UNITED STATES REPORTS VOLUME 344 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1952 From October 6, 1952, Through February 9, 1953 WALTER WYATT REPORTER of decisions UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1953 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $4.25 (Buckram) Errata. 314 U. S. 334, note 14, line 14: “8328” should be “8117”. 343 U. S. 136. The citation in the last line on the page should be: 62 Stat. 793, 18 U. S. C. § 1951 (b)(2). JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS.* FRED M. VINSON, Chief Justice. HUGO L. BLACK, Associate Justice. STANLEY REED, Associate Justice. FELIX FRANKFURTER, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. ROBERT H. JACKSON, Associate Justice. HAROLD H. BURTON, Associate Justice. TOM C. CLARK, Associate Justice. SHERMAN MINTON, Associate Justice. JAMES P. McGRANERY, Attorney General.1 HERBERT BROWNELL, Jr., Attorney General.2 WALTER J. CUMMINGS, Jr., Solicitor General.3 ROBERT L. STERN, Acting Solicitor General.4 HAROLD B. WILLEY, Clerk.5 WALTER WYATT, Reporter of Decisions. •T. PERRY LIPPITT, Marshal.6 HELEN NEWMAN, Librarian. *Notes on p. iv. in NOTES. 1 Attorney General James P. McGranery resigned effective January 20, 1953. 2 Mr. Herbert Brownell, Jr., of New York, was nominated to be Attorney General by President Eisenhower on January 20, 1953; the nomination was confirmed by the Senate on January 21, 1953; he was commissioned and took the oath of office on January 21, 1953. 3 Mr. Walter J. Cummings, Jr., of Illinois, was commissioned as Solicitor General by President Truman on November 28, 1952 (a recess appointment), and took the oath of office on December 2, 1952. His nomination as Solicitor General by President Truman on January 9, 1953, was not acted upon by the Senate. He resigned effective March 1, 1953. 4 Between August 15, 1952, the effective date of Solicitor General Perlman’s resignation (see 343 U. S. p. iv, note 3), and the date Mr. Cummings took office, and also after the effective date of Mr. Cummings’ resignation, the duties of the office of Solicitor General were performed by Mr. Robert L. Stern, First Assistant to the Solicitor General, who signed government briefs and appeared as “Acting Solicitor General.” 5 Mr. Harold B. Willey was appointed Clerk of the Court on October 9, 1952, to succeed the late Charles Elmore Cropley, and took the oath of office on October 13, 1952. See post, pp. vn, ix, 801. 6 Mr. T. Perry Lippitt was appointed Marshal of the Court on June 9, 1952, effective upon the retirement of Thomas Ennalls Waggaman at the close of business June 30, 1952. See 343 U. S., p. vn. He took the oath of office on June 30, 1952. IV 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 O. 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.) DEATH OF CHARLES ELMORE CROPLEY, CLERK OF THE COURT. Supreme Court of the United States. MONDAY, OCTOBER 6, 1952. Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Jackson, Mr. Justice Burton, Mr. Justice Clark, and Mr. Justice Minton. _________ The Chief Justice said: “With deep personal sorrow the Court learned of the death of its Clerk, Charles Elmore Cropley, on June 17, 1952. “Born in 1894, Mr. Cropley lived in Washington throughout his life. At the age of 13 he began his career with this Court as a page boy. For two years, during 1911 and 1912, he left the Court to work in the Library of Congress and the Smithsonian Institution. However, in 1913, he returned as an Assistant Clerk. On June 6, 1927, he was appointed Clerk. He served in this capacity until his death. “Charles Elmore Cropley loved and revered the Court. He brought to his office a degree of thoroughness and courteous dignity seldom found today. These qualities won for him the respect and friendship of the Court, its staff, and of lawyers and litigants throughout the Nation. On the occasion of his fortieth anniversary with the Court in 1948, the American Bar Association Journal praised his ‘long and distinguished service, for which many lawyers have been unceasingly grateful from the time they first stepped timidly and hesitantly into the office of the Clerk of this great Court.’ “It was a part of Mr. Cropley’s duties to furnish the Court with annual reports which reviewed the affairs of VII VIII DEATH OF MR. CROPLEY. his office. Countless expressions in these reports reflect the full measure of his devotion, not just to his particular duties, but to the Court as an institution. He sometimes referred to his position as Clerk, not as his ‘job,’ but as his ‘stewardship.’ He spoke regularly of his ‘inherent desire to preserve and perpetuate the traditions’ of his office, of his respect and indebtedness to his associates for ‘their loyal support in our common endeavor.’ Even the various statistics, which he was called upon to recite to the Court, were phrased, not in the sterile language of the usual report, but in the language of one who cherishes a strong personal attachment to his duty. Thus, in commenting on the increased number of applications for membership to the Bar of the Court after 1945, Mr. Cropley wrote feelingly of the great number of lawyers who ‘were done with the brutality of war,’ who now sought the chance to serve ‘in the Supreme legal forum where civilized process justly composes the conflicts of men.’ On another occasion he wrote: ‘The nearly forty years since I first came to the Court gleam with innumerable facets of memory—those are my cherished and enduring gifts from the Court.’ “Perhaps, among those memories, were the proceedings of the Court on Monday, June 6, 1927. Chief Justice Taft observed: ‘The Court takes great pride in the history of the maintenance of the traditions of the Clerk’s office and of the length of service of those who administered it.’ And, in announcing Mr. Cropley’s appointment as Clerk, the Chief Justice said: ‘He has great familiarity with the duties of the office and carries with him to its headship the traditions that have secured such distinguished and useful service by . . . his predecessors, with the probability of a life of long usefulness.’ “Surely this expression of confidence has been fulfilled. With sorrow we must now mark the end of Mr. Cropley’s ‘stewardship,’ but we may always take pride that he served so well, that he, himself, was always so proud to have opportunity to serve so well.” APPOINTMENT OF HAROLD B. WILLEY AS CLERK OF THE COURT.* Supreme Court of the United States. MONDAY, OCTOBER 13, 1952. Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Jackson, Mr. Justice Burton, Mr. Justice Clark, and Mr. Justice Minton. __________ The Chief Justice said: “I am pleased to announce the appointment by the Court of Harold B. Willey to be its Clerk to succeed the late Charles Elmore Cropley. “While an Assistant Clerk, Mr. Willey received his degree in law from the George Washington University Law School, and was admitted to the Bar of this Court in 1935. He was appointed a Deputy Clerk in 1941. He has spent some 28 years in the service of the Court performing his duties with marked ability. “We are confident that Mr. Willey will continue to serve efficiently with courtesy to the Bar and the litigants before this Court; that he will be a worthy successor to the 10 other gentlemen who have preceded him in this position of honor and trust.” An order approving Mr. Willey’s bond was entered on October 13, 1952, and he took the oath of office on the same day. *For order of appointment entered October 9, 1952, see post, p. 801. IX TABLE OF CASES REPORTED Note: Cases reported before page 801 are those decided with opinions of the Court. Those reported on pages 801 et seq. are memorandum decisions and orders. Page A. B. Dick Co., Marr v................................... 878,905 Abrams, United States v...................................... 855 Acheson, Mandoli v........................................... 133 Acheson, Revedin v........................................... 820 Acheson, Wohlmuth v.......................................... 833 Adams, Terry v............................................... 883 Adams, Union City Transfer v................................. 912 Adams v. United States....................................... 891 Adams Packing Assn., United States v......................... 865 Adel Precision Products Corp., G. T. W. R. Co. v............. 831 Administrator. See name of administrator. Advance Machinery Exchange, Inc. v. Commissioner.......... 835 Advertisers Exchange, Inc. v. Hinkley........................ 921 Aeration Processes, Inc. v. Lange............................ 834 Agricultural Implement Workers v. Huffman.................... 814 Agricultural Implement Workers v. Labor Board................ 823 A. Gusmer, Inc. v. McGranery................................. 831 Ahern, South Buffalo R. Co. v................................ 367 Aiken v. Richardson...................................... 802,905 Aircraft Workers Union v. Huffman............................ 814 Aircraft Workers Union v. Labor Board........................ 823 Air Transport Associates v. Civil Aeronautics Board....... 825,922 Alabama, Williams v.......................................... 852 Alexander v. United States................................... 879 Algonquin Gas Transmission Co. v. N. E. Gas Co....... 818,850,881 Alien Property Custodian, Gusmer, Inc. v..................... 831 Alien Property Custodian, Orvis v........................ 902,936 Alison v. United States...................................... 167 Allen, Brown v............................................... 443 Allen, Daniels v............................................. 443 Allen v. Illinois........................................ 815,843 Allen, Speller v............................................. 443 Allen v. United States................................... 869,932 XI XII TABLE OF CASES REPORTED. Page Allison v. Munie........................................... 918 All States Freight, Inc. v. United States.................. 804 Alstate Construction Co. v. Tobin..................... 895,926 Alvis, Stewart v........................................... 845 Alwine v. Arabian American Oil Co.......................... 817 Amalgamated Association of St. R. Employees v. Detroit.. 