5. Lest the holding that such a search of an unoccupied building 6 There is no dispute that the objects searched for and seized here, having been utilized in perpetrating a crime for which arrest was made, were properly subject to seizure. Such objects are to be distinguished from merely evidentiary materials which may not be taken into custody. United States v. Lefkowitz, supra, at 464-66; Gouled v. United States, 255 U. S. 298, 309-11. This is a distinction of importance, for “limitations upon the fruit to be gathered tend to limit the quest itself . . . .” United States V. Poller, 43 F. 2d 911, 914. UNITED STATES v. RABINOWITZ. 65 56 Opinion of the Court. was unreasonable be thought to have broader significance the Court carefully stated in conclusion: “This record does not make it necessary for us to discuss the rule in respect of searches in connection with an arrest. No offender was in the garage; the action of the agents had no immediate connection with an arrest. The purpose was to secure evidence to support some future arrest.” Id. at 6. A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential. It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the 66 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U. S. 699, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances— the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment. We do not treat additional questions raised by respondent in his brief to support the judgment of the Court of Appeals. We consider it appropriate to dispose of these issues on the basis of the excellent discussion below. The motion to suppress the evidence was properly denied by the District Court. The judgment of the Court of Appeals is Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Black, dissenting. Trupiano v. United States, 334 U. S. 699, was decided on the unarticulated premise that the Fourth Amendment of itself barred the use of evidence obtained by what the Court considered an “unreasonable” search. I dissented in that case. Later, concurring in this Court’s decision in Wolf v. Colorado, 338 U. S. 25, 39-40,1 stated my agreement with the “plain implication” of the Wolf opinion that “the federal exclusionary rule is not a com- UNITED STATES v. RABINOWITZ. 67 56 Black, J., dissenting. mand of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.” In the light of the Wolf case, the Trupiano rule is not a constitutional command, but rather an evidentiary policy adopted by this Court in the exercise of its supervisory powers over federal courts. Cf. McNabb v. United States, 318 U. S. 332. The present case comes within that rule: the trial court admitted certain evidence procured by a search and seizure without a search warrant although the officers had ample time and opportunity to get one. Whether this Court should adhere to the Trupiano principle making evidence so obtained inadmissible in federal courts now presents no more than a question of what is wise judicial policy. Although the rule does not in all respects conform to my own ideas, I think that the reasons for changing it are outweighed by reasons against its change. In recent years, the scope of the rule has been a subject of almost constant judicial controversy both in trial and appellate courts. In no other field has the law’s uncertainty been more clearly manifested. To some extent that uncertainty may be unavoidable. The Trupiano case itself added new confusions “in a field already replete with complexities.” Trupiano v. United States, supra, 716. But overruling that decision merely aggravates existing uncertainty. For as Mr. Justice Frankfurter points out, today’s holding casts doubt on other cases recently decided. And I do not understand how trial judges can be expected to foresee what further shifts may occur. In my judgment it would be wiser judicial policy to adhere to the Trupiano rule of evidence, at least long enough to see how it works. That rule is based upon very strict requirements designed to narrow the occasions upon which officers can make searches and seizures without judicial warrant. Unquestionably its application will now and then permit 68 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. a guilty person to escape conviction because of hasty or ill-advised action on the part of enforcement officers. But the same may be said of the requirements of the Fourth Amendment which the exclusionary rule was fashioned to implement. The framers of the Fourth Amendment must have concluded that reasonably strict search and seizure requirements were not too costly a price to pay for protection against the dangers incident to invasion of private premises and papers by officers, some of whom might be overzealous and oppressive. See dissent in Feldman v. United States, 322 U. S. 487, 500-502. Nor can I see where the enforcement of criminal justice is likely to be seriously handicapped by adhering to the Trupiano holding. I would affirm the judgment of the Court of Appeals. Mr. Justice Frankfurter, whom Mr. Justice Jack-son joins, dissenting. The clear-cut issue before us is this: in making a lawful arrest, may arresting officers search without a search warrant not merely the person under arrest or things under his immediate physical control, but the premises where the arrest is made, although there was ample time to secure such a warrant and no danger that the “papers and effects” for which a search warrant could be issued would be despoiled or destroyed? The old saw that hard cases make bad law has its basis in experience. But petty cases are even more calculated to make bad law. The impact of a sordid little case is apt to obscure the implications of the generalization to which the case gives rise. Only thus can I account for a disregard of the history embedded in the Fourth Amendment and the great place which belongs to that Amendment in the body of our liberties as recognized and applied by unanimous decisions over a long stretch of the Court’s history. UNITED STATES v. RABINOWITZ. 69 56 Frankfurter, J., dissenting. It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment. A disregard of the historic materials underlying the Amendment does not answer them. 1. It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, in Silverthorne Lumber Co. v. United States, 251 U. S. 385, in Gouled v. United States, 255 U. S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper. 2. This is the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” These words are not just a literary composition. They are not to be read as they might be read by a man who knows English but has no knowledge of the history that gave rise to the words. The clue to the meaning and 70 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. scope of the Fourth Amendment is John Adams’ characterization of Otis’ argument against search by the police that “American independence was then and there born.” 10 Adams, Works 247. One cannot wrench “unreasonable searches” from the text and context and historic content of the Fourth Amendment. It was the answer of the Revolutionary statesmen to the evils of searches without warrants and searches with warrants unrestricted in scope. Both were deemed “unreasonable.” Words must be read with the gloss of the experience of those who framed them. Because the experience of the framers of the Bill of Rights was so vivid, they assumed that it would be carried down the stream of history and that their words would receive the significance of the experience to which they were addressed—a significance not to be found in the dictionary. When the Fourth Amendment outlawed “unreasonable searches” and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is “unreasonable” unless a warrant authorizes it, barring only exceptions justified by absolute necessity. Even a warrant cannot authorize it except when it is issued “upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.”1 With all respect I suggest that it makes a mockery of the Fourth Amendment to sanction search without a search warrant merely because of the 1 For a more detailed summary of the English and American history underlying the Fourth Amendment, see the dissenting opinions in Davis v. United States, 328 U. S. 582, 603-05, and Harris n. United States, 331 U. S. 145, 157-62. The impact of this history was such that every State of the Union now affords constitutional safeguards against governmental search and seizure. Its contemporary vitality is emphasized by New York’s adoption of such a provision as recently as 1938. N. Y. Const, of 1938, Art. 1, § 12. UNITED STATES v. RABINOWITZ. 71 56 Frankfurter, J., dissenting. legality of an arrest. I have yet to hear the answer to Judge Learned Hand’s reasoning below that to make the validity of a search “depend upon the presence of the party in the premises searched at the time of the arrest . . . would make crucial a circumstance that has no rational relevance to the purposes of the privilege. The feelings which lie behind it have their basis in the resentment, inevitable in a free society, against the invasion of a man’s privacy without some judicial sanction. It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the ‘right of privacy.’ . . . The history of the two privileges is altogether different; the Fourth Amendment distinguishes between them; and in statutes they have always been treated as depending upon separate conditions.” 176 F. 2d 732, 735. 3. This brings me to a consideration of the right of search and seizure “incident to arrest.” Undue haste in coming to that issue too readily leads to getting off the track of the Fourth Amendment. The Government argued as though the Constitution said search of premises may be at large whenever an arrest is made in them. The utterly free hand, for all practical purposes, this gives the arresting officers to rummage all over the house is, I think, inevitable unless the basis of any right to search as an incident to arrest is put in proper focus. Photographs can be so taken as to make a midget look like a giant, and vice versa. The same kind of distortion results if a legal doctrine embedded in a larger matrix of principle is taken out of the matrix and elevated to an independent position. In 72 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. plain English, the right to search incident to arrest is merely one of those very narrow exceptions to the “guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case.” Robertson v. Baldwin, 165 U. S. 275, 281. 4. What, then, is the exception to the prohibition by the Fourth Amendment of search without a warrant in case of a legal arrest, whether the arrest is on a warrant or based on the historic right of arrest without a warrant if a crime is committed in the presence of the arrester? The exception may in part be a surviving incident of the historic role of “hue and cry” in early Anglo-Saxon law. See Judge Cardozo in People N. Chiagles, 237 N. Y. 193, 196,142 N. E. 583, 584. Its basic roots, however, lie in necessity. What is the necessity? Why is search of the arrested person permitted? For two reasons: first, in order to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N. H. 482, and, secondly, to avoid destruction of evidence by the arrested person. See Reijsnyder N. Lee, 44 Iowa 101,103; Holker v. Hennessey, 141 Mo. 527, 540,42 S. W. 1090,1093. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. What a farce it makes of the whole Fourth Amendment to say that because for many legal purposes everything in a man’s house is under his control therefore his house—his rooms—may be searched. Of course in this field of law, as in others, opinions sometimes use language not with fastidious precision. Apart from such instances of loose use of language, the doctrine of search incidental to arrest has, until very recently, been strictly confined to the necessities of the situation, i. e., the search UNITED STATES v. RABINOWITZ. 73 56 Frankfurter, J., dissenting. of the person and those immediate physical surroundings which may fairly be deemed to be an extension of his person. 5. Another exception to the constitutional prohibition of unreasonable searches is likewise rooted in necessity. The search without a warrant of moving objects—vehicles and vessels—was sanctioned in Carroll v. United States, 267 U. S. 132, on the ground that “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U. S. at 153. Furthermore, the limits of the exception were carefully defined in terms of necessity, for the Court added: “In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause.” 267 U. S. at 156. Even as to moving vehicles, this Court did not lay down an absolute rule dispensing with a search warrant. It limited dispensation to the demands of necessity, where want of time precluded the obtaining of a warrant. The necessity founded on the time factor which guided the Court in the Carroll case cannot justify the search here made of the respondent’s premises, for there was ample time to obtain a warrant before the arrest and even on the occasion of the arrest. 6. It is in this connection that the body of congressional enactments becomes significant, particularly legislation contemporaneous with the adoption of the Bill of Rights. If explicit legislation was deemed necessary to inspect without warrant even vessels and vehicles, and if 74 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. Congress has been very niggardly in giving authority to search even with a warrant—niggardly both as to the officers who may obtain such warrants and as to strictly defined circumstances under which search is allowed— the attitude disclosed by this impressive legislation bears powerfully on the historic purposes of the Fourth Amendment and the functions that it fulfills in our democracy. It deserves to be recalled that Congress, despite repeated requests by Attorneys General, long refused to make search by warrant generally available as an aid to criminal prosecution. It did not do so until the First World War and even then it did not do so except under conditions most carefully circumscribed.2 7. With only rare deviations, such as today’s decision, this Court has construed the Fourth Amendment “liberally to safeguard the right of privacy.” United States v. Lejkowitz, 285 U. S. 452, 464.3 The guiding line in dealing with the Fourth Amendment was set forth in Gouled v. United States, 255 U. S. 298, 303-04: “It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments. The effect of the decisions cited is: that such rights are declared to be indispensable to the ‘full enjoyment of personal security, 2 See Title XI of the Act of June 15, 1917, 40 Stat. 217, 228, now Rule 41 of the Federal Rules of Criminal Procedure. For a table of congressional legislation, indicating its scope, see the Appendix to the dissenting opinion in Davis v. United States, 328 U. S. 582, 616. 3 See also an analysis of the cases in the Appendix to the dissenting opinion in Harris n. United States, 331U. S. 145,175. UNITED STATES v. RABINOWITZ. 75 56 Frankfurter, J., dissenting. personal liberty and private property’; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen,— the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.” 8. The opinion of the Court insists, however, that its major premise—that an arrest creates a right to search the place of arrest—finds support in decisions beginning with Weeks v. United, States, 232 U. S. 383. These decisions do not justify today’s decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision. This progressive distortion is due to an uncritical confusion of (1) the right to search the person arrested and articles in his immediate physical control and (2) the right to seize visible instruments or fruits of crime at the scene of the arrest with (3) an alleged right to search the place of arrest. It is necessary in this connection to distinguish clearly between prohibited searches and improper seizures. It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure when found by legal means. E. g., Amos n. United States, 255 U. S. 313; Byars v. United States, 273 U. S. 28; Taylor v. United States, 286 U. S. 1. Thus, the seizure of items properly subject to seizure because in open view at the time of arrest does not carry with it the right to search for such items. 76 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. The doctrine of the right to search the place of arrest announced today rests on the precarious foundation of this passage in the Weeks case: “What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, § 211; Wharton, Crim. Plead, and Practice, 8th ed., § 60; Dillon v. O’Brien and Davis, 16 Cox C. C. 245. . . . Nor is it the case of burglar’s tools or other proofs of guilt found upon his arrest within the control of the accused.” 232 U. S. 383, 392. The statement does not even refer to a right to search the place of arrest, and the authorities cited merely support the assertion of a right to search the person arrested and to seize visible instruments or fruits of crime.4 The authority to search which flows from the right to arrest was next discussed by this Court in Carroll v. United States, 267 U. S. 132, 158: “When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.” 4 A fair sample is § 60 of Wharton, Crim. Plead, and Practice, 8th ed.: “Right to Take Money from the Person of the Defendant,” which discusses only the right to search the person arrested. Again, in Dillon v. O’Brien and Davis, 16 Cox C. C. 245, the issue was the right of arresting officers to seize apparent evidences of crime, not their right to rifle files in an effort to turn up the evidence. UNITED STATES v. RABINOWITZ. 77 56 Frankfurter, J., dissenting. While broader than the Weeks statement, this is still far from claiming the right to search a place merely because of an arrest there. What was said in the earlier case about articles in the control of the arrested person not being in issue is now stated positively as a right to seize whatever is found in the control of the person arrested. This Carroll statement is based on what was said in Weeks, and on two State cases which did not enunciate a right to search the place of arrest.5 These limited statements in the Weeks and Carroll opinions were uncritically expanded in Agnello v. United States, 269 U. S. 20, 30: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U. S. 132, 158; Weeks v. United States, 232 U. S. 383, 392.” If such a right was “not to be doubted” it certainly cannot be supported by the cases cited. Carroll and Weeks may 5 Getchell v. Page, 103 Me. 387, 69 A. 624, was an action for trespass for the seizure of accoutrements of liquor-making under a warrant which authorized the search and seizure of intoxicating liquor. The decision that the officer was not liable for the seizure under those circumstances does not support an independent right to search the place of arrest. In Kneeland v. Connally, 70 Ga. 424, 425, the other case cited, the court actually held that the trial court had no jurisdiction of the case. It went on to say that “just as a warrant to arrest a man charged with murder would carry with it authority to seize the bloody knife or smoking pistol which killed,” the instruments of the crime of gaming could be seized in arresting a proprietor of a gambling house. But once again no authority to search for these instruments was suggested. 78 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. have established a right to seize visible evidences of crime and to search the person arrested and even objects he physically controls, but neither case so much as hints that there is a right to search the entire place of arrest for “things connected with the crime.” In Marron n. United States, 275 U. S. 192, these carelessly phrased dicta were for the first time reflected in the result. The statement in the opinion that officers “had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise,” 275 U. S. at 199, was drastically qualified by Go-Bart Co. n. United States, 282 U. S. 344, and United States v. Lefkowitz, 285 U. S. 452. The teaching of those cases is that the warrant of arrest carries with it authority to seize all that is on the person, or in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person. The Lefkowitz decision emphasized that the things seized in Marron “being in plain view were picked up by the officers as an incident of the arrest. No search for them was made.” 285 U. S. at 465. Thus explained, Marron stands merely for the historically justified right to seize visible instruments of crime at the scene of the arrest. In reliance on the prior dicta and on the Marron decision, it was asserted in Harris n. United States, 331 U. S. 145, 150, that “Search and seizure incident to lawful arrest is a practice of ancient origin.” Literally, this is true: the right to search the person arrested and to seize visible instruments of crime has a good legal title. But judicial history cannot be avouched if this statement is meant to cover the right to search the place of arrest. Such a claim can only be made by sliding from a search of the person to a search for things in his “possession” or “in his immediate control,” without regard to the treacherous ambiguity of these terms, and then using UNITED STATES v. RABINOWITZ. 79 56 Frankfurter, J., dissenting. these phrases, taken out of their original context, so as to include the entire premises. The short of it is that the right to search the place of arrest is an innovation based on confusion, without historic foundation, and made in the teeth of a historic protection against it. 9. If the exception of search without a warrant incidental to a legal arrest is extended beyond the person and his physical extension, search throughout the house necessarily follows. I am aware that most differences in the law depend on differences of degree. But differences though of degree must not be capricious; the differences must permit rational classification. If upon arrest you may search beyond the immediate person and the very restricted area that may fairly be deemed part of the person, what rational line can be drawn short of searching as many rooms as arresting officers may deem appropriate for finding “the fruits of the crime”? Is search to be restricted to the room in which the person is arrested but not to another open room into which it leads? Or, take a house or an apartment consisting largely of one big room serving as dining room, living room and bedroom. May search be made in a small room but not in such a large room? If you may search the bedroom part of a large room, why not a bedroom separated from the dining room by a partition? These are not silly hard cases. They put the principle to a test. The right to search an arrested person and to take the stuff on top of the desk at which he sits has a justification of necessity which does not eat away the great principle of the Fourth Amendment. But to assume that this exception of a search incidental to arrest permits a freehanded search without warrant is to subvert the purpose of the Fourth Amendment by making the exception displace the principle. History and the policy which it represents alike admonish against it. 874433 0—50---10 80 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. 10. To tear “unreasonable” from the context and history and purpose of the Fourth Amendment in applying the narrow exception of search as an incident to an arrest is to disregard the reason to which reference must be made when a question arises under the Fourth Amendment. It is to make the arrest an incident to an unwarranted search instead of a warrantless search an incident to an arrest. The test by which searches and seizures must be judged is whether conduct is consonant with the main aim of the Fourth Amendment. The main aim of the Fourth Amendment is against invasion of the right of privacy as to one’s effects and papers without regard to the result of such invasion. The purpose of the Fourth Amendment was to assure that the existence of probable cause as the legal basis for making a search was to be determined by a judicial officer before arrest and not after, subject only to what is necessarily to be excepted from such requirement. The exceptions cannot be enthroned into the rule. The justification for intrusion into a man’s privacy was to be determined by a magistrate uninfluenced by what may turn out to be a successful search for papers, the desire to search for which might be the very reason for the Fourth Amendment’s prohibition. The framers did not regard judicial authorization as a formal requirement for a piece of paper. They deemed a man’s belongings part of his personality and his life. In dealing with the question, this Court in United States v. Lejkowitz, 285 U. S. 452, 464, approvingly cited what was said by Judge Learned Hand in United States v. Kirschenblatt, 16 F. 2d 202, 203: “Whatever the casuistry of border cases, it is broadly a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him, once you have gained lawful entry, either UNITED STATES v. RABINOWITZ. 81 56 Frankfurter, J., dissenting. by means of a search warrant or by his consent. The second is a practice which English-speaking peoples have thought intolerable for over a century and a half. It was against general warrants of search, whose origin was, or was thought to be, derived from Star Chamber, and which had been a powerful weapon for suppressing political agitation, that the decisions were directed, of which Entick v. Carrington, 19 How. St. Trials, 1029, is most often cited. These cases were decided just after the colonists had been hotly aroused by the attempt to enforce customs duties by writs of assistance, and when within 30 years they framed the Fourth Amendment it was general warrants that they especially had in mind. Boyd v. U. S., 116 U. S. 616 .... “After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one’s papers are safe only so long as one is not at home. Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.” 82 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. 11. By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to them. Compare the statement in Weeks v. United States, 232 U. S. 383, 390, that searches and seizures had been made under general warrants in England “in support of charges, real or imaginary.” We have had grim reminders in our day of their experience. Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too well-known in this country. See Lanzetta n. New Jersey, 306 U. S. 451. The progress is too easy from police action unscrutinized by judicial authorization to the police state. The founders wrote into the Constitution their conviction that law enforcement does not require the easy but dangerous way of letting the police determine when search is called for without prior authorization by a magistrate. They have been vindicated in that conviction. It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed. The highly experienced Commission on Law Observance and Enforcement appointed by President Hoover spoke of “the high standards of conduct exacted by Englishmen of the police.” Vol. IV Reports of the National Commission on Law Observance and Enforcement (“Lawlessness in Law Enforcement”) p. 259. It is suggested that we cannot afford the luxury of such UNITED STATES v. RABINOWITZ. 83 56 Frankfurter, J., dissenting. theoretically desirable subordination of the police to law because greater obedience to law is part of English life generally. I do not think that acceptance of lower standards than those prevailing in England should be written by us into law. That only serves to encourage low standards, not to elevate them. It is unfair to our people to suggest that they cannot attain as high standards as do the British in guarding against police excesses without impairing effective means for combatting crime. Experience proves that it is a counsel of despair to assume that the police cannot be kept within the bounds of the principles which the Fourth and Fifth Amendments embody except at the cost of impotence in preventing crime and dealing sternly with its commission. 12. To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an “unreasonable search” is forbidden—that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response. There must be a warrant to permit search, barring only inherent limitations upon that requirement when there is a good excuse for not getting a search warrant, i. e., the justifications that dispense with search warrants when searching the person in his extension, which is his body and that which his body can immediately control, and moving vehicles. It is for this Court to lay down criteria that the district judges can apply. It is no criterion of reason to say that the district court must find it reasonable. 13. Even if the test of reasonableness is to be taken out of the context of the history and purpose of the 84 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. Fourth Amendment, the test should not be limited to examination of arresting officers’ conduct in making the arrest. Their conduct prior to arrest is no less relevant. In any event, therefore, the presence or absence of an ample opportunity for getting a search warrant becomes very important. It is not a rule of thumb. It is a rule of the Fourth Amendment and of the reasons for its adoption. It is not a rule invented in Trupiano v. United States, 334 U. S. 699. It is not a rule of those who came on this Court in recent years. The decision in Taylor n. United States, 286 U. S. 1, turned on it. It was not a sentimental Court that stated in Taylor: “Although over a considerable period numerous complaints concerning the use of these premises had been received, the agents had made no effort to obtain a warrant for making a search. They had abundant opportunity so to do and to proceed in an orderly way even after the odor had emphasized their suspicions; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility.” 286 U. S. at 6. That the arrest in that case was made after the search was begun does not affect its importance. Opportunity to obtain a search warrant is either relevant or irrelevant in determining the application of the Fourth Amendment. As the Court conceives the test of unreasonableness, different factors may be given varying weight. But opportunity to obtain a warrant cannot be relevant in one situation and totally irrelevant in another. That is the significance of the Taylor case. In the case before us there is not the slightest suggestion that the arresting officers had not the time to UNITED STATES v. RABINOWITZ. 85 56 Frankfurter, J.j dissenting. secure a search warrant. The arrest and search were made on February 16, 1943. On February 1, there was strong evidence that respondent had in his possession large numbers of stamps bearing forged overprints, in violation of 18 U. S. C. § 265. On February 6, a postal employee purchased from respondent four stamps bearing overprints and, on February 9, reports were received showing the overprints to be forgeries. Thus, the Government had at least seven, and more accurately fifteen, days in which to procure a search warrant. Nor was this a case in which the need for a search became apparent at the time of arrest. The arresting officers were accompanied by two stamp experts, whose sole function was to examine the fruits of the search which they knew would be made. This is hardly a natural description of a “search incidental to an arrest.” It is most relevant that the officers had “no excuse for not getting a search warrant,” 176 F. 2d 732, 735, for that is precisely what the Fourth Amendment was directed against—that some magistrate and not the police officer should determine, if such determination is not precluded by necessity, who shall be rummaging around in my room, whether it be a small room or a very large room, whether it be one room, or two rooms, or three rooms, or four rooms. 14. It is not as though we are asked to extend a mischievous doctrine that has been shown to hamper law enforcers. We are asked to overrule decisions based on a long course of prior unanimous decisions, drawn from history and legislative experience. In overruling Tru-piano we overrule the underlying principle of a whole series of recent cases: United States v. Di Re, 332 U. S. 581; Johnson n. United States, 333 U. S. 10; McDonald v. United States, 335 U. S. 451, based on the earlier cases. For these cases ought not to be allowed to remain as 86 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. derelicts on the stream of the law, if we overrule Trupi-ano. These are not outmoded decisions eroded by time. Even under normal circumstances, the Court ought not to overrule such a series of decisions where no mischief flowing from them has been made manifest. Respect for continuity in law, where reasons for change are wanting, alone requires adherence to Trupiano and the other decisions. Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance—for instance, of unexpected changes in the Court’s composition and the contingencies in the choice of successors. UNITED STATES v. BURNISON. 87 Syllabus. UNITED STATES v. BURNISON et al. NO. 171. APPEAL FROM THE SUPREME COURT OF CALIFORNIA.* Argued December 13, 1949.—Decided March 13, 1950. Section 27 of the Probate Code of California, as construed by the highest court of the State, prevents a California domiciliary from making an unrestricted testamentary gift to the United States of property, real or personal, located within the State, although such a gift may be made to the State, its counties or municipal corporations. Held: 1. The construction of the section by the highest court of the State is binding here, but the question of its validity under the Federal Constitution is for this Court to determine. P. 89. 2. The section, as construed, does not violate the Supremacy Clause of the Federal Constitution. Pp. 90-93. (a) The power of the United States to receive testamentary gifts does not preclude a State from denying a testator the right to will his property to the United States. United States v. Fox, 94 U. S. 315. Pp. 90-93. (b) The Tenth Amendment reserves to the States the power to determine the manner of testamentary transfer of a domiciliary’s property and the power to determine who may be made beneficiaries. Pp. 91-93. (c) In the determination of the question here involved, no distinction is to be drawn between realty and personalty. P. 93. 3. The section, as construed, does not discriminate against the United States in violation of the Federal Constitution. Pp. 93-95. (a) Decisions upholding the right of persons to sue in state courts on federally created rights are not in point here. Pp. 93-94. (b) Assuming that the United States is protected by the Equal Protection Clause of the Fourteenth Amendment, the section is nevertheless justified by the State’s close relationship to its residents and their property. P. 95. 33 Cal. 2d 638, 647, 204 P. 2d 330, 335, affirmed. *Together with No. 188, United States v. Gayetty et al., also on appeal from the same court. 88 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. The Supreme Court of California held void under state law certain testamentary gifts to the United States and directed that the property be distributed to the statutory heirs of each decedent. 33 Cal. 2d 638, 647, 204 P. 2d 330, 335. On appeal to this Court, affirmed, p. 95. Melvin Richter argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Joseph W. Bishop, Jr. and Paul A. Sweeney. J. Harold Decker argued the cause for appellees. With him on the brief for appellees in No. 188 was J. P. Patterson. Casper A. Ornbaun and Everett H. Roan filed a brief for Burnison; and Frank J. Fontes was of counsel for Katz, appellees in No. 171. Mr. Justice Reed delivered the opinion of the Court. These appeals involve the power of the California Supreme Court to declare invalid testamentary dispositions to the United States by two California residents. The bequest to the United States in No. 171 included only personal property; in No. 188 the United States was designated to receive both real property and United States bonds. The situs of all the property is assumed to be California. After appropriate procedural steps, the California Supreme Court held void these testamentary gifts and directed that they be distributed to the statutory heirs of each decedent.1 The two cases were consolidated for argument below and will be considered here in one opinion. 1 Estate of Burnison, 33 Cal. 2d 638, 204 P. 2d 330; Estate of Sanborn, 33 Cal. 2d 647, 204 P. 2d 335. UNITED STATES v. BURNISON. 89 87 Opinion of the Court. The California court construed § 27 of the California Probate Code2 to prevent a California domiciliary from making an unrestricted testamentary gift to the United States, although such a gift may be made to California, its counties and municipal corporations.3 The court arrived at this interpretation despite the contention of the United States that it would raise serious constitutional questions. The construction of the California Code by the California Supreme Court is, of course, binding on us. It leaves us, however, with the federal constitutional questions that the United States urged the California court to avoid. 2 Probate Code of California, § 27: “Who may take by will. A testamentary disposition may be made to the state, to counties, to municipal corporations, to natural persons capable by law of taking the property, to unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof, and to corporations formed for religious, scientific, literary, or solely educational or hospital or sanatorium purposes, or primarily for the public preservation of forests and natural scenery, or to maintain public libraries, museums or art galleries, or for similar public purposes. No other corporation can take under a will, unless expressly authorized by statute.” 3 One judge dissented on the authority of Estate of Hendrix, Cal. App. 2d 647, 651-53, 176 P. 2d 398, 400-402. The Hendrix will bequeathed property to the United States Veterans’ Administration for the aid, comfort and assistance of disabled veterans. The California District Court of Appeal, at 651, declared that this was really a bequest to the United States, a corporation, and that its agency, the designated beneficiary, was expressly authorized by California Probate Code § 27 to take property under a will. Thus the bequest was valid. In its opinion in the present case, the Supreme Court held that this language had been unnecessary to the decision and refused to extend it to the gifts now under consideration. It thought that the Hendrix gift was good as one for charitable purposes to a legally constituted institution. The Supreme Court thought a gift to the United States “without qualification as to administration or purpose,” 33 Cal. 2d 646, 204 P. 2d 335, did not come under the classifications of associations or corporations in § 27. 90 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. In these appeals the United States makes two contentions. It urges that the California Code, as interpreted, violates the Supremacy Clause of the Constitution in that it infringes upon the “inherent sovereign power” of the United States to receive testamentary gifts. Alternatively it argues that the Code effects an unconstitutional discrimination against the National Government, since a testamentary gift may be made by a Californian to California, but may not be made to the United States. We have no doubt that the receipt of gifts, testamentary and nontestamentary, is within the ambit of federal powers. Uninterrupted usage from the foundation of the Government has sanctioned it. The first question here, therefore, is whether the power to receive testamentary gifts reaches so far as to forbid a state to deny a testator the right to will his property to the United States. To answer this question affirmatively would require us to overrule United States v. Fox, 94 U. S. 315, decided at the 1876 Term by a unanimous Court and frequently cited with approval. A devise of New York realty to the United States had been held void by the Court of Appeals4 under a New York statute that declared land in New York could be devised only to natural persons and such corporations as New York had expressly authorized to take by devise. Although it was not specifically urged that the Supremacy Clause precludes a state’s interference with the power of the United States to receive testamentary gifts, this point was necessarily involved in the United States’ argument that the New York prohibition violated an essential attribute of national sovereignty—the right to acquire property by all methods known to the law. In affirming, this Court held 4 Matter of Will of Fox, 52 N. Y. 530. UNITED STATES v, BURNISON. 91 87 Opinion of the Court. that the power to control devises of property was in the State, and that therefore a person must “devise his lands in that State within the limitations of the statute or he cannot devise them at all.”5 In asking us to overrule the Fox case, the United States contends that since it has the power to accept testamentary gifts, the Supremacy Clause bars a state from stopping this stream of federal revenue at its source. The argument is that every authorized activity of the United States represents an exercise of its governmental power,6 and that therefore the power to receive property through a will is a governmental power. Since a state cannot interpose “an obstacle to the effective operation of a federal constitutional power,” 7 the Government argues a state cannot interfere with this power to receive. This argument fails to recognize that the state acts upon the power of its domiciliary to give and not on the United States’ power to receive. As a legal concept a transfer of property may be looked upon as a single transaction or it may be separated into a series of steps. The approach chosen may determine legal consequences.8 Where powers flow so distinctly from different sources as do the power to will and the power to receive, we think the validity of each step is to be treated separately. The United States would have no semblance of a claim here were it not for wills probated under California law. The Fox case is only one of a long line of cases which have consistently held that part of the residue of sovereignty retained by the states, a residue insured by the Tenth 5 United States v. Fox, 94 U. S. 315,321. 8 Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 477; Pittman v. Home Owners’ Loan Corp., 308 U. S. 21, 32; Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95, 102. 7 United States v. Belmont, 301 U. S. 324,331-32. 8 Gregory v. Helvering, 293 U. S. 465. 92 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Amendment,9 is the power to determine the manner of testamentary transfer of a domiciliary’s property and the power to determine who may be made beneficiaries.10 It would be anomalous to hold that, because of an amorphous doctrine of national sovereignty, federal constitutional law reached into a California statute and made impotent that state’s restrictions on the designation of beneficiaries. The United States’ argument leads to the conclusion that no obstruction whatever may be put in the way of the United States’ power to receive by will. Thus the United States could claim rights under the will of a testator whom the state had declared incompetent, or under a will that had not been witnessed and attested according to the laws of the state. The United States could take to the complete exclusion of a surviving spouse, notwithstanding the state law. The case of United States n. Perkins, 163 U. S. 625, makes clear that obstacles may be put by states to the passage of property by will to the United States. There the New York Court of Appeals had upheld the application of the New York inheritance tax to personalty bequeathed the United States. Although there is no doubt that where the United States acts in its sovereign capacity, it is free from state taxes on that activity,11 this Court, in affirming, said: “Certainly, if it be true that the right of testamentary disposition is purely statutory, the State has a right 9 United States v. Sprague, 282 U. S. 716, 733; United States v. Darby, 312 U. S. 100, 123. 10 Mager v. Grima, 8 How. 490, 493-94; United States v. Fox, 94 U. S. 315, 321; United States v. Perkins, 163 U. S. 625, 627, 628; Plummer v. Coler, 178 U. S. 115, 137; Maxwell v. Bugbee, 250 U. S. 525, 536; Lyeth v. Hoey, 305 U. S. 188, 193; Irving Trust Co. v. Day, 314 U. S. 556, 562; Demorest v. City Bank Co., 321 U. S. 36, 48. 11 Mayo n. United States, 319 U. S. 441. UNITED STATES v. BURNISON. 93 87 Opinion of the Court. to require a contribution to the public treasury before the bequest shall take effect. . . . “We think that it follows from this that the act in question is not open to the objection that it is an attempt to tax the property of the United States, since the tax is imposed upon the legacy before it reaches the hands of the government. The legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax, and it is only upon this condition that the legislature assents to a bequest of it.”12 We shall not overrule the Fox case, and, of course, we find no distinction between realty and personalty. Within broad limits, the state has power to say what is devisable and to whom it may be given. We may assume with the United States that the state’s power over testamentary gifts is not absolute,13 but we find nothing in the Supremacy Clause which prohibits the state from preventing its domiciliary from willing property to the Federal Government.14 The alternative contention is that § 27 of the Probate Code, as interpreted, discriminates against the United States in violation of the Constitution. The argument is that even if the Supremacy Clause would not be vio- 12 United States v. Perkins, 163 U. S. 625, 628, 630. 13 Clark v. Allen, 331 U. S. 503. Cf. Oyama v. California, 332 U. S. 633. 14 As was pointed out in the Fox case, our determination does not affect the right of the United States to acquire property by purchase or eminent domain in the face of a prohibitory statute of the state. Kohl x. United States, 91 U. S. 367. An authorized declaration of taking or a requisition will put realty or personalty at the disposal of the United States for “just compensation.” It may tax testamentary transfers. Its powers will not suffer. 94 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. lated if the statute provided that no governmental body could be made the beneficiary of a California will, there is a violation of the Supremacy Clause when the United States is treated less advantageously than California. Apparently the capacity of the United States to receive gifts is analogized to the right of a person to sue on a federal cause of action in a state court. Reliance is placed on the cases which have held that federal rights must be enforced by the courts of a state when “ordinary jurisdiction as prescribed by local laws is appropriate to the occasion.”15 Thus, urges appellant, since state courts may not discriminate in the availability of judicial relief between state created rights and federally created rights, no more can a state discriminate between California and the United States as beneficiaries under wills. When a state refuses to hear pleas based on federally created rights while it takes cognizance of those created by state law, there may be invalid discrimination because by the Supremacy Clause federal laws are made laws of the state.16 Therefore to allow a suit based on state law and to refuse one based on federal law could “discriminate” without any reason for the classification.17 But the United States’ capacity to receive, even though called a “right” or a “power,” is not a “law of the state.” As we have shown in the earlier discussion, that capacity cannot be magically transformed into something that must be enforced. The cases upholding the rights of persons to sue are not in point. 15 Second Employers’ Liability Cases, 223 U. S. 1, 56; Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377; McKnett v. St. Louis & S. F. R. Co., 292 U. S. 230. 16 Claflin v. Houseman, 93 U. S. 130, 136; Second Employers’ Liability Cases, supra, 57. 17 McKnett n. St. Louis & S. F. R. Co., supra, 234; cf. Douglas v. New York, N. H. & H. R. Co., supra. UNITED STATES v. BURNISON. 95 87 Opinion of the Court. In a sense, of course, the United States is being treated differently from California, and differences and distinctions in a state’s treatment of persons are frequently claimed to be discriminatory in violation of the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment. But such differences and distinctions, even when applied to persons clearly protected by the Fourteenth Amendment, are not in themselves unconstitutional. It is only when the variations are arbitrary and without reasonable legal basis that an unconstitutional discrimination occurs. A long line of decisions has molded this judicial concept.18 Thus, although we should make the somewhat dubious assumption that the United States must receive equal protection under the Fourteenth Amendment, there is no constitutional violation. California’s decision to permit only itself and its subordinate municipalities to be unlimited governmental beneficiaries under the wills of its domi-ciliaries is based on a permissible distinction. It is justified by reason of the state’s close relationship with its residents and their property.19 A state may by statute properly prefer itself in this way, just as states have always preferred themselves in escheat. Affirmed. Mr. Justice Black dissents. Mr. Justice Douglas took no part in the consideration or decision of this case. 18 E. g., Denver v. New York Trust Co., 229 U. S. 123; Rast v. Van Deman & Lewis Co., 240 U. S. 342; La Tourette v. McMaster, 248 U. S. 465; Maxwell n. Bugbee, 250 U. S. 525; New York Rapid Transit Corp. n. City of New York, 303 U. S. 573; Queenside Hills Realty Co. v. Saxl, 328 U. S. 80. 19 Board of Education n. Illinois, 203 U. S. 553; cf. Connecticut Mutual Life Ins. Co. v. Moore, 333 U. S. 541, 551. 874433 O—50----11 96 OCTOBER TERM, 1949. Syllabus. 339 U. S. AFFOLDER v. NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 200. Argued November 18, 1949.—Decided March 13, 1950. In this action against a railroad under the Safety Appliance Act and the Federal Employers’ Liability Act, based on an alleged violation of the automatic-coupler requirement of the Safety Appliance Act, it appeared from the evidence that the plaintiff, a switchman, lost a leg in his attempt to stop a string of moving cars which had separated from others after an earlier failure of two of them to couple on impact. The verdict of the jury and the judgment of the trial court were for the plaintiff. Held: 1. The issue of proximate cause was properly determined in favor of the plaintiff. Carter v. Atlanta & St. A. B. R. Co., 338 U. S. 430. P. 98. 2. The duty of the carrier under the automatic-coupler requirement of the Safety Appliance Act is unrelated to negligence, but is an absolute one requiring proper performance of the couplers on the occasion in question. O’Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384. P. 98. 3. The charge of the trial court in this case sufficiently informed the jury as to the relevant legal rules. It did not deprive the railroad of a defense based on the possibility that the separation of the cars was due to the plaintiff’s failure to open the coupler. Pp. 98-100. 4. In the circumstances of this case, the amount of damages ($80,000) awarded by the trial court’s judgment was not excessive. P. 101. 174 F. 2d 486, reversed. In an action under the Safety Appliance Act and the Federal Employers’ Liability Act, the District Court entered judgment for the plaintiff. The Court of Appeals reversed. 174 F. 2d 486. This Court granted certiorari. 338 U. S. 813. Reversed, p. 101. AFFOLDER v. N. Y., C. & ST. L. R. CO. 97 96 Opinion of the Court. William H. Allen argued the cause for petitioner. With him on the brief was Mark D. Eagleton. Lon Hocker argued the cause and filed a brief for respondent. Mr. Justice Clark delivered the opinion of the Court. We have for review a judgment of the Court of Appeals for the Eighth Circuit, reversing petitioner’s recovery of an $80,000 judgment against the respondent railroad based on an alleged violation of the Federal Safety Appliance Act1 and the Federal Employers’ Liability Act.2 Petitioner was a member of a crew engaged in classifying, or sorting, a number of railroad cars in the respondent’s yards. Twenty-four cars had been coupled together on one track. The twenty-fifth, a Rock Island car, was kicked eastward down the track to couple with the others. It did so, its east end joining the other cars. A Pennsylvania car was the next car kicked eastward down the track, but it and the Rock Island car failed to couple together. After three or four other cars had been added, the Rock Island car and the twenty-four others to which it was attached began rolling down the track. Petitioner ran after the moving train of cars in an attempt to board and stop them, as was his duty. His leg was lost as he fell under a car in this attempt. The trial was to a jury, petitioner contending that the failure of the Pennsylvania car to join the Rock Island car on impact was in itself a violation of the Safety Appliance Act, resulting in the separation and 1 “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” 27 Stat. 531, 45 U. S. C. § 2. 2 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60. 98 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. his injury. Respondent took the position that the criterion of the Act is, “were they [the cars] equipped with efficient couplers?” and not “did they [the couplers] in fact fail to couple?”; and that if there was a violation of the Act, it was not the proximate cause of the injury. The jury returned a verdict for $95,000 which, upon remittitur, was reduced to $80,000. A judgment in this amount was entered. 79 F. Supp. 365 (1948). On appeal the judgment was reversed. 174 F. 2d 486 (1949). We granted certiorari. 338 U. S. 813 (1949). The Court of Appeals determined the issue of proximate cause favorably to petitioner, and respondent admits that the “problem of causal connection vel non in the Affolder case is legally identical with the same problem in the Carter case. [Carter v. Atlanta & Saint Andrews Bay R. Co., 338 U. S. 430 (1949).]” We agree and consequently hold the issue correctly determined below. Nor do we think that any question regarding the normal efficiency of the couplers is involved in an action under the Safety Appliance Acts. As we said in O'Donnell v. Elgin, Joliet & Eastern R. Co., 338 U. S. 384 (1949), and the Carter case, supra, the duty under the Acts is not based on the negligence of the carrier but is an absolute one requiring performance “on the occasion in question.” The Court of Appeals based its disposition of the case on the reasoning that the charge3 given the jury contained “no explanation of the legal effect” of the direct proof of the separation of the cars “and the permissible use which the jury could make of it . . . .” We think the Court of Appeals erroneously concluded that the jury could find for the plaintiff only if it inferred “bad condition of the couplers and consequent violation of defendant’s statutory duty . . . This was the same error 3 The trial court’s charge is set out at length in the opinion of the Court of Appeals, 174 F. 2d 486,488-491. AFFOLDER v. N. Y., C. & ST. L. R. CO. 99 96 Opinion of the Court. the Court of Appeals for the Seventh Circuit made in O’Donnell, supra, in an opinion relied upon by respondent in the present cause. In subsequently reversing the judgment of the Court of Appeals, we held that the plaintiff did not have to show a “bad” condition of the coupler; she was entitled to a peremptory instruction that to equip a car with a coupler which failed to perform properly “in the switching operation was a violation of the Act, which rendered defendant liable for injuries proximately resulting therefrom, and that neither evidence of negligence nor of diligence and care was to be considered on the question of this liability.” Further, we said, “a failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong . . . .” Of course this assumes that the coupler was placed in a position to operate on impact. Thus, if “the failure of these two cars to couple on impact was because the coupler on the Pennsylvania car had not been properly opened,” the railroad had a good defense. The Court of Appeals also found fault with the charge on the ground that it deprived defendant of this defense. We cannot agree. The trial court directed the jury at least three times that it was for them to determine the reason why the cars separated and specifically called their attention to the testimony of the head switchman, thus emphasizing the possibility that his failure, if any, to open the coupler was the cause of the separation. Likewise, the argument of counsel, both for plaintiff and defendant, clearly reveals that the sole question with regard to this issue was whether, after the couplers were placed in open or proper position, they failed to couple automatically on impact.4 The 4 Defendant had introduced in evidence a small model of the coupler involved and an expert had demonstrated its workings to the jury. Counsel for defendant argued to the jury: “He [plaintiff’s counsel] says it is only necessary to show that there was no coupling. I say he is wrong. I say he must show that there was a failure to 100 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. jury, by its verdict, resolved the question against the respondent. We think the charge, taken as a whole, sufficiently informed the jury of the relevant legal rules. couple because the car was not equipped with couplers coupling automatically on impact. If they did not couple, and if they did not couple because of some other reason . . . then there is no liability in this case.” Defendant’s counsel, in using the model, explained his position: If “this lock was held up so that the knuckle would not lock back, it was closed, tell me, ladies and gentlemen, would this knuckle be opened or closed following the accident? Well, obviously, if the failure of the coupling to make was because the knuckle was not locked closed, it would have to be open following the accident, and Millikan testified that the knuckle [an hour after the accident] was not only closed . . . but the pin was seated, the lock was down .... Now, the answer to that, ladies and gentlemen, is the only possible answer . . . this knuckle was closed when the Pennsylvania car was kicked down on to the Rock Island car.” Plaintiff’s counsel countered: “I don’t say, and never told you, never will, nor will the Court, that if there is merely separation of cars, plaintiff shall recover. I simply told you, if there is a separation of cars after those devices were put in operation and- did not operate, then they failed to perform their duty, regardless of how they operated before or since, and that we do not have to prove—and the Court will tell you that emphatically—any defect.” As to whether the knuckle was opened, there was this argument by plaintiff’s counsel: “Now, let me ask you, did Tielker [the head switchman] open that knuckle or not open it? He says that when he went to open that knuckle, he had difficulty in opening it—he had to push it three times, when it failed to open the first time, showing something was stuck. “This bad-order card—remember this is on the front end of it— and that is car Pennsylvania 727512. . . . they find that bent operating lever rod, or bent operating lever bracket, don’t they? They find that themselves. This is their card, this is their record. “What does this card do then that I have in my hand ? What does it do ? It confirms Tielker, doesn’t it ?” AFFOLDER v. N. Y, C. & ST. L. R. CO. 101 96 Jackson, J., dissenting. We agree with the Court of Appeals that the amount of damages awarded by the District Court’s judgment is not monstrous in the circumstances of this case. Barry v. Edmunds, 116 U. S. 550 (1886). Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed. Reversed. Mr. Justice Reed dissents. He would affirm on the failure of the trial court to make clear to the jury that the carrier was not liable under the Safety Appliance Act if the failure to couple was due to negligence in setting the coupler. See New York, C. & St. L. R. Co. n. Affolder, 174 F. 2d 486, 491, and O’Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384, 394, note 7. Mr. Justice Frankfurter would dismiss this writ as improvidently granted, for reasons set forth by him in Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430, 437. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Jackson, dissenting. The only issue surviving in this case is whether the charge gave the jury a sufficiently clear and correct knowledge of the law to be applied. The Court of Appeals thought the charge as a whole “very probably gave the jury the impression” that it need only find that two cars failed to couple on impact to establish a violation of the Safety Appliance Act. This, as the Court recognizes, is not the law. Before a failure to couple establishes a defective coupler, it must be found that it was properly set so it could couple. If it was not adjusted as such automatic couplers must be, of course the failure is not that of the device. 102 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. The instructions contained language quoted by this Court that would suggest this rule. Other language was used, however, which might well cancel the effect of that quoted. Judge Collet, for the Court of Appeals, said, “We are unable to escape the conclusion that the instruction was not sufficiently clear and definite in that respect.” 174 F. 2d at 491. If the charge seemed so foggy to a Court of Appeals, generally familiar with what the trial judge was driving at, I do not see how this Court can be so confident that it did not mislead a jury of laymen. That confidence is all upon which we reverse the judgment. We cannot know any more about its effect than did the Court of Appeals; and that court happened to have been composed of judges, two of whom have had the experience of presiding over jury trials in District Court, which gives them a better informed mind on the subject than we have. I should be inclined to agree with them that the charge leaves the subject in so much confusion that I do not know just what the instruction did amount to. The most that can happen under the decision now being reversed is to resubmit the case to a jury that probably would be more carefully and clearly instructed. In any event, I do not think this is the kind of issue that meets the qualifications we have ourselves laid down for grant of certiorari. Supreme Court Rule 38 (5). No question of law is, or could be, settled unless we could devise some measure of incoherence so that lower courts would know how much we will think is too much. Short of that, we only substitute our own impression for that of the Court of Appeals as to the probable psychological effect of the instruction in this individual case. All that was written in favor of dismissing a writ as improvidently granted in Carter v. Atlanta & St. A. B. R. Co., 338 U. S. 430, 437, and Wilkerson v. McCarthy, 336 U. S. 53, 65-77, seems especially applicable here. I would dismiss this writ as improvidently granted. HIATT v. BROWN. 103 Syllabus. HIATT, WARDEN, v. BROWN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 359. Argued February 6-7, 1950.—Decided March 13, 1950. Respondent, a soldier in the United States Army in Germany, was convicted of murder by a general court-martial and was sentenced to imprisonment. At the time of the trial, in 1947, the 8th Article of War required the authority appointing a general court-martial to detail as law member thereof an officer of the Judge Advocate General’s Department, except when an officer of that department was “not available for the purpose.” In the order of the commanding general appointing the general court-martial which tried respondent, the only officer named from the Judge Advocate General’s Department was a captain who was designated as one of the assistant trial judge advocates, and he was absent from the trial on verbal orders of the commanding general. An order of the District Court sustaining a writ of habeas corpus and ordering respondent discharged was affirmed by the Court of Appeals. Held: 1. The judgment of the Court of Appeals is reviewable by this Court on certiorari under 28 U. S. C. § 1254. P. 106, n. 1. 2. The record in this case does not disclose any disregard of the 8th Article of War in the appointment of the general court-martial. Pp. 106-110. (a) The fact that an officer of the Judge Advocate General’s Department was detailed to a general court-martial in another capacity, and that nothing otherwise appeared to negative his availability as a law member, does not require the conclusion that he was “available” for appointment as law member, within the meaning of the 8th Article of War. Pp. 107-108. (b) The availability of an officer of the Judge Advocate General’s Department as law member of a general court-martial was intended by Congress to be a matter within the sound discretion of the appointing authority. P. 108. (c) In the 8th Article of War, the phrase “available for the purpose” connotes an exercise of discretion by the appointing authority. Pp. 108-109. (d) In the determination of the meaning of the 8th Article of War, this Court accords great weight to an interpretation of 104 OCTOBER TERM, 1949. Syllabus. 339 U. 8. the Article which has been consistently given and applied by the Army. P. 109. (e) The exercise of the discretion conferred on the appointing authority by the 8th Article may be reviewed by the courts only if a gross abuse of that discretion would have given rise to a defect in the jurisdiction of the court-martial; and whether the 8th Article imposes a requirement going to the jurisdiction need not here be determined, for nothing in the record indicates that the discretion of the appointing authority was improperly exercised. Pp. 109-110. (f) On the record in this case, no abuse of the discretion of the appointing authority is disclosed by the appointment of an officer of the Judge Advocate General’s Department in a capacity other than law member, or by reassignment of that officer to other duty at the time of the trial, or by the standard of competence in legal matters shown by the law member at the trial. P. 110. 3. The proceeding in the Court of Appeals being in habeas corpus, that court erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain respondent’s conviction, the adequacy of the pretrial investigation, and the competence of the law member and defense counsel. Pp. 110-111. (a) In a habeas corpus proceeding to obtain the release of one under sentence of a court-martial, the single inquiry is as to the jurisdiction of the court-martial. P. 111. (b) The general court-martial in this case had jurisdiction of the person accused and of the offense charged, and acted within its lawful powers. P. 111. (c) The correction of any errors which may have been committed by the general court-martial is for the military authorities, which are alone authorized to review its decision. In re Yamashita, 327 U. S. 1, 8-9. P. 111. 175 F. 2d 273, reversed. In a habeas corpus proceeding to secure respondent’s release from imprisonment under a sentence of a general court-martial, the District Court sustained the writ and HIATT v. BROWN. 105 103 Opinion of the Court. ordered respondent discharged. 81 F. Supp. 647. The Court of Appeals affirmed. 175 F. 2d 273. This Court granted certiorari. 338 U. S. 890. Reversed, p. 111. Stanley M. Silverberg argued the cause for petitioner. With him on the brief were Solicitor General Perlman, James M. McInerney, Robert S. Erdahl, Philip R. Monahan and Israel Convisser. Walter G. Cooper argued the cause and filed a brief for respondent. Mr. Justice Clark delivered the opinion of the Court. Respondent, while serving as an enlisted soldier in the United States Army in Germany, was convicted by a general court-martial of committing murder on December 25, 1946, in violation of the 92d Article of War, 41 Stat. 805, 10 U. S. C. § 1564. The sentence imposed was dishonorable discharge, forfeiture of all pay and allowances, and life imprisonment, which was reduced to twenty years upon recommendation of the Judge Advocate General. On petition for a writ of habeas corpus, the District Court for the Northern District of Georgia ordered respondent discharged from the federal penitentiary in Atlanta, 81 F. Supp. 647 (1948), and the Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 175 F. 2d 273 (1949). Both the District Court and the Court of Appeals concluded that the military tribunal which convicted respondent was improperly constituted and lacked jurisdiction of the offense. The Court of Appeals held further that the record was “replete with highly prejudicial errors and irregularities” which deprived respondent of due process of law under the Fifth Amendment and afforded an independent ground for sustaining the writ. We brought the case here, on petition of the warden having custody of respondent, in view of the 106 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. importance of the decision below in the administration of military justice. 338 U. S. 890 (1949). Our jurisdiction to review the judgment of the Court of Appeals is under 28 U. S. C. § 1254 (I).1 Respondent was tried in Germany on January 9 and 14, 1947, before a general court-martial which had been appointed by order of the commanding general of the Continental Base Section, European Theatre, on December 7, 1946. The detail appointed was comprised of a trial judge advocate and two assistant trial judge advocates, defense counsel and two assistant defense counsel, the law member and twelve other officers. The ranking officer of the detail, a colonel of the Field Artillery with twenty-five years of commissioned service, was appointed law member. The only member of the detail appointed from the Judge Advocate General’s Department was a captain who was designated an assistant trial judge advocate.2 He was absent from respondent’s trial on verbal orders of the commanding general. The Court of Appeals determined that under these circumstances the court-martial had been appointed in disregard of the 8th Article of War, 41 Stat. 788, 10 U. S. C. § 1479. The relevant provision of this article 1 Respondent contends that this Court lacks jurisdiction to review a court of appeals’ judgment ordering discharge of a prisoner or affirming such an order, in view of the omission from revised Title 28 of any provision comparable to former § 463c which expressly authorized review of such judgments on certiorari. We think this contention is without merit in view of the broad provision of § 1254 that “Cases in the courts of appeals may be reviewed by the Supreme Court ... (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case . . . .” 2 The Court of Appeals stated in its opinion that two officers of the Judge Advocate General’s Department were appointed to the detail. However, the record indicates that only one of those mentioned below was appointed from that department. HIATT v. BROWN. 107 103 Opinion of the Court. as in force at the time of respondent’s trial is set forth in the margin.3 The article was interpreted by the Court of Appeals as requiring, “certainly in times of peace, that the presence of a duly qualified law member from the Judge Advocate General’s Department be made a jurisdictional prerequisite to the validity of such court-martial proceeding, except in the single instance where such officer is actually, and in fact, ‘not available.’ ” 175 F. 2d at 276. The Court of Appeals held that the availability of a law member from the Judge Advocate General’s Department was conclusively indicated by the order detailing an officer from that department in another capacity without any explanation. Thus the court concluded that the proceeding was void. We are unable to agree with the Court of Appeals that this record discloses any disregard of the 8th Article of War in the appointment of the tribunal which convicted respondent. Under the interpretation placed on the 8th Article by the court below, an officer from the Judge Advocate General’s Department was “available” for appointment as law member if he was appointed on the detail in another capacity and nothing otherwise appeared to negative his availability as law member. The article has been construed differently by the Court of Appeals for the Second Circuit in Henry v. Hodges, 171 F. 2d 401 (1948). In 3 “The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate General’s Department, except that when an officer of that department is not available for the purpose the appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. . . .” 41 Stat. 788, 10 U. S. C. § 1479. The 8th Article was amended substantially in 1948, 62 Stat. 628-629. See note 5, infra. 108 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. that case, in which the interpretative issue was similarly raised on petition for habeas corpus, one officer from the Judge Advocate General’s Department had been appointed trial judge advocate and a second designated counsel for another accused. The court through Judge Learned Hand declared: “There remains the . . . question . . . whether any member of the Judge Advocate General’s Department was ‘available’ at the time. We cannot say that it was not more in the interest of justice to detail Beatty to defend Feltman than to put him on the court; or that it was not better judgment to make Swan a prosecutor than a judge .... The whole question is especially one of discretion; and, if it is ever reviewable, certainly the record at bar is without evidence which would justify a review. The commanding officer who convenes the court must decide what membership will be least to the ‘injury of the service,’ and what officers are ‘available.’ ‘Available’ means more than presently ‘accessible’; it demands a balance between the conflicting demands upon the service, and it must be determined on the spot.” 171 F. 2d at 403. We agree with the latter interpretation that the availability of an officer as law member was intended by Congress to be a matter within the sound discretion of the* appointing authority. Ordinarily the “availability” of military personnel who are subject to assignment by an appointing authority is understood to depend upon a discretionary determination by the superior. Cf. Kahn v. Anderson, 255 U. S. 1 (1921); Swaim n. United States, 165 U. S. 553 (1897); Mullan v. United States, 140 U. S. 240 (1891); Martin N. Mott, 12 Wheat. 19 (1827). Moreover, the phrase adopted in the 8th Article, “available for the purpose,” expresses a clear intent that the concept of availability HIATT v. BROWN. 109 103 Opinion of the Court. should include the exercise of discretion by the appointing authority.4 The 8th Article has also been consistently interpreted and applied by the Army as vesting a discretion in the appointing authority, which when exercised is conclusive in determining not only the accessibility of personnel but also the suitability of the officer detailed as the law member of a general court-martial. CM 231963, Hatteberg, 18 B. R. 349,366-369 (1943); CM ETO 804, Ogletree, 2 B. R. (ETO) 337, 346 (1943); CM 209988, Cromwell, 9 B. R. 169, 196 (1938); Digest of Opinions of The Judge Advocate General (1912-1940) § 365 (9). This established interpretation is entitled to great weight in our determination of the meaning of the article. Cf. United States ex rel. Hirshberg n. Cooke, 336 U. S. 210, 216 (1949). The exercise of the discretion thus conferred on the appointing authority may be reviewed by the courts only if a gross abuse of that discretion would have given rise to a defect in the jurisdiction of the court-martial.5 How- 4 The relevant legislative history of the provision of the 8th Article relating to the law member supports this interpretation. Prior to the adoption of the 8th Article of War in 1920, military law did not provide for the service of a law member on a court-martial. Under the impetus for reform following World War I, the original draft of what became the 8th Article provided that every general court-martial should have a judge advocate whose duties were to be similar to those of the “law member,” as finally provided for. The proposed Article would have provided further that such judge advocate of the court be a member of the Judge Advocate General’s Department or an officer whose qualifications were approved by the Judge Advocate General. Hearings on S. 64, Subcommittee of the Senate Committee on Military Affairs, 66th Cong., 1st Sess., p. 5. The proposed Article was, however, abandoned for the provisions of the 8th Article. See 18 B. R. 349,366-367 (1943). 5 The 8th Article of War, as in force since February 1, 1949, expressly imposes as a jurisdictional requirement that the law member be an officer from the Judge Advocate General’s Department or an officer whose qualification for such detail has been certified by the Judge Advocate General. 62 Stat. 628-629. 110 OCTOBER TERM, 1949. Opinion of the Court. 339U.S. ever, we need not determine at this time whether the provision of the 8th Article relied upon below imposed a requirement going to the jurisdiction of the court-martial, for nothing in the record here involved indicates that the discretion of the appointing authority was improperly exercised. Clearly no abuse is disclosed by the appointment of an officer from the Judge Advocate General’s Department to a capacity other than law member on the detail, or by reassignment of that officer to other duty at the time of trial, or by the standard of competence in legal matters shown by the law member at the trial. The Court of Appeals also concluded that certain errors committed by the military tribunal and reviewing authorities had deprived respondent of due process.6 We think the court was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain respondent’s conviction, the adequacy of the pretrial investigation, and the competence of the law member and defense counsel. Cf. 6 The following instances of error in the military proceedings were cited by the Court of Appeals: “(1) Accused was convicted on the theory that although he was on duty as a sentry at the time of the offense, it was incumbent upon him to retreat from his post of duty. “(2) Accused has been convicted of murder on evidence that does not measure to malice, premeditation, or deliberation. “(3) The record reveals that the law member appointed was grossly incompetent. “(4) There was no pre-trial investigation whatever upon the charge of murder. “(5) The record shows that counsel appointed to defend the accused was incompetent, gave no preparation to the case, and submitted only a token defense. “(6) The appellate reviews by the Army reviewing authorities reveal a total misconception of the applicable law.” 175 F. 2d at 277. HIATT v. BROWN. Ill 103 Burton, J., concurring. Humphrey v. Smith, 336 U. S. 695 (1949). It is well settled that “by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial .... The single inquiry, the test, is jurisdiction.” In re Grimley, 137 U. S. 147, 150 (1890). In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. In re Yamashita, 327 U. S. 1, 8-9 (1946); Swaim v. United States, supra, 165 U. S. at 562. It results that the judgment is Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Burton, concurring. I concur on the ground that the clause in the 8th Article of War, which deals with the availability of an officer of the Judge Advocate General’s Department and is here at issue, is purely directory, and not jurisdictional. The 8th Article, in any event, calls for the appointment as the law member of a general court-martial of an officer meeting certain specifications. He must be either an officer of the Judge Advocate General’s Department or he must be selected by the appointing authority as specially qualified for his duties. The unavailability of an officer of the Judge Advocate General’s Department merely opens the field of eligibility to other branches of the service. It may be assumed that, when the general court-martial involved in this case was appointed, it was a jurisdictional requirement that there be a law member appointed to it. It also may be assumed that it was a jurisdictional 874433 0—50----12 112 OCTOBER TERM, 1949. Burton, J., concurring. 339 U. S. requirement that, if the appointing authority determined that no officer of the Judge Advocate General’s Department was then “available for the purpose,” such authority was restricted to the appointment of “an officer of some other branch of the service selected by [him] . . . as specially qualified to perform the duties of law member/’ (Emphasis supplied.) If the officer who was appointed met neither requirement, it may be assumed that the court-martial would have been without jurisdiction. If, however, as in this case, it is not questioned that the law member met the second requirement, I believe that we should not permit a review here of the discretion used by the appointing authority in determining the preliminary administrative question of whether or not an officer of the Judge Advocate General’s Department was “available for the purpose.” We should not permit it, even if it is alleged that the appointing authority’s discretion in this regard was grossly abused. That detail was a matter within his administrative responsibility and should not be available as a basis for collateral attack upon the jurisdiction of an otherwise qualified and competent general court-martial. REIDER v. THOMPSON. 113 Syllabus. REIDER v. THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 403. Argued February 7, 1950.—Decided March 13, 1950. Respondent railroad received goods at New Orleans, La., for transportation to Boston, Mass., by way of its line and connecting carriers, and issued its original through bill of lading for the shipment. Petitioner sued respondent for damages under the Carmack Amendment, 49 U. S. C. §20(11), alleging that petitioner was the lawful holder of the bill of lading and owner of the goods, that the shipment was in good order and condition when received by respondent at New Orleans, and that it arrived at Boston damaged. Held: 1. The Carmack Amendment was applicable to the shipment, and petitioner stated a claim against respondent upon which relief could be granted. Pp. 115-119. 2. The fact that the shipment originated in a foreign country, and that the goods were transported to New Orleans on an ocean bill of lading, did not render the Carmack Amendment inapplicable, since there was no through bill of lading from the foreign country to Boston and the foreign portion of the journey terminated at New Orleans. Pp. 117-119. 3. With respect to this transaction, respondent was the receiving carrier within the wording and meaning of the Carmack Amendment. P. 119. 176 F. 2d 13, reversed. Petitioner’s suit against respondent for damages under the Carmack Amendment, 49 U. S. C. § 20 (11), was dismissed by the District Court for failure to state a claim upon which relief could be granted. The Court of Appeals affirmed. 176 F. 2d 13. This Court granted certiorari. 338 U. S. 890. Reversed, p. 119. Eberhard P. Deutsch argued the cause for petitioner. With him on the brief was Malcolm W. Monroe. 114 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. M. Truman Woodward, Jr. argued the cause for respondent. With him on the brief were Thomas T. Railey, Fred G. Hudson, Jr., Robert E. Milling, Jr. and Elizabeth Ridnour Haak. Mr. Justice Minton delivered the opinion of the Court. The question in this case is whether a claim for relief under the so-called Carmack Amendment to the Interstate Commerce Act has been stated against respondent carrier. The District Court held that a claim within the Amendment had not been stated. The Court of Appeals for the Fifth Circuit affirmed by a divided court. 176 F. 2d 13. Because the case presents an issue of importance in the application of a federal statute governing liability of common carriers for damage to goods transported by them, we granted certiorari. 338 U. S. 890. The Carmack Amendment in pertinent part provides: “Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading . , . 34 Stat. 593, 595, as amended, 49 U. S. C. §20(11). REIDER v. THOMPSON. 