805,882 A. M. Collins & Co. v. Panama R. Co........................ 875 American Air Transport, Civil Aeronautics Board v........ 4 American Brass Co., McNish v............................... 913 American Motorist Ins. Co., Boortz v....................... 897 American Newspaper Publishers Assn. v. Labor Board....... 812 American President Lines v. Immigration Service.......... 892,916 American Snuff Co. v. Labor Board.......................... 914 American Steamship Co. v. Interlake S. S. Co............... 822 American Steel Foundries, Holland Company v................ 855 American Thread Co., Labor Board v...................... 924 American Tobacco Co., Monticello Tobacco Co. v............. 875 American Trucking Assns. v. United States.................. 298 Anderson, Carney v................................. 860,888,905 Andrus v. Whitman.......................................... 817 Anglin, Atlanta v.......................................... 870 Anheuser-Busch, Inc. v. Kainz.............................. 820 Arabian American Oil Co., Alwine v......................... 817 Arabian American Oil Co., Hansen v......................... 828 Arabian American Oil Co., Olsen v......................... 817 Arizona v. California.................................. 806,919 Arkansas Public Service Comm’n, Fry Roofing Co. v........ 157 Arnall v. Safeway Stores, Inc.............................. 803 Aron v. Snyder......................................... 854,888 Arrowsmith v. Commissioner............................... 6,900 Arthur Winer, Inc., Labor Board v.......................... 819 Ash v. Ohio................................................ 859 Ashton Power Wrecker Equipment Co. v. Michigan........... 870 Associated Fruit Distributors, Central Fruit Co. v......... 921 Associated Fruit Distributors v. Denunzio Fruit Co....... 829 Association of Plumbers v. Graham.......................... 811 Association of Street Railway Employees v. Detroit....... 805,882 Astra Pictures, Inc. v. Eureka Productions, Inc............ 827 Astra Pictures, Inc., Machaty v............................ 827 Atchison, Gulf Refining Co. v.............................. 833 Atchison, T. & S. F. R. Co., Wottle v...................... 850 Atlanta v. Anglin.......................................... 870 Atlantic Coast Line v. Chance.............................. 877 Atlantic Coast Line, Glenn v............................... 935 TABLE OF CASES REPORTED. XIII Page Atlantic Coast Line v. Pidd................................. 874 Atlantic Coast Line, Pope v................................. 863 Atlantic Coast Line, Robins v............................... 816 Atlantic Refining Co., Wild v............................... 857 Attorney General, Gusmer, Inc. v............................ 831 Attorney General v. Nat. Assn, of Manufacturers......... 804,887 Attorney General, Orvis v............................... 902,936 Attorney General, Thomas v.................................. 899 Austrian V. Williams........................................ 909 Automatic Canteen Co. v. Federal Trade Comm’n............... 809 Automobile Workers v. Huffman............................... 814 Automobile Workers v. Labor Board........................... 823 Ayers v. Parry......................................... 849,916 Babb v. Benjamin............................................ 807 Babb, Illinois ex rel. Tarranto v........................... 833 Babb, Scott v............................................... 935 Babylon Milk & Cream Co., Brannan v......................... 891 Bailess v. Paukune...................................... 171,812 Bailey v. Virginia.......................................... 886 Baldi, Henry v............................. 4....4...... 926 Baldi, U. S. ex rel. Smith v............. ,4....... 4....... 561 Baldridge v. Kane County Circuit Court...................... 923 Balduff v. Ohio Turnpike Comm’n............................. 865 Ballard v. International Harvester Co....................... 841 Baltimore & O. R. Co., Clark v.............................. 830 Banks v. National Masters & Pilots Organization............. 868 Barbee v. Illinois.......................................... 844 Barber v. United States..................................... 857 Barber, Yanish v............................................ 817 Bardell v. Illinois......................................... 923 Barnett v. Jenkins.......................................... 836 Barnett, Salvaggio v........................................ 879 Barrett, Bode v............................................. 583 Barrett, Co-Ordinated Transport, Inc. v..................... 583 Bartenders’ Union v. Richards-Greenfield, Inc............... 824 Bashaw v. Heinze............................................ 880 Baten v. Nona-Fletcher Mineral Co........................... 864 Baugh v. Pennsylvania....................................... 916 Baumet v. United States.................................. 82,916 Bayne v. United States...................................... 881 Beacon Brass Co., United States v............................ 43 Beason v. Eidson............................................ 869 Beck v. Commissioner........................................ 821 Beck, Downey v.............................................. 875 XIV TABLE OF CASES REPORTED. Page Beckman, Des Marais v...................................... 922 Beecher v. Leavenworth State Bank.......................... 886 Bell v. Driscoll....................................... 838,888 Bell Aircraft Corp., United States v...................... 860 Belton, Gebhart v.......................................... 891 Benis v. Georgia........................................... 802 Benjamin, Babb v........................................... 807 Berg v. Cranor............................................. 880 Bergen County Sewer Authority, Little Ferry v.............. 865 Bertrand v. Ragen.......................................... 887 Beverage Department of Florida, Pickerill v............... 815 Biggs v. Feinberg.......................................... 929 Bishop v. Illinois......................................... 859 Bitsakis v. Wine........................................... 841 Bitterling, Maple Island Farm, Inc. v...................... 832 Black, Shotkin v........................................... 844 Block v. Colorado.......................................... 848 Blume v. United States..................................... 873 Board of Dental Examiners, Fernandez v..................... 802 Board of Education of Topeka, Brown v.................... 1,141 Board of Trustees School District #22, Briggs v.............. 1 Bode v. Barrett............................................ 583 Boies, Rubens v............................................ 840 Bolden v. Department of Public Safety...................... 845 Bolling v. Sharpe......................................... 873 Boortz v. American Motorist Ins. Co................।....... 897 Booth v. King.............................................. 843 Booth v. United States..................................... 909 Borkland, Goodman Mfg. Co. v............................... 921 Borough. See name of borough. Bott, Green v.............................................. 900 Bove, In re............................................... 823 Bowen v. Maryland...................................... 868,930 Bowers v. Nona-Fletcher Mineral Co......................... 864 Bowles, Mahoney v.......................................... 935 Bowman v. Washington....................................... 894 Bozell v. Welch........................................... 907 Bramhall Company v. Tobin.................................. 926 Brannan v. Kass............................................ 891 Bratburd v. Maryland....................................... 908 Brehm v. United States..................................... 838 Brennan v. United States................................... 935 Brewer v. Michigan......................................... 847 Brick & Clay Workers v. Deena Artware, Inc............. 897,919 TABLE OF CASES REPORTED. xv Page Brick & Clay Workers, Deena Products Co. v................... 822 Brigantine Beach Hotel Corp. v. Mariano...................... 832 Briggs v. Elliott........................................... 1 Briggs & Stratton Corp., Packwood v...................... 844,882 British & Foreign Ins. Co., Ruddy Brook, Inc. v.............. 816 Brock v. North Carolina...................................... 424 Brodhead, Dameron v.......................................... 891 Brody v. Massachusetts....................................... 820 Brooks, Richmond, F. & P. R. Co. v........................... 828 Brooks Transportation Co. v. United States................. 804 Brotherhood of Teamsters, Labor Board v...................... 853 Broussard v. Cranor.......................................... 858 Brown v. Allen.............................................. 443 Brown v. Industrial Accident Comm’n........................ 898 Brown v. Topeka Board of Education......................... 1,141 Brown, United States v.................................... 851 Brownell, Orvis v............................................ 936 Brown Land & Royalty Co. v. Green............................ 913 Bryant v. United States...................................... 913 Buder, Eight O’Clock Club v............................... 848 Building Trades Council v. Ledbetter Co...................... 178 Bullen v. Scoville........................................... 903 Bulova Watch Co., Steele v................................ 280 Burke, Geiger v.............................................. 859 Burke, Hansen v.............................................. 899 Burke, Marelia v.................f.;......................... 868 Burke, Pyeatte v........................................... 842 Burlington County Bridge Comm’n v. Driscoll.............. 838,888 Burnham, Dickinson v......................................... 875 Burns v. Carolina Power & Light Co........................... 863 Burns v. Lovett.......................................... 903,936 Butenbach, Ellingson & Co. v................................. 934 Byers v. Steele.......................................... 852,867 Byers v. United States..................................... 898 Byler, Wabash R. Co. v.................................... 826 Cadden v. Kentucky........................................... 849 California, Arizona v.................................... 806,919 California, Chesney v...................................... 930 California, Dessauer v....................................... 858 California, Dragna v......................................... 921 California, Edelman v........................................ 357 California, Estes v.......................................... 887 California, Gerundo v........................................ 936 California, Gresham v........................................ 842 XVI TABLE OF CASES REPORTED. Page California, Henderson v................................. 880 California, Hewlett v..................................... 849,882 California, Hodges v...................................... 840 California, Jaquish v..................................... 918 California, Kendall v................. 1................... 880 California, Kross v....................................... 908,923 California, Luse v............................................ 860 California, Mimms v........................................ 846 California, Norred v.»....................................... 869 California, Nor Woods v......... i........................ 860 California, Perez v........................................... 903 California, Tate v........................................ 910,931 California, Thomas v...................................... 881,916 California y. United States................................... 831 California, United States v................................... 872 California, Wester v.......................................... 847 California Industrial Accident Comm’n, Brown v................ 898 California Texas Oil Co. v. Kirkland...................... 902,904 California Utilities Comm’n, Mineral County v................. 810 California Utilities Comm’n, United States v.................. 810 Callahan, Emerson v........................................... 933 Callahan v. Georgia........................................... 868 Calmar Steamship Corp. v. Scott........................... 853 Calmar Steamship Corp. v. United States....................... 853 Caltex (Philippines), Inc., United States v............... 149,919 Campbell v. Claudy............................................ 869 Campbell v. Deviny............................................ 826 Campbell v. Pennsylvania.................................... 926 Cardiff, United States v...................................... 174 Cardox Corporation v. C-O-Two Fire Equipment Co........... 861,900 Carengella v. United States................................... 881 Carey v. Keeper of Montgomery County Prison................... 845 Carney v. Anderson.................................... 860,888,905 Carolina Power & Light Co., Burns v......................... 863 Carpenter v. Erie R. Co....................................... 849 Carpenter v. Heinze........................................... 869 Carpenter Container Corp. v. Container Company................ 826 Carroll v. Swenson............................................ 910 Carter v. Simpson............................................. 837 Carty, LaSalle v.............................................. 844 Casone v. Tennessee........................................... 849 Catholic Education Press, District of Columbia v.............. 896 Cementerio Buxeda, Inc., Puerto Rico v................. 876 Centracchio v. Garrity........................................ 866 TABLE OF CASES REPORTED. XVII Page Central Cuba Sugar Co. v. Commissioner..................... 874 Central Fruit Co. v. Associated Fruit Distributors......... 921 Central R. Co., Jaroszewski v.............................. 839 Cepero v. Pan American Airways......................... 840,882 Certain Parcels of Land in Fairfax, United States v........ 812 Chance, Atlantic Coast Line v.............................. 877 Chapman v. Michigan........................................ 883 Chapman v. United States................................... 821 Charles Peckat Mfg. Co. v. Jarecki......................... 875 Chauffeurs Union, Labor Board v.......................... 853 Cherney, Eagle v....................................1... 880 Chesapeake & 0. R. Co., Thomas v........................... 921 Chesney v. California...................................... 930 Chicago v. Willett Company. ............................... 574 Chicago & E. I. R. Co. v. United States.................... 917 Chicago Land Clearance Comm’n, White v.................. 824 Chicago-Nebraska Motor Express v. United States............ 862 Chicago & N. W. R. Co. v. Chicago Packaged Fuel Co...... 832 Chicago & N. W. R. Co., Tisneros v......................... 885 Chicago & N. W. R. Co. v. United States................. 871,900 Chicago Packaged Fuel Co., Chicago & N. W. R. Co. v.... 832 Chief Justice of Criminal Court, Geach v. .i................ 873 Chorak v. R. K. O. Radio Pictures...................... 887,910 Chronicle Publishing Co., Jefferson v.................. 803,882 Chronister v. United States................................ 867 Chrysler Corporation v. Kanatser........................... 921 Cincinnati, N. O. & T. P. R. Co., Eller v.................... 864 City. See name of city. Civil Aeronautics Board, Air Transport Associates v..... 825,922 Civil Aeronautics Board v. American Air Transport............... 4 Civil Aeronautics Board, Continental Southern Lines v........... 831 Civil Aeronautics Board, Western Air Lines v............... 875 Clark v. Baltimore & 0. R. Co..........................., 830 Clark v. Ragen............................................. 936 Clark v. United States..................................... 929 Clarksville, United States v............................... 927 Claudy, Campbell v......................................... 869 Claudy, Sholter v.......................................... 881 Clawson v. United States................................... 929 Clay Workers of America v. Deena Artware, Inc........... 897,919 Clay Workers of America, Deena Products Co. v.............. 822 Clements v. Gospodonovich.................................. 911 Close v. United States..................................... 879 Clulow, In re.............................................. 808 226612 0—58------2 XVIII TABLE OF CASES REPORTED. Page Coast v. Hunt Oil Co....................................... 836 Cochran v. Missouri........................................ 922 Colding, Kwong Hai Chew v.................................. 590 Collector, Peckat Mfg. Co. v............................... 875 Collector, Roles v......................................... 819 Collector of Internal Revenue. See Collector. Collins v. Illinois........................................ 898 Collins v. U. S. District Court............................ 808 Collins & Co. v. Panama R. Co.............................. 875 Colon v. Federal Trade Comm’n.............................. 823 Colorado, Block v.......................................... 848 Commercial Telegraphers Union v. Labor Board............... 852 Commissioner, Advance Machinery Exchange, Inc. v....... 835 Commissioner, Arrowsmith v............................ 6,900 Commissioner, Beck v................................... 821 Commissioner, Central Cuba Sugar Co. v................. 874 Commissioner, Di Vincenzo v............................ 847 Commissioner, Duveen Brothers, Inc. v.................. 884,910 Commissioner, 58th St. Plaza Theatre, Inc. v........... 820,882 Commissioner, Girard Trust Corn Exchange Bank v........ 821 Commissioner, Goe v.................................... 897 Commissioner, Hardenbergh v............................ 836 Commissioner, Hauptfuhrer Estate v...................... 825 Commissioner, Healy v.................................. 811 Commissioner, Herberger v.............................. 820 Commissioner, Milliken v............................... 884,910 Commissioner, Ochs v................................... 827 Commissioner, Penn v................................... 927 Commissioner, Place v.................................. 927 Commissioner, Roberts Dairy Co. v...................... 865 Commissioner v. Smith.................................. 813 Commissioner, Taylor v................................. 822 Commissioner, Theriot v................................ 874 Commissioner, Watson v................................. 895 Commissioner, White v.................................... 835,882 Commissioner of Finance, Penn-Dixie Cement Corp, v....... 890 Commissioner of Fisheries v. Gospodonovich................. 911 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents, Lanolin Cosmetics, Inc. v......... 823 Commissioner of Patents, Martin v.......................... 824 Commissioners of Louisville Sinking Fund, Howard v....... 624 Commonwealth. See name of Commonwealth. Communications Comm’n, Independent Broadcasting Co. v... 837 Connors v. Illinois....................................... 931 TABLE OF CASES REPORTED. XIX Page Construction Trades Council v. Ledbetter Co.............. 178 Construction Workers v. Labor Board...................... 876 Consumer Sales Corp. v. Federal Trade Comm’n............. 912 Container Company, Carpenter Container Corp, v........... 826 Contemporary Arts, Inc., Woolworth Company v............. 228 Continental Southern Lines v. Civil Aeronautics Board. 831 Cooper v. Cooper......................................... 876 Cooper v. New York....................................... 815 Cooperative Buying Service, United States v.............. 923 Co-Ordinated Transport, Inc. v. Barrett.................. 583 Copperweld Steel Co. v. United States................. 871,900 Cossentino v. New York................................ 859 Costello v. United States............................ 874,900 C-O-Two Fire Equipment Co., Cardox Corporation v...... 861, 900 C-O-Two Fire Equipment Co. v. United States.............. 892 County. See name of county. County School Board, Davis v.............................. 1 County Treasurer v. Paukune.......................... 