115 113 Opinion of the Court. Respondent railroad received a shipment of wool and skins at New Orleans, Louisiana, for transportation to Boston, Massachusetts, by way of its line and connecting carriers, and issued its original through bill of lading for the shipment. Petitioner, who alleged that he was the lawful holder of the bill of lading and owner of the goods, sued respondent, as receiving carrier under the Carmack Amendment, for damages, asserting that the shipment was in good order and condition when received by respondent at New Orleans and was damaged on arrival in Boston. Respondent filed a motion to dismiss on the ground that the complaint did not state a claim against respondent upon which relief could be granted. The Court of Appeals affirmed the District Court’s order granting this motion and dismissing the suit. It is not disputed that if these were all the facts in the case the courts below were in error. Clearly respondent is a common carrier subject to the Act, and a claim for relief against respondent, as receiving carrier, on account of damage to a shipment of goods moving from a point in one state to a point in another state was pleaded under the Carmack Amendment. See Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481. But from a stipulation filed in the District Court and considered with the pleadings, we learn that the shipment originated in Buenos Aires, Argentina. The goods were transported by steamship from there to New Orleans on an ocean bill of lading, freight for which was payable at Buenos Aires. What is stipulated to be an accurate English translation of the ocean bill of lading reads in part: “The SHIPPER, SHIP, CONSIGNEE, DESTINATION AND GOODS which are specified in this bill of lading are the following: SHIPPER: Emilio Rosler S. R. L. SHIP: RIO PARANA PORT OF SHIPMENT: Buenos Aires 116 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. PORT OF DISCHARGE OF THE SHIP New Or-leans destination of the goods: (if the goods are to be transshipped out of the port of discharge) SHIPPER TO THE ORDER OF: The First Na-tional Bank of Boston Notice of arrival should be addressed to (if consigned to Shipper’s Order) Rudolf Reider 39 South Street Boston Mass. U.S.A.” The domestic bill of lading issued by respondent at New Orleans recited that the goods were received from H. P. Lambert Co. and consigned to the same H. P. Lambert Co. at Boston. The Court of Appeals characterized this railroad bill as a “supplemental bill of lading” issued by the domestic carrier to cover its portion of the transportation and delivery of a “through foreign shipment,” and held that the Carmack Amendment was not intended to apply to such a foreign shipment. The tests laid down in United States v. Erie R. Co., 280 U. S. 98, and Texas & New Orleans R. Co. v. Sabine Tram Co., 221 U. S. Ill, were applied by the Court of Appeals in determining that the transaction was a “through foreign shipment.” And Missouri Pacific R. Co. v. Porter, 273 U. S. 341, was relied on as authority for the proposition that the Carmack Amendment was not intended to apply to such a shipment. Reliance on the cited cases is misplaced. The issue in the Porter case, supra, was totally different from the question here.1 And whether the commerce is properly 1 The Court there briefly alluded to the coverage of the Carmack Amendment. But the sole issue in the Porter case was whether federal regulation of bills of lading had covered the field to the exclusion of state regulation of the same subject matter. The Court s discussion of the Carmack Amendment there does not control our decision in this case. REIDER v. THOMPSON. 117 113 Opinion of the Court. characterized as foreign or domestic is, in our view of the case, not material. The issue is whether this transaction is within the Carmack Amendment. But basically, the problem here is one of liability. The contract giving rise to liability— the bill of lading—is our primary aid in solving that problem. So we turn to the contract to ascertain whether it evidences a transaction within the Carmack Amendment. Does the fact that the shipment in this case originated in a foreign country take it without the Carmack Amendment? We think not. There was no through bill of lading from Buenos Aires to Boston. The record does not show the slightest privity between respondent and the ocean carrier. The contract for ocean transportation terminated at New Orleans. Having terminated, nothing of it remained for the new, separate, and distinct domestic contract of carriage to “supplement.” Even the parties to the ocean bill of lading and the domestic bill of lading were different. If the various parties dealing with this shipment separated the carriage into distinct portions by their contracts, it is not for courts judicially to meld the portions into something they are not. The test is not where the shipment originated, but where the obligation of the carrier as receiving carrier originated. Rice v. Oregon Short Line R. Co., 33 Idaho 565, 198 P. 161; Barrett v. Northern Pacific R. Co., 29 Idaho 139, 157 P. 1016; Baltimore & Ohio R. Co. v. Montgomery & Co., 19 Ga. App. 29, 90 S. E. 740. Thus it is not significant that the shipment in this case originated in a foreign country, since the foreign portion of the journey terminated at the border of the United States. The obligation as receiving carrier originated when respondent issued its original through bill of lading at New Orleans. That contract of carriage was squarely within the provisions of the statute. The case of Alwine v. Pennsylvania R. Co., 141 Pa. Super. 558, 15 A. 2d 507, much relied upon by respondent 118 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. and the Court of Appeals, is not in point. We need not now determine whether that case was correctly decided. For purposes of this case it is sufficient to note that there the Pennsylvania court emphasized that the shipment came into this country on a through bill of lading from Canada. The contract of carriage did not terminate at the border, as in the instant case. Nor does Mexican Light & Power Co. v. Texas Mexican R. Co., 331 U. S. 731, aid respondent. There an export shipment on a through bill of lading from Pennsylvania to the international boundary, destined for a point in Mexico, was damaged in Mexico. The Texas Mexican Co., the last in a series of carriers handling the shipment in this country, issued a second bill of lading at Laredo, Texas, for the carriage on into Mexico. Recovery was sought against the Texas Mexican Co. as initial (receiving) carrier under the Carmack Amendment. This Court held that it was not a receiving carrier because its duties were controlled by the first bill, and the second bill was without consideration and void. As the dissenting judge below said: “That case rules nothing as to a reverse shipment . . . .” And it could hardly be contended that respondent’s domestic bill of lading here was void. As a matter of fact, the shipment in this case could not have moved an inch beyond New Orleans under the ocean bill; and the Carmack Amendment required respondent to issue a through bill of lading for the carriage from New Orleans to Boston. We disavow, as did both the concurring judge and the dissenting judge below, any intimation that our holding might impose liability on a domestic carrier for damage attributable to an ocean carrier. The complaint in this case alleges that the shipment was received by respondent in good order and condition and was damaged when delivered. Unless petitioner can prove the case stated by his complaint, respondent is not liable. REIDER v. THOMPSON. 119 113 Frankfurter, J., dissenting. The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods. To hold otherwise than we do would immunize from the beneficial provisions of the Amendment all shipments originating in a foreign country when reshipped via the very transportation chain with which the Amendment was most concerned. Respondent was the receiving carrier squarely within the wording and meaning of the Carmack Amendment. The judgment of the Court of Appeals is Reversed. Mr. Justice Douglas and Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting. The problem presented by this case is whether a shipment which constitutes an organic transaction in commerce between a non-adjacent foreign country and the continental United States for every other aspect of the Interstate Commerce Act should be treated as such for purposes of § 20 (11) of that Act, familiarly known as the Carmack Amendment. 49 U. S. C. § 20 (11). Since I agree with the answer given by the Court of Appeals I ought not to join in reversing its decision. That court’s position is supported by this Court’s view of the matter in Missouri Pacific R. Co. v. Porter, 273 U. S. 341, 344, 345, read in the light of the criteria for determining what constitutes a shipment in foreign commerce. See United States v. Erie R. Co., 280 U. S. 98. To be sure, the precise question now here was not the issue in the Porter case. But what was there said as to the scope of the Carmack Amendment in relation to such commerce with a non-adjacent foreign country was relevant to the immediate question in the Porter case con- 120 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. sidered in its true aspect. In order to decide the precise question of that case the Court had to consider the regulatory scheme of liability under the Interstate Commerce Act in its entirety. The conclusion of the Porter case—that the Carmack Amendment does not apply to an unbroken transaction of commerce with a non-adjacent foreign country—carried the authority of the two Justices, Butler and Brandeis, who between them had had the most comprehensive experience with the working of the Interstate Commerce Act. As Judge Hutcheson indicated in his concurring opinion below, the answer to our problem is not to be had by taking words of the Carmack Amendment out of the illuminating context of the regulatory scheme of which they are a part. A legal faggot ought not to be broken into verbal sticks. UNITED STATES v. COMMODITIES CORP. 121 Syllabus. UNITED STATES v. COMMODITIES TRADING CORP. ET AL. NO. 156. CERTIORARI TO THE COURT OF CLAIMS.* Argued January 10-11, 1950.—Decided March 27, 1950. In 1944 the War Department requisitioned a quantity of whole black pepper, as to which a ceiling price had been established by the Office of Price Administration under authority of the Emergency Price Control Act. In a suit by the owner to recover just compensation, the Court of Claims fixed as just compensation a price in excess of the ceiling price. Held: On the record in this case, the ceiling price of the pepper at the time it was requisitioned was the proper measure of just compensation. Pp. 122-131. 1. The congressional purpose and the necessities of a wartime economy require that ceiling prices be accepted as the measure of just compensation, so far as that can be done consistently with the objectives of the Fifth Amendment. Pp. 123-125. 2. Neither the Fifth Amendment nor the Emergency Price Control Act’s provision that the Act shall not be construed to compel an owner to sell his property requires that, in determining the amount of just compensation, there be added to the ceiling price a “retention value”—i. e., an allowance for the price the owner could have obtained had he been permitted to hold the commodity until after price restrictions had been removed. Pp. 125-128. 3. The owner failed to sustain the burden of proving special conditions and hardships peculiarly applicable to it; wherefore the ceiling price of the pepper, fair and just to the trade generally, must be accepted as the maximum measure of compensation for the taking. Pp. 128-131. (a) The fact that the owner was an “investor” in pepper rather than a “trader” did not entitle it to “retention value,” a value based on speculation concerning the price it might have obtained for pepper after the war and after price controls were removed. Pp. 128-129. (b) The fact that the particular pepper delivered to the Government cost the owner more than the ceiling price is no basis *Together with No. 163, Commodities Trading Corp, et al. v. United States, also on certiorari to the same court. 122 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. for excepting the owner from application of the ceiling price as the proper measure of just compensation. Pp. 129-130. (c) The Fifth Amendment does not require the Government to compensate an owner of requisitioned goods for potential profits lost because of war and the consequent price controls. P. 130. 113 Ct. Cl. 244, 83 F. Supp. 356, reversed. In a suit to recover just compensation for a quantity of whole black pepper requisitioned in 1944 by the War Department, the Court of Claims awarded an amount in excess of the 0. P. A. ceiling price but less than the amount claimed. 113 Ct. Cl. 244, 83 F. Supp. 356. This Court granted cross-petitions for certiorari. 338 U. S. 857. Reversed and remanded, p. 131. 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 Melvin Richter. Edward L. Blackman argued the cause and filed a brief for Commodities Trading Corp, et al. Mr. Justice Black delivered the opinion of the Court. Commodities Trading Corporation brought this suit in the Court of Claims to recover “just compensation” for about 760,000 pounds of whole black pepper requisitioned by the War Department in 1944 from Commodities’ stock of 17,000,000 pounds. The United States contended that the OPA ceiling price of 6.63 cents per pound was just compensation. Commodities denied this, claiming 22 cents per pound. It argued that Congress did not and could not constitutionally fix the ceiling price as a measure for determining what is just compensation under the Constitution. Commodities also contended that, for reasons peculiar to its own situation, application of the ceiling price in this instance would be particularly unjust. The Court of Claims fixed “just UNITED STATES v. COMMODITIES CORP. 123 121 Opinion of the Court. compensation” at 15 cents per pound. In so doing, that court took into consideration what it terms “retention value,” explained as an allowance for the price Commodities “undoubtedly could have secured for its pepper had it been permitted to hold it until after restrictions had been removed . . . .” The court also considered how much the precise pepper requisitioned cost Commodities, the prices at which that company sold pepper after the government requisition, subsequent OP A ceiling prices, and the average price of pepper for the past 75 years. 113 Ct. Cl. 244, 83 F. Supp. 356. We granted the petitions of both parties for certiorari. 338 U. S. 857. First. The questions presented are controlled by the clause of the Fifth Amendment providing that private property shall not be “taken for public use, without just compensation.” This Court has never attempted to prescribe a rigid rule for determining what is “just compensation” under all circumstances and in all cases. Fair market value has normally been accepted as a just standard. But when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards.1 Since the market value standard was developed in the context of a market largely free from government controls, prices rigidly fixed by law raise questions concerning whether a “market value” so fixed can be a measure of “just compensation.” United States v. Felin & Co., 334 U. S. 624. Whatever the circumstances under which such constitutional questions arise, the dominant consideration always remains the same: What compensation is “just” both to an owner whose property is taken and to the public that must pay the bill? 1 See, e. g., United States v. Miller, 317 U. S. 369; Olson v. United States, 292 U. S. 246. 124 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. The word “just” in the Fifth Amendment evokes ideas of “fairness” and “equity,” and these were the primary standards prescribed for ceiling prices under the Emergency Price Control Act.2 As assurance that prices fixed under its authority by the administrative agency would be “generally fair and equitable,” Congress provided that price regulations could be subjected to judicial review. All legitimate purchases and sales had to be made at or below ceiling prices. And most businessmen were compelled to sell because, for example, their goods were perishable or their businesses depended on continuous sales. Thus ceiling prices of commodities held for sale represented not only market value but in fact the only value that could be realized by most owners. Under these circumstances they cannot properly be ignored in deciding what is just compensation. The extent to which ceiling prices should govern courts in such a decision is another matter. Congress did not expressly provide that prices fixed under the Price Control Act should constitute the measure of just compensation for property taken under the Fifth Amendment.3 And § 4 (d) provides that the Act shall not be construed as requiring any person to sell. But § 1 (a) declared the Act’s purposes “to assure that defense appropriations are not dissipated by excessive prices” and to “prevent hardships ... to the Federal, State, and local governments, which would result from abnormal increases in prices . . . .” Congress thus plainly contemplated that these governments should be able to buy goods 2 56 Stat. 23, 50 U. S. C. App. §901. 3 Had Congress prescribed a rule that prices fixed under the Act should constitute the measure of constitutional “just compensation,” courts upon proper challenges would have been faced with responsibility of determining whether that rule satisfied the requirements of the Fifth Amendment. Marbury v. Madison, 1 Cranch 137. Compare Monongahela Navigation Co. v. United States, 148 U. S. 312,327. UNITED STATES v. COMMODITIES CORP. 125 121 Opinion of the Court. fulfilling their wartime needs at the prices fixed for other purchasers. The crucial importance of this in the congressional plan foi; a stabilized war economy to limit inflation and prevent profiteering is shown by the fact that during the war approximately one-half of the nation’s output of goods and services went to federal, state and local governments.4 And should judicial awards of just compensation be uniformly greater in amount than ceiling prices, expectations of pecuniary gains from condemnations might prompt many owners to withhold essential materials until the Government requisitioned them. We think the congressional purpose and the necessities of a wartime economy require that ceiling prices be accepted as the measure of just compensation, so far as that can be done consistently with the objectives of the Fifth Amendment. Second. It is contended that acceptance of ceiling prices as just compensation would be inconsistent with the Fifth Amendment because such prices fail to take into account a factor designated by the Court of Claims as “retention value.” This concept stems largely from the Emergency Price Control Act’s provision that the Act shall not be construed as compelling an owner to sell his property against his will. Translating the provision as conferring on an owner the “right to hold his property until he can get for it whatever anyone is willing to pay,” the Court of Claims held that it gave rise to a “retention value” which must be added to the ceiling price in order to meet the constitutional requirement of “just compensation.”5 4 Eighth Report of the Director of War Mobilization and Reconversion, October 1, 1946, H. R. Doc. No. 45,80th Cong., 1st Sess. p. 7. 5 Pertinent parts of the Court of Claims discussion of “retention value” were: “We have several times held that, in determining just compensation, we must take into account the plaintiff’s right to hold its property until restrictions on its disposition are removed. Seven-Up Bottling 126 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. In enacting that provision Congress merely refused to take from owners their long-existing “right to hold” until they wanted to sell. It did not create a new “right to hold” as against a constitutional Government taking, or engraft added values of any kind on property which happens to be requisitioned at a time when prices are fixed by law. We cannot justifiably stretch this provision into a command that the Government pay owners a “retention value” for property taken. Nor can we construe the Fifth Amendment as supporting the Court of Claims “retention value” rule. In peacetime when prices are not fixed, the normal measure of just compensation has been current market value; retention value has never been treated as a separate and essential factor. True, current market value may sometimes be higher because a buyer anticipates future rises in prices. And exceptional circumstances can be conceived which would justify resort to evidential forecasts of potential future values in order to determine present market value. But the general constitutional rule declared and applied by the Court of Claims did not rest on exceptional circumstances. A persuasive reason against the general rule declared by the Court of Claims is the highly speculative nature of proof to show possible future prices on which “retention value” must depend. In this case, for instance, no one Co. v. United States, 107 C. Cis. 402; Kaiser n. United States, 108 C. Cis. 47; Adler Metal Products Co. n. United States, 108 C. Cis. 102; Pantex Pressing Machine Co. n. United States, 108 C. Cis. 735. “The Government in time of war has the undoubted right to say to the citizen, if you want to sell your property you must not sell it for more than a certain price; but the Government has no right to take the property and pay for it no more than this fixed price, unless that price justly compensates the owner, taking into consideration his right to hold his property until he can get for it whatever anyone is willing to pay.” 113 Ct. Cl. 259-260, 83 F. Supp. 357. UNITED STATES v. COMMODITIES CORP. 127 121 Opinion of the Court. knew how long the war would last nor how long economic conditions due to war might lead Congress to continue price-fixing legislation. Predictions on these subjects were guesses, not informed forecasts. And even if such predictions were reasonably certain, there remained other unknowns. How much more than the ceiling price would a speculative purchaser have paid for property at the time of seizure? To what extent, if at all, would the lifting of war controls raise prices above the controlled ceilings? And as of what date should future value be estimated? The Court of Claims opinion indicates how haphazard such calculations must be: its figure of 15 cents per pound appears to be a rough judicial compromise between the ceiling price and the 22 cents claimed, not a weighted average drawn from the varied assortment of doubtful factors considered by the court. Moreover, that figure seems completely divorced from the conjectured postwar price, a factor crucially significant in the court’s “retention value” concept. An equally forceful objection to the “retention value” rule is the discrimination it would breed. Only a limited group of owners could take advantage of the rule: those who have nonperishable products so essential for war purposes that refusal to sell would result in governmental requisition. And many of these would be financially unable to withhold their goods on such a gamble. Thus owners able to hold essential nonperishable goods until requisition would become a favored class at the expense of other owners not so fortunate. Moreover, even within that favored class the “retention value” rule would create discrimination against owners impelled by a sense of duty to sell their goods to the Government at ceiling prices without waiting for requisition. A premium would be placed on recalcitrance in time of war. A rule so difficult to apply and leading to such discriminatory and unjust results cannot be required by 874433 0—50--13 128 OCTOBER TERM, 1949. Opinion of the Court. 339U.S. the Fifth Amendment’s command for payment of “just compensation.” Third. While there is no constitutional obstacle to treating “generally fair and equitable” ceiling prices as the normal measure of just compensation for commodities held for sale, there must be room for special exceptions to such a general rule. For unfair hardship may be inflicted on a particular dealer by valid ceiling prices which are “generally” fair. Bowles v. Willingham, 321 U. S. 503, 516-518. But the ceiling price of pepper, fair and just to the trade generally, should be accepted as the maximum measure of compensation unless Commodities has sustained the burden of proving special conditions and hardships peculiarly applicable to it.6 Cf. Marion & Rye Valley R. Co. v. United States, 270 U. S. 280, 285. Commodities contends that it proved the existence of such conditions. It points to the statement of the Court of Claims that the “so-called ‘retention value’ is particularly applicable in this case” because Commodities was an “investor” in pepper rather than a “trader.” The company accumulated its large supply at intervals during the 1933-1941 period, expecting to hold it to sell when the price went up. The court found that Commodities could reasonably expect this rise: the nature of production was such that periods of abundance and scarcity were bound to alternate, and during the preceding 75 years the price of pepper had shown marked fluctuations in fairly regular cycles. Most of Commodities’ pepper was bought when prices were low. It is argued that as an “investor” Commodities should not be deprived of the 6 Commodities had petitioned the Price Administrator in 1943 to amend the applicable regulation so as to permit higher prices for pepper by allowances for storage expenses. This petition was denied. Nothing in the record indicates that the Emergency Court of Appeals was ever asked to consider ceiling prices for pepper. UNITED STATES v. COMMODITIES CORP. 129 121 Opinion of the Court. pecuniary benefits which future high prices would have afforded but for the Government’s taking. Under this state of facts the situation of Commodities differed only in degree, if at all, from that of myriad other commodity owners who quite naturally wished to hold their goods for higher prices. Postwar inflationary influences are common and generally expected. Price cycles, seasonal and otherwise, are also well-recognized economic phenomena. Doubtless owners of steel, textiles, foodstuffs, and other goods could produce evidence similar to that offered in regard to pepper to show cyclical fluctuations in their prices. Nor would there be much difficulty in showing that a great many owners had bought, produced, or manufactured their various merchandise with the idea of withholding from markets to await expected higher prices. Many lost anticipated profits due to price control or requisition. Sacrifices of this kind and others far greater are the lot of a people engaged in war. That a war calls for sacrifices is of course no reason why an unfair and disproportionate burden should be borne by Commodities. But the facts here show no such burden on Commodities. Commodities, just like other traders in pepper and other products, bought pepper with the intention of ultimately selling on the market. No more than any other owner is Commodities entitled to “retention value,” a value based on speculation concerning the price it might have obtained for pepper after the war and after price controls were removed. Another contention is that the particular pepper turned over to the Government cost Commodities more than the ceiling price, and that this is a special circumstance sufficient to preclude use of the ceiling price here. The Court of Claims did find that the average cost to Commodities of the precise pepper taken, including labor costs, storage, interest, insurance, taxes and other ex- 130 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. penses, was 12.7 cents per pound. The Government challenges these findings and also claims that Commodities selected its high-cost pepper for delivery under the requisition. Pointing out that pepper is fungible and that the only relevant cost figure is the average cost to Commodities of all its pepper, the Government asserts that this average cost was less than the ceiling price. We do not consider these contentions of the Government because we think that the cost of the pepper delivered provides no sufficient basis for specially excluding Commodities from application of the ceiling price. The general rule has been that the Government pays current market value for property taken, the price which could be obtained in a negotiated sale, whether the property had cost the owner more or less than that price. Vogel-stein & Co. v. United States, 262 U. S. 337, 340. The reasons underlying the rule in cases where no government-controlled prices are involved also support its application where value is measured by a ceiling price. In neither instance should the Government be required to make good any losses caused by the fact that the owner purchased goods at a price higher than market value on the date of taking. Especially is this true where the resulting loophole in wartime regulation would be available only to dealers in essential nonperishable commodities who have enough funds and storage space to withhold goods until the Government is forced to requisition them. We have considered all other contentions of Commodities and find that none of them present reasons sufficient to justify awarding Commodities an amount in excess of ceiling prices. In the final analysis all its arguments rest on the principle that the Government must pay Commodities for potential profits lost because of war and the consequent price controls. We cannot hold that the Fifth Amendment requires the Government to give owners of requisitioned goods such a special benefit. UNITED STATES v. COMMODITIES CORP. 131 121 Frankfurter, J., dissenting in part. The judgment of the Court of Claims is reversed and the cause is remanded with directions to enter an appropriate judgment based on the maximum ceiling price of the pepper at the time it was taken. It is so ordered. Mr. Chief Justice Vinson and Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting in part. In 1933 Commodities Trading Corporation began to accumulate an inventory of black pepper, not as a trader in pepper but as an investor in a nonperishable commodity. It based this investment policy on the fairly regular cyclical fluctuations of pepper prices over a period of about seventy-five years. This regularity was due to the fact that pepper plantings in Sumatra, French IndoChina and India, which supplied almost all of it, fluctuated with the price of pepper in the world market. Neglect of their crops by the native growers in periods of depressed prices lowered supply; thereby prices were raised and this in turn stimulated new plantings. Since it takes the pepper plant about four years to bear, prices would normally maintain their high level for about that period. The operations of Commodities were based on the expectation that it would profitably adjust the sale of its holdings to the cyclical movement. By 1938 Commodities had accumulated 25,000,000 pounds; by December, 1941, it had disposed of about 8,000,000 pounds. The rest it withheld from the market until the requisition here in controversy was made by the War Department, in May, 1944. December, 1941, is a significant date because a ceiling price on pepper was then established. The price at which it was pegged— 6.75 cents per pound, amended shortly thereafter to 6.50 cents plus limited carrying charges—approximated the 132 OCTOBER TERM, 1949. Frankfurter, J., dissenting in part. 339 U. S. market price at the time the free market in pepper came to an end. This free market price was responsive to the then unusually large inventory of pepper in the country, amounting to from 78,000,000 to 100,000,000 pounds, a three-year supply. The Government forbade importation of high-priced pepper from India, and the other sources of supply were cut off by the Japanese invasion. As a result, stocks rapidly declined, the fall being accelerated after the imposition of ceiling prices by a desire on the part of many importers to avoid additional carrying charges. By September, 1943, only about 28,000,000 pounds were in the hands of importers. Of this Commodities held, as we have seen, 17,000,000. From about the middle of 1942 activity had steadily shrunk and by early 1944 pepper was not for sale. In May, 1944, the War Department requisitioned from Commodities about 760,000 pounds of black pepper. Commodities rejected the Government’s offer of compensation at the ceiling price and this suit to recover “just compensation” followed. On the basis of its “special findings of fact” the Court of Claims held that the ceiling price was not the measure of just compensation for the requisitioned pepper. It deemed the right to withhold from sale nonperishable goods until after price control terminated a value of substance to be included in ascertaining just compensation. The inclusion of this “retention value” in the present circumstances was especially appropriate, so the Court of Claims reasoned, because Commodities was not a trader but a long-term investor. After the controls were removed in 1946, pepper sold at 50 to 60 cents a pound and upward and the Court of Claims deemed these free market values relevant in determining the just compensation for the pepper requisitioned in 1944. In giving an award above the ceiling price, that court was further influenced by the fact that the cost of the pepper it attributed to UNITED STATES v. COMMODITIES CORP. 133 121 Frankfurter, J., dissenting in part. Commodities—12.7 cents per pound—exceeded the ceiling. Taking all the factors it deemed relevant into account, 15 cents per pound was found by that court to be just compensation for the pepper taking. I. The “just compensation” required by the Bill of Rights when “private property [is] taken for public use” has a way of attracting far-flung contentions. So here, extreme positions are taken regarding the relevance of ceiling prices to “just compensation.” On the one hand it is urged that ceiling prices are to be treated as though they represent value determined by a free market. On the other hand it is insisted that since it would be unjust for the Government itself to fix the compensation for what it takes, ceiling prices should be ignored. I agree with what I understand to be the Court’s view in rejecting both these absolutes. War conditions drastically change the economic environment in which a free market has its justification. The purpose of government controls is to terminate such a distorted free market. Since ceiling prices are required by law to be “generally fair and equitable”1 and govern voluntary sales of property, they are not irrelevant in assessing just compensation. The value of private property is not immutable; especially is it not immune from the consequences of governmental policies. In the exercise of its constitutional powers, Congress by general enactments may in diverse ways cause even appreciable pecuniary loss without compensation. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. . . . When [the diminution] reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain 1 Emergency Price Control Act §2 (a), 56 Stat. 24, 50 U. S. C. App. §902 (a). 134 OCTOBER TERM, 1949. Frankfurter, J., dissenting in part. 339 U. S. and compensation to sustain the act. So the question depends upon the particular facts.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413. See also Hudson County Water Co. v. McCarter, 209 U. S. 349, 355; Pipe Line Cases, 234 U. S. 548, 561; Jackman v. Rosenbaum Co., 260 U. S. 22, 31. It does not follow that controlled prices automatically meet the requirements for just compensation in the forcible taking of property simply because they replaced free market prices which could no longer be relied on to reflect the normal play of free economic forces. A system of price controls which is “generally fair and equitable” may give rise to individual instances of hardship in the requisitioning of property no matter how conscientiously and competently administered. See Bowles v. Willingham, 321 U. S. 503, 516-18. The hardship may reach such magnitude in an individual instance as to make a taking by the public at a ceiling price unjust compensation. Of course war means burdens, and there is no calculus by which they can be fairly distributed. From any point of view the ultimate sacrifices are uncompensable. But these considerations are not relevant in carrying out the Fifth Amendment. When there is a taking of property for public use, whether in war or in peace, the burden of the taking is the community’s burden. The owner should be requited by that which satisfies prevailing standards of justice. This limitation upon the power of eminent domain has throughout our history been left for judicial application. We would be faced with a new problem had Congress specified that the ceiling prices should be the limit of just compensation. Such a statute would call for the usual respect to be accorded to the judgment of Congress in passing on the validity of legislation when the power of Congress to legislate is limited by broad standards and not by restrictions almost technical in their nature. We are relieved from a considera- UNITED STATES v. COMMODITIES CORP. 135 121 Frankfurter, J., dissenting in part. tion of any such question because Congress chose not to make ceiling price the measure of “just compensation.” It is therefore an inescapable judicial duty to explore the elements relevant to just compensation even for the taking of property which, as to voluntary transactions, is subject to price control. The standard of just compensation is not mechanically to be replaced by ceiling prices. It takes us some distance neither wholly to accept nor wholly to reject price ceilings as just compensation. The complications introduced by the displacement of free market prices by controlled prices serve to intensify the usual wariness against undue generalizations in ascertaining the value of specific property taken for public purposes. Cautious empiricism is the most promising attitude in dealing with problems of this sort. This means hugging as closely as possible the shore of the circumstances of the particular case. On the present record only two issues need to be faced. In arriving at just compensation did the Court of Claims properly take into account (1) a “retention value” and (2) the cost of the pepper to Commodities. II. The Court of Claims appears to have recognized as a component of just compensation the right of a property owner to withhold his property for some future opportunity of enhanced realization, even though he be in the same boat with all other owners for whom the ceiling price is a fair measure. In its bearing upon our immediate problem, recognition of such a “retention value” as part of the contemporaneous value of what was taken would have required the power to “divine prophetically” the war’s end and the lifting of controls by Congress as well as the state of the pepper market thereafter. This is “to exact gifts that mankind does not possess.” International Harvester Co. v. Kentucky, 234 U. S. 216, 223, 224. To allow such wild imagination to enter into the practical determination of what is just 136 OCTOBER TERM, 1949. Frankfurter, J., dissenting in part. 339 U. S. compensation would merely sanction unbridled drafts on the Treasury. It would encourage every property owner to hold his goods off the market and to force the Government to requisition rather than purchase. That, by such retention, profits might be realized in the distant future is not an interest which the Constitution protects. The diffused loss of profit throughout the nation’s economy must be borne as a part of the common lot. Of a different order of loss would be a taking of the pepper at ceiling prices, if the ceiling price was far below the cost of the pepper to Commodities and such cost was incurred in the normal course of long-term holding operations. This might present a situation whereby the owner of the requisitioned property would be asked to bear more than its fair share of the just economic burden of the war. III. The Court of Claims found that the cost to Commodities of the requisitioned pepper was 12.7 cents per pound compared with the ceiling price of 6.5 cents. The Government challenges the cost figures. It points out that Commodities kept its cost records on the basis of specific bags of pepper, each bag being recorded at its invoice cost and the applicable carrying charges. Commodities selected the bags of pepper delivered to the Government. Apparently it chose the bags which had the highest invoice cost and the greatest carrying charges, the pepper bought in 1933-1936. Assuming that costs higher than ceiling prices may affect just compensation, the Court of Claims should have considered whether the high cost of the pepper turned over to the Government was due to Commodities’ accounting system. Since pepper is fungible and does not have age value, for all that appears Commodities’ method of computing costs may have been unfair to the Government. “Just compensation” is not a function of a seller’s theory of accounting. The Court’s opinion, however, holds that whatever the costs they are irrelevant in assessing just compensation. UNITED STATES v. COMMODITIES CORP. 137 121 Frankfurter, J., dissenting in part. Thereby the Court disregards in the concrete the principle which it avows in the abstract—namely, that ceiling prices are not to be deemed as though they were values arrived at in a free market and that individual instances of hardship may properly receive individual consideration. The Court urges that high costs would be irrelevant in peacetime when an uncontrolled market determines value. Compare Vogelstein & Co. v. United States, 262 U. S. 337. But a controlled market is not an uncontrolled market. Only by treating a controlled market as the equivalent of an uncontrolled market can ceiling prices be made the equivalent of market value and thereby the measure of just compensation. Since “just compensation” is not easily reduced to quantitative determination, the price which is arrived at through the haggling of the market is the accepted norm in determining just compensation. The law sensibly recognizes that market price reflects fair dealing by men who are freely engaged in it. But the psychological basis for the norm is gone when the area of fair dealing is eliminated. The replacement of the free jostling of the desires of buyers and sellers by government edict is no doubt due to the realization that under the abnormal circumstances of war a free market in the sense of being uncontrolled is not a fair market. But such price regulation is the imposition of the will of outsiders and not the distillation of freely directed wills guided by selfinterest. The norm of price fixing by government is thus very different from the usual price fixing by free exchange. Governmental price fixing carries its own valid titles for respect by the courts. But it does not carry that title of self-determination, as it were, which is implied by a free market price. Want of a free market value does not require us to embrace automatically the ceiling price in disregard of other relevant circumstances bearing on justice in a particular case. 138 OCTOBER TERM, 1949. Frankfurter, J., dissenting in part. 339 U. S. Costs, unlike “retention value,” do not yield inherently speculative results. Including costs in computing just compensation does not give the condemnee a “war profit” nor make inroads on the system of price controls. Such inclusion is a safeguard against discriminating hardships resulting from a formula which is generally fair but which by its nature cannot be fair to each individual. By the terms of the Price Control Act the only standard which Congress laid down for price fixing was that the ceiling price be “generally fair and equitable.” The Act itself made no provision for individual relief from the general price. The administrative discretion for enforcing the Act vested in the Price Administrator no doubt authorized him to qualify the prices he fixed by procedure for individual relief therefrom. As to many commodities the maximum price schedules did include such provisions. The price regulation regarding the pepper requisitioned from Commodities contained no such provision. There was no way, therefore, by which Commodities could have had relief from any unfairness of the maximum price affecting its pepper by reason of the high cost which, on the basis of legitimate business considerations, it paid. It is significant that Congress provided in § 4 (d) of the Emergency Price Control Act that “Nothing in this Act shall be construed to require any person to sell any commodity . . . .” 56 Stat. 28, 50 U. S. C. App. § 904 (d). This protective provision is peculiarly applicable to sellers who had acquired nonperishable property by way of reasonable investment at costs above the ceiling price. Under § 4 (d) they were not required to take a loss. But today’s decision withdraws that statutory protection from those subjected to the exercise of the Government’s power of condemnation. It may be that, despite § 4 (d), certain sellers with high costs would have had to sell in the private market because of economic factors. There is considerable difference, however, be- UNITED STATES v. COMMODITIES CORP. 139 121 Jackson, J., dissenting. tween hardships resulting from the impersonal workings of a general regulation and the personal operation of the power of eminent domain, under which Government officials have complete discretion to select the individual who shall give up his property at a loss for the public good. We need not decide whether costs exceeding the ceiling price are always relevant to just compensation or the extent to which they may qualify the ceiling price. It is enough to hold that, if Commodities’ costs, fairly measured, were greater than the ceiling price for pepper, it is fair to take them into account. We are not dealing here with a hoarder or with one who bought property at recklessly high costs in the expectation that, in any event, the Government would reimburse him. Commodities did not suddenly shift from “seller” to “holder” upon imposition of controls in 1941; while it reduced its total stocks between 1938 and 1941, the Court of Claims found that it was essentially a “holder” from 1933 on. Nor did Commodities make substantial sales to private persons at the ceiling price, and hold out against the Government. It merely exercised its statutory right to refuse to sell, a decision ethically justified if by selling it would incur an honest loss. IV. The error of the Court of Claims in applying the doctrine of “retention value” requires reversal of its judgment. That court should reexamine Commodities’ costs and if, under a fair accounting theory, those costs prove to be higher than ceiling, they should be considered in the computation of just compensation. Mr. Justice Jackson, dissenting. When Congress enacted the Emergency Price Control Act, it provided that “Nothing in this Act shall be construed to require any person to sell any commodity . . . .” 56 Stat. 28, § 4 (d), 50 U. S. C App. § 904 (d). Of course, Congress did not thereby surrender the Government’s 140 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. right to requisition any goods it might want under the usual eminent domain powers and for “just compensation.” Why then this provision? It seems obvious that the purpose was to avoid just what the Court does today—making ceiling prices for voluntary sales the measure of compensation for compulsory sales. This separation was not made as a favor to profiteers. In United States v. Felin & Co., 334 U. S. 624, 650, writing in dissent for Mr. Justice Douglas and myself, I set forth considerations which weighed heavily upon those proponents of price controls who wanted the controls to operate smoothly and expeditiously and also to avoid constitutional litigation, or at least adverse decisions. I said there: “It is hard to see how just compensation can be the legal equivalent of a controlled price, unless a controlled price is also always required to equal just compensation. It never has been held that in regulating a commodity price the Government is bound to fix one that is adequately compensatory in the constitutional sense, so long as the owner is free to keep his property or to put it on the market as he chooses. If the Government were required to do so, the task of price regulation would be considerably, if not disastrously, complicated and retarded. It seems quite indispensable to the Government itself, for the long-range success of price controls, that fixed prices for voluntary sales be not identified with the just compensation due under the Constitution to one who is compelled to part with his property.” 334 U. S. at 651. The Court today nullifies the congressional policy that no one is compelled to sell under the Act by using the condemnation power to compel the sale and this Act to fix the price. It also makes the constitutional provision for just compensation meaningless, since the Govern- UNITED STATES v. COMMODITIES CORP. 141 121 Jackson, J., dissenting. ment may first fix the price, as if no sales were compelled, and then compel the sales at the prices so fixed. I think the constitutional power to fix prices for voluntary sale in interstate commerce is much less confined than the power to fix prices for taking property. But hereafter, the price fixed may have to be tested by whether it would be just compensation for a compulsory sale. I agree that the court below erred in its theory of “retention value.” It did so by making the same basic error this Court is making: that of combining two separate systems—price fixing and condemnation. It considered that because the Emergency Price Control Act said a claimant was not required to sell under the Act, he might retain his property for some future rise in market. But it is not that Act which makes him sell. It is under the power of eminent domain that the Government expropriates this pepper. And under that power he has no right of delay and hence no retention value. He must part with his property on demand, and the issue is what is just compensation at that time. At the time of this expropriation there was, insofar as market prices were concerned, a controlled market in the United States—controlled by the Government that was doing the expropriating. There was also a world market, with far higher market prices, to which the Government would have had recourse had not these parties earlier imported a large supply. Moreover, while the ceiling price on whole pepper was kept at a low figure, the price on ground pepper to the public showed what seems to be an unaccountably large spread. The problem of combining all relevant considerations that go to a valuation is a difficult one. I concur in the reversal but would return the case for redetermination of the value at the date of requisition without allowance for “retention value.” I should not direct that the ceiling price be used as the sole measure of just compensation. 142 OCTOBER TERM, 1949. Syllabus. 339 U. S. RAILWAY LABOR EXECUTIVES’ ASSOCIATION v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. No. 337. Argued February 14, 1950.—Decided March 27, 1950. 1. The Interstate Commerce Commission, in approving a consolidation of railroad facilities under §5(2) (f) of the Interstate Commerce Act, has the power to require a fair and equitable arrangement to protect the interests of railroad employees beyond four years from the effective date of the order. Pp. 143-155. 2. An order of the Interstate Commerce Commission, effective May 17, 1948, approving a consolidation of railroad facilities incident to the construction of a passenger terminal at New Orleans, required the construction to commence by December 31, 1948 (later extended to December 31, 1949), and to be completed by December 31, 1953 (later extended to December 31, 1954). It contained detailed provisions for the compensatory protection of employees affected by the consolidation; but all such protection was to end by May 17, 1952. Many employees affected by the consolidation would not be displaced until the completion of the project, and therefore would receive no compensatory protection. Held: Neither such discrimination nor such insubstantial “protection” is consistent with the purpose and history of § 5 (2) (f) of the Interstate Commerce Act. Pp. 143-155. 3. While the Commission’s interpretation of § 5 (2) (f) as limiting employee protection to a maximum of four years from the effective date of the order is entitled to weight, its decisions relied upon here were made in cases in which the adverse effects of the approved transactions were to be felt by the employees long before the expiration of such four years, and those decisions are not persuasive in the present case. Pp. 154-155. 84 F. Supp. 178, reversed. In a suit to set aside part of an order of the Interstate Commerce Commission, a three-judge District Court granted defendants’ motions for summary judgment and dismissed the complaint. 84 F. Supp. 178. On direct appeal to this Court, reversed and remanded, p. 155. RAILWAY LABOR ASSN. v. U. S. 143 142 Opinion of the Court. Edward J. Hickey, Jr. argued the cause for appellant. With him on the brief was Clarence M. Mulholland. Daniel W. Knowlton argued the cause and filed a brief for the Interstate Commerce Commission, appellee. W. S. Macgill argued the cause for the intervening railroads, appellees. With him on the brief were Henry B. Curtis, Harry McCall and Henry L. Walker. Solicitor General Perlman, Assistant Attorney General Bergson, Robert L. Stern and Richard E. Guggenheim submitted on brief for the United States, appellee. Mr. Justice Burton delivered the opinion of the Court. We are called upon to decide whether the Interstate Commerce Commission, in approving a consolidation of railroad facilities under §5 (2) (f) of the Interstate Commerce Act,1 has the power to extend the period of protection of the interests of the railroad employees beyond four years from the effective date of the order. For the reasons hereafter stated, we hold that the Commission has that power. In 1947, the City of New Orleans, Louisiana, and several common carriers by railroad, all appellees herein, filed with the Interstate Commerce Commission a joint application for authority to construct, acquire and jointly own or use certain lines of railroad, as well as to abandon certain other lines or operations, as incidents to the construction of a passenger terminal at New Orleans. The Railway Labor Executives’ Association, appellant herein, intervened as a representative of the interests of the employees of the railroads. Division 4 of the Commission entered a report and order, effective May 17, 1948, 1 54 Stat. 906-907, 49 U. S. C. § 5 (2) (f). 874433 0—50--14 144 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. approving and authorizing the transactions. New Orleans Union Passenger Terminal Case, 267 I. C. C. 763, and see Oklahoma R. Co. Trustees Abandonment, 257 I. C. C. 177, 197-201. The order required the construction of the proposed lines to commence by December 31, 1948 (later extended to December 31,1949), and to be completed by December 31, 1953 (later extended to December 31, 1954). It contained detailed provisions for the compensatory protection of employees affected by the consolidation, but all such protection was to end by May 17, 1952. The order disclosed that many employees affected by the consolidation would not be displaced until the completion of the project and that, therefore, they would receive no compensatory protection.2 After unsuccessfully seeking reconsideration and modification of the order by the full Commission, the appellant sued the United States (see 28 U. S. C. § 2322), in the District Court for the District of Columbia, asking that court to set aside that part of the Commission’s order which limited the period of protection to four years. The Commission and the railroads intervened, answers 2 “The total number of employees on the New Orleans lines that probably would be affected . . . has been estimated ... at 1,022, and the number required to operate and maintain the union passenger terminal has been estimated at 680. As provided in the terminal agreement, so far as feasible the terminal manager will recruit the necessary personnel from supervisory and other employees displaced at the 5 separate stations to be abandoned on completion of the union passenger terminal. The estimates indicate a net displacement of about 350 employees, of whom 9 are bridge tenders and about 108 are crossing watchmen now employed on tracks which will be retired or over which train and yard movements will be reduced; but the opinion is expressed that the number eventually displaced will not exceed 300.” New Orleans Union Passenger Terminal Case, 267 I. C. C. 763, 777-778. RAILWAY LABOR ASSN. v. U. S. 145 142 Opinion of the Court. were filed and, no facts being in dispute, all parties sought a summary judgment. The case was heard by a three-judge District Court (see 28 U. S. C. §§ 1336, 2325 and 2284) which granted the defendants’ motions for summary judgment and dismissed the complaint. 84 F. Supp. 178. The case is here on direct appeal. 28 U. S. C. 1253 and 2101 (b). Section 5 (2) (f) of the Interstate Commerce Act provides : “As a condition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by railroad subject to the provisions of this part, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.” 54 Stat. 906-907, 49 U. S C. §5(2) (f). 146 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. The appellant and the United States3 contend that the first sentence of § 5 (2) (f) requires the Commission to condition its approval upon a fair and equitable arrangement to protect the interests of railroad employees affected by this consolidation. They contend also that the second sentence prescribes a minimum of protection but does not restrict the Commission’s power, under the first sentence, to prescribe further protection if such protection is deemed necessary to make the arrangement fair and equitable to the employees. The Commission, on the other hand, argues that the second sentence sets an inflexible standard for the fair and equitable arrangement required by the first sentence. The Commission concludes, therefore, that, in this case, it has power to require only such an arrangement as will prevent the affected employees from being in a worse position with respect to their employment for a maximum period of four years from the effective date of the order approving the project.4 Before the Transportation Act of 1940 brought § 5 (2) (f) into the Interstate Commerce Act, there was no statutory provision specifically requiring the protection 3 Although in the District Court the United States supported the Commission, it has here filed a brief supporting the appellant. 4 “As the record shows definitely that employees will be affected adversely by the applicants’ proposals, it is appropriate in this case that we require a fair and equitable arrangement to protect the interests of employees so affected. We think that the benefit of such an arrangement necessarily must extend to all the railroad employees affected by exercise of the authorizations herein granted. But we also think that the fair and equitable arrangement contemplated by section 5 (2) (f) is measured by the specification therein of a protective period of 4 years from the effective date of our order approving a transaction within the scope of section 5 (2). As was decided in Chicago, M., St. P. & P. R. Co. Trustees Construction, supra [257 I. C. C. 292], we have no authority to prescribe any other period.” New Orleans Union Passenger Terminal Case, 267 I. C. C. 763, 782. RAILWAY LABOR ASSN. v. U. S. 147 142 Opinion of the Court. of employees affected by consolidations of railroad facilities. The precursor of this provision was § 5 (4) (b), as amended by the Emergency Railroad Transportation Act of 1933. That section authorized the Commission to approve consolidations “upon the terms and conditions . . . found to be just and reasonable.”5 There was, however, a widespread awareness in the railroad industry that many of the economies to be gained from consolidations or abandonments could be realized only at the expense of displaced railroad labor. The interests of such employees were recognized in the Washington Job Protective Agreement of 1936.6 This was a collective bargaining contract approved by about 85% of the railroad carriers and 20 of the 21 railroad brotherhoods. It contained a schedule of substantial financial benefits recommended for employees adversely affected by consolidations or so-called “coordinations.”7 8“. . . If after such hearing the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed consolidation, . . . will promote the public interest, it may enter an order approving and authorizing such consolidation, . . . upon the terms and conditions and with the modifications so found to be just and reasonable.” 48 Stat. 217. 6 The agreement is published in the Hearings held by the House Committee on Interstate and Foreign Commerce on H. R. 2531, 76th Cong., 1st Sess. 231-241 (1939). 7 George M. Harrison, President of the Railway Labor Executives’ Association, recommended the enactment of the substance of the proposals of the Washington Agreement into law, so that the Commission might be able to make use of those proposals where appropriate. Those proposals included compensatory relief for employees, dating from the taking effect of a “coordination.” As applied to a particular employee, the Agreement stated that the taking effect of a coordination “means the date in said period when that employee is first adversely affected as a result of said coordination.” Id. at p. 232. It prescribed rates of compensation for employees deprived of their employment, for those continued in service but displaced from their former positions, and for those required to move to new 148 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. Section 5 (4) (b) and the Washington Agreement were both in effect when, in 1939, this Court held that the Commission had power to prescribe terms and conditions comparable to those in the Washington Agreement. United States v. Lowden, 308 U. S. 225. The Commission’s requirement, in that case, of a protective period of five years was sustained. -Thus, at the time of the enactment of §5(2)(f), the Commission already had power to determine and prescribe just and reasonable terms and conditions to protect employees affected by consolidations.8 The legislative history of §5(2) (f) shows that one of its principal purposes Was to provide mandatory protection for the interests of employees affected by railroad consolidations. In 1938, the President appointed a Committee of Six to consider the transportation problem and recommend legislation.9 It was composed equally of representatives of railroad management and railroad labor. places of residence, etc. It related individual protective periods to prior lengths of service. In some instances, it limited relief to five years from the effective date of the coordination. 8 It was estimated that the compensatory relief at issue in United States v. Lowden, supra, would consume, in five years, $290,000 out of the $500,000 of contemplated savings to result to the railroads. Shortly before that decision, Congress approved, in the bill still pending before it, the language which was to become the first sentence of § 5 (2) (f). This Court said of such approval: “We think the only effect of this action was to give legislative emphasis to a policy and a practice already recognized by § 5 (4) (b) by making the practice mandatory instead of discretionary, as it had been under the earlier act.” Id. at p. 239. See also, Interstate Commerce Commission n. Railway Labor Executives Assn., 315 U. S. 373, 379. 9 Letter of December 23, 1938, transmitting a report to the President from a Committee appointed by him September 20, 1938, to consider the transportation problem and recommend legislation. Hearings before the Senate Committee on Interstate Commerce on S. 1310, 2016, 1869 and 2009, 76th Cong., 1st Sess. 3-5 (1939). See also, H. IL Doc. No. 583, 75th Cong., 3d Sess. 1 (1938), as to the earlier Committee of Three appointed for the same purpose. RAILWAY LABOR ASSN. v. U. S. 149 142 Opinion of the Court. They endorsed the Washington Agreement and recommended amending § 5 of the Interstate Commerce Act so as to include the following: “After the details of any proposed consolidation have been determined by the interests involved, they should be embodied in an application for approval, addressed to the Transportation Board. In passing upon such an application, the Board should be governed by the following considerations: “(d) The interests of the employees affected. The Board shall examine into the probable results of the proposed consolidation and require, as a prerequisite to its approval, a fair and equitable arrangement to protect the interests of the said employees.” 10 March 30, 1939, Senators Wheeler and Truman introduced S. 2009, which, in § 49 (3) (c), contained substantially the above language: “The Commission shall require, as a prerequisite to its approval of any proposed transaction under the provisions of this section, a fair and equitable arrangement to protect the interests of the employees affected.”11 10 Hearings before the House Committee on Interstate and Foreign Commerce on H. R. 2531, 76th Cong., 1st Sess. 275 (1939). And see supporting testimony of George M. Harrison at pp. 216-217. The Committee recommended vesting the protective power in a Transportation Board, for which the Interstate Commerce Commission was later substituted. 11 As this provision was derived from the recommendation of the Committee of Six, the testimony of George M. Harrison, a member of that Committee, throws light upon its meaning. He said: “In the report of the Committee of Six we do not undertake to lay down the specific, detailed protection that should be accorded labor by the Commission, but we were much of the opinion that in prescribing the protection the Commission would undoubtedly follow what seems to be generally the practice; and that is represented in an agreement that now exists between substantially all of the rail 150 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. In the meantime, the House of Representatives considered a comparable bill, H. R. 4862, introduced by Representative Lea. Extended hearings were held. On the issue before us, this bill contained the same language as did the Senate bill. It required, as a prerequisite to the Commission’s approval, “a fair and equitable arrangement to protect the interests of the employees affected.”12 When S. 2009 reached the House, the Committee in charge of it struck out everything after the enacting clause, substituted the text of the House bill and recommended its passage. In it, the provision in question took the form of an amendment to § 5 of the Interstate Commerce Act. If this provision, which later became the first sentence of§5(2)(f), now stood alone as it did then, the Commission unquestionably would have power to grant at least as much relief to employees as it had under § 5 (4) (b). The crucial question is whether the second sentence of § 5 (2) (f), which was inserted soon thereafter, amounts not only to an additional provision for the protection of labor, but also to a limitation upon the discretion vested in the Commission by the first sentence. The second sentence of §5(2)(f) has a significant history of its own. On the floor of the House, Representative Harrington suggested the following proviso to follow the first sentence: “Provided, however, That no such transaction shall be approved by the Commission if such transac- roads and all of the employees’ labor unions. It provides a schedule of benefits and protections.” Hearings before the Senate Committee on Interstate Commerce on S. 1310, 2016, 1869 and 2009, 76th Cong., 1st Sess. 34 (1938). 12 H. R. Rep. No. 1217, 76th Cong., 1st Sess. 12 (1939), and see Hearings before the House Committee on Interstate and Foreign Commerce on H. R. 2531, 76th Cong., 1st Sess. 184, 193-194, 214, 260 (1939). RAILWAY LABOR ASSN. v. U. S. 151 142 Opinion of the Court. tion will result in unemployment or displacement of employees of the carrier or carriers, or in the impairment of existing employment rights of said employees.”13 The Harrington Amendment thus introduced a new problem. Until it appeared, there had been substantial agreement on the need for consolidations, together with a recognition that employees could and should be fairly and equitably protected. This amendment, however, threatened to prevent all consolidations to which it related. With the Harrington Amendment in it the bill went to conference.14 It came out with all provisions relating to consolidations under § 5 eliminated. The House, however, recommitted the bill to conference with instructions 13 84 Cong. Rec. Pt. 9,9882 (1939). This proposal was not without precedent. In the Emergency Railroad Transportation Act of 1933, 48 Stat. 211, there were many temporary provisions which originally were to expire in 1934 and finally did expire in 1936. Among these was §7 (b). It provided that no employee was to be deprived of employment or be in a worse position with respect to his job by reason of any action taken pursuant to the authority conferred by the Act. That provision, on a temporary and independent basis, thus coexisted with the permanent amendments which were then made to § 5 of the Interstate Commerce Act, including §5(4) (b). 14 While the bill was in conference, the Legislative Committee of the Interstate Commerce Commission sent a communication to Congress condemning the principle of the amendment and upholding the sufficiency of the first sentence of § 5 (2) (f): “As for the [Harrington] proviso, the object of unifications is to save expense, usually by the saving of labor. Employees who may be displaced should, in the case of railroad unifications, be protected by some such plan as is embodied in the so-called ‘Washington agreement’ of 1936 between the railroad managements and labor organizations. The proviso, by prohibiting any displacement of employees, goes much too far, and in the long run will do more harm than good to the employees.” Interstate Commerce Commission Report on S. 2009, Omnibus Transportation Legislation, p. 67 (76th Cong., 3d Sess., House Committee Print), transmitted January 29, 1940. 152 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. to insert a modified form of the first sentence of § 5 (2) (f), together with a modified form of the Harrington Amendment. The modification of the first sentence merely extended the original language as to fair and equitable arrangements so as to include abandonments as well as consolidations.15 The modification of the Harrington Amendment is not now material. The second conference reported §5(2)(f)in the final form in which it was enacted into law. It retained the first sentence in its original language.16 In the second 15 “(f) As a prerequisite to its approval of any consolidation, merger, purchase, lease, operating contract, or acquisition of control, or any contract, agreement, or combination mentioned in this section, in respect to carriers by railroad subject to the provisions of part 1, and as a prerequisite to its approval of the substitution and use of another means of transportation for rail transportation proposed to be abandoned, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. . . .” 86 Cong. Rec. Pt. 6, 5886 (1940). 16 See H. R. Rep. No. 2832, 76th Cong., 3d Sess. 68-69 (1940), and remarks by Representative Lea, Chairman of House Conferees, 86 Cong. Rec. Pt. 6, 10178 (1940), and of Representative Wolverton at p. 10189. The Commission’s powers as to abandonments are thus left to § 1 (18)-(20), to which the Harrington Amendment has no possible application. They are as follows: “(18) ... no carrier by railroad subject to this Act shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment. “(20) The Commission shall have power to issue such certificate . . . and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. . . ” 41 Stat. 477-478, 49 U. S. C. § 1 (18) and (20). Under § 1 (18) and (20), the Commission has authority, in its sound discretion, to prescribe the period and the conditions of the protection needed by employees adversely affected by abandonments. See Interstate Commerce Commission n. Railway Labor Executives RAILWAY LABOR ASSN. v. U. S. 153 142 Opinion of the Court. sentence, however, it included a substantial change in the Harrington proposal. It limited it to the four years following the effective date of the Commission’s order of approval. It provided also that in each case the protective period was not to exceed the length of each employee’s employment by a carrier prior to the effective date of the Commission’s order of approval. This clause emphasized the separability of the second sentence, for it provided that “the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, . . than that prescribed. (Emphasis supplied. See p. 145, supra, for full text of the clause.) The second sentence thus gave a limited scope to the Harrington Amendment and made it workable by putting a time limit upon its otherwise prohibitory effect. There was no comparable need for such a restriction upon the first sentence. We find, therefore, that the time limit in the second sentence now applies to it and to it alone. As thus limited, that sentence adds a new Assn., 315 U. S. 373. In that case, this Court reversed the narrow interpretation which had been given by the Commission to § 1 (20) in Chicago G. W. R. Co. Trackage, 207 I. C. C. 315, 322. The Commission had held that it was without authority to prescribe conditions for the protection of the interests of the displaced employees. Both the District Court of the District of Columbia and this Court recognized that the authority granted by § 1 (18)-(20) might be narrower than that applicable to consolidations under § 5 (4) (b) (see United States v. Lowden, 308 U. S. 225) but held, nevertheless, that it gave the Commission authority to protect the employees affected. Under the restrictive interpretation which the Commission seeks to apply to its power in the instant case, it would be prohibited from applying its full discretion to employees displaced by consolidations, at the same time that it is authorized to apply its full discretion to those displaced by abandonments. See Interstate Commerce Commission v. Railway Labor Executives Assn., 315 U. S. 373. This distinction would be peculiarly discriminatory in the instant case where the consolidation includes many abandonments. 154 OCTOBER TERM, 1949. Opinion of the Court. 339U.S. guaranty of protection for the interests of employees, without restricting the Commission’s power to require greater protection as part of a fair and equitable arrangement. This serves the purpose of the sentence to increase, rather than to decrease, the protective effect of the paragraph. Under the Commission’s order in the instant case, employees displaced through the early elimination of grade crossings or otherwise may receive compensatory protection up to May 17, 1952, but employees displaced after that date will receive none. They will have had long notice that, by 1954, they may be displaced. But that much “protection” against the adverse effects of the consolidation would have been available to them without § 5 (2) (f). Neither such discrimination nor such insubstantial “protection” is consistent with the purpose or the history of the provision. The Commission’s interpretation of this statute, although entitled to weight, is not persuasive. Its present view of its authority is out of harmony with its broad view of its authority under § 5 (4) (b), approved in United States v. Lowden, supra. It also is inconsistent with the broad construction given by this Court to § 1 (18)—(20) as to abandonments. Interstate Commerce Commission n. Railway Labor Executives Assn., 315 U. S. 373. The Commission’s own decisions under § 5 (2) (f), relied upon here, have been made in cases in which the adverse effects of the approved transactions were to be felt by the employees long before the expiration of four years from the effective date of the order of approval.17 For example, in Chicago, M., St. P. & P. R. Co. Trustees Construction, 257 I. C. C. 292, which is principally relied 17 Chicago, B. & Q. R. Co. Abandonment, 257 I. C. C. 700; Chicago, M., St. P. & P. R. Co. Trustees Construction, 257 I. C. C. 292; Oklahoma R. Co. Trustees Abandonment, 257 I. C. C. 177, 196— 202; Texas & P. R. Co. Operation, 247 I. C. C. 285, 295, 296. RAILWAY LABOR ASSN. v. U. S. 155 142 Frankfurter, J., dissenting. upon by the Commission, the construction originally was required to be completed December 31, 1943, and that date was extended to December 31, 1944, but the effective date of the order of approval was April 26, 1942, so that the minimum protective period of four years did not expire until 1946. In that case, the Commission did not eliminate all compensatory protection as it has for many employees here. We conclude, therefore, that the Commission, while required to observe the provisions of the second sentence of §5(2) (f) as a minimum protection for employees adversely affected, is not confined to the four-year protective period as a statutory maximum. The Commission has the power to require a fair and equitable arrangement to protect the interests of railroad employees beyond four years from the effective date of the order approving the consolidation. The judgment of the District Court is reversed and the case is remanded to that court with directions to remand it to the Interstate Commerce Commission for further proceedings in conformity with this opinion. It is so ordered. Mr. Justice Jackson dissents upon the ground that resort to legislative history to vary the terms of the statute is not justified in this case. Mr. Chief Justice Vinson and Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Frankfurter, whom Mr. Justice Reed joins, dissenting. The sole question before us is the proper construction to be given to the amendment made to § 5 (2) (f) of the Interstate Commerce Act by the Act of September 18, 1940, 54 Stat. 898, 906-07. The District Court agreed 156 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. with the construction given to the provision by the Interstate Commerce Commission. In the court below, but not here, the Department of Justice joined the Interstate Commerce Commission in urging this construction upon that court. I do not think the arguments which the Government urged below have been adequately answered, and I therefore yield to them. I cannot do better than state them in the Government’s own language: “The section contains the clear and precise provision that the four-year period shall commence from the effective date of the order of approval. Had Congress intended that the period shall run from the date when the consolidation goes into effect or, as argued by plaintiff, from the date the employees are adversely affected, such words easily could and would have been used by Congress. Nor does the section give to the Commission discretion in applying a period other than four years from the effective date of the order of approval. The terminology in the statute is that the Commission shall include the four-year limitation therein provided. To provide a different period in the Commission’s order would be contrary to the specific requirement imposed upon the Commission by the statute. “Congress deliberately fixed the period of protection to start from the effective date of the order and not the date an employee is adversely affected. “In the light of the clear unambiguous and specific language of Section 5 (2) (f), its consistent interpretation and application by the Commission, since its enactment and over a long period of years, and the legislative history of the statute, the order of the Commission herein should not be disturbed.” I would affirm the judgment of the District Court. STANDARD-VACUUM OIL CO. v. U. S. 157 Syllabus. STANDARD-VACUUM OIL CO. v. UNITED STATES. CERTIORARI TO THE COURT OF CLAIMS. No. 18. Argued October 13, 1949.—Decided March 27, 1950. Petitioner sued in the Court of Claims to recover compensation for property in the Philippine Islands allegedly requisitioned by the United States for military purposes during the Japanese invasion of the Islands more than six years previously. The Government moved to dismiss the claims on the ground that they were barred by the six-year limitation prescribed by § 156 of the Judicial Code, now 28 U. S. C. § 2501. Petitioner contended that, during the Japanese occupation of the Islands, it was deprived of access to information bearing on the existence of its claims; but its pleadings contained no such allegations. The Court of Claims considered this contention but dismissed the claims. Held: 1. Since the question whether deprivation of access to information bearing on the existence of petitioner’s claims during the Japanese occupation of the Philippine Islands could or would affect the operation of the six-year statute of limitations is not properly presented on the record, this Court will not consider it. Pp. 158-160. 2. Since the court below considered facts not stated in the pleadings and its opinion and judgment take cognizance of such facts, its judgment is vacated and the cause is remanded with discretion to permit further pleadings. Pp. 160-161. 3. If permission to plead further is denied, or if it is granted and petitioner fails to plead further, the cause shall be dismissed. P. 161. 112 Ct. Cl. 137, 80 F. Supp. 657, judgment vacated and cause remanded. The Court of Claims dismissed petitioner’s claim for compensation for property allegedly requisitioned by the United States. 112 Ct. Cl. 137, 80 F. Supp. 657. This Court granted certiorari. 336 U. S. 935. Judgment vacated and cause remanded, p. 161. Albert R. Connelly argued the cause for petitioner. With him on the brief was George S. Collins. 158 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Newell A. Clapp argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade. Mr. Justice Minton delivered the opinion of the Court. On December 5, 1947, petitioner filed suit in the Court of Claims to recover just compensation for certain of its properties in the Philippine Islands which the United States had allegedly requisitioned for military purposes. On March 24, 1948, petitioner filed an amended petition, including for the first time the claims here involved, the Seventh and the Fifteenth. A second amended petition was filed June 1, 1948. In the Seventh claim of the amended petition, petitioner alleged that the United States on or about December 18, 1941, requisitioned and took certain petroleum products and other personal and real property of petitioner located in the Philippine Islands. The Fifteenth claim of the amended petition contained an allegation, inter alia, that during the period from December 1941 to January 1942, respondent took and disbursed certain other petroleum products of petitioner located at another place in the Philippine Islands.1 In the interim between the filing of the first and the second amended petitions, on April 12, 1948, the United States had filed a motion to dismiss the Seventh and Fifteenth claims on the ground that it appeared on the face of the amended petition that the claims sued upon each accrued more than six years prior to the filing of the amended petition, that the claims were therefore barred by § 156 of the Judicial Code,2 and the Court of Claims was without jurisdiction to hear said claims. The 1 This portion of the Fifteenth claim is hereafter referred to as the Fifteenth claim. 2 “Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a STANDARD-VACUUM OIL CO. v. U. S. 159 157 Opinion of the Court. court allowed this motion to stand directed against the second amended petition. After hearing argument, the court sustained the motion to dismiss, and did dismiss the Seventh and Fifteenth claims. 112 Ct. Cl. 137, 80 F. Supp. 657. We granted certiorari (336 U. S. 935) on the assumption that the record presented the question whether deprivation of access to information bearing on the existence of petitioner’s claims during the Japanese occupation of the Philippine Islands could or did affect the operation of the six-year statute. But since the record does not properly present that question, we cannot answer it. The case reaches us upon pleadings that allege only the fact of taking in 1941 and 1942, more than six years before the Seventh and Fifteenth claims were filed by petitioner. We do not intimate that any facts could have the effect of relieving petitioner from the limitation of the statute, nor what facts should be alleged that could have that effect. It might be assumed in favor of petitioner’s pleadings what is judicially known, that the Japanese were, for all practical purposes, in complete control of the Philippine Islands by May 1942 and continued in control until sometime subsequent to October 1944, when the United States Army returned. But it cannot be assumed that petitioner was deprived of information about its property before and during that period. The pleadings do not so inform, and certainly a court could not know judicially the facts of petitioner’s information or lack of information. Then there is the period from the United States reoccupation in 1945 to March 24, 1948. With respect to this period of United States control of the Islands, nothing is alleged by petitioner concerning its deprivation of or access to statement thereof is filed in the court . . . within six years after the claim first accrues . . . ” 36 Stat. 1139, 28 U. S. C. § 262, now 62 Stat. 976,28 U. S. C. § 2501. 874433 0-50--15 160 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. information about the taking of its property at the times set forth in the claims. True, the discussion of petitioner’s claims seems to have been at large before the Court of Claims as to the information or lack of information petitioner had concerning its claims and as to the effect such information or lack thereof might have had upon petitioner’s right to file the claims more than six years after they accrued. The majority opinion of the Court of Claims recites: “Plaintiff alleges that because of the loss and destruction of its records proper claims could not be filed until the Japanese occupation had ended and opportunity had to reconstruct statistically the properties, stocks, equipment, etc., owned by it at the time of requisitioning or destruction.” 112 Ct. Cl. at 139, 80 F. Supp. at 658. There are no such allegations in the amended petition. What allegations there are in the petition bring the case squarely within the statute, which denies the Court of Claims power to entertain an action brought more than six years after the action accrues. Thus the case was decided not only upon what was alleged in the pleadings but upon other allegations as well, as to which no clear inkling appears in the record. Because the Court of Claims considered these additional allegations, it is urged that we should also consider them. But we cannot consider such allegations in determining the sufficiency of the cause stated. After all, pleadings and the making of a proper record have not been dispensed with. They still have a function to perform. This case points up that function. We will not review questions not clearly raised on the record. Since it is apparent that facts were considered by both the Court of Claims and counsel that were not in the pleadings, and the court’s opinion and judgment take STANDARD-VACUUM OIL CO. v. U. S. 161 157 Opinion of the Court. cognizance of such facts, the judgment is vacated and the cause is remanded. The Court of Claims may permit further pleadings if in the court’s discretion such further pleadings seem proper and just. If permission to plead further is denied, or if petitioner fails to plead further should permission be granted, the cause shall be dismissed. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of this case. 162 OCTOBER TERM, 1949. Syllabus. 339 U.S. DENNIS v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 14. Argued November 7, 1949.—Decided March 27, 1950. Petitioner, who is General Secretary of the Communist Party of the United States, was convicted in the District of Columbia of violating R. S. § 102, 2 U. S. C. § 192, by willfully failing to appear before the Committee on Un-American Activities of the House of Representatives in compliance with a. subpoena duly served upon him. On voir dire examination, government employees on the jury panel were interrogated individually by petitioner’s counsel as to whether the fact that petitioner was a Communist, the attitude of the Committee on Un-American Activities toward Communists, or the recently issued Executive Order 9835 providing standards for the discharge of government employees upon reasonable grounds for belief that they are disloyal to the Government, would prevent them from rendering a fair and impartial verdict. Seven government employees who gave negative answers to these questions and testified that they could render a fair and impartial verdict were permitted to serve on the jury. There was no proof of actual bias, and petitioner’s challenge of these government employees for cause was denied. Held: In the circumstances of this case, petitioner was not denied the trial “by an impartial jury” guaranteed by the Sixth Amendment. Pp. 164-172. (a) The enactment of D. C. Code (1940) § 11-1420, which removed (with specified exceptions) the previously existing disqualification of government employees for jury service in the District of Columbia in criminal and other cases to which the Government is a party, was within the power of Congress and, therefore, employees of the Federal Government are not challengeable solely by reason of their employment. United States v. Wood, 299 U. S. 123; Frazier v. United States, 335 U. S. 497. Pp. 165-167, 172. (b) While impaneling a jury, the trial court has a serious duty to determine the question of actual bias and a broad discretion in its rulings on the challenges therefor; and it must be zealous to protect the rights of an accused, irrespective of his political or religious beliefs. P. 168. (c) One of an unpopular minority group must be accorded t at solicitude which properly accompanies an accused person; but e is not entitled to unusual protection or exception. P- 168. DENNIS v. UNITED STATES. 163 162 Counsel for Parties. (d) In order to secure the constitutional guarantee of trial by an impartial jury in the circumstances of this case, it is not necessary that all government employees be held to be biased as a matter of law. Pp. 168, 172. (e) The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact; and preservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury. Pp. 168, 171-172. (f) Judicial notice may be taken of Executive Order 9835; but that does not justify an assumption by this Court that government employees could not serve fairly and impartially as jurors in the circumstances of this case—especially when they stated under oath that they could do so. Pp. 169-171. (g) Nor, in the circumstance of this case, can an exception in favor of a Communist be carved out of the rule laid down in the statute and construed in Wood n. United States and Frazier v. United States that there is no implied bias by reason of government employment. P. 171. (h) Nor can this Court, any more than the trial court, take judicial notice of a “miasma of fear” to which government employees are claimed to be peculiarly vulnerable and from which other citizens are by implication immune. P. 172. 84 U. S. App. D. C. 31,171 F. 2d 986, affirmed. Petitioner was convicted in the District of Columbia of violating R. S. § 102, 2 U. S. C. § 192. The Court of Appeals affirmed. 84 U. S. App. D. C. 31, 171 F. 2d 986. This Court granted certiorari. 337 U. S. 954. Affirmed, p. 172. George W. Crockett, Jr. argued the cause for petitioner. With him on the brief were Earl Dickerson, David M. Ereedman and Harry Sacher. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen. Robert J. Silberstein filed a brief for the National Lawyers Guild, as amicus curiae, urging reversal. 164 OCTOBER TERM, 1949. Opinion of the Court. 339U.S. Mr. Justice Minton delivered the opinion of the Court. The question we have for determination here is whether a challenge for cause to jurors on voir dire because of employment by the Federal Government should have been sustained under the circumstances of this case. Petitioner was convicted of violating R. S. § 102, 2 U. S. C. § 192, for willfully failing to appear before the Committee on Un-American Activities of the House of Representatives in compliance with a subpoena duly served upon him. The Court of Appeals affirmed, 84 U. S. App. D. C. 31, 171 F. 2d 986. We granted certiorari limited to the question whether Government employees could properly serve on the jury which tried petitioner. 337 U. S. 954. Petitioner voluntarily appeared before the House Committee on Un-American Activities which had under consideration two bills to outlaw the Communist Party. Petitioner was and is General Secretary of the Communist Party of the United States. On his voluntary appearance before the Committee, petitioner refused to answer questions as to his name and the date and place of his birth. The Chairman of the Committee directed that a subpoena be served forthwith upon petitioner, requiring him to appear before the Committee on April 9, 1947. On the appointed date petitioner sent a representative but did not appear in accordance with the subpoena. The Committee reported his refusal to appear to the House of Representatives, and the House adopted a resolution certifying the report of the Committee to the United States Attorney for the District of Columbia. Petitioner was subsequently indicted. When the case was called for trial, petitioner made a motion for transfer upon the ground that he could not obtain a fair and impartial trial in the District of Columbia. In his affidavit supporting the motion, he posited DENNIS v. UNITED STATES. 165 162 Opinion of the Court. this contention mainly on the ground that Government employees, who comprise a large part of the District’s population, are subject to Executive Order 9835, 12 Fed. Reg. 1935, providing standards for their discharge upon reasonable grounds for belief that they are disloyal to the Government of the United States. He argued that Government employees would be afraid to risk the charge of disloyalty or possible termination of employment which would allegedly flow from a vote for acquittal. The motion for a transfer was denied. Both sides conducted further voir dire examination at the conclusion of the court’s questioning of the panel. Attorney for petitioner questioned individually each member of the panel who indicated that he was employed by the Government. He then challenged for cause all Government employees. The court denied the challenge. Petitioner exercised two of his three peremptory challenges against Government employees. He exhausted all his peremptory challenges. Seven of the twelve finally selected were Government employees. Each of the seven expressed the belief that he could render a fair and impartial verdict. Is petitioner entitled to a new trial because his challenge to the Government employees for cause was not sustained? The question of the presence of Government employees on District of Columbia juries is not a new controversy. It has been before this Court on three previous occasions. Crawford v. United States, 212 U. S. 183; United States v. Wood, 299 U. S. 123; Frazier v. United States, 335 U. S. 497. In the Crawford case the defendants were charged with a conspiracy to defraud the United States. The Court held that the statute prescribing the eligibility of jurors in the District of Columbia did not control the subject. The Court turned to the common law in force in Maryland when the District was formed, and found that a servant was subject to challenge 166 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. for cause at common law where the master was party to the case on trial. In such a case, bias would be implied as a matter of law. The Court concluded that it was error to deny a challenge for cause to a Government employee in a case to which the Government was a party. In 1935 Congress, prompted by the paucity of qualified jurors which resulted from the Crawford decision, passed an Act redefining eligibility for jury service in the District of Columbia. After exempting certain classes, the Act provided: “All other persons, otherwise qualified according to law whether employed in the service of the Government of the United States or of the District of Columbia . . . shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service . . . ” 4Q Stat. 682, D. C. Code, § 11-1420 (1940). The constitutionality of this Act was sustained in United States v. Wood, 299 U. S. 123, where the defendant was charged with petty larceny from a private corporation. The defendant contended that the presence of Government employees on the jury denied the right of trial by an impartial jury within the meaning of the Sixth Amendment to the Constitution of the United States. He pointed out that under the common law as expounded by Blackstone, a King’s servant and therefore a Government employee could not serve on a jury, and he argued that this view was carried into the Sixth Amendment. Chief Justice Hughes, speaking for the Court, meticulously examined the problem. He found that Blackstone’s statement of disqualification had reference only to servants of private parties, and that there was no established practice with respect to the King’s servants at common law. The Court was of the view that even if such a common law disqualification existed, Congress had power to remove it. Unlike the statute in the Crawford case, the 1935 Act left no doubt that Congress intended DENNIS v. UNITED STATES. 167 162 Opinion of the Court. to qualify Government employees as jurors. The constitutionality of such a declaration was presented for the first time. The opinion carefully emphasized that the Act left accused persons free to show the existence of actual bias. Only the question of implied bias was presented. The Court concluded that the guarantee of an impartial jury was not impaired, stating: “It is manifest that the Act was passed to meet a public need and that no interference with the actual impartiality of the jury was contemplated. The enactment itself is tantamount to a legislative declaration that the prior disqualification was artificial and not necessary to secure impartiality. ... To impute bias as matter of law to the jurors in question here would be no more sensible than to impute bias to all storeowners and householders in cases of larceny or burglary.” United States v. Wood, supra, 148-149, 150. Only last term in Frazier v. United States, 335 U. S. 497, the problem of jury service by Government employees was reexamined. There the defendant was tried and convicted of violating the Narcotics Act by a jury of the District of Columbia composed entirely, due to circumstances fortuitous or otherwise, of Federal Government employees. Mr. Justice Rutledge, speaking for the Court, reexamined the rule of the Wood case that Government employees are not disqualified as a matter of law from serving on a jury in a case to which the Government is a party. Government employees were again held to be subject to challenge only for “actual bias.” It would be a work of supererogation to attempt to clarify the statement of the law after the Wood and Frazier cases. Some may doubt the wisdom of the Court’s decision in laying down the rule, but there can be no doubt that this Court has spoken very clearly, not only once, but twice. 168 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. No question of actual bias is before us. The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact. In both the Wood and Frazier cases this Court stressed that while impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor. United States v. Wood, supra, 133-134, 150; Frazier n. United States, supra, 511-512. We reaffirm those principles. In exercising its discretion, the trial court must be zealous to protect the rights of an accused. And we agree that this the court must do without reference to an accused’s political or religious beliefs, however such beliefs may be received by a predominant segment of our population. Ideological status is not an appropriate gauge of the high standard of justice toward which our courts may not be content only to strive. But while one of an unpopular minority group must be accorded that solicitude which properly accompanies an accused person, he is not entitled to unusual protection or exception. Petitioner asserts that in order to secure the constitutional guarantee of trial by an impartial jury all Government employees must be held, in the special circumstances of this case, to be biased as a matter of law. It is not contended that bias appears as a fact from the record. As far as it appears, the court was willing to consider any evidence which would indicate that investigatory agencies of the Government had recognized in the past or would take cognizance in the future of a vote of acquittal, but no such proof was made. Nor was there evidence with respect to the existence of a climate of opinion among Government employees that they would jeopardize their tenure or provoke investigation by such a verdict. Rather petitioner asks that bias be implied from the recitation of the following circumstances: He DENNIS v. UNITED STATES. 169 162 Opinion of the Court. is a Communist; the instigator of the charges is the Un-American Activities Committee which allegedly would take notice of a vote for acquittal; the issue in the case is contempt of Congress; in contempt cases the Government’s interest is the vindication of a direct affront, as distinguished from its role in an ordinary prosecution. But petitioner primarily bases his case on a request, in effect, that judicial notice be taken of an aura of surveillance and intimidation which is said to exist in the District because of Executive Order 9835, outstanding at the time of the trial. The “Loyalty Order,” as it is popularly known, requires the investigation of all persons entering civilian employment with the United States; as to those already in service, heads of departments and agencies are charged with the duty of making certain that disloyal persons are not retained. Petitioner maintains that because of this Order, Government employees would be hesitant to vote for acquittal because such action might be interpreted as sympathetic association” with Communism. Of course, the Loyalty Order could be the subject of judicial notice. Such notice, however, would give only limited illumination. It is proper to observe that the Loyalty Order is not directed solely against Communists, and that the crime of which petitioner was convicted is not a crime peculiar to Communists. Further, the Loyalty Order preceded the instant trial only by about three months. It was promulgated by the President on March 21, 1947. This trial began on June 23, 1947, and was concluded on June 26, 1947. On May 9, 1947, the President submitted to Congress a request for an appropriation to carry out the Loyalty Order,1 which was not 1H. R. Doc. No. 242, 80th Cong., 1st Sess. (1947); 93 Cong. Rec. 4977 (1947). 170 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. enacted into law until July 31, 1947.2 It was not until August 18, 1947, that Standard Form 84, requesting certain pertinent information from each federal employee, was made available.3 The administrative implementation of Executive Order 9835, which was yet to come, was apparently not the subject of anticipatory fear by these jurors. Their answers to interrogatories on the influence of the Loyalty Order were categorically to the contrary.4 We must credit these representations, and this is particularly so in the absence of any evidence which would indicate an opposite 2 61 Stat. 696, 700. See Investigations Subcommittee on Expenditures, Investigation of Federal Employees Loyalty Program, S. Rep. No. 1775, 80th Cong., 2d Sess. (1948). 3 Federal Personnel Manual 12-4. In a press release dated November 7, 1947, the Civil Service Commission announced the appointment of the Loyalty Review Board. A statement of the Board with respect to its regulations was published on January 20, 1948. 13 Fed. Reg. 253. 4“Mr. McCabe: You are familiar with the Government loyalty oath investigation? “Juror Holford: I believe I am. I have heard something of it. “Mr. McCabe: Do you feel that rendering a verdict of not guilty in this case, if you come to that conclusion, it would stop you, any criticism or embarrassment among your fellow employees? “Juror Holford: None whatsoever. “Mr. McCabe : Or by your superiors ? “Juror Holford: No. “Mr. McCabe: You would not have any thought that would be taken as evidence of friendliness to communism? “Juror Holford: No; I am not worried about my job that way. “Mr. McCabe: Now, Mr. Jones, you have heard, have you, of the loyalty test or loyalty investigation which is going on to test the loyalty of Government employees? Have you heard of that? “Mr. Jones : Yes, I have. “Mr. McCabe: Are you aware of the fact that one of the tests that might disqualify or prevent you from Government employment DENNIS v. UNITED STATES. 171 162 Opinion of the Court. opinion among Government employees. One may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter. Ultimately, petitioner’s contentions amount to this: Since he is a Communist, in view of all the surrounding circumstances an exception must be carved out of the rule laid down in the statute, and construed in Wood and Frazier, that there is no implied bias by reason of Government employment. Thus the rule would apply to anyone but a Communist tried for contempt of a congressional committee, but not to a Communist. We think the rule in Wood and Frazier should be uniformly applied. A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. The Act makes no exception for distinctive circumstances. It states that: “All . . . persons . . . whether employed in the service of the Government of the United States or of the District of Columbia . . . shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service . . . .” Preservation of the opportunity to prove is friendly association with any Communist person or any Communist organizations? “Mr. Jones: That would not. I am a Civil Service employee. I have taken an examination for my job. “Mr. McCabe: Yes. Are you aware of the fact that, despite any Civil Service protection, still a finding that you were in friendly association with any Communist or Communist organization would render you ineligible to continue in your Government position? “Mr. Jones : It would not. “Mr. McCabe: What? “Mr. Jones : It would not.” The replies of the other jurors were in a similar vein. 172 OCTOBER TERM, 1949. Reed, J., concurring. 339 U.S. actual bias is a guarantee of a defendant’s right to an impartial jury. We adhere to our holding that the enactment of the statute is within the power of Congress, and that therefore employees of the Federal Government are not challengeable solely by reason of their employment. It follows that we are unable to conclude that the failure to sustain the challenge for cause denied petitioner an “impartial jury.” “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, supra, 145-146. In this case, no more than the trial court can we without injustice take judicial notice of a miasma of fear to which Government employees are claimed to be peculiarly vulnerable— and from which other citizens are by implication immune. Vague conjecture does not convince that Government employees are so intimidated that they cringe before their Government in fear of investigation and loss of employment if they do their duty as jurors, which duty this same Government has imposed upon them. There is no disclosure in this record that these jurors did not bring to bear, as is particularly the custom when personal liberty hinges on the determination, the sense of responsibility and the individual integrity by which men judge men. The judgment is Affirmed. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case. Mr. Justice Reed concurs in the opinion and judgment of the Court. He reads the Court’s decision to mean that Government employees may be barred for implied DENNIS v. UNITED STATES. 173 162 Jackson, J., concurring in the result. bias when circumstances are properly brought to the court’s attention which convince the court that Government employees would not be suitable jurors in a particular case. Absent such a showing, however, Government employees may not be barred from jury service merely because they are Government employees. Mr. Justice Jackson, concurring in the result. In but two ways could the Court avoid affirming the conviction of Dennis. One is to rescind the general rule established in Frazier n. United States, 335 U. S. 497, that a jury is, in contemplation of law “impartial,” even when entirely composed of government employees. The other is to retain, and thereby strengthen, that general rule but create a special exemption for Communists. I adhere with increasing conviction to my dissent in Frazier v. United States, supra at 514. The Court there dug a pit dangerous for civil liberties. The right to fair trial is the right that stands guardian over all other rights. Reference to the reports will show what otherwise one would not believe: that the Court, by a bare majority, held it to be entirely fair to try a person before a jury consisting solely of government employees, plus the fact that one juror and the wife of another worked in the office of the department head responsible for enforcement of the law charged to be violated. The common instinct of men for fair dealing and the experience of trial lawyers alike reject this holding. Whenever any majority can be mustered to overrule that weird and misguided decision, I shall be one of it. But the way for the Court to get out of the hole it fell into with Frazier is not to dig another and worse one. We are actually urged to hold that the kind of jury a defendant may have depends upon his political opinions or affiliations. The offense for which Dennis was tried was 174 OCTOBER TERM, 1949. Jackson, J., concurring in the result. 339 U. S. contempt of a Committee of Congress. That is not an offense that touches the immediate security of the Nation. Nor does guilt or innocence depend upon defendant’s political views or party membership. Of course, he is, and the jury was bound to learn that he is, a prominent figure in the Communist Party. But the same acts would be the same offense if he were an orthodox Democrat. The sole ground for creating an exemption from the Frazier rule is that the defendant is a Communist, and Communists are now exceedingly unpopular in Washington. I agree that this highlights the unfairness of the Frazier rule and provides reason for overruling it; but I do not agree that it justifies the proposed exception to that decision. The Frazier doctrine was promulgated by a majority of the Court which well knew that its rule would apply to this type of case and in these times. That decision was handed down on December 20,1948, with this present case just around the corner. Dennis had already been convicted and his conviction had been affirmed in highly publicized proceedings occurring only a few city blocks from us; and his petition for certiorari had been filed in this Court. The four of us dissenting in Frazier warned specifically that the Government in these times is using its power as never before to pry into lives and thoughts of government employees. All that is urged now is more of the same and there is nothing in this situation that should not have been within the contemplation of the Court when the Frazier case was decided the way it was. The proposal now is a partial repeal—for Communists only. Courts should give to a Communist every right and advantage that they give to any defendant. But it is inconceivable that being a Communist can entitle a defendant to more. Let us picture the proposal in operation. Two defendants are brought to trial for contempt of Congress. One, a Communist, has defied the Un- DENNIS v. UNITED STATES. 175 162 Black, J., dissenting. American Activities Committee. The other, a Republican, has defied the Committee investigating the State Department. Both make well-founded claims that the Executive branch of the Government is hostile to them; both ask to exclude its employees from the jury so they may be tried by persons under no obligation to their adversaries. The proposal is that the trial judge should grant the motion of the Communist and deny that of the Republican! What then becomes of equal justice under law? It is true that Communists are the current phobia in Washington. But always, since I can remember, some group or other is being investigated and castigated here. At various times it has been Bundists and Germans, Japanese, lobbyists, tax evaders, oil men, utility men, bankers, brokers, labor leaders, Silver Shirts and Fascists. At times, usually after dramatic and publicized exposures, members of these groups have been brought to trial for some offense. I think that none of them at such times ever should be forced to defend themselves against the Government’s accusations before the Government’s employees. But so long as accused persons who are Republicans, Dixiecrats, Socialists, or Democrats must put up with such a jury, it will have to do for Communists. Mr. Justice Black, dissenting. The petitioner, Dennis, was convicted of wilfully refusing to give testimony before the House Committee on Un-American Activities. The evidence against him was exceptionally strong. But no matter how strong that evidence, he had a constitutional right to have it passed on by an impartial jury.1 No juror can meet the test 1 The Sixth Amendment provides that defendants charged with crimes in federal courts “shall enjoy the right to . . . trial, by an impartial jury.” And see Tumey v. Ohio, 273 U. S. 510, 535: “No 874433 0—50------------16 176 OCTOBER TERM, 1949. Black, J., dissenting. 339U.S. of “impartiality” if he has good reason to fear that a vote for acquittal would subject him to harassing investigations and perhaps cost him his job. On this ground the government employees called for jury duty were challenged for cause by petitioner. I am convinced that denial of this challenge deprived Dennis of an impartial jury. Although each juror asserted that he or she could vote for acquittal without fear of adverse consequences, that cannot be accepted as conclusive evidence of impartiality. The test of bias sufficient to exclude a juror for cause is not what the particular juror believes he could do. Long ago Chief Justice Marshall ruled that a person “may declare that he feels no prejudice in the case, and yet the law cautiously incapacitates him from serving on the jury; because it suspects prejudice; because in general, persons in a similar situation, would feel prejudice.” 1 Burr’s Trial 414, 415, 25 Fed. Cas. 14,692g, at p. 50. And this Court, while recognizing that persons of the “highest honor and greatest self-sacrifice” would not be influenced by fear of financial losses, has said that “every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U. S. 510, 532.2 We did not depart from the “average man” test in United States v. Wood, 299 U. S. 123, or Frazier n. United States, 335 U. S. 497. Those cases involved convictions matter what the evidence was against him, he had the right to have an impartial judge.” This case related to financial interests of a mayor trying defendants, but the principles there declared are equally applicable to jurors who must judge the guilt or innocence of a defendant. 2 See note 1, supra. DENNIS v. UNITED STATES. 177 162 Black, J., dissenting. for theft and dope-peddling. They did hold that proof of mere governmental employment was not enough, standing alone, automatically to impute disqualifying bias in every criminal proceeding brought by the Federal Government. But both opinions clearly indicated that “particular issues or circumstances” might require exclusion of government employees in order to assure an impartial jury.3 In complete harmony with the principle declared in the Burr and Tumey cases, our Wood opinion cautioned that a government employee could be disqualified if “in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise, he had actual bias . ...”4 299 U. S. at 134. And the Frazier opinion emphasized that these factors would support disqualification of government employees for “actual bias” without proof of “prejudice in the subjective sense.” 335 U. S. at 510-11, n. 19. Special circumstances of the type supporting disqualification under these decisions are, in my judgment, clearly shown by this record. The difficulty of securing an impartial jury at all is revealed by the number of potential jurors who felt that Dennis’s position as Secretary of the Communist Party in this country would alone prevent 3 In the Frazier case one juror and the wife of another were employed in the Department of Treasury, which was charged with enforcing the anti-narcotic laws. This Court did not decide whether such employment would distinguish these jurors from other government employees sufficiently to support a timely challenge, because the only special challenge raising this ground was belatedly made in a motion for new trial. 4 The Court also stated that bias could not be imputed “simply by virtue of governmental employment, without regard to any actual partiality growing out of the nature and circumstances of particular cases.” 299 U. S. at 149. 178 OCTOBER TERM, 1949. Black, J., dissenting. 339 U.S. their giving him a fair trial.5 And the prevailing pattern of loyalty investigations and threatened purges makes it wholly unrealistic to expect government employees to enter the jury box with that quality of disinterestedness essential to complete impartiality. The reasons urged for disqualifying government employees were first presented to the trial court in an affidavit supporting petitioner’s motion for change of venue. The sworn allegations of that affidavit were never denied by the Government. In essence, the affidavit pointed out that all federal employees were under constant scrutiny by various agencies and congressional committees for possible sympathy with Communists or with affiliated organizations; that under Executive Order 9835, issued following vigorous demands by the congressional committee which had initiated the prosecution of Dennis, any of these employees would lose his job if a “loyalty test” revealed “reasonable grounds” for belief that he was disloyal; that members of the same committee had stated that anything less than imposition of maximum punishment on Dennis would expose the persons responsible therefor to charges of disloyal sympathy with Commu- 5 The difficulty of obtaining an impartial jury in cases where popular indignation is aroused became manifest during World War I. Judge Amidon, a veteran trier of Espionage Act cases, described his experiences as follows: “For the first six months after June 15, 1917,1 tried war cases before jurymen who were candid, sober, intelligent business men, whom I had known for thirty years, and who under ordinary circumstances would have had the highest respect for my declarations of law, but during that period they looked back into my eyes with the savagery of wild animals, saying by their manner, ‘Away with this twiddling, let us get at him.’ Men believed during that period that the only verdict in a war case, which could show loyalty, was a verdict of guilty.” Quoted in Chafee, Free Speech in the United States 70 (1941 ed.). DENNIS v. UNITED STATES. 179 162 Black, J., dissenting. nism;6 and that consequently a vote for acquittal would jeopardize the job of any government employee so voting.7 Petitioner again cited the “loyalty test” in challenging for cause all governmental employees called as jurors, although he did not bother to reargue the facts because his reasons were “clear to us all.” Thus petitioner called the trial judge’s attention to substantial facts in support of his challenges. 8 In this connection the affidavit asserted that committee members “have stated openly on the floor of the House of Representatives that they demand a prosecution and conviction of, and the imposition of the maximum punishment on this defendant. They have charged that anything less would open the persons responsible therefor to a charge of disloyalty, and sympathy to Communism.” In oral argument on the motion for change of venue and an accompanying motion for continuances, counsel elaborated on one facet of this charge by reading from the Congressional Record a colloquy between a member of the committee and other congressmen. The substance of the - colloquy was that the Attorney General should be impeached unless he obtained quick trials of Dennis and others charged with contempt by the committee. 93 Cong. Rec. 3815-3816. 7 The affidavit read in part: “The enormous consequences of the Executive Order referred to above make it absolutely impossible to secure a fair and impartial trial in the District of Columbia for a leader of the Communist Party, particularly when the charge against him is laid by the Committee on Un-American Activities. The finding of disloyalty involves not only discharge from employment but a permanent branding as a disloyal and undesirable person, endangering the possibility of earning a livelihood in the future. No individual can be expected lightly to take the risk of incurring such consequences to himself, his family and his associates. The meaning of ‘sympathetic association’ is undefined in the Executive Order and there is no assurance that it may not be construed by the Attorney General to include a recognition of the rights of a member of the Communist Party. And even if the Attorney General himself would not so construe it, it is impossible to assume that persons selected for jury duty will run the risk of a charge of sympathy with Communism flowing from voting for an acquittal of so prominent a leader of the Communist Party.” 180 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. To say that employees of the United States could meet objective tests of complete impartiality in the trial of cases like this is to disregard human nature. Probably at no period of the nation’s history has the “loyalty” of government employees been subjected to such constant scrutiny and investigation by so many government agents and secret informers. And for the past few years press and radio have been crowded with charges by responsible officials and others that the writings, friendships, or associations of some government employee have branded him “disloyal.” Government employees have good reason to fear that an honest vote to acquit a Communist or anyone else accused of “subversive” beliefs, however flimsy the prosecution’s evidence, might be considered a “disloyal” act which could easily cost them their job. That vote alone would in all probability evoke clamorous demands that he be publicly investigated or discharged outright; at the very least it would result in whisperings, suspicions, and a blemished reputation. In the Wood case this Court regarded as “far-fetched and chimerical” the suggestion that no government employee could have voted for acquittal of theft without endangering his job. I agree. But under the circumstances here it seems equally “far-fetched and chimerical” to suggest that government employees, however convinced of innocence, would feel completely free to acquit a defendant charged with disobeying a command of the Committee on Un-American Activities. My belief is that no defendant charged with such an offense, whatever his political affiliation, should be forced to accept a government employee as a juror. Nor should the Government want such an unfair advantage. Of course this advantage makes convictions easier. That is precisely what the Sixth Amendment was designed to prevent. It com- DENNIS v. UNITED STATES. 181 162 Frankfurter, J., dissenting. mands impartiality in the jury-box. Impartiality cannot survive in the shadow of threats to a juror’s reputation and livelihood. Mr. Justice Frankfurter, dissenting. Acquiescence in a precedent does not require approval of its extension. Although I adhere to the views expressed by Mr. Justice Jackson for the minority in Frazier v. United States, 335 U. S. 497, 514,1 do not urge that it be overruled. But in abiding by it I need not assent to enlarging the areas of its undesirability. The constitutional command for trial by an “impartial jury” casts upon the judiciary the exercise of judgment in determining the circumstances which preclude that free, fearless and disinterested capacity in analyzing evidence which is indispensable if jurymen are to deal impartially with an accusation. The judgment that a court must thus exercise in finding “disqualification for bias” of persons who belong to a particular class is a psychological judgment. It is a judgment founded on human experience and not on technical learning. And so it does not follow that merely because government employees are not automatically disqualified as jurors in every prosecution in the District of Columbia they should not be disqualified in prosecutions that are deemed to concern the security of the nation. The reason for disqualifying a whole class on the ground of bias is the law’s recognition that if the circumstances of that class in the run of instances are likely to generate bias, consciously or unconsciously, it would be a hopeless endeavor to search out the impact of these circumstances on the mind and judgment of a particular individual. That is the reason why the influences of consanguinity or of financial interest are not individually canvassed. Law as a response to life recognizes the operation of such 182 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. influences even though not consciously or clearly entertained. The appearance of impartiality is an essential manifestation of its reality. This is the basic psychological reason why the Founders of this country gave the judiciary an unlimited tenure. Impartiality requires independence, and independence, the Framers realized, requires freedom from the effect of those “occasional ill-humors in the society,” which as Alexander Hamilton put it in The Federalist are “the influence of particular conjunctures.” The Federalist, No. 78 at 400 (Beloff ed. 1948). One of the greatest of judges has assured us that “Judges are apt to be naif, simple-minded men.” Holmes, Collected Legal Papers 295. Only naivete could be unmindful of the force of the considerations set forth by Mr. Justice Black, and known of all men. There is a pervasiveness of atmosphere in Washington whereby forces are released in relation to jurors who may be deemed supporters of an accused under a cloud of disloyalty that are emotionally different from those which come into play in relation to jurors dealing with offenses which in their implications do not touch the security of the nation. Considering the situation in which men of power and influence find themselves through such alleged associations, it is asking more of human nature in ordinary government employees than history warrants to ask them to exercise that “uncommon portion of fortitude” which the Founders of this nation thought judges could exercise only if given a life tenure. The Federalist, supra. A government employee ought not to be asked whether he would feel free to decide against the Government in cases that to the common understanding involve disloyalty to this country. Questions ought not to be put to prospective jurors that offer no fair choice for answer. DENNIS v. UNITED STATES. 183 162 Frankfurter, J., dissenting. Men ought not to be asked in effect whether they are brave or wholly indifferent to the enveloping atmosphere. They should not be asked to confess that they are weaklings nor should it be assumed that they are fully conscious of all the pressures that may move them. They may not know what judges of considerable forensic experience know, that one cannot have confident knowledge of influences that may play and prey unconsciously upon judgment. See, e. g., Mr. Justice Oliver in Rex n. Davies, [1945] 1 K. B. 435, 445. The well-known observations of Mr. Justice Holmes on these psychological influences are here pertinent: “This is not a matter for polite presumptions; we must look facts in the face. Any judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.” Frank v. Mangum, 237 U. S. 309, 345, 349. Nor is it irrelevant to note that we are living in a time when inroads have been made on the secrecy of the jury room so that, upon failure to agree, jurors are subjected to harassment to disclose their position in the jury room. Ought we to expose our administration of criminal justice to situations whereby federal employees must contemplate inquisitions into the manner in which they discharged their juror’s oath? To conclude that government employees are not disqualified in prosecutions inherently touching the security of the Government, at a time when public feeling on these matters is notoriously running high, because they are not ipso facto disqualified from sitting in a prosecution against a drug addict or a petty thief, is to say that things that are very different are the same. The doctrine of the Frazier case does not require such disregard of the relevant. To recognize the existence of what is characterized as a phobia against a particular group is not to discriminate in its favor. If a particular group, no matter what its beliefs, 184 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. is under pressure of popular hostility, exclusion of potential jurors peculiarly susceptible to such pressure is not an expression of regard for political opinions but recognition by law of the facts of life. It does not follow that because members of different but respected political parties can sit in judgment upon one another where punishment is involved, all members of such parties, no matter what their relation to an operating bias, can freely and fairly sit in judgment upon those belonging to an ostracized group. Let there be no misunderstanding. To recognize the existence of a group whose views are feared and despised by the community at large does not even remotely imply any support of that group. To take appropriate measures in order to avert injustice even towards a member of a despised group is to enforce justice. It is not to play favorites. The boast of our criminal procedure is that it protects an accused, so far as legal procedure can, from a bias operating against such a group to which he belongs. This principle should be enforced whatever the tenets of the group—whether the old Locofocos or the Know-Nothings, the Ku Klux Klan or the Communists. This is not to coddle Communists but to respect our professions of equal justice to all. It was a wise man who said that there is no greater inequality than the equal treatment of unequals. We are concerned with something far more important than sustaining a particular conviction. Many and conflicting are the criteria by which a society is to be deemed good, but perhaps no test is more revealing than the characteristics of its punitive justice. No single aspect of our society is more precious and more distinctive than that we seek to administer criminal justice according to morally fastidious standards. These reveal confidence in our institutions, respect for reason, and loyalty to our profes- DENNIS v. UNITED STATES. 185 162 Frankfurter, J., dissenting. sions of fairness. The powerful claim in behalf of our civilization represented by our system of criminal justice will be vindicated and strengthened if those who in the popular mind appear to threaten the very existence of the Government are tried by citizens other than those in the immediate employ of the Government at the seat of Government. 186 OCTOBER TERM, 1949. Syllabus. 339 U. S. UNITED STATES et al. v. UNITED STATES SMELTING REFINING & MINING CO. et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. No. 173. Argued February 13-14, 1950.—Decided March 27, 1950. 1. The Interstate Commerce Commission has the power under the Interstate Commerce Act to fix the point at which line-haul or carrier transportation service begins and ends. Pp. 190, 193, 197. 2. The convenient points at which line-haul or carrier transportation service begins and ends are questions of fact to be determined by the Commission; and its findings on those questions will not be disturbed by the courts if supported by substantial evidence. P.193. 3. In this proceeding, the Commission’s determination of the points at which line-haul or carrier transportation service begins and ends at the smelting companies’ plants is supported by substantial evidence and must be sustained. Pp. 188-194. 4. When the Commission has determined the point at which linehaul or carrier transportation service begins and ends at a particular plant, the line-haul charge thereafter must be to that point and not to a further point fixed in a carrier tariff, since transportation to the latter point at the line-haul rate would be preferential and would violate § 6 (7) of the Interstate Commerce Act. Pp. 194-197. 5. The contention that to require the carriers to conform to the Commission’s orders in this case would require the smelting companies to pay twice for their services misconceives the scope of this proceeding, which was solely to define what is embraced in line-haul transportation, and not to determine whether the charge made for the service was compensatory. Pp. 197-198. 6. The Commission has authority to exclude rate questions from this proceeding. P. 198. 7. The fact that there was no appeal from an earlier judgment of the District Court granting a temporary injunction and remanding the case to the Commission (the court having found that there was no evidence to sustain a Commission finding that the line-haul rates were not compensatory for the services rendered) does not UNITED STATES v. U. S. SMELTING CO. 187 186 Counsel for Parties. require that the judgment here appealed from be affirmed under the rule of “law of the case,” since the earlier judgment was not a final judgment. Pp. 198-199. Reversed. In a suit to enjoin the enforcement of orders of the Interstate Commerce Commission, the District Court held the orders unlawful and permanently enjoined their enforcement. On direct appeal to this Court, reversed, p. 199. Joseph W. Bishop, Jr. argued the cause for the United States, appellant. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bergson and J. Roger Wollenberg. Edward Dumbauld was also of counsel. Allen Crenshaw argued the cause for the Interstate Commerce Commission, appellant. With him on the brief was Daniel W. Knowlton. Charles A. H or sky argued the cause for the United States Smelting Refining & Mining Co., appellee. With him on the brief was Paul B. Cannon. Otis J. Gibson argued the cause and was on the brief for the Denver & Rio Grande Western Railroad Co., appellee. Elmer B. Collins argued the cause and was on the brief for the Union Pacific Railroad Co., appellee. John F. Finerty argued the cause and was on the brief for the American Smelting & Refining Co., appellee. The cause was submitted on briefs by Clinton D. Vernon, Attorney General, for intervenors State of Utah et al.; Walter R. McDonald for intervenor Public Utilities Commission of Colorado; Stanley T. Wallbank for intervenor Colorado Mining Association; and £ J. Quinney for intervenor Utah Mining Association, appellees. 188 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Mr. Justice Minton delivered the opinion of the Court. The Interstate Commerce Commission instituted the proceedings leading to the orders here involved as its Seventy-fifth and Seventy-sixth Supplemental Reports to Ex parte 10^, Practices of Carriers Affecting Operating Revenues or Expenses, Part II, Terminal Services, 209 I. C. C. 11. The proceedings concerned the switching and spotting services rendered by appellee-carriers at the Garfield and Murray, Utah, and Leadville, Colorado, plants of the American Smelting Company, and the Midvale, Utah, plant of the United States Smelting Company. Extensive hearings were held in these supplemental proceedings for the purpose of determining the respective points at which the carriers’ line-haul transportation service ended and the extent of the service the carriers might render in the discharge of their obligation to deliver the freight at these four plants. It will not be necessary to detail the physical characteristics of each of the plants involved here. Each has a receiving yard or interchange tracks upon which incoming and outgoing freight is switched. Beyond the interchange tracks switching services are numerous and extensive within the plants. The Garfield plant may be described as indicative of the situation at all the plants.1 There, frozen ore is handled in six distinct movements. A large amount of intraplant switching is done by the carriers. To perform these switching services at Garfield requires three train-crew shifts daily. In one twelvemonth period at this plant, 22,982 carloads of inbound and 6,960 carloads of outbound freight were handled. 1 The plants are described in detail by the Commission in its reports, 263 I. C. C. 749, 266 I. C. C. 476, 270 I. C. C. 385; 263 I. C. C. 719, 2661. C. C. 349,2701. C. C. 359. UNITED STATES v. U. S. SMELTING CO. 189 186 Opinion of the Court. On October 14, 1946, the Commission entered its first orders in these proceedings, enjoining appellee-carriers from performing switching and spotting service in violation of the Interstate Commerce Act. On petition to the District Court, a statutory three-judge court sitting, the orders were held unlawful. The court was of the opinion that each of the Commission’s orders was based on the premise that the line-haul rates did not cover the intraplant services, and held that such a finding was not supported by the evidence. In addition, the court found that the Commission had not “presumed to exercise the authority which is intended to be conferred under Ex Parte 104 in that the order made is not specifically based upon that authority.” The matter was remanded to the Commission “for such action as it may find justifiable in the premises,” and the Commission was “temporarily enjoined from requiring its formal order to be carried into force and effect . . . .” The Commission on remand reopened the case but took no more evidence. It restated the ground for its action and entered cease and desist orders against the carriers. On petition of the appellees, the District Court again held the orders unlawful and permanently enjoined their enforcement. It is from this judgment that the Commission and the United States have appealed. The Commission undertook its general investigation, Ex parte 104, in the interest of establishing a uniform and equal service for shippers. The Commission concluded that carrier obligation for transportation service ends customarily when delivery is made at a convenient point on the siding inside or outside a consignee’s plant. This delivery is such as may be accomplished in one continuous movement without “interruption” occasioned for the convenience of the industry, and is only the equivalent of team track or simple placement switching. In the Commission’s view as developed in Ex parte 10^, such a con- 190 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. venient delivery point marks the beginning and end of what is termed “line-haul” transportation, and is the extent of the service which may be performed under the linehaul rate. The Commission’s authority to determine the point where transportation duty ends and industry convenience begins was upheld by this Court in United States n. American Sheet & Tin Plate Co., 301 U. S. 402. We have repeatedly sustained the Commission in its application of Ex parte 10^ principles to particular plants where it has prohibited the performance of services beyond the point fixed under a line-haul rate.2 In issuing cease and desist orders in these cases the Commission has acted pursuant to its duty to enforce §6(7) of the Interstate Commerce Act, which section prohibits departure from filed tariffs and the rendering of preferential services.3 As stated, the purpose of these proceedings before the Commission was to determine the beginning and end of 2 Corn Products Refining Co. v. United States, 331 U. S. 790; Hanna Furnace Corp. v. United States, 323 U. S. 667; United States v. Wabash R. Co., 321 U. S. 403; United States v. Pan American Petroleum Corp., 304 U. S. 156; A. O. Smith Corp. v. United States, 301 U. S. 669; Goodman Lumber Co. v. United States, 301 U. S. 669. 3 "No carrier, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.” 24 Stat. 379, as amended, 49 U. S. C. § 6 (7). UNITED STATES v. U. S. SMELTING CO. 191 186 Opinion of the Court. line-haul service at appellee-smelters’ plants. The next question was whether the service rendered by the carriers conformed to the services delimited by the Commission. Thus the Commission, in its proceedings after remand, was not concerned with the question of whether reasonable rates were in force, as it explained in its second report in the American Smelting Company case: “The question of the reasonableness of published rates or of charges that are or may be fixed for performing industrial services can be decided only in a proceeding brought, or investigation instituted, under different provisions of the act. It is our purpose to make it entirely clear here that our order herein is based solely upon our findings herein, which in turn are based solely upon the principles and authority established with the approval of the Supreme Court in our original and supplemental reports in Ex Parte No. 104, Part II, and that said order is not based in whole or in part upon any conclusions or findings in connection with tariff provisions or testimony as to whether the published rates are reasonable and do or do not include compensation for switching within the plant areas. We hereby repudiate any reference or conclusion to the contrary conveyed by our discussion or evidence relative to such questions and the conclusions based thereon in our prior supplemental report herein.” 270 I. C. C. at 362. With that clear and distinct statement of what it was doing and what it was not doing, the Commission made its findings of fact which appear in the margin.4 The essen- 4 The following were the findings of fact relating to the Garfield, Murray and Leadville plants of American Smelting. The findings with respect to the Midvale plant of United States Smelting were substantially identical. “(1) That it is the duty and obligation of the smelters to obtain 874433 0—50-----------17 192 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. tial part of the findings is that line-haul began and ended at the interchange tracks, known as “assembly yard” at Midvale, the plant of United States Smelting, and the “plant yard” at Garfield, “hold tracks” at Murray, and and certify to the carriers the values of ores for the purpose of ascertaining freight charges, and that the carriers are not under any obligation or duty to perform any switching or other services for the purpose of ascertaining, or assisting the smelters in ascertaining, such values. “(2) That the 'plant yard’ at the Garfield plant, the ‘hold tracks’ at the Murray plant, and the ‘flat yard’ at the Leadville plant, hereinafter referred to collectively as the ‘convenient points’ as described in the prior supplemental reports herein, are reasonably convenient points for the delivery and receipt of carload traffic moving to and from the plants of the American Smelting & Refining Company. “(3) That the several respondents serving said plants move loaded and empty freight cars from said convenient points to points within the plant areas, from such points within the plant areas to the convenient points, and between points within the plant areas. “ (4) That the said services rendered within the plant areas to and from the convenient points are in excess of those rendered shippers generally in the receipt and delivery of traffic on team tracks or industrial sidings or spurs. “(5) That the said services rendered between points within the plant areas are in excess of those rendered shippers generally in the receipt and delivery of traffic on team tracks or industrial sidings or spurs. “(6) That the services from and to the convenient points and between points within the plant areas are not and cannot be performed in a continuous movement without interruption or interference at respondents’ operating convenience because of the disabilities of the plants, including the manner in which the industrial operations are conducted, all as explained in the prior supplemental reports. “(7) That the said services rendered between the convenient points and points in the plant areas and between points within the plant areas are in excess of those performed in simple switching and teamtrack delivery and are industrial or plant services which respondents are not obligated to and should not perform at the line-haul rates. “(8) That the common-carrier transportation which respondents are obligated to perform begins and ends at the convenient points, UNITED STATES v. U. S. SMELTING CO. 193 186 Opinion of the Court. “flat yard” at Leadville, the plants of American Smelting; that all services beyond these points were excess services not required of the carrier as part of its line-haul carriage; and that the performance of services beyond these points without compensatory charges results in preferential service in violation of § 6 (7). That the Commission is authorized to establish the point where line-haul service begins and ends is not to be doubted. The question, in reviewing the Commission’s determination of the convenient points at which line-haul or carrier transportation service begins and ends, is whether such determination is supported by substantial evidence,5 as this Court said in United States v. Wabash R. Co., 321 U. S. 403, 408: “In sustaining the Commission’s findings in these proceedings, as in related cases, this Court has held that the point in time and space at which the carrier’s transportation service ends is a question of fact to be determined by the Commission and not the courts, and that its findings on that question will not be disturbed by the courts if supported by evidence.” and that all services beyond those points in the plant areas are industrial or plant services for which respondents should make reasonably compensatory charges. “(9) That the performance by respondents without reasonably compensatory charges in addition to the line-haul rates of the described services within the plant areas beyond the convenient points at any and all of the said plants results in the American Smelting & Refining Company receiving a preferential service not accorded shippers generally and results in the refunding or remitting of a portion of the rates and charges collected in violation of section 6 (7) of the act.” Id., at 367-368. 5 See Interstate Commerce Commission v. Hoboken Manufacturers’ R. Co., 320 U. S. 368, 378; United States v. Pan American Petroleum Corp., 304 U. S. 156, 158; United States v. American Sheet & Tin Plate Co., 301 U. S. 402,408,409. 194 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. In the instant case there is substantial evidence to support the Commission’s findings that the convenient points for the beginning and end of line-haul were at the interchange tracks, more specifically characterized above. The Commission had before it the extensive record of the basic proceeding, which the District Court did not have, together with the instant supplemental proceedings. The Commission’s findings were based in part on the testimony of its experts who had made personal surveys and observations of switching and car movements at these plants. It is apparent from the record that extensive intraplant services were performed on instructions of and for the convenience of the appellee-smelters. When a car is followed through its intraplant movements on a map, it is demonstrated that extensive services were performed in excess of those which were established as the permissible limit of line-haul in Ex parte 10The Commission’s designation of the convenient delivery points at each of these plants must be sustained. The contention of appellees is that there are now in effect tariffs that compensate for line-haul and plant services. These tariffs will be separately discussed below. Appellees urge that the carriers cannot be guilty of violating §6(7) when they are fully compensated for carrier services in line-haul and plant services beyond that, since the smelters do not then receive a preferential service not accorded to shippers generally. The corollary of this contention is that to require payment for the plant services in addition to the line-haul rates, in accordance with the Commission’s orders, would be to require the smelters to pay twice for the services. This Court has emphasized that the preference involved in these proceedings is based upon an application of the standards derived from Ex parte 104 to the unique conditions at particular plants, a preference necessarily resulting when a service is rendered “in excess UNITED STATES v. U. S. SMELTING CO. 195 186 Opinion of the Court. of that which the carriers are obliged to perform by their tariffs.” United States v. Wabash R. Co., supra, 412, 413. In Corn Products Refining Co. v. United States, 331 U. S. 790, this Court affirmed per curiam a decision upholding the exclusion, on grounds of irrelevancy, of evidence pertaining to the custom and practice of carriers in making delivery to other shippers. If custom may not be used to interpret “line-haul” after demarcation of transportation and industry service by the Commission, we think it follows that a carrier definition written into filed tariffs does not make impotent the Commission’s authority to define the point. A tariff, effective June 25,1938, is considered applicable only to the Midvale, Garfield, and Murray plants. By this tariff the “line-haul rate includes movement of loaded cars to track scales and subsequent delivery to any designated track within the plant which can be accomplished by one uninterrupted movement . . . from the road-haul point of delivery to the switching line.”6 266 I. C. C. at 353-354. There are additional charges for other services in the plants. If the Commission has the authority to fix the point at which line-haul begins and ends, and we have held that it has, and it designates Point X, obviously the carriers cannot by tariff fix line-haul at Point Y, a further point, and even add one subsequent movement. That would deprive the Commission of its right to determine the point. In the Commission’s judgment, which is supported by the evidence, delivery to Point X is the equivalent of team track and simple placement service—the service other shippers receive under a line-haul rate. For the carriers to give the appellee-smelters service to Point 6 An “uninterrupted movement” is defined in the tariff as “one continuous movement of switching locomotive and crew without interruption, resulting from orders from, or requirements of, the smelter.” 196 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Y plus 1 is to accord them service dififerent from that given other shippers under Ex parte 104 and supplemental proceedings. By the orders in the instant cases, line-haul is translated, as it were, into the tariffs as beginning and ending where the Commission fixed it and not where the appellee-carriers fixed it by tariff. Thereafter, the charge for line-haul must be to the interchange tracks and not to the point fixed in the tariff. Transportation to the latter point at the line-haul rate would be preferential and would violate § 6 (7). The tariff which is considered by appellee-carriers as applicable only to the Leadville plant is set forth in the margin.7 It may be noted that this tariff does not provide, as does the 1938 tariff applicable to the other plants, that the line-haul rate includes the intraplant services. Further, the “movement” specified in delivery of a linehaul shipment includes not just one, as provided by the 1938 tariff, but several switching operations which the Commission has classified as “interrupted” terminal switching services, performed for the convenience of the industry only. The Commission has fixed the point at which linehaul or transportation service ends as the “flat yard” at Leadville and finds there are services performed beyond this point. These industry services must be so com- 7 This tariff is almost identical with that which was applicable to all of the plants in 1920. The smelters, we are informed, pay the 1938 tariff under protest, and insist upon the 1920 tariff. “Delivery of Line-Haul Carload Shipment Destined to Smelter at Leadville, Colo. “Delivery of a line-haul carload shipment destined to smelter at Leadville, Colo., will include movement within smelter plant over track scales, to and from thaw-house, to and from a smelter sampler or to and from a combination sampler and concentrator to a designated unloading point indicated by the sampling company.” UNITED STATES v. U. S. SMELTING CO. 197 186 Opinion of the Court. pensated for, and may not be wrapped up in delivery of a line-haul shipment. “Since the Commission finds that the carriers’ service of transportation is complete upon delivery to the industries’ interchange tracks, and that spotting within the plants is not included in the service for which the line-haul rates were fixed, there is power to enjoin the performance of that additional service or the making of an allowance to the industry which performs it.” United States v. American Sheet & Tin Plate Co., 301 U. S. 402, 408. Obviously the plant services at Leadville are different from those at Midvale, Garfield, and Murray under the 1938 tariff, which only emphasizes the wisdom of Congress in empowering the Commission to fix the point where line-haul begins and ends with a view to giving all shippers equivalent service. The Commission has standardized such service as team track or simple placement switching. What we now hold is that the Commission has the power to fix the point at which line-haul or carrier service begins and ends. This is necessary because the need for switching varies from plant to plant; indeed, some plants may need no intraplant switching service. Thus, unless the Commission can fix the beginning and ending point of the line-haul, some shippers would pay an identical line-haul rate for less service than that required by other industrial plants. See Baltimore & Ohio R. Co. v. United States, 305 U. S. 507, 526. A different point fixed by the carrier in its tariff gives service in excess of that accorded shippers generally as established in Ex parte 104, and therefore amounts to an unlawful preferential service. As to the argument that to require the carriers to conform to the Commission’s orders would require the appellee-smelters to pay twice for their service, the short 198 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. answer is that appellees misconceive the scope of this proceeding, which is solely to define what is embraced in line-haul transportation. We accept the admonition of the Commission in its second report, quoted supra, and reiterated in its brief, that it was not here concerned, and made no finding, as to whether the charge made for the service was or was not compensatory. We think that the Commission has authority to exclude rate questions from this proceeding. If the carriers so wish, they may file a new tariff to conform their charges to the services indicated in the Commission’s order. 49 U. S. C. §6(1) and (3). If the carrier makes a double or unreasonable charge, the industry may be heard upon the reasonableness of the rate. 49 U. S. C. §§ 9, 13, 15. Finally it is contended that the District Court judgment should be affirmed because there was no appeal from the judgment and mandate when the case was sent back to the Commission, the court having found that there was no evidence to sustain a Commission finding that the line-haul rates were not compensatory for the services rendered. Appellees argue that that decision became the law of the case. The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter. Messenger v. Anderson, 225 U. S. 436, 444; Insurance Group v. Denver de R. G. W. R. Co., 329 U. S. 607, 612. It is not applicable here because when the case was first remanded, nothing was finally decided. The whole proceeding thereafter was in fieri. The Commission had a right on reconsideration to make a new record. Ford Motor Co. n. Labor Board, 305 U. S. 364, 374-75. When finally decided, all questions were still open and could be presented. The fact that an appeal could have been taken from the first order of the District Court was not because it was a final adjudication but because a temporary in- UNITED STATES v. U. S. SMELTING CO. 199 186 Opinion of the Court. junction had been granted in order to maintain the status quo. This was an interlocutory order that was appealable because Congress, notwithstanding its interlocutory character, had made it appealable. 28 U. S. C. § 1253. The appellants might have appealed, but they were not bound to. We think that it requires a final judgment to sustain the application of the rule of the law of the case just as it does for the kindred rule of res judicata. Compare United States v. Wallace Co., 336 U. S. 793, 800-801. And although the latter is a uniform rule, the “law of the case” is only a discretionary rule of practice. It is not controlling here. See Southern R. Co. v. Clift, 260 U. S. 316, 319. Judgment reversed. Mr. Justice Jackson dissents. Mr. Chief Justice Vinson and Mr. Justice Douglas took no part in the consideration or decision of this case. 200 OCTOBER TERM, 1949. Syllabus. 339 U. S. DARR v. BURFORD, WARDEN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 51. Submitted December 5, 1949.—Decided April 3, 1950. Petitioner, a state prisoner, applied to a Federal District Court for habeas corpus without petitioning this Court for certiorari from a denial of habeas corpus on the merits by the highest state court or excusing his failure to do so. Limiting its consideration of the application solely to the question whether it presented an extraordinary instance that called for disregard of accustomed procedure of petitioning this Court for certiorari, the District Court found that nothing extraordinary appeared and discharged the writ. Held: The District Court properly refused to examine further into the merits of the petition and properly discharged the writ. Pp. 201-219. (a) Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal district court only after all state remedies available, including all appellate remedies in the state courts, have been exhausted and review has been denied by this Court. Ex parte Hawk, 321 U. S. 114. Pp. 203-208. (b) Whatever deviation from the established rule may be inferred from or implied by Wade v. Mayo, 334 U. S. 672, is corrected by this decision. Pp. 208-210. (c) In § 2254 of the 1948 recodification of the Judicial Code, Congress accepted the rule of the Hawk case as a sound rule to guide consideration of habeas corpus in federal courts. Pp. 210-214. (d) Though a refusal of certiorari by this Court may carry no weight on the merits upon a later application to a federal district court for habeas corpus, comity ordinarily requires an application for review by this Court before a lower federal court may be asked to intervene in state matters. Pp. 214-217. (e) In this case, petitioner did not sustain the burden of showing that circumstances of peculiar urgency existed to require prompt federal intervention. P. 219. 172 F. 2d 668, affirmed. DARR v. BURFORD. 201 200 Opinion of the Court. Petitioner’s application for habeas corpus, to secure his release from imprisonment under a state court conviction allegedly in violation of the Federal Constitution, was denied by the District Court. 77 F. Supp. 553. The Court of Appeals affirmed. 172 F. 2d 668. This Court granted certiorari. 337 U. S. 923. Affirmed, p. 219. John B. Ogden submitted on brief for petitioner. Mac Q. Williamson, Attorney General of Oklahoma, and Sam H. Lattimore, Assistant Attorney General, submitted on brief for respondent. Mr. Justice Reed delivered the opinion of the Court. Petitioner Darr, an inmate of the Oklahoma state penitentiary, has been denied federal habeas corpus for failure to exhaust his other available remedies. Petitioner’s omission to apply here for certiorari from the state court’s denial of habeas corpus was held an error, fatal to consideration on the merits. Therefore the merits of petitioner’s claims of imprisonment in violation of the Constitution are not before us. The petition for certiorari requires us to pass solely upon the correctness of the lower court’s view that ordinarily a petition for certiorari must be made to this Court from a state court’s refusal of collateral relief before a federal district court will consider an application for habeas corpus on its merits. Petitioner was serving a term in the Oklahoma state penitentiary when, on November 28, 1930, he was summoned to appear in another Oklahoma county to plead to two separate charges of armed bank robbery. In January of 1931, he was tried by jury, and convicted on the first charge; petitioner then pleaded guilty to the second. He was sentenced to two terms of forty years each, to run consecutively, and the first sentence is now being served. 202 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. No appeal from the conviction was taken, but in 1947 petitioner applied to the Oklahoma Court of Criminal Appeals for habeas corpus. Judging only from the state court’s opinion,1 for the original petition is not included in the record before us, petitioner alleged in the state court that he had been without funds to employ counsel, that he had not had the aid of counsel of his own choosing, and had not been provided sufficient time to procure and prepare witnesses for his defense. These allegations were reviewed by the state court and the writ was denied on the merits. No application for certiorari was made here. Petitioner then filed in the United States District Court for the Eastern District of Oklahoma the application for habeas corpus here at bar. The allegations were those passed upon by the Oklahoma Court of Criminal Appeals, with the addition of a claim that petitioner’s plea of guilty to the second armed robbery charge had been coerced. After hearing petitioner’s testimony in open court, the District Judge examined into the merits sufficiently to assure himself that no extraordinary circumstances existed sufficient to justify federal inquiry into the merits of petitioner’s allegations without the exhaustion of all other available remedies.2 He then concluded that the writ must be discharged as to the first sentence since petitioner had not applied for certiorari here from the state court’s denial of habeas corpus. The allegations of a coerced plea underlying the second sentence could not properly be considered, held the court, first, because petitioner had not raised the point in the state proceeding, and further because petitioner is not presently being detained under that sentence. Therefore no adjudication on the merits was given.3 The Court of Appeals for the 1 Ex parte Darr, 84 Okla. Cr. 352,182 P. 2d 523. 2 77 F. Supp. 553, 556. 3 77 F. Supp. 553. DARR v. BURFORD. 203 200 Opinion of the Court. Tenth Circuit affirmed, one judge dissenting from the proposition that application for certiorari is a requisite step in the exhaustion of remedy.4 It is not argued that the courts below state the law incorrectly insofar as the second conviction is concerned. It has long been settled that the federal courts will not consider on habeas corpus claims which have not been raised in the state tribunal;5 and in any event, it is unquestioned doctrine that only the sentence being served is subject to habeas corpus attack.6 Further, since neither court based its conclusion upon petitioner’s failure to appeal from his initial conviction, that issue is not before us. There is no problem of jurisdiction or power in the federal courts to consider applications for habeas corpus. Nor is there at issue the effect of a refusal of certiorari by this Court upon future applications for federal habeas corpus by the state prisoner. The issue of exhaustion of remedy, however, is not only of vital concern to those who would seek the protection of the Great Writ, but in the case of state prisoners is crucial to the relationship between the state and federal sovereignties in the exercise of their coordinate power over habeas corpus. Doubt respecting this issue should not go unresolved. We therefore granted certiorari. 337 U. S. 923. The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights.7 To make this protection effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers 4172 F. 2d 668 (C. A. 10th Cir.). 5 Davis v. Burke, 179 U. S. 399. 6 McNally v. Hill, 293 U. S. 131. 7 Hawk v. Olson, 326 U. S. 271,274. 204 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. by the simple statutory test of whether facts are alleged that entitle the applicant to relief.8 This favorable attitude toward procedural difficulties accords with the salutary purpose of Congress in extending in 1867 the scope of federal habeas corpus beyond an examination of the commitment papers under which a prisoner was held to the “very truth and substance of the causes of his detention.”9 Through this extension of the boundaries of federal habeas corpus, persons restrained in violation of constitutional rights may regain their freedom. But, since the 1867 statute granted jurisdiction to federal courts to examine into alleged unconstitutional restraint of prisoners by state power, it created an area of potential conflict between state and federal courts. As it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, the federal courts sought a means to avoid such collisions. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.10 Since habeas corpus is a discretionary writ, federal courts had authority to refuse relief as a matter of comity until state remedies were exhausted. Through this 8 Holiday v. Johnson, 313 U. S. 342, 350; Price v. Johnston, 334 U. S. 266,291-92; 28 U. S. C. § 2242, restating R. S. § 754. 9 See Hawk v. Olson, supra, pp. 274-75, notes 3, 4. 10 Comity through discretion in granting habeas corpus had an antecedent in an early statutory command restraining federal injunctive interference with state courts. 28 U. S. C. § 2283; 1 Stat. 334, §5; see Bowles v. Willingham, 321 U. S. 503. Cf. the three-judge district court provisions, 28 U. S. C. §§ 2281, 2284. DARR v. BURFORD. 205 200 Opinion of the Court. comity, the doctrine of exhaustion of state remedies has developed steadily from cases refusing federal habeas corpus before state trial to a statutory direction that federal courts shall not grant the writ to a state prisoner until state remedies have been exhausted. Ex parte Royall,11 decided in 1886, held that a federal district court had jurisdiction to release before trial a state prisoner who was held in violation of federal constitutional rights, but it approved denial of the writ as a matter of discretion. It was not to be presumed that “the decision of the State court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court . . . .”12 Analogy was found in earlier cases where state and federal jurisdiction to attach property had been found to overlap. Apropos were the words of the Court in Covell v. Heyman:13 “The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore, of necessity.” In the same term of court the doctrine was advanced to its next stage, for in Ex parte Fonda14 the prisoner sought his federal relief in this Court after his state conviction but before he had prosecuted his appeal to the state appellate tribunal. Stressing the importance of noninterference 11117 U. S. 241. 12117 U. S. 241,252; Cook v. Hart, 146 U. S. 183. 13 111 U. S. 176,182. 14117 U. S.516. 206 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. with the orderly processes of appellate review, this Court denied the writ, for if the trial court had erred to the prejudice of petitioner’s constitutional rights, it could not be assumed that the state appellate court would suffer the error to go uncorrected.15 The established doctrine was applied to meet the variations presented by the cases. By 1891, it was clear that a federal circuit court committed no error in refusing a writ on the ground that the petitioner had not come to this Court on writ of error;16 and a great body of cases affirmed this holding that the petitioner should be “put to his writ of error.” 17 Baker v. Grice18 states the reason for the rule that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this Court. “. . . It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented.” And to this the Court added, in Markuson v. Boucher™ the explicit reason why the exhaustion principle must 15 In re Duncan, 139 U. S. 449,454. ™ In re Wood, HOU. S. 278. 17 In re Jugiro, 140 U. S. 291; In re Frederick, 149 U. S. 70, 77-78; New York n. Eno, 155 U. S. 89, 98; Pepke n. Cronan, 155 U. S. 100; Whitten v. Tomlinson, 160 U. S. 231, 242; Tinsley v. Anderson, 171 U. S. 101, 104—105; Minnesota v. Brundage, 180 U. S. 499, 503; Reid v. Jones, 187 U. S. 153; Urquhart v. Brown, 205 U. S. 179, 181-82; United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17. 18 169 U. S. 284, 291. 19175 U. S. 184,187. DARR v. BURFORD. 207 200 Opinion of the Court. extend to remedies available in this Court as well as those open in the state tribunals. “The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in which the constitutional rights of a prisoner could have been claimed . . . ” In 1913, a petitioner was denied an original writ here even though he had appealed and had applied for state habeas corpus, with the comment that writ of error to this Court was required.20 And following next upon the heels of an adjudication that a state habeas corpus action is a “suit” yielding a final reviewable judgment,21 came the leading case of Mooney v. Holohan?2 clearly establishing the rule that available collateral attacks in the state tribunals must be exhausted in addition to direct attacks on the conviction.23 In 1944 the unanimous per curiam opinion of Ex parte Hawk stated the fully developed and established exhaustion doctrine in its most frequently quoted form.24 “Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted.” 20 Ex parte Spencer, 228 U. S. 652,660-61. 21 Bryant v. Zimmerman, 278 U. S. 63,70. 22 294 U. S. 103. 23 The point has been confirmed many times. Ex parte Botwinski, 314 U. S. 586; Ex parte Davis, 317 U. S. 592; Ex parte Williams, 317 IT. S. 604; Ex parte Abernathy, 320 U. S. 219; and see cases cited in note 25, infra. 24 321 U. S. 114, 116-17. 874433 O—50------18 208 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. The doctrine of Ex parte Hawk has been repeatedly approved,23 and in White v. Ragen the same Court again unanimously restated that principle in the clearest language.26 “Where the highest state court in which a decision could be had considers and adjudicates the merits of a petition for habeas corpus, state remedies, including appellate review, are not exhausted so as to permit the filing of a petition for habeas corpus in a federal district court, unless the federal question involved is presented to this Court on certiorari or appeal from the state court decision.” Thus comity, which had constrained the lower federal courts to refuse a grant of the Great Writ when remedies in state courts were still open, brought forth the related rule that lower federal courts ordinarily will not allow habeas corpus if the applicant has not exhausted his remedy in this Court by certiorari or appeal from state courts’ refusal of relief on collateral attack. In Wade v. Mayo alone,27 a case decided less than four years later, does there appear language that may be construed as a departure from the established rule. The District Court was allowed to hear Wade’s petition for habeas corpus even though he had not applied here for certiorari, because there was grave doubt whether the state judgment constituted an adjudication of a federal question. The Court said, at p. 682: “That doubt was such as to make it reasonably certain that this Court would have denied certiorari on the theory that an adequate state ground ap 25 White v. Ragen, 324 U. S. 760, 767; House v. Mayo, 324 U. S. 42, 46, 48; Marino v. Ragen, 332 U. S. 561, 564; Wade v. Mayo, 334 U. S. 672, 679; Young n. Ragen, 337 U. S. 235, 238. And see note 32, infra. 26 324 U. S. 760, 764. 27 334 U. S. 672. DARR v. BURFORD. 