171,812 Cowles Magazines, Inc., Polizzi v........................ 853 Cox v. Kirby Lumber Corp................................. 903 Crane v. Denunzio Fruit Co............................... 829 Cranor, Berg v........................................... 880 Cranor, Broussard v..................................... 858 Cranor, Giron v.......................................... 847 Cranor, Hein v........................................... 843 Cranor, Thompson v..................................... 905 Cranor, Wilson v......................................... 915 Creamer v. Ogden Union R. & D. Co........................ 912 Creek Nation v. McGhee................................... 856 Crescent Amusement Co., United States v.................. 901 Criminal Court of Cook County, Geach v................... 927 Crolich v. United States................................. 830 Crom, Diaz v............................................. 841 Cross v. Tustin...................................... 900,923 Crummer Company v. DuPont............................ 851,856 Culkin, Martin Nebraska Co. v........................ 866,888 Curlanis v. Steele....................................... 808 Curtis v. Forman......................................... 932 Curtis Key Co., United States v.......................... 855 Dale v. Heinze........................................... 894 Dalehite v. United States................................ 873 Dameron v. Brodhead...................................... 891 Danforth v. United States................................ 912 Daniels v. Allen........................................ 443 XX TABLE OF CASES REPORTED. Page Daniels v. Ragen.......................................... 841 Dant, Labor Board v................................... 375,811 Dant & Russell Sales Co., Washington Lumber Co. v...... 835 Dauphley v. New York...................................... 918 Da vena v. United States.................................. 878 Davenport v. United States................................ 835 . Daverse v. Hohn........................................... 913 Davidson v. United States................................. 866 Davies, Mock v............................................ 840 Davis v. Prince Edward County School Board.................. 1 Dealer’s Transport Co. v. Grasse.......................... 837 DeBruhl v. United States.................................. 868 Deena Artware, Inc., United Brick Workers v............ 897,919 Deena Products Co. v. Labor Board......................... 827 Deena Products Co. v. United Brick & Clay Workers...... 822 De Guia v. United States.................................. 895 Delany v. Padgett......................................... 825 De La Rama Steamship Co. v. United States............. 386,883 Del’Marmol v. Heinze...................................... 898 De Lorenzo v. Michigan.................................... 935 Dempsey Pump Co., Kobe, Inc. v........................ 837 Dental Board of Examiners, Fernandez v.................... 802 Denunzio Fruit Co., Crane v............................... 829 Denver Revenue Treasurer, Dameron v....................... 891 Denver & R. G. W. R. Co. v. McGowan....................... 918 Department of Public Safety, Bolden v.................... 845 Department of Registration & Education, Klein v........... 855 Depew Paving Co. v. United States......................... 854 Des Marais v. Beckman..................................... 922 Dessauer v. California.................................... 858 Detroit, Association of Street & R. Employees v....... 805,882 Deupree, Levinson v....................................... 903 Deviny, Campbell v826 De Vries, Ellingson & Co. v............................... 934 Diaz v. Crom.............................................. 841 Dick Company, Marr v................................... 878,905 Dickinson v. Burnham...................................... 875 Dickinson, Penn-Dixie Cement Corp, v.................... 890 Dillner Transfer Co. v. United States..................... 883 Director of Beverage Dept., Pickerill v.................... 815 Director of Immigration. See District Director of Immigration. Director of Internal Revenue, Whetstone v................. 928 Director of Price Stabilization v. Safeway Stores, Inc. 803 TABLE OF CASES REPORTED. XXI Page District Court. See U. S. District Court. District Director of Immigration, Martinez v.......... 810,916 District Director of Immigration v. Mezei................. 809 District Director of Immigration, Yanish v................ 817 District Judge. See also U. S. District Judge. District Judge, Port v.................................... 808 District of Columbia v. Catholic Education Press.......... 896 District of Columbia, Weitknecht v........................ 837 Di Vincenzo v. Commissioner............................... 847 Division 26, Street Railway Employees v. Detroit....... 805,882 Dixon v. Duffy............................................ 143 Dixon v. Ragen............................................ 843 Dollar, Land v........................................ 806,807 Dollar, Sawyer v.......................................... 806 Dollcraft Company, Nancy Ann Dolls, Inc. v................ 877 Donaldson, Priestly v..................................... 880 Donnelly, Pennsylvania R. Co. v........................... 855 Dow Chemical Co., Good v.................................. 805 Dow Chemical Co., Skinner v............................. 856 Dowd, Graham v..................................... 895,933 Dowd, Posey v......................................... 933 Dowd, Witte v........................................... 841 Downey v. Beck............................................ 875 Dragna v. California.................................... 921 Drexel v. Ohio............................................ 862 Driscoll, Bell v....................................... 838,888 Driscoll, Burlington Bridge Comm’n v................... 838,888 Driscoll, Nongard v.................................... 838,888 Drown v. United States.................................. 920 DuBois v. Mossey.......................................... 869 Duche & Sons v. United States............................. 830 Duffy, Dixon v............................................ 143 Dunbar v. Missouri........................................ 868 Dunbar v. Washington...................................... 841 Duncan v. United States................................... 885 Dunlap v. Steiner......................................... 894 Dunlap v. Warden of Texas Prison.......................... 911 DuPont, Crummer Company v............................. 851,856 DuPont v. DuPont.......................................... 836 DuPont de Nemours & Co., Miller v......................... 878 Dutton v. Ragen........................................... 873 Duty v. Munie............................................. 918 Duveen Brothers, Inc. v. Commissioner................. 884,910 Dworsky v. Leichter....................................... 914 XXII TABLE OF CASES REPORTED. Page Eagle v. Cherney............................................ 880 Earle, Roles v.............................................. 819 Eastern Motor Express, Inc. v. United States................ 298 Eddy v. Michigan............................................ 899 Edelman v. California....................................... 357 Edwards v. Overholser...................................... 933 Eidson, Beason v......................................... 869 Eidson, Lyle v............................................. 851 Eidson, Mahurin v....................................... 910 Eidson, Spradling v........................................ 907 Eidson, Whorton v........................................ 808 E. I. duPont de Nemours & Co., Miller v.................... 878 Eight O’Clock Club v. Buder................................. 848 E. & J. Distributing Co. v. Federal Trade Comm’n........... 823 Ekberg, McGee v............................................. 848 Electrical Workers v. Oliver Corporation.................... 897 Electric Auto-Lite Co. v. Labor Board....................... 823 Electric Railway Employees v. Detroit................... 805,882 Eller v. Cincinnati, N. O. & T. P. R. Co................. 864 Ellingson & Co. v. Butenbach................................ 934 Ellingson & Co. v. De Vries.-............................... 934 Elliott, Briggs v............................................. 1 Elliott v. Michigan......................................... 858 Ellis v. Heinze......................................... 894,919 Ellis, Henson v............................................. 930 Ellis, Kells v.............................................. 930 Ellis, Nations v............................................ 915 Ellis, Slusser v.................................... 807,857,882 Emerson v. Callahan......................................... 933 Employers Liability Ins. Co., Eunice Rice Co. v............. 876 Enders v. Jacques........................................... 932 Ericksen, Southern Pacific Co. v............................ 897 Erie County Water Authority, Western N. Y. Water Co. v... 892 Erie R. Co., Carpenter v.................................... 849 Ernest v. Riverview State Bank.............................. 892 Ernst v. Jewel Tea Co....................................... 918 Estate. See name of estate. Estes v. California......................................... 887 Eunice Rice Milling Co. v. Employers Ins. Co................ 876 Eureka Productions, Inc., Astra Pictures, Inc. v............ 827 Evans v. Overholser......................................... 808 Excel Packing Co., United States v.......................... 851 Ex parte. See name of party. Farnsworth v. United States................................. 915 TABLE OF CASES REPORTED. XXIII Page Fass v. Gray................................................ 839 Faubert v. Michigan..................................... 851,894 Faurot v. Moore............................................. 912 Federal Communications Comm’n, Ind. Broadcasting Co. v.. 837 Federal Power Comm’n v. Idaho Power Co................... 17,910 Federal Power Comm’n v. Northeastern Gas Co................. 818 Federal Trade Comm’n, Automatic Canteen Co. v............... 809 Federal Trade Comm’n, Colon v............................... 823 Federal Trade Comm’n, Consumer Sales Corp, v................ 912 Federal Trade Comm’n, Lichtenstein v.................... 819,882 Federal Trade Comm’n v. Minneapolis-Honeywell Co......... 206 Federal Trade Comm’n v. Motion Picture Service Co.... 392,811 Federal Trial Examiners Conference, Ramspeck v.............. 853 Feinberg, Biggs v........................................... 929 Felornia v. Young........................................... 886 Ferguson v. South Carolina.................................. 830 Fernandez v. Kellner........................................ 802 Fidelity Factors v. Leichter................................ 914 Fielding, Westwood Pharmacal Corp, v........................ 897 58th Street Plaza Theatre, Inc. v. Commissioner.......... 820,882 Fink v. Maryland........................................... 935 First National Bank of Houston v. Lake...................... 914 Fisk v. Frisbie............................................. 807 Fitz Simons & Connell Dredge Co., Mullen v.................. 933 Fleck v. Swope.............................................. 883 Fletcher, In re............................................. 862 Flora Realty & Investment Co. v. Ladue...................... 802 Florida, Maloy v............................................ 848 Florida, Washington v869 Florida, Weathers v......................................... 896 Florida, Westbury v......................................... 910 Florida Beverage Dept., Pickerill v......................... 815 Florida Board of Dental Examiners, Fernandez v.............. 802 Florida Railroad Comm’n v. United States............. 254,936 Ford Motor Co. v. Huffman.................................. 814 Forman, Curtis v........................................... 932 Fowler v. New York.......................................... 846 Frankfeld v. United States.................................. 922 Freapane v. Illinois........................................ 850 Frey v. Illinois............................................ 846 Friedman v. Heating Equipment Mfg. Co....................... 828 Frisbie, Fisk v............................................. 807 Frisbie, Sanguigni v........................................ 808 Frizzell v. Wabash R. Co.................................... 934 XXIV TABLE OF CASES REPORTED. Page Fry Roofing Co. v. Wood................................... 157 F. S. Whelan & Sons v. United States..................... 818 Fujimoto v. Wiig.......................................... 852 F. W. Woolworth Co. v. Contemporary Arts, Inc............ 228 Gadsden v. United States.................................. 935 Gage v. United States................................. 829,894 Galloway v. U. S. District Court.......................... 852 Gamble Enterprises, Inc., Labor Board v............... 814,872 Gamco Incorporated, Providence Produce Bldg, v............ 817 Garner Sales Co., Ellingson & Co. v....................... 934 Garrett Estate, In re..................................... 860 Garrity, Centracchio v.................................... 866 Gasway v. Texas........................................... 874 Geach v. Chief Justice of Cook County Court............... 873 Geach v. Criminal Court of Cook County.................... 927 Gebhart v. Belton....................................... 891 Geiger v. Burke........................................... 859 General Time Corp., Hansen Mfg. Co. v..................... 934 Gensmer v. Minnesota...................................... 824 George v. United States................................... 843 Georgia, Benis v.......................................... 802 Georgia, Callahan v....................................... 868 Georgia, Hodges v......................................... 903 Georgia Railroad & Banking Co., Redwine v................. 925 Geotechnical Corporation, Pizzo v......................... 879 Geotechnical Corporation v. Pure Oil Co................... 874 Germany v. Hudspeth....................................... 845 Gerundo v. California..................................... 936 Gerundo v. Teets.......................................... 933 Gibson v. United States................................... 907 Gilbert Associates, Inc., United States v................. 911 Girard Trust Corn Exchange Bank v. Commissioner.......... 821 Giron v. Cranor........................................... 847 Glenn v. Atlantic Coast Line.............................. 935 Glenn L. Martin Nebraska Co. v. Culkin............ 866,888 Gliva v. Jacques.......................................... 843 Godwin v. Hunter.......................................... 808 Goe v. Commissioner....................................... 897 Goldberger v. United States............................... 833 Golden, Sydow v...............................i........ 902 Golemon v. Texas...................................... 847,882 Good v. Dow Chemical Co................................... 805 Goodman, Port v........................................... 808 Goodman Mfg. Co. v. Borkland.............................. 921 TABLE OF CASES REPORTED. XXV Page Goodyear Tire & Rubber Co. v. Tierney.................... 825 Gordon v. Gordon......................................... 878 Gordon, Green v.......................................... 886 Gordon v. Heikkinen...................................... 870 Gordon v. United States.............................. 414,813 Gordon Woodroffe Corp. v. United States.................. 908 Gospodonovich, Clements v................................ 911 Governor of New Jersey, Bell v....................... 838,888 Governor of New Jersey, Burlington Bridge Comm’n v... 838,888 Governor of New Jersey, Nongard v.................... 838,888 Graham v. Dowd....................................... 895,933 Graham, Local Union No. 10 of Plumbers Assn, v........... 811 Grand Lodge of Odd Fellows, Slenker v................ 830,888 Grand Trunk W. R. Co. v. Adel Products Corp.............. 831 Grant Company v. Labor Board............................. 928 Grass v. Illinois........................................ 885 Grasse, Dealer’s Transport Co. v......................... 837 Graver Tank & Mfg. Co., Union Carbide Corp, v............ 849 Gray, Fass v........................1.................. 839 Great Northern R. Co., United States v................... 848 Green v. Bott............................................ 900 Green, Brown Land & Royalty Co. v........................ 913 Green v. Gordon.......................................... 886 Greene v. Robinson....................................... 842 Greer v. South Carolina.................................. 808 Gresham v. California.................................... 842 Grey van Lines, Inc., Ex parte........................... 808 Griffin v. Washington.................................... 898 Grower-Shippers Vegetable Assn., United States v......... 901 Gulf Refining Co. v. Atchison............................ 833 Gulf Research & Development Co. v. Leahy............. 861,900 Gusik v. Schilder........................................ 844 Gusmer, Inc. v. McGranery................................ 831 Gutowski, Sinclair Refining Co. v........................ 821 Habermann v. Martin...................................... 923 Halliday v. Union Properties, Inc........................ 802 Hamilton v. United States................................ 849 Hann, Howell v.................................. . 926 Hansen v. Arabian American Oil Co....................... 828 Hansen v. Burke.......................................... 899 Hansen Mfg. Co. v. General Time Corp..................... 934 Hardenbergh v. Commissioner.............................. 836 Hardman v. New Jersey.................................... 936 Harper, Jones v.......................................... 821 XXVI TABLE OF CASES REPORTED. Page Harris v. Harris....................................... 829,888 Harris v. Texas............................................ 899 Harvester Company, Ballard v............................... 841 Hasson v. Hiatt........................................... 867 Hauptfuhrer Estate v. Commissioner......................... 825 Hayslip, Ex parte.......................................... 879 H. B. Zachry Co. v. Terry.............................. 819,882 Healy v. Commissioner...................................... 811 Heating Equipment Mfg. Co., Friedman v..................... 828 Heck, Wallace v............................................ 931 Hedger Transportation Corp., United Fruit Co. v............ 896 Heikkinen, Gordon v........................................ 870 Hein v. Cranor............................................. 843 Heinze, Bashaw v........................................... 880 Heinze, Carpenter v........................................ 869 Heinze, Dale v........................................... 894 Heinze, Del’Marmol v....................................... 898 Heinze, Ellis v........................................ 894,919 Heinze, Neal v............................................. 841 Heinze, Pianezzi v......................................... 904 Heinze, Ponce v........................................... 845 Heinze, Tartar v........................................... 886 Heinze, Woollomes v........................................ 929 Hempt Brothers, Thomas v................................... 895 Henderson v. California.................................... 880 Henley v. Moore............................................ 931 Henning, United States v................................ 66,910 Henry v. Baldi............................................. 926 Henson v. Ellis............................................ 930 Herberger v. Commissioner.................................. 820 Herrin Transportation Co. v. United States................. 925 Hewlett v. California................................. 849,882 Hiatt, Hasson v............................................ 867 Hiatt, House v............................................. 849 Hiatt, Kirkland v.......................................... 858 Hiatt, Padilla v........................................... 857 Hicks v. New York.......................................... 807 Hicks v. Reid.............................................. 840 Hines v. Maysville......................................... 878 Hinkley, Advertisers Exchange, Inc. v...................... 921 Hobbs v. Hobbs............................................. 855 Hodges v. California....................................... 840 Hodges v. Georgia.......................................... 903 Hohn, U. S. ex rel. Daverse v.............................. 913 TABLE OF CASES REPORTED. XXVII Page Holland Company v. American Steel Foundries....................... 855 Holly v. Pennsylvania............................................. 930 Holmes Projector Co. v. United States............................. 912 Hoskins, Howard v................................................. 915 Hotel Employees’ Union v. Richards-Greenfield, Inc......... 824 House v. Hiatt.................................................... 849 Housing Authority of Los Angeles, Los Angeles v................. 836 Housing Expediter, McRae v.............................. 892,910 Houston v. Superior Court of Butte County......................... 887 Howard v. Commissioners of Louisville Sinking Fund.............. 624 Howard v. Hoskins................................................. 915 Howell v. Hann.................................................... 926 Hoxsey Cancer Clinic v. United States............................. 928 Hubbard v. King................................................... 918 Hudspeth, Germany v............................................... 845 Huffman, Ford Motor Co. v......................................... 814 Huffman, United Automobile Workers v................... 814 Humble Oil & Refining Co. v. United States........................ 909 Humphrey, Williams v.............................................. 862 Hunter, Godwin v.................................................. 808 Hunt Oil Co., Coast v ............................... 4 . 836 Idaho Power Co., Federal Power Comm’n v........................ 17,910 Illinois. See also Illinois ex rel. Illinois, Allen v............................................. 815,843 Illinois, Barbee v.............................................. 844 Illinois, Bardell v.............................................. 923 Illinois, Bishop v............................................. 859 Illinois, Collins v............................................... 898 Illinois, Connors v.............................................. 931 Illinois, Freapane v.............................................. 850 Illinois, Frey v.................................................. 846 Illinois, Grass v................................................. 885 Illinois, Johnson v..................................... 4 858 Illinois, Kamrowski v............................................. 916 Illinois, Kocielko v............................................. 930 Illinois, Lazenby v............................................. 842 Illinois, Medford v............................................. 859 Illinois, Murphy v............................................. 899 Illinois, Niemoth v............................................. 858 Illinois, O’Connell v............................................ 930 Illinois, Perkins v............................................... 918 Illinois, Petroski v.............................................. 887 Illinois, Putnam v................................................ 923 Illinois, Robinson v............................................ 847 XXVIII TABLE OF CASES REPORTED. Page Illinois, Sparacino v........................................... 887 Illinois, Supero v.............................................. 844 Illinois, Thompson v............................................ 899 Illinois, Tilley v.............................................. 824 Illinois, Tillman v............................................. 899 Illinois, Wagner v.............................................. 858 Illinois, Wright v.............................................. 840 Illinois ex rel.. Tarranto v. Babb.............................. 833 Illinois ex rel. Wallace, Labrenz v......................... 824 Illinois Registration & Education Dept., Klein v................ 855 Immigration Director. See District Director of Immigration. Immigration Service, American President Lines v.............. 892,916 Immigration Service v. Heikkinen................................ 870 Independent Broadcasting Co. v. Communications Comm’n.. 837 Independent Order of Odd Fellows, Slenker v................. 830,888 Indiana, Maddron v.............................................. 845 Indiana, Obie v................................................. 935 Indiana, Rivers v............................................... 846 Industrial Accident Comm’n, Brown v............................. 898 In re. See name of party. Interlake Steamship Co., American S. S. Co. v................... 822 International Brotherhood of Teamsters, Labor Board v........ 853 International Building Co., United States v..................... 927 International Harvester Co., Ballard v.................... 841 International Longshoremen’s Assn. v. Va. Ferry Corp......... 893 International Oil Workers Union, Tide Water Co. v............ 804,888 International Typographical Union v. Labor Board............. 816 International Union of Auto. Workers v. Huffman................. 814 International Union of Auto. Workers v. Labor Board.......... 823 Interstate Commerce Comm’n v. United States..................... 893 Ivey v. Texas................................................... 801 Jackson v. United States........................................ 858 Jackson, Williams v............................................. 902 Jacoby v. New York.............................................. 864 Jacques, Enders v............................................... 932 Jacques, Gliva v................................................ 843 Jacques, Jeronis v.............................................. 907 Jacques, Mulvey v............................................... 899 Jaquish v. California........................................... 918 Jarecki, Peckat Mfg. Co. v...................................... 875 Jaroszewski v. Central R. Co.................................... 839 Jefferson v. Chronicle Publishing Co........................ 803,882 Jefferson Lake Sulphur Co. v. United States..................... 818 Jenkins, Barnett v.............................................. 836 TABLE OF CASES REPORTED. XXIX Page Jeronis v. Jacques......................................... 907 Jeronis v. Starr........................................... 851 Jewel Tea Co., Ernst v..................................... 918 Jimenez-Melendez v. Jones.................................. 840 Johansen v. United States.................................. 848 Johnson v. Illinois........................................ 858 Johnson v. New Jersey...................................... 894 Johnson v. New York, N. H. & H. R. Co....................... 48 Johnson v. Tobin........................................... 926 Johnson v. United States................................... 839 Johnson & Co. v. Securities & Exchange Comm’n.............. 855 Jones v. Harper............................................ 821 Jones, Jimenez-Melendez v.................................. 840 Jones, LaReau v............................................ 876 Jonikas v. United States................................... 877 Jordan, Martinez v..................................... 810,916 Jordan v. Steele........................................... 808 Joseph Denunzio Fruit Co., Crane v......................... 829 Kainz, Anheuser-Busch, Inc. v.............................. 820 Kaiser-Frazer Corp. v. Otis & Co........................... 856 Kamrowski v. Illinois...................................... 916 Kanatser, Chrysler Corporation v....................... 921 Kane County Circuit Court, Baldridge v.................... 923 Kansas, Pyle v............................................. 915 Kass, Brannan v............................................ 891 Kaufman v. Pine............................................ 891 Kaval v. Ragen............................................. 842 Kawakita v. United States.................................. 850 Kedroff v. Saint Nicholas Cathedral......................... 94 Keeper of Montgomery County Prison, Carey v................ 845 Kelley, Glover & Vale, Inc. v. Kramer...................... 914 Kellner, Fernandez v....................................... 802 Kells v. Ellis............................................. 930 Kemble v. United States...,................................ 893 Kendall v. California...................................... 880 Kenney v. Wabash R. Co..................................... 913 Kentucky, Cadden v......................................... 849 Kentucky, Suver v.......................................... 934 Kentucky, Taylor v..................................... 830,888 Kepner, Sanford v........................................... 13 Kerr v. Teets.............................................. 846 Kershner v. New Jersey..................................... 844 KetchJm & Nongard v. Driscoll.......................... 838,888 Killion, In re............................................. 806 XXX TABLE OF CASES REPORTED Page King, Booth v............................................. 843 King, Hubbard v........................................... 918 King v. United States................................. 254,936 Kinston Tobacco Board of Trade v. Liggett & Myers Co.... 866 Kirby Lumber Corp., Cox v.............................. 903 Kirkland, California Texas Oil Co. v.................. 902,904 Kirkland v. Hiatt......................................... 858 Kirsch v. Ragen..........:................................ 930 Klein v. Department of Registration & Education........... 855 Knetzer v. Schultz........................................ 908 Knott v. Swenson.......................................... 847 Kobe, Inc. v. Dempsey Pump Co............................. 837 Kocielko v. Illinois...................................... 930 Koppal, Transcontinental & Western Air, Inc. v............ 933 Kornfeind v. United States................................ 862 Kramer; Kelley, Glover & Vale, Inc. v..................... 914 Kross v. California................................... 908,923 Kuiken v. United States............................... 867,910 Kwong Hai Chew v. Colding................................. 590 Labor Board, American Newspaper Publishers Assn, v...... 812 Labor Board, American Snuff Co. v......................... 914 Labor Board v. American Thread Co......................... 924 Labor Board v. Dant................................... 375,811 Labor Board, Deena Products Co. v......................... 827 Labor Board, Electric Auto-Lite Co. v..................... 823 Labor Board v. Gamble Enterprises, Inc.................814,872 Labor Board, Grant Company v.............................. 928 Labor Board, Green v...................................... 900 Labor Board v. International Brotherhood of Teamsters... 853 Labor Board, International Typographical Union v.......... 816 Labor Board, Local 12 of Auto. Workers Union v............ 823 Labor Board, Modern Mfg. Co. v............................ 816 Labor Board, Motorola, Inc. v............................. 913 Labor Board, Nabors v................................... 865 Labor Board, Nathanson v................................... 25 Labor Board v. Nina Dye Works Co.......................... 924 Labor Board, Radio Officers’ Union v...................... 852 Labor Board v. Rockaway News Supply Co.................... 863 Labor Board, Sanson Hosiery Mills v..................... 863 Labor Board v. Seven-Up Bottling Co................... 344,811 Labor Board, Stilley Plywood Co. v........................ 933 Labor Board, United Construction Workers v................ 876 Labor Board, United Hoisting Co. v......................* 914 Labor Board, United Mine Workers v.................... 884,920 TABLE OF CASES REPORTED. XXXI Page Labor Board, Williams v.................................... 834 Labor Board v. Winer, Inc.................................. 819 Labrenz v. Illinois ex rel. Wallace........................ 824 Ladue, Flora Realty & Investment Co. v..................... 802 L. A. Goodman Mfg. Co. v. Borkland......................... 921 Lake, First National Bank v................................ 914 Land v. Dollar......................................... 806,807 Lane Motor Co., United States v............................ 630 Lange, Aeration Processes, Inc. v....................... 834 Lanolin Plus Cosmetics, Inc. v. Marzall.................... 823 LaReau v. Jones............................................ 876 Larsen, Lauritzen v........................................ 810 LaSalle v. Carty........................................... 844 Latimer v. Washington...................................... 840 L. A. Tucker Truck Lines, United States v................... 33 Lauritzen v. Larsen........................................ 810 Lawrence v. United States.............................. 849,919 Lazenby v. Illinois........................................ 842 Leahy, Gulf Research & Development Co. v............... 861,900 Leavenworth State Bank, Beecher v........................ 886 Ledbetter Erection Co., Montgomery Trades Council v...... 178 LeForce v. United States................................... 833 Leichter, Dworsky v........................................ 914 Leimkuehler, Veal v...................................... 913 Leland v. Oregon........................................... 848 Leonard v. North Carolina.................................. 916 Lesesne, Western Union Telegraph Co. v..................... 896 Levinson v. Deupree........................................ 903 Lewis v. Virginia...................................... 880,900 Liberty Mutual Ins. Co., National Ins. Co. v............... 819 Lichtenstein v. Federal Trade Comm’n................... 819,882 Liggett & Myers Co., Kinston Tobacco Board v............... 866 Lindsey v. Watson.......................................... 849 Lindsley, Shotkin v........................................ 842 Lionshead Lake, Inc. v. Wayne............................ 919 Little Ferry v. Bergen County Sewer Authority.............. 865 Lizzi v. Steele............................................ 894 L. J. Williams Lumber Co. v. Labor Board.................. 834 Lloyd A. Fry Roofing Co. v. Wood.......................... 157 Local 445 of Oil Workers Union, Tide Water Co. v......... 804,888 Local 333B Longshoremen’s Assn. v. Virginia Ferry Corp.... 893 Local 12, United Auto. Workers v. Labor Board.............. 823 Local 2286, United Steelworkers v. United States........... 915 Local Union No. 10, United Plumbers v. Graham.............. 811 XXXII TABLE OF CASES REPORTED. Page Longshoremen’s Assn. v. Virginia Ferry Corp.............. 893 Lopez v. Texas........................................... 893 Los Angeles v. Housing Authority of Los Angeles.......... 836 Louisiana, Martinez v.................................... 843 Louisiana, Robinson v.................................... 904 Louisville Sinking Fund Commissioners, Howard v.......... 624 Lovett, Burns v........................................ 903,936 Lowery, Newman v......................................... 881 Luse v. California....................................... 860 Lutwak v. United States.............................. 604,809 Lyle v. Eidson........................................... 851 Mac. See Me. Machaty v. Astra Pictures, Inc........................... 827 Machine Workers v. Oliver Corporation.................. 897 Macri, Schaefer v........................................ 832 Maddron v. Indiana....................................... 845 Magnolia Pipe Line Co., Oklahoma Contracting Co. v..... 921 Mahoney v. Bowles........................................ 935 Mahoney v. Parole Board of New Jersey.................... 871 Mahurin v. Eidson........................................ 910 Malek v. Warden of Michigan State Prison................. 936 Malone v. Ragen.......................................... 894 Malone v. U. S. District Court........................... 927 Malone Freight Lines v. United States.................... 925 Maloy v. Florida......................................... 848 Manager of Revenue, Dameron v.......................... 891 Mandel v. United States.................................. 848 Mandoli v. Acheson....................................... 133 Maple Island Farm, Inc. v. Bitterling.................... 832 Marelia v. Burke......................................... 868 Mariano, Brigantine Beach Hotel Corp, v.................. 832 Marpes v. United States.................................. 876 Marr v. Dick Company................................ 878,905 Marshall v. United States................................ 926 Martin v. Commissioner of Patents........................ 824 Martin, Habermann v...................................... 923 Martinez v. Louisiana.................................... 843 Martinez v. Neelly.................................. 810,916 Martinez v. Rivera....................................... 828 Martin Nebraska Co. v. Culkin........................ 866,888 Maryland, Bowen v.................................. 868,930 Maryland, Bratburd v................................... 908 Maryland, Fink v....................................... 935 Maryland, McGuire v................................... 928 TABLE OF CASES REPORTED. xxxm Page Maryland, Reid v......................................... 848 Marzall, Lanolin Plus Cosmetics, Inc. v.................. 823 Massachusetts, Brody v................................... 820 Massachusetts Life Ins. Co. v. Smith..................... 823 Masters, Mates & Pilots Organization, Banks v............ 868 Matt & Neal’s Liquors, Anheuser-Busch, Inc. v............ 820 Matveychuk v. United States............................ 845 Maynard, Ex parte........................................ 907 Maysville, Hines v....................................... 878 Me. See also Mac. McConville, United States v.............................. 877 McCullough v. New Jersey................................. 909 McGee v. Ekberg......•................................... 848 McGee v. Reconstruction Finance Corp..................... 833 McGee, Simon v........................................... 899 McGhee, Creek Nation v................................... 856 McGhee v. Michigan....................................... 931 McGhee, United States v.................................. 856 McGowan, Denver & R. G. W. R. Co. v...................... 918 McGranery, Gusmer, Inc. v................................ 831 McGranery, Orvis v................................... 902,936 McGrath v. National Association of Manufacturers..... 804,887 McGuire v. Maryland...................................... 928 McGuire v. Todd.......................................... 835 McNish v. American Brass Co.............................. 913 McQuaid v. United States................................. 929 McRae v. Woods....................................... 892,910 McWilliams, Woo ton v.................................... 866 Medford v. Illinois...................................... 859 Mell v. Washington....................................... 887 Metzger v. Western P. R. Co.............................. 809 Mezei, Shaughnessy v..................................... 809 Michigan, Ashton Power Wrecker Co. v..................... 870 Michigan, Brewer v....................................... 847 Michigan, Chapman v...................................... 883 Michigan, De Lorenzo v................................. 935 Michigan, Eddy v......................................... 899 Michigan, Elliott v...................................... 858 Michigan, Faubert v.................................. 851 894 Michigan, McGhee v....................................... 931 Michigan, Mosher v....................................... 931 Michigan, Mulkey v................................... 852 888 Michigan, Podolski v................................. 845 888 Michigan, Purcilia v..................................... 868 226612 0—53-------------3 xxxiv TABLE OF CASES REPORTED. Page Michigan, Rolland v....................................... 885 Michigan, Schwiem v....................................... 880 Michigan, Shields v....................................... 899 Millard, Thomas v......................................... 899 Miller v. DuPont de Nemours & Co.......................... 878 Miller v. United States................................... 886 Milliken v. Commissioner.............................. 884,910 Mills v. United States.................................... 826 Mimms v. California....................................... 846 Mineral County v. Public Utilities Comm’n................. 810 Mine Workers v. Labor Board........................... 884,920 Minneapolis-Honeywell Co., Federal Trade Comm’n v....... 206 Minnesota, Gensmer v...................................... 824 Miranda v. United States.................................. 842 Mississippi, Scott v...................................... 805 Missouri, Cochran v....................................... 922 Missouri, Dunbar v....................................... 868 Missouri, O’Brien v....................................... 859 Mock v. Davies............................................ 840 Modern Manufacturing Co. v. Labor Board................... 816 Mondakota Gas Co. v. Montana-Dakota Utilities Co....... 827 Montana, Northern Pacific R. Co. v.................... 905,923 Montana-Dakota Utilities Co., Mondakota Gas Co. v...... 827 Montgomery Building Trades Council v. Ledbetter Co..... 178 Monticello Tobacco Co. v. American Tobacco Co............. 875 Moore, Faurot v........................................... 912 Moore, Henley v........................................... 931 Moore v. North Carolina................................... 930 Moore-McCormack Lines, Whittington v................... 865,894 Mosher v. Michigan........................................ 931 Mossey, DuBois v.......................................... 869 Motion Picture Service Co., Fed. Trade Comm’n v........ 392,811 Motor Coach Employees v. Detroit...................... 805,882 Motorola, Inc. v. Labor Board............................. 913 Motors Ins. Corp. v. Robinson......................... 803,900 Mulkey v. Michigan.................................... 852,888 Mullen v. Fitz Simons & Connell Dredge Co............... 933 Mulvey v. Jacques......................................... 899 Mundet Cork Corp. v. New Jersey........................... 819 Munie, Allison v.......................................... 918 Munie, Duty v............................................. 918 Murphy v. Illinois........................................ 899 Nabors Company v. Labor Board............................. 865 Nancy Ann Storybook Dolls v. Dollcraft Company............ 877 TABLE OF CASES REPORTED. XXXV Page Nathanson v. Labor Board.................................... 25 National Association of Manufacturers, McGrath v........ 804,887 National Labor Relations Board. See Labor Board. National Mutual Ins. Co. v. Liberty Ins. Co................ 819 National Organization of Masters & Pilots, Banks v...... 868 Nations v. Ellis........................................... 915 Neal v. Heinze............................................. 841 Neelly, Martinez v..................................... 810,916 Nelson v. Stewart.......................................... 891 Nelson, Waterman v......................................... 843 New Jersey, Bell v................................... 838,888 New Jersey, Burlington Bridge Comm’n v............... 838,888 New Jersey, Hardman v.................................... 936 New Jersey, Johnson v.................................... 894 New Jersey, Kershner v................................... 844 New Jersey, McCullough v................................. 909 New Jersey, Mundet Cork Corp, v......................... 819 New Jersey v. New York.................................... 932 New Jersey, Nongard v.................................. 838,888 New Jersey Parole Board, Mahoney v..................... 871 Newman v. Lowery........................................... 881 New Mexico, Texas v.................................... 806,906 Newtex Steamship Corp. v. United States.................... 901 New York, Cooper v..........i........................ . 815 New York, Cossentino v................................ 859 New York, Dauphley v.................................. 918 New York, Fowler v................................... 846 New York, Hicks v..................................... 807 New York, Jacoby v.............................4...... 864 New York, New Jersey v..................................... 932 New York v. New York, N. H. & H. R. Co................. 293,809 New York, Paonessa v....................................... 860 New York, Rheim v.......................................... 900 New York, Rubino v......................................... 846 New York, Spencer v........ . .r........ i i............... 930 New York, Stein v.......................................... 815 New York, Wissner v........................................ 815 New York, C. & St. L. R. Co., Stone v................... 407,863 New York, N. H. & H. R. Co., Johnson v...................... 48 New York, N. H.'& H. R. Co., New York v................ 293,809 New York, N. H. & H. R. Co. v. Transit Advertisers......... 817 Niemoth v. Illinois........................................ 858 Nina Dye Works Co., Labor Board v.......................... 924 Nona-Fletcher Mineral Co., Baten v......................... 864 xxxvi TABLE OF CASES REPORTED. Page Nona-Fletcher Mineral Co., Bowers v........................ 864 Nongard v. Driscoll.................................... 838,888 Norred v. California....................................... 869 North Carolina, Brock v................................... 424 North Carolina, Leonard v................................. 916 North Carolina, Moore v................................... 930 North Carolina, Parker v.................................. 825 Northeastern Gas Co., Algonquin Gas Co. v.......... 818,850,881 Northeastern Gas Co., Federal Power Comm’n v............... 818 Northern Pacific R. Co. v. Montana..................... 905,923 Norwitt v. United States................................... 817 Nor Woods v. California.................................... 860 Obie v. Indiana............................................ 935 O’Brien v. Missouri....................................... 859 Ochs v. Commissioner....................................... 827 O’Connell v. Illinois...................................... 930 Odd Fellows Grand Lodge, Slenker v................... 830,888 O’Dwyer v. Washington...................................... 869 Ogden Union R. & D. Co., Creamer v......................... 912 Ohio, Ash v................................................ 859 Ohio, Drexel v............................................. 862 Ohio, Verderber v......................................... 884 Ohio, Webster v.......................................... 825 Ohio Superintendent of Insurance, Motors Ins. Corp, v.... 900 Ohio Turnpike Comm’n, Balduff v............................ 865 Oil Workers Union, Tide Water Oil Co. v................ 804,888 Oklahoma, Oklahoma City-Ada-Atoka R. Co. v................. 861 Oklahoma, Williamson v..................................... 904 Oklahoma City-Ada-Atoka R. Co. v. Oklahoma................. 861 Oklahoma Contracting Co. v. Magnolia Pipe Line Co........ 921 Okulczyk v. Ragen.......................................... 880 Oliver Corporation, United Electrical Workers v............ 897 Olney v. United States..................................... 898 Olsen v. Arabian American Oil Co........................... 817 One 1951 Ford Pick-up Truck v. United States............... 928 On Lee v. United States.................................... 848 Order of Odd Fellows, Slenker v........................ 830,888 Oregon, Leland v........................................... 848 Organization of Masters, Mates & Pilots, Banks v........... 868 Orloff v. Willoughby....................................... 873 O’Rourke, Pennsylvania R. Co. v...................... 334,811 Ortman v. Smith............................................ 856 Orvis v. McGranery..................................... 902,936 Otis & Co., Kaiser-Frazer Corp, v......................... 856 TABLE OF CASES REPORTED. xxxvn Page Overholser, Edwards v...................................... 933 Overholser, Evans v....................................t 808 Oyster Shell Products Corp. v. United States............... 885 Pacific Employers Ins. Co. v. Reed Roller Bit Co........... 920 Packwood v. Briggs & Stratton Corp..................... 844,882 Padgett, Delany v.......................................... 825 Padilla v. Hiatt........................................... 857 Palmer v. United States.................................... 842 Panama R. Co., Collins & Co. v............................. 875 Pan American Airways, Cepero v........................... 840,882 Paonessa v. New York....................................... 860 Pappas v. Ragen............................................ 910 Parcels of Land in Fairfax, United States v................ 812 Paris v. Texas......................................... 857,888 Parker v. North Carolina................................. 825 Parole Board of New Jersey, Mahoney v...................... 871 Parry, Ayers v......................................... 849,916 Partridge, United States v................................. 911 Paukune, Bailess v..................................... 171,812 Peckat Mfg. Co. v. Jarecki................................. 875 Penn v. Commissioner....................................... 927 Penn-Dixie Cement Corp. v. Dickinson....................... 890 Pennington-Winter Construction Co. v. Tobin................ 926 Pennsylvania, Baugh v...................................... 916 Pennsylvania, Campbell v................................. 926 Pennsylvania, Holly v...................................... 930 Pennsylvania, Roberts v.................................... 841 Pennsylvania, Schultz v.................................... 868 Pennsylvania R. Co. v. Donnelly