209 200 Opinion of the Court. peared to underlie the judgment. His failure to make this futile attempt to secure certiorari accordingly should not prejudice his subsequent petition for habeas corpus in the District Court.” We had pointed out in White v. Ragen, supra, a per curiam expressly reiterating the Hawk doctrine, that where a state court’s “decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court.”28 Not limiting its discussion to the holding on the Hawk exception, however, Wade also treated with the general Hawk rule of the necessity for review here before seeking the writ in the federal district court. The thought behind the language on that point evidently was that review here is not usually required as a condition to a hearing on the merits in the district court. Wade did recognize that failure to come here might be relevant in determining whether a district court should entertain an application. On p. 680 it is said: “After state procedure has been exhausted, the concern is with the appropriate federal forum in which to pursue further the constitutional claim. The choice lies between applying directly to this Court for review of the constitutional issue by certiorari or instituting an original habeas corpus proceeding in a federal district court. Considerations of prompt and orderly procedure in the federal courts 28 324 U. S. 760, 765. In the White case we concluded that the state ground was the refusal by the Supreme Court of Illinois to entertain applications with possible fact controversies. Pp. 766-67. We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. P. 767. 210 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. will often dictate that direct review be sought first in this Court. And where a prisoner has neglected to seek that review, such failure may be a relevant consideration for a district court in determining whether to entertain a subsequent habeas corpus petition.” We do not stop to reexamine the meaning of Wade’s specific language. Whatever deviation Wade may imply from the established rule will be corrected by this decision. Ex parte Hawk prescribes only what should “ordinarily” be the proper procedure; all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that “special circumstances” justify departure from rules designed to regulate the usual case. The exceptions are few but they exist.29 Other situations may develop. Compare Moore n, Dempsey, 261 U. S. 86. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when there exist “circumstances rendering such [state] process ineffective to protect the rights of the prisoner.” 28 U. S. C. § 2254. In § 2254 of the 1948 recodification of the Judicial Code, Congress gave legislative recognition to the Hawk rule for the exhaustion of remedies in the state courts and this Court.30 This was done by embodying in the new statute 29 See White n. Ragen, 324 U. S. 760; Ex parte Royall, 117 U. S. 241, 251. 30 Young v. Ragen, 337 U. S. 235, 238. 28 U. S. C. § 2254 reads: “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 remedies 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 DARR v. BURFORD. 211 200 Opinion of the Court. the rulings drawn from the precedents.31 The rulings had been definitively restated in Hawk. That case had represented an effort by this Court to clear the way for prompt and orderly consideration of habeas corpus petitions from state prisoners. This Court had caused the Hawk opinion to be distributed to persons seeking federal habeas corpus relief from state restraint and the opinion had been generally cited and followed.32 There is no doubt that Congress thought that the desirable rule drawn from the existing precedents was stated by Hawk, for the statutory reviser’s notes inform us that “This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321 U. S. 114, 88 L. Ed. 572.)”33 While this section does not refer expressly to the requirement for application to this Court for review, it must be read in the light of the statement quoted on p. 207, supra, from Hawk. So read, there was occasion nei- 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.” 31 Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 3214, April 22 to June 7, 1948, 80th Cong., 2d Sess., p. 28. See 28 U. S. C. Congressional Service, p. XXVIII; H. R. Rep. No. 308 on H. R. 3214,80th Cong., 1st Sess., p. 3. 32 See Lyon v. Harkness, 151 F. 2d 731, 733 (C. A. 1st Cir., N. H.); United States ex rel. Monsky v. Warden of Clinton State Prison, 163 F. 2d 978, 980 (C. A. 2d Cir., N. Y.); Stonebreaker v. Smyth, 163 F. 2d 498, 501, 502 (C. A. 4th Cir., Va.); Nusser v. Aderhold, 164 F. 2d 127 (C. A. 5th Cir., Ga.); Makowski n. Benson, 158 F. 2d 158 (C. A. 6th Cir., Mich.); United States ex rel. Ross v. Nierstheimer, 159 F. 2d 994 (C. A. 7th Cir., Ill.); Guy v. Utecht, 144 F. 2d 913, 915 (C. A. 8th Cir., Minn.); Gordon v. Scudder, 163 F. 2d 518 (C. A. 9th Cir., Cal.); Herzog v. Colpoys, 79 U. S. App. D. C. 81, 143 F. 2d 137,138. 33 See S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9 and H. R. Rep. No. 308,80th Cong., 1st Sess., p. A180. 212 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. ther for the draftsmen of § 2254 to make reference to review in this Court, nor for the committees of the House or Senate or members of Congress to comment upon it. It is immaterial whether as a matter of terminology it is said that review in this Court of a state judgment declining relief from state restraint is a part of the state judicial process which must be exhausted, or whether it is said to be a part of federal procedure. The issue cannot be settled by use of the proper words. Hawk treated review here as a state remedy. Wade thought it was not state procedure. But undoubtedly review here is a part of the process by which a person unconstitutionally restrained of his liberty may secure redress. Ex parte Hawk had made it clear that all appellate remedies available in the state court and in this Court must be considered as steps in the exhaustion of the state remedy in the sense that the term is used, perhaps inexactly, in the field of habeas corpus.34 Consideration of the legislative 34 Subsequent statements by Judge John J. Parker, who served as Chairman of the Judicial Conference of Senior Circuit Judges, Committee on Habeas Corpus, are instructive. . . The thing in mind in the drafting of this section was to provide that review of state court action be had so far as possible only by the Supreme Court of the United States, whose review of such action has historical basis, and that review not be had by the lower federal courts, whose exercise of such power is unseemly and likely to breed dangerous conflicts of jurisdiction. . . . “One of the incidents of the state remedy is [the] right to apply to the Supreme Court for certiorari. If a petitioner has failed to make such application after the refusal of the state court to release him, he cannot be said to have exhausted the remedies available to him under state procedure, provided he has the right to apply again to the state courts for relief as a basis for application to the Supreme Court for certiorari. . . . “The fact that certiorari from the Supreme Court to the state court may be called a federal remedy is not determinative of the question here involved. The crucial matter is that petitioner still has a right to attack in the courts of the state the validity of his DARR v. BURFORD. 213 200 Opinion of the Court. history of § 2254 reveals no suggestion that the draftsmen intended to alter the sense of the term as defined in Hawk or to differentiate between exhaustion of state remedies and review in this Court. All the evidence manifests a purpose to enact Hawk into statute. The reviser’s notes, explicitly stating this purpose, remained unchanged throughout the bill’s legislative progress.35 So did the statement of the exhaustion principle contained in the first paragraph of § 2254 down to the first “or.”38 None of the changes or additions made by the Senate to § 2254 affected the problem of review here. They were directed at other issues.37 conviction and, upon the record made in such attack, to petition the highest court of the land for a review. So long as such right remains, he does not have, and ought not have, the right to ask a review by one of the lower federal courts. . . .” Parker, Limiting the Abuse of Habeas Corpus, 8 F. R. D. 171,176-77. Wade n. Mayo, supra, had no effect on the discussion of § 2254, since it came down two days prior to the enactment of the new code, too late for consideration. 35 See H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180, and final reviser’s note to § 2254. 36 See note 30, supra. Compare § 2254, H. R. 3214, Union Calendar #140, H. R. Rep. No. 308, 80th Cong., 1st Sess., with § 2254, H. R. 3214 in Senate, S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9. 37 The two exceptions at the last of the first paragraph provide for particular situations in the states. The definition of exhaustion in the last paragraph was made by the Senate at the instance of the Judicial Conference of Senior Circuit Judges. S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9. Report of the Judicial Conference, September Session 1947, p. 17. H. R. 3214 had permitted federal habeas corpus not only where state remedies had been exhausted but where “there is no adequate remedy available in” the state court. The Senate Report informs us that the purpose of the Senate amendment was “to substitute detailed and specific language for the phrase ‘no adequate remedy available.’ That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment.” S. Rep. No. 1559, 80th Cong., 214 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. It seems sure that Congress drafted and enacted § 2254 expecting review here in conformity with the Hawk rule. Nothing indicates to us a desire on the part of Congress to modify the language. We think the rule of the Hawk case that ordinarily requires an effort to obtain review here has been accepted by Congress as a sound rule to guide consideration of habeas corpus in federal courts. There is an insistence voiced by the dissent that we determine what effect the lower federal courts should accord a denial of certiorari by this Court when the state prisoner later applies for federal habeas corpus. The issue of the effect of such a denial apparently could arise only in a case where, after our refusal, the state prisoner presented his application to another federal court. It is not here in this case. We doubt the effectiveness of a voluntary statement on a point not in issue.38 Whether a refusal to grant certiorari imports an opinion on any issue or not, the reason persists for requiring an application here from the state refusal before application to another federal court. There should be no controversy over whether the refusal of certiorari “would serve the purpose of an adjudication on the merits.” All the authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice 38 Compare Bowen, L. J., in Cooke v. New River Co., 38 Ch. D. 56, 70-71: . . like my Brothers who sit with me, I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience that judgments come with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.” Cohens v. Virginia, 6 Wheat. 264, 399-400; Wright v. United States, 302 U. S. 583,593-594. DARR v. BURFORD. 215 200 Opinion of the Court. through judicial error.39 Even after this Court has declined to review a state judgment denying relief, other federal courts have power to act on a new application by the prisoner.40 On that application, the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner.41 Thus there is avoided abuse of the writ by repeated attempts to secure a hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers. In this way the record on certiorari in this Court is brought to the attention of the trial court. There have been statements made in former opinions of this Court as to the effect of denial of petitions for habeas corpus.42 Records presented to this Court on petitions in habeas corpus cases raise many different issues. There may be issues of state procedure, questions of fact regarding the alleged violations of constitutional rights, and issues of law respecting the scope of constitutional rights—problems made difficult by the frequent practice of state courts to dismiss the applications without opinion. If this Court has doubts concerning the basis of state court judgments, the matter may be handled as in Burke v. Georgia, 338 U. S. 941, with an express direction that the petitioner may proceed in the federal district court without prejudice from the denial of his petition for certiorari. If the District Court feels that error may have occurred, it has power to examine the application to see if circumstances exist to justify it in holding a hearing on the 39 Salinger v. Loisel, 265 U. S. 224,230. 40 Ex parte Royall, 117 U. S. 241. 41 Salinger v. Loisel, note 39, supra. 42 Ex parte Hawk, 321 U. S. 114, 117; House v. Mayo, 324 U. 8. 42,48; White v. Ragen, 324 U. S. 760,764-65. 216 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. merits. Such freedom of action protects the Great Writ without trivializing it.43 But it is argued that if the denial of certiorari mean nothing, the result of our decision is to force a “meaningless step.” We do not agree. Though our denial of certiorari carry no weight in a subsequent federal habeas corpus proceeding, we think a petition for certiorari should nevertheless be made before an application may be filed in another federal court by a state prisoner. The requirement derives from the basic fact that this republic is a federation, a union of states that has created the United States. We have detailed the evolution of and the reason for the conclusion that the responsibility to intervene in state criminal matters rests primarily upon this Court. It is this Court which ordinarily should reverse state court judgments concerning local criminal administration. The opportunity to meet that constitutional responsibility should be afforded. Even if the District Court may disregard our denial of certiorari, the fact that power to overturn state criminal administration must not be limited to this Court alone does not make it less desirable to give this Court an opportunity to perform its duty of passing upon charges of state violations of federal constitutional rights. This Court has evolved a procedure which assures an examination into the substance of a prisoner’s protest against unconstitutional detention without allowing destructive abuse of the precious guaranty of the Great Writ. Congress has specifically approved it. Though a refusal of certiorari have no effect upon a later application for federal habeas corpus, a petition for certiorari here ordinarily should be required. The answer to petitioner’s argument that he should not be required to seek review here from a state’s refusal 43 Dorsey v. Gill, 80 U. S. App. D. C. 9,148 F. 2d 857. DARR v. BURFORD. 217 200 Opinion of the Court. to grant collateral relief before applying to other federal courts involves a proper distribution of power between state and federal courts. The sole issue is whether comity calls for review here before a lower federal court may be asked to intervene in state matters. We answer in the affirmative. Such a rule accords with our form of government. Since the states have the major responsibility for the maintenance of law and order within their borders, the dignity and importance of their role as guardians of the administration of criminal justice merits review of their acts by this Court before a prisoner, as a matter of routine, may seek release from state process in the district courts of the United States. It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court. From this conviction springs the requirement of prior application to this Court to avoid unseemly interference by federal district courts with state criminal administration. As the Hawk requirement, we think, has always been the rule, no change in procedure is necessary and the reiteration of the rule in this decision can, of course, result in no shifting of the burden of work among federal courts.44 No person restrained by state process could heretofore have been certain of a hearing on the merits of his application to a federal district court unless he had sought review in this Court of the state’s refusal to release him.45 Further, the rule contributes toward expeditious administration, since it raises the constitutional issue in a federal forum immediately, without the necessity of a second trial 44 See note 32, supra. 45 Wade v. Mayo, 334 U. S. 672, 681. 218 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. court proceeding and the compilation of a second record. And while the rule has the merit of reasonable certainty, it does not err on the side of unreasonable rigidity. Flexibility is left to take care of the extraordinary situations that demand prompt action. Solicitous as we are that no man be unconstitutionally restrained and that prompt, certain and simple methods for redress be available, those ends for which modern habeas corpus has been evolved can best be achieved by requiring in ordinary cases the exhaustion of state remedies and review here. The present case involves a refusal, on the merits, of state collateral relief from a conviction allegedly obtained in violation of the Constitution. No review was sought in this Court of the state’s refusal. Instead, without alleging that review had been sought in this Court and without reliance upon any pleaded facts to excuse such failure, the petitioner filed his application for this habeas corpus in the District Court. Limiting its consideration of the application solely to the question as to whether this was an extraordinary instance that required disregard of accustomed procedure, the District Court found that this was not a case of peculiar urgency. We agree with the lower court’s conclusion that it should go no further into consideration of the application. A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court’s intervention to protect the rights of the accused.46 The petitioner has the burden also of 46 In re Cuddy, 131 U. S. 280; Johnson n. Zerbst, 304 U. S. 458, 468; Walker v. Johnston, 312 U. S. 275, 286; Hawk v. Olson, 326 U. S. 271,279. DARR v. BURFORD. 219 200 Frankfurter, J., dissenting. showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist. Nothing has been pleaded or proved to show that here exceptional circumstances exist to require prompt federal intervention. Oklahoma denied habeas corpus after obviously careful consideration.47 If that denial violated federal constitutional rights, the remedy was here, not in the District Court, and the District Court properly refused to examine the merits. Affirmed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Burton, with whom Mr. Justice Clark joins, concurs in the judgment and opinion of the Court, except for any indication it may contain that, although the reasons for a denial of certiorari are not stated, they nevertheless may be inferred from the record. He believes that the nature of the proceeding is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted. Mr. Justice Frankfurter, whom Mr. Justice Black joins, dissenting.* This case concerns the exercise by the District Courts of their habeas corpus jurisdiction on behalf of State prisoners when a petition for certiorari to review a State court’s determination of a federal claim was not first brought in this Court. In the generality of instances the issue is whether denial of certiorari is a prerequisite to 47 Ex parte Darr, 84 Okla. Cr. 352,182 P. 2d 523. *[Mr. Justice Jackson also joined in this opinion. See post, p. 238.] 220 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. resort to the District Courts. The case thus raises serious questions affecting the relations between State and federal authorities as well as between this Court and the lower federal courts. My view in brief is that federal courts must withhold interference with State criminal justice until every opportunity available in the State courts for the vindication of a federal right has been exhausted. Whether the State remedies have been so exhausted often involves elusive questions of local law with which district judges are more familiar than we can be without the light the lower courts afford us. Therefore, the power of the District Courts to issue a writ of habeas corpus should not be barred simply because a petition for certiorari was not first made in this Court. To hold otherwise is to disregard the settled rule that denial of certiorari has no legal significance or, in the alternative, if denial of certiorari remains without bearing on the merits in habeas corpus as in other cases, to require the State prisoner to go through the motion of securing a denial is to command a gesture which is meaningless to him and burdensome to this Court. In any event, to leave the District Courts in the dark as to what a denial of certiorari means in habeas corpus cases is not consistent with the fair administration of justice. 1. The course of our decisions on the power of the lower federal courts to entertain an application for a writ of habeas corpus on behalf of State prisoners has not run smooth. There is a reason. This seemingly technical problem of jurisdiction concerns the relation of the United States and the courts of the United States to the States and the courts of the States. Under any circumstances this “is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years . . . Memorandum of Mr. Justice Holmes, August 20, 1927, denying an application for stay pending a petition for certiorari. 5 The Sacco-Vanzetti Case 5516. DARR v. BURFORD. 221 200 Frankfurter, J., dissenting. Prior to the Civil War, habeas corpus was available in the United States courts, barring limited exceptions, only for those in federal custody. The Act of February 5, 1867, extended the power of the United States courts to grant writs of habeas corpus to “all cases where any person may be restrained of his . . . liberty in violation of the constitution, or of any treaty or law of the United States . . . .” 14 Stat. 385. A conflict between State and federal authorities in relation to the administration of criminal justice touches that “very delicate matter” at its most sensitive point. The Act of 1867 opened wide the door to that conflict. It has become intensified during the last twenty years because of the increasing subjection of State convictions to federal judicial review through the expanded concept of due process. See, e. g., Powell v. Alabama, 287 U. S. 45, and Mooney v. Holohan, 294 U. S. 103. It ought not to be too surprising, therefore, that the full implications of federal restrictions upon the free range of a State’s criminal justice have taken time to unfold. 2. Decisions on matters of procedure within the Court’s control ought not to be like shifting sand. Quick fluctuations in them should be avoided unless a rule of practice has proven itself mischievous in practice. The real question before us in this case is whether Wade v. Mayo, 334 U. S. 672, should be overruled. Whether this overruling is to be done forthrightly by two words saying the case “is overruled” or the overruling is euphemistically done by fifteen words hardly changes the fact. Respect for an explicit adjudication on a matter of procedure very recently rendered after the fullest consideration, as well as the soundness of the decision, should lead us to adhere to Wade v. Mayo. 3. The weight which attaches to a decision of this Court particularly on matters of practice is naturally enough affected by the circumstances attending it. Apart 222 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. from the intrinsic justification of Wade v. Mayo on grounds of policy, to which I shall shortly advert, that decision was a product of the deliberative process at its weightiest. On original submission in October, 1947, and full consideration by the Court, the case was restored to the docket in November, 1947, was resubmitted on March 9, 1948, received thorough reconsideration by the Court, and after long incubation was decided on June 14, 1948. The procedural issue which received this unusual attention was thus phrased in the Court’s opinion: “whether it was proper for a federal district court to entertain a habeas corpus petition filed by a state prisoner who, having secured a ruling from the highest state court on his federal constitutional claim, had failed to seek a writ of certiorari in this Court.” 334 U. S. at 674-75. This is the way the issue was framed in the dissenting opinion: “The first question in this case is whether Wade’s failure to bring a writ of certiorari to this Court from the judgment of the Florida Supreme Court in his state habeas corpus proceeding should affect his effort to obtain release through a federal writ of habeas corpus. Or, to rephrase the problem, should certiorari to this Court be considered a part of the state remedy for purposes of the well-recognized doctrine of exhaustion of state remedies?” 334 U. S. at 686. The problem as rephrased in the dissent stated with precision the decisive inquiry. Relief from a federal court cannot come until corrective State process to vindicate the claimed federal right is unavailable. This has been so ever since Ex parte Royall, 117 U. S. 241. Therefore, if the “state remedies” which must be exhausted include an application for review of a State court’s decision by our discretionary writ of certiorari, it would be pre DARR v. BURFORD. 223 200 Frankfurter, J., dissenting. mature for a District Court to entertain a petition for habeas corpus before such application. That question— whether a petition for certiorari is to be deemed part of the “state remedies”—had never been canvassed by this Court. The Court had made some uncritical assertions about it and in a moment I shall deal with them. But the problem had never been critically analyzed until the issue became determinative of the decision in Wade v. Mayo. 4. The answer which the dissent gave to the problem determined the dissent. It concluded “that certiorari should be considered a part of the state procedure for purposes of habeas corpus.” 334 U. S. at 689. The Court’s analysis of the problem led to the contrary result. While fully acknowledging the principle that State remedies must be exhausted before relief can be sought in a federal court, it rejected the notion that an application to this Court for review by certiorari can be deemed part of the State remedies. 5. Now the Court likewise rejects the basis of the dissent in Wade v. Mayo—that a petition for certiorari is to be deemed part of State remedies and as such must be exhausted. But it retains the conclusion which was drawn from the rejected premise. It does so in complete disregard of our repeated insistence regarding the significance of denial of petitions for certiorari, reflecting the narrow range of inquiry not going to the merits which alone is open on such petitions. Likewise disregarded are practical considerations relating to the administration of this Court’s business, particularly the inherent difficulties of ascertaining in this Court in the first instance the available remedies under State procedure, which is a threshold question in determining whether State remedies have been exhausted. 6. Of course a State prisoner can come here and seek review, by way of certiorari, of a denial by the State court 874433 0—50---19 224 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. of his alleged federal constitutional right. The Court may grant his petition and decide the issue against him. If the petition is granted and the State’s view of his federal claim is sustained here, he may still sue out a writ in the District Court. The doctrine of res judicata is inapplicable. In the Sacco-V anzetti case, application was first made to the Circuit Justice, then to the Senior Circuit Judge, and thereafter to the District Judge. See 5 The Sacco-Vanzetti Case 5532, 5533, 5534. To be sure, prior denials carry considerable weight in disposing of a later application, but merely by way of safeguard against “abusive use” of the writ while fully respecting “its recognized status as a privileged writ of freedom.” Salinger v. Loisel, 265 U. S. 224, 232. Our problem is not whether a petitioner may come here after exhausting his State remedies but whether he must come here and have his petition for certiorari denied as a condition to invoking a federal court’s jurisdiction on habeas corpus. An answer to this question necessarily turns on the significance of a denial of certiorari. Mr. Justice Reed’s opinion makes a Delphic disposition of this issue, which will inevitably create confusion among federal judges. It surely does not make for clarity of doctrine nor does it promote the practical administration of justice to suggest that denial of certiorari may be given weight upon later application for habeas corpus in lower federal courts, but to refuse to be explicit. On the basis of this pronouncement, how are some 200 district judges to dispose of petitions for habeas corpus brought by State prisoners after denial of certiorari here? The opinion in effect invites them to take into consideration the prior denial here, but then threatens them with possible reversal for so doing. The state of uncertainty in which the District Courts are left must lead to conflicting interpretations of our undisclosed meaning. Some judges will infer that denial DARR v. BURFORD. 225 200 Frankfurter, J., dissenting. of certiorari bears on the exercise of habeas corpus jurisdiction. Others will feel they should adhere to this Court’s old avowals concerning denial until they are told explicitly to the contrary. Most confusing of all, many judges, as is the way of judges, are unlikely to resolve the ambiguity decisively. Instead, they will take an equivocal position in denying a writ of habeas corpus, relying in part on the discretionary aspect of habeas corpus and in part on the fact that this Court denied certiorari. Such a disposition will either lead lawyers to be dubious about pressing an appeal, or, if the District Court’s decision be appealed, such a blend of reasons in denying the writ is not likely to be overturned by a Court of Appeals, and it would be most natural for this Court not to grant certiorari to review such a case. The significance of a denial of certiorari given by the lower courts would not be presented in such an unentangled form as would commend itself according to normal criteria for a grant of certiorari. Adjudication by this Court of the specific issue will thus be greatly delayed. The result may well be that denial of certiorari would in practice attain a significance which the Court is unwilling to give it by candid adjudication. It is, of course, one of our functions to resolve conflicts among the lower courts. But it is not our duty to stimulate such conflicts. Especially with regard to habeas corpus should we avoid such ambiguity. “The great writ of liberty” ought not to be treated as though we were playing a game. When a question affecting the habeas corpus jurisdiction of the District Courts is before us, it is our duty to guide the District Courts and not refuse to guide them. We cannot avoid an answer on the ground that the question is not before the Court. Opinions are required in our legal system in order that the reasoning which justifies a conclusion may be made manifest. The disclosure of the reasoning by which a 226 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. conclusion is reached cannot remotely be deemed dictum. A decision implies the process of reasoning which requires it. It is essential to be clear about what denial of certiorari means before determining whether a petition for certiorari is prerequisite to the exercise of habeas corpus jurisdiction by a District Court. Surely it is necessary to consider what a procedural requirement means before making it a requirement. 7. The significance of a denial of a petition for certiorari ought no longer to require discussion. This Court has said again and again and again that such a denial has no legal significance whatever bearing on the merits of the claim. The denial means that this Court has refused to take the case. It means nothing else. The State court’s judgment is left undisturbed without any legal reinforcement whatever of the views which the State court expressed. Counsel at the bar have frequently been stopped for drawing comfort out of such a denial and the Court’s opinions have indicated impatience with failure to recognize that the only thing that such a denial imports is that there were not four members of the Court who deemed it desirable, for their respective reasons, to review a decision of the lower court. Even before the Judiciary Act of 1925 so vastly extended this Court’s certiorari jurisdiction, the Court said: “The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States n. Carver, 260 U. S. 482, 490. This note of impatience has been sounded repeatedly. The wholly negative meaning of a denial of certiorari is not so merely because we have said it. We have said it because it must be so unless the whole conception of certiorari in relation to the business of this Court is to be radically transformed. Such a revolutionary change cannot justifiably be taken in relation to one large group DARR v. BURFORD. 227 200 Frankfurter, J., dissenting. of cases without drastic revision of the Court’s treatment of such cases, with far-reaching consequences to the business of the Court and its proper discharge. Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner. Petitions may have been denied because, even though serious constitutional questions were raised, it seemed to at least six members of the Court that the issue was either not ripe enough or too moribund for adjudication; that the question had better await the perspective of time or that time would soon bury the question or, for one reason or another, it was desirable to wait and see; or that the constitutional issue was entangled with nonconstitutional issues that raised doubt whether the constitutional issue could be effectively isolated; or for various other reasons not relating to the merits. Divergent and contradictory reasons often operate as to the same petition and lead to a common vote of denial. The want of explanations for denials of certiorari is in part due to the fact that a collective reason frequently could not be given. To suggest that a District Court can determine the significance to be attached to this Court’s denial of certiorari by an examination of the record on certiorari here is to offer the District Courts darkness without Ariadne’s thread. Particularly is this true in cases sought to be brought here from the State courts in which State and federal grounds are frequently entangled and an unambiguous federal question often does not emerge from the record. To attach significance to a denial of a certiorari petition regarding the merits of the issues raised by the petition would be to transform a mechanism for keeping cases out of this Court into a means of bringing them in. It would 228 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. contradict all that led to the adoption of certiorari jurisdiction and would reject the whole course of the Court’s treatment of such petitions, both in practice and profession. For if denial does import an expression of opinion upon the merits of the case, then we must deal with the merits of the case. During the last four fiscal years the District Courts throughout the country had annually from 500 to 600 habeas corpus cases brought by petitioners under State custody. To overrule Wade n. Mayo and to make it the duty of this Court to pass on the merits of anything like the number of these cases which would have to be brought here on petitions for certiorari from the State courts would throw an almost impossible burden upon the Court.1 8. We certainly ought not to condition the power of the local District Court to entertain a petition for habeas corpus on a prior denial of a petition for certiorari here if such denial carries no other significance than does the denial of certiorari in any other class of cases. Meaningless multiplication of steps in the legal process can hardly be deemed a virtue in judicial administration. Nor would it be more respectful of the dignity of a State court for the District Court to disagree with the State court’s view of federal law if such disagreement came after this Court had denied certiorari rather than before. It is suggested, however, that this Court should have the first opportunity to consider whether a State court 1 Judge Learned Hand has carried the requirement of eliciting a denial of a petition for certiorari in habeas corpus cases to its logical conclusion by giving such denial conclusive effect on the merits. Schechtman n. Foster, 172 F. 2d 339, 342-43. That is the logical conclusion of such a requirement—but it is the logic of unreality. For it flies in the face of the actualities of a denial. The considerations entering into such denials have necessitated the hitherto settled principle that denial carries no suggestion of adjudication on the merits. DARR v. BURFORD. 229 200 Frankfurter, J., dissenting. was right in having denied a constitutional claim—what has been colloquially called a “first-crack” policy. The most weighty considerations of practical administration counsel against it. The burden of the Court’s volume of business will be greatly increased, not merely because a greater number of certiorari petitions would be filed, but by reason of the effective pressure toward granting petitions more freely. For if the “first-crack” policy has any validity, it would require that every doubt be resolved in favor of granting certiorari, rather than leaving the case to the District Courts. Moreover, State court decisions involving denial of federal claims made in collateral attack on a conviction are frequently decisions based merely on allegations in the pleadings. This Court can dispose of them only as a matter of abstract pleading. The District Courts, on the other hand, can hold hearings when deemed appropriate, consider allegations on their merits if they are at all substantial and dispose of what often turn out to be unmeritorious claims. Thus, the impact upon federal-State relationships of reversals of State court decisions, which this Court may not be able to avoid when it is limited to the pleadings, may well be avoided by lower federal courts, looking beyond paper allegations to the merits. 9. There is still another reason why it makes against, not for, sound administration of justice to bar exercise by a District Court of its habeas corpus jurisdiction merely because the discretionary power of this Court to review a State court decision has not been invoked. It is that cases involving federal claims by State prisoners so frequently involve questions of State law which must be answered before the federal issue can be reached. State questions are of two kinds: (1) Did the adverse State ruling exhaust the prisoner’s available State rem- 230 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. edies? (2) May the State court’s judgment be deemed to rest on some State ground? Nothing stands out more prominently in the Court’s experience with these cases than the doubts and difficulties in ascertaining the law controlling local practice and local remedies. Thus, according to the procedure of one State a constitutional issue like that in Mooney v. Holohan, supra, must be raised by habeas corpus, not coram nobis, while in another State only coram nobis is available, not habeas corpus. Although a State court may have felt that it wrote clearly, we may not be able to read clearly or at least in unison; some members of the Court read one way, some another. See, e. g., New York ex rel. Whitman v. Wilson, 318 U. S. 688; Morhous v. Supreme Court of New York, 293 N. Y. 131, 56 N. E. 2d 79; People v. Sadness, 300 N. Y. 69, 89 N. E. 2d 188. The difficulties in determining exhaustion of State remedies are illustrated by a litigation another stage of which was reached by denial of certiorari last Monday. Hawk v. Nebraska, 339 U. S. 923. At an earlier date, the Supreme Court of Nebraska had affirmed a denial of habeas corpus by the lower State court. Hawk n. Olson, 145 Neb. 306, 16 N. W. 2d 181. This Court granted certiorari and reversed on the merits, acting on the assumption that a federal right had been disregarded, 326 U. S. 271, despite our earlier statement in Ex parte Hawk, 321 U. S. 114, 116, to the effect that State remedies could not be deemed exhausted in Nebraska until coram nobis had been attempted. On the remand, the Nebraska Supreme Court advised us that we had misconceived its opinion and misunderstood local procedure—that it had not denied a federal claim out of hand but decided only that habeas corpus was not the proper procedural road to take in Nebraska. 146 Neb. 875, 22 N. W. 2d 136. Hawk then applied for a writ of habeas corpus in the federal District Court for Ne DARR v. BURFORD. 231 200 Frankfurter, J., dissenting. braska, but was told that he must first try coram nobis in the State courts. 66 F. Supp. 195, affirmed sub nom. Hawk v. Jones, 160 F. 2d 807. The district judge showed his knowledge of his local law, for when the federal claim was asserted by coram nobis it was heard on the merits, decided by a Nebraska trial court against the petitioner and affirmed by the Nebraska Supreme Court, Hawk v. State, 151 Neb. 717, 39 N. W. 2d 561. The Hawk litigation illustrates the importance of the doctrine of exhaustion of State remedies. That doctrine is vital to the harmonious functioning of two judicial systems where one is subordinate to the other. But the litigation also shows that waste and friction are bound to be promoted if review of State court decisions in this field will have to come here initially. We are dealing with elusive and treacherous local legal materials which in their nature are not within the special competence of this Court. Such materials look one way if one examines only the dead letter of print. But to one brought up within the local system they carry meaning which never can be got from books. See Diaz n. Gonzalez, 261 U. S. 102, 106. The sure-footed manner in which the federal district judge dealt with Nebraska procedure in Hawk n. Olson, supra, indicates that he would not have made the error into which this Court fell. The Nebraska situation is representative of the difficulties and doubts that this Court has encountered again and again in regard to the local remedies available. The matter comes peculiarly within the rule of wisdom, often applied by this Court, whereby questions of local law and local practices will not be decided here but will be submitted to the knowledgeable views of federal judges in the various localities. See Gardner v. New Jersey, 329 U. S. 565, 583, and cases cited. This rule respects all the considerations that preclude intervention by a federal court until the State courts have fully acted. 232 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. Burke v. Georgia, 338 U. S. 941, is another admirable illustration of why we should not require cases raising a dubious constitutional question as to the validity of State convictions to be brought here before habeas corpus is sought in the District Courts. That we denied certiorari “without prejudice” to future proceedings in the District Court carried no legal significance.2 The case merely demonstrates how frequently in this situation preliminary questions of State procedure and State court jurisdiction are involved. Instead of allowing these local issues to be canvassed initially in the District Courts, it is now proposed to deal with cases like Burke v. Georgia by requiring that they be brought here enveloped in the fog of State procedural law and then leaving it to the District Courts to lift the fog after we have concluded that it is too thick for us to pierce. Such procedure, I submit, would neither further the administration of justice nor be conducive to the proper use of this Court’s time for the effective conduct of its inescapable business nor advance the self-esteem of State courts. 10. Nor need we be concerned lest the federal District Courts will lightly inject themselves into the State criminal process and open wide the State prison doors. Experience completely dispels such excogitated fears. The District Courts are presided over by judges who are citizens of the State, with loyalties to it no less strong than those of the judges of the State courts. Judges often come to the federal courts from the State courts. The proof of the pudding is in the eating. The showing is overwhelming that the District Courts grant writs of habeas corpus most sparingly and only with due re 2 The considerations that lead to an explicit statement that denial of certiorari is “without prejudice” to other avenues of relief because it does not bear on the merits of course carry no negative implication that in the absence of such a phrase the denial is with prejudice. DARR v. BURFORD. 233 200 Frankfurter, J., dissenting. gard for this Court’s decisions under the Due Process Clause.3 Even though a petition for habeas corpus in a federal District Court may involve constitutional questions which were found against the petitioner by the highest court of his State, the District Court is not sitting as a court of review of the State court. A petition for habeas corpus in a federal court, after the State process has been exhausted, “comes in from the outside,” as Mr. Justice Holmes phrased it in his dissenting opinion in Frank v. Mangum, 237 U. S. 309, 345, 346, a view which established itself as law in Moore v. Dempsey, 261 U. S. 86. If it be suggested that as a matter of appearance, legal analysis apart, a federal District Court might be granting relief which the highest court of the State had denied, the same unanalyzed appearance would attach to a District Court’s granting relief after this Court had denied it. 11. Due regard for State and federal relations as expressed in the doctrine of exhaustion of State remedies and adherence to the function played by certiorari in the business of this Court combine to reject as erroneous the notion that federal District Courts are to be barred from exercising their habeas corpus jurisdiction if certiorari was 3 The Administrative Office of the United States Courts has compiled the following statistics: Fiscal Years 1945-46 1946-47 1947-48 1948-49 Habeas corpus cases involving State prisoners disposed of by District Courts 503 481 487 610 Cases in which petitioners were successful 14 13 11 10 Percentage of cases in which petitioners were successful 2.8% 2.7% 2.3% 1.6% See Speck, Statistics on Federal Habeas Corpus, 10 Ohio State L. J. 337,357 (1949). 234 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. not first sought here. The error derives from the assumption that a petition for certiorari to this Court was included in the “State remedies available” which must be exhausted before a federal court can entertain a writ of habeas corpus. This assumption appears for the first time in a per curiam opinion in Ex parte Hawk, 321 U. S. 114, 117. It was repeated, though not in issue, in the per curiam in White v. Ragen, 324 U. S. 760, 764. A consideration of what actually was said in Ex parte Hawk on this matter makes it perfectly clear how the misconception about certiorari in relation to the District Court’s jurisdiction in habeas corpus crept into Ex parte Hawk. The following is everything contained in Ex parte Hawk on the subject: “Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted. Tinsley n. Anderson, 171 U. S. 101, 104-5; Urquhart n. Brown, 205 U. S. 179; United States ex rel. Kennedy v. Tyler, 269 U. S. 13; Mooney v. Holohan, supra, 115; Ex parte Abernathy, 320 U. S. 219.” 321 U. S. at 116-17. The essence of this statement is the doctrine of exhaustion of State remedies. Two of the citations—Mooney v. Holohan and Ex parte Abernathy—have only that relevance. The three other citations—Tinsley N. Anderson; Urquhart v. Brown; United States ex rel. Kennedy n. Tyler—are directed to the particularization in the main statement as to the exhaustion of “all state remedies available, including all appellate remedies ... in this Court . . . .” These three cases illustrate a series of decisions in this Court holding that a lower federal court DARR v. BURFORD. 235 200 Frankfurter, J., dissenting. ordinarily ought not to exercise its jurisdiction in habeas corpus in favor of one in State custody even after a final determination by the highest court of a State unless he has availed himself of his remedy “to review it by writ of error from this court.” Tinsley v. Anderson, 171 U. S. 101, 105. Of course. A writ of error was a writ of right. It makes all the difference in the world whether a prisoner knocks at the door of this Court to invoke its grace or has unquestioned access for the final determination of the federal question as to which the highest court of the State was merely an intermediate tribunal. The latter was the situation in the three cases cited in Ex parte Hawk. In the writ of error cases this Court held habeas corpus in the lower federal courts ought not to take the place of a mandatory appeal. Markuson v. Boucher, 175 U. S. 184. But this jurisdictional situation was drastically changed by the Act of September 6,1916, 39 Stat. 726, and the Act of February 13, 1925, 43 Stat. 936. The whole purport of this transforming jurisdictional legislation was to bar the door of this Court to litigation like this flood of habeas corpus cases. After this shift from review as of right to review by grace, it could no longer be said that a litigant forwent his right to have this Court review and reverse a State court. The right was gone. Only an opportunity—and a slim one—remained. It completely misconceives the doctrine which required a case to be brought to this Court by writ of error, because it was the duty of this Court to adjudicate the claim on the merits, to apply it to the totally different factors involved in certiorari. All the considerations of policy required that the process of constitutional adjudication through writ of error be exhausted before a lower federal court could step in. Until Ex parte Hawk there was no suggestion of assimilating certiorari to the writ of error 236 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. doctrine. In the present context of the Court’s business in relation to these cases—their volume and the required knowledge of local law with which the local federal judges are much more familiar than we can possibly be—all considerations of policy urge against requiring certiorari to be filed and denied before the District Court may be allowed to exercise jurisdiction. The reasons underlying stare decisis are not applicable to such a procedural suggestion as Ex parte Hawk made regarding the requirement of petitioning this Court for certiorari before evoking the District Court’s jurisdiction on habeas corpus. That suggestion never was translated into practice so far as the records of this Court disclose. What was specifically decided in Ex parte Hawk did become the practice of this Court—that is, petitions for leave to file a writ of habeas corpus in this Court under § 262 of the Judicial Code, now 28 U. S. C. § 1651, were thereafter denied. But no instance has been revealed in which this Court acted on the suggestion that exhaustion of State remedies includes denial of certiorari here. Apart from the fact that Wade v. Mayo displaced the inclusion of certiorari as part of the State remedies, it was recognized at the last term of Court that the scope of Ex parte Hawk was that it expressed the “doctrine of exhaustion of state remedies.” Young n. Ragen, 337 U. S. 235, 238. 12. A final point remains and that is the suggestion that the provision of the 1948 revision of the Judicial Code requires adherence to what was said in Ex parte Hawk about resort to certiorari. The Code provisions say no such thing nor do the Reviser’s notes. Section 2254 of Title 28 merely formulates the judicial doctrine first announced by this Court in Ex parte Royall, 117 U. S. 241—the doctrine of exhaustion of State remedies: “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 DARR v. BURFORD. 237 200 Frankfurter, J., dissenting. that the applicant has exhausted the remedies available in the courts of the State .... “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.” Wade v. Mayo made it clear that certiorari is not a remedy “available in the courts of the State” and no claim is now made to the contrary. With that abandonment goes the uncritical inclusion by Ex parte Hawk of certiorari among the remedies of the State. Wade v. Mayo, to be sure, could not have been before the Congress, but the Reviser characterized § 2254 as “declaratory of existing law as affirmed by the Supreme Court,” adding “See Ex parte Hawk.” That decision is sound enough in its essential requirement for “exhaustion of State remedies.” The slip in analysis it contained as to what are “State remedies” is surely not the equivalent of an enactment by Congress. A far more persuasive case for finding reenactment by Congress of a decision of this Court was rejected in Girouard v. United States, 328 U. S. 61. 13. In short, the decision reached today has alternative consequences neither of which, I respectfully submit, can be justified. In barring a District Court from entertaining a petition for habeas corpus on behalf of a State prisoner prior to denial of certiorari here, the decision must mean either (1) that denial of a petition for certiorari in this class of cases, unlike denials in all other classes of cases, would serve the purpose of an adjudication on the merits, thereby carrying with it all the weight that an adjudication on the merits by this Court should carry with a District Court even in habeas corpus cases, or (2) that such a denial, as is true of denials in any other type of case, has no legal significance. 238 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U.S. The first alternative—that in habeas corpus cases denial of certiorari has the effect of a disposition on the merits— would require a complete change in our consideration of such petitions by this Court. They would have to be treated as we now treat cases in which a petition for certiorari is granted so as to be heard on the merits. This would cast a new burden upon the Court full of the direst consequences to the proper disposition of the rest of the business of the Court. In addition, if denial of certiorari as though on the merits but without full dress consideration would, for all effective purposes, preclude resort to the District Courts on a claim that State custody is in violation of the Constitution, it would judicially nullify the habeas corpus jurisdiction which was first given to the lower federal courts by the Act of February 5, 1867, and has ever since been retained. On the second alternative, i. e., that denial of certiorari in habeas corpus cases is like any other denial of certiorari, the Court would announce that a meaningless step in this Court is an indispensable preliminary to going to the local District Court. I agree with the opinion of Judge Phillips below that the case should be reversed and remanded to the District Court. Mr. Justice Jackson, being of the opinion that this is the better of the two unsatisfactory courses open to us, joins this opinion. SLOCUM v. DELAWARE, L. & W. R. CO. 239 Syllabus. SLOCUM; GENERAL CHAIRMAN, LACKAWANNA DIVISION NO. 30, ORDER OF RAILROAD TELEGRAPHERS, v. DELAWARE, LACKAWANNA & WESTERN RAILROAD CO. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 391. Argued February 8, 1950.—Decided April 10, 1950. 1. A railroad had separate collective-bargaining agreements with two labor unions. A dispute arose between the two unions concerning the scope of their respective agreements, each claiming for its members certain jobs with the railroad. The claims were pursued in “the usual manner” under § 3 First (i) of the Railway Labor Act, without reaching an adjustment. Instead of invoking the jurisdiction of the Adjustment Board, the railroad filed a declaratory judgment action in a state court, naming both unions as defendants. After a trial, the state court interpreted the agreements and entered a declaratory judgment. Held: Under §3 of the Railway Labor Act, the jurisdiction of the Adjustment Board to adjust grievances and disputes of the type here involved is exclusive, and the state court erred in interpreting the agreements and entering a declaratory judgment. Pp. 240-245. 2. The rationale of Order of Conductors v. Pitney, 326 U. S. 561, holding that federal courts should not interpret a carrier-union collective agreement prior to an interpretation of such agreement by the Adjustment Board, equally supports a denial of power to a state court to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act. Moore v. Illinois Central R. Co., 312 U. S. 630, distinguished. Pp. 243-245. 299 N. Y. 496, 87 N. E. 2d 532, reversed. A railroad brought a declaratory judgment action in a New York state court, naming as defendants two labor unions with which it had separate collective-bargaining agreements. The state court interpreted the agreements and entered a declaratory judgment, which was affirmed by the Appellate Division, 274 App. Div. 950, 83 N. Y. S. 2d 513, and the Court of Appeals, 299 N. Y. 496, 87 N. E. 2d 532. This Court granted certiorari. 338 U. S. 890. Reversed and remanded, p. 245. 874433 O—50---20 240 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Leo J. Hassenauer and Manly Fleischmann argued the cause and filed a brief for petitioner. Pierre W. Evans argued the cause for respondent. With him on the brief was Rowland L. Davis, Jr. Mr. Justice Black delivered the opinion of the Court. Section 3 of the Railway Labor Act confers jurisdiction on the National Railroad Adjustment Board to hold hearings, make findings, and enter awards in all disputes between carriers and their employees “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . 1 The question presented is whether state courts have power to adjudicate disputes involving such interpretations when the Adjustment Board has not acted. The respondent railroad has separate collective-bargaining agreements with the Order of Railroad Telegraphers and the Brotherhood of Railway Clerks.2 A dispute arose between the two unions concerning the scope of their respective agreements. Each claimed for its members certain jobs in the railroad yards at Elmira, New York. The railroad agreed with the Clerks Union. The chairman of Telegraphers protested, urging reassignment of the work to members of his union and claiming back pay on behalf of certain individual members. The claims were pursued in “the usual manner” required by § 3 First (i) of the Railway Labor Act, 45 U. S. C. § 153 First (i), as a prerequisite to invoking jurisdiction of the Adjustment Board.3 That section further provides that, 148 Stat. 1185, 1189-1193, 45 U. S. C. § 153. 2 The full name of the latter union is Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. 3 “The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, SLOCUM v. DELAWARE, L. & W. R. CO. 241 239 Opinion of the Court. “failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board . . . .” Instead of invoking the jurisdiction of the Adjustment Board, the railroad filed this action for declaratory judgment in a New York state court, naming both unions as defendants. It prayed for an interpretation of both agreements, and for a declaration that the Clerks’ agreement, not the Telegraphers’, covered the jobs in controversy. It also asked for a declaration that the Telegraphers must refrain from making similar claims under its bargaining agreement. Telegraphers moved to dismiss the case on the ground that the Railway Labor Act left the state court without jurisdiction to interpret the contracts and adjudicate the dispute. That motion was denied. After a trial, the court interpreted the contracts as the railroad had urged, and entered the requested declarations. This judgment was affirmed by the Court of Appeals of New York, two judges dissenting. 299 N. Y. 496, 87 N. E. 2d 532/ The majority thought that our opinion in Moore v. Illinois Central R. Co., 312 U. S. or working conditions . . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.” 48 Stat. 1191. 4 The Appellate Division of the Supreme Court (3d Dept.) also affirmed both the order of the trial court denying the motion to dismiss, 269 App. Div. 467, 57 N. Y. S. 2d 65, and the subsequent judgment on the merits, 274 App. Div. 950, 83 N. Y. S. 2d 513. An opinion of the New York Supreme Court denying petitioner’s motion to remove the action to the United States District Court is reported at 183 Mise. 454, 50 N. Y. S. 2d 313. The opinion of the United States District Judge remanding the case to the state court is reported in 56 F. Supp. 634. 242 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. 630 , left state courts free to adjudicate disputes arising out of a carrier-union collective agreement without obtaining the Board’s interpretation of that agreement. The dissenting judges, however, relied on Order of Conductors v. Pitney, 326 U. S. 561, where we held that federal courts should not interpret such agreements prior to interpretation by the Adjustment Board. They asserted that this rule was also applicable in state courts. We granted certiorari to consider these questions. 338 U. S. 890. The first declared purpose of the Railway Labor Act is “To avoid any interruption to commerce or to the operation of any carrier engaged therein.” 48 Stat. 1186 (§2), 45 U. S. C. § 151a. This purpose extends both to disputes concerning the making of collective agreements and to grievances arising under existing agreements. See Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 722. The plan of the Act is to provide administrative methods for settling disputes before they reach acute stages that might be provocative of strikes. Carriers are therefore required to negotiate with bargaining representatives of the employees. Virginian R. Co. n. Federation, 300 U. S. 515, 547, 548. The Act also sets up machinery for conciliation, mediation, arbitration and adjustment of disputes, to be invoked if negotiations fail. In this case the dispute concerned interpretation of an existing bargaining agreement. Its settlement would have prospective as well as retrospective importance to both the railroad and its employees, since the interpretation accepted would govern future relations of those parties. This type of grievance has long been considered a potent cause of friction leading to strikes. It was to prevent such friction that the 1926 Act provided for creation of various Adjustment Boards by voluntary agreements between carriers and workers. 44 Stat. 578. But this voluntary machinery proved unsatisfactory, and SLOCUM v. DELAWARE, L. & W. R. CO. 243 239 Opinion of the Court. in 1934 Congress, with the support of both unions and railroads, passed an amendment which directly created a national Adjustment Board composed of representatives of railroads and unions.5 48 Stat. 1189-1193. The Act thus represents a considered effort on the part of Congress to provide effective and desirable administrative remedies for adjustment of railroad-employee disputes growing out of the interpretation of existing agreements. The Adjustment Board is well equipped to exercise its congressionally imposed functions. Its members understand railroad problems and speak the railroad jargon.6 Long and varied experiences have added to the Board’s initial qualifications. Precedents established by it, while not necessarily binding, provide opportunities for a desirable degree of uniformity in the interpretation of agreements throughout the nation’s railway systems. The paramount importance of having these chosen representatives of railroads and unions adjust grievances and disputes was emphasized by our opinion in Order of Conductors v. Pitney, supra. There we held, in a case remarkably similar to the one before us now, that the Federal District Court in its equitable discretion should have refused “to adjudicate a jurisdictional dispute 5 “These unadjusted disputes have become so numerous that on several occasions the employees have resorted to the issuance of strike ballots and threatened to interrupt interstate commerce in order to secure an adjustment. This has made it necessary for the President of the United States to intervene and establish an emergency board to investigate the controversies. This condition should be corrected in the interest of industrial peace and of uninterrupted transportation service. This bill, therefore, provides for the establishment of a national board of adjustment to which these disputes may be submitted if they shall not have been adjusted in conference between the parties.” H. R. Rep. No. 1944, 73d Cong., 2d Sess. 3. 6 For an interesting discussion of the Act’s history and purposes, see Garrison, “The National Railroad Adjustment Board: A Unique Administrative Agency,” 46 Yale L. J. 567 et seq. 244 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. involving the railroad and two employee accredited bargaining agents . . . Our ground for this holding was that the court “should not have interpreted the contracts” but should have left this question for determination by the Adjustment Board, a congressionally designated agency peculiarly competent in this field. 326 U. S. at 567-568. This reasoning equally supports a denial of power in any court—state as well as federal— to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act. Our holding here is not inconsistent with our holding in Moore n. Illinois Central R. Co., 312 U. S. 630. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board. We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive.7 The holding of the Moore case does not conflict 7 We are not confronted here with any disagreement or conflict in interest between an employee and his bargaining representative, as in Steele n. Louisville & N. R. Co., 323 U. S. 192. Nor are we called upon to decide any question concerning judicial proceedings to review board action or inaction. SLOCUM v. DELAWARE, L. & W. R. CO. 245 239 Reed, J., dissenting. with this decision, and no contrary inference should be drawn from any language in the Moore opinion. It was error for the New York courts to uphold a declaratory judgment interpreting these collective-bargaining agreements. The judgment of the New York Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Reed, dissenting. The Court denies “power in any court—state as well as federal—to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act.” It says “that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive.” Read literally, this language would indicate that the Court holds that the Board in most cases not only has exclusive jurisdiction for the institution of proceedings to determine rights under railroad collective-bargaining agreements, but also for their final determination, i. e., that there is no judicial review of the Board’s awards, except those for money. The Court, however, in note 7 states that it is not “called upon to decide any question concerning judicial proceedings to review board action or inaction.” From this I take it that the Court means only to hold that the Board has what might be called exclusive primary jurisdiction and that the decision is to have no implications for later cases which might pose the issue of judicial review of Board “action or inaction.”1 Never- 1 The sections of the statute which bear on appealability are 48 Stat. 1191, § 3 First (m) and (p). See Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, dissent, 761. 246 OCTOBER TERM, 1949. Reed, J., dissenting. 339 U. S. theless I think the Court’s decision lacks statutory basis, and I dissent from its opinion and judgment. Since the Court’s decision will be referred to as a precedent for solving administrative jurisdiction problems, it seems worth while to set out my reasons for disagreeing with the Court’s opinion. We can foresee only a part of the complications that this ruling of exclusive primary jurisdiction may bring into the administration of the Railway Labor Act. The determination of what adjudicatory body has power to judge a controversy is basic to all litigation. Jurisdiction that has always been recognized to exist in state courts should not be taken from them by inference drawn with difficulty from the statute by this Court after contrary conclusions by two state courts.2 The passage of a federal law creating a forum for the enforcement of certain contract rights connected with commerce does not necessarily withdraw from state courts their recognized jurisdiction over these contract controversies. The purpose to limit enforcement to the federal forum must be found in the federal statute in express words or necessary implication.3 The Court calls attention to nothing to supply these requisites. There is not a line in the statute, and so far as I can ascertain, not a suggestion in the hearings that the creation of the Adjustment Board was intended by Congress to close the doors of the courts to litigants with otherwise justiciable controversies. The only expression in the statute which might conceivably support the Court is the general declaration of the Act’s purpose “to provide for the prompt and orderly settlement of all disputes 2 Delaware, L. & W. R. Co. v. Slocum, 299 N. Y. 496, 87 N. E. 2d 532; Southern R. Co. v. Order of Railway Conductors, 210 S. C. 121, 41 S. E. 2d 774. See also Adams v. New York, C. & St. L. R. Co., 121 F. 2d 808. 3Cf. United States n. Bank of New York Co., 296 U. S. 463, 479; see Claflin v. Houseman, 93 U. S. 130,136. SLOCUM v. DELAWARE, L. & W. R. CO. 247 239 Reed, J., dissenting. growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”4 But this expression is as consistent with an intention to provide an alternative forum as to provide an exclusive one. Experience has not demonstrated that the settlement of grievances has been any the less prompt and orderly in the courts than it has been in the Board.5 Neither the Act nor our precedents support the Court’s ruling. In the section which conferred jurisdiction on the Board, § 3 First (i), Congress provided that disputes “shall” be first handled by negotiations between the parties and on their failure “may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board . 6 The use of “may”and “shall” in the 1934 Railway Labor Act may not be decisive, but I fail to see how it can now be disregarded completely, when at the time of Moore v. Illinois Central R. Co., 312 U. S. 630, the use of “may” seemed an indication of congressional purpose sufficient to furnish 4 48 Stat. 1187, §2 (5). 5 See Fifteenth Annual Report of the National Mediation Board, p. 12; Monograph of the Attorney General’s Committee on Administrative Procedure, Part 4, Railway Labor, p. 16, S. Doc. No. 10, 77thCong., 1st Sess. (1941). 6 48 Stat. 1191, §3 First (i): “(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.” 248 OCTOBER TERM, 1949. Reed, J., dissenting. 339 U. S. a ground for holding that courts had concurrent primary jurisdiction.7 The ruling in Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, does not support today’s decision. In that case this Court held repugnant to the Interstate Commerce Act a suit in a state court to recover unreasonable carrier charges. The Act had given the Commission power to determine the reasonableness of rates filed and published under its provisions. It also prohibited explicitly preferences and discriminations in favor of shippers. The Court held that, if a shipper could recover in the courts part of a tariff charge, he would receive a discriminatory preference. Since this would be wholly inconsistent with the Interstate Commerce Act, state courts were without jurisdiction to entertain suits for the recovery of unreasonable charges.8 By necessary inference 7 312 U. S. 630, 635-36: “It is to be noted that the section pointed out, § 153 (i), as amended in 1934, provides no more than that disputes ‘may be referred ... to the . . . Adjustment Board . . .’ It is significant that the comparable section of the 1926 Railway Labor Act (44 Stat. 577, 578) had, before the 1934 amendment, provided that upon failure of the parties to reach an adjustment a ‘dispute shall be referred to the designated Adjustment Board by the parties, or by either party . . .’ This difference in language, substituting ‘may’ for ‘shall,’ was not, we think, an indication of a change in policy, but was instead a clarification of the law’s original purpose. For neither the original 1926 Act, nor the Act as amended in 1934, indicates that the machinery provided for settling disputes was based on a philosophy of legal compulsion. On the contrary, the legislative history of the Railway Labor Act shows a consistent purpose on the part of Congress to establish and maintain a system for peaceful adjustment and mediation voluntary in its nature.” 8 204 U. 8. 426, 440-41: “For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to SLOCUM v. DELAWARE, L. & W. R. CO. 249 239 Reed, J., dissenting. the Commission was found to have the sole power to entertain originally proceedings which might result in the alteration of an established schedule. But the Court was careful to say that a statute was not to be construed as taking away a common-law right unless it were found that it was “so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy.”9 The Railway Labor Act has no rule of law, similar to that against preferences, that would be controverted if different courts in different states should construe identical collective-bargaining agreements differently. If, to preserve uniformity in the rulings of the Board, it were necessary that it have exclusive primary jurisdiction over grievance disputes, Congress would hardly have provided, as it did, that carriers and railroads by agreement might set up system and regional boards independent of the National Board.10 The Abilene case was pressed by four dissenters as controlling authority consider the subject as an original question. Indeed the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed.” 9 204 U. S. 426, 436-37: “As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not in so many words abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition we concede that we must be guided by the principle that repeals by implication are not favored, and indeed that a statute will not be construed as taking away a common law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.” 10 48 Stat. 1193, §3 Second. 250 OCTOBER TERM, 1949. Reed, J., dissenting. 339 U. S. to compel the conclusion that the Board had exclusive jurisdiction in Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711.11 But on the tacit assumption that courts were not ousted of their jurisdiction, we upheld the right of employees to sue the carrier although the employment relationship still existed. The case before us is quite different from Switchmen’s Union v. Mediation Board, 320 U. S. 297, and General Committee n. M.-K.-T. R. Co., 320 U. S. 323. Those concerned controversies of a kind unfamiliar to courts, and they involved the Mediation Board, which could impose sanctions only when the parties agreed to accept its awards.12 We held that the issues in those cases were not justiciable in the federal courts, since the “concept of mediation is the antithesis of justiciability.”13 Here, the controversy relates to the interpretation of contracts, a function courts have always performed, and “it is not 11325 U. S. 711, dissent, 759. The dissenters insisted, p. 760: “The considerations making for harmonious adjustment of railroad industrial relations through the machinery designed by Congress in the Railway Labor Act are disregarded by allowing that machinery to be by-passed and by introducing dislocating differentiations through individual resort to the courts in the application of a collective agreement.” 12 48 Stat. 1195, § 5 First; 44 Stat. 584, § 8. 13 General Committee v. M.-K.-T. R. Co., 320 U. S. 323, 337. Not long after these decisions were handed down we explained them as follows: “This result was reached because of this Court’s view that jurisdictional disputes between unions were left by Congress to mediation rather than adjudication. 320 U. S. 302 and 337. That is to say, no personal right of employees, enforcible in the courts, was created in the particular instances under consideration. 320 U. S. 337. But where rights of collective bargaining, created by the same Railway Labor Act, contained definite prohibitions of conduct or were mandatory in form, this Court enforced the rights judicially. 320 U. S. 330, 331. Cf. Texas & N. O. R. Co. v. Brotherhood of Clerks, 281 U. S. 548; Virginian Ry. Co. v. System Federation, 300 U. S. 515.” Stark v. Wickard, 321 U. S. 288, 306-307. See Steele v. Louisville & N. R. Co., 323 U. S. 192, 207. SLOCUM v. DELAWARE, L. & W. R. CO. 251 239 Reed, J., dissenting. to be lightly assumed that the silence of the statute bars from the courts an otherwise justiciable issue.”14 Nor did Order of Railway Conductors v. Pitney, 326 U. S. 561, determine the present jurisdictional issue. In a federal bankruptcy court handling a railroad reorganization, an interpretation of a collective-bargaining agreement was sought. We declared that the federal equity court should “exercise equitable discretion to give [the National Railroad Adjustment Board] the first opportunity to pass on the issue.”15 Thus we determined only that under the circumstances of that case the District Court, as a matter of discretion, should have remanded to the Board a controversy over the meaning of the collective-bargaining agreement, and at the same time should have retained jurisdiction to apply the Board’s interpretation to the controversy. There was no intimation that the obligation to send the controversy to the Board was any more universal than the obligation of an equity court to sometimes remit parties to the state courts for a preliminary decision on state law.16 There was no ruling that Congress had deprived the District Court of jurisdiction. Today the Court is compelled to extend the Pitney precedent from “discretion” to “jurisdiction” because federal courts lack power to order state courts to exercise in a particular manner their equitable discretion. But the Court’s inability to secure a flexible rule does not warrant the Court to impose on the state courts a rigid one. Congress surely would not have granted this exclusive primary power to adjudicate contracts to a body like the Board. It consists of people chosen and paid, not by the Government, but by groups of carriers and the 14 Stark v. Wickard, 321 U. S. 288,309. 13 Order of Railway Conductors v. Pitney, 326 U. S. 561, 567. 16 Ibid.; cf. Propper v. Clark, 337 U. S. 472; Meredith v. Winter Haven, 320 U. S. 228. 252 OCTOBER TERM, 1949. Reed, J., dissenting. 339U.S. large national unions.17 Congress has furnished few procedural safeguards. There is no process for compelling the attendance of witnesses or the production of evidence. There is no official record, other than that of the informal pleadings. Hearings are conducted without witnesses.18 The Board has operated without giving individuals a chance to be heard unless they were represented by unions.19 Throughout this opinion I have assumed that the Court means only to impose a requirement of primary recourse to the Board. But that inevitably means many litigants would be deprived of access to the courts. The extent of judicial review of awards other than money awards is doubtful, and it is highly questionable whether even a money award can be reviewed in the courts if only the carrier wishes review.20 Most important, the statute provides no relief for a petitioning party—be he union, individual or carrier—against an erroneous order of the Board.21 This Court may be hard put to protect the rights of minorities under these circumstances.22 Nevertheless the Court says that Congress has forced the parties into a forum that has few of the attributes 1748 Stat. 1189, §3 First (a) (b) (c) (g). 18 Monograph, n. 5, supra, pp. 11-14; see Garrison, National Railroad Adjustment Board, 46 Yale L. J. 567, 576 et seq. 19 Monograph, n. 5, supra, p. 7. 20 See Washington Terminal Co. v. Boswell, 75 U. S. App. D. C. 1, 12, 124 F. 2d 235, 246; affirmed by an equally divided court, 319 U. S. 732. 2148 Stat. 1191, §3 First (m) and (p). Garrison, National Railroad Adjustment Board, 46 Yale L. J. 567,591. 22 See Tunstall n. Brotherhood of Locomotive Firemen, 323 U. S. 210; Steele v. Louisville & N. R. Co., 323 U. S. 192, 206. Compare Howard v, Thompson, 72 F. Supp. 695; State ex rel. St. Louis-S. F. R. Co. v. Russell, 358 Mo. 1136, 219 S. W. 2d 340; Edwards v. Capital Airlines, 84 U. S. App. D. C. 346, 350, 176 F. 2d 755, 759 et seq. Cf. Shields v. Utah Idaho R. Co., 305 U. S. 177. SLOCUM v. DELAWARE, L. & W. R. CO. 253 239 Reed, J., dissenting. of a court, but which may be the final judge of the rights of individuals. Our duty as a court does not extend to a determination of the wisdom of putting a solution of industry problems into the hands of industry agencies so far as the Constitution will permit.23 Some may deem it desirable to weld various industries or professions into self-governing forms, completely free from judicial intervention. This desire may spring from a conviction that experience and training in highly specialized fields give the members of a group that understanding and capacity which will enable them to govern their internal affairs better than would courts dealing with the generality of human relations and only occasionally with these specialized controversies. Congress, however, has never completely so isolated an industry from the rest of the Nation. There is too much interrelation and interdependence between such groups and the rest of the population. In some instances the Congress has given great sweep to agencies in some fields. Even special courts have been created, such as the Court of Customs and Patent Appeals. When Congress has created these administrative agencies and special courts, it has carefully outlined their powers, provided stated protections for individual rights, and has furnished neutral officials. But here, although none of these protections have been provided, the Court finds an underlying purpose in Congress to abolish, without discussion, judicial jurisdiction. When an administrative body varies so markedly from the kind which experience has shown may safely be given final power over people’s rights, it should not be assumed that Congress intended the primary jurisdiction of the Board to be exclusive. A more definite expression is required. The decision of the Court places it in a dilemma 23 See Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284; Ng Fung Ho v. White, 259 U. S. 276. 254 OCTOBER TERM, 1949. Reed, J., dissenting. 339U.S. of its own creation—it must in the future build up a complex system of review, or it must say that Congress intended to leave the rights of many individuals and organizations to the unreviewable discretion of a privately selected board. By giving effect to the plain words of the statute which confer on the Board a jurisdiction only concurrent with the courts, we should avoid the necessity for judicial legislation in unexplored areas of the law. If unseemly results should follow, the legislative body would have the facilities to undertake the important and extensive task of deciding what should be the proper distribution of authority between courts and administrative bodies in connection with railroad labor relations. Courts should await specific legislative direction instead of reading into a statute a purpose to transfer jurisdiction from state courts to a federal board. ORDER OF CONDUCTORS v. SO. R. CO. 255 Opinion of the Court. ORDER OF RAILWAY CONDUCTORS OF AMERICA v. SOUTHERN RAILWAY CO. CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. No. 438. Argued February 8-9, 1950.—Decided April 10, 1950. A dispute arose between a railroad and a labor union as to the railroad’s obligation under their collective-bargaining agreement to give conductors extra pay for certain services. The railroad refused the demand of the union and commenced a declaratory judgment action in a state court. The union thereafter filed a petition for hearing and award before the Adjustment Board under the Railway Labor Act. Held: The state court was without power to interpret the terms of the agreement and adjudicate the dispute. Slocum v. Delaware, L. & W. R. Co., ante, p. 239. Pp. 255-257. 215 S. C. 280,54 S. E. 2d 816, reversed. In a declaratory judgment action brought by a railroad against a labor union, for adjudication of a dispute arising out of a collective-bargaining agreement between them, a state court interpreted the agreement and entered a declaratory judgment. The State Supreme Court affirmed. 215 S. C. 280, 54 S. E. 2d 816. This Court granted certiorari. 338 U. S. 899. Reversed and remanded, p. 257. V. C. Shuttleworth argued the cause for petitioner. With him on the brief were Harry E. Wilmarth and Frederick H. Horlbeck. W. S. Macgill argued the cause for respondent. With him on the brief were Nath B. Barnwell, Frank G. Tompkins, Henry L. Walker and Sidney S. Aiderman. Mr. Justice Black delivered the opinion of the Court. This case raises the same statutory question as Slocum v. Delaware, L. & W. R. Co., ante, p. 239. The petitioner, Order of Railway Conductors, is the only accredited bargaining representative of conductors employed by the re- 874433 O—50--21 256 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. spondent Southern Railway. A dispute arose between certain conductors and the railroad concerning the railroad’s obligation under the collective-bargaining agreement to give conductors extra pay for certain services. The claims of the conductors were referred to the union, which sought by negotiation to persuade the railroad to pay. The railroad refused, and thereafter prayed a South Carolina state court for a declaratory judgment interpreting the agreement as not requiring the claimed payments. The trial court first refused to exercise jurisdiction. Citing Order of Conductors v. Pitney, 326 U. S. 561, it held that state courts, like federal courts, should leave settlement of such disputes to the National Railroad Adjustment Board. The State Supreme Court reversed, holding that the state court did have power to interpret the bargaining agreement and adjudicate the dispute. 210 S. C. 121, 41 S. E. 2d 774. After a lengthy trial the lower court held that the collective agreement did not require the compensation sought by the conductors and entered the declaratory judgment requested. The Supreme Court affirmed. 215 S. C. 280, 54 S. E. 2d 816. For reasons set out in the Slocum case, ante, p. 239, we hold that the South Carolina state court was without power to interpret the terms of this agreement and adjudicate the dispute. We discuss this case separately because it sharply points up the conflicts that could arise from state court intervention in railroad-union disputes. After the railroad had sued in the state court, the union filed a petition for hearing and award before the Adjustment Board. The state court nevertheless proceeded to adjudicate the dispute. Sustaining the state court’s action would invite races of diligence whenever a carrier or union preferred one forum to the other. And if a carrier or a union could choose a court instead of the Board, the other party would be deprived of the privilege conferred by § 3 First (i) of the Railway Labor Act, 48 ORDER OF CONDUCTORS v. SO. R. CO. 257 255 Opinion of the Court. Stat. 1191, 45 U. S. C. § 153 First (i), which provides that after negotiations have failed “either party” may refer the dispute to the appropriate division of the Adjustment Board. The judgment of the South Carolina Supreme Court is reversed, and the cause is remanded for proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Reed is of the view that the decision below should be affirmed for the reasons set out in his dissent in Slocum n. Delaware, L. & W. R. Co., ante, p. 245. Mr. Justice Douglas took no part in the consideration or decision of this case. 258 OCTOBER TERM, 1949. Syllabus. 339 U. S. MORFORD v. UNITED STATES. ON PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 236. Decided April 10, 1950. Petitioner, who is Executive Director of the National Council of American-Soviet Friendship, Inc., was convicted in the District of Columbia of violating R. S. § 102, 2 U. S. C. § 192, by willfully refusing to produce certain documents before the Committee on Un-American Activities of the House of Representatives in compliance with a subpoena duly served upon him. On voir dire examination, counsel for petitioner was not permitted to question government employees on the jury panel with specific reference to the possible influence of Executive Order 9835, the so-called “Loyalty Order,” on their ability to render a just and impartial verdict; and four government employees were permitted to serve on the jury over his objection. Held: The conviction is reversed because of this denial of an opportunity to prove actual bias on the part of the government employees who served on the jury. P. 259. 85 U. S. App. D. C. 172,176 F. 2d 54, reversed. Petitioner, who is Executive Director of the National Council of American-Soviet Friendship, Inc., was indicted in the District of Columbia for violating R. S. § 102, 2 U. S. C. § 192, by willfully refusing to produce certain documents before the Committee on Un-American Activities of the House of Representatives in compliance with the subpoena duly served upon him. Four government employees served on the jury over his objection, and he was convicted. The Court of Appeals affirmed. 85 U. S. App. D. C. 172, 176 F. 2d 54. Certiorari granted and conviction reversed, p. 259. Abraham J. Isserman, David Rein and Joseph Forer for petitioner. MORFORD v. UNITED STATES. 259 258 Douglas, J., concurring. Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl for the United States. Briefs of amici curiae supporting petitioner were filed by William L. Standard for the Committee for a Democratic Far Eastern Policy and for the Congress of American Women; Victor Rabinowitz, Nathan Witt and Leonard B. Boudin for the American Communications Association (CIO) et al.; Leo J. Linder for the Methodist Federation for Social Action; Lester M. Levin for the National Council of the Arts, Sciences and Professions; and John J. Abt for the Progressive Party of America et al. Per Curiam. In this case the trial court did not permit counsel for petitioner to interrogate prospective government employee jurors upon voir dire examination with specific reference to the possible influence of the “Loyalty Order,” Executive Order Nd. 9835, on their ability to render a just and impartial verdict. Such questioning was permitted in Dennis v. United States, ante, p. 162; see n. 4 of the Court’s opinion, ante, pp. 170-171. We said in Dennis that “Preservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury.” Ante, pp. 171-172. Since that opportunity was denied in this case, the petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. Reversed. Mr. Justice Black and Mr. Justice Frankfurter concur in the reversal for the reasons expressed in their opinions in Dennis v. United States, ante, p. 162. Mr. Justice Douglas concurs in the reversal of the judgment. Since, however, counsel requested that all 260 OCTOBER TERM, 1949. Douglas, J., concurring. 339 U. S. government employees be excluded from the jury in these cases, he thinks the request should have been granted for the reasons stated by the dissenting Justices in Frazier v. United States, 335 U. S. 497, and in Dennis v. United States, ante, p. 162. Mr. Justice Clark took no part in the consideration or decision of this case. UNITED STATES v. WESTINGHOUSE CO. 261 Syllabus. UNITED STATES v. WESTINGHOUSE ELECTRIC & MANUFACTURING CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 26. Argued October 13-14, 1949.—Decided April 17, 1950. The United States condemned certain premises for use by the Army for a term initially ending June 30, 1943, with an option to renew for additional periods during the existing national emergency. Respondent was lessee of a portion of the premises for a term expiring October 31, 1944, and incurred expenses for the removal of its personal property. Subsequently, the Government extended its occupancy for two additional yearly periods ending June 30, 1945. Held: Although the occupancy taken by the United States was initially for a period less than the remainder of respondent’s term, respondent’s removal expenses are not relevant in determining just compensation, since respondent’s term had been exhausted by the Government’s occupancy. Pp. 262-268. (a) When there is an entire taking of a condemnee’s property, be it a leasehold or a fee, the expenses of removal or relocation are not to be included in valuing what is taken. P. 264. (b) Where the Government initially takes an occupancy for less than the outstanding term of a lease but later exercises a renewal option so as to exhaust the entire lease, this should be treated as a taking of the whole lease. Pp. 265-268. (c) Where the Government initially takes an occupancy for less than the outstanding term of a lease with an option for extension, an award based on removal costs should be delayed until it is known whether the Government’s occupancy has exhausted the tenant’s leasehold. P. 268. 170 F. 2d 752, reversed. The District Court awarded respondent compensation for the expense of removing personal property from leased premises condemned by the Government. 71 F. Supp. 1001. The Court of Appeals affirmed. 170 F. 2d 752. This Court granted certiorari. 336 U. S. 950. Reversed, p. 268. 262 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Roger P. Marquis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Vanech and Oscar H. Davis. Milton J. Donovan argued the cause and filed a brief for respondent. Mr. Justice Frankfurter delivered the opinion of the Court. On February 18, 1943, the United States filed a petition in the United States District Court for the District of Massachusetts to condemn certain land and buildings in Springfield, Massachusetts, for use by the Army for a term initially ending June 30, 1943, with a right to renew for additional yearly periods during the existing national emergency, at the election of the Secretary of War.1 On the same day the District Court authorized the United States to take immediate possession. The respondent, Westinghouse Electric and Manufacturing Company, was lessee of a portion of the condemned property, using it as a warehouse, under a lease dated January 19, 1942, for a term expiring on October 31, 1944. Respondent, in order to comply with the District Court’s order of immediate possession, incurred expenses for the removal of its personal property. Subsequently, the Secretary of War exercised his right of renewal and extended the Government’s occupancy for two additional yearly periods ending on June 30, 1945. Thus, although the 1 The petition was filed under § 201 of Title II of the Second War Powers Act of 1942, 56 Stat. 176, 177, 50 U. S. C. App. § 632. This section authorized certain officials “to acquire by condemnation, any real property, temporary use thereof, or other interest therein,” for purposes related to the war. Plainly it conferred power to condemn interests in realty normally purchased by private persons, including, of course, options to renew. UNITED STATES v. WESTINGHOUSE CO. 263 261 Opinion of the Court. occupancy taken by the United States was initially for a period less than the remainder of respondent’s term, the renewals eventually exhausted respondent’s leasehold. At the time of the initial taking as well as upon each yearly extension, sums were deposited into the District Court as estimated just compensation. It was stipulated that these sums represented the fair market value of the bare, unheated warehouse space taken, leaving open the question whether, as a matter of law, the removal costs incurred by the respondent were to be taken into account in computing just compensation for what was condemned. It was further stipulated that the removal expenses were both reasonable and necessary, and that, taking such removal costs into account, the market rental value of the premises was -$25,600 greater on a sublease given by respondent to a temporary occupier than as bare unheated warehouse space. The District Court ruled that removal expenses should be included in the measure of just compensation, and awarded to respondent the stipulated amount. 71 F. Supp. 1001. The Court of Appeals affirmed, Chief Judge Magruder dissenting. 170 F. 2d 752. The disagreement was due not to differences of independent views but to conflicting meanings drawn from the decisions of this Court in United States v. General Motors Corp., 323 U. S. 373, and United States v. Petty Motor Co., 327 U. S. 372. The need for clarification led us to bring the case here. 336 U. S. 950. The General Motors and Petty Motor cases concerned themselves with the situation in which the Government does not take the whole of a man’s interest but desires merely temporary occupancy of premises under lease. General Motors held that when such occupancy is for a period less than an outstanding term, removal costs may be considered in the award of “just compensation” to the temporarily ejected tenant—not as an independent 264 OCTOBER TERM, 1949. Opinion of the Court. 339U.S. item of damage, but as bearing on the rental value such premises would have on a voluntary sublease by a longterm tenant to a temporary occupier.2 In this holding of what is just, within the requirements of the Fifth Amendment, the Court was scrupulously careful not to depart from the settled rule against allowance for “consequential losses” in federal condemnation proceedings. 323 U. S. at 379 et seq. When there is an entire taking of a condemnee’s property, whether that property represents the interest in a leasehold or a fee, the expenses of removal or of relocation are not to be included in valuing what is taken. That rule was found inapplicable to the new situation presented by the General Motors case—inapplicable, that is, where what was to be valued was “a right of temporary occupancy of a building equipped for the condemnee’s business, filled with his commodities, and presumably to be reoccupied and used, as before, to the end of the lease term on the termination of the Government’s use.” 323 U. S. at 380. Petty Motor made clear that the taking of the whole of a tenant’s lease does not fall within the General Motors doctrine. The reason for the distinction between the two situations was made explicit in Petty Motor: “There is a fundamental difference between the taking of a part of a lease and the taking of the whole lease. That difference is that the lessee must return to the leasehold at the end of the Government’s use or at least the responsibility for the period of the lease which is not taken rests upon the lessee. This was brought out in the General Motors decision. Because of that continuing obligation in all takings of temporary occupancy of leaseholds, the 2 This holding in the General Motors case was the Court’s determination, without any congressional action, of what constituted “just compensation” under the Fifth Amendment. UNITED STATES v. WESTINGHOUSE CO. 265 261 Opinion of the Court. value of the rights of the lessees which are taken may be affected by evidence of the cost of temporary removal.” 327 U. S. at 379-80. While it is true that in both the General Motors and Petty Motor cases the Government had retained an option to vary the duration of its occupancy—in the former case it could extend, and in the latter it could shorten— the legal significance of such an option with respect to removal costs was not squarely in issue. It is now. Where the Government initially takes an occupancy for less than the outstanding term of a lease but then exercises its renewal option so as to exhaust the entire lease, shall this be treated merely as a temporary occupancy during part of an outstanding lease and thus within the General Motors doctrine, or as a taking of the whole lease and hence within Petty Motor?3 Here, as in General Motors, the Government initially took over only part of an outstanding lease. But here the Secretary of War in fact continued the Army’s occupancy of the premises beyond the expiration of Westinghouse’s lease. Judged by the event, therefore, this case was unlike General Motors in that what the Government took was the whole of the lease. It was thus like Petty Motor. The formal difference between this case and Petty Motor was that in this case the Government began with an occupancy shorter than the outstanding lease with a contingent reservation for its extension, while in Petty Motor there was a contingent reservation to shorten an occupancy that nominally exhausted the lease. To make a distinction between taking a part of a lease with notice that the period of occupancy may be 3 Problems relating to the valuation of renewal options are not before us on this record. It need hardly be said that provision for renewal does not necessitate the same rental for the renewed period as for the initial period. Whether a rental for each renewed period was initially fixed in this case is not disclosed by the stipulated facts. 266 OCTOBER TERM, 1949. Opinion of the Court. 339U.S. extended for the rest of the leasehold, and formally taking a whole leasehold with the right to occupy only a portion of it and throw up the rest, is to make the constitutional requirement for just compensation turn on a wholly barren formality. It is barren because a taking of a contingent occupancy by the Government could be cast in either form by those in charge of its condemnation proceedings without the slightest difference to the Government’s interest. The reason for condemnation for a period shorter than a tenant’s outstanding term with notice that extensions may absorb the balance of the term (i. e., the form in this case), or for condemnation formally for the whole of an unexpired leasehold with notice that the Government’s occupancy may be terminated before the outstanding term has expired (i. e., the form in Petty Motor), is precisely the same. It is a recognition of the contingencies which may determine the duration of the emergency during which the Government seeks temporary occupancy of leased premises. And so it takes a flexible term, casting the burden of the contingency upon the ousted tenant. Under either type of condemnation the United States may in fact move out before the ousted leaseholder’s term has expired, thus imposing upon him the duty to return to the premises or make some other burdensome adjustment. In that event, he is placed in precisely the same boat as was the General Motors Corporation, and the cost of removal is therefore admissible in evidence “as bearing on the market rental value of the temporary occupancy taken.” 323 U. S. at 383. Contrariwise, under either type of condemnation the Government may continue its occupancy throughout the tenant’s term. In that event, the situation is governed by Petty Motor and removal costs may not be taken into account. The final severance of a lessee’s occupancy as against a temporary interruption of an outstanding leasehold, even though not de- UNITED STATES v. WESTINGHOUSE CO. 267 261 Opinion of the Court. finitively fixed at the outset, is a difference in degree wide enough to justify a difference in result. The test of the outcome—is the Government merely a temporary occupier of an unexpired leasehold or has it absorbed the term of the lease?—has actuality behind it. Until events have made it clear, we cannot know whether the tenant will have to move back into his leased premises or make some other adjustment, and thus we cannot know whether the reason for the General Motors doctrine operates. Condemnation for indefinite periods of occupancy was a practical response to the uncertainties of the Government’s needs in wartime. Law has sufficient flexibility to accommodate itself to these uncertainties by making what is a relatively minor item await the event. To do so does not keep the litigation open longer than it has to be kept open, because the total award for the Government’s occupancy cannot be determined until its duration is known. The usual rule for ascertaining value at the time of taking is not disrespected if one item is made a function of the future because only then can it be known whether that item forms a part of what has been “taken.” The alternative is to require a forecast of the possibility that the tenant will have to move back into the premises. The factors on which such a forecast must be based are too contingent, too unique for guidance by experience, to permit rational assessment. This is a situation where the law should express “a judgment from experience as against a judgment from speculation.” Tanner v. Little, 240 U. S. 369, 386. Or, as it was put by Mr. Justice Cardozo for the Court in a relevant situation : “Experience is then available to correct uncertain prophecy. Here is a book of wisdom that courts may not neglect. We find no rule of law that sets a clasp upon its pages, and forbids us to look within.” Sinclair 268 OCTOBER TERM, 1949. Jackson, J., dissenting. 339U.S. Refining Co. v. Jenkins Petroleum Process Co., 289 U. S. 689, 698. An award based on removal costs will of course be delayed until it is known whether the Government’s occupancy has exhausted the tenant’s leasehold. But this presents no real administrative difficulties. That the essential facts here became known before the time for judicial determination hardly makes this case atypical. Even in the cases where the event is still open, the cost of moving out, insofar as it is to be reflected in just compensation, may be treated as a segregated item. Thus, its amount may be ascertained at an early stage of the judicial proceedings, but the judgment made conditional upon the outcome of the Government’s occupancy. And rental payments due from the Government need not be postponed. So long as the duration of the Government’s occupancy is undetermined, the District Court must necessarily retain the case for the periodic determination and payment of rental compensation. This is so in the absence of any problem arising out of removal costs. No unfairness or embarrassment to the displaced tenant is thus involved by leaving liability based on removal to await the event. In the case before us, it was known at the time of trial in the District Court that respondent’s term had been exhausted by the Government’s occupancy. Accordingly, the judgment is reversed insofar as it awards $25,600 to respondent. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Jackson, dissenting. Difficulties in resolving the controversy over removal costs are caused by a condemnation policy under which the Government, in taking temporary use of property, UNITED STATES v. WESTINGHOUSE CO. 269 261 Jackson, J., dissenting. also condemns an option to renew or shorten the period of use. While we have decided cases in which questions concerning options were raised, United States v. General Motors Corp., 323 U. S. 373; United States v. Petty Motor Co., 327 U. S. 372, I think that the Court has not fully faced up to the implications of the optioning policy. Valuation problems of the past have been simple contrasted to those the new policy imposes upon courts. Condemnation in the main was of title to physical properties, and the problem of just compensation was one of ascertaining the equivalent in money at the date of appropriation—a date that had already arrived. The courts were dealing with a single point of time and with facts and conditions which were at least in experience, not prophecy. In recent years, the Government embarked upon a new type of condemnation.1 It does not take title to the property and put into the pockets of the owners the current money equivalent. Instead, it keeps the owners’ capital tied to their investments and pays them only an estimated value of its future use. This requires courts to predict values over a period of time. Valuing time is the essence of much business and of most speculation. All options, futures, insurance contracts, leases, investments, deferred deliveries and commitments involve an appraisal of time. And though it takes us into the realm of pure conjecture, it may be possible, however unsatisfactorily, to fix values for rights of future occupancy if the period of the occupancy can be known. The Government, however, has adopted the policy of expropriating for a “flexible term” by condemning a right 1 See Just, Condemnation Procedure During World War II, 12 Geo. Wash. L. Rev. 286; Dolan, Present Day Court Practice in Condemnation Suits, 31 Va. L. Rev. 9. 270 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. to shorten or to extend the use from time to time as may please it. This type of condemnation denies courts even a defined time period to evaluate, and it is small wonder that the Court concludes this leaves the factors too contingent and unique “to permit rational assessment.” This raises the question whether Congress ever authorized a type of expropriation that can not be rationally compensated. The statute upon which the taking in this case rests— one of the broadest of its kind ever enacted by Congress— authorizes various officers . to acquire by condemnation, any real property, temporary use thereof, or other interest therein, together with any personal property located thereon or used therewith, that shall be deemed necessary, for military, naval, or other war purposes . . . 56 Stat. 177. Its legislative history pro- vides no explanation of the language which authorizes taking “any real property, temporary use thereof, or other interest therein,”2 nor does it offer any reason for its inclusion.3 But Congress had no apparent expectation 2E. g., cf. S. Rep. No. 989, 77th Cong., 2d Sess. 4 (1942). (The bill covers interests in real property, including easements and other rights appurtenant thereto.) Hearings before the House Committee on the Judiciary on S. 2208, 77th Cong., 2d Sess. 15 (1942). (It would enable the acquisition of leaseholds or of any other property.) 3 Title II of the Second War Powers Act, 56 Stat. 177, 50 U. S. C. App. § 632, the statute here involved, was amendatory to the Act of July 2, 1917 (40 Stat. 241), To Authorize Condemnation Proceedings of Lands for Military Purposes. As originally introduced, the 1917 Act contained authorization for only the condemnation of “any land, or right pertaining thereto.” 55 Cong. Rec. 3632 (1917). But, upon the unexplained recommendation of the then Secretary of War, the words “temporary use thereof or other interest therein” were inserted after the word “land.” See H. R. Rep. No. 83, 65th Cong., 1st Sess. (1917); 55 Cong. Rec. 3991, 4130-4131, 4263 (1917). These words were carried over by the amendatory Act without comment. See generally, Senate Committee Print, Statements in Executive Session on S. 2208, 77th Cong., 2d Sess. 6-7, 13-16; S. Rep. No. 989, UNITED STATES v. WESTINGHOUSE CO. 271 261 Jackson, J., dissenting. that it would authorize condemnations for unstated periods of time.4 The announced purpose of the legislation was to increase the number of federal officials authorized to institute condemnation proceedings, to authorize the possession and use of property prior to the completion of condemnation proceedings, and to eliminate uncertainties regarding the taking in the same proceeding of personalty located upon or used along with the real property being condemned.5 And though authority for condemning less than a fee had existed theretofore, the whole question of taking temporary uses was in some doubt.6 It is plain that Congress contemplated only such takings as were necessary. We should give this a broad construction; we may even go so far as to say that the necessity for a taking is a political or policy question not usually subject to judicial review. But the statute implies some foundation in necessity and nothing can be 77th Cong., 2d Sess. 4 (1942); Hearings before the House Committee on the Judiciary on S. 2208, 77th Cong., 2d Sess. 10, 15-23 (1942); H. R. Rep. No. 1765, 77th Cong., 2d Sess. 6 (1942); 88 Cong. Rec. 1639-1641,1644-1645,1647-1650,1653-1656. 4 See, e. g., testimony of Attorney General Biddle in Hearings before the House Committee on the Judiciary on S. 2208, n. 2, supra, at 19: "Mr. Hancock of New York. Is it possible under a condemnation act to acquire temporary use ? “Mr. Biddle. Yes, sir. “Mr. Hancock of New York. In that case the title would revert back to the original owner after the temporary use. “Mr. Biddle. Yes. “Mr. Hancock of New York. But you can acquire property by a lease? “Mr. Biddle. Yes. You can condemn it for a certain length of time.” (Emphasis added.) See also materials cited in nn. 2, 3, supra, and 5, 6, infra. 5E. g., Committee Print, n. 3, supra, at 6; S. Rep. No. 989, n. 3, supra, at 4; Hearings, n. 3, supra, at 10, 15-23; H. R. Rep. No. 1765, n. 3, supra, at 6. 6 See 88 Cong. Rec. 1644-45, 1647-48, 1653. See also n. 4, supra. 874433 0—50------------22 272 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. less necessary than condemnation of an option to take property or its possession. The United States needs no such option, for its inherent condemnation power, by its very nature, is a perpetual option to take, at any time, any property it needs. The effect of condemning an option to take at some future time is to increase the element of uncertainty and speculation in the liquidation of an award. Furthermore, such purpose is wholly one-sided. If, let us say, the price level should fall, the Government, even though it wants the property, is not bound to keep it on the option terms. That is the essence of option. But it may abandon the option and take the property under a new declaration, thereby getting a new valuation in the light of the lower price level. If, however, prices go up, the Government can use its condemned option to keep the owner from enjoying the rising value of his property as other owners may do. The taking of a term with an option to lengthen is therefore no more than a hedge against inflation. This same one-sidedness inheres in the policy of taking a term with an option to shorten. Specific authority exists for government officials to dispose of surplus properties taken for war purposes;7 indeed such authority is contained in the very statute under consideration.8 Various officials are given power to “lease, sell, or otherwise dispose of” any properties taken by condemnation which become surplus or unnecessary. And so, if the Government condemned for a term with an option to shorten, and then determined that the property so taken ivas no longer necessary, it could sell, lease, or otherwise dispose of the remainder of the term at the then current market price. This it would certainly do if the price level had risen. But if prices had fallen, it could avoid the loss of trading 7 E. g., 54 Stat. 712, 50 U. S. C. App. § 1171 (b). 8 54 Stat. 713; 56 Stat. 177. And see 88 Cong. Rec. 1648. UNITED STATES v. WESTINGHOUSE CO. 273 261 Jackson, J., dissenting. on the open market by exercising the option to shorten, cut down the term and put on the owner the burden of salvaging its surplus property. The taking of a term with an option to shorten is therefore no more than a hedge against deflation. It seems unlikely that Congress intended to authorize such speculative transactions as result from an option to increase or decrease the time period. If we change the terms of the taking so that the time is known but the space is indefinite, the hazard to the Government becomes quickly apparent; if we had a declaration taking such part of a property as from time to time the Government would want, we would have to compensate on the basis that the taking was of the maximum within its terms. Such indefinite takings invite excessive awards, for the speculation involved is involuntary with the claimant and its outcome controlled by, and hedged in the interest of, the Government. Cf. United States v. Certain Parcels of Land, etc., 55 F. Supp. 257, 265. The Court gives up the effort to value what is taken and determines to postpone determination of compensation to await the event. This expedient recognizes, but does not fairly solve, the problem engendered by this type of condemnation. If there is a present taking, the property owner is entitled to pocket his compensation. It seems hardly fair that the owner, dispossessed for a time which he can not learn, must wait indefinitely to be paid anything except bare rental, regardless of the other expense he may be put to. How can the owner know whether to sell his removable property, store it, or perhaps to liquidate his business, or seek a new location, without knowing the length of time for which the Government is taking his premises? The property owner cannot await the happening of the event to make these essential business judgments. To let the Government take an option and pay for it only if it decides to exercise it, is to give 274 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. the Government a “Heads I win; Tails you lose” position in a gamble the property owner has not willingly joined.9 I think we should hold the effort to condemn options to be a nullity for want of congressional authorization and determine claims for just compensation on the basis of the fixed term specified in the declaration. If the Government, upon expiration of the fixed term, desires 9 It is unnecessary, if Congress has not authorized such condemnations, to rely on any constitutional doubts concerning them. But we should note that a local scheme not too unlike the Government’s condemnation policies has been successfully challenged on constitutional grounds in at least one jurisdiction. The General City Law of New York provides that city planning boards may file master plans providing for the development of the city, and “for the purpose of preserving the integrity of such official map” no permits, as a general matter, will issue for building in the bed of any street or highway laid out on the map; and this, despite the fact that the map may at all times be modified and the proposed construction may never be carried out. N. Y. General City Law (McKinney, Consol. Laws of N. Y., Supp. 1949) §§ 26-39. This law empowers a municipality to restrict the use of private property which it may at some future time decide to take. See Matter of the City of New York, 196 N. Y. 255, 259, 89 N. E. 814, 815-816. It grants, in effect, a form of restrictive option. And although it was drafted with an eye to avoiding the pitfalls which brought invalidation upon an earlier similar scheme, see Forster n. Scott, 136 N. Y. 577, 32 N. E. 976, it has already been subjected to a preliminary constitutional skirmish. See Platt v. City of New York, 196 Mise. 360, 92 N. Y. S. 2d 138, rev’d on other grounds, 276 App. Div. 873, 93 N. Y. S. 2d 738. And other courts have indicated that, where a right is so vague that a judicial determination cannot be made of just compensation for its taking, the right to expropriate fails, see Albright v. Sussex County Lake & Park Comm’n, 71 N. J. L. 303, 307-308, 57 A. 398, 400-401, and that certain personal rights are not subject to condemnation. Hamilton, Glendale & Cincinnati Traction Co. v. Parish, 67 Ohio St. 181, 192-193, 65 N. E. 1011, 1014. These cases do not govern us, but they indicate that we are on the very fringes of unconstitutionality and might well indulge in an interpretation of the statute which will keep us clearly out of it. UNITED STATES v. WESTINGHOUSE CO. 275 261 Jackson, J., dissenting. to continue in possession, it may file a new declaration of taking and have the value of that term fixed in the light of conditions that then prevail. If it abandons the property before the fixed term expires, it has surplus property on its hands to dispose of as it may choose. These are not, of course, very satisfactory results, but they would come nearer obeying the constitutional mandate of “just compensation” than the delayed decision course adopted by the Court. 276 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. SOUTH ET AL. v. PETERS, CHAIRMAN OF THE GEORGIA STATE DEMOCRATIC EXECUTIVE COMMITTEE, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA. No. 724. Decided April 17, 1950. 1. The Federal District Court properly dismissed the complaint herein challenging the validity of Georgia’s county unit election system under the Fourteenth and Seventeenth Amendments. Pp. 276-277. 2. Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions. P. 277. 89 F. Supp. 672, affirmed. The District Court dismissed a suit to restrain adherence to the county unit system prescribed by Ga. Code Ann. §§ 34-3212 et seq., in the forthcoming Democratic Party primary for United States Senator, Governor and other state offices. 89 F. Supp. 672. On appeal to this Court, affirmed, p. 277. Hamilton Douglas, Jr. for appellants. Eugene Cook, Attorney General of Georgia, M. H. Blackshear, Assistant Attorney General, M. F. Goldstein and B. D. Murphy for appellees. Per Curiam. The Georgia statute which appellants attack as violative of the Fourteenth and Seventeenth Amendments provides that county unit votes shall determine the outcome of a primary election.1 Each county is allotted a 1 Ga. Code Ann. §§34-3212 et seq. (1936). Although this particular statute was enacted in 1917, the county unit has been basic in the state electoral scheme since Georgia’s first constitution in 1777. SOUTH v. PETERS. 277 276 Douglas, J., dissenting. number of unit votes, ranging from six for the eight most populous counties, to two for most of the counties. The candidate who receives the highest popular vote in the county is awarded the appropriate number of unit votes. Appellants, residents of the most populous county in the State, contend that their votes and those of all other voters in that county have on the average but one-tenth the weight of those in the other counties. Urging that this amounts to an unconstitutional discrimination against them, appellants brought this suit to restrain adherence to the statute in the forthcoming Democratic Party primary for United States Senator, Governor and other state offices. The court below dismissed appellants’ petition. 89 F. Supp. 672. We affirm. Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions. See MacDougall v. Green, 335 U. S. 281 (1948); Colegrove v. Green, 328 U. S. 549 (1946); Wood v. Broom, 287 U. S. 1, 8 (1932); cf. Johnson v. Stevenson, 170 F. 2d 108 (C. A. 5th Cir., 1948). Affirmed. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. I suppose that if a State reduced the vote of Negroes, Catholics, or Jews so that each got only one-ten th of a vote, we would strike the law down. The right to vote in a primary was held in Nixon v. Herndon, 273 U. S. 536, to be covered by the Equal Protection Clause of the Fourteenth Amendment. And where, as in Georgia, a party primary election is an integral part of the state election machinery, the right to vote in it is protected by the Fifteenth Amendment. Smith n. Allwright, 321 U. S. 649. And see United States v. Classic, 313 U. S. 278 OCTOBER TERM, 1949. Douglas, J., dissenting. 339 U. S. 299. Under both Amendments discriminations based on race, creed or color fall beyond the pale. Yet there is evidence in this case showing that Georgia’s County Unit System of consolidating votes in primary elections makes an equally invidious discrimination. Under this primary law the nomination does not go to the candidate who gets the majority or plurality of votes. Votes are counted county by county. The winner in each county gets a designated number of votes—six in the most populous counties, four in the next most populous, two in each of the rest. Plaintiffs are registered voters in Georgia’s most populous county—Fulton County. They complain that their votes will be counted so as drastically to reduce their voting strength. They show that a vote in one county will be worth over 120 times each of their votes. They show that in 45 counties a vote will be given twenty times the weight of each of theirs. They show that on a state-wide average each vote outside Fulton County will have over 11 times the weight of each vote of the plaintiffs. Population figures show that there is a heavy Negro population in the large cities. There is testimony in the record that only in those areas have Negroes been able to vote in important numbers. Yet the County Unit System heavily disenfranchises that urban Negro population. The County Unit System has indeed been called the “last loophole” around our decisions holding that there must be no discrimination because of race in primary as well as in general elections. The racial angle of the case only emphasizes the bite of the decision which sustains the County Unit System of voting. The discrimination against citizens in the more populous counties of Georgia is plain. Because they are city folks their voting power is only an eleventh or a hundred and twentieth of the voting power of other SOUTH v. PETERS. 279 276 Douglas, J., dissenting. citizens. I can see no way to save that classification under the Equal Protection Clause. The creation by law of favored groups of citizens and the grant to them of preferred political rights is the worst of all discriminations under a democratic system of government. The County Unit System has other constitutional infirmities. Article I, § 2 of the Constitution provides that members of the House of Representatives shall be “chosen” by the people. And the Seventeenth Amendment provides that Senators shall be “elected by the people.” These constitutional rights extend to the primary where that election is an integral part of the procedure of choosing Representatives or Senators, or where in fact the primary effectively controls the choice. United States v. Classic, supra. In Georgia’s primary to be held on June 28, 1950, a United States Senator will be nominated. Certainly in a State like Georgia, where the Democratic nomination is equivalent to election, it would be a travesty to say that the true election in the constitutional sense comes later. There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted. United States v. Classic, supra; Ex parte Yarbrough, 110 U. S. 651. It also includes the right to have the vote counted at full value without dilution or discount. United States v. Saylor, 322 U. S. 385. That federally protected right suffers substantial dilution in this case. The favored group has full voting strength. The groups not in favor have their votes discounted. In Colegrove v. Green, 328 U. S. 549, we had before us a case involving the division of Illinois into congressional districts in such a way that gross inequalities in voting resulted. Citizens of heavily populated districts sued to enjoin state officials from holding an election under the 280 OCTOBER TERM, 1949. Douglas, J., dissenting. 339 U. S. Illinois law governing congressional districts. There was an argument, persuasive to three members of the Court, that the issue presented was of a political nature and not justiciable, that it was an effort to get the federal courts “to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation.” 328 U. S. 552. And in MacDougall v. Green, 335 U. S. 281, the Court on a closely divided vote refused to interfere with the provisions of the Illinois law governing the formation of a new political party. There is no such force in the argument that the question in the present case is political and not justiciable. Plaintiffs sue as individuals to enforce rights political in origin and relating to political action. But as Mr. Justice Holmes said of the same argument in Nixon n. Herndon, supra, p. 540, it is “little more than a play upon words” to call it a political suit and therefore a nonjusticiable one. The rights they seek to enforce are personal and individual. Moreover, no decree which we need enter would collide either with Congress or with the election. Georgia need not be remapped politically. The Georgia legislature need not take new action after our decree. There is no necessity that we supervise an election. There need be no change or alteration in the place of the election, its time, the ballots that are used, or the regulations that govern its conduct. The wrong done by the County Unit System takes place not only after the ballots are in the box but also after they have been counted. The impact of the decree would be on the tallying of votes and the determination of what names go on the general election ballot. The interference with the political processes of the state is no greater here than it is when ballot boxes are stuffed or other tampering with the votes occurs and we take action to correct the practice. And related considerations, which led Mr. Justice Rutledge to conclude in Colegrove v. Green that the Court SOUTH v. PETERS. 281 276 Douglas, J., dissenting. should not exercise its equity powers in that election, are lacking here. There is time to act, since the state primary is called for June 28, 1950. Relief can be certain. No conflict with any policy of Congress is possible. There is no overhauling of the State’s electoral process. The case is of greater importance than the rights of plaintiffs in this next election may appear to be. We have here a system of discrimination in primary voting that undermines the advances made by the Nixon, Classic, and Allwright cases. Those decisions are defeated by a device as deeply rooted in discrimination as the practice which keeps a man from the voting booth because of his race, creed or color, or which fails to count his vote after it has been cast. It is said that the dilution of plaintiffs’ votes in the present case is justified because equality of voting is unnecessary in the nomination of United States Senators. Thus it is pointed out that in some states nomination is by conventions. But that proves too much. If that premise is allowed, then the whole ground is cut from under our primary cases since Nixon n. Herndon, which have insisted that where there is voting there be equality. Indeed the only tenable premise under the Fourteenth, Fifteenth and Seventeenth Amendments is that where nominations are made in primary elections, there shall be no inequality in voting power by reason of race, creed, color or other invidious discrimination. 282 OCTOBER TERM, 1949. Opinion of Reed, J. 339 U. S. CASSELL v. TEXAS. CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 46. Argued November 10, 1949.—Decided April 24, 1950. Petitioner, a Negro, was convicted in a Texas state court for murder, notwithstanding his motion to quash the indictment on the ground that his rights under the Fourteenth Amendment had been violated by the exclusion of Negroes from the grand jury. The jury commissioners testified that no Negroes were selected for the grand jury because they chose jurymen only from people with whom they were personally acquainted and they knew no Negroes who were eligible and available for grand-jury service. It also appeared from the record that, from 1942, when Hill v. Texas, 316 U. S. 400, was decided, until petitioner’s indictment in 1947, there had been 21 grand juries on none of which was there more than one Negro, that of the 252 members 17 (or 6.7%) were Negroes, and that about 15.5% of the population of the county and 6.5% of the eligible voters were Negroes. Held: The conviction is reversed. Pp. 282-298. 154 Tex. Cr. R. —, 216 S. W. 2d 813, reversed. The Texas Court of Criminal Appeals affirmed petitioner’s conviction for murder. 154 Tex. Cr. R.-------, 216 S. W. 2d 813. This Court granted certiorari. 336 U. 8. 943. Reversed, p. 290. Chris Dixie argued the cause for petitioner. With him on the brief were L. N. D. Wells, Jr. and W. J. Durham. Joe R. Greenhill, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Price Daniel, Attorney General, and E. Jacobson, Assistant Attorney General. Mr. Justice Reed announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Black and Mr. Justice Clark concurred. Review was sought in this case to determine whether there had been a violation by Texas of petitioner’s federal constitutional right to a fair and impartial grand jury. CASSELL v. TEXAS. 283 282 Opinion of Reed, J. The federal question was raised by a motion to quash the indictment on the ground that petitioner, a Negro, suffered unconstitutional discrimination through the selection of white men only for the grand jury that indicted him. After full hearing, the trial court denied the motion, and this action was sustained by the Court of Criminal Appeals of Texas in affirming petitioner’s conviction. Cassell v. State, 154 Tex. Cr. R.-----, 216 S. W. 2d 813. The Court of Criminal Appeals accepted the federal rule that a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded. Cassell v. State, supra, 154 Tex. Cr. R. at-----, 216 S. W. 2d at 819; Neal v. Delaware, 103 U. S. 370, 394; Smith v. Texas, 311 U. S. 128, 130; Hill v. Texas, 316 U. S. 400, 404; Akins v. Texas, 325 U. S. 398, 403. It was from an examination of facts that the court deduced its conclusion that racial discrimination had not been practiced. Since the result reached may deny a federal right, we may reexamine the facts to determine whether petitioner has sustained by proof his allegation of discrimination.1 Certiorari was granted (336 U. S. 943) to consider petitioner’s claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes. Acting under the Texas statutes,2 the Dallas County grand-jury commissioners chose a list of sixteen males3 1 Norris v. Alabama, 294 U. S. 587, 590; Pierre v. Louisiana, 306 U. S. 354, 358; Smith v. Texas, 311 U. S. 128, 130; Fay n. New York, 332 U. S. 261, 272. 2 Texas Code of Criminal Procedure (Vernon, 1948), Arts. 333-340. 3 Id., Art. 338. Under the Texas Constitution and statutes, women may not serve on Texas juries. Texas Constitution, Art. 5, § 13; Harper v. State, 90 Tex. Cr. R. 252, 234 S. W. 909. 284 OCTOBER TERM, 1949. Opinion of Reed, J. 339 U. S. for this September 1947 grand jury from citizens eligible under the statute.4 The judge chose twelve of these for the panel.5 No challenge is now made to the fairness of this statutory system. We have approved it.8 Petitioner’s attack is upon the way the statutory method of grand-jury selection has been administered by the jury commissioners.7 One charge is that discrimination must have been practiced because the Negro proportion of grand jurors is less than the Negro proportion of the county’s population. Under the 1940 census the total population of Dallas County was 398,564, of whom 61,605 were Negroes.8 This is about 15.5%. In 4 Texas Code of Criminal Procedure (Vernon, 1948): “Art. 339. ... No person shall be selected or serve as a grand juror who does not possess the following qualifications: “1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror. “2. He must be a freeholder within the State, or a householder within the county. “3. He must be of sound mind and good moral character. “4. He must be able to read and write. “5. He must not have been convicted of any felony. “6. He must not be under indictment or other legal accusation for theft or of any felony.” 5 Id., Art. 357. 6 Smith v. Texas, supra, p. 130. See Zimmerman v. State, 59 A. 2d 675, 676-77, affirmed under title Zimmerman v. Maryland, 336 U. S. 901; Fay n. New York, 332 U. S. 261, 266, 272; Morse, A Survey of the Grand Jury System, Part II, 10 Ore. L. Rev. 217, 226-239. 7 There is no suggestion in the case that any judge of the county trial courts discriminated against Negroes in his selection from the lists of the members for the grand juries. 8 Sixteenth Census of the United States: 1940, Population, Volume II, Part 6, p. 795. CASSELL v. TEXAS. 285 282 Opinion of Reed, J. weighing this matter of custom, we limit ourselves, as do the parties, to the period between June 1, 1942, when Hill v. Texas, supra, was decided, and November 1947, when petitioner was indicted. There were 21 grand juries in this period; of the 252 members of the panels,9 17, or 6.7%, were Negroes. But this apparent discrepancy may be explained by the fact that Texas grand jurors must possess certain statutory qualifications.10 Grand jurors must ordinarily be eligible to vote; eligibility requires payment of a poll tax;11 and the validity of the poll-tax requirement is not challenged. The record shows 5,500 current Negro poll-tax payers in Dallas County in 1947, and nothing indicates that this number varied substantially from year to year.12 The corresponding figure for all poll-tax payers, male and female, is 83,667.13 These figures would indicate that as a proportional matter 6.5% of grand jurors would be Negroes, a percentage approximating the ratio of Negroes actually sitting on the 21 grand jury panels.14 Without 9 We use the word “panel” to mean the grand jury which is the final result of the statutory procedure. See Texas Code of Criminal Procedure, Art. 360. The record does not indicate the number of Negroes who were placed on the lists of sixteen, but did not serve. All that appears in this connection is that no Negroes were placed on the list in this case. 10 See note 4, supra. 11 Texas Constitution, Art. 6, §2; Vernon’s Texas Statutes, 1948, Art. 2955; Conklin n. State, 144 Tex. Cr. R. 210, 162 S. W. 2d 416. 12 There is some obscurity in the record as to whether the above figure of Negro poll-tax payers refers to males only or to men and women. 154 Tex. Cr. R.-------,----,---, 216 S. W. 2d 813, 816, 819. The testimony and the statistics in the briefs cause us to conclude that the figure refers to all eligible Negro voters. 13 Texas Almanac, 1947-1948, p. 421. 14 In our computations we have used statistics which include both men and women, because in many cases statistical breakdowns in terms of sex are not available. Although only men may serve on the grand juries, the use of totals including both sexes should make for only minor variations in the percentages. 286 OCTOBER TERM, 1949. Opinion of Reed, J. 339 U. S. more it cannot be said that Negroes had been left off grand-jury panels to such a degree as to establish a prima facie case of discrimination.15 A different question is presented by petitioner’s next charge that subsequent to the Hill case the Dallas County grand-jury commissioners for 21 consecutive lists had consistently limited Negroes selected for grand-jury service to not more than one on each grand jury. The contention is that the Akins case has been interpreted in Dallas County to allow a limitation of the number of Negroes on each grand jury, provided the limitation is approximately proportional to the number of Negroes eligible for grand-jury service. Since the Hill case the judges of the trial court have been careful to instruct their jury commissioners that discrimination on grounds of race or color is forbidden.16 The judge did so here.17 If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race. We have recently written why proportional representation of races on a jury is not a constitutional requisite.18 Succinctly stated, our reason was that the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impos 13 Compare Norris n. Alabama, 294 U. S. 587, 591; Pierre v. Lou- isiana, 306 U. S. 354, 361; Smith n. Texas, 311 U. S. 128, 129; Hill v. Texas, 316 U. S. 400,401-403. 16 Akins v. Texas, 325 U. S. 398, 404. 17 Cassell n. State, 154 Tex. Cr. R.-, 216 S. W. 2d 813. 18 Akins v. Texas, supra, 403. CASSELL v. TEXAS. 287 282 Opinion of Reed, J. sible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color,19 proportional limitation is not permissible. That conclusion is compelled by the United States Code, Title 18, § 243,20 based on § 4 of the Civil Rights Act of 1875. While the language of the section directs attention to the right to serve as a juror, its command has long been recognized also to assure rights to an accused. Prohibiting racial disqualification of Negroes for jury service, this congressional enactment under the Fourteenth Amendment, § 5,21 has been consistently sustained and its violation held to deny a proper trial to a Negro accused.22 Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race. Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people 19 Neal v. Delaware, 103 U. S. 370, 394; Akins v. Texas, supra, 404. 20 “No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.” 21 “Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 22 See Neal v. Delaware, supra, 385, 386; Hill v. Texas, supra, 404; Fay v. New York, supra, 284. 874433 O-50-----23 288 OCTOBER TERM, 1949. Opinion of Reed, J. 339 U. S. with whom they were personally acquainted.23 It may be assumed that in ordinary activities in Dallas County, acquaintanceship between the races is not on a sufficiently familiar basis to give citizens eligible for appointment as jury commissioners an opportunity to know the qualifications for grand-jury service of many members of another race. An individual’s qualifications for grand-jury 23 One commissioner said: “I was not personally acquainted with any negro citizen of Dallas County that I thought was qualified to sit on the Grand Jury, at that time. I did not know a one personally that I would recommend, myself, at that time. “ . . . The reason that I did not submit the name of a negro in my 6 names that I submitted was because I did not know any negro citizen that I felt was qualified with reference to education and business ability to serve on this Grand Jury.” Another said: “We did not select a negro when I served as a Commissioner; we did disregard color, race or creed; I did not know plenty of negroes that I said would be qualified. I know a lot of negroes that are qualified lawyers, doctors, Superintendents of Schools and that sort of thing but the particular thing is that their occupation precludes their serving. You could not ask a doctor or lawyer to serve 3 months of their time, either white or colored; that limited us as to the number that we could select. I knew a lot of white and colored people that were qualified. “I did not select a negro on this Grand Jury Panel but I tried. This commissioner had sought a Negro High School Principal for the list. The third said: “The reason a negro was not selected was not because we discriminated; I only appointed those that I personally knew to be qualified. “If the name of any qualified negro citizen — been submitted at that time, who had given his permission and said that he had time to serve, I certainly would have submitted his name along with the other 15 names, if it was somebody that would have been acceptable to me.” CASSELL v. TEXAS. 289 282 Opinion of Reed, J. service, however, are not hard to ascertain,24 and with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory requirements for jury service.25 When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color.26 They did not do so here, and the result has been racial discrimination. We repeat the recent statement of Chief Justice Stone in Hill v. Texas, 316 U. S. 400, 404: “Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.” 24 See Texas Code of Criminal Procedure, Arts. 339, 355. In large centers methods of selection other than personal acquaintanceship have been found convenient. Fay v. New York, 332 U. S. 261. 25 Pierre v. Louisiana, 306 U. S. 354, 360. 26 Smith v. Texas, supra, 131-132. There was a further discussion of the duty of jury commissioners to familiarize themselves with jury eligibles in Hill v. State, 144 Tex. Cr. R. 415, 418, 157 S. W. 2d 369, 371. The commissioners’ lack of acquaintance with available Negroes was not deemed sufficient by the state court to justify reversal. We disagreed and reversed. 316 U. S. 400. 290 OCTOBER TERM, 1949. Frankfurter, J., concurring. 339 U. S. The existence of the kind of discrimination described in the Hill case does not depend upon systematic exclusion continuing over a long period and practiced by a succession of jury commissioners. Since the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner, it is enough to have direct evidence based on the statements of the jury commissioners in the very case. Discrimination may be proved in other ways than by evidence of long-continued unexplained absence of Negroes from many panels. The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of petitioner’s constitutional rights. The judgment of the Court of Criminal Appeals of Texas is Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Frankfurter, whom Mr. Justice Burton and Mr. Justice Minton join, concurring in the judgment. It has been settled law since 1880 that the Civil War Amendments barred the States from discriminating because of race in the selection of juries, whether grand or petty. As a result, a conviction cannot stand which is based on an indictment found by a grand jury from which Negroes were kept because of discrimination. Neal n. Delaware, 103 U. S. 370; Pierre n. Louisiana, 306 U. S. 354. We ought not to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice. But discrimination in this CASSELL v. TEXAS. 291 282 Frankfurter, J., concurring. context means purposeful, systematic non-inclusion because of color. Hill v. Texas, 316 U. S. 400. It does not mean an absence of proportional representation of the various racial components of the relevant political unit from which a grand jury is drawn or an isolated instance of disparity among such components. Akins v. Texas, 325 U. S. 398, 403; Fay v. New York, 332 U. S. 261, 284. Assuming that the grand-jury pool fairly enough reflects the racial composition of the community, there is no basis for a claim of constitutional discrimination if without design it comes to pass that a particular grand jury has no representation of a particular race. The Civil War Amendments did not deprive the States of their power to define qualifications for grand-jury service relevant to the functions of a grand jury, nor did they turn matters that are inherently incommensurable into mere matters of arithmetic. The Constitution has not withdrawn the administration of criminal justice, of which the jury system is a part, from the States. It does command that no State purposefully make jury service turn on color. A claim that the constitutional prohibition of discrimination was disregarded calls for ascertainment of two kinds of issues which ought not to be confused by being compendiously called “facts.” The demonstrable, outward events by which a grand jury came into being raise issues quite different from the fair inferences to be drawn from what took place in determining the constitutional question: was there a purposeful non-inclusion of Negroes because of race or a merely symbolic representation, not the operation of an honest exercise of relevant judgment or the uncontrolled caprices of chance? This Court does not sit as a jury to weigh conflicting evidence on underlying details, as for instance what steps were taken to make up the jury list, why one person was rejected and another taken, whether names were 292 OCTOBER TERM, 1949. Frankfurter, J., concurring. 339 U. S. picked blindly or chosen by judgment. This is not the place for disputation about what really happened. On that we accept the findings of the State court. But it is for this Court to define the constitutional standards by which those findings are to be judged. Thereby the duty of securing observance of these standards may fall upon this Court. The meaning of uncontrovertible facts in relation to the ultimate issue of discrimination is precisely the constitutional issue on which this Court must pass. See Watts v. Indiana, 338 U. S. 49, 50-51. Of course even as to this, as always when a State court judgment is claimed to be in disregard of the Constitution, appropriate respect should be given to the judgment of the State court. And so we are brought to this case. If the record here showed no more than that the grandjury commissioners had considered the Negroes with whom they were acquainted—just as they considered white persons whom they knew—and had found them to be either unqualified for grand-jury service or qualified but unavailable, and did so not designedly to exclude Negroes, the State court’s validation of the local procedure would have to prevail. We ought not to go behind such a conscientious process, however rough and ready the procedure of selection by jury commissioners. To find in such honest even if pragmatic selection of grand jurors the operation of unconstitutional standards would turn this Court into an agency for supervising the criminal procedure of the forty-eight States. Such an assumption of authority by this Court would jeopardize the practical functioning of grand juries throughout the country in view of the great variety of minority groups that compose our society. A different situation would be presented by an unquestioned showing that jury commissioners had such a limited personal knowledge of potentially qualified Negro jurors that their purposeful limitation of choice to the CASSELL v. TEXAS. 293 282 Frankfurter, J., concurring. negligibly few Negroes known to them would inevitably imply designed exclusion of eligible Negroes. The record here affords no basis whatever for such a finding. It indicates the contrary. The record does disclose stark facts requiring reversal on a very different basis. If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man’s purpose. The purpose may not be of evil intent or in conscious disregard of what is conceived to be a binding duty. Prohibited conduct may result from misconception of what duty requires. Such misconception I believe to be the real situation on the record before us. The governing facts are briefly stated. In Hill v. Texas, supra, this Court found discrimination in the selection of grand jurors in Dallas County, Texas, by virtue of the fact that, despite a large number of Negroes qualified for grand-jury service, none had been drawn. In the course of the five and a half years between that decision and the time of the drawing of the grand jury which found the indictment now challenged, there were twenty-one grand-jury panels.1 On each of these twenty-one consecutive panels there was never more than one Negro. This selection was made from lists which were not the result of a drawing of lots but the personal choice of the grand-jury commissioners. The available evidence clearly indicates that no more than one Negro was chosen by the commissioners for each of the twenty-one lists. Only one Negro was placed on the list—he did not serve on the 11 use the term “panel,” as does Mr. Justice Reed in his opinion, to mean the grand jury of twelve selected from the list of sixteen persons tendered to the judge by the grand-jury commissioners. 294 OCTOBER TERM, 1949. Frankfurter, J., concurring. 339 U. S. panel—for the second grand jury in Dallas County after the decision in Hill v. Texas. Again, as to the grand jury which figured in Akins v. Texas, supra, only one Negro was placed on the list, and he served as a grand juror. 325 U. S. at 405. And in Weems v. State, 148 Tex. Crim. 154, 157, 185 S. W. 2d 431, 433, it was stipulated that only one Negro, who did not serve on the panel, was on the list. In the present case it is conceded that no Negro was placed on the list. The State makes no contrary claim as to any of the other grand-jury lists though the facts regarding them are peculiarly within the State’s knowledge. In view of this background, the assumption that more than one Negro was placed on the lists is inconceivable. To assume that the commissioners did tender to the judges lists containing more than one Negro would lead inescapably to the conclusion that the judges systematically discriminated against Negroes. This is so because it just does not happen that from lists of sixteen it is always Negroes (barring one) that judges unpurposefully reject. I cannot attribute such discrimination to the trial judges of Dallas County. I can decline to attribute such discrimination to these judges only by concluding that the judges were never given the opportunity to select more than one Negro. The grand-jury commissioners here received instructions from the judge not to “discriminate,” and I have no doubt that they tried conscientiously to abide by them. The difficulty lies in what they conceived to be the standard for determining discrimination, as revealed by their action. The number of Negroes both qualified and available for jury service in Dallas County precluded such uniform presence of never more than one Negro on any other basis of good faith than that the commissioners were guided by the belief that one Negro on the grand jury satisfied the prohibition against discrimination in CASSELL v. TEXAS. 295 282 Frankfurter, J., concurring. Hill v. Texas. That this was their view is compelled by their testimony at the hearing on the motion to quash the indictment.2 This is of course a misconception. The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. But neither is it satisfied by Negro representation arbitrarily limited to one. It is not a question of presence on a grand jury nor absence from it. The basis of selection cannot consciously take color into account. Such is the command of the Constitution. Once that restriction upon the State’s freedom in devising and administering its jury system is observed, the States are masters in their own household. If it is observed, they cannot be charged with discrimination because of color, no matter what the composition of a grand jury may turn out to be.. On this record I cannot escape the conclusion that the judgment below is not based on an allowable finding of 2 The following is a fair compilation of the testimony of the three grand-jury commissioners on this point: . .it was discussed in the Jury Room [among] we Commissioners that an effort had been made to secure a negro for the Grand Jury . . . .” “The reason that a negro was not put on this Grand Jury Panel was not because I had not made an effort to secure one . . . “I did not select a negro on this Grand Jury Panel but I tried.” “As far as I know, there was not a negro on the October, 1947, Term of Grand Jury; I have never seen them in a body. When the information came to me I tried to contact a negro . . . .” “The reason a negro was not selected was not because we discriminated . . . .” “If the name of any qualified negro citizen [had] been submitted at that time, who had given his permission and said that he had time to serve, I certainly would have submitted his name along with the other 15 names, if it was somebody that would have been acceptable to me.” 296 OCTOBER TERM, 1949. Clark, J., concurring. 339 U. S. facts behind which this Court cannot go. It derives from the ultimate constitutional significance of undisputed facts. These bear no other rational meaning than purposeful discrimination. It does not neutralize the discrimination that it may well have been due to a misconception by the grand-jury commissioners of the requirements of this Court’s decisions. This compels reversal of the judgment. Mr. Justice Clark, concurring. For the reasons stated by Mr. Justice Jackson, it seems to me quite doubtful as an original issue whether a conviction should be reversed because of purposeful exclusion of the members of a race from the grand jury which returned the indictment. However, I think we must adhere to the settled course of decision by this Court with respect to such exclusion. I am unable to conclude that from the date of the decision in Hill v. Texas, 316 U. S. 400 (1942) to the date of the trial of this case there has been purposeful systematic limitation of the number of Negroes on grand juries in Dallas County. The only evidence relied upon to establish such limitation is with regard to the composition of the twenty-one grand juries, including the jury returning the indictment of petitioner, which were impaneled during this period. But each of these grand juries of twelve persons was selected by a judge from a list of sixteen persons prepared by commissioners. The record shows only those Negroes who have actually served on the grand juries and not those who were on the commissioners’ lists. We cannot conclude that there has been uniformity as to race in the selections of commissioners when we do not know how many Negroes have been on their lists. Even if judicial notice is taken of the racial composition of three lists during the period in question, which are reported in Akins v. Texas, 325 CASSELL v. TEXAS. 297 282 Clark, J., concurring. U. S. 398, 405 (1945) and in Weems v. State, 148 Tex. Cr. R. 154, 157, 185 S. W. 2d 431, 433 (1945), there remain sixty-eight persons on the lists whose race is not ascertainable from the record or from any concession of counsel. Nor do I think that alternatively we are compelled by the statistics relied upon by petitioner to conclude that the judges purposefully discriminated during this period. Any presumption as to the purpose of the judges, or of the commissioners whom the judges appointed, instructed and supervised, must be that they intended no racial limitation. And the testimony of the judge who impaneled the grand jury in this case and a number of other grand juries during the period under review, as well as the testimony of the commissioners in this case as to the judge’s instructions to them, indicates that he has not purposefully limited participation on account of race. In the face of this presumption and testimony, I think that, even if there were more than one Negro on each of the commissioners’ lists, we could not infer any purpose on the part of the judges to limit Negro participation solely because of race. The burden of showing facts which permit an inference of purposeful limitation is on the defendant. Martin v. Texas, 200 U. S. 316 (1906). I do not find the present record persuasive that there was such limitation. The difficulties facing grand-jury commissioners are well illustrated by this case. On the one hand they are told that purposeful discrimination is inferred from the available statistics during the previous five and one-half years, showing that no more than one Negro was chosen for each of 21 grand juries; that this indicates that the commissioners must have been guided by the misconceived view that the presence of one Negro on the grand jury satisfied constitutional requirements. But they are also told quite properly that a token representation of a race on a grand jury is not a constitutional requisite; that 298 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. 8. in fact it may reach the point of illegality; that representation on the grand jury by race in proportion to population is not permissible for there must be “neither inclusion nor exclusion because of race.” Under these circumstances one may, like Job’s comforter, only add to the commissioners’ distress by writing further. But it does appear to me from this record that their responsibility is broader than they understood it to be. They frankly stated that in making up the list they discussed only those persons whom they knew personally, and that they considered only one Negro, a school principal who could not serve. The record indicates clearly that there were Negroes qualified and available whom the commissioners did not know but whom upon inquiry they should have considered. Their responsibility was to learn whether there were persons among the Negroes they did not know who were qualified and available for service. Hill v. Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 U. S. 128 (1940). The elimination of this large group in the community from the commissioners’ consideration deprived petitioner of constitutional safeguards as defined in the decisions of this Court. For this reason I concur in the opinion of Mr. Justice Reed and in the judgment of reversal. Mr. Justice Jackson, dissenting. The case before us is that of a Negro convicted of murder by crushing the skull of a sleeping watchman with a piece of iron pipe to carry out a burglary. No question is here as to his guilt. We are asked to order his release from this conviction upon the sole ground that Negroes were purposefully discriminated against in selection of the grand jury that indicted him. It is admitted that Negroes were not excluded from the trial jury by which he was convicted. CASSELL v. TEXAS. 299 282 Jackson, J., dissenting. In setting aside this conviction, the Court is moved by a desire to enforce equality in that realm where, above all, it must be enforced—in our judicial system. But this conviction is reversed for errors that have nothing to do with the defendant’s guilt or innocence, or with a fair trial of that issue. This conflicts with another principle important to our law, viz., that no conviction should be set aside for errors not affecting substantial rights of the accused. This Court has never weighed these competing considerations in cases of this kind. The use of objections to the composition of juries is lately so much resorted to for purposes of delay, however, and the spectacle of a defendant putting the grand jury on trial before he can be tried for a crime is so discrediting to the administration of justice, that it is time to examine the basis for the practice. I. It is the command of the Fourteenth Amendment that Negro citizens be afforded the same opportunities to serve upon grand juries as are afforded white citizens. Moreover, Congress, which is authorized to provide for its enforcement, has enacted that “no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; . . . ” Act of March 1, 1875, c. 114, § 4, 18 Stat. 336, 62 Stat. 696, 18 U. S. C. § 243. The substantive right is thus clear. But whose right is it? The right is conferred upon the qualified colored citizen to serve on equal terms with the qualified white citizen. This defendant is not here asking that right for himself. He claims that failure to give other Negroes an equal right to sit on the grand jury gives him quite 300 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. a different right—a right not to be indicted by it. Two reasons occur to me which could justify this Court in translating the wrong to those Negroes excluded from a grand jury into a right of this defendant to void an indictment. One is that the absence of Negroes on the grand jury prejudiced this defendant. The other is that it is the only practicable method for enforcing the right of qualified Negroes to serve on grand juries. It is doubtful if either of these can be sustained. II. Congress, which has implemented the right of Negroes to serve on juries, had also commanded all United States Courts to give judgment “without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”1 And this same congressional policy was manifested in a provision directing that no indictment found and presented by a grand jury in United States Courts “shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant”;2 and also in the provision that a 1 The quoted language appeared in 40 Stat. 1181, 28 U. S. C. (1940 ed.) § 391. This provision was repealed in the revision of the Judicial Code in 1948, Act of June 25, 1948, c. 646, § 39, 62 Stat. 992, 998, apparently because it had been embodied in Rule 52 (a), Federal Rules of Criminal Procedure, see Note of the Advisory Committee following Rule 52 (a); but was partially reenacted by Act of May 24, 1949, c. 139, § 110, 63 Stat. 105, and now appears as § 2111, 28 U. S. C. (Supp. Ill, 1950). 217 Stat. 198, 18 U. S. C. (1940 ed.) § 556, repealed in the 1948 revision of the Criminal Code, Act of June 25, 1948, c. 645, § 21, 62 Stat. 862, 866, apparently for the reason that it had been incorporated in Rules 6 and 52, Federal Rules of Criminal Procedure. See Notes of Advisory Committee following Rules 6 and 52. CASSELL v. TEXAS. 301 282 Jackson, J., dissenting. motion to quash an indictment shall fail where the ground is that one or more members of the grand jury were unqualified, but where it appears that twelve or more qualified jurors concurred in the finding of the indictment.3 This Court never has explained how discrimination in the selection of a grand jury, illegal though it be, has prejudiced a defendant whom a trial jury, chosen with no discrimination, has convicted. The reason this question was not considered perhaps is that, in the earlier cases where convictions were set aside, the discrimination condemned was present in selecting both grand and trial jury and, while the argument was chiefly based on the latter, the language of the opinions made no differentiation, nor for their purpose did they need to. Cf. Strauder v. West Virginia, 100 U. S. 303; Neal n. Delaware, 103 U. S. 370; see also Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565; Hale v. Kentucky, 303 U. S. 613. Only within the last few years harve convictions been set aside for discrimination in composition of the grand jury alone, and in these the question now under consideration was not discussed. Pierre v. Louisiana, 306 U. S. 354; Smith v. Texas, 311 U. S. 128 ; Hill v. Texas, 316 U. S. 400. It is obvious that discriminatory exclusion of Negroes from a trial jury does, or at least may, prejudice a Negro’s right to a fair trial, and that a conviction so obtained should not stand. The trial jury hears the evidence of both sides and chooses what it will believe. In so deciding, it is influenced by imponderables—unconscious and conscious prejudices and preferences—and a thousand things we cannot detect or isolate in its verdict and whose 3 48 Stat. 649, 18 U. S. C. (1940 ed.) § 554a, repealed by Act of June 25, 1948, c. 645, § 21, 62 Stat. 862, 866, apparently because of its incorporation into Rule 6 (b) (2), Federal Rules of Criminal Procedure. See Note of Advisory Committee following Rule 6(b) (2). 302 OCTOBER TERM, 1949. Jackson, J., dissenting. 339U.S. influence we cannot weigh. A single juror’s dissent is generally enough to prevent conviction. A trial jury on which one of the defendant’s race has no chance to sit may not have the substance, and cannot have the appearance, of impartiality, especially when the accused is a Negro and the alleged victim is not. The grand jury is a very different institution. The States are not required to use it at all. Hurtado v. California, 110 U. S. 516. Its power is only to accuse, not to convict. Its indictment does not even create a presumption of guilt; all that it charges must later be proved before the trial jury, and then beyond a reasonable doubt. The grand jury need not be unanimous. It does not hear both sides but only the prosecution’s evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution’s evidence, unexplained, uncontradicted and unsupplemented, would warrant a conviction. If so, its indictment merely puts the accused to trial. The difference between the function of the trial jury and the function of the grand jury is all the difference between deciding a case and merely deciding that a case should be tried. It hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt, to say that his indictment is attributable to prejudice. In this case a trial judge heard the prosecution’s evidence, ruled it sufficient to warrant a conviction, appellate courts have held the same, and no further question about it is before us. Moreover, a jury admittedly chosen without racial discrimination has heard the prosecution’s and defendant’s evidence and has held that guilt beyond a reasonable doubt has been proved. That finding, too, has been affirmed on appeal and is not here. Under such circumstances, it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict. CASSELL v. TEXAS. 303 282 Jackson, J., dissenting. HI. Congress has provided means other than release of convicted defendants to enforce this right of the Negro community to participate in grand jury service; and they are, if used, direct and effective remedies to accomplish this purpose. “[W] hoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen” because of his color or race has committed a federal crime and is subject to a fine of not more than $5,000. 62 Stat. 696,18 U. S. C. §243. Congress has also provided that “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 17 Stat. 13, 8 U. S. C. § 43. (Emphasis supplied.) These criminal and civil remedies for discriminatory exclusions from the jury have been almost totally neglected both by the Federal Government and by Negro citizens entitled to sit as jurors. Back in 1878 a state judge was indicted in federal court for violation of the Act and this Court sustained it. Ex parte Virginia, 100 U. S. 339. That case has been allowed to stand as solitary and neglected authority for direct enforcement of the Negro’s right to sit on juries. Qualified Negroes excluded by discrimination have available, in addition, remedies in courts of equity. I suppose there is no doubt, and if there is this Court can dispel it, that a citizen or a class of citizens unlawfully 874433 O—50----24 304 OCTOBER TERM, 1949. Jackson, J., dissenting. 339 U. S. excluded from jury service could maintain in a federal court an individual or a class action for an injunction or mandamus against the state officers responsible. Cf. Hague v. Committee for Industrial Organization, 307 U. S. 496; Douglas v. Jeannette, 319 U. S. 157; Morris v. Williams, 149 F. 2d 703; Myerson v. Samuel, 74 F. Supp. 315; Roles v. School Board, 61 F. Supp. 395. If the order were evaded or disobeyed, imprisonment for contempt could follow. IV. It is implicit in the Court’s decision that the federal penal statute, 18 U. S. C. § 243, supra, has been violated. So in effect it holds that the crime of discrimination offsets the crime of murder and that the State must start over again, if death of witnesses, loss of evidence or other conditions wrought by time do not prevent. I do not see how this Court can escape the conclusion that any discrimination in selection of the grand jury in this case, however great the wrong toward qualified Negroes of the community, was harmless to this defendant. To conclude otherwise is to assume that Negroes qualified to sit on a grand jury would refuse even to put to trial a man whom a lawfully chosen trial jury found guilty beyond a reasonable doubt. The Negro’s right to be selected for grand jury service is unquestionable and should be directly and uncompromisingly enforced. But I doubt if any good purpose will be served in the long run by identifying the right of the most worthy Negroes to serve on grand juries with the efforts of the least worthy to defer or escape punishment for crime. I cannot believe that those qualified for grand jury service would fail to return a true bill against a murderer because he is a Negro. But unless they would, this defendant has not been harmed. CASSELL v. TEXAS. 305 282 Jackson, J., dissenting. I would treat this as a case where the irregularity is not shown to have harmed this defendant, and affirm the conviction. But in this and similar cases, I would send a copy of the record to the Department of Justice for investigation as to whether there have been violations of the statute and, if so, for prosecution. 306 OCTOBER TERM, 1949. Syllabus. 339 U. S. MULLANE, SPECIAL GUARDIAN, v. CENTRAL HANOVER BANK & TRUST CO., TRUSTEE, et al. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 378. Argued February 8, 1950.—Decided April 24, 1950. A trust company in New York which had exclusive management and control of a common trust fund established by it under § 100-c of the New York Banking Law petitioned under that section for a judicial settlement of accounts which would be binding and conclusive as to any matter set forth therein upon everyone having any interest in the common fund or in any participating trust. In this common fund the trust company had invested assets of numerous small trusts of which it was trustee and of which some of the beneficiaries were residents and some nonresidents of the State. The only notice of this petition given beneficiaries was by publication in a local newspaper pursuant to § 100-c (12). Held: 1. Whether such a proceeding for settlement of accounts be technically in personam, in rem, or quasi in rem, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is such as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. Pp. 311-313. 2. The statutory notice by publication is sufficient as to any beneficiaries whose interests or addresses are unknown to the trustee, since there are no other means of giving them notice which are both practicable and more effective. Pp. 313-318. 3. Such notice by publication is not sufficient under the Fourteenth Amendment as a basis for adjudication depriving of substantial property rights known persons whose whereabouts are also known, since it is not impracticable to make serious efforts to notify them at least by ordinary mail to their addresses on record with the trust company. Pp. 318-320. 299 N. Y. 697,87 N. E. 2d 73, reversed. Overruling objections to the statutory notice to beneficiaries by publication authorized by § 100-c of the New York Banking Law, a New York Surrogate’s Court entered a final decree accepting an accounting of the trustee of MULLANE v. CENTRAL HANOVER TR. CO. 307 306 Opinion of the Court. a common trust fund established pursuant to that section. 75 N. Y. S. 2d 397. This decree was affirmed by the Appellate Division of the Supreme Court of New York (see 274 App. Div. 772, 80 N. Y. S. 2d 127) and the Court of Appeals of New York (299 N. Y. 697, 87 N. E. 2d 73). On appeal to this Court, reversed, p. 320. Kenneth J. Mullane argued the cause and filed a brief for appellant. Albert B. Maginnes argued the cause for the Central Hanover Bank & Trust Co., appellee. With him on the brief was J. Quincy Hunsicker, 3rd. James N. Vaughan submitted on brief for Vaughan, appellee. Peter Keber and C. Alexander Capron filed a brief for the New York State Bankers Association, as amicus curiae, urging affirmance. Mr. Justice Jackson delivered the opinion of the Court. This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that by allowance of the account beneficiaries were deprived of property without due process of law. 299 N. Y. 697, 87 N. E. 2d 73. The case is here on appeal under 28 U. S. C. § 1257. Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads have made administration of small trusts undesirable to corporate trustees. In order that donors and testators of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and some 308 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. thirty states other than New York have permitted pooling small trust estates into one fund for investment administration.* The income, capital gains, losses and expenses of the collective trust are shared by the constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of management can be extended to those whose capital standing alone would not obtain such advantage. Statutory authorization for the establishment of such common trust funds is provided in the New York Banking Law, § 100-c (c. 687, L. 1937, as amended by c. 602, L. 1943 and c. 158, L. 1944). Under this Act a trust company may, with approval of the State Banking Board, establish a common fund and, within prescribed limits, *Ala. Code Ann., 1940, Cum. Supp. 1947, tit. 58, §§ 88 to 103, as amended, Laws 1949, Act 262; Ariz. Code Ann., 1939, Cum. Supp. 1949, §§ 51-1101 to 51-1104; Ark. Stat. Ann. 1947, §§ 58-110 to 58- 112; Cal. Bank. Code Ann., Deering, 1949, § 1564; Colo. Stat. Ann., 1935, Cum. Supp. 1947, c. 18, §§ 173 to 178; Conn. Gen. Stat. 1949 Rev., § 5805; Del. Rev. Code, 1935, §4401, as amended, Laws, 1943, c. 171, Laws 1947, c. 268; (D. C.) 63 Stat. 938; Fla. Stat., 1941, §§ 655.29 to 655.34; Ga. Code Ann., 1937, Cum. Supp. 1947, §§ 109-601 to 109-622; Idaho Code Ann., 1949, Cum. Supp. 1949, §§ 68-701 to 68-703; Ill. Rev. Stat., 1949, c. 161/2, §§ 57 to 63; Ind. Stat. Ann., Burns, 1950, §§ 18-2009 to 18-2014; Ky. Rev. Stat., 1948, § 287.230; La. Gen. Stat. Ann., 1939, §9850.64; Md. Ann. Code Gen. Laws, 1939, Cum. Supp. 1947, art. 11, §62A; Mass. Ann. Laws, 1933, Cum. Supp. 1949, c. 203A; Mich. Stat. Ann., 1943, §§23.1141 to 23.1153; Minn. Stat., 1945, §48.84, as amended, Laws 1947, c. 234; N. J. Stat. Ann., 1939, Cum. Supp. 1949, §§ 17:9A-36 to 17:9A-46; N. C. Gen. Stat., 1943, §§ 36-47 to 36-52; Ohio Gen. Code Ann. (Page, 1946) §§ 715 to 720, 722; Okla. Stat., 1941, Cum. Supp. 1949, tit. 60, § 162; Pa. Stat. Ann., 1939, Cum. Supp. 1949, tit. 7, §§819-1109 to 819-1109d; So. Dak. Laws 1941, c. 20; Tex. Rev. Civ. Stat. Ann., 1939, Cum. Supp. 1949, art. 7425b-48; Vt. Stat., 1947 Rev., §8873; Va. Code Ann., 1950, §§ 6-569 to 6-576; Wash. Rev. Stat. Ann., Supp. 1943, §§ 3388 to 3388-6; W. Va. Code Ann., 1949, § 4219(1) et seq.; Wis. Stat., 1947, § 223.055. MULLANE v. CENTRAL HANOVER TR. CO. 309 306 Opinion of the Court. invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive management and control is in the trust company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have ownership in any particular asset or investment of this common fund. The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate. Provisions are made for accountings twelve to fifteen months after the establishment of a fund and triennially thereafter. The decree in each such judicial settlement of accounts is made binding and conclusive as to any matter set forth in the account upon everyone having any interest in the common fund or in any participating estate, trust or fund. In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance with these provisions, and in March, 1947, it petitioned the Surrogate’s Court for settlement of its first account as common trustee. During the accounting period a total of 113 trusts, approximately half inter vivos and half testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars. The record does not show the number or residence of the beneficiaries, but they were many and it is clear that some of them were not residents of the State of New York. The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict compliance with the minimum requirements of N. Y. Banking Law §100-c(12): “After filing such petition [for judicial settlement of its account] the petitioner shall cause to be issued by the court in which the petition is filed and shall publish not less than once in each week 310 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. for four successive weeks in a newspaper to be designated by the court a notice or citation addressed generally without naming them to all parties interested in such common trust fund and in such estates, trusts or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set forth in said petition and without setting forth the residence of any such decedent or donor of any such estate, trust or fund.” Thus the only notice required, and the only one given, was by newspaper publication setting forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds. At the time the first investment in the common fund was made on behalf of each participating estate, however, the trust company, pursuant to the requirements of § 100-c (9), had notified by mail each person of full age and sound mind whose name and address were then known to it and who was “entitled to share in the income therefrom . . . [or] . . . who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice.” Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and to the judicial settlement of common trust fund accounts. Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to § 100-c (12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund; and appellee Vaughan was appointed to represent those similarly interested in the principal. There were no other appearances on behalf of any one interested in either interest or principal. MULLANE v. CENTRAL HANOVER TR. CO. 311 306 Opinion of the Court. Appellant appeared specially, objecting that notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the Fourteenth Amendment, and therefore that the court was without jurisdiction to render a final and binding decree. Appellant’s objections were entertained and overruled, the Surrogate holding that the notice required and given was sufficient. 75 N. Y. S. 2d 397. A final decree accepting the accounts has been entered, affirmed by the Appellate Division of the Supreme Court, 275 App. Div. 769, 88 N. Y. S. 2d 907, and by the Court of Appeals of the State of New York. 299 N. Y. 697, 87 N. E. 2d 73. The effect of this decree, as held below, is to settle “all questions respecting the management of the common fund.” We understand that every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree. See Matter of Hoaglund, 194 Mise. 803, 811-812, 74 N. Y. S. 2d 156, 164, aff’d 272 App. Div. 1040, 74 N. Y. S. 2d 911, aff’d 297 N. Y. 920, 79 N. E. 2d 746; Matter of Bank of New York, 189 Mise. 459, 470, 67 N. Y. S. 2d 444, 453; Matter of Security Trust Co. of Rochester, id. 748, 760, 70 N. Y. S. 2d 260, 271; Matter of Continental Bank & Trust Co., id. 795, 797, 67 N. Y. S. 2d 806, 807-808. We are met at the outset with a challenge to the power of the State—the right of its courts to adjudicate at all as against those beneficiaries who reside without the State of New York. It is contended that the proceeding is one in personam in that the decree affects neither title to nor possession of any res, but adjudges only personal rights of the beneficiaries to surcharge their trustee for negligence or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer v. Neff, 95 U. S. 714, the Surrogate 312 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. is without jurisdiction as to nonresidents upon whom personal service of process was not made. Distinctions between actions in rem and those in personam are ancient and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own. Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of Roman Law and Their Relation to Modern Law, 298. The legal recognition and rise in economic importance of incorporeal or intangible forms of property have upset the ancient simplicity of property law and the clarity of its distinctions, while new forms of proceedings have confused the old procedural classification. American courts have sometimes classed certain actions as in rem because personal service of process was not required, and at other times have held personal service of process not required because the action was in rem. See cases collected in Freeman on Judgments, §§ 1517 et seq. (5th ed.). Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or more indefinitely quasi in rem, or more vaguely still, “in the nature of a proceeding in rem.” It is not readily apparent how the courts of New York did or would classify the present proceeding, which has some characteristics and is wanting in some features of proceedings both in rem and in personam. But in any event we think that the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state. Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power of the State to resort to constructive service in this proceeding MULLANE v. CENTRAL HANOVER TR. CO. 313 306 Opinion of the Court. upon how its courts or this Court may regard this historic antithesis. It is sufficient to observe that, whatever the technical definition of its chosen procedure, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. Quite different from the question of a state’s power to discharge trustees is that of the opportunity it must give beneficiaries to contest. Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. In two ways this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one in which they may be deprived of property rights and hence notice and hearing must measure up to the standards of due process. Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries to a final settlement can be served only if interests or claims of individuals who are outside of the State can somehow be determined. A construction of the Due Process Clause which 314 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. would place impossible or impractical obstacles in the way could not be justified. Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385,394. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. The Court has not committed itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized or what test it must meet. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. No decision constitutes a controlling or even a very illuminating precedent for the case before us. But a few general principles stand out in the books. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U. S. 457; Grannis n. Ordean, 234 U. S. 385; Priest n. Las Vegas, 232 U. S. 604; Roller v. Holly, 176 U. S. 398. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich V. Ferris, 214 U. S. 71. But if with due regard for the practicalities and peculiarities of the case these conditions MULLANE v. CENTRAL HANOVER TR. CO. 315 306 Opinion of the Court. are reasonably met, the constitutional requirements are satisfied. “The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.” American Land Co. v. Zeiss, 219 U. S. 47, 67; and see Blinn v. Nelson, 222 U. S. 1, 7. But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U. S. 352, with Wuchter n. Pizzutti, 276 U. S. 13, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weigh-its sufficiency on the basis of equivalence with actual notice, we are unable to regard this as more than a feint. 316 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. Nor is publication here reinforced by steps likely to attract the parties’ attention to the proceeding. It is true that publication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner’s attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, c/. Anderson National Bank v. Luckett, 321 U. S. 233; Security Savings Bank v. California, 263 U. S. 282, or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U. S. 241; Huling n. Kaw Valley R. Co., 130 U. S. 559. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, “It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.” In the case before us there is, of course, no abandonment. On the other hand these beneficiaries do have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who in the accounting becomes their adversary. Their trustee is released from giving notice of jeopardy, and no one else is expected to do so. Not even the special guardian is required or apparently expected to communicate with his ward and client, and, of course, if such a duty were merely trans- MULLANE v. CENTRAL HANOVER TR. CO. 317 306 Opinion of the Court. ferred from the trustee to the guardian, economy would not be served and more likely the cost would be increased. This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading School District, 198 U. S. 458; Blinn v. Nelson, 222 U. S. 1; and see Jacob v. Roberts, 223 U. S. 261. Those beneficiaries represented by appellant whose interests or whereabouts could not with due diligence be ascertained come clearly within this category. As to them the statutory notice is sufficient. However great the odds that publication will never reach the eyes of such unknown parties, it is not in the typical case much more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice practicable. Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. Whatever searches might be required m another situation under ordinary standards of diligence, m view of the character of the proceedings and the nature of the interests here involved we think them unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and extended searches are not required in the 318 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. name of due process. The expense of keeping informed from day to day of substitutions among even current income beneficiaries and presumptive remaindermen, to say nothing of the far greater number of contingent beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages. These are practical matters in which we should be reluctant to disturb the judgment of the state authorities. Accordingly we overrule appellant’s constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee. As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and postoffice addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency. The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra. Certainly sending them a copy of the statute months and perhaps years in advance does not answer this purpose. The trustee periodically remits their income to them, and we think that they might reasonably expect that with or apart from their remittances word might come to them personally that steps were being taken affecting their interests. We need not weigh contentions that a requirement of personal service of citation on even the large number of known resident or nonresident beneficiaries would, by MULLANE v. CENTRAL HANOVER TR. CO. 319 306 Opinion of the Court. reasons of delay if not of expense, seriously interfere with the proper administration of the fund. Of course personal service even without the jurisdiction of the issuing authority serves the end of actual and personal notice, whatever power of compulsion it might lack. However, no such service is required under the circumstances. This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objection sustained would inure to the benefit of all. We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable. “Now and then an extraordinary case may turn up, but constitutional law like other mortal contrivances has to take some chances, and in the great majority of instances no doubt justice will be done.” Blinn v. Nelson, supra, 7. The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand. However it may have been in former times, the mails today are recognized as an efficient and inexpensive means of communication. Moreover, the fact that the trust company has been able to give mailed notice to known beneficiaries at the time the common trust fund was established is persuasive that postal notification at the time of accounting would not seriously burden the plan. In some situations the law requires greater precautions in its proceedings than the business world accepts for its own purposes. In few, if any, will it be satisfied with 874433 0-50-25 320 OCTOBER TERM, 1949. Burton, J., dissenting. 339 U. S. less. Certainly it is instructive, in determining the reasonableness of the impersonal broadcast notification here used, to ask whether it would satisfy a prudent man of business, counting his pennies but finding it in his interest to convey information to many persons whose names and addresses are in his files. We are not satisfied that it would. Publication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by publication that, “Great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” McDonald v. Mabee, 243 U. S. 90,91. We hold that the notice of judicial settlement of accounts required by the New York Banking Law § 100-c (12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Burton, dissenting. These common trusts are available only when the instruments creating the participating trusts permit participation in the common fund. Whether or not further notice to beneficiaries should supplement the notice and representation here provided is properly within the discretion of the State. The Federal Constitution does not require it here. SHIPMAN v. DuPRE. 321 Opinion of the Court. SHIPMAN ET AL., trading as SHIPMAN BROTHERS, ET AL. V. DuPRE ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH CAROLINA. No. 689. Decided April 24, 1950. In this case, a three-judge federal district court erred in ruling on the merits of a suit to restrain enforcement of a state statute on the ground of its invalidity under the Federal Constitution when it did not appear that the statute had been construed by the state courts; but the federal court should retain jurisdiction pending a reasonable time to afford an opportunity for complainants to obtain such a construction. Pp. 321-322. 88 F. Supp. 482, judgment vacated. Appellants’ application for a declaratory judgment and injunction, on the ground of the alleged invalidity under the Federal Constitution of certain sections of South Carolina statutes regulating the fisheries and shrimping industry, was dismissed on the merits by a three-judge federal district court. 88 F. Supp. 482. On appeal to this Court, the judgment is vacated and the cause is remanded, p. 322. Aaron Kravitch, Phyllis Kravitch and Joseph Fromberg for appellants. John M. Daniel, Attorney General of South Carolina, C. Callison and R. Hoke Robinson, Assistant Attorneys General, for appellees. Per Curiam. Appellants sought a declaratory judgment that certain sections of the South Carolina statute regulating the fisheries and shrimping industry were unconstitutional, and interlocutory and permanent injunctions restraining the state officials from carrying out those provisions. The 322 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. statutory three-judge District Court assumed jurisdiction, decided the issues on the merits, and dismissed the complaint. 88 F. Supp. 482. From the papers submitted on appeal, it does not appear that the statutory sections in question have as yet been construed by the state courts. We are therefore of opinion that the District Court erred in disposing of the complaint on the merits. See American Federation of Labor v. Watson, 327 U. S. 582,595-599. The judgment of the District Court is vacated and the cause is remanded to that court with directions to retain jurisdiction of the complaint for a reasonable time, to afford appellants an opportunity to obtain, by appropriate proceedings, a construction by the state court of the statutory provisions involved. Mr. Justice Douglas dissents. UNITED STATES v. BRYAN. 323 Syllabus. UNITED STATES v. BRYAN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 99. Argued December 15, 1949.—Decided May 8, 1950. Respondent was the executive secretary and had custody of the records of an association which was under investigation by the Committee on Un-American Activities of the House of Representatives. The Committee issued and served upon respondent a subpoena directing her to produce before the Committee, at a stated time, specified records of the association. Respondent appeared before the Committee, but refused to produce the records on the ground that the Committee was without constitutional right to demand them. Respondent was indicted, tried and convicted for willful default in violation of R. S. § 102, 2 U. S. C. § 192. Held: 1. The presence of a quorum of the Committee at the time of the return to the subpoena was not an essential element of the offense (Christoffel v. United States, 338 U. S. 84, distinguished); and, when the Government introduced evidence that respondent had been validly served with a lawful subpoena directing her to produce records within her custody and control and that on the return day she intentionally failed to comply, it made out a prima facie case of willful default. Pp. 327-330. 2. The defense of lack of a quorum was not available to respondent under the circumstances of this case. Pp. 330-335. (a) When a witness seeks to excuse a default on grounds of inability to comply with a subpoena, the defense must fail in the absence of a showing of even a modicum of good faith in responding to the subpoena. P. 332. (b) Respondent having made no objection to the lack of a quorum on her appearance before the Committee, having relied on other grounds for noncompliance with the subpoena, and having raised the quorum question for the first time on her trial two years later, she cannot rely upon the defense of lack of a quorum on her trial for willful default. Pp. 332-335. 3. The trial court did not err in permitting the Government to read to the jury the testimony that respondent had given before the Committee when called upon to produce the records. Pp. 335-343. 324 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. (a) R. S. § 859, now 18 U. S. C. § 3486, which provides that “No testimony given by a witness before . . . any committee of either House . . . shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony,” did not bar the use, at respondent’s trial for willful default under R. S. § 102, of the testimony given by her before the Committee. Pp. 337-340. (b) In R. S. § 859 the term “any criminal proceeding” does not apply to a prosecution for willful default under R. S. § 102. Pp. 338, 342-343. (c) Congress intended the immunity provided by R. S. § 859 to apply only to past criminal acts concerning which a witness may be called to testify. Pp. 339-343. 84 U. S. App. D. C. 394, 174 F. 2d 525, reversed. Respondent was convicted of a violation of R. S. § 102, for failure to produce records in compliance with a subpoena of the Committee on Un-American Activities of the House of Representatives. 72 F. Supp. 58. The Court of Appeals reversed. 84 U. S. App. D. C. 394, 174 F. 2d 525. This Court granted certiorari. 338 U. S. 846. Reversed, p. 343. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Campbell, Robert S. Erdahl, Philip R-Monahan and Felicia H. Dubrovsky. 0. John Rogge and Benedict Wolf argued the cause and filed a brief for respondent. Mr. Chief Justice Vinson delivered the opinion of the Court. • Respondent is the executive secretary of an organization known as the Joint Anti-Fascist Refugee Committee (hereinafter referred to as the association) and as such has custody of its records. Prior to April 4, 1946, the Committee on Un-American Activities of the House of UNITED STATES v. BRYAN. 325 323 Opinion of the Court. Representatives, which was conducting an investigation into the activities of the association, had attempted without success to procure these records from respondent and from the chairman of the association’s executive board, Dr. Edward K. Barsky. On March 29, 1946, the Committee issued subpoenas to each of the known members of the executive board summoning them to appear in the Committee’s room on April 4, 1946, at 10 a. m., to testify and produce certain specified records of the association, and an identical subpoena directed to the association by name was served upon respondent Bryan in her official capacity. Bryan and the members of the executive board appeared before the Committee at the date and time set out in the subpoenas and in response thereto. Each person so summoned failed to produce any of the records specified in the subpoenas. The members of the executive board made identical statements in which each declared that he or she did not have possession, custody or control of the records; that Miss Bryan, the executive secretary, did. Respondent admitted that the records were in her possession but refused to comply with the subpoena because “after consulting with counsel [she] came to the conclusion that the subpena was not valid” because the Committee had no constitutional right to demand the books and records. Asked whether the executive board supported her action, she refused to answer because she did not think the question pertinent. The Committee on Un-American Activities then submitted its report and resolution to the House. Setting out at length the Committee’s attempts to procure the records of the association, the report concludes: “The willful and deliberate refusal of Helen R. Bryan and the members of the executive board of the Joint Anti-Fascist Refugee Committee as named herein to 326 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. produce the books, papers, and records called for in the subpenas deprives your committee of evidence necessary in the conduct of its investigation of the Joint Anti-Fascist Refugee Committee, which evidence is pertinent to the said investigation and places the said persons in contempt of the House of Representatives of the United States.”1 The resolution directing the Speaker to certify the Committee’s report to the United States Attorney for the District of Columbia for legal action was approved by the full House after debate.2 Respondent was indicted for violation of R. S. § 102,3 in that she had failed to produce the records called for in the subpoenas and had thereby wilfully made default. At the trial she contended, inter alia, that she was not guilty of wilful default because a quorum of the Committee on Un-American Activities had not been present when she appeared on the return day. However, the trial court withdrew that issue from the jury’s consideration by instructing the jury “as a matter of law, that the Committee on Un-American Activities of the House of Representatives was a validly constituted committee of the Congress, and was at the time of the defendant’s appear- x92 Cong. Rec. 3762, 79th Cong., 2d Sess. (1946). 2 Id. at 3773. 311 Stat. 155, as amended, R. S. § 102, 2 U. S. C. § 192: “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.” UNITED STATES v. BRYAN. 327 323 Opinion of the Court. ance.” Respondent was found guilty, 72 F. Supp. 58, but the Court of Appeals for the District of Columbia Circuit, one judge dissenting, reversed the judgment on the ground that the presence of a quorum of the Committee at the hearing on April 4, 1946, was a material question of fact in the alleged offense and should have been submitted to the jury. 84 U. S. App. D. C. 394, 174 F. 2d 525. We granted a writ of certiorari, 338 U. S. 846, to consider this important question affecting the procedures of congressional committees. First. R. S. § 102 was enacted in 1857. Its purpose, as stated by its sponsors, was to avoid the procedural difficulties which had been experienced by the House of Representatives when persons cited for contempt of the House were brought before its bar to show cause why they should not be committed, and, more important, to permit the imprisonment of a contemnor beyond the expiration of the current session of Congress.4 Transmission of the fact of the commission of a contempt to the prosecuting authority is made under the Seal of the House or Senate by the Speaker or President of the Senate.5 The judicial proceedings are intended as an alternative method of vindicating the authority of Congress to compel the disclosure of facts which are needed in the fulfillment of the legislative function. In re Chapman, 166 U. S. 661, 671-672 (1897); Jurney n. MacCracken, 294 U. S. 125, 151 (1935). “Default” is, of course, a failure to comply with the summons. In this case we may assume, without deciding, that the subpoena served on respondent required her to produce the records of the association before the Committee on Un-American Activities, sitting as a commit- 4 See, e. g., remarks of Representative Orr, Cong. Globe, 34th Cong., 3d Sess. 405 (1857). 5R.S. § 104,2 U. S. C. § 194. 328 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. tee.6 Upon that assumption, respondent takes the position that, absent a quorum, the Committee was without power to receive the records on the return day; that she cannot be guilty of a default in failing to produce papers before an “agency organizationally defective,” which, for that reason, “cannot be obstructed.” Respondent does not and cannot, in view of the jury’s verdict, contest the finding that she deliberately and intentionally refused to produce the papers called for in the subpoena. Her contention is that a quorum of the Committee was required to meet to witness her refusal. Reliance is placed upon certain precedents of the House of Representatives, which hold that a committee report may be challenged in the House on the ground that a quorum of the committee was not present when the report was approved, and upon this 6 The subpoena read as follows: “BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE UNITED STATES OF AMERICA “To the Sergeant at Arms, or his Special Messenger: “You are hereby commanded to summon the Joint Anti-Fascist Refugee Committee, 192 Lexington Avenue, New York City, a voluntary organization to be and appear before the Un-American Activities Committee of the House of Representatives of the United States, of which the Hon. John S. Wood is chairman, and to bring with you all books, ledgers, records and papers relating to the receipt and disbursement of money by or on account of the Joint Anti-Fascist Refugee Committee or any subsidiary or sub-committee thereof, together with all correspondence and memoranda of communications by any means whatsoever with persons in foreign countries. The said books, papers and records demanded herein are for the period from January 1, 1945 up to and including the date of this subpoena, in their chamber in the city of Washington, on April 4, 1946, at the hour of 10:00 A. M. then and there to testify touching matters of inquiry committed to said Committee; and [she] is not to depart without leave of said Committee. “Herein fail not, and make return of this summons. . . .” UNITED STATES v. BRYAN. 329 323 Opinion of the Court. Court’s recent decision in Christoffel v. United States, 338 U. S. 84 (1949). The Christoffel case is inapposite. For that decision, which involved a prosecution for perjury before a congressional committee, rests in part upon the proposition that the applicable perjury statute requires that a “competent tribunal” be present when the false statement is made. There is no such requirement in R. S. § 102. It does not contemplate some affirmative act which is made punishable only if performed before a competent tribunal, but an intentional failure to testify or produce papers, however the contumacy is manifested. Respondent attempts to equate R. S. § 102 with the perjury statute considered in the Christoffel case by contending that it applies only to the refusal to testify or produce papers before a committee—i. e., in the presence of a quorum of the committee. But the statute is not so limited. In the first place, it refers to the wilful failure by any person “to give testimony or to produce papers upon any matter under inquiry before . . . any committee of either House of Congress,” not to the failure to testify before a congressional committee. And the fact that appearance before a committee is not an essential element of the offense is further emphasized by additional language in the statute, which, after defining wilful default in the terms set out above, continues, “or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, . . . .” (Emphasis supplied.) It is clear that R. S. § 102 is designed to punish the obstruction of inquiries in which the Houses of Congress or their committees are engaged. If it is shown that such an inquiry is, in fact, obstructed by the intentional withholding of documents, it is unimportant whether the subpoenaed person proclaims his refusal to respond before 330 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. the full committee, sends a telegram to the chairman, or simply stays away from the hearing on the return day. His statements or actions are merely evidence from which a jury might infer an intent to default. A proclaimed refusal to respond, as in this case, makes that intent plain. But it would hardly be less plain if the witness embarked on a voyage to Europe on the day before his scheduled appearance before the committee. Of course a witness may always change his mind. A default does not mature until the return date of the subpoena, whatever the previous manifestations of intent to default. But when the Government introduced evidence in this case that respondent had been validly served with a lawful subpoena directing her to produce records within her custody and control, and that on the day set out in the subpoena she intentionally failed to comply, it made out a prima facie case of wilful default. Second. It is argued, however, that even if the Government is not required to prove presence of a quorum affirmatively, lack of a quorum is a defense raising material questions of fact which should have been submitted to the jury. The theory is that if the subpoena required production of the records before the Committee on Un-American Activities qua committee, respondent could not have complied with the subpoena in the absence of a quorum had she wished to do so, and therefore her default is not wilful, albeit deliberate and intentional. While she did not introduce any direct evidence at the trial, respondent appropriately raised the defense by cross-examination and by her motions, requests and objections. Ordinarily, one charged with contempt of court for failure to comply with a court order makes a complete defense by proving that he is unable to comply. A court will not imprison a witness for failure to produce documents which he does not have, unless he is responsible UNITED STATES v. BRYAN. 331 323 Opinion of the Court. for their unavailability, cf. Jurney v. MacCracken, supra, or is impeding justice by not explaining what happened to them, United States v. Goldstein, 105 F. 2d 150 (1939). On the other hand, persons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned. See, e. g., Blair v. United States, 250 U. S. 273, 281 (1919); Blackmer v. United States, 284 U. S. 421, 438 (1932). Certain exemptions from attending or, having attended, giving testimony are recognized by all courts. But every such exemption is grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth. Dean Wigmore stated the proposition thus: “For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.” 7 7 Wigmore, Evidence (3d ed.) §2192. 332 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Every exemption from testifying or producing records thus presupposes a very real interest to be protected. If a privilege based upon that interest is asserted, its validity must be assessed. Since we assume in this case that the subpoenas refer to the production of papers before the Committee qua committee, we agree that respondent could rightfully have demanded attendance of a quorum of the Committee and declined to testify or to produce documents so long as a quorum was not present. But the courts need not treat as important that which the witness obviously regarded as unimportant.8 Testimonial compulsion is an intensely practical matter. If, therefore, a witness seeks to excuse a default on grounds of inability to comply with the subpoena, we think the defense must fail in the absence of even a modicum of good faith in responding to the subpoena. That such was the situation in this case does not admit of doubt. In the first place, if respondent had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that she state her reasons for noncompliance upon the return of the writ. At the time and place specified in 8 It is, of course, clear that respondent's “inability” to comply with the subpoena because a quorum of the Committee was not present amounts to no more than the claim that she is excused from doing so. The jury found that she had power to produce the papers. The question therefore arises as to what possible prejudice respondent might have suffered if she had turned over the records to less than a quorum of the Committee. In the case of oral testimony, a witness might well desire to appear only if a quorum was present because of a feeling that some committee members, unrestrained by presence of a majority, might exceed proper bounds of inquiry. But that consideration is obviously inapplicable to the production of papers and is irrelevant here in any event since respondent testified. UNITED STATES v. BRYAN. 333 323 Opinion of the Court. the subpoenas the Chairman of the Committee and a number of other members—whether or not a quorum was present at any time is not clear from the record—presented themselves for the taking of testimony and receipt of papers. The defect in composition of the Committee, if any, was one which could easily have been remedied. But the Committee was not informed until the trial, two years after the refusal to produce the records, that respondent sought to excuse her noncompliance on the ground that a quorum of the Committee had not been present. For two years, now grown to four, the Committee’s investigation was obstructed by an objection which, so far as we are informed, could have been rectified in a few minutes. Such a patent evasion of the duty of one summoned to produce papers before a congressional committee cannot be condoned. Suppose one who has been summoned to produce papers fails to deliver them as required but refuses to give any reason. May he defend a prosecution for wilful default, many months later, on the ground that he had not been given a sufficient time to gather the papers? We think such a contention hardly tenable. Yet, at the return date, compliance with the subpoena was “impossible” just as in the present case. To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its processes. See Bevan v. Krieger, 289 U. S. 459, 464-465 (1933). In the second place, the fact that the alleged defect upon which respondent now insists is, in her own estimation, an immaterial one, is clearly shown by her reliance before the Committee upon other grounds for failing to produce the records. She does not deny, and the transcript of the hearing makes it perfectly clear, that she would not have complied with the subpoenas no 334 OCTOBER TERM, 1949. Opinion of the Court. 339 U.S. matter how the Committee had been constituted at the time. This Court considered a similar question in Hale v. Henkel, 201 U. S. 43 (1906), where a witness had refused in the trial court to produce certain books and papers called for by a subpoena duces tecum on three grounds, one of which was that it was impossible to collect the records within the time allowed. The Court pointed out that “Had the witness relied solely upon the first ground, doubtless the court would have given him the necessary time.” 201 U. S. at p. 70. But having refused compliance for other reasons which the lower court could not remedy, the witness could not later complain of its refusal to do a meaningless act—to grant him additional time to gather papers which he had indicated he would not produce in any event.9 Here respondent would have the Committee go through the empty formality of summoning a quorum of its members to gather in solemn conclave to hear her refuse to honor its demands. Presumably the same formalism would be required if respondent had informed the Committee that she was not coming at all and did not do so. In a not dissimilar case, Judge Learned Hand stated what we consider to be the basic question before us and gave the answer which we think must necessarily follow. He said: “The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were so, for there is no surer 9 See also, Blackmer n. United States, 284 U. S. 421, 443 (1932); Leber v. United States, 170 F. 881, 888 (1909); London Guarantee & Accident Co., Ltd. n. Doyle & Doak, 134 F. 125 (1905); State ex rel. Berge v. Superior Court, 154 Wash. 144, 281 P. 335 (1929). UNITED STATES v. BRYAN. 335 323 Opinion of the Court. sign of a feeble and fumbling law than timidity in penetrating the form to the substance.” Loubriel v. United States, 9 F. 2d 807, 808 (1926). We hold that the Government is not required to prove that a quorum of the Committee was present when the default occurred, and that under the circumstances disclosed by this record a defense of lack of a quorum was not open to respondent. Third. Respondent also contended at the trial that the court erred in permitting the Government to read to the jury the testimony she had given before the House Committee when called upon to produce the records. She relies upon R. S. § 859, now codified in § 3486 of Title 18 U. S. C., which provides that “No testimony given by a witness before . . . any committee of either House, . . . shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. ...” Admittedly her testimony relative to production of the books comes within the literal language of the statute; but the trial court thought that to apply the statute to respondent’s testimony would subvert the congressional purpose in its passage.10 We agree. We need not set out the history of the statute in detail. It should be noted, however, that its function was to provide an immunity in subsequent criminal proceedings to witnesses before congressional committees, in return for which it was thought that witnesses could be compelled to give self-incriminating testimony.11 That purpose was 10 See the court’s opinion in United States v. Barsky, 72 F. Supp. 165 (1947), affirmed, Barsky v. United States, 83 U. S. App. D. C. 127, 138, 167 F. 2d 241, 252 (1948). 11R. S. §859, as originally enacted in 1857, was a part of § 2 °f a comprehensive statute, 11 Stat. 155, designed on the one hand to compel the testimony of witnesses and on the other hand to pro-874433 0—50---26 336 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. effectively nullified in 1892 by this Court’s decision in Counselman v. Hitchcock, 142 U. S. 547, holding that R. S. § 860,12 a statute identical in all material respects with R. S. § 859, was not a sufficient substitute for the constitutional privilege of refusing to answer self-incriminating questions. Under that decision, a witness who is offered only the partial protection of a statute such as §§ 859 and 860—that his testimony may not be used against him in subsequent criminal proceedings—rather than complete immunity from prosecution for any act concerning which he testifies13 may claim his privilege and remain silent with impunity. Section 860 was ultimately repealed. Its usefulness undermined by the Counselman decision, it remained on the statute books until 1910, “a shield to the criminal and an*obstruction to justice.” 14 But the attention of Con- fect them from prosecution for crimes revealed by their testimony. Section 1 of the Act became R. S. § 102, 2 U. S. C. § 192. As first enacted, § 2 not only prevented the use of a witness’ testimony in subsequent criminal proceedings but gave him complete immunity from prosecution “for any fact or act touching which he shall be required to testify.” This latter provision was deleted in 1862, 12 Stat. 333, leaving only the partial protection of § 859, which was in effect declared insufficient to require a witness to give self-incriminatory testimony in Counselman v. Hitchcock, 142 U. S. 547 (1892). 12 R. S. § 860 applied to evidence obtained from a party or witness in any “judicial proceeding” and provided that such evidence should not be used against such person in any criminal proceeding. 13 See Brown v. Walker, 161 U. S. 591 (1896). 14 H. R. Rep. No. 266, 61st Cong., 2d Sess., which was concurred in by the Senate Committee reporting the repealer, states: “This section [860] was enacted apparently for the purpose of enabling the Government to compel the disclosure of incriminating testimony on condition that the witness disclosing the same would be given immunity. In the case of Counselman v. Hitchcock (142 U. S., 547) it was held that legislation can not abridge a constitutional privilege, and that it can not replace or supply one, at least unless UNITED STATES v. BRYAN. 337 323 Opinion of the Court. gress has not, apparently, been called to the anomaly presented by the continued existence of R. S. § 859, which, like § 860, was a constituent part of an immunity “bargain” declared invalid in the Counselman case.15 The courts must, therefore, give effect to the statute. Cameron v. United States, 231 U. S. 710, 720 (1914). Since respondent did not refuse to answer the questions put to her by members of the House Committee, her argument is not of denial of any constitutional right but solely that R. S. § 859 bars use of her testimony in her trial for wilful default.16 The history of that statute, its original it is so broad as to have the same extent in scope and effect, and that said section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition, and that in view of the constitutional provision (article 5 of the amendments) a statutory enactment to be valid must afford absolute immunity against future prosecution for the offense to which the question relates. “Since the decision above referred to section 860 has possessed no usefulness whatever, but has remained in the law as an impediment to the course of justice. Under it a witness can not be compelled to give any incriminating testimony whatever, but if he chooses to go on the witness stand and testify as to any matter whatever, even of his own volition, and, whether incriminatory or not, his testimony can not thereafter be brought up against him m any criminal proceedings. He can not be confronted with his own testimony or his own previous statement under oath even on cross-examination. The statute has become a shield to the criminal and an obstruction to justice.” 15 In 1938 Congress made minor amendments to the statutes in question without recognizing their inconsistency with the Counselman case. 52 Stat. 943. See S. Rep. No. 2108, 75th Cong., 3d Sess. 16 United States v. Monia, 317 U. S. 424 (1943), is, of course, inapplicable. That decision relates to the necessity of making a claim of immunity under the particular statute there involved. The opinion specifically states that the constitutional privilege, as distinguished from the statutory immunity under consideration in that case, must be claimed. Id. at 427. 338 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. purpose, and its present status are all relevant considerations in its interpretation. Despite the fact that the literal language would encompass testimony elicited by the House Committee in its questioning of respondent relative to the production of the records of the association, the Court will not reach that result if it is contrary to the congressional intent and leads to absurd conclusions. United States n. Kirby, 7 Wall. 482, 486 (1869); Glick-stein v. United States, 222 U. S. 139 (1911). And we are clearly of the opinion that the congressional purpose would be frustrated if the words, “in any criminal proceeding,” were read to include a prosecution for wilful default under R. S. § 102. That purpose was “more effectually to enforce the Attendance of Witnesses . . . and to compel them to discover Testimony.”17 It had been the experience of Congress prior to 1857 that witnesses could not be compelled to disclose desired information, in part because of insufficient penalties for nondisclosure, and in part because of the constitutional privilege against self-incrimination. In an attempt to surmount the latter obstacle, Congress enacted what became R. S. § 859. By granting an immunity, it was the congressional intent to compel testimony which had hitherto been unavailable. It is now contended that the protection of the statute, which was extended to witnesses in an effort to obtain testimony, protects equally the person who wilfully withholds testimony and is prosecuted for his wilful default. This contention completely ignores the purpose of the immunity. In the first place, it imputes to Congress the contradictory and irrational purpose of granting an immunity from prosecution for contempt in order to obtain evidence of that contempt. And in the second place, 17 See 11 Stat. 155. UNITED STATES v. BRYAN. 339 323 Opinion of the Court. it assumes that Congress had some purpose to compel testimony of the kind here involved—statements of refusal by the witness to answer questions or produce documents—in return for which it was willing to grant an immunity. Such an assumption cannot be made. These statements have always been available to the Houses of Congress in contempt proceedings. They are uniformly printed in the reports of committees recommending contempt action18 and are relied upon by the Houses when deliberating in contempt cases.19 In short, the purpose of the statute contradicts its application to testimony of this kind. Furthermore, to hold such testimony inadmissible in a prosecution for wilful default is to conclude that Con- 18 See, e. g., S. Rep. No. 254, 73d Cong., 2d Sess., the Report of a Special Committee on Investigation of Air Mail and Ocean Mail Contracts, setting out in great detail the testimony of William P. MacCracken, Jr., et al., “in order that the Senate may determine whether or not any action shall be taken by the Senate with a view to proceeding against the said William P. MacCracken, Jr. . . .in the nature of a proceeding for contempt or otherwise . . . .” See Jurney v. MacCracken, 294 U. S. 125 (1935). 19 The incident giving rise to enactment of the statute illustrates the point. A correspondent of the New York Times, having made charges of corruption on the part of members of the House of Representatives in connection with pending legislation, was called before a select committee of the House and asked to name the Representatives involved. He declined to do so for the reason that the information had been given to him in confidence. The committee’s questions and the witness’ answers are set out at length in the Congressional Globe, 34th Cong., 3d Sess., pp. 403-404, as a part of the committee’s report and resulted in his being called to the bar of the House “to answer as for a contempt of the authority of this House,” and in his subsequent commitment. These proceedings were carried on in conjunction with consideration of the statute in the House. The contention now made would impute to Congress an intent to deprive the courts of the very information upon which the House had acted in the case giving rise to the statute. 340 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. gress, for no discernable reason, made proof of contempt vastly more difficult before the courts than in its own chambers, since, as we have indicated, the Houses of Congress themselves are accustomed to rely upon such testimony. There is not a hint of any such purpose in the legislative history of the statute or the decisions construing it. On the contrary, this Court has often noted that prosecution under R. S. § 102 was intended “merely to supplement the power of contempt by providing for additional punishment.” Jurney v. Mac-Cracken, supra, at 151. The debates attending enactment of the statutes here in question and the decisions of this and other federal courts construing substantially identical statutes make plain the fact that Congress intended the immunity therein provided to apply only to past criminal acts concerning which the witness should be called to testify.20 20 Representative Orr: “The bill provides that no persons called before that committee to testify before them shall be subjected to criminal prosecution for any offense they may have committed, and for which their testimony would furnish the basis of an indictment.” Cong. Globe, 34th Cong., 3d Sess. 406. Representative Washburn: “The second section of the bill declares that no person summoned as a witness shall be excused from answering a question for the reason that his answer would criminate himself; and provides that he shall be exempt from punishment for any offense which he may testify that he has committed, and that on trial for such offense in any court in the country such evidence shall not be used against him.” Id. at 428. Senator Seward: “The second section of the bill provides that such person shall have the benefit of being exempt from prosecution as to the matter concerning which he is called to testify.” Id. at 444. (Emphasis supplied throughout.) It may be pointed out that since the statute, as originally enacted, had the effect of granting total immunity from prosecution for any fact or act touching which the witness testified, adoption of respondent’s contention would mean that Congress originally intended to immunize the witness who states before the committee that he will not answer questions or produce papers from any prosecution for his default. UNITED STATES v. BRYAN. 341 323 Opinion of the Court. The offense of contempt of Congress, with which we are presently concerned, on the other hand, matures only when the witness is called to appear before the committee to answer questions or produce documents and wilfully fails to do so. Until that moment he has committed no crime. There is, in our jurisprudence, no doctrine of “anticipatory contempt.” While the witness’ testimony may show that he has elected to perjure himself or commit contempt, he does not thereby admit his guilt of some past crime about which he has been summoned for questioning but commits the criminal act then and there. In Glickstein v. United States, supra, this Court considered the problem thereby presented. It was there held that perjury committed in the course of testimony given pursuant to statute falls outside the purview of §7(9) of the Bankruptcy Act, 11 U. S. C. § 25 (10), which, like R. S. § 859, provides that no testimony given by the witness (at a creditors’ meeting) shall be used against him in any criminal proceedings. In the Court’s view, such an immunity “relates to the past and does not endow the person who testifies with a license to commit perjury.” 222 U. S. at 142. The distinction is fully spelled out in a Circuit Court of Appeals opinion, Edelstein v. United States, 149 F. 636 (1906), which was cited with approval in the Glickstein case: “To hold that the statute protects a bankrupt from the use of his evidence in a prosecution for perjury while actually testifying would defeat the obvious purposes of the act. It would, in effect, say to the bankrupt: You may forego the exercise of your constitutional privilege, and consent to testify concerning the conduct of your business, and in that way promote the efficient administration of your estate and benefit your creditors, and by so doing secure 342 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. the immunity provided for; but if you give false testimony, calculated to embarrass the administration of your estate and to defeat the just rights of your creditors, and thereby commit a crime specially denounced against you, you shall enjoy the same immunity therefor. Moreover, it would, in effect, secure to the bankrupt the immunity in question for violating his part of the compact, namely, to testify— that is, to testify truthfully—by virtue of which he secured a right to the immunity. We are not willing to impute to Congress any such contradictory and absurd purpose. The words ‘any criminal proceeding’ cannot sensibly or reasonably be construed so literally and generally as to include the criminal proceeding provided by law for false swearing in giving his testimony. They obviously have reference to such criminal proceedings as arise out of past transactions, about which the bankrupt is called to testify.” 149 F. at 643-644. That statement is at least equally applicable to statements made by the witness in refusing to answer questions or produce papers. Such, in fact, was the rationale and decision of the Third Circuit Court of Appeals in just such a case. See In re Kaplan Bros., 213 F. 753 (1914). And see Cameron v. United States, supra, 719; McCarthy n. Arndstein, 266 U. S. 34, 42 (1924). The same reasons that led this Court to conclude that the clause excepting a prosecution for perjury from the reach of another immunity statute “was added only from superfluous caution and throws no light on the construction,” Heike v. United States, 227 U. S. 131, 141 (1913), lead us to hold that Congress did not intend the term, “any criminal proceeding,” to encompass a prosecution of the witness for wilful default under R. S. § 102. A contrary view would simply encourage the refusal of UNITED STATES v. BRYAN. 343 323 Jackson, J., concurring. witnesses to answer questions or produce papers, quite contrary to the purpose of the statute. Respondent advances several contentions which were not passed upon by the Court of Appeals. We do not decide them at this time. The judgment of the Court of Appeals is Reversed. Mr. Justice Frankfurter agrees with this opinion except as to the portion marked Third, involving the applicability of § 3486 of Title 18 U. S. C. to the facts of this case, which requires him to dissent from the judgment of reversal. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case. Mr. Justice Jackson, concurring. With the result I am in agreement, but I do not see how this decision and that in the Christoffel case, 338 U. S. 84, can coexist. The Court is agreed that this defendant could rightly demand attendance of a quorum of the Committee and decline to testify or to produce documents so long as a quorum was not present. Therefore the real question here is whether, without making any demand, the issue may be raised for the first time long afterwards in a trial for contempt. This case is the duplicate of Christoffel in this respect: in both cases defendants have sought to raise the question of no quorum for the first time in court, when they are on trial for an offense, without having raised it in any manner before the Committee while there was time to remedy it. The Court is now saying, quite properly I think, that this question must be raised at 344 OCTOBER TERM, 1949. Jackson, J., concurring. 339 U.S. the time when it can be corrected, and proper records made, and cannot be kept as an ace up the sleeve to be produced years later at a trial. But in Christoffel, the majority took the opposite view and said, “In a criminal case affecting the rights of one not a member, the occasion of trial is an appropriate one for petitioner to raise the question.” Supra, at 88. If this statement of the law is to be left standing, I do not see how we can say that what was timely for Christoffel is too late for Bryan. It is plain we are not following the Christoffel decision and so I think we should candidly overrule it. The practice of withholding all objection until time of trial is not helpful in protecting a witness’ right to a valid Committee. It prevents correction of any error in that respect and profits only the witness who seeks a concealed defect to exploit. Congressional custom, whether written or not, has established that Committee members may indulge in temporary absences, unless there is objection, without disabling those remaining from continuing work as a Committee. Members may step out to interview constituents, consult members of their staffs, confer with each other, dictate a letter, or visit a washroom, without putting an end to the Committee—but always subject to call whenever the point of no quorum is raised; that is notice that someone deems their personal presence important. This is the custom Christoffel, in effect, denied to members of Congress. A member now steps out of a committee room at risk of nullifying the whole proceeding. It is ironic that this interference with legislative procedures was promulgated by exercise within the Court of the very right of absentee participation denied to Congressmen. Examination of our journal on the day Christoffel was handed down shows only eight Justices present and that four Justices dissented in that UNITED STATES v. BRYAN. 345 323 Jackson, J., concurring. case. The prevailing opinion does not expressly indicate the Justices who joined in it, but only four nondissenting Justices were present to do so. On the record this would show only an equally divided Court, which would affirm the judgment below. The only way the four who were present and for a reversal could have prevailed was by counting for it one shown by the record to be absent. There is not even any public record to show that in absentia he joined the decision, or approved the final opinion, or considered the matter after the dissent was circulated; nor is there any written rule or law which permitted him to do so. I want to make it clear that I am not criticizing any Justice or suggesting the slightest irregularity in what was done. I have no doubt that authorization to include the absent Justice was given; and I know that to vote and be counted in absentia has been sanctioned by practice and was without objection by anyone. It is the fact that it is strictly regular and customary, according to our unwritten practice, to count as present for purposes of Court action one physically absent that makes the denial of a comparable practice in Congress so anomalous. Of course, there is this difference: The absent Congressman was only necessary to a quorum; the absent Justice was necessary to a decision. No Committee action was dependent upon the Representatives presumed to be absent in the Christoffel case. All they could have done if present was to listen. In our own case, personal judgment and affirmative action of the absent member was necessary to make the Christoffel opinion a decision of the Court. The ruling of the Court today seems irreconcilable with the Court’s decision in that case. True, the ink on Christoffel is hardly dry. But the principle of stare decisis, which I think should be the normal principle of 346 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. judicial action, is not well served by failing to make explicit an overruling which is implicit in a later decision. Unless we really accede to its authority, it were far better to undo Christoffel before it becomes embedded in the law as a misleading influence with the profession. Of course, it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it. In view of the holding today, I think that the decision in the Christoffel case should be forthrightly and artlessly overruled. Mr. Justice Black, with whom Mr. Justice Frankfurter concurs, dissenting. 18 U. S. C. § 3486 provides that no testimony given by a witness before any committee of either house “shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony.” The Court admits that use of such testimony in convicting Bryan for wilful failure to produce records violated the “literal language” of § 3486, but declines to give effect to that language. I dissent from the Court’s refusal to abide by this congressional mandate. The statutory exception of “prosecution for perjury” shows that the attention of Congress was focused on whether committee testimony should be admissible m any special type of criminal prosecution. Yet the Court now reads the statute as if Congress had forbidden the use of committee testimony “except in a prosecution for perjury or for failure to produce records.” Such extensive judicial law-making is particularly questionable when used to restrict safeguards accorded defendants in criminal cases. Moreover, this statute springs from Congress’s recognition of the constitutional privilege against compulsory self-incrimination. The Court’s narrowing of the statute marks a radical departure from the principle underlying previous interpretations of other immunity legislation. UNITED STATES v. BRYAN. 347 323 Black, J., dissenting. Smith v. United States, 337 U. S. 137; United States v. Mania, 317 U. S. 424. The reasons given by the Court for its amendment of the statute have an anomalous basis: the Court feels compelled to alter the clear language of § 3486 in order not to “subvert the congressional purpose” which it admits has already been irrevocably frustrated by the decision in Counselman n. Hitchcock, 142 U. S. 547. Moreover, the statutory language is so clear and precise that dubious legislative history cannot contradict it. And no part of that history even tends to show that Congress meant to permit use of a witness’ testimony to convict him of any crime other than perjury. There is a justifiable reason for the perjury exception. The crime consists of the testimony itself, without which no prosecution would be possible. Not so with default in producing papers. That crime is based not on a witness’s testimony but rather on his failure to produce—conduct which can be proved by members of a committee, clerks, or spectators. There is therefore no basis for saying that application of the statute as Congress wrote it would lead to “absurd conclusions” by encouraging the “refusal of witnesses to answer questions or produce papers.” As for other essential elements of the crime, such as power to produce, they cannot be proved by evidence extracted from a defendant under compulsion. A witness summoned to testify and produce papers is no less entitled to invoke the protection of this statute and of the Fifth Amendment’s privilege against self-incrimination than is any other defendant. One who has failed to produce certainly could not be compelled to answer questions concerning his power to produce, thereby making him a “witness against himself.” If application of the statute as Congress wrote it would lead to “absurd conclusions,” so would the Fifth Amendment. 348 OCTOBER TERM, 1949. Black, J., dissenting. 339 U.S. The Court finds comfort in the statement that the Committee testimony of witnesses is “uniformly printed in the reports of committees recommending contempt action” to the houses of Congress. However extensive this practice may be, it would not justify the use of such evidence in a criminal trial. By its own terms 18 U. S. C. § 3486 is expressly limited to “any criminal proceeding ... in any court.”1 For these reasons the judgment should be reversed and the cause remanded for a new trial. 1 This distinction between criminal trials and contempt proceedings at the bar of Congress is eminently reasonable in view of the practical differences between the two. See dissenting opinion in United States v. Fleischman, post, p. 349. For a discussion of congressional contempt procedures, see Eberling, Congressional Investigations 179 and passim (Columbia University Press, 1928). UNITED STATES v. FLEISCHMAN. 349 Syllabus. UNITED STATES v. FLEISCHMAN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 98. Argued December 15, 1949.—Decided May 8, 1950. Respondent was a member of the executive board of an association which was under investigation by the Committee on Un-American Activities of the House of Representatives. The Committee issued subpoenas to each of the members of the executive board, demanding that they produce in the committee room at a stated time certain of the association’s records which were in the custody of the executive secretary of the association. The members of the executive board, acting together, had power to direct the executive secretary to produce the records and to remove her from office; but they held no meeting to consider compliance with the subpoena. They appeared in response to the subpoenas but the records were not produced. In identical prepared statements to the Committee, each asserted that he did not individually have custody of the records and was therefore unable to comply with the subpoena. Asked whether she personally would permit the Committee to see the books, respondent answered: “I don’t think it is pertinent to say what I should do a week from now.” She was indicted, tried and convicted for willful default under R. S. § 102, 2 U. S. C. § 192. Held: 1. The question of the lack of a quorum of the Committee, raised for the first time at the trial, and the question of the admissibility of testimony given before the Committee at the trial for willful default, are governed by the decision in United States v. Bryan, ante, p. 323. P. 352. 2. The fact that respondent had no individual control over the records was no defense. Pp. 356-358. (a) When one accepts an office of joint responsibility, in which compliance with lawful orders requires joint action by the body of which he is a member, he necessarily assumes an individual responsibility to act, within the limits of his power, to bring about compliance with such an order. Pp. 356-357. (b) The fact that the organization here involved was an unincorporated association rather than a corporation is immaterial. P. 358. 3. After introducing evidence that the executive board had power to produce the records and that it had not done so, the Government 350 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. did not have the further burden of proving that each individual member had not done that which was within his power to bring about compliance with the Committee’s order. Pp. 358-364. (a) The doctrine that it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which if untrue could be readily disproved by the production of documents or other evidence probably within the defendant’s possession or control, is applicable here. Pp. 360-361. (b) In the absence of evidence that respondent made some effort to bring about compliance with the subpoena or had some excuse for failing to do so, the evidence adduced by the Government amply sustained the conviction. P. 364. 4. The subpoena was not defective by reason of the fact that it was addressed not to the association by name but to respondent as a member of the executive board. Pp. 353-354, n. 4. 84 U. S. App. D. C. 388,174 F. 2d 519, reversed. Respondent was convicted of willful default under R. S. § 102, 2 U. S. C. § 192, for failure to comply with a subpoena of the Committee on Un-American Activities of the House of Representatives. The Court of Appeals reversed. 84 U. S. App. D. C. 388, 174 F. 2d 519. This Court granted certiorari. 338 U. S. 846. Reversed, p. 365. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Campbell, Robert S. Erdahl, Philip R-Monahan and Felicia H. Dubrovsky. 0. John Rogge and Benedict Wolf argued the cause and filed a brief for respondent. Mr. Chief Justice Vinson delivered the opinion of the Court. Respondent Fleischman is a member of the executive board of an organization known as the Joint Anti-Fascist Refugee Committee (hereinafter referred to as the asso- UNITED STATES v. FLEISCHMAN. 351 349 Opinion of the Court. ciation), which, during 1945 and 1946, was under investigation by the House Committee on Un-American Activities. In furtherance of its investigation, the Committee issued subpoenas on March 29, 1946, to each of the members of the executive board and to Helen R. Bryan, the executive secretary of the association, demanding that they produce certain of the association’s records in the Committee’s chamber on April 4, 1946. Fleischman and the other members of the board appeared on that date in response to the subpoenas but did not produce the records. The Committee thereupon reported to the House that the members of the executive board were in contempt of that body. After debate, the House voted to direct the Speaker to certify the Committee’s report to the United States District Attorney for legal action. Respondent and the other members of the executive board were jointly indicted for wilful default under R. S. § 102/ but Fleischman was tried separately from the others. Her defense, like that of Bryan,2 consisted in part in the contention that she could not be guilty of wilful default because a quorum of the Committee had not been present when she appeared in response to the subpoena. The trial court withdrew that issue from the jury, holding “as a matter of law, that the Committee 111 Stat. 155, as amended, R. S. § 102,2 U. S. C. § 192: “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.” 2 See United States v. Bryan, ante, p. 323. 874433 O—50------------27 352 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. on Un-American Activities of the House of Representatives was a validly constituted committee of Congress, and was at the time of the defendant’s appearance.” The Court of Appeals for the District of Columbia reversed, one judge dissenting, 84 U. S. App. D. C. 388, 174 F. 2d 519, on the ground that presence of a quorum of the Committee at the time of respondent’s appearance was a material question of fact for the jury. The court also divided on the question of whether there was sufficient evidence to support the conviction, a majority holding the evidence sufficient. We granted a writ of certiorari, 338 U. S. 846, to consider these important questions arising under R. S. § 102. The quorum question is governed by our decision this day in United States v. Bryan, ante, p. 323. Like Bryan, respondent testified before the Committee on the return day of the subpoena without making any suggestion of lack of a quorum. That issue was raised for the first time at the trial, two years after her appearance before the Committee, where she had given other reasons for her failure to produce the documents. Under the circumstances disclosed by this record, we think the defense of lack of quorum was not available to her. The question of the admissibility of her testimony before the House Committee at her trial for wilful default is likewise governed by our decision in the Bryan case, where we held that R. S. § 859, 18 U. S. C. § 3486, cannot be read to prevent the introduction of testimony of this kind at a trial for wilful default under R. S. § 102. There remains the question of the sufficiency of the evidence to support the verdict of guilt in this case. That evidence consisted in part of the record of the Committee’s unsuccessful efforts over a period of four months to obtain the books and papers of the association from its chairman and executive secretary, of which there is UNITED STATES v. FLEISCHMAN. 353 349 Opinion of the Court. evidence of respondent’s knowledge.3 Other evidence introduced may reasonably be taken to establish the following facts: Following its unsuccessful attempts to obtain the records from the chairman and executive secretary, the Committee issued subpoenas to all sixteen members of the executive board of the association, commanding them to appear on April 4, 1946, in the Committee’s chamber, there to produce the records. The subpoena served on respondent was addressed to her as “a member of the Executive Board of the Joint Anti-Fascist Refugee Committee.”4 The board had power, its 3 This evidence consisted of a resolution passed by the executive board on December 14, 1945, condemning the Committee’s investigation and directing Miss Bryan to consult with an attorney with a view toward protecting the records from the Committee, and the minutes of a meeting of February 11, 1946, at which the executive board voted to instruct Dr. Barsky not to produce the records before the Committee, as he had been ordered to do. While respondent did not participate in either of these actions, her knowledge of the Committee’s efforts to obtain the records and the board’s previous actions with respect thereto was shown by evidence of her attendance of a board meeting in March, 1946, when Dr. Barsky reported concerning his appearance before the Committee on February 13, and the association’s attorney was present and talked to the board about its legal position in the matter. 4 The subpoena served on Mrs. Fleischman read as follows: “BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE UNITED STATES OF AMERICA To the Sergeant at Arms, or his Special Messenger: “You are hereby commanded to summon Mrs. Ernestina G. Fleischman, ‘Voice of Fighting Spain’, 1 Columbus Avenue, New York City, a member of the Executive Board of the Joint Anti-Fascist Refugee Committee to be and appear before the Un-American Activities Committee of the House of Representatives of the United States, of which the Hon. John S. Wood is chairman, and to bring with you all books, ledgers, records and papers relating to the receipt and disbursement of money by or on account of the Joint Anti-Fascist Refugee Committee or any subsidiary or sub-committee thereof, together with all correspondence and memoranda of com- 354 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. members acting jointly, to direct Miss Bryan to produce the records, to transfer custody of the documents to some other person, or to remove her from office.5 But during the interval between March 29, when the subpoenas were munications by any means whatsoever with persons in foreign countries. The said books, papers and records demanded herein are for the period from January 1, 1945 up to and including the date of this subpoena, in their chamber in the city of Washington, on April 4, 1946, at the hour of 10:00 A. M. then and there to testify touching matters of inquiry committed to said Committee; and [she] is not to depart without leave of said Committee. “Herein fail not, and make return of this summons. . . .” It is now suggested that this subpoena is defective because addressed not to the association by name but to respondent as a member of the executive board of the association, and Wilson v. United States, 221 U. S. 361 (1911) and Commissioners v. Sellew, 99 U. S. 624 (1879) are distinguished on that ground. We can think of no clearer way of notifying respondent that she was required to perform her duty as a member of the governing board of the association than to serve an individual subpoena upon her, addressed to her in her official capacity as a member of the executive board, and calling for the production of papers which she knew were under the control of the executive board. This subpoena makes explicit what is merely implicit in subpoenas addressed to an organization by name and served on individual directors, as was done in the Wilson case. 5 Mrs. Fleischman’s testimony concerning the powers and authority of the executive board was as follows: "The Chairman. There isn’t any other authority higher than the executive board ? “Mrs. Fleischman. No. “The Chairman. And on all matters of policy, direction of the activities of the Joint Anti-Fascist Refugee Committee, the executive board is the highest authority ? “Mrs. Fleischman. Yes. “The Chairman. Now, as a member of that board—you say you are a member now ? “Mrs. Fleischman. Yes. “The Chairman. As a member of that board are you now willing, so far as you personally are concerned, as a member of that board are UNITED STATES v. FLEISCHMAN. 355 349 Opinion of the Court. issued, and April 4, when its members appeared before the Committee, no meeting of the executive board was held to discuss compliance. A number of members of the board met in an attorney’s office in New York on April 2, when he gave to each a typewritten statement to read to the Committee. All of the members who had been subpoenaed appeared at the time and place specified in the subpoenas. No one produced the records. Each of the sixteen members of the board, including respondent, read or handed to the Committee the identically worded statements prepared by the association’s attorney. These statements read: “I individually do not have possession, custody, or control over any of the material requested in the subpena which was served upon me. The books, records, and correspondence of the Joint Anti-Fascist Refugee Committee are in the possession, custody, and control of Miss Helen R. Bryan, the executive secretary of our organization, and she is the legal custodian of this material. Since I do not have either in my possession, custody, or control the books, records, and documents described in the subpena, I am unable to comply with your order to produce them.” Upon being questioned by the Committee as to whether she, individually, would give her consent to production of the books, respondent’s answer was that that question you now willing to permit this committee of Congress to see those books and records called for in that subpena ? “Mrs. Fleischman. I don’t know what I would do. It would require a meeting of the board.” (Emphasis supplied.) There was also testimony that the board had power to transfer custody of the records from Bryan to some other person and that, in fact, the vote at the February 11 meeting had been on that very question. 356 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. was “not pertinent”; that she would decide only at a meeting of the board. Respondent and the other members of the board were jointly indicted on a charge that they “appeared before the Congressional Committee in the City of Washington, District of Columbia, on April 4, 1946, but failed to produce the records called for in the subpoenas, as they had power to do, and thereby wilfully made default.” As we have pointed out, there is evidence to support the charge that the records were under the joint control of the members of the executive board and that the individual members, acting together, had power to produce them. It is contended, however, that respondent (in this respect no different from any other member) had no individual control over the records, and that there is thus no evidence that the nonproduction of the records resulted from anything she personally did or omitted to do. It seems elementary that the only manner by which a duty requiring the joint participation of several persons may be performed is by a combination of individual performances. And conversely, the failure to perform such a duty is the result of a failure by some or all of the persons who have been ordered to act together to discharge their responsibilities. This failure is not necessarily the result of a conspiracy, which premises an agreement of some kind. One may, either alone or in concert with others, fail to perform his individual part of a task requiring joint participation. When one accepts an office of joint responsibility, whether on a board of directors of a corporation, the governing board of a municipality, or any other position in which compliance with lawful orders requires joint action by a responsible body of which he is a member, he necessarily assumes an individual responsibility to act, UNITED STATES v. FLEISCHMAN. 357 349 Opinion of the Court. within the limits of his power to do so, to bring about compliance with the order. It may be that the efforts of one member of the board will avail nothing. If he does all he can, he will not be punished because of the recalcitrance of others. Commissioners n. Sellew, 99 U. S. 624, 627 (1879). But to hold that, because compliance with an order directed to the directors of a corporation or other organization requires common action by several persons, no one of them is individually responsible for the failure of the organization to comply, is effectually to remove such organizations beyond the reach of legislative and judicial commands. This Court and the state courts which have considered the matter6 have adopted a contrary view. In Wilson v. United States, 221 U. S. 361 (1911), Mr. Justice Hughes stated the proposition thus: “A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience 6 For applications of this principle in the analogous situation presented by noncompliance with a mandamus, see State v. City of Live Oak, 126 Fla. 132, 170 So. 608 (1936); Littlefield v. Town of Adel, 151 Ga. 684, 108 S. E. 56 (1921); Smith v. Lott, 156 Ga. 590, 119 S. E. 400 (1923); McCulloch v. State, 174 Ind. 525, 92 N. E. 543 (1910); Middle States Utilities Co. v. City of Osceola, 231 Iowa 462, 1 N. W. 2d 643 (1942); Kentucky Culvert Mfg. Co. v. Elliott County Fiscal Court, 239 Ky. 797, 40 S. W. 2d 375 (1931); State v. Minneapolis Street R. Co., 154 Minn. 401, 191 N. W. 1004 (1923); Heather City of Palmyra, 317 Mo. 1320, 298 S. W. 750 (1927); Commonwealth n. Schmidt, 287 Pa. 150, 134 A. 478 (1926); Rutler County v. Pittsburgh, H,, B. & N. C. R. Co., 298 Pa. 347, 148 A. 504 (1929). 358 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. and may be punished for contempt.” Id. at 376. (Emphasis supplied.) See also Commissioners v. Sellew, supra.1 Nor is a distinction to be drawn on the ground that a corporation was there involved while the Joint Anti-Fascist Refugee Committee is an unincorporated association. Brown n. United States, 276 U. S. 134, 141-142 (1928), makes it clear that a subpoena directed to an unincorporated association and its officers is equally valid. If the legislative committee had a right to demand the records, the directing officers of the association are quite as responsible for their production as if they were corporate officers. Cf. United States v. White, 322 U. S. 694 (1944).8 The question that remains is whether, after introducing evidence that the board had power to produce the records, that it had not done so, and that each member of the board had read the identical statements quoted above 7 It is suggested that the Wilson case is distinguishable because it may be inferred from the fact that, according to Government counsel, the Government had been after the records “in one way or another for nearly a month that the subpoenas duces tecum served upon the directors had been supplemented by oral orders. There is not one word in the Wilson record that supports such an inference. On the contrary, the grand jury’s presentment was not for failure to obey any oral commands but “for failure to obey a certain subpoena issued out of this Court, dated October 28, 1910.” Vide the following: “The Court : What is the presentment precisely ? “Mr. Wise [Government Counsel]: The Grand Jury presents that the corporation is in contempt of this court in not obeying the subpoena, that these gentlemen are in contempt of Court in that they have known and had actual notice of .the subpoenas issued to the corporation requiring it to produce these books, and in defiance of this court and of its process have failed to take any action to have their corporation comply with the process, . . . .” 8 The argument that respondent was tried and convicted upon a theory different from that upon which the evidence is here found sufficient to sustain the conviction is refuted by the record, which UNITED STATES v. FLEISCHMAN. 359 349 Opinion of the Court. as his reason for noncompliance, the Government has the further burden of proving that each individual member had not done that which was within his power to bring about compliance with the Committee’s order. It may well be that respondent’s prepared statement before the Committee and her answers to the Committee’s questions are sufficient in themselves to satisfy that requirement. For they indicate clearly that respondent had assumed no personal duty to do anything. The prepared statement was, of course, a patent evasion of the Committee’s demands. While stating that each member of the executive board individually did not have control over the records, it does not deny, as it could not, that the members had power jointly to comply with the subpoenas. Since the subpoenas required that they act jointly—the previous demands on the chairman and the executive secretary individually having been of no avail— the statement that the members individually had no power to comply is completely irrelevant. And when the Committee asked respondent whether she, personally, would permit the Committee to have is full of discussion concerning the import of the Wilson case. The following is representative: “MR. ROGGE [counsel for respondent]: . . . Let’s look at the Wilson case again, which the Court of Appeals passed on [in Barsky v. United States, 167 F. 2d 241, 251]. It says if your members have the right to direct the corporation and fail to take appropriate action; in order to be free of guilt here did Ernestina have to be a propagandist and go to the board members and say before taking action— ‘THE COURT (interposing): When she takes on the responsibility of an executive board member certain responsibilities flow along with that when she does it. MR. ROGGE: She is a member of the executive board. The evidence has shown that. . . . The record also shows that, what you get down to is that Ernestina, in order not to be guilty here, had to see to it that some sort of an affirmative action was taken, and I do not think that is required even under the Wilson case.” 360 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. access to the books, her answer again was an evasion. She said: “I don’t think it is pertinent to say what I should do a week from now.” The difficulty with that position is that it is not for her nor any other member of the board to say that she would make up her mind next week. The return day of the subpoena had arrived. No one so much as hinted that there had been no time to act. The members had gathered in an attorney’s office on April 2, when they received their statements. There was evidence that some members had gathered informally elsewhere to discuss the question of compliance. In fact all were present in the anteroom of the Committee’s chamber on the morning of April 4. If there had been the slightest bent toward compliance, the opportunities were there. When respondent appeared before the Committee, she was asked in effect, as of that time, whether she was a party to the joint refusal to produce the records: “Would you now, right here now, give your consent to this committee to [see the books and records] ?” As one of the members of the Committee stated to respondent: “That is the main thing, the whole case.” Her answer was no answer. It may be argued, however, that respondent may have adopted the position of the other members of the board only after she had tried in good faith to bring about compliance with the subpoena. Or perhaps she had been ill or necessarily out of town immediately prior to April 4. Granting that these or other excuses for nonaction may exist, must the Government negative each, or was the burden on respondent to advance them as defensive matter? We think that the circumstances of this case fairly bring into play the familiar doctrine in criminal cases that “it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circum- UNITED STATES v. FLEISCHMAN. 361 349 Opinion of the Court. stances and which if untrue could be readily disproved by the production of documents or other evidence probably within the defendant’s possession or control.” Rossi v. United States, 289 U. S. 89, 91-92 (1933), and authorities cited. The considerations that govern this question have been well stated by Mr. Justice Cardozo in discussing a similar question—the constitutionality of a statute which shifted the burden of proof in a criminal prosecution to the defendant. He said: “The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. . . For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance . . . , or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, § 79.* The *The Court’s footnote reads: “Instances of the application of this principle can be cited in profusion. The cases that follow are typical examples: King v. Turner, 5 Mau. & Sei. 206, where a defendant having game in his possession in violation of a statute whereby possession was generally a crime, was held to have the burden of 362 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. One can do no more than adumbrate them; sharper definition must await the specific case as it arises.” Morrison v. California, 291 U. S. 82, 88-91 (1934).9 In this situation, manifestly, the prosecution is under a serious practical handicap if it must prove the negative proposition—that respondent did not or had no good reason for failing to try to comply with the subpoena insofar as she was able. The possibilities of time and proving his special qualifications (cf. Yee Hem v. United States, [268 U. S. 178]; also Spieres v. Parker, 1 T. R. 144, per Lord Mansfield); Fleming v. People, 27 N. Y. 329, a prosecution for bigamy, where on proof that the defendant had contracted a second marriage during the lifetime of his first wife, the burden was laid upon him to prove exceptional circumstances that would have made the marriage lawful; and finally such cases as Potter v. Deyo, 19 Wend. 361, 363, and United States v. Turner, 266 Fed. 248 (typical of a host of others) where a defendant has been subjected to the burden of producing a license or a permit for a business or profession that would otherwise be illegal. Cf. United States v. Hayward, 26 Fed. Cas. 240; Board of Comm’rs v. Merchant, 103 N. Y. 143; 8 N. E. 484.” 9 See also Williams v. United States, 78 U. S. App. D. C. 147,138 F. 2d 81 (1943). In Tot v. United States, 319 U. S. 463 (1943), this Court refused to uphold a federal statute creating a presumption that firearms found in the possession of one who has previously been convicted of a crime of violence were received by him in interstate or foreign commerce after July 30, 1938, on the ground that the presumption is “inconsistent with any argument drawn from experience. Id. at 468. UNITED STATES v. FLEISCHMAN. 363 349 Opinion of the Court. circumstance are of such wide range as to defy inclusive rebuttal. On the other hand, the burden of the affirmative was not an oppressive one for respondent to undertake; the relevant facts are peculiarly within her knowledge. She was called upon merely to introduce evidence as to what steps she took after receiving the subpoena, or, if she took no action, any evidence tending to excuse her omission. Respondent does not lose the presumption of innocence that surrounds the defendant in a criminal prosecution. That presumption continues to operate until overcome by proof of guilt beyond a reasonable doubt and is not to be confused with burden of proof, which is a rule affecting merely the time and manner of proof. See 1 Wharton, Criminal Evidence (11th ed.) §§ 199-204.10 10 This conclusion is buttressed by the fact that such a burden ordinarily is cast upon members of the governing boards of corporations and associations which have not complied with court orders, when they are brought into court on contempt charges. In Wilson v. United States, 221 U. S. 361 (1911), where Wilson, the president of the corporation, had custody of the books and had removed them to his home, the corporation and five of its directors were served with subpoenas to produce. The directors appeared in court and were not held in contempt although they did not produce the books because, as this Court noted in its opinion: “On behalf of the directors before the court it was stated that they had made efforts to obtain the books for production before the grand jury, but that Wilson had declined to surrender them. They presented the minutes of a meeting of the board of directors held on that day at which these directors [i. e. those who had been served with subpoenas], constituting a majority of the board, had passed a resolution demanding of Wilson the possession of the letter press copy books called for by the subpoena Tor the production of the same before the Federal Grand Jury.’ ” Id. at 371. Again, in contrasting Wilson’s actions with those of the directors, the Court stated: “The appellant did not attempt to assert any right on [the corporation’s] part; his conduct was in antagonism to the corporation, so far as its attitude is shown. A majority of the directors, not including the appellant, 364 OCTOBER TERM, 1949. Opinion of the Court. 339 U. S. Even though we assume, therefore, contrary to the reasonable inferences to be drawn from respondent’s statements before the Committee, that she may have made some effort to bring about compliance with the subpoena, or had some excuse for failing to do so, we think that under the circumstances here presented the burden was upon her to present evidence to sustain such a defense. And, in the absence of such evidence, we conclude that the evidence adduced by the Government amply sustains the conviction. Respondent is no more or less guilty than any other member of the board. If she can escape prosecution by remaining quiescent, so can all the others. If hers is a valid defense, then all that the directors of a corporation need do when they and the corporation are served with subpoenas is to refrain from discussing compliance with the order. No one need make any attempt to comply, for none of them “individually” has control over the action—or nonaction—of the corporation. A stratagem so transparent does not cast a shadow of substance.11 appeared before the court and urged their solicitude to comply with the writ. They presented their formal action, taken at a meeting of the board, in which they demanded of the appellant the delivery of the books for production before the grand jury.” Id. at 376. In considering this practice it should be noted that in criminal contempts, as in criminal cases, the presumption of innocence obtains; proof of guilt must be beyond a reasonable doubt; and the defendant may not be compelled to be a witness against himself. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911); United States v. Goldman, 277 U. S. 229, 235-236 (1928); Michaelson v. United States, 266 U. S. 42, 67 (1924). 11 The proposition that one who tries but fails to obtain compliance with a subpoena requiring the joint action of several persons has made a useless and “empty gesture” which should not be compelled by the courts overlooks the fact that if enough members of the governing body make the attempt required by the subpoenas their joint effort will ordinarily be successful. In the Wilson case itself UNITED STATES v. FLEISCHMAN. 365 349 Black, J., dissenting. It should be emphasized that we are not dealing with the duties of witnesses summoned by one committee but with the obligations owed by persons summoned by authority of the Senate or House of Representatives to appear before any person or group designated by that authority. Reforms in the practices and procedures of certain committees are vigorously demanded by persons both within and without Congress. We would not be understood in this case as expressing either approval or disapproval of those practices. But the remedy, if any is needed, is certainly not to destroy the effective operation of all committees, which is the necessary result if they cannot compel the disclosure of facts. A subpoena is a sterile document if its orders may be flouted with impunity. Respondent advances a number of contentions which were not passed upon by the Court of Appeals. We do not decide them at this time. The judgment of the Court of Appeals is Reversed. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case. Mr. Justice Black, with whom Mr. Justice Frankfurter concurs, dissenting. The Court holds that there is sufficient evidence in this record to support the conviction of respondent Fleischman under R. S. § 102. I cannot agree. Whether the evidence is sufficient depends primarily on what conduct is made criminal by R. S. § 102 and what action is re- the difference between imprisonment of the directors for contempt and their acquittal was their “empty gesture” of calling upon Wilson to produce the records. See note 10, supra. 366 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. quired by a subpoena duces tecum. My views on these questions differ so drastically from those of the Court that I shall present them, and the conclusions which they dictate, before turning to the Court’s opinion. I. R. S. § 102 provides: “Every person who having been summoned as a witness by the authority of either House of Congress, to give testimony or to produce papers . . . willfully makes default, . . . shall be deemed guilty of a misdemeanor . . . .” This criminal statute is limited by its terms to just two types of congressional orders: (1) a subpoena to give testimony, and (2) a subpoena to produce papers. The latter type of order is involved here. Refusal to comply with a subpoena to produce papers can be punished only if the witness has power to produce. It is a complete defense for him to show that the papers are not in his possession or under his control. For a subpoena duces tecum does not require a witness “to sue and labor in order to obtain the possession of any instrument from another for the purpose of its production afterwards by himself . . . .” Munroe n. United States, 216 F. 107, 111-112, quoting Lord Ellenborough’s opinion in Arney v. Long, 9 East 473, 483; see the general discussion in Notes, 1915B L. R. A. 980-985; 32 Am. St. Rep. 648. A command to produce is not a command to get others to produce or assist in producing. Of course Congress, like a court, has broad powers to supplement its subpoena with other commands requiring the witness to take specific affirmative steps reasonably calculated to remove obstacles to production. But even though disobedience of such supplementary orders can be punished at the bar of Congress as contempt, Jurney v. MacCracken, 294 U. S. 125, it does not come within the limited scope of R. S. § 102. Only by importing the broad contempt powers of Congress into this criminal statute can this Court say that UNITED STATES v. FLEISCHMAN. 367 349 Black, J., dissenting. it does. I cannot agree to such cavalier expansion of any criminal provision. Prosecution under R. S. § 102 is thus limited to a range far narrower than is a proceeding for contempt, either in court or at the bar of Congress. And even under the notoriously broad contempt power, punishment is justifiable only when a person has failed to comply with an order specifying precisely what he must do, and when he has power himself to do what is ordered.1 Certainly no less precise standard should be established in prosecutions for violation of a criminal statute. Cf. Pierce v. United States, 314 U. S. 306, 310-311. Viewed in this light, the evidence in this case unmistakably falls short of proving that Fleischman disobeyed the subpoena or violated the statute. The Government did succeed in establishing that she had received the subpoena, knew approximately what documents she was required to produce, and yet failed to produce them. But an essential ingredient of the offense—that she had power to produce those records on April 4—remains completely unsubstantiated.2 The Government does not contend that Fleischman had power to produce except by acting jointly with other members of the board. And, for the reasons stated above, the subpoena addressed to Fleischman as an individual board member imposed on her no duty to prod others to produce, or to initiate joint action aimed at production.3 1 The two components of this general principle and their application to this case are discussed in II (A) and II (D) infra. 2 The Court’s attempt to offset this deficiency is discussed in II (D) infra. 3 Whether joint action would have been required by a subpoena addressed to the board is completely irrelevant for the reasons set out in note 4 infra. It should be noted, however, that an order to the board as an entity necessarily implies joint action; one addressed to an individual member does not. Moreover, the former is sufficiently 874433 0-50-----28 368 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. Because of the limited scope of R. S. § 102 and the complete absence of proof that Fleischman had power to produce the subpoenaed documents, her conviction of the crime created by that statute should be set aside. II. The Court does not dispute that the evidence is insufficient to uphold Fleischman’s conviction under the established principles outlined above. Rather it constructs a novel legal theory which, however plausible on the surface, will not stand detailed analysis. The chain of reasoning on which its legal theory hangs appears to be this: Fleischman and other members of the executive board were served with separate subpoenas ordering each to produce papers of the association on April 4; Bryan, the executive secretary, had possession of the papers; the individual subpoenas imposed on each board member a personal duty to do all each could to bring about joint action that would cause production; had Fleischman performed her individual part of this joint task, she might have prevailed on the board to pass a resolution which might have forced Bryan to produce; Fleischman failed to show that she had done all she could to bring about that result; therefore Fleischman was properly convicted of the crime of wilfully disobeying the subpoena addressed to her as an individual member of the board. In this intricate chain, certain crucial links are entirely missing and others are far too weak to sustain a criminal conviction: A. The foundation of the Court’s theory is that a subpoena duces tecum addressed to an individual board memspecific if it tells the board exactly what to do; the latter must tell the individual what to do. In either case, the recipient must have power to do what is ordered before punishment is justified. UNITED STATES v. FLEISCHMAN. 369 349 Black, J., dissenting. ber includes the command that he do “all he can” to bring about joint board action to produce the subpoenaed papers.4 This doctrine expands the scope of the subpoena duces tecum far beyond its traditional boundaries, which are outlined in Part I supra. No precedent for such an expansion can be found in the two cases relied on by the Court. Commissioners v. Sellew, 99 U. S. 624, merely approved issuance of a writ of mandamus to a county commission ordering specific action on a specific date as specifically required by Kansas statutes. Such is the traditional function of mandamus. Seldom has a judicial order been more explicit. In sharp contrast to Fleischman, the commissioners were not required to hazard the least guess as to what action would satisfy the judicial mandate. Both that mandate and the applicable state statutes told them precisely what to do.5 Nor does the opinion in Wilson v. United States, 221 U. S. 361, support today’s holding that an order to produce papers requires a person, without further orders, to take action getting others to produce. The Court relies on a dictum that corporate officials can be required to take “appropriate action” to secure performance of a corporate duty. Even the dictum, however, must be read in the context of that case. Wilson, the president of a corporation to which a subpoena was addressed, had actual custody of the subpoenaed records. Appearing before the grand jury with several corporation directors, he re- 4 While a subpoena was also addressed to the board as an entity, there is utterly no evidence that Fleischman ever knew of it. Therefore, like the Court, we treat the case as if no board subpoena had ever been issued. 5 The string of mandamus cases cited in note 6 of the Court’s opinion are equally inapplicable for the same general reason. No case cited supports the Court’s position. 370 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. fused to produce. The directors denied power to make him do so. In the resulting contempt proceedings, the prosecuting attorney complained that the Government had been after the records “in one way or another before this same Grand Jury for nearly a month.” He emphasized that many of the directors had frequently appeared before the grand jury, and indeed had spent the entire preceding day there.6 In view of the frequent and prolonged appearances of the directors before the grand jury, even a passing acquaintance with how a grand jury operates would make it inconceivable that “one way or another” did not include oral orders to take action aimed at forcing Wilson to turn over the records. Whether such orders were specific enough to justify holding the directors in contempt, or whether failure to take any action would justify punishment for violation of the subpoena itself without first ordering the directors to take specific steps, became immaterial when the directors passed a resolution ordering Wilson to produce. The directors were found innocent, and the only issues before this Court involved Wilson’s guilt. Read in this context, the dictum on which the Court relies affords no support whatever for its conclusion here that a subpoena, of itself, imposes the amorphous duty of “appropriate action” to get others to produce. Moreover, citation of the Sellew case as authority for the dictum clearly indicates that the “appropriate action” would have to be designated and commanded by specific orders. Nothing in the Wilson opinion can fairly be interpreted as supplanting, or even casting doubt on, the traditional rule that failure to take action required by an order can be punished only 6 It should be noted that the directors appeared in response to a subpoena addressed to the corporation. Unlike Fleischman, they were not subpoenaed individually. See note 3 supra. UNITED STATES v. FLEISCHMAN. 371 349 Black, J., dissenting. if the action is clearly, specifically, and unequivocally commanded by that order.7 Apparently the only reason given for discarding this rule is the Court’s statement that failure to construe an individual subpoena as requiring joint action by members of a board would “remove such organizations beyond the reach of legislative and judicial commands.” That fear is without foundation. A custodian wilfully failing to produce records can be prosecuted under R. S. § 102. And under 18 U. S. C. § 3, anyone “aiding or abetting” her also becomes a principal in that offense and is similarly subject to R. S. § 102. Moreover, a conspiracy to prevent production would certainly provide grounds for conviction. Thus there is no question that Fleischman’s conviction could be sustained if there had been sufficient evidence that she actually aided or encouraged the custodian’s refusal to produce, or conspired to accomplish that result.8 And in the rare instance where these sanc- 7 See, e. g., McFarland v. United States, 295 F. 648, 650: “Certainly before one may be punished for contempt for violating a court order, the terms of such order should be clear and specific, and leave no doubt or uncertainty in the minds of those to whom it is addressed.” See also Berry n. Midtown Service Corp., 104 F. 2d 107, 111, 122 A. L. R. 1341, and Labor Board v. New York Merchandise Co., 134 F. 2d 949, 952. In the latter case the court, in an opinion by Judge Learned Hand, characterizes as “cardinal” the rule that “no one shall be punished for the disobedience of an order which does not definitely prescribe what he is to do.” For application of the same general rule to contempt proceedings for enforcement of a court decree, see Terminal R. Assn. v. United States, 266 U. S. 17,29. 8 One count of the indictment actually charged Fleischman and other members of the board with conspiracy. That count was dismissed. As for Fleischman’s guilt as an “aider and abettor,” that question was submitted to the jury by the trial judge’s charge. In affirming, this Court does not even suggest that there was evidence to show that Fleischman had ever aided or encouraged Bryan or 372 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. tions seem unlikely to secure compliance, Congress can always fall back upon its arsenal of supplementary orders enforced by congressional contempt proceedings:9 officers with authority to call a board meeting can be ordered to do so, and board members can be ordered to vote for resolutions calculated to foster production. It can be safely presumed that any organization capable of escaping this barrage would not be brought into line by today’s expansion of R. S. § 102. A subpoena is not made “sterile” by holding that it commands only what it says it commands. In fact, the Court’s new doctrine creates a danger far more genuine than what it allegedly avoids. While in contempt proceedings a witness in doubt as to just what action is demanded can be given more precise orders before a tribunal decides to punish him for noncompliance, no such flexibility exists in criminal prosecutions under R. S. § 102. As applied to such prosecutions, the sweeping requirement that a witness not having custody or control of subpoenaed documents must do “all he can” to secure their production places him in an unfair dilemma. Caution dictates that he “sue and labor” to obtain the papers, however great and however useless the effort and expense. On the other hand, common sense counsels that he make such practical efforts as would satisfy a reasonable jury—and not until the jury has spoken will he know whether he guessed right. Not even after today’s opinion can Fleischman—or, for that matter, anyone else—know precisely what steps were anyone else. That Fleischman’s conviction cannot be upheld under existing doctrines does not establish the inadequacy of those doctrines for any purpose except convicting one whose guilt as charged has not been proven. 9 See Part I supra. UNITED STATES v. FLEISCHMAN. 373 349 Black, J., dissenting. required of her to encourage production of documents which she herself could not produce.10 B. Even if the theory on which this Court upholds Fleischman’s conviction were tenable, it is, as might be expected from its novelty, completely different from the theory on which the case was tried. An essential element in the trial judge’s charge was his instruction that the jury could find Fleischman guilty only if it found that she had “acted in concert with other members of the executive board” to prevent production. But the Court, without even attempting to support her conviction on this theory, substitutes a theory involving completely different problems of proof and evidence.11 The issue of whether Fleischman had failed to attempt to persuade others to produce was not being tried, and there was no reason for her to introduce evidence concerning it. The question on review is not whether the record as a whole exudes a general impression of guilt, but whether the evidence supports a finding of guilt on the issues presented to the jury by the trial judge’s charge. Bollenbach v. United States, 326 U. S. 607, 614. This Court should heed its mandates forbidding state appellate courts to uphold convictions on any theory materially different from that on which the case was presented to the jury. See Cole v. Arkansas, 333 U. S. 196, 201-202. 10 There is not the slightest indication that anything Fleischman could have done even had a prospect of fostering compliance with the subpoena. See II (D) infra. Apparently Fleischman’s conviction is being upheld because she failed to make some undefined empty gesture. 11 The Court attempts to justify its change of theories by quoting from a bench argument between Fleischman’s attorney and the trial judge. Such an argument cannot alter the theory on which the case was submitted to the jury by the judge’s charge. 374 OCTOBER TERM, 1949. Black, J., dissenting. 339U.S. C. The Court relies heavily on statements made by Fleischman before the congressional committee. But these statements are expressly made inadmissible by 18 U. S. C. § 3486, which provides that no testimony given by a witness before any committee of either house “shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony.” See United States v. Bryan, ante, pp. 323, 346. Nor does Fleischman’s testimony, even if admissible, support the inferences drawn from it by this Court. Weighty significance is attached to her refusal to say how she would vote on the question of production if a board meeting were held. Suffice it to say that no meeting had been held following her receipt of the subpoena, no future meeting had any relevance whatever to the past offense with which she was charged, and the subpoena did not order her to take action at a board meeting anyway. See Part I supra. Equally unwarranted is the inference drawn by the Court from the fact that Fleischman and other board members read the same statement denying individual possession or control over the subpoenaed documents. The Court refers to this statement, prepared by a lawyer, as a “patent evasion” of the committee’s order. On the contrary, I regard the denial of individual power to produce as a complete and adequate response to the individual subpoenas. And surely, although the Committee would not permit counsel for witnesses to enter the committee room, witnesses have always been entitled to get advice from a qualified lawyer and present a statement prepared by him without having inferences of guilt drawn from that fact. D. Power to produce is an essential ingredient of any offense under R. S. § 102, and the indictment necessarily UNITED STATES v. FLEISCHMAN. 375 349 Black, J., dissenting. alleged that “each and all” of the board members had such power. Thus proof of Fleischman’s power to produce the subpoenaed papers is undeniably vital to the Court’s theory of the case. The only evidence tending to show power in the board itself to produce is that it had authority over the policies and activities of the association, and had power to suspend Bryan at any regular board meeting.12 Assuming that the board could have ordered Bryan to produce under threat of suspension, the Wilson case demonstrates that prospective obedience to such a potential board order cannot accurately be inferred merely from the supremacy of a board. And this record is barren of any evidence to support a finding that Bryan would have complied on April 4th with a board order. Equally important under the Court’s theory is the question of Fleischman’s own power to bring about production. The Court holds that membership on the board gave her one-eighteenth of the board’s official “power,” which it considers enough to support conviction. But her fraction of official “power” could be exercised only at an official meeting. There is no showing that any meeting was held between March 29 and April 4, or that Fleischman had power to call such a meeting.13 And I do not understand 12 Even this evidence comes primarily from Fleischman’s testimony before the congressional committee, and should therefore be held inadmissible. See United States v. Bryan, ante, pp. 323, 346. 13 The Court intimates that Fleischman could have called a meeting when members of the board were gathered in an attorney’s office on April 2d, or an informal gathering of members elsewhere. It should be noted that the prosecutor labored valiantly at the trial to establish that Fleischman visited the attorney’s office or attended some informal meeting. He failed completely in this effort. Despite repeated questions to several witnesses, not one response was evoked indicating that Fleischman ever saw or communicated with a single board member during the interval between the time she was subpoenaed and the time the members met in the anteroom of the 376 OCTOBER TERM, 1949. Black, J., dissenting. 339 U. S. the Court to say that the “power to produce” which Fleischman criminally failed to exercise was solely some imagined personal ability, unconnected with her official capacity, to attempt to cajole the chairman into calling a meeting or ordering production. Upon a showing merely that the board controlled the “policies and activities” of the association and that she was a board member, the Court imposes on Fleischman the burden of disproving the crucial allegation of “power to produce” by establishing that she had done “all she could” to bring about production. In effect it has set up a presumption that every board member automatically has such power, and has saddled Fleischman with the burden of proving her innocence by showing that the presumption should not apply to her.14 In the absence of some showing that she had authority to call or an opportunity to vote at an official board meeting, or at least had substantial influence over other board members, this is every bit as arbitrary as the presumption rejected in Tot v. Committee. As for the suggestion that Fleischman might have called a meeting in the anteroom of the Committee’s chambers, it is strange doctrine to assert that the Committee’s command that all members appear was enough to require automatically that each member call a meeting. If that was what the Committee wanted, it could have ordered a meeting itself. In any event, “opportunity” to call a meeting cannot be equated with official “power” to call a meeting. There is no evidence even intimating that she had such authority. 14 This theory sharply contrasts with the established principle that corporate and association officials, like other persons, can be held guilty only for their own crime, and not for the crimes of their associates in which there is no proof that they participated. Any contrary doctrine is a startling innovation in the laws of this country. See Brotherhood of Carpenters v. United States, 330 U. S. 395, 406-407. See also cases collected in Notes, 33 A. L. R. 787; 16 L. R. A. (N. S.) 333; 8 Ann. Cas. 383. UNITED STATES v. FLEISCHMAN. 377 349 Frankfurter, J., dissenting. United States, 319 U. S. 463.15 That case directly bars use of such a device to shift the burden of proof, however convenient it would be for the prosecutor. And without that device, the Government’s case was clearly insufficient to support the verdict. The time-honored rule, that the Government is required to prove every essential ingredient of an offense it charges, provides a safeguard essential to preservation of individual liberty against governmental oppression. It should not be sacrificed in order to sustain the conviction of a single defendant whose guilt the Government has plainly failed to prove. ***** If the Court’s theory merely had any one of the above flaws, its chain of reasoning would break. With all four, it collapses. The judgment of the Court of Appeals should be affirmed. Mr. Justice Frankfurter, dissenting. Anyone who “willfully makes default” in obeying a valid subpoena to produce records before a committee of Congress has, ever since 1857, been guilty of a federal 15 See note 9 of the Court’s opinion. Under the Tot rule, the minimum justification for such a presumption would be general experience that the most insignificant member of a board has power, if she “does all she can,” to secure board production of documents held by its custodian. Experience not only fails to support this premise; as anyone familiar with the loose-jointed structure of nonprofit associations should know, most members or most boards are wholly subordinate to the executive secretary and the chairman. This is one of the “many significant respects” in which such associations obviously differ from business corporations. See United States v. White, 322 U. S. 694, 697. Not a single line in Rossi v. United States, 289 U. S. 89, or Morrison v. California, 291 U. S. 82, supports the “presumption” retroactively created here. As a basis of “power to produce,” mere board membership is no substitute for possession, custody or control. 378 OCTOBER TERM, 1949. Frankfurter, J., dissenting. 339 U. S. offense. Act of January 24, 1857, 11 Stat. 155, R. S. § 102, as amended by Joint Resolution of June 22, 1938, 52 Stat. 942, now 2 U. S. C. § 192. This was the offense for which respondent was prosecuted. The trial court thus put to the jury the theory of the prosecution: “If you find that the members of the executive board, directly or indirectly, had custody or dominion and control over the records subpoenaed and could have produced the records called for, but wilfully failed and refused to do so, and that the defendant Fleischman acted in concert with other members of the executive board, either throughout or at any point, to prevent the committee from getting the subpoenaed records, then you may find the defendant Fleischman guilty, if you find that the other elements hereinafter set out have been proved by the United States beyond a reasonable doubt.” The only “other element” that bears on the issue of the sufficiency of the evidence was the court’s explanation that the requirement that the default be made “willfully” means that the default must be “deliberate and intentional.” The indictment against respondent also had a count charging her and others with conspiring to make willful default of congressional subpoenas. It is inappropriate to consider whether the evidence would have been sufficient to bring respondent within the expansive range of a conspiracy charge or whether evidence that could have been admitted under such a charge but was not admissible in this trial would have sufficed to prove guilt. For its own good reasons the Government dismissed the conspiracy charge against Fleischman. A careful study of the record compels the conclusion that Edgerton, J. conveyed fairly and in balance all that the Government UNITED STATES v. FLEISCHMAN. 379 349 Frankfurter, J., dissenting. proved against respondent on the charge on which she was tried: “Appellant testified without contradiction that she could not produce the records because they were not in her possession or control. She refused to express either willingness or unwillingness that they be produced.8 Even this refusal did not occur until she was questioned by members of the Congressional Committee on April 4. The records were in possession of one Bryan, subject to control by an Executive Board of about 18 members of whom appellant was one. Long before April 4 Bryan, directed by other members of the Board but not by the appellant, had determined not to produce the records. There is no evidence that appellant ratified or approved the action of the other members of the . Board. The government says Tn taking part in a combined action to withhold records from a Congressional Committee the appellant acted at her own peril.’ But I have not been able to find any evidence, and no evidence has been pointed out, that the appel- “8 supra.') No. 496. Matthews et al. v. United States. C. A. 5th Cir. Certiorari denied. W. A. Bootle for petitioners. Solicitor General Perlman, James M. McInerney and Robert S. Erdahl for the United States. Reported below: 177 F. 2d 278. DECISIONS PER CURIAM ETC. 911 339 U.S. March 13, 1950. No. 506. Crain et al., Trustees, v. United States. Court of Claims. Certiorari denied. Geo. E. H. Good-ner and Scott P. Crampton for petitioners. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and John R. Benney for the United States. Reported below: 114 Ct. Cl. 94, 84 F. Supp. 876. No. 514. MacDonald et al. v. United States. Court of Claims. Certiorari denied. M. Walton Hendry, Bernard J. Gallagher and J. Roy Thompson, Jr. for petitioners. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States. Reported below: 113 Ct. Cl. 300, 83 F. Supp. 702. Nos. 520,521,522,523 and 524. Paramount Pictures, Inc. et al. v. Ball. C. A. 3d Cir. Certiorari denied. Charles E. Kenworthey, Wm. A. Schnader, Bernard G. Segal and Arlin M. Adams for petitioners. Joseph W. Henderson for respondent. Reported below: 176 F. 2d 1023. No. 525. Clement v. Woods, Housing Expediter. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Ed Dupree and Nathan Siegel for respondent. Reported below: 177 F. 2d 376. No. 530. Seaboard Air Line Railroad Co. v. Prosser et al. Supreme Court of South Carolina. Certiorari denied. James B. McDonough, Jr. for petitioner. Reported below: 216 S. C. 33, 56 S. E. 2d 591. No. 537. Pointer, doing business as Pointer-Wil-lamette Co., v. Six Wheel Corp. C. A. 9th Cir. Certiorari denied. Harold L. Cook and Lee R. Schermerhorn for petitioner. Reported below: 177 F. 2d 153. 912 OCTOBER TERM, 1949. March 13, 1950. 339 U.S. No. 538. New York ex rel. Choolokian v. Mission of the Immaculate Virgin et al. Court of Appeals of New York. Certiorari denied. Louis B. Boudin and Samuel M. Blinken for petitioner. Charles G. Coster, Joseph V. McKee and Porter R. Chandler for the Mission of the Immaculate Virgin et al.; and John P. McGrath for Hilliard, respondents. Reported below: 300 N. Y. 43, 88 N. E. 2d 362. No. 540. Blanchard Machine Co. v. Reconstruction Finance Corporation Price Adjustment Board. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Frank B. Wallis for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Newell A. Clapp, Paul A. Sweeney and Melvin Richter for respondent. Reported below: 85 U. S. App. D. C. 361,177 F. 2d 727. No. 541. De Sairigne v. Gould. C. A. 2d Cir. Certiorari denied. Martin J. Kelly, Jr. for petitioner. John T. Cahill for respondent. Reported below: 177 F. 2d 515. No. 543. Jiffy Lubricator Co. v. Alemite Company. C. A. 8th Cir. Certiorari denied. Leonard L. Kalish and C. A. Taney, Jr. for petitioner. Casper W. Ooms, Herbert G. Nilles, John D. Black and Elwood Hansmann for respondent. Reported below: 176 F. 2d 444. No. 545. Carpenter v. Erie Railroad Co. C. A. 2d Cir. Certiorari denied. Petitioner pro se. J. Roger Carroll for respondent. Reported below: 178 F. 2d 921. No. 549. Kalb v. Feuerstein et al. C. A. 7th Cir. Certiorari denied. Wm. Lemke for petitioner. J. Arthur Moran for respondents. Reported below: 177 F. 2d 243. DECISIONS PER CURIAM ETC. 913 339 U. S. March 13, 1950. No. 550. Block et al. v. Detroit Harbor Terminals, Inc. C. A. 6th Cir. Certiorari denied. Meyer Abrams for petitioners. Hugh Francis for respondent. Reported below: 179 F. 2d 236. No. 553. Sic v. Commissioner of Internal Revenue. C. A. 8th Cir. Certiorari denied. Don W. Stewart for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Lee A. Jack-son for respondent. Reported below: 177 F. 2d 469. No. 557. Overlakes Freight Corp. v. Murphy, Administratrix. C. A. 2d Cir. Certiorari denied. Ulysses S. Thomas for petitioner. Frank Bloom for respondent. Reported below: 177 F. 2d 342. No. 560. Trapp v. United States. C. A. 10th Cir. Certiorari denied. C. E. Ram Morrison, John B. Dudley and Charles H. Garnett for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack for the United States. Reported below: 177 F. 2d 1. No. 565. Young v. United States. C. A. 9th Cir. Certiorari denied. Hugh H. Obear and Orville H. Wal-bum for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 178 F. 2d 78. No. 566. Mitchell et al. v. White Consolidated, Inc. C. A. 7th Cir. Certiorari denied. Jay E. Darlington for petitioners. Oscar C. Strom and Edmond J. Leeney for respondent. Reported below: 177 F. 2d 500. No. 567. Lyle v. Atchison, Topeka & Santa Fe Railway Co. et al. C. A. 7th Cir. Certiorari denied. 914 OCTOBER TERM, 1949. March 13, 1950. 339 U. S. George F. Barrett for petitioner. Floyd J. Stuppi, R. S. Outlaw and Thomas J. Barnett for respondents. Reported below: 177 F. 2d 221. No. 569. Beverage, Administrator, et al. v. Farm Bureau Mutual Automobile Insurance Co. C. A. 4th Cir. Certiorari denied. Joseph A. Fanelli, H. G. Munt-zing and Glenn W. Ruebush for petitioners. Wayt B. Timberlake, Jr. and Robert Lewis Young for respondent. Reported below: 177 F. 2d 793. No. 576. L. N. Jackson & Co., Inc. v. Royal Norwegian Government. C. A. 2d Cir. Certiorari denied. Copal Mintz for petitioner. James McKown, Jr. for respondent. Reported below: 177 F. 2d 694. No. 494. Schoeps v. Carmichael, District Director, Immigration and Naturalization Service. C. A. 9th Cir. Landon, present District Director, substituted for Carmichael. Certiorari denied. A. L. Wirin and Fred Okrand for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Israel Convisser for respondent. Reported below: 177 F. 2d 391. No. 517. Cohen et al. v. United States. C. A. 2d Cir. Certiorari denied. Petitioners pro se. Solicitor General Perlman, James M. McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 177 F. 2d 523. No. 578. Walsh v. Walsh. Supreme Court of Louisiana. Certiorari denied. Alvin L. Newmyer, David G. Bress and Sheldon E. Bernstein for petitioner. Sidney L. Herold for respondent. Reported below: 215 La. 1099, 42 So. 2d 860. DECISIONS PER CURIAM ETC. 339 U. S. March 13, 1950. 915 No. 607. Jacobs, doing business as Henry E. Jacobs & Co., v. Charles Peckat Manufacturing Co. et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Black is of the opinion certiorari should be granted. Harry Abrahams for petitioner. Bernard A. Schroeder and Jules L. Brady for respondents. Reported below: 178 F. 2d 794. No. 275, Mise. Wilfong v. Swope, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 177 F. 2d 144. No. 315, Mise. Quinn v. New York. Court of Appeals of New York. Certiorari denied. No. 333, Mise. Campbell v. Ashe, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 347, Mise. Baker v. Kentucky. Court of Appeals of Kentucky. Certiorari denied. Petitioner pro se. A. E. Funk, Attorney General of Kentucky, and Zeb A. Stewart, Assistant Attorney General, for respondent. Reported below: 311 Ky. 410, 224 S. W. 2d 433. No. 368, Mise. Linnaberry v. Iowa. Supreme Court of Iowa. Certiorari denied. No. 377, Mise. Harrod v. Kentucky. Court of Appeals of Kentucky. Certiorari denied. Reported below: 311 Ky. 810, 226 S. W. 2d 4. No. 378, Mise. Vermillion v. Meyer et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. 916 OCTOBER TERM, 1949. March 13, 1950. 339 U. S. No. 380, Mise. Smith v. Arkansas. Supreme Court of Arkansas. Certiorari denied. Reported below: 216 Ark. 1, 223 S. W. 2d 1011. No. 393, Mise. Patterson v. Georgia. Supreme Court of Georgia. Certiorari denied. Warren E. Hall, Jr. for petitioner. Reported below: 206 Ga. 260, 56 S. E. 2d 501. Rehearing Denied. (See also Mise. Nos. 28^, 285 and 303, supra.) No. 48. Savorgnan v. United States et al., 338 U. S. 491; No. 417. Cawthorn v. United States, 338 U. S. 909; No. 505. Transport, Trading & Terminal Corp. v. Commissioner of Internal Revenue, 338 U. S. 955; No. 508. Owens v. United States, 338 U. S. 955; No. 535. Horner v. United States, 338 U. S. 956; No. 90, Mise. Crowe v. United States, 338 U. S. 950; No. 255, Mise. Thompson v. Robinson, Warden, 338 U. S. 950; No. 287, Mise. Avelino v. Heinze, Warden, 338 U. S. 941; and No. 345, Mise. Perez v. New York, 338 U. S. 952. The petitions for rehearing in these cases are severally denied. No. 106, Mise. Griffin v. United States, 338 U. S. 952. Rehearing denied. Mr. Justice Clark took no part in the consideration or decision of this application. No. 377, Mise., October Term, 1948. Ferguson, Temporary Administrator, et al. v. Ferguson, 337 U. S. 943. Second petition for rehearing denied. DECISIONS PER CURIAM ETC. 917 339 U. S. March 27, 1950. March 27,1950. Per Curiam Decision. No. 653. Stone, Chairman of the State Tax Commission, v. Reichman-Crosby Co. Appeal from the Supreme Court of Mississippi. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. J. H. Sumrail for appellant. & Rufus Creekmore for appellee. Reported below: 43 So. 2d 184. Miscellaneous Orders. No. 360, Mise. No. 366, Mise. No. 385, Mise, and Wagner v. Louisiana; Haines v. Ragen, Warden ; Pierce v. Cranor, Superintendent; No. 408, Mise. Taylor v. Squier, Warden. The motions for leave to file petitions for writs of habeas corpus in these cases are severally denied. No. 407, Mise. Couture v. Cranor, Superintendent. The motion for leave to file petition for writ of certiorari is denied. No. 439, Mise. In re O’Neill. The petition is denied. Thomas J. O'Neill, pro se. Certiorari Granted. No. 596. Harris v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari granted limited to Questions “2” and “3” presented by the petition for the writ, i. e.: “2. Were the transfers made by the petitioner to her husband under a property settlement agreement dated 874433 O—50---59 918 OCTOBER TERM, 1949. March 27, 1950. 339 U.S. February 27, 1943, incidental to a Nevada divorce, made for an adequate and full consideration in money or money’s worth and thus not subject to gift tax? “3. Were the transfers made by the petitioner to her husband in 1943, in payment and discharge of a legal obligation imposed by the judgment of the Nevada Court entered March 6, 1943, and thus not subject to gift tax?” Irwin N. Wilpon for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and I. Henry Kutz for respondent. Reported below: 178 F. 2d 861. No. 597. Missouri ex rel. Southern Railway Co. v. Mayfield, Circuit Court Judge; and No. 598. Missouri ex rel. Atchison, Topeka & Santa Fe Railway Co. v. Murphy, Circuit Court Judge. Supreme Court of Missouri. Certiorari granted. Sidney S. Aiderman, Bruce A. Campbell and H. G. Hedrick for petitioner in No. 597. Floyd E. Thompson, J. C. Gibson and R. S. Outlaw for petitioner in No. 598. Reported below: 359 Mo. 827, 224 S. W. 2d 105. Certiorari Denied. (See also No. 653 and Mise. No. 407, supra.) No. 499. Church v. Michigan. Supreme Court of Michigan. Certiorari denied. Warren E. Miller for petitioner. Stephen J. Roth, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J-O’Hara, Assistant Attorney General, for respondent. No. 561. Standard Commercial Tobacco Co. et al. v. Snyder, Secretary of the Treasury, et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Harold G. Aron, Raymond L. Wise and Richard L. Merrick for petitioners. Solicitor DECISIONS PER CURIAM ETC. 919 339U.S. March 27, 1950. General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Morton Hollander for respondent. Reported below: 85 U. S. App. D. C. 425, 176 F. 2d 951. No. 572. Winkler et al. v. Maryland. Court of Appeals of Maryland. Certiorari denied. I. Duke Avnet for petitioners. Hall Hammond, Attorney General of Maryland, Kenneth C. Proctor, Assistant Attorney General, and Anselm Sodaro for respondent. Reported below: 69 A. 2d 674. No. 573. Atlantic Coast Line Railroad Co. v. Scarborough. C. A. 4th Cir. Certiorari denied. J. M. Townsend and Collins Denny, Jr. for petitioner. Reported below: 178 F. 2d 253. No. 574. Piedmont Cotton Mills v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. William A. Sutherland and Joseph B. Brennan for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Melva M. Graney for respondent. Reported below: 177 F. 2d 148. No. 575. Conner et al. v. Pennsylvania Railroad Co. et al.; No. 645. Pennsylvania Railroad Co. v. Conner et al.; and No. 646. Brotherhood of Railroad Trainmen et al. v. Conner et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. John W. Cragun, Thomas Searing Jackson and Riley A. Gwynn for petitioners in No. 575. Guy W. Knight, R. N. Clattenburg, Hugh B. Cox and James G. Johnson, Jr. for the Pennsylvania Railroad Co., petitioner in No. 645 and respondent in No. 575. Carl McFarland and Ken- 920 OCTOBER TERM, 1949. March 27, 1950. 339 U.S. neth L. Kimble for the Brotherhood of Railroad Trainmen et al., petitioners in No. 646 and respondents in No. 575. Reported below: 85 U. S. App. D. C. 233, 177 F. 2d 854. No. 577. Hartford Fire Insurance Co. v. Roberto et al. C. A. 7th Cir. Certiorari denied. Clarence G. Myers for petitioner. Hector A. Brouillet for respondents. Reported below: 177 F. 2d 811. No. 588. Waialua Agricultural Co., Ltd. v. Ma-neja et al. C. A. 9th Cir. Certiorari denied. Rufus G. Poole, John A. Danaher, Milton C. Denbo and Philip Levy for petitioner. Reported below: 178 F. 2d 603. No. 589. American Bantam Car Co. v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari denied. David Berger for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack for respondent. Reported below: 177 F. 2d 513. No. 602. Lee et al. v. Pan American Airways, Inc. Supreme Court of New York, County of Westchester. Certiorari denied. Harold J. Sherman for petitioners. Donald Havens for respondent. No. 605. Cohen et al. v. United States. C. A. 6th Cir. Certiorari denied. Sidney G. Kusworm for petitioners. Solicitor General Perlman, Assistant Attorney General McInerney and Robert S. Erdahl for the United States. Reported below: 178 F. 2d 588. No. 612. Davis v. Prose et al. C. A. 7th Cir. Certiorari denied. Howard T. Batman and David I. Day, Jr. for petitioner. Solicitor General Perlman filed a memorandum for the United States, respondent, stating that the Government occupies the role of a stakeholder and takes no position as to whether the writ of certiorari DECISIONS PER CURIAM ETC. 339U.S. March 27, 1950. 921 should issue. Robert J. McPeak and Ernest M. Causey for Prose, respondent. Reported below: 177 F. 2d 478. No. 552. Mestice v. Masi. Supreme Court of New Jersey. The motion for leave to file a substituted petition is granted. Certiorari denied. Reported below: 3 N. J. 380, 70 A. 2d 539. No. 564. Litton v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 177 F. 2d 416. No. 166, Mise. McGough et al. v. Hiatt, Warden. C. A. 5th Cir. Certiorari denied. Reported below: 174 F. 2d 353. No. 170, Mise. Alred v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 177 F. 2d 193. No. 202, Mise. Crombie v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. Ivan A. Elliott, Attorney General of Illinois, William C. Wines, James C. Murray and Raymond S. Sarnow, Assistant Attorneys General, for respondent. No. 207, Mise. Crombie v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. Petitioner pro se. Ivan A. Elliott, Attorney General of Illinois, William C. Wines, James C. Murray and Raymond S. Sarnow, Assistant Attorneys General, for respondent. No. 221, Mise. Illinois ex rel. Marino v. Ragen, Warden; and No. 222, Mise. Marino v. Illinois. Supreme Court of Illinois. Certiorari denied. Wm. Scott Stewart for 922 OCTOBER TERM, 1949. March 27, 1950. 339 U. S. petitioner. Ivan A. Elliott, Attorney General of Illinois, for respondents. Robert R. Canfield filed a brief for Winnebago County, as amicus curiae, supporting respondents. Reported below: 404 Ill. 35, 37, 88 N. E. 2d 7, 8. No. 246, Mise. Kelly v. District Commandant, U. S. Navy, et al. C. A. 2d Cir. Certiorari denied. D. George Poston for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for respondents. Reported below: 177 F. 2d 369. No. 261, Mise. James v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 177 F. 2d 373. No. 264, Mise. Jones v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 177 F. 2d 373. No. 265, Mise. Kinney v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 177 F. 2d 895. No. 276, Mise. Moss v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 177 F. 2d 438. No. 278, Mise. Holt v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 177 F. 2d 711. No. 302, Mise. Clark v. Order of United Commercial Travelers of America. C. A. 5th Cir. Certiorari denied. Robert Wilson Smith, Jr. and Hosea Alexander Stephens for petitioner. Harry L. Greene for respondent. Reported below: 177 F. 2d 467. DECISIONS PER CURIAM ETC. 923 339 U. S. March 27, 1950. No. 305, Mise. Robinson v. United States. C. A. 5th Cir. Certiorari denied. J. Edward Thornton for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States. Reported below: 177 F. 2d 582. No. 313, Mise. Royal v. Royal. Probate Court of the County of Norfolk, Massachusetts. Certiorari denied. Alfred A. Albert for petitioner. Nathan H. David for respondent. No. 317, Mise. Marron, Administratrix, v. Atlantic Refining Co. C. A. 3d Cir. Certiorari denied. Abraham E. Freedman for petitioner. Otto Wolff, Jr. for respondent. Reported below: 176 F. 2d 313. No. 331, Mise. Baumet v. United States et al. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman for the United States; and George G. Gallantz and Thomas Thacher for Peters, Executrix, respondents. Reported below: 177 F. 2d 806. No. 344, Mise. Hawk v. Nebraska. Supreme Court of Nebraska. Certiorari denied. Francis P. Matthews for petitioner. Reported below: 151 Neb. 717, 39 N. W. 2d 561. No. 346, Mise. Wilson v. Ragen, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 178 F. 2d 269. No. 348, Mise. Dalton et al. v. Florida. Supreme Court of Florida. Certiorari denied. Wm. W. Flournoy for petitioners. Reported below: 42 So. 2d 174. No. 352, Mise. Fredrick v. Eidson, Warden. Supreme Court of Missouri. Certiorari denied. 924 OCTOBER TERM, 1949. March 27, 1950. 339 U. S. No. 355, Mise. Brooks v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 358, Mise. Null v. Michigan. Supreme Court of Michigan. Certiorari denied. No. 361, Mise. Meyers v. Ragen, Warden. Circuit Court of Will County, and the Supreme Court of Illinois. Certiorari denied. No. 362, Mise. Schectman v. Foster, Warden. C. A. 2d Cir. Certiorari denied. No. 363, Mise. Treadway v. Morhous, Warden. Supreme Court of New York. Certiorari denied. No. 367, Mise. Borday v. Burke, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 369, Mise. Moore v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 405 Ill. 220, 89 N. E. 2d 731. No. 373, Mise. Almeida v. Pennsylvania. Supreme Court of Pennsylvania. Certiorari denied. Thomas J. Minnick, Jr. for petitioner. Colbert C. McClain and John H. Maurer for respondent. Reported below: 362 Pa. 596, 68 A. 2d 595. No. 383, Mise. McCullough v. New York. Supreme Court of New York. Certiorari denied. No. 386, Mise. Novak v. Pennsylvania. Supreme Court of Pennsylvania. Certiorari denied. DECISIONS PER CURIAM ETC. 925 339 U. S. March 27, 1950. No. 389, Mise. Wicks v. Supreme Court of Indiana. Supreme Court of Indiana. Certiorari denied. No. 394, Mise. Nonn v. Michigan et al. Supreme Court of Michigan. Certiorari denied. No. 395, Mise. Bute v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. No. 397, Mise. Rheim v. Lyons, Commissioner. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Nathaniel L. Goldstein, Attorney General of New York, Wendell P. Brown, Solicitor General, Herman N. Harcourt and George A. Radz, Assistant Attorneys General, for respondent. No. 398, Mise. Tanthorey v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 401, Mise. Skinner v. Robinson, Warden. Circuit Court of Randolph County, Illinois. Certiorari denied. No. 402, Mise. Taylor v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. No. 403, Mise. Valecek v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 404 Ill. 461, 89 N. E. 2d 368. No. 405, Mise. Plaine v. Burford, Warden. C. A. 10th Cir. Certiorari denied. Reported below: 180 F. 2d 724. No. 409, Mise. Stevens v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. 926 OCTOBER TERM, 1949. March 27, 1950. 339 U. S. No. 356, Mise. Marks v. Ragen, Warden. On petition for writ of certiorari to the Circuit Court of Randolph County, Illinois; and No. 404, Mise. James v. Ragen, Warden. On petition for writ of certiorari to the Criminal Court of Cook County, Illinois. The petition for writ of certiorari in each of these cases is denied without consideration of the questions raised therein and without prejudice to the institution by petitioner of proceedings in any Illinois state court of competent jurisdiction under the Act of August 4, 1949, entitled: “An Act to provide a remedy for persons convicted and imprisoned in the penitentiary, who assert that rights guaranteed them by the Constitution of the United States or the State of Illinois, or both, have been denied or violated, in proceedings in which they were convicted.” Laws of Illinois, 1949, p. 722. Rehearing Denied. No. 77. Solesbee v. Balkcom, Warden, ante, p. 9; No. 119. Wissner et al. v. Wissner, 338 U. S. 655; No. 488. National Maritime Union of America et al. v. National Labor Relations Board, 338 U. S. 954; No. 301, Mise. Tate v. Heinze, Warden, 338 U. S. 956; and No. 316, Mise. Story v. Burford, Warden, 338 U. S. 951. The petitions for rehearing in these cases are severally denied. Mr. Justice Douglas took no part in the consideration or decision of these applications. No. 76, Mise., October Term, 1945. Stizza v. Essex County Juvenile and Domestic Relations Court, 326 U. S. 696. Second petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. DECISIONS PER CURIAM ETC. 927 339 U. S. April 3, 1950. April 3, 1950. Per Curiam Decision. No. 657. Holmes et al. v. United States et al. Appeal from the United States District Court for the Southern District of New York. Per Curiam: The motion to affirm is granted and the judgment is affirmed. David M. Palley for appellants. Solicitor General Perlman and Daniel W. Knowlton for the United States and the Interstate Commerce Commission; and Harold J. Gallagher and Mark F. Hughes for the Macon, Dublin & Savannah Railroad Co., appellees. Reported below: 89 F. Supp. 894. Miscellaneous Order. No. 590. Pannell v. United States. Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit dismissed on motion of counsel for the petitioner. David Berger and Thomas D. McBride for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack for the United States. Reported below: 178 F. 2d 98. Certiorari Granted. No. 609. Gara v. United States. C. A. 6th Cir. Certiorari granted. John W. MacDonald for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Briefs of amici curiae supporting petitioner were filed by Claude C. Smith and Harold Evans for the American Friends Service Committee, Inc., and Cable M. Gibson for the Ohio Pastors Convention. Reported below: 178 F. 2d 38. Certiorari Denied. No. 591. Croessant v. United States. C. A. 3d Cir. Certiorari denied. David Berger, Thomas D. McBride 928 OCTOBER TERM, 1949. April 3, 1950. 339 U. S. and William J. Duiker for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack for the United States. Reported below: 178 F. 2d 96. No. 603. Eckert-Fair Construction Co. v. Capitol Steel & Iron Co. C. A. 5th Cir. Certiorari denied. J. N. Townsend, Jr. for petitioner. Reported below: 178 F. 2d 338. No. 606. London Guarantee & Accident Co., Ltd. et al. v. Behrle. Supreme Court of Rhode Island and Providence Plantations. Certiorari denied. George A. Chadwick, Jr. for petitioners. Santi J. Paul for respondent. Reported below: 75 R. I.-------, 68 A. 2d 63. No. 611. Schurink v. United States et al. C. A. 5th Cir. Certiorari denied. J. Edward Thornton and Vincent F. Kilborn for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States; and S. P. Gaillard, Jr. for Alley et al., respondents. Reported below: 177 F. 2d 809. No. 617. Pennsylvania v. Curtis Publishing Co. Supreme Court of Pennsylvania. Certiorari denied. T. McKeen Chidsey, Attorney General of Pennsylvania, David Fuss, Deputy Attorney General, and Harry F. Stambaugh for petitioner. William H. Wood, Charles W. Hull and Geo. Ross Hull for respondent. Reported below: 363 Pa. 299, 69 A. 2d 410. No. 642. Keyes v. Madsen et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. W. Gwynn Gardiner and James M. Earnest for petitioner. Vernon E. West, Chester H. Gray and Milton D. Korman for respondent. Reported below: 86 U. S. App. D. C. 24, 179 F. 2d 40. DECISIONS PER CURIAM ETC. 929 339 U. S. April 3, 1950. No. 655. Burlington Transportation Co. v. Stoltz. C. A. 10th Cir. Certiorari denied. A. X. Erickson for petitioner. Clay R. Apple for respondent. Reported below: 178 F. 2d 514. No. 601. Atlantic Coast Line Railroad Co. et al. v. St. Joe Paper Co. et al. C. A. 5th Cir. Certiorari denied. John W. Davis, Edgar G. Crossman, Edward W. Bourne, Charles Cook Howell and Richard B. Gwathmey for petitioners. James F. Byrnes, Giles J. Patterson and Donald Russell for the St. Joe Paper Co.; Robert R. Milam, Fred N. Oliver and Willard P. Scott for Lynch et al.; Clifton S. Thomson, Chester Bedell, Robert M. McCulloch and Gerhard R. Gerhard for the Manhattan Company et al.; and John M. Allison for Conn, respondents. Reported below: 179 F. 2d 538. No. 217, Mise. Cradle v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 85 U. S. App. D. C. 315, 178 F. 2d 962. No. 365, Mise. Ball v. Alabama. Supreme Court of Alabama. Certiorari denied. G. Ernest Jones and G. Ernest Jones, Jr. for petitioner. A. A. Carmichael, Attorney General of Alabama, and James T. Hardin, Assistant Attorney General, for respondent. Reported below: 252 Ala. 686, 42 So. 2d 626. No. 424, Mise. Simpson v. Louisiana. Supreme Court of Louisiana. Certiorari denied. G. Wray Gill for petitioner. Reported below: 216 La. 212, 43 So. 2d 585. 930 OCTOBER TERM, 1949. April 10, 1950. 339 U.S. April 10, 1950. Miscellaneous Orders. No. 432, Mise. Jeronis v. Michigan. Application denied. No. 438, Mise. Ruoff v. McLaughlin, U. S. District Judge. The motion for leave to file petition for writ of mandamus is denied. Mr. Justice Clark took no part in the consideration or decision of this application. Raoul Berger and Jack Wasserman for petitioner. Certiorari Granted. (See No. 236, ante, p. 258.) Certiorari Denied. No. 547. Snyder v. Woods, Housing Expediter. United States Emergency Court of Appeals. Certiorari denied. Petitioner pro se. Solicitor General Perlman, John R. Benney, Ed Dupree, Charles P. Lift and Philip Travis for respondent. No. 580. United States v. Union Pacific Railroad Co. Court of Claims. Certiorari denied. Solicitor General Perlman for the United States. T. W. Bockes, Elmer B. Collins and Lawrence Cake for respondent. Reported below: 114 Ct. Cl. 714, 86 F. Supp. 907. No. 604. Tex-O-Kan Flour Mills Co., doing business as Perry Burrus Elevators, v. Texas & Pacific Railway Co. C. A. 5th Cir. Certiorari denied. Frank A. Leffingwell for petitioner. Bryan F. Williams filed a brief for the Board of Trustees of the Galveston Wharves et al., as amici curiae, supporting petitioner. Reported below: 178 F. 2d 89. DECISIONS PER CURIAM ETC. 931 339 U.S. April 10, 1950. No. 610. Strong, trading as Strong Manufacturing Co., v. Smith, Collector of Internal Revenue. C. A. 3d Cir. Certiorari denied. Filindo B. Masino for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Robert N. Anderson for respondent. Reported below: 178 F. 2d 664. No. 615. Mansavage v. United States. C. A. 7th Cir. Certiorari denied. Hayden C. Covington for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 178 F. 2d 812. No. 618. Continental Oil Co. v. Jones, Collector of Internal Revenue. C. A. 10th Cir. Certiorari denied. David A. Richardson for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Melva M. Graney for respondent. Reported below: 177 F. 2d 508. No. 619. Wilmington Trust Co. v. Mutual Life Insurance Co. C. A. 3d Cir. Certiorari denied. E. Ennalls Berl, Wm. S. Potter and Theodore S. Hope, Jr. for petitioner. Charles I. Thompson and James R. Mor-ford for respondent. Reported below: 177 F. 2d 404. No. 633. Keokuk Steel Casting Co. v. Lawrence. C. A. 10th Cir. Certiorari denied. G. C. Spillers for petitioner. Reported below: 178 F. 2d 788. No. 650. New York Life Insurance Co. v. Schiel et al. C. A. 9th Cir. Certiorari denied. Denison Kitchel for petitioner. J. Andrew West for respondents. Reported below: 178 F. 2d 729. 932 OCTOBER TERM, 1949. April 10, 1950. 339 U. S. No. 622. Phillips V. Commissioner of Internal Revenue ; No. 623. Phillips v. Commissioner of Internal Revenue ; No. 624. Phillips v. Commissioner of Internal Revenue ; No. 625. Phillips v. Commissioner of Internal Revenue ; No. 626. Phillips v. Commissioner of Internal Revenue ; No. 627. Succop v. Commissioner of Internal Revenue ; No. 628. Estate of Phillips et al. v. Commissioner of Internal Revenue; No. 629. Estate of Phillips v. Commissioner of Internal Revenue ; and No. 630. Bisiker v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari denied. W. A. Seifert and Sidney B. Gambill for petitioners. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Hilbert P. Zarky for respondent. Reported below: 178 F. 2d 270. No. 666. Monolith Portland Midwest Co. v. Reconstruction Finance Corporation. C. A. 9th Cir. Certiorari denied. Welburn Mayock and Joseph T. Enright for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade for respondent. Reported below: 178 F. 2d 854. No. 676. Carpenter v. North Carolina. Supreme Court of North Carolina. Certiorari denied. W. H. Strickland for petitioner. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for respondent. DECISIONS PER CURIAM ETC. 933 339 U.S. April 10, 1950. No. 677. Dover v. North Carolina. Supreme Court of North Carolina. Certiorari denied. W. H. Strickland for petitioner. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for respondent. No. 678. Stinnett v. North Carolina. Supreme Court of North Carolina. Certiorari denied. W. H. Strickland for petitioner. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for respondent. No. 197. Marshall v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Mr. Justice Black is of the opinion certiorari should be granted. Mr. Justice Clark took no part in the consideration or decision of this application. Osmond K. Fraenkel for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl for the United States. Briefs of amici curiae supporting petitioner were filed by Robert J. Silber stein and Benedict Wolf for the National Lawyers Guild; Nathan Witt for the Civil Rights Congress; Thomas R. Jones for the Council on African Affairs, Inc.; William L. Standard for the Congress of American Women; Victor Rabinowitz, Nathan Witt and Leonard B. Boudin for the American Communications Association (CIO) et al.; Leo J. Linder for the Methodist Federation for Social Action; Lester M. Levin for the National Council of the Arts, Sciences and Professions; and John J. Abt for the Progressive Party of America et al. Reported below: 85 U. S. App. D. C. 184, 176 F. 2d 473. No. 620. Loucopantis et al. v. The Olympos et al. C. A. 4th Cir. Certiorari denied. J. L. Morewitz for petitioners. Barron F. Black and Hugh S. Meredith for respondents. Reported below: 177 F. 2d 785. 874433 0—50 --60 934 OCTOBER TERM, 1949. April 10, 1950. 339 U.S. No. 248. Lawson v. United States; and No. 249. Trumbo v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion certiorari should be granted. Mr. Justice Clark took no part in the consideration or decision of these applications. Robert W. Kenny, Charles H. Houston, Bartley C. Crum and Martin Popper for petitioners. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen for the United States. Briefs of amici curiae supporting petitioner in No. 248 were filed by Arthur Garfield Hays and Osmond K. Fraenkel for the American Civil Liberties Union et al.; and Allan Rosenberg for the Samuel Adams School for Social Studies. Briefs of amici curiae supporting petitioners were filed by Max Radin for Meiklejohn et al.; Harold M. Sawyer for the National Union of Marine Cooks and Stewards; William L. Standard for the Congress of American Women and for the Conference of Studio Unions et al.; Victor Rabinowitz, Nathan Witt and Leonard B. Boudin for the American Communications Association (CIO) et al.; Leo J. Linder for the Methodist Federation for Social Action; Samuel Neu-burger for the American Slav Congress; Will Maslow, Thurgood Marshall, Shad Polier and Joseph B. Robison for the American Jewish Congress et al.; Lester M. Levin for the National Council of the Arts, Sciences and Professions; and John J. Abt for the Progressive Party of America et al. Louis Waldman filed a brief, as amicus curiae, for the American Writers Association, Inc., supporting the United States. Reported below: 85 U. S. App. D. C. 167, 176 F. 2d 49. No. 495. Anheuser-Busch, Inc. v. Du Bois Brewing Co. C. A. 3d Cir. Certiorari denied. Mr. Justice Clark took no part in the consideration or decision of this DECISIONS PER CURIAM ETC. 935 339 U.S. April 10, 1950. application. Wallace H. Martin, Minturn de S. Verdi and Walter J. Halliday for petitioner. Elder W. Marshall and John C. Bane, Jr. for respondent. Reported below: 175 F. 2d 370. No. 548. Gordon v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Clark took no part in the consideration or decision of this application. William C. Wines for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 178 F. 2d 896. No. 364, Mise. Johnson et al. v. Gardner, Trustee. C. A. 9th Cir. Certiorari denied. Morris Lavine for petitioners. Thomas S. Tobin for respondent. Reported below: 179 F. 2d 114. No. 382, Mise. Adkins, Administratrix, v. E. I. Du Pont de Nemours & Co., Inc. et al. C. A. 10th Cir. Certiorari denied. John W. Porter, Jr. for petitioner. Solicitor General Perlman for the United States, respondent, waived the right to file reply to the petition. G. C. Spillers for the Du Pont Co., respondent. No. 390, Mise. Watson v. Suddoth et al. C. A. 8th Cir. Certiorari denied. Petitioner pro se. J. G. Burke for respondent. Reported below: 177 F. 2d 371. No. 391, Mise. Rowe v. Green. C. A. 4th Cir. Certiorari denied. No. 425, Mise. Everhart v. Texas. Court of Criminal Appeals of Texas. Certiorari denied. Reported below: 154 Tex. Cr. R.----, 226 S. W. 2d 637. 936 OCTOBER TERM, 1949. April 10, 1950. 339 U. S. No. 427, Mise. Falkenstein v. New York. Appellate Division of the Supreme Court of New York. Certiorari denied. No. 428, Mise. Holland v. Eidson, Warden. Supreme Court of Missouri. Certiorari denied. No. 437, Mise. Holmes v. Swenson, Warden. Court of Appeals of Maryland. Certiorari denied. No. 457, Mise. Varela et al v. Illinois. Supreme Court of Illinois. Certiorari denied. Richard J. Gleason for petitioners. Reported below: 405 Ill. 236, 90 N. E. 2d 631. No. 459, Mise. Seger et al. v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 405 Ill. 222, 90 N. E. 2d 637. Rehearing Denied. No. 403. Reider v. Thompson, Trustee, Missouri Pacific Railroad Co., ante, p. 113. Rehearing denied. Mr. Justice Jackson and Mr. Justice Douglas took no part in the consideration or decision of this application. No. 517. Cohen et al. v. United States, ante, p. 914. Rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. No. 255, Mise. Thompson v. Robinson, Warden, 338 U. S. 950. Second petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. DECISIONS PER CURIAM ETC. 937 339 U.S. April 17, 1950. April 17, 1950. Miscellaneous Order. No. 449, Mise. Potter v. Eidson, Warden. Motion for leave to file petition for writ of habeas corpus denied. Certiorari Denied. No. 353. California-Michigan Land & Water Co. v. City of Pasadena et al. Supreme Court of California. Certiorari denied. Joseph L. Lewinson and Richard C. Goodspeed for petitioner. A. E. Chandler for respondents. Reported below: 33 Cal. 2d 908, 207 P. 2d 17, 46. No. 595. Roberts, Superintendent of the Five Tribes Agency, for Quapaw Indians, v. United States. Court of Claims. Certiorari denied. Huston Thompson and Oscar P. Mast for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Helen Goodner for the United States. Reported below: 115 Ct. Cl. 428, 87 F. Supp. 935. No. 614. Brock v. Solomon, Trustee; and No. 675. Becker v. Solomon, Trustee. C. A. 7th Cir. Certiorari denied. Leo L. Donahoe for petitioner in No. 614. James A. Cosgrove for petitioner in No. 675. Leslie G. Pefferle for respondent. Reported below: 178 F. 2d 819. No. 631. Morairty v. Mutual Life Insurance Co. C. A. 9th Cir. Certiorari denied. Elias S. Clark for petitioner. Denison Kitchel for respondent. Reported below: 178 F. 2d 470. No. 641. Jackson et al., practicing as Jackson & Horan, v. Vance, Trustee, et al. C. A. 10th Cir. Cer- 938 OCTOBER TERM, 1949. April 17, 1950. 339 U. S. tiorari denied. Arthur T. Hannett for petitioners. James R. Modrall for respondents. Reported below: 179 F. 2d 154. No. 643. Allied Oil Corp. v. Socony-Vacuum Oil Co., Inc. C. A. 7th Cir. Certiorari denied. Thomas J. Downs for petitioner. J. F. Dammann for respondent. Reported below: 178 F. 2d 239. No. 669. Republic Steel Corp. v. Farval Corporation. C. A. 6th Cir. Certiorari denied. Walter J. Blenko and John H. F. Leonard for petitioner. John F. Oberlin for respondent. Reported below: 179 F. 2d 719. No. 291, Mise. Langford v. United States. C. A. 9th Cir. Certiorari denied. Henry G. Bodkin for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 178 F. 2d 48. No. 336, Mise. Thomasson v. Missouri. Supreme Court of Missouri. Certiorari denied. Petitioner pro se. J. E. Taylor, Attorney General of Missouri, and Gordon P. Weir, Assistant Attorney General, for respondent. No. 400, Mise. Kent v. Michigan. Supreme Court of Michigan. Certiorari denied. No. 406, Mise. Winegard v. Swenson, Warden. Court of Appeals of Maryland. Certiorari denied. Joseph Kadans for petitioner. Reported below: 69 A. 2d 685. No. 413, Mise. Smith et al. v. Holt et ux. Court of Appeals of Kentucky. Certiorari denied. DECISIONS PER CURIAM ETC. 939 339 U.S. April 17, 1950. No. 417, Mise. Cubbler v. New Jersey. Supreme Court of New Jersey. Certiorari denied. No. 419, Mise. Bindrin v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 404 Ill. 520, 89 N. E. 2d 530. No. 426, Mise. Blue v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 435, Mise. Dunlevy v. Robinson, Warden. Circuit Court of Sangamon County, Illinois. Certiorari denied. No. 450, Mise. Wild v. Burford, Warden. District Court of the County of McCurtain, Oklahoma. Certiorari denied. No. 396, Mise. Bridges v. North Carolina. Supreme Court of North Carolina. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. J. C. B. Ehringhaus, Jr. for petitioner. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for respondent. Reported below: 231 N. C. 163, 56 S. E. 2d 397. Rehearing Denied. No. 359. Hiatt, Warden, v. Brown, ante, p. 103; No. 525. Clement v. Woods, Housing Expediter, ante, p. 911; No. 543. Jiffy Lubricator Co. v. Alemite Company, ante, p. 912; No. 545. Carpenter v. Erie Railroad Co., ante, p. 912; and No. 351, Mise. Ex parte Newstead, ante, p. 909. The petitions for rehearing in these cases are severally denied. Mr. Justice Douglas took no part in the consideration or decision of these applications. 940 OCTOBER TERM, 1949. April 24, 1950. April 24, 1950. 339 U. S. Per Curiam Decisions. No. 490. United States v. Cotton Valley Operators Committee et al. Appeal from the United States District Court for the Western District of Louisiana. Argued April 18, 1950. Decided April 24, 1950. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Clark took no part in the consideration or decision of this case. Assistant Attorney General Bergson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Charles H. Weston, Stanley M. Silverberg and Richard E. Guggenheim. Arthur O’Quin argued the cause for the Ohio Oil Co. et al., appellees. With him on the brief were Charles D. Egan, David E. Smitherman, John M. Madison, W. Scott Wilkinson, H. F. Aby, Leslie Moses, A. M. Gee, C. F. Currier and Leon O’Quin. Charles L. Black argued the cause for the Stanolind Oil & Gas Co. et al., appellees. With him on the brief were Donald Campbell, W. W. Heard and Dan Moody. Chas. B. Wallace, Walace Hawkins and Earl A. Brown submitted on brief for the Magnolia Petroleum Co., appellee. No. 725. Tedesco v. Board of Supervisors of Elections for the Parish of Orleans et al. Appeal from the Court of Appeal for the Parish of Orleans, Louisiana. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. George A. Dreyjous for appellant. Bolivar E. Kemp, Jr., Attorney General of Louisiana, Wm. A. Porteous, Jr., Second Assistant Attorney General, and Chas. J. Rivet for appellees. Reported below: 43 So. 2d 514. No. 727. Hopkins v. Maryland. Appeal from the Court of Appeals of Maryland. Per Curiam: The appeal DECISIONS PER CURIAM ETC. 941 339 U. S. April 24, 1950. is dismissed for want of a substantial federal question. Louis S. Ashman for appellant. Reported below: 69 A. 2d 456. Miscellaneous Orders. No. 430, Mise. E. I. Du Pont de Nemours & Co. et al. v. United States District Court for the Northern District of Illinois et al. The motion for leave to file petition for writ of mandamus and/or certiorari is denied. Gerhard A. Gesell, Paul H. Arthur, John M. Harlan and Aaron Finger for petitioners. Solicitor General Perlman, Assistant Attorney General Bergson and Charles H. Weston for the United States, respondent. No. 455, Mise. Spillmann v. Jackson, Warden. The motion for leave to file petition for writ of certiorari is denied. No. 464, Mise. Slade v. Jacques, Warden. The motion for leave to file petition for writ of habeas corpus is denied. Certiorari Granted. Nos. 648 and 649. United States v. Munsingwear, Inc. C. A. 8th Cir. Certiorari granted. Solicitor General Perlman for the United States. John M. Palmer for respondent. Reported below: 178 F. 2d 204. Certiorari Denied. (See also Mise. Nos. 4^0 and 455, supra.) No. 546. Eddy et al. v. Prudence Bonds Corp, et al. C. A. 2d Cir. Certiorari denied. Petitioners pro se. Charles M. McCarty for respondent. 942 OCTOBER TERM, 1949. April 24, 1950. 339U.S. No. 571. Helm v. Nevada. Supreme Court of Nevada. Certiorari denied. E. P. Carville for petitioner. Alan Bible, Attorney General of Nevada, Geo. P. Annand and Robert L. McDonald, Deputy Attorneys General, for respondent. Reported below: 66 Nev. --------, 209 P. 2d 187. No. 592. United States v. Pevely Dairy Co. ; and No. 593. United States v. St. Louis Dairy Co. C. A. 8th Cir. Certiorari denied. Arnold Raum for the United States. William H. Allen, James A. Finch and E. C. Hartman for respondent in No. 592. Jacob M. Lashly for respondent in No. 593. Reported below: 178 F. 2d 363. No. 616. Plainfield Hotel Corp. v. City of Buffalo. C. A. 2d Cir. Certiorari denied. James P. Kohler for petitioner. Herbert A. Hickman for respondent. Reported below: 177 F. 2d 425. No. 632. Tamez, Executrix, v. Woods, Housing Expediter. C. A. 5th Cir. Certiorari denied. William Robert Smith, Jr. for petitioner. Solicitor General Perlman, Ed Dupree, Nathan Siegel and Benjamin Freidson for respondent. Reported below: 177 F. 2d 639. No. 634. Union Pacific Railroad Co. v. United States. Court of Claims. Certiorari denied. Elmer B. Collins and Lawrence Cake for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for the United States. Reported below: 115 Ct. Cl. 321, 87 F. Supp. 957. No. 652. Kjar v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. DECISIONS PER CURIAM ETC. 943 339 U. S. April 24, 1950. Slack, Helen Goodner and Homer R. Miller for the United States. Reported below: 177 F. 2d 630. No. 656. Ring Construction Corp. v. Secretary of War. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Josiah E. Brill and Robert A. Littleton for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Melvin Richter for respondent. Reported below: 85 U. S. App. D. C. 386, 178 F. 2d 714. No. 660. Louisville and Jefferson County Metropolitan Sewer District v. Bond Brothers. Court of Appeals of Kentucky. Certiorari denied. Blakey Helm and Gilbert Burnett for petitioner. Ernest Woodward and Squire R. Ogden for respondent. Reported below: 312 Ky. 601, 228 S. W. 2d 655. No. 661. Commission of the Department of Public Utilities of Massachusetts v. New York, New Haven & Hartford Railroad Co. C. A. 2d Cir. Certiorari denied. Francis E. Kelly, Attorney General of Massachusetts, Francis J. Roche and David H. Stuart, Assistant Attorneys General, for petitioner. Hermon J. Wells for respondent. Reported below: 178 F. 2d 559. No. 662. Mathey v. Commissioner of Internal Revenue. C. A. 1st Cir. Certiorari denied. Lawrence E. Green for petitioner. Solicitor General Perlman, As-sistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Irving I. Axelrad for respondent. Reported below: 177 F. 2d 259. No. 665. Baltimore & Ohio Railroad Co. v. Hopper Paper Co. C. A. 7th Cir. Certiorari denied. Edwin H. Burgess, Frederick E. Baukhages, William A. Eggers and 944 OCTOBER TERM, 1949. April 24, 1950. 339 U. S. James J. Graham for petitioner. Henry R. Barber and Virginia W. Barber for respondent. Reported below: 178 F. 2d 179. No. 683. Throckmorton v. St. Louis-San Francisco Railway Co. C. A. 8th Cir. Certiorari denied. Edward F. Prichard, Jr. for petitioner. Roscoe Anderson and C. H. Skinker, Jr. for respondent. Reported below: 179 F. 2d 165. No. 337, Mise. Byers v. Hunter, Warden. C. A. 10th Cir. Certiorari denied. No. 392, Mise. Cromelin v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Morton Hollander for the United States. Reported below: 177 F. 2d 275. No. 440, Mise. Mitchell v. California et al. Supreme Court of California. Certiorari denied. No. 442, Mise. Sterba v. Borelli, Judge, et al. Criminal Court of Cook County, Illinois. Certiorari denied. No. 443, Mise. Rivers v. Indiana. Circuit Court of St. Joseph County, Indiana. Certiorari denied. No. 444, Mise. Swoveland v. Smyth, Superintendent. Supreme Court of Appeals of Virginia. Certiorari denied. No. 447, Mise. Rohde v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 448, Mise. Barnes v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 405 Ill. 30, 89 N. E. 2d 791. DECISIONS PER CURIAM ETC. 945 339 U. S. April 24, 1950. No. 451, Mise. Wagner v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 452, Mise. Nelson v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 461, Mise. Adams v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. No. 465, Mise. Perrozzi v. Ragen, Warden. Circuit Court of Will County, Criminal Court of Cook County, and Supreme Court of Illinois. Certiorari denied. No. 473, Mise. Wulsch v. Robinson, Warden. Circuit Court of Saint Clair County, Illinois. Certiorari denied. No. 387, Mise. Quillian v. Sweeney, Sheriff, et al. Court of Appeals of Cuyahoga County, Ohio. Certiorari denied. Mr. Justice Douglas is of the opinion the petition should be granted. Frank C. Lyons for petitioner. Frank T. Cullitan and Gertrude M. Bauer for Sweeney, respondent. No. 388, Mise. Woodall v. Sweeney, Sheriff, et al. Court of Appeals of Cuyahoga County, Ohio. Certiorari denied. Mr. Justice Douglas is of the opinion the petition should be granted. Frank C. Lyons for petitioner. Frank T. Cullitan and Gertrude M. Bauer for Sweeney, respondent. Rehearing Denied. No. 280. Willapoint Oysters, Inc. v. Ewing, Administrator, et al., 338 U. S. 860. The motion for leave to file petition for rehearing is denied. Mr. Justice Douglas took no part in the consideration or decision of this application. 946 OCTOBER TERM, 1949. April 24, May 1, 1950. 339 U. S. No. 552. Mestice v. Masi, ante, p. 921; No. 596. Harris v. Commissioner of Internal Revenue, ante, p. 917; and No. 397, Mise. Rheim v. Lyons, Commissioner, ante, p. 925. The petitions for rehearing in these cases are severally denied. May 1, 1950. Per Curiam Decisions. No. 427. Flowers v. Mississippi. Appeal from the Supreme Court of Mississippi. Per Curiam: The appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. W. M. Mize for appellant. Greek L. Rice, Attorney General of Mississippi, and George H. Ethridge, Assistant Attorney General, for appellee. Reported below:-----Miss.-----, 41 So. 2d 352. No. 687. Franklin v. Harper et al. Appeal from the Supreme Court of Georgia. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Franklin H. Pierce for appellant. Appellees pro se. Reported below: 205 Ga. 779, 55 S. E. 2d 221. Miscellaneous Orders. No. 468, Mise. Keith v. Miller, Warden. The motion for leave to file petition for writ of certiorari is denied. No. 470, Mise. Epple v. Duffy, Warden; and No. 471, Mise. Hobbs v. Swenson, Warden. The motions for leave to file petitions for writs of habeas corpus are denied. DECISIONS PER CURIAM ETC. 947 339 U.S. May 1, 1950. Certiorari Granted. Nos. 584, 585, 586 and 587. United States v. Security Trust & Savings Bank of San Diego, Executor, et al. District Court of Appeal for the Fourth Appellate District of California. Certiorari granted. Solicitor General Perlman for the United States. Reported below: 93 Cal. App. 2d 608, 209 P. 2d 657. No. 686. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp. C. A. 6th Cir. Certiorari granted. John H. Glaccum for petitioner. Townsend F. Beaman and Lloyd W. Patch for respondent.. Reported below: 179 F. 2d 636. Certiorari Denied. (See also No. 1$7 and Mise. No. ^68, supra.) No. 542. Duncan Coffee Co. v. Reconstruction Finance Corporation. United States Emergency Court of Appeals. Certiorari denied. Samuel H. Peak for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and John R. Benney for respondent. Reported below: 178 F. 2d 926. No. 562. Local 36, International Fishermen & Allied Workers of America et al. v. United States. C. A. 9th Cir. Certiorari denied. Robert W. Kenny for petitioners. Solicitor General Perlman, Assistant Attorney General Bergson and J. Roger W ollenberg for the United States. Reported below: 177 F. 2d 320. No. 651. Burns et al. v. Mutual Benefit Life Insurance Co. C. A. 6th Cir. Certiorari denied. Solomon W. Patek for petitioners. Reported below: 179 F. 2d 236. No. 658. Steinway v. Majestic Amusement Co. et al. C. A. 10th Cir. Certiorari denied. Neal E. McNeill 948 OCTOBER TERM, 1949. May 1, 1950. 339 U. S. for petitioner. John A. Johnson for respondents. Reported below: 179 F. 2d 681. No. 668. Insurance Company of North America v. Howe. C. A. 6th Cir. Certiorari denied. James A. Butler for petitioner. Raymond T. Jackson for respondent. Reported below: 179 F. 2d 239. No. 672. Hygienic Products Co. v. Judson Dunaway Corp.; and No. 681. Judson Dunaway Corp. v. Hygienic Products Co. C. A. 1st Cir. Certiorari denied. Harry Frease, Joseph Frease and Randolph C. Richardson for petitioner in No. 672. Manvel Whittemore, Charles F. Miller, Jr. and Lucius E. Varney for the Judson Dunaway Corporation. Reported below: 178 F. 2d 461. No. 673. Gray et al. v. Oldland et al. C. A. 10th Cir. Certiorari denied. George L. Sneed, Frederic L. Kirgis and Jean S. Breitenstein for petitioners. Frank Delaney and L. H. Larwill for Oldland et al.; and Charles J. Moynihan for Rector et al., respondents. Reported below: 179 F. 2d 408. No. 679. Jones et al. v. Gutowsky. C. A. 10th Cir. Certiorari denied. Herbert J. Patrick, Logan Stephenson and Cleon R. Nixon for petitioners. Reported below: 178 F. 2d 60. No. 688. Powell v. Young. C. A. 5th Cir. Certiorari denied. John O. Harris for petitioner. Richard T. Rives for respondent. Reported below: 179 F. 2d 147. No. 692. M. & M. Transportation Co. v. City of New York et al. Court of Appeals of New York. Certiorari denied. Joseph Rotwein for petitioner. John P. McGrath and Stanley Buchsbaum for respondents. DECISIONS PER CURIAM ETC. 949 339 U.S. May 1, 1950. No. 694. Albrecht et al. v. Indiana Harbor Belt Railroad Co. C. A. 7th Cir. Certiorari denied. John H. Gately for petitioners. Sidney C. Murray, Marvin A. Jersild, Victor L. Lewis and Owen W. Crumpacker for respondent. Reported below: 178 F. 2d 577. Nos. 695 and 696. Handwork et al., Trustees, v. Young, Trustee in Bankruptcy. C. A. 7th Cir. Certiorari denied. Homer D. Dines for petitioners. Horace A. Young, pro se. Reported below: 179 F. 2d 70. No. 733. Charter Oak Fire Insurance Co. et al. v. Gerrity et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Edwin A. Swingle and William E. Miller for petitioners. William E. Leahy and Raymond F. Garrity for respondents. Reported below: 86 U. S. App. D. C. 199, 181 F. 2d 614. No. 674. Gregoire v. Biddle et al. -C. A. 2d Cir. Certiorari denied. Mr. Justice Clark took no part in the consideration or decision of this application. Gunther Jacobson and Emily Marx for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Morton Hollander for respondents. Reported below: 177 F. 2d 579. No. 697. Berlinsky v. Woods, Housing Expediter, et al. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman, John R. Benney, Ed Dupree, Leon J. Libeu and Nathan Siegel for respondents. Reported below: 178 F. 2d 265. No. 324, Mise. Lowe v. Killinger et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. 874433 0—50-----61 950 OCTOBER TERM, 1949. May 1, 1950. 339 U. S. No. 422, Mise. Arrington v. Alabama. Supreme Court of Alabama. Certiorari denied. Franklin H. Williams, Robert L. Carter and Thurgood Marshall for petitioner. A. A. Carmichael, Attorney General of Alabama, and M. R. Nachman, Assistant Attorney General, for respondent. Reported below: 253 Ala. 178, 43 So. 2d 644. No. 441, Mise. Holt v. California et al. Supreme Court of California. Certiorari denied. No. 454, Mise. Young v. California et al. Supreme Court of California. Certiorari denied. Rehearing Denied. No. 14. Dennis v. United States, ante, p. 162. Rehearing denied. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this application. No. 163. Commodities Trading Corp, et al. v. United States; and No. 156. United States v. Commodities Trading Corp, et al., ante, p. 121; and No. 337. Railway Labor Executives’ Association v. United States et al., ante, p. 142. The petitions for rehearing in these cases are severally denied. The Chief Justice and Mr. Justice Douglas took no part in the consideration or decision of these applications. No. 301, Mise. Tate v. Heinze, Warden, 338 U. S. 956. Second petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. No. 373, Mise. Almeida v. Pennsylvania, ante, p-924, Rehearing denied. DECISIONS PER CURIAM ETC. 951 339 U. S. May 8, 1950. May 8, 1950. Miscellaneous Order. No. 498, Mise. Collins et al. v. Letts, U. S. District Judge, et al. Motion for leave to file petition for writs of prohibition and mandamus denied. Certiorari Granted. No. 685. United States v. Griggs, Executrix. C. A. 10th Cir. Certiorari granted. Solicitor General Perlman for the United States. Reported below: 178 F. 2d 1. No. 732. National Labor Relations Board v. Pittsburgh Steamship Co. C. A. 6th Cir. Certiorari granted. Solicitor General Perlman and Robert N. Denham for petitioner. Nathan L. Miller, Lee C. Hinslea and Lucian Y. Ray for respondent. Reported below: 180 F. 2d 731. No. 294, Mise. Snyder v. Buck, Paymaster General of the Navy. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. John Geyer Tausig and Gibbs L. Baker for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Morton Hollander for respondent. Reported below: 85 U. S. App. D. C. 198, 177 F. 2d 44. Certiorari Denied. No. 581. American President Lines, Ltd. v. Agnew et al.; No. 582. American President Lines, Ltd. v. Griffin et al.; and No. 583. American President Lines, Ltd. v. Federer et al. C. A. 9th Cir. Certiorari denied. Ira S. Lillick for petitioner. Albert Michelson for respondents 952 OCTOBER TERM, 1949. May 8, 1950. 339 U. S. in Nos. 581 and 582; and Herbert Resner for respondents in No. 583. Reported below: 177 F. 2d 107, 111. No. 680. United Artists Corp, et al. v. Board of Censors of Memphis et al. Supreme Court of Tennessee. Certiorari denied. Hamilton E. Little, Edward C. Raftery and Lowell W. Taylor for petitioners. J. S. Allen for respondents. Reported below: 189 Tenn. 397, 225 S. W. 2d 550. No. 684. Fireman’s Fund Insurance Co. v. McConnell. C. A. 5th Cir. Certiorari denied. Alex W. Smith and R. Wilson Smith, Jr. for petitioner. A. C. Wheeler for respondent. Reported below: 178 F. 2d 76. No. 691. Brown v. Royall, Secretary of the Army, et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Morton Singer, P. Bateman Ennis, Edward Holloway and Philip F. La Follette for petitioner. Solicitor General Perlman, As-sistant Attorney General Morison and Samuel D. Slade for respondents. No. 693. Safeway Stores, Inc. v. West et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Cornelius H. Doherty for petitioner. Austin F. Canfield for respondents. Reported below: 86 U. S. App. D. C. 100, 180 F. 2d 25. No. 698. Randolph Laboratories, Inc. v. Specialties Development Corp. C. A. 3d Cir. Certiorari denied. Ralph M. Snyder for petitioner. Floyd H. Crews for respondent. Reported below: 178 F. 2d 477. No. 699. Rowland v. Arkansas. C. A. 8th Cir. Certiorari denied. C. Floyd Huff, Jr. for petitioner. Ike Murry, Attorney General of Arkansas, John Williams, DECISIONS PER CURIAM ETC. 953 339 U. S. May 8, 1950. Chief Assistant Attorney General, and Jeff Duty, Assistant Attorney General, for respondent. Reported below: 179 F. 2d 709. No. 706. Citizens Ice & Cold Storage Co. et al. v. Atlantic Company. C. A. 5th Cir. Certiorari denied. Julian Webb for petitioners. William K. Meadow and Robert B. Troutman for respondent. Reported below: 178 F. 2d 453. No. 707. Parkerson, Trustee, et al. v. Chapman et al., Executors. C. A. 4th Cir. Certiorari denied. Russell T. Bradford for petitioners. Albert W. Fox and Thomas H. Patterson for respondents. Reported below: 179 F. 2d 208. No. 729. Texas & Pacific Railway Co. v. Red River Cotton Oil Co. et al. Supreme Court of Louisiana. Certiorari denied. Frank H. Peterman for petitioner. LeDoux R. Provosty for respondents. Reported below: 216 La. 519, 44 So. 2d 101. No. 731. Hoffpauir v. Hoxsey. C. A. 5th Cir. Certiorari denied. Curley C. Hoffpauir, pro se. Reported below: 180 F. 2d 84. No. 594. McGrath, Attorney General of the United States, v. Paramount Pictures, Inc. et al. District Court of Appeal, First Appellate District, of California; and No. 613. Sparling, Superintendent of Banks, v. Paramount Pictures, Inc. et al. Supreme Court of California. Certiorari denied. Mr. Justice Clark took no part in the consideration or decision of these applications. Solicitor General Perlman for petitioner in No. 594. Dudley T. Shearer for petitioner in No. 613. Homer 954 OCTOBER TERM, 1949. May 8, 1950. 339 U. S. I. Mitchell for Paramount Pictures, Inc.; and Walter S. Hilborn for the Bank of America National Trust & Savings Assn, et al., respondents. Reported below: No. 594, 93 Cal. App. 2d 768, 209 P. 2d 968. No. 621. Wade et al. v. Michigan. Supreme Court of Michigan. Certiorari denied. Larry S. Davidow for petitioners. Stephen J. Roth, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, for respondent. No. 412, Mise. Daniels et al. v. North Carolina. Supreme Court of North Carolina. Certiorari denied. O. John Rogge, Herman L. Taylor and C. J. Gates for petitioners. Harry McMullan, Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General, for respondent. Reported below: 231 N. C. 17, 341, 509, 56 S. E. 2d 2, 646, 57 S. E. 2d 653. No. 458, Mise. Baker v. California et al. Supreme Court of California. Certiorari denied. Rehearing Denied. No. 561. Standard Commercial Tobacco Co. et al. v. Snyder, Secretary of the Treasury, et al., ante, p. 918; No. 657. Holmes et al. v. United States et al., ante, p. 927; and No. 666. Monolith Portland Midwest Co. v. Reconstruction Finance Corp., ante, p. 932. The petitions for rehearing in these cases are severally denied. No. 255, Mise. Thompson v. Robinson, Warden, 338 U. S. 950. Third petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. DECISIONS PER CURIAM ETC. 955 339 U.S. May 15, 1950. May 15, 1950. Per Curiam Decisions. No. 754. Emery Transportation Co. v. United States et al. Appeal from the United States District Court for the Southern District of Ohio; and No. 755. Hoffman et al. v. O’Brien, Police Commissioner, et al. Appeal from the United States District Court for the Southern District of New York. Per Curiam: The motions to affirm are granted and the judgments are affirmed. Clarence D. Todd, Dale C. Dillon and Harry Kasfir for appellant in No. 754. Julius Hall-heimer for appellants in No. 755. Solicitor General Perlman, Daniel W. Knowlton, Albert B. Rosenbaum and David Axelrod for appellees in No. 754. Nathaniel L. Goldstein, Attorney General of New York, Wendell P. Brown, Solicitor General, and Samuel A. Hirshowitz, Assistant Attorney General, for Goldstein; and John P. McGrath, Frank S. Hogan, Seymour B. Quel and Whitman Knapp for O’Brien et al., appellees in No. 755. Reported below: No. 755, 88 F. Supp. 490. Miscellaneous Order. No. 478, Mise. Byers v. Keech, U. S. District Judge. The motion for leave to file petition for writ of mandamus is denied. Certiorari Granted. No. 536. COMPAGNA ET AL. V. HlATT, WARDEN. C. A. 5th Cir. Certiorari granted. Mr. Justice Clark took no part in the consideration or decision of this application. A. Walton Nall and Wm. Scott Stewart for petitioners. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Philip R. Monahan for respondent. Reported below: 178 F. 2d 42. 956 OCTOBER TERM, 1949. May 15, 1950. 339 U.S. No. 554. National Council of American-Soviet Friendship, Inc. et al. v. McGrath, Attorney General, et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Mr. Justice Clark took no part in the consideration or decision of this application. Abraham J. Isserman, David Rein and Joseph Forer for petitioners. Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney for respondents. No. 635. Rogers v. United States; No. 636. Blau v. United States; and No. 640. Blau v. United States. C. A. 10th Cir. Certiorari granted. Mr. Justice Clark took no part in the consideration or decision of this application. Samuel D. Menin for petitioners. Solicitor General Perlman for the United States. Reported below: Nos. 635 and 636, 179 F. 2d 559; No. 650, 180 F. 2d 103. No. 700. McGrath, Attorney General, et al. v. Kristensen. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Solicitor General Perlman for petitioners. David W. Louisell for respondent. Reported below: 86 U. S. App. D. C. 48, 179 F. 2d 796. Certiorari Denied. No. 570. Lord Manufacturing Co. v. United States. Court of Claims. Certiorari denied. Charles A. H or sky, Ralph Hammar and Edward G. Howard for petitioner. Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Melvin Richter for the United States. Reported below: 114 Ct. Cl. 199, 84 F. Supp. 748. DECISIONS PER CURIAM ETC. 957 339 U.S. May 15, 1950. No. 709. Safe Harbor Water Power Corp. v. Federal Power Commission. C. A. 3d Cir. Certiorari denied. Randall J. LeBoeuf, Jr., George Ross Hull and John C. Kelley for petitioner. Solicitor General Perlman, As-sistant Attorney General Morison, Paul A. Sweeney, Melvin Richter, Bradford Ross, Howard E. Wahrenbrock, Reuben Goldberg and Bernard A. Foster, Jr. for respondent. Reported below: 179 F. 2d 179. No. 712. United States v. Martin et al.; and No. 715. Martin et al. v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Solicitor General Perlman for the United States in No. 712. Daniel Partridge, III and Milton D. Campbell for Martin et al. Mr. Perlman, As-sistant Attorney General Vanech, Roger P. Marquis and Wilma C. Martin for the United States in No. 715. Reported below: 85 U. S. App. D. C. 382, 177 F. 2d 733. No. 721. Nelson et al. v. Johnson, Secretary of Defense, et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Claude L. Dawson for petitioners. Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Morton Hollander for respondents. Reported below: 86 U. S. App. D. C. 99, 180 F. 2d 386. No. 722. Willis v. Consolidated Textile Co., Inc. et al. C. A. 2d Cir. Certiorari denied. Emanuel Redfield for petitioner. Samuel S. Jennings, Jr. for the Consolidated Textile Co., respondent. Reported below: 178 F. 2d 924. No. 448. Kamp v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Mr. Justice Clark took no part in 958 OCTOBER TERM, 1949. May 15, 1950. 339 U. S. the consideration or decision of this application. John J. Wilson for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: 84 U. S. App. D. C. 187, 176 F. 2d 618. No. 637. Bary v. United States; No. 638. Kleinbord v. United States; and No. 639. Rogers v. United States. C. A. 10th Cir. Certiorari denied. Mr. Justice Clark took no part in the consideration or decision of this application. Samuel D. Menin for petitioners. Solicitor General Perlman for the United States. Reported below: Nos. 637 and 638, 179 F. 2d 559; No. 639, 180 F. 2d 103. No. 730. E. B. Kaiser Co. v. Ric-Wil Company. C. A. 7th Cir. Certiorari denied. Mr. Justice Black is of the opinion certiorari should be granted. George I. Haight and Robert R. Lockwood for petitioner. Harvey R. Hawgood, Arthur H. Van Horn and Will Freeman for respondent. Reported below: 179 F. 2d 401. No. 410, Mise. Ball v. Moore, Warden. Court of Criminal Appeals of Texas. Certiorari denied. Reported below: 154 Tex. Cr. R.----, 225 S. W. 2d 844. No. 414, Mise. Sewell v. California. District Court of Appeal for the Fourth Appellate District of California. Certiorari denied. Petitioner pro se. Fred N. Howser, Attorney General of California, Frank Richards and Gilbert Harelson, Deputy Attorneys General, for respondent. Reported below: 95 Cal. App. 2d 850, 214 P. 2d 113. Rehearing Denied. No. 238. McGee v. Mississippi, 338 U. S. 805. Rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. DECISIONS PER CURIAM ETC. 959 339 U. S. May 15, 29, 1950. No. 197. Marshall v. United States, ante, p. 933; and No. 495. Anheuser-Busch, Inc. v. Du Bois Brewing Co., ante, p. 934. The petitions for rehearing are denied. Mr. Justice Clark took no part in the consideration or decision of these applications. No. 724. South et al. v. Peters, Chairman of the Georgia State Democratic Executive Committee, et al., ante, p. 276; No. 390, Mise. Watson v. Suddoth et al., ante, p. 935; and No. 417, Mise. Cubbler v. New Jersey, ante, p. 939. The petitions for rehearing in these cases are severally denied. May 29, 1950. Per Curiam Decisions. No. 671. United States Gypsum Co. et al. v. United States. Appeal from the United States District Court for the District of Columbia. Per Curiam: The appeal is dismissed. Mr. Justice Jackson and Mr. Justice Clark took no part in the consideration or decision of this case. Albert R. Connelly, Cranston Spray and Hugh Lynch, Jr. for appellants. No. 774. E. I. Du Pont de Nemours & Co. et al. v. United States. Appeal from the United States District Court for the Northern District of Illinois. Per Curiam: The motion to dismiss is granted and the appeal is dis-naissed. Mr. Justice Reed is of the opinion probable jurisdiction should be noted. Mr. Justice Clark took no part in the consideration or decision of this case. Gerhard A. Gesell, Paul H. Arthur, John M. Harlan and 960 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. Aaron Finger for appellants. Solicitor General Perlman for the United States. Reported below: 87 F. Supp. 962. No. 792. Glissmann v, City of Omaha et al. Appeal from the Supreme Court of Nebraska. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. S. L. Winters for appellant. Alfred G. Ellick for appellees. Reported below: 151 Neb. 895, 39 N. W. 2d 828. Miscellaneous Orders. No. 670. United States v. United States Gypsum Co. et al. Appeal from the United States District Court for the District of Columbia. In this case probable jurisdiction is noted. The motions to supplement the record are granted. Article III of the decree of the District Court of November 7, 1949, reading as follows: “The defendant companies have acted in concert in restraint of trade and commerce among the several states in the eastern territory of the United States to fix, maintain and control the prices of gypsum board and have monopolized trade and commerce in the gypsum board industry in violation of sections 1 and 2 of the Sherman Antitrust Act,” is affirmed. The corporate defendants and Samuel M. Gloyd, doing business as Texas Cement Plaster Company, are enjoined, pending further order of this Court, from (1) enforcing in any manner whatsoever the provisions of their current license agreements fixing, maintaining, or stabilizing prices of gypsum board or the terms and conditions of sale thereof, and (2) from entering into or performing any agreement or understanding in restraint of trade and commerce in gypsum board among the several states in the eastern territory of the United States by license agreements to fix, maintain, or stabilize prices of gypsum board or by license or other concerted action arranging the terms and conditions of sale thereof. Mr. Justice Jackson and DECISIONS PER CURIAM ETC. 961 339 U. S. May 29, 1950. Mr. Justice Clark took no part in the consideration or decision of these questions. No. 682. Commissioner of Internal Revenue v. McKay Products Corp. Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit dismissed on motion of counsel for the petitioner. Solicitor General Perlman for petitioner. Karl F. Stein-mann and John W. Cable, III for respondent. Reported below: 178 F. 2d 639. No. 420, Mise. Oddo v. New York. Court of Appeals of New York. Motion of Dominic Mundo to join in the petition denied. Certiorari denied. Petitioner pro se. Frank S. Hogan and Whitman Knapp for respondent. Reported below: 300 N. Y. 649, 90 N. E. 2d 896. No. 469, Mise. Porter v. Heinze, Warden. Supreme Court of California. Certiorari denied. Motion for leave to file petition for writ of mandamus also denied. No. 479, Mise. Pardee v. Michigan. Supreme Court of Michigan. Certiorari denied. Motion for leave to file petition for writ of habeas corpus also denied. Reported below: 327 Mich. 13, 41 N. W. 2d 466. No. 511, Mise. Gibbs v. Ashe, Warden. Supreme Court of Pennsylvania. Certiorari denied. Petition for appeal also denied. No. 467, Mise. 4278 Hazel Building Corp, et al. v. Berest et al.; No. 477, Mise. Farnsworth v. Foster, Warden ; and No. 499, Mise. Grant v. Overholser. Motion for leave to file petitions for writs of certiorari denied. Meyer 962 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. Abrams and William Henning Rubin for petitioners in No. 467, Mise. Petitioners pro se in Mise. Nos. 477 and 499. Robert Marks and M. J. Myer for respondents in No. 467. Nathaniel L. Goldstein, Attorney General of New York, Wendell P. Brown, Solicitor General, and Herman N. Harcourt and George A. Radz, Assistant Attorneys General, for respondent in No. 477, Mise. No. 486, Mise. No. 489, Mise. No. 506, Mise. Hackworth v. Hiatt, Warden; Lowe v. Humphrey, Warden; and Leder v. California. Motions for leave to file petitions for writs of habeas corpus denied. No. 490, Mise. Rash v. Members of Board of Trustees of Indiana State Prison ; and No. 503, Mise. Davison v. United States District Court for the District of Kansas. Motions for leave to file petitions for writs of mandamus denied. Certiorari Granted. No. 703. Ackermann v. United States; and No. 704. Ackermann v. United States. C. A. 5th Cir. Certiorari granted. E. M. Grimes for petitioners. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Felicia H. Dubrovsky for the United States. Reported below: No. 703, 178 F. 2d 983; No. 704, 179 F. 2d 236. No. 723. Universal Camera Corp. v. National Labor Relations Board. C. A. 2d Cir. Certiorari granted. James S. Hays for petitioner. Solicitor General Perlman, Robert N. Denham, David P. Findling and Mozart G. Ratner for respondent. Reported below: 179 F. 2d 749. No. 421, Mise. Feiner v. New York. Court of Appeals of New York. Certiorari granted. Reported below: 300 N. Y. 391, 91 N. E. 2d 316. DECISIONS PER CURIAM ETC. 963 339 U. S. May 29, 1950. Certiorari Denied. (See also Mise. Nos. 4^0, 467, 469, 477, 479, 499 and 511, supra.) No. 701. La Salle Steel Co. v. National Labor Relations Board. C. A. 7th Cir. Certiorari denied. Henry E. Seyfarth for petitioner. Solicitor General Perlman, Stanley M. Silverberg, Robert N. Denham, David P. Findling and Mozart G. Ratner for respondent. Reported below: 178 F. 2d 829. No. 702. Seaboard & Western Airlines, Inc. v. Civil Aeronautics Board et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Hardy K. Maclay for petitioner. Solicitor General Perlman, Assistant Attorney General Bergson, Stanley M. Silverberg, J. Roger W ollenberg, Emory T. Nunneley, Jr. and Warren L. Sharfman for the Civil Aeronautics Board, respondent. Reported below: 86 U. S. App. D. C. 64,181 F. 2d 515. No. 708. Five Cases of Figlia Mia Brand of Oil et al. v. United States. C. A. 2d Cir. Certiorari denied. Chester A. Lessler for the Antonio Corrao Corporation, petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Stanley M. Silverberg, Robert S. Erdahl, Vincent A. Kleinfeld and John T. Grigsby for the United States. Reported below: 179 F. 2d 519. No. 711. Beets v. Hunter, Warden. C. A. 10th Cir. Certiorari denied. Howard F. McCue and Walton Stanley Allen for petitioner. Solicitor General Perlman for respondent. Reported below: 180 F. 2d 101. No. 716. Henderson v. United States; No. 717. Wildman v. United States; No. 718. Shufflebarger v. United States; and No. 719. Frantz v. United States. C. A. 7th Cir. Certiorari denied. John W. MacDonald for petitioners. 964 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. Solicitor General Perlman, Assistant Attorney General McInerney, Philip R. Monahan and Felicia H. Dubrovsky for the United States. Reported below: 180 F. 2d 711. No. 720. King v. United States. C. A. 5th Cir. Certiorari denied. Ben F. Foster for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade for the United States. Reported below: 178 F. 2d 320. No. 728. Union Bleachery v. United States. C. A. 4th Cir. Certiorari denied. Leonard Marshall for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Frank J. Ready for the United States. Reported below: 176 F. 2d 517. No. 735. Marx et al. v. Commissioner of Internal Revenue. C. A. 1st Cir. Certiorari denied. Emily Marx for petitioners. Solicitor General Perlman, As-sistant Attorney General Caudle and Ellis N. Slack for respondent. Reported below: 179 F. 2d 938. No. 736. Givens v. Moll et al. C. A. 5th Cir. Certiorari denied. Henry C. Vosbein for petitioner. Reported below: 177 F. 2d 765. No. 737. Yates v. Ball. Supreme Court of Florida. Certiorari denied. Robert H. Anderson and Harry T. Gray for petitioner. Henry P. Adair and Wm. H. Rogers for respondent. Reported below: 44 So. 2d 302. No. 739. Ellis, Receiver, v. Cates. C. A. 4th Cir. Certiorari denied. John Locke Green for petitioner. Solicitor General Perlman, Assistant Attorney General Vanech, Roger P. Marquis and Fred W. Smith for respondent. Reported below: 178 F. 2d 791. DECISIONS PER CURIAM ETC. 965 339 U. S. May 29, 1950. No. 741. Anderson et al., Trustees, v. United States. C. A. 5th Cir. Certiorari denied. John H. Crooker, Jr. for petitioners. Solicitor General Perlman, Assistant Attorney General Vanech, Roger P. Marquis and & Billingsley Hill for the United States. Reported below: 179 F. 2d 281. No. 742. The Arlington, Inc. et al. v. Mayer. C. A. 7th Cir. Certiorari denied. Meyer Abrams for petitioners. Cassius M. Doty for respondent. No. 744. Curtis, Trustee in Bankruptcy, v. United States. C. A. 6th Cir. Certiorari denied. Samuel T. Gaines for petitioner. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and A. F. Prescott for the United States. Reported below: 178 F. 2d 268. No. 747. Magidson v. Duggan, Trustee, et al. C. A. 8th Cir. Certiorari denied. James C. Jones, Jr. for petitioner. Geo. O. Durham for respondents. Reported below: 180 F. 2d 473. No. 752. Dunaway et al. v. Standard Oil Co. (New Jersey) et al. C. A. 5th Cir. Certiorari denied. Arthur H. Bartelt for petitioners. Robert H. Kelley for the Standard Oil Co.; Wm. A. Dougherty, James Lawrence White and Wm. Q. Boyce for the Colorado Interstate Gas Co.; and Wales H. Madden for the Southwestern Development Co., respondents. Reported below: 178 F. 2d 884. No. 753. George v. Leonard et al. C. A. 4th Cir. Certiorari denied. Warren E. Miller and R. K. Wise for petitioner. David W. Robinson for respondents. Reported below: 178 F. 2d 312. 874433 0—50-----------62 966 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. No. 757. Simon et al., Executors, v. Hoey, Executrix. C. A. 2d Cir. Certiorari denied. Clifton P. Williamson for petitioners. Solicitor General Perlman, As-sistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Harry Baum for respondent. Reported below: 180 F. 2d 354. No. 758. Carter et al., Executors, v. Hoey, Executrix, et al. C. A. 2d Cir. Certiorari denied. Clifton P. Williamson for petitioners. Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Harry Baum for respondents. Reported below: 180 F. 2d 353. No. 767. Hyman v. Velsicol Corporation. Supreme Court of Illinois. Certiorari denied. Thurman Arnold for petitioner. Floyd E. Thompson and Clyde E. Shorey for respondent. Reported below: 405 Ill. 352, 90 N. E. 2d 717. No. 770. McGarty v. O’Brien, Warden. C. A. 1st Cir. Certiorari denied. William C. Crossley for petitioner. Francis E. Kelly, Attorney General of Massachusetts, and Henry P. Fielding and Lawrence E. Ryan, Assistant Attorneys General, for respondent. Reported below: 180 F. 2d 987. No. 777. Brooks, Administratrix, v. St. Louis-San Francisco Railway Co. C. A. 8th Cir. Certiorari denied. Phil W. Davis, Jr. and Chelsea O. Inman for petitioner. James L. Homire, C. H. Skinker, Jr. and W. W. Dalton for respondent. Reported below: 180 F. 2d 185. No. 803. Commissioner of Internal Revenue v. Basalt Rock Co., Inc. C. A. 9th Cir. Certiorari denied. DECISIONS PER CURIAM ETC. 339 U. S. May 29, 1950. 967 Solicitor General Perlman for petitioner. Francis R. Kirkham, Sigvald Nielson and Harry R. Horrow for respondent. Reported below: 180 F. 2d 281. No. 804. Commissioner of Internal Revenue v. Busch's Kredit Jewelry Co., Inc. C. A. 2d Cir. Certiorari denied. Solicitor General Perlman for petitioner. Robert G. MacAlister for respondent. Reported below: 179 F. 2d 298. No. 805. Commissioner of Internal Revenue v. John Breuner Co. C. A. 9th Cir. Certiorari denied. Solicitor General Perlman for petitioner. Roy A. Bronson for respondent. Reported below: 179 F. 2d 685. No. 734. Alltmont et al. v. United States et al. C. A. 3d Cir. Certiorari denied. Mr. Justice Clark took no part in the consideration or decision of these applications. Abraham E. Freedman for petitioners. Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade for respondents. Reported below: 177 F. 2d 971. No. 289, Mise. Shaw et al. v. United States. C. A. 6th Cir. Certiorari denied. No. 320, Mise. St. Clair v. Hiatt, Warden. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Perlman for respondent. No. 323, Mise. Waley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 178 F. 2d 311. No. 330, Mise. McIntosh v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 176 F 2d 514. 968 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. No. 332, Mise. Simmons v. Hunter, Warden ; and No. 350, Mise. McMahan v. Hunter, Warden. C. A. 10th Cir. Certiorari denied. Howard F. McCue for petitioner in No. 332, Mise. Charles E. Dierker for petitioner in No. 350, Mise. Solicitor General Perlman, Assistant Attorney General McInerney and Robert S. Erdahl for respondent. Reported below: No. 332, Mise., 179 F. 2d 664; No. 350, Mise., 179 F. 2d 661. No. 339, Mise. Spencer v. Ridge, U. S. District Judge. C. A. 8th Cir. Certiorari denied. No. 340, Mise. Thompson v. Ragen, Warden ; No. 341, Mise. Sherman v. Ragen, Warden; and No. 342, Mise. Lewis v. Ragen, Warden. Criminal Court of Cook County, Illinois. Certiorari denied. No. 349, Mise. Davison v. United States. C. A. 8th Cir. Certiorari denied. No. 353, Mise. Darman v. New York. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Nathaniel L. Goldstein, Attorney General of New York, Wendell P. Brown, Solicitor General, and Herman N. Harcourt and George A. Radz, Assistant Attorneys General, for respondent. No. 357, Mise. Barker v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 178 F. 2d 803. No. 379, Mise. Jackson v. Hiatt, Warden. C. A. 5th Cir. Certiorari denied. Reported below: 179 F. 2d 680. No. 384, Mise. Smith v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. DECISIONS PER CURIAM ETC. 969 339 U. S. May 29, 1950. No. 399, Mise. Pine v. Boyle. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Joseph A. McMenamin for petitioner. No. 411, Mise. Lowrey v. United States. C. A. 3d Cir. Certiorari denied. Albert Bernhard De Salardi for petitioner. Reported below: 179 F. 2d 964. No. 416, Mise. Burson v. Alvis, Warden. Supreme Court of Ohio. Certiorari denied. James N. Linton and Henry J. Linton for petitioner. Reported below: 152 Ohio St. 375, 89 N. E. 2d 651. No. 418, Mise. Baldwin v. Hiatt, Warden. C. A. 5th Cir. Certiorari denied. Reported below: 177 F. 2d 147. No. 423, Mise. Ahearn v. New York. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Frank S. Hogan and Whitman Knapp for respondent. No. 431, Mise. Kronberg v. Hale et al. C. A. 9th Cir. Certiorari denied. William Farnum White for petitioner. Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade for respondents. Reported below: 180 F. 2d 128. No. 436, Mise. Banks v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied. No. 453, Mise. Morton v. Steele, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 179 F. 2d 956. No. 456, Mise. Ekberg v. California. Supreme Court of California. Certiorari denied. 970 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. No. 462, Mise. White v. United States. C. A. 6th Cir. Certiorari denied. No. 472, Mise. Marshall v. Indiana. Circuit Court of Randolph County, Indiana. Certiorari denied. No. 474, Mise. Loomis v. Edwards, Judge. Court of Appeals of Georgia. Certiorari denied. Homer L. Loomis for petitioner. Reported below: 80 Ga. App. 396, 56 S. E. 2d 183. No. 475, Mise. Petrek v. Ohio. Supreme Court of Ohio. Certiorari denied. No. 480, Mise. Duty v. Robinson, Warden. Circuit Court of Randolph County, Illinois. Certiorari denied. No. 482, Mise. Henry v. Baldi, Superintendent. Supreme Court of Pennsylvania. Certiorari denied. No. 483, Mise. Hovis v. Ashe, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 485, Mise. Crebs v. Hudspeth, Warden. Supreme Court of Kansas. Certiorari denied. No. 487, Mise. Johnson v. Indiana. Criminal Court of Lake County, Indiana. Certiorari denied. No. 488, Mise. Campbell v. Ashe, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 492, Mise. Keith v. Wyoming. Supreme Court of Wyoming. Certiorari denied. DECISIONS PER CURIAM ETC. 971 339 U. S. May 29, 1950. No. 493, Mise. Blaksley v. Michigan. Supreme Court of Michigan. Certiorari denied. No. 494, Mise. Walshfer v. Michigan. Supreme Court of Michigan. Certiorari denied. No. 495, Mise. Harris v. Robinson, Warden. Circuit Court of Randolph County, Illinois. Certiorari denied. No. 496, Mise. Moranda v. California. Supreme Court of California. Certiorari denied. No. 500, Mise. McMorris v. Ashe, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 505, Mise. Vaccaro v. New York. County Court of Manhattan County, New York. Certiorari denied. No. 507, Mise. Carroll v. Swenson, Warden. C. A. 4th Cir. Certiorari denied. No. 508, Mise. Holiday v. Maryland. Court of Appeals of Maryland. Certiorari denied. No. 510, Mise. Stephenson v. Page, Warden. C. A. 3d Cir. Certiorari denied. No. 513, Mise. Duffy v. Ashe, Warden. Supreme Court of Pennsylvania. Certiorari denied. No. 516, Mise. Williams v. Illinois. Supreme Court of Illinois. Certiorari denied. Rehearing Denied. No. 766, October Term, 1947. Barsky et al. v. United States, 334 U. S. 843. The petitions for rehear- 972 OCTOBER TERM, 1949. May 29, 1950. 339 U. S. ing are denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion the petitions should be granted. Mr. Justice Burton and Mr. Justice Clark took no part in the consideration or decision of these applications. No. 173. United States et al. v. United States Smelting Refining & Mining Co. et al., ante, p. 186. The petitions for rehearing are denied. The Chief Justice and Mr. Justice Douglas took no part in the consideration or decision of these applications. No. 248. Lawson v. United States; and No. 249. Trumbo v. United States, ante, p. 934. Rehearing denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion the petition should be granted. Mr. Justice Clark took no part in the consideration or decision of this application. No. 490. United States v. Cotton Valley Operators Committee et al., ante, p. 940. Rehearing denied. Mr. Justice Clark took no part in the consideration or decision of this application. No. 661. Commission of the Department of Public Utilities of Massachusetts v. New York, New Haven & Hartford Railroad Co., ante, p. 943. Rehearing denied. No. 205, Mise. Dayton v. Hunter, Warden, 338 U. S. 888. Second petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. No. 324, Mise. Lowe v. Killinger et al., ante, p. 949. Rehearing denied. DECISIONS PER CURIAM ETC. 973 339U.S. May 29, June 5, 1950. No. 331, Mise. Baumet v. United States et al., ante, p. 923; No. 378, Mise. Vermillion v. Meyer et al., ante, p. 915; and No. 391, Mise. Rowe v. Green, ante, p. 935. The motions for leave to file petitions for rehearing are denied. No. 455, Mise. Spillmann v. Jackson, Warden, ante, p. 941. Rehearing denied. June 5, 1950. Per Curiam Decisions. No. 814. Felman v. United States et al. Appeal from the United States District Court for the Northern District of Illinois. Per Curiam: The motion to affirm is granted and the judgment is affirmed. Samuel E. Hirsch for appellant. Solicitor General Perlman and Benedict P. Cottone for appellees. No. 824. Consolidated Edison Co. v. Maltbie et al. Appeal from the Supreme Court of Albany County, New York. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Jacob H. Goetz and Richard Joyce Smith for appellant. George H. Kenny for appellees. Reported below: See 300 N. Y. 196, 645, 90 N. E. 2d 35, 498. No. 838. Serna v. Walters, Warden. Appeal from the Supreme Court of Arizona. Per Curiam: The appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. Marshall W. Haislip for petitioner. 974 OCTOBER TERM, 1949. June 5, 1950. 339 U. S. No. 844. Loew’s, Inc. v. United States; No. 845. Warner Bros. Pictures, Inc. et al. v. United States; No. 846. Twentieth Century-Fox Film Corp, et al. v. United States; and No. 847. United States v. Loew’s, Inc. et al. Appeals from the United States District Court for the Southern District of New York. Per Curiam: The judgment is affirmed. Mr. Justice Reed and Mr. Justice Burton are of the opinion that probable jurisdiction should be noted and the cases set down for argument. Mr. Justice Jackson and Mr. Justice Clark took no part in the consideration or decision of these cases. John JU Davis, J. Robert Rubin and >8. Hazard Gillespie, Jr. for appellant in No. 844. Joseph M. Proskauer and Robert W. Perkins for Warner Bros. Pictures, Inc. et al., appellants in No. 845. James F. Byrnes, Otto E. Koegel, John F. Caskey and Frederick W. R. Pride for Twentieth Century-Fox Film Corp, et al., appellants in No. 846. Solicitor General Perlman for the United States, appellant in No. 847. Reported below: See 70 F. Supp. 53. No. 453. Shoong et al. v. Commissioner of Internal Revenue. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Per Curiam: The petition for writ of certiorari is granted and the judgment is reversed. Commissioner v. Korell, decided this day, ante, p. 619. Mr. Justice Black dissents. Mr. Justice Douglas took no part in the consideration or decision of this case. Nat Schmulowitz and Peter S. Sommer for petitioners. Solicitor General Perlman for respondent. Reported below: 177 F. 2d 131. No. 795. Prichard v. United States. On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit. Per Curiam: The Chief Justice, Mr. Justice Reed, Mr. Justice Frankfurter, and Mr. . DECISIONS PER CURIAM ETC. 975 339 U. S. June 5, 1950. Justice Clark have disqualified themselves in this case. Because of this absence of a quorum, 28 U. S. C. § 1, and since a majority of the qualified justices are of the opinion that the case cannot be heard and determined at the next term of Court, the judgment of the Court of Appeals is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” Hugh B. Cox, Leslie W. Morris and Henry T. Duncan for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Philip R. Monahan for the United States. Reported below: 181 F. 2d 326. Miscellaneous Orders. No. 10, Original. Georgia v. Pennsylvania Railroad Co. et al. Upon submission of the report of the Special Master herein it is ordered that it be received and filed. Exceptions and objections of the parties, if any, shall be filed within ninety days thereafter. No. 11, Original. United States v. California. The motion of Harold L. Ickes for leave to file suggestions is denied. Mr. Justice Jackson and Mr. Justice Clark took no part in the consideration or decision of this motion. Harold L. Ickes,-i © 04 «-• CO Tt* MISCELLANEOUS 1949 568 551 fH cases remaining on • : e rari ket applica- j 1948 702 686 co fH 1947 579 567 04 1 a o o 1 S O ; ® ■£ -e co © 0 g « ® 2 s APPELLATE 1949 867 757 110 g 3 o o •5 co .S a; '7? ® E 1948 889 747 142 3 O .SP ft 5 ® 5 £ A 5 a® § E o O ft o S Q 1947 879 772 107 TERMS 1949 0 1-1© M © MS MS 04 MS MS ORIGINAL 1949 co © co I 1948 1 224 523 686 1948 co rH 1947 © t* MS MJ © 04 MS MS 1947 —I OJ o fH 04 Distribution of cases disposed of during terms: Originai cases Appellate cases on merits Petitions for certiorari Miscellaneous docket applications Terms Number of cases on dockets Number disposed of during terms. Number remaining on dockets,,. June 6, 1950. 996 INDEX ACCOUNTING. See Jurisdiction, II, 2. ACCOUNTS. See Constitutional Law, VIII, 5; Jurisdiction, V. ADJUSTMENT BOARD. See Jurisdiction, I, 3. ADMINISTRATIVE LAW. See Aliens; Constitutional Law, VIII, 3, 6-7; Jurisdiction, I, 3, 5; IV, 3; Labor, 1-2; Natural Gas Act; Statutes; Transportation, 2-3. ADMIRALTY. See Jurisdiction, III, 1; IV, 4. ADVISORY COMMITTEE. Order appointing member of Advisory Committee, p. 993. AFFIDAVIT. See Constitutional Law, I. AGRICULTURE. See Constitutional Law, VI, 1-2; Eminent Domain, 2. ALIENS. See also Constitutional Law, VIII, 1; Trading with the Enemy Act; War, 1. Deportation proceedings—Administrative Procedure Act—Applicability.—Administrative Procedure Act applicable to deportation proceedings ; hearing before immigrant inspector not in conformity with Act; §7 (a) proviso inapplicable. Wong Yang Sung v. McGrath, 33. AMENDMENTS. See Rules. AMORTIZATION. See Taxation, 1. ANTITRUST ACTS. 1. Sherman Act — Restraint of trade — Monopoly — Gypsum board.—Restraint of trade and monopoly in gypsum board industry; District Court decree finding unlawful conspiracy affirmed; defendants enjoined pending further order of this Court. United States v. United States Gypsum Co., 960. 2. Sherman Act—Real estate brokers—Fee-fixing—“Trade” in District of Columbia.—Sherman Act applicable to trade in District of Columbia; real estate brokerage as “trade”; fixing rates of commissions unlawful; acquittal in criminal prosecution not res judicata in civil suit; finding that certain defendants had not conspired was not “clearly erroneous.” United States v. Real Estate Boards, 485. APPEAL. See Jurisdiction. 874433 0—50------------64 997 998 INDEX. ARMED FORCES. See Courts-Martial; War, 2. ARREST. See Constitutional Law, IV, 1. ARTICLES OF WAR. See Courts-Martial, 1. ASSOCIATIONS. See Contempt, 2. ATTACHMENT. See Jurisdiction, III, 1. ATTORNEYS. Amendments of Rules of this Court relative to fees to be charged by Clerk, pp. 994, 995. AUTOMATIC COUPLERS. See Employers’ Liability Act. AUTOMOBILES. See Constitutional Law, VII, 3. BELIEFS. See Constitutional Law, III, 1. BIAS. See Constitutional Law, V, 2-3. BILL OF ATTAINDER. See Constitutional Law, I. BILLS OF LADING. See Transportation, 4. BLUE SKY LAW. See Constitutional Law, VIII, 6. BONDS. See Taxation, 1. BROKERS. See Antitrust Acts, 2. BUILDINGS. See Health. BUSES. See Constitutional Law, VII, 3. CALIFORNIA. See Constitutional Law, II, 2; III, 2; Eminent Domain. CAPITAL PUNISHMENT. See Constitutional Law, VIII, 7. CARMACK AMENDMENT. See Transportation, 4. CARRIERS. See Constitutional Law, VII, 3; Employers’ Liability Act; Jurisdiction, I, 3; Transportation. CEASE-AND-DESIST PROCEEDINGS. See Constitutional Law, VIII, 6. CEILING PRICE. See Constitutional Law, VI, 3. CERTIORARI. See Jurisdiction, II, 4; IV, 5. CITIZENSHIP. See also Jurisdiction, I, 4. Loss of citizenship—Grounds—Conviction of crime.—Conviction of crime other than desertion and treason not ground for loss of citizenship. Roberts v. District Court, 844. COERCION. See Constitutional Law, III, 2-4. INDEX. 999 COLLECTIVE BARGAINING. See Constitutional Law, I; II, 3; III, 2—4; Jurisdiction, I, 3; Labor, 1-3. COLLEGES. See Constitutional Law, IX, 3-4. COMMERCE. See Antitrust Acts; Constitutional Law, I; II, 3; VII; Eminent Domain, 1-2; Employers’ Liability Act; Transportation. COMMISSIONS. See Antitrust Acts, 2. COMMITTEE ON UN-AMERICAN ACTIVITIES. See Constitutional Law, V, 2-3; Contempt. COMMON TRUST FUND. See Constitutional Law, VIII, 5; Jurisdiction, V, 1. COMMUNISTS. See Constitutional Law, I; V, 2-3; Contempt. COMPENSATION. See Constitutional Law, VI; Eminent Domain. COMPLAINT. See Jurisdiction, I, 1. CONGRESS. See Constitutional Law, I; Contempt. CONSENT TO SUIT. See Jurisdiction, II, 1. CONSOLIDATIONS. See Transportation, 3. CONSPIRACY. See Antitrust Acts. CONSTITUTIONAL LAW. See also Contempt; Health; Jurisdiction, I, 1-3; II, 1-2; V, 1. I. In General, p. 999. II. Federal-State Relations, p. 999. III. Freedom of Speech, p. 1000. IV. Search and Seizure, p. 1000. V. Jury Trial, p. 1000. VI. Eminent Domain, p. 1001. VII. Commerce, p. 1001. VIII. Due Process of Law, p. 1002. IX. Equal Protection of Laws, p. 1002. I. In General. Powers of Congress—Labor relations—Non-Communist affidavits.—Constitutionality of non-Communist affidavit provision of § 9 (h) of National Labor Relations Act, as amended by Labor Management Relations Act, 1947. American Communications Assn. v. Douds, 382; Osman v. Douds, 846. II. Federal-State Relations. 1. Marginal sea—Paramount rights.—Rights of United States in marginal sea paramount to rights of Louisiana and Texas. United States v. Louisiana, 699; United States v. Texas, 707. 1000 INDEX. CONSTITUTIONAL LAW—Continued. 2. Bequests to United States—Validity of state prohibition.—State may ban bequests to United States by domiciliaries, though permitting bequests to State or subdivisions; no distinction between realty and personalty; no violation of Supremacy Clause; right reserved by Tenth Amendment. United States v. Burnison, 87. 3. State labor laws—Conflict with federal law.—Strike-vote provision of Michigan labor mediation law invalid as in conflict with federal law. Auto. Workers v. O’Brien, 454. III. Freedom of Speech. 1. Labor relations—Beliefs.—Validity of non-Communist affidavit provision of § 9 (h) of National Labor Relations Act, as amended by Labor Management Relations Act, 1947. American Communications Assn. v. Douds, 382; Osman v. Douds, 846. 2. Peaceful picketing—Injunction—State policy.—State court injunction against peaceful picketing to compel hiring of Negroes contrary to state policy against racial discrimination, valid. Hughes v. Superior Court, 460. 3. Peaceful picketing—Injunction—State policy.—State court injunction against peaceful picketing to compel employer to sign contract which, contrary to state policy, would coerce employees’ choice of bargaining representative, valid. Building Service Employees v. Gazzam, 532. 4. Peaceful picketing — Injunction — Owner-operated business.— State court injunction against peaceful picketing to compel union shop at place of business conducted by owner without employees, valid. Teamsters Union v. Hanke, 470. IV. Search and Seizure. 1. Search without warrant—Incident to arrest—Reasonableness.— Search without warrant of one-room office, incident to valid arrest for sale and possession of forged postage stamps, lawful though there was ample time to procure warrant; evidence thereby obtained admissible in federal courts. United States v. Rabinowitz, 56. 2. Search without warrant—Health regulations—Inspection of buildings.—Query whether Fourth Amendment barred health officer from entering home without warrant to inspect for unsanitary conditions. District of Columbia v. Little, 1. V. Jury Trial. 1. Civil actions.—Seventh Amendment requires jury trials only in actions at law; not applicable to equity suit against State in Supreme Court for injunction and accounting. United States v. Louisiana, 699. INDEX. 1001 CONSTITUTIONAL LAW—Continued. 2. Impartial jury—Government employees—Communist defendant.—Communist on trial in District of Columbia for contempt of House Committee on Un-American Activities not denied constitutional right by presence of government employees on jury, absent proof of actual bias. Dennis v. United States, 162. 3. Impartial jury—Government employees—Actual bias.—Trial court’s refusal to permit voir dire examination of government employees as to effect of Loyalty Order on ability to render impartial verdict, denied opportunity to prove actual bias and vitiated conviction. Morford v. United States, 258. VI. Eminent Domain. 1. Taking—Navigation improvement—Uplands impaired by underflow.—Destruction of agricultural value of uplands by underflow resulting from maintenance of river continuously at ordinary high-water mark was compensable taking, although for improvement of navigation. United States v. Kansas City Ins. Co., 799. 2. Taking—Riparian rights—Reclamation project not navigation control.—Friant Dam as reclamation project rather than navigation control; landowners entitled to compensation for deprivation of riparian rights to benefits from seasonal inundations; date from which interest allowed; adequacy of description of interest taken. United States v. Gerlach Live Stock Co., 725. 3. Just compensation — Wartime requisition — Ceiling price.— 0. P. A. ceiling price as just compensation for wartime requisition of black pepper; “retention value” disallowed though owner was “investor” rather than “trader”; cost to owner immaterial. United States v. Commodities Trading Corp., 121. 4. Leaseholds—Just compensation—Removal expenses.—Removal expenses not compensable where Government initially takes occupancy for lesser period than leaseholder’s term but subsequently exhausts term by exercise of option to renew; when removal expenses determinable. United States v. Westinghouse Co., 261. VII. Commerce. 1. Labor relations—Federal law—Non-Communist affidavits.— Constitutionality of non-Communist affidavit provision of § 9 (h) of National Labor Relations Act, as amended by Labor Management Relations Act, 1947. American Communications Assn. v. Douds, 382; Osman v. Douds, 846. 2. Labor relations—State laws—Conflict with federal law.—Strikevote provision of Michigan labor mediation law invalid as in conflict with federal law. Auto. Workers v. O’Brien, 454. 1002 INDEX. CONSTITUTIONAL LAW—Continued. 3. State taxation—Motor vehicles.—Maryland title tax of 2% of market value of motor vehicles, prerequisite to use of roads, valid as applied to interstate carriers; not shown to be excessive. Capitol Greyhound Lines v. Brice, 542. VIII. Due Process of Law. See also HI, supra. 1. Scope—“Any person”—Nonresident enemy alien.—Nonresident enemy aliens, captured and imprisoned abroad, without right to writ of habeas corpus in United States court in wartime. Johnson v. Eisentrager, 763. 2. Federal legislation—Vagueness—Validity.—Section 9 (h) of National Labor Relations Act, as amended by Labor Management Relations Act, 1947, not void as vague. American Communications Assn, v. Douds, 382. 3. Notice and hearing—Food, Drug, & Cosmetic Act.—Validity of multiple seizures provision of Food, Drug, & Cosmetic Act; hearing not essential in administrative determination of probable cause. Ewing v. Mytinger & Casselberry, 594. 4. State action.—Immaterial that policy of State is expressed by its courts rather than by its legislature. Hughes v. Superior Court, 460. 5. State courts—Notice and hearing—Common trust funds.—Settlement of accounts of common trust fund; validity of notice by publication to beneficiaries. Mullane v. Central Hanover Bank Co., 306. 6. Blue Sky Law—Notice and hearing—Foreign association.— Power of State to subject to jurisdiction of Commission in cease-and-desist proceedings under Blue Sky Law foreign association issuing certificates of insurance to residents; validity of service of process by registered mail. Travelers Health Assn. v. Virginia, 643. 7. Capital punishment—Insane persons.—Determination by Governor, aided by physicians, that person under death sentence has not become insane, valid; adversary hearing and judicial review not required. Solesbee v. Balkcom, 9. 8. Criminal cases—Right to counsel.—Petitioner failed to prove such unfairness in non-capital prosecution as would justify Court in voiding sentence. Quicksall v. Michigan, 660. IX. Equal Protection of Laws. 1. Classification generally.—State may direct law against evil as it actually exists without covering whole field of possible abuses. Hughes v. Superior Court, 460. INDEX. 1003 CONSTITUTIONAL LAW—Continued. 2. Racial discrimination—Grand jury.—State court conviction of Negro for murder reversed because of racial discrimination in selection of grand jury. Cassell v. Texas, 282. 3. Racial discrimination—State-supported schools.—Texas law school for Negroes was not substantially equal; Negro entitled to admission to University of Texas Law School. Sweatt v. Painter, 629. 4. Racial discrimination—State-supported schools.—State precluded from segregating Negro admitted to University of Oklahoma graduate school. McLaurin v. Oklahoma Regents, 637. 5. Testamentary gifts—Bequests to United States.—California law banning bequests to United States by domiciliaries, though permitting bequests to State or subdivisions, valid; not unconstitutional discrimination against United States. United States v. Bumison, 87. CONTEMPT. See also Constitutional Law, V, 2. 1. Congressional committee witness—Willful default—Lack of quorum.—Conviction under R. S. § 102 for failure to produce records; defense of lack of quorum unavailable; use of testimony of defaulting witness not barred by R. S. § 859. United States v. Bryan, 323; United States v. Fleischman, 349. 2. Congressional committee witness—Willful default—Member of board.—Liability of member of executive board of association for failure to produce records; subpoena valid though addressed to member of board and not to the association; that association unincorporated immaterial; sufficiency of evidence to sustain conviction. United States v. Fleischman, 349. CONTRACTS. See Constitutional Law, III, 3; VIII, 6; Jurisdiction, I, 3; IV, 1; Labor, 3; Patents, 2. CORPORATIONS. See Taxation. COST. See Constitutional Law, VI, 3. COST-PLUS CONTRACT. See Labor, 3. COUNSEL. See Constitutional Law, VIII, 8. COUNTY UNIT SYSTEM. See Jurisdiction, I, 1. COURT OF CLAIMS. See Constitutional Law, VI; Eminent Domain, 1-2; Jurisdiction, II, 5-6. COURTS-MARTIAL. See also Jurisdiction, II, 4; III, 3. 1. Appointment—Validity—Law member.—Construction of requirement of 8th Article of War that officer of Judge Advocate General’s Department be detailed as law member. Hiatt v. Brown, 103. 1004 INDEX. COURTS-MARTIAL—Continued. 2. Judgment—Effect—Judicial review.—Scope of judicial review by habeas corpus of court-martial judgment. Hiatt v. Brown, 103. COURTS or APPEALS. See Jurisdiction, III. CRIMINAL LAW. See Antitrust Acts, 2; Citizenship; Constitutional Law, IV, 1; V, 2-3; VIII, 1, 7-8; IX, 2; Contempt; Health. DAMAGES. See Employers’ Liability Act; Transportation, 4. DEATH SENTENCE. See Constitutional Law, VIII, 7. DECLARATORY JUDGMENT ACT. See Jurisdiction, IV, 1. DEDUCTIONS. See Taxation. DEFAULT. See Contempt. DEPORTATION. See Aliens. DEPRECIATION. See Taxation, 2. DINING CARS. See Transportation, 1. DISCRIMINATION. See Constitutional Law, III, 2; IX; Transportation, 1. DISTRICT COURTS. See Jurisdiction, I; IV. DISTRICT OF COLUMBIA. See Antitrust Acts, 2; Constitutional Law, V, 2; Health. DIVERSITY OF CITIZENSHIP. See Jurisdiction, IV, 2. DOMICILE. See Constitutional Law, II, 2; VIII, 6. DRUGS. See Constitutional Law, VIII, 3. DUE PROCESS. See Constitutional Law, III; VIII. EDUCATION. See Constitutional Law, IX, 3-4. ELECTIONS. See Jurisdiction, I, 1. EMERGENCY PRICE CONTROL ACT. See Constitutional Law, VI, 3. EMINENT DOMAIN. See also Jurisdiction, II, 5. 1. Taking—Riparian rights—Reclamation project not navigation control.—Friant Dam as reclamation project rather than navigation control; landowners entitled to compensation for deprivation of riparian rights to benefits from seasonal inundations; date from which interest allowed; adequacy of description of interest taken. United States v. Gerlach Live Stock Co., 725. INDEX. 1005 EMINENT DOMAIN—Continued. 2. Taking—Navigation improvement—Uplands impaired by underflow.—United States liable for destruction of agricultural value of uplands by underflow resulting from maintenance of river continuously at ordinary high-water mark, even though for improvement of navigation; adequacy of description of interest taken. United States v. Kansas City Ins. Co., 799. 3. Just compensation — Wartime requisition—Ceiling price.— O. P. A. ceiling price as just compensation for wartime requisition of black pepper; “retention value” disallowed though owner was “investor” rather than “trader”; cost to owner immaterial. United States v. Commodities Trading Corp., 121. 4. Leaseholds—Just compensation—Removal expenses.—Removal expenses not compensable where Government initially takes occupancy for lesser period than leaseholder’s term but subsequently exhausts term by exercise of option to renew; when removal expenses determinable. United States v. Westinghouse Co., 261. EMPLOYER AND EMPLOYEE. See Constitutional Law, II, 3; III; VII, 1-2; Employers’ Liability Act; Labor; Transportation, 3. EMPLOYERS’ LIABILITY ACT. Safety Appliance Act—Automatic couplers—Liability of carrier.— Duty of carrier to equip cars with automatic couplers; violation as proximate cause of injury; sufficiency of charge to jury; amount of damages. Affolder v. N. Y., C. & St. L. R. Co., 96. ENEMY ALIENS. See Constitutional Law, VIII, 1. “EQUAL FOOTING’’ CLAUSE. See Texas. EQUAL PROTECTION OF LAWS. See Constitutional Law, IX. EQUITY. See Constitutional Law, V, 1; Jurisdiction, I, 1. EQUITY INVESTED CAPITAL. See Taxation, 2. EQUIVALENTS. See Patents, 1. ESTOPPEL. See Patents, 2. EVIDENCE. See Constitutional Law, IV, 1; V, 2-3; VIII, 8; Contempt; Labor, 1. EXCESS PROFITS TAX. See Taxation, 2. EXHAUSTION OF REMEDIES. See Jurisdiction, IV, 5. EX POST FACTO LAWS. See Constitutional Law, I. FAIR LABOR STANDARDS ACT. See Labor, 3. 1006 INDEX. FEDERAL POWER COMMISSION. See Jurisdiction, IV, 1; Natural Gas Act. FEDERAL QUESTION. See Jurisdiction, I, 4; II, 7; IV, 1. FEDERAL-STATE RELATIONS. See Constitutional Law, II. FEES. See also Antitrust Acts, 2. Amendments of Rules of this Court relative to fees to be charged by Clerk, pp. 994, 995. FIFTH AMENDMENT. See Constitutional Law, VI; VIII, 1-3. FINDINGS. See Antitrust Acts; Eminent Domain, 1-2; Jurisdiction, II, 6. FIRST AMENDMENT. See Constitutional Law, III. FIRST WAR POWERS ACT. See Trading with the Enemy Act. FLOOD CONTROL. See Eminent Domain, 1. FLUXES. See Patents. FOOD, DRUG, & COSMETIC ACT. See Constitutional Law, VIII, 3; Jurisdiction, IV, 3. FOREIGN ATTACHMENT. See Jurisdiction, III, 1. FOREIGN CORPORATIONS. See Constitutional Law, VIII, 6. FOREIGN COUNTRY. See Transportation, 4. FORUM NON CONVENIENS. See Jurisdiction, IV, 4. FOURTEENTH AMENDMENT. See Constitutional Law, III; VIII; IX. FOURTH AMENDMENT. See Constitutional Law, IV. FRAUD. See Constitutional Law, VIII, 6; Jurisdiction, IV, 4. FREEDOM OF SPEECH. See Constitutional Law, III. FREIGHT. See Transportation, 2, 4. FRIANT DAM. See Eminent Domain, 1. GAS. See Jurisdiction, IV, 1; Natural Gas Act. GEORGIA. See Jurisdiction, I, 1. GIFTS. See Taxation, 2. GOVERNMENT CONTRACTS. See Labor, 3. GOVERNMENT EMPLOYEES. See Constitutional Law, V, 2-3; Labor, 3. GOVERNORS. See Constitutional Law, VIII, 7. INDEX. 1007 GRADUATE SCHOOLS. See Constitutional Law, IX, 3-4. GRAND JURY. See Constitutional Law, IX, 2. GYPSUM BOARD. See Antitrust Acts, 1. HABEAS CORPUS. See also Jurisdiction, II, 4; IV, 5. 1. Availability of remedy—Nonresident enemy aliens.—Nonresident enemy aliens, captured and imprisoned abroad, without right to writ of habeas corpus in United States court in wartime. Johnson v. Eisentrager, 763. 2. Availability of remedy—Court-martial judgment—Scope of review.—Scope of judicial review by habeas corpus of court-martial judgment. Hiatt v. Brown, 103. HEALTH. Regulations—Inspection of buildings—Interference with officer.— Homeowner’s refusal to unlock door for inspection by health officer, and remonstrances on constitutional grounds, not “interference” prohibited by District of Columbia regulation. District of Columbia v. Little, 1. HEARINGS. See Aliens; Constitutional Law, VIII, 1, 3, 7. HIGHWAYS. See Constitutional Law, VII, 3. IMMIGRATION. See Aliens. Immunity. See contempt, i. IMPARTIAL JURY. See Constitutional Law, V, 2-3. INCOME TAX. See Taxation, 1. IN FORMA PAUPERIS. See Jurisdiction, I, 4; III, 2; Procedure. INFRINGEMENT. See Patents. INJUNCTION. See Constitutional Law, III, 2-4; Jurisdiction, I, 2; II, 2. INSANE PERSONS. See Constitutional Law, VIII, 7. INSPECTION. See Health. INSTRUCTIONS TO JURY. See Employers’ Liability Act. INSURANCE. See Constitutional Law, VIII, 6. INTEREST. See Eminent Domain, 1. INTERFERENCE. See Health. INTERSTATE COMMERCE. See Antitrust Acts; Constitutional Law, I; II, 3; VII; Eminent Domain, 1-2; Employers’ Liability Act; Transportation. 1008 INDEX. INVENTIONS. See Patents. IRRIGATION. See Eminent Domain, 1. JUDGE ADVOCATE GENERAL. See Courts-Martial, 1. JUDGMENTS. See also Antitrust Acts; Courts-Martial, 2; Jurisdiction. Law of the case—Application of rule—Finality of judgment.— Rule of “law of the case” inapplicable where judgment not final. United States v. U. S. Smelting Co., 186. JURISDICTION. See also Constitutional Law, VIII, 5-6; Courts-Martial; Habeas Corpus. I. In General, p. 1008. II. Supreme Court, p. 1009. III. Courts of Appeals, p. 1009. IV. District Courts, p. 1010. V. State Courts, p. 1010. References to particular subjects under title Jurisdiction: Accounting, II, 2; Adjustment Board, I, 3; V, 2; Administrative Decision, IV, 3; Admiralty, III, 1; IV, 4; Attachment, III, 1; Certiorari, II, 4; IV, 5; Citizenship, I, 4; Common Trust Fund, V, 1; Complaint, I, 1; Consent to Suit, II, 1; County Unit System, I, 1; Court of Claims, II, 5; Courts-Martial, II, 4; III, 3; Declaratory Judgment Act, IV, 1; Diversity Jurisdiction, IV, 2; Due Process, V, 1; Equity, I, 1; Federal Question, I, 4; II, 7; IV, 1; Findings, II, 6; Food, Drug, & Cosmetic Act, IV, 3; Foreign Attachment, III, 1; Forum Non Conveniens, IV, 4; Fraud, IV, 4; Habeas Corpus, III, 3; II, 4; IV, 5; In Forma Pauperis, I, 4; III, 2; Injunction, I, 2; II, 2; Jury Trial, II, 2; Labor Board, I, 5; Limitations, II, 5; Local law, II, 6—7; Marginal Sea, II, 1; Moot Case, I, 5; Nonresidents, V, 1; Pleadings, II, 5; Political Issues, I, 1; Procedural Due Process, V, 1; Quorum, II, 3; Railway Labor Act, I, 3; V, 2; Record, II, 5; Three-Judge Court, I, 2. I. In General. 1. Federal Courts—Equity—Political issues.—Complaint challenging constitutionality of Georgia’s county unit election system dismissed. South v. Peters, 276. 2. Federal courts—Injunction—State law.—Three-judge district court erred in ruling on merits of suit to restrain enforcement of allegedly unconstitutional state law which had not been construed by state courts; complainants to be afforded opportunity to obtain state court ruling. Shipman v. DuPre, 321. 3. Railway Labor Act—Adjustment Board—State courts.—Jurisdiction of Adjustment Board over carrier-employee disputes exclusive; INDEX. 1009 JURISDICTION—Continued. state courts without power to interpret agreements and adjudicate disputes. Slocum v. Delaware, L. & W. R. Co., 239; Order of Conductors v. Southern R. Co., 255. 4. Federal question—Citizenship—In forma pauperis.—Who is “citizen” for purpose of in forma pauperis proceeding in federal court is federal question. Roberts v. District Court, 844. 5. Moot case—Enforcement of Labor Board order.—Enforcement proceeding not rendered moot by employer’s compliance with Labor Board order. Labor Board v. Mexia Textile Mills, 563. II. Supreme Court. 1. Original jurisdiction—Suit by United States against State.— Original jurisdiction of this Court over suit by United States against Louisiana and Texas to determine rights in marginal sea; State’s consent to suit unnecessary. United States v. Louisiana, 699; United States v. Texas, 707. 2. Original jurisdiction—Suit for injunction and accounting—Jury trial.—Louisiana not entitled to jury trial; requirement of jury trial applicable only to actions at law. United States v. Louisiana, 699. 3. Review of Court of Appeals—Absence of quorum.—Judgment of Court of Appeals affirmed because of absence of quorum of qualified justices. Prichard v. United States, 974. 4. -Review of Courts of Appeals—Habeas corpus—Certiorari.— Judgment affirming discharge of prisoner under court-martial sentence reviewable on certiorari. Hiatt v. Brown, 103. 5. Review of Court of Claims—Record—Limitations.—Record in suit for compensation for property requisitioned in Philippines during Japanese invasion did not properly present question as to tolling of statute of limitations; remand to permit further pleadings. Standard-Vacuum Oil Co. v. United States, 157. 6. Review of Court of Claims—Findings on local law.—Acceptance of finding on local law, on which there is no manifest error. United States v. Gerlach Live Stock Co., 725. 7. Review of state courts—Local law—Scope of review.—Construction of local law by highest state court binding; but validity under Federal Constitution is a federal question. United States v. Bumison, 87. III. Courts of Appeals. 1. Appeals from District Court—Order vacating attachment in admiralty.—Order of District Court vacating attachment of foreign vessel in admiralty proceeding appealable. Swift & Co. v. Compania Caribe, 684. 1010 INDEX. JURISDICTION—Continued. 2. Appeals from District Court—Order denying leave to proceed in forma pauperis.—Order of District Court denying leave to proceed in forma pauperis appealable. Roberts v. District Court, 844. 3. Review of District Court—Habeas corpus proceeding—Scope of review.—In habeas corpus proceeding to secure release of one under sentence of court-martial, sole issue is the jurisdiction of the court-martial; Court of Appeals erred in broadening scope of review. Hiatt v. Brown, 103. IV. District Courts. 1. Federal question—Contract re “issuance” of certificate by Federal Power Commission.—Construction of contract hinging on “issuance” of certificate of convenience and necessity by Federal Power Commission not a question that “arises under” laws of United States; effect of Declaratory Judgment Act. Skelly Oil Co. v. Phillips Petroleum Co., 667. 2. Diversity jurisdiction.—Case as properly in District Court by virtue of diversity of citizenship of parties; judgment vacated and cause remanded for further exploration of issues. Skelly Oil Co. v. Phillips Petroleum Co., 667. 3. Food, Drug, & Cosmetic Act—Administrative determination.— District Court without jurisdiction to review administrative determination of probable cause under multiple seizures provision of Food, Drug, & Cosmetic Act. Ewing v. Mytinger & Casselberry, 594. 4. Admiralty—Fraudulent transfer—Foreign vessel—Forum non conveniens.—Jurisdiction of District Court in admiralty to determine whether foreign vessel had been transferred in fraud of rights of libelant; doctrine of forum non conveniens. Swift & Co. v. Compania Caribe, 684. 5. Habeas corpus—State prisoner—Exhaustion of remedies—Certiorari.—Petition for certiorari to this Court to review state court’s denial of relief to state prisoner claiming federal right, as prerequisite to habeas corpus application to federal district court; exceptional circumstances warranting prompt federal intervention not shown. Darr v. Burford, 200. V. State Courts. 1. Common trust fund—Settlement of accounts.—Right of state courts to determine interests of nonresident claimants in common trust fund, provided procedural due process is accorded. Mullane v. Central Hanover Trust Co., 306. 2. Railway Labor Act—Adjustment of disputes.—Jurisdiction of Adjustment Board over carrier-employee disputes exclusive; state INDEX. 1011 JURISDICTION—Continued. courts without power to interpret agreements and adjudicate disputes. Slocum v. Delaware, L. & W. R. Co., 239; Order of Conductors v. Southern R. Co., 255. JURY. See Constitutional Law, V; IX, 2; Employers’ Liability Act; Jurisdiction, II, 2. JUST COMPENSATION. See Constitutional Law, VI. LABOR. See also Constitutional Law, I; II, 3; III; Employers’ Liability Act; Jurisdiction, I, 3, 5; Transportation, 3. 1. National Labor Relations Act—Order of Board—Enforcement — Court of Appeals’ reference of case back to Board vacated; order entitled to enforcement unless “extraordinary circumstances” justify employer’s failure to urge objections before Board; employer’s compliance does not make cause moot; employer’s doubt that union represents majority of employees does not justify denial of enforcement decree; power to order taking of additional evidence does not enlarge scope of judicial review. Labor Board v. Mexia Textile Mills, 563; Labor Board v. Pool Mfg. Co., 577. 2. id— Lapse of 2y2 years before petition for enforcement of order did not disentitle Board to decree of enforcement. Labor Board v. Pool Mfg. Co., 577. 3. Fair Labor Standards Act—Coverage—Government cost-plus contracts.—Application of Act to employees at Government-owned munitions plant operated by private contractor under cost-plus contract; Walsh-Healey Act not exclusive; effect of Act of July 2, 1940. Powell v. U. S. Cartridge Co., 497. LABOR MANAGEMENT RELATIONS ACT. See Constitutional Law, I; 11,3; VII, 2. LAW OF THE CASE. See Judgments. LAW SCHOOLS. See Constitutional Law, IX, 3. LEASE. See Eminent Domain, 4. LICENSE. See Patents, 2. LIMITATIONS. See Jurisdiction, II, 5. LOCAL LAW. See Jurisdiction, II, 6-7. LOUISIANA. See Constitutional Law, II, 1; Jurisdiction, II, 1-2. LOYALTY ORDER. See Constitutional Law, V, 2-3. MAILS. See Constitutional Law, IV, 1; VIII, 6. 1012 INDEX. MANDAMUS. Issuance of writ.—Motion in this Court for leave to file petition for mandamus to District Court denied because of ambiguous state of record. Roberts v. District Court, 844. MARGINAL SEA. See Constitutional Law, II, 1. MARKET VALUE. See Constitutional Law, VI, 3; VII, 3. MARYLAND. See Constitutional Law, VII, 3. MASTER AND SERVANT. See Constitutional Law, I; II, 3; III; Employers’ Liability Act; Jurisdiction, I, 3, 5; Labor; Transportation. MEDIATION. See Constitutional Law, VII, 2. MICHIGAN. See Constitutional Law, VII, 2. MILITARY COMMISSION. See War, 2. MISBRANDING. See Constitutional Law, VIII, 3. MONOPOLY. See Antitrust Acts; Patents, 2. MOOT CASE. See Jurisdiction, I, 5. MOTOR VEHICLES. See Constitutional Law, VII, 3. MUNICIPAL CORPORATIONS. See Health. MUNITIONS. See Labor, 3. MURDER. See Constitutional Law, VIII, 7; IX, 2. NATIONAL LABOR RELATIONS ACT. See Constitutional Law, I; II, 3; Labor, 1-2. NATIONAL RAILROAD ADJUSTMENT BOARD. See Jurisdiction, I, 3. NATURAL GAS ACT. Certificate of public convenience and necessity.—“Issuance” by Commission. Skelly Oil Co. v. Phillips Petroleum Co., 667. NAVIGATION. See Constitutional Law, VI, 1; Eminent Domain, 1-2. NEGROES. See Constitutional Law, III, 2; IX, 1-4; Transportation, 1. NEW YORK. See Constitutional Law, VIII, 5; Jurisdiction, V, 1. NON-COMMUNIST AFFIDAVIT. See Constitutional Law, I. NONRESIDENTS. See Constitutional Law, VIII, 5-6; Jurisdiction, V, 1. NOTICE. See Constitutional Law, VIII, 3, 5-7. OATH. See Constitutional Law, I. INDEX. 1013 OFFICE OF PRICE ADMINISTRATION. See Constitutional Law, VI, 3. OFFICERS. See Health. OIL. See Constitutional Law, II, 1. OKLAHOMA. See Constitutional Law, IX, 4. OPTION. See Eminent Domain, 4. PASSENOERS. See Transportation, 1. PATENTS. 1. Validity—Infringement—Doctrine of equivalents.—Validity and infringement of flux claims of Jones patent No. 2,043,960; application of doctrine of equivalents. Graver Mfg. Co. v. Linde Co., 605. 2. License—Royalties—Validity of agreement—Absence of monopoly or misuse.—Agreement whereby licensee pays percentage of sales for privilege of using many radio patents owned by research organization, valid in absence of monopoly, restriction of production, or other misuse; question as to licensing provision which licensor waived was moot; licensee may not challenge validity of patents. Automatic Radio Co. v. Hazeltine Research, 827. PAUPERS. See Jurisdiction, I, 4; III, 2. PERSONAL PROPERTY. See Constitutional Law, II, 2. PHILIPPINE ISLANDS. See Jurisdiction, II, 5. PHYSICIANS. See Constitutional Law, VIII, 7. PICKETING. See Constitutional Law, III, 2-4. PLEADINGS. See Jurisdiction, II, 5. POLITICAL ISSUES. See Jurisdiction, I, 1. POLITICAL STRIKES. See Constitutional Law, I. POST OFFICE. See Constitutional Law, IV, 1. PREMIUM. See Taxation, 1. PRICE FIXING. See Antitrust Acts; Constitutional Law, VI, 3. PROBABLE CAUSE. See Constitutional Law, IV, 1; VIII, 3; Jurisdiction, IV, 3. PROCEDURE. See also Aliens; Constitutional Law, III, 2-4; IV, 1; V; VIII; IX, 2; Jurisdiction; Labor, 1-2. Federal procedure—In forma pauperis—“Citizen.”—Who is “citizen” is federal question; order denying motion for leave to proceed in forma pauperis appealable. Roberts v. District Court, 844. PROXIMATE CAUSE. See Employers’ Liability Act. 874433 0—50-----65 1014 INDEX. PUBLICATION. See Constitutional Law, VIII, 5. PUBLIC HEALTH. See Constitutional Law, IV, 2; Health. PUBLIC OFFICERS. See Health. QUORUM. See Contempt, 1; Jurisdiction, II, 3. RACIAL DISCRIMINATION. See Constitutional Law, III, 2; IX, 1-4; Transportation, 1. RADIO. See Patents, 2. RAILROADS. See Employers’ Liability Act; Jurisdiction, I, 3; Transportation. REAL ESTATE. See Antitrust Acts, 2; Constitutional Law, II, 2. RECLAMATION. See Eminent Domain, 1. RECORD. See Jurisdiction, II, 5; Mandamus. REGULATIONS. See Health. RELIGION. See Constitutional Law, III, 1. REMOVAL EXPENSES. See Eminent Domain, 4. RESIDENTS. See Constitutional Law, II, 2; VIII, 1, 5-6. RES JUDICATA. See Antitrust Acts, 2. RESTRAINT OF TRADE. See Antitrust Acts. RETENTION VALUE. See Constitutional Law, VI, 3. RIGHT TO COUNSEL. See Constitutional Law, VIII, 7-8. RIPARIAN RIGHTS. See Eminent Domain, 1. ROYALTIES. See Patents, 2. RULES. Amendments of Rules of this Court, pp. 994, 995. SAFETY APPLIANCE ACT. See Employers’ Liability Act. SANITATION. See Constitutional Law, IV, 2; Health. SCHOOLS. See Constitutional Law, IX, 3-4. SEARCH AND SEIZURE. See Constitutional Law, IV; Health. SEGREGATION. See Constitutional Law, IX, 3-4; Transportation, 1. SERVICE OF PROCESS. See Constitutional Law, VIII, 5-6. SHERMAN ACT. See Antitrust Acts. STAMPS. See Constitutional Law, IV, 1. STATE COURTS. See Jurisdiction, V. STATES. See Constitutional Law, II; VII, 2-3; VIII, 4-8; IX. INDEX. 1015 STATE-SUPPORTED SCHOOLS. See Constitutional Law, IX, 3-4. STATUTES. Construction—Administrative interpretation.—When administrative interpretation not persuasive. Railway Labor Assn. v. United States, 142. STRIKES. See Constitutional Law, I; II, 3; III, 1-4. SUBPOENA. See Contempt. SUPREMACY CLAUSE. See Constitutional Law, II. SUPREME COURT. See Jurisdiction, II. TAFT-HARTLEY ACT. See Constitutional Law, I. TARIFFS. See Transportation, 2. TAXATION. See also Constitutional Law, VII, 3. 1. Federal taxation—Income tax—Amortizable bond premium.— Deduction for amortizable bond premium in the case of bonds which are callable and convertible into stock. Commissioner v. Korell, 619. 2. Federal taxation—Excess profits tax—Depreciation—Equity invested capital.—Deduction for depreciation of property contributed to corporation by community groups for locating or expanding factories, and property acquired with cash contributed by such groups; value of such contributions includible in equity invested capital. Brown Shoe Co. v. Commissioner, 583. TENTH AMENDMENT. See Constitutional Law, II, 2. TESTAMENTARY GIFTS. See Constitutional Law, II, 2. TEST OATH. See Constitutional Law, I. TEXAS. See also Constitutional Law, II, 1; IX, 2-3; Jurisdiction, 11,1. Resolution of Annexation.—Construction of “equal footing” clause. United States v. Texas, 707. THREE-JUDGE COURT. See Jurisdiction, I, 2. TIDELANDS. See Constitutional Law, II, 1; Texas. TITLE TAX. See Constitutional Law, VII, 3. TRADE. See Antitrust Acts. TRADING WITH THE ENEMY ACT. Blocked transactions—State courts.—State court judgments entitling claimants to preference in payment out of frozen assets, conditioned on license of underlying transactions by Alien Property Custodian, affirmed. Lyon v. Singer, 841. 1016 INDEX. TRANSPORTATION. See also Constitutional Law, VII, 3; Employers’ Liability Act; Jurisdiction, I, 3. 1. Railroads—Racial segregation in dining cars—Prejudice or disadvantage to passenger.—Rules of interstate railroad allotting table in diner exclusively to Negroes and others exclusively to whites violated §3 (1) of Interstate Commerce Act. Henderson v. United States, 816. 2. Authority of I. C. C.—Transportation service—Determination of limits.—I. C. C. order determining points where line-haul or carrier transportation service begins and ends at smelters valid; carrier tariff must conform. United States v. U. S. Smelting Co., 186. 3. Authority of I. C. C.—Consolidation of railroad facilities—Protection of employees.—I. C. C. may require protection of employees beyond four years from date of order approving consolidation. Railway Labor Assn. v. United States, 142. 4. Liability of carrier—Damage to goods—Carmack Amendment.— Applicability of Carmack Amendment to transportation by rail from New Orleans to Boston of shipment which originated in foreign country; railroad issuing bill of lading at New Orleans as “receiving” carrier. Reider v. Thompson, 113. TREASON. See Citizenship. TRIAL. See Constitutional Law, IV, 1; V; VIII, 8; IX, 2. TRUSTS. See Constitutional Law, VIII, 5; Jurisdiction, V, 1. UNCERTAINTY. See Constitutional Law, VIII, 2. UNINCORPORATED ASSOCIATIONS. See Contempt, 2. UNIONS. See Constitutional Law, I; II, 3; III; Labor; Transportation. UNITED STATES. See Constitutional Law, II, 1-2. UNIVERSITIES. See Constitutional Law, IX, 3-4. VAGUENESS. See Constitutional Law, VIII, 2. VIRGINIA. See Constitutional Law, VIII, 6. WALSH-HEALEY ACT. See Labor, 3. WAR. See also Constitutional Law, VI, 2; Courts-Martial, 1; Jurisdiction, II, 5; Trading with the Enemy Act. 1. Nonresident enemy alien—Access to courts.—Nonresident enemy alien without right of access to courts in wartime. Johnson v. Eisen-trager, 763. 2. Laws of war—Offenses—Military trial.—Jurisdiction of military authorities to punish prisoners for offenses against laws of war committed before capture. Johnson v. Eisentrager, 763. INDEX. 1017 WARRANT. See Constitutional Law, IV; Health. WATERS. See Constitutional Law, VI, 1-2; Eminent Domain, 1-2. WELDING. See Patents, 1. WILLFUL DEFAULT. See Contempt. WILLS. See Constitutional Law, II, 2. WITNESSES. See Contempt. WORDS. 1. “Amortizable bond premium.”—Internal Revenue Code. Commissioner v. Korell, 619. 2. “Any criminal proceeding.”—R. S. §859. United States v. Bryan, 323. 3. “Any person.”—Const., Amend. V. Johnson v. Eisentrager, 763. 4. “Available for the purpose.”—8th Article of War. Hiatt v. Brown, 103. 5. “Bond premium.”—Internal Revenue Code. Commissioner v. Korell, 619. 6. “Citizen.”—In forma pauperis proceedings under 28 U. S. C. § 1915. Roberts v. District Court, 844. 7. “Clearly erroneous.”—Rule 52 of Rules of Civil Procedure. United States v. Real Estate Boards, 485. 8. “Commerce.”—Fair Labor Standards Act. Powell v. U. S. Cartridge Co., 497. 9. “Contributions to capital.”—Internal Revenue Code. Brown Shoe Co. v. Commissioner, 583. 10. “Employer.”—Fair Labor Standards Act. Powell v. U. S. Cartridge Co., 497. 11. “Equal footing” clause.—Texas Annexation Resolution. United States v. Texas, 707. 12. “Gifts.”—Internal Revenue Code. Brown Shoe Co. v. Commissioner, 583. 13. “Goods.”—Fair Labor Standards Act. Powell v. U. S. Cartridge Co., 497. 14. “Impartial jury.”—Const., Amend. VI. Dennis v. United States, 162; Morford v. United States, 258. 15. “Interference” with Health Department inspector.—District of Columbia regulation. District of Columbia v. Little, 1. 16. “In which a State shall be Party.”—Const., Art. III. United States v. Louisiana, 699. 1018 INDEX. WORDS—Continued. 17. “Issuance” of certificate of convenience and necessity by Federal Power Commission under Natural Gas Act. Skelly Oil Co. v. Phillips Petroleum Co., 667. 18. “Just compensation.”—Const., Amend. V. United States v. Westinghouse Co., 261. 19. “Law of the case.”—United States v. U. S. Smelting Co., 186. 20. “Officers specially provided for by or designated pursuant to statute.”—Administrative Procedure Act. Wong Yang Sung v. McGrath, 33. 21. “Receiving” carrier.—Carmack Amendment. Reider v. Thompson, 113. 22. “Retention value.”—As element of just compensation. United States v. Commodities Trading Corp., 121. 23. “Required by statute.”—Administrative Procedure Act. Wong Yang Sung v. McGrath, 33. 24. “Subject any person to unreasonable prejudice or disadvantage.”—Interstate Commerce Act. Henderson v. United States, 816. 25. “Trade” as including business of real estate broker.—Sherman Act, § 3. United States v. Real Estate Boards, 485. 26. “Unreasonable searches and seizures.”—Const., Amend. IV. United States v. Rabinowitz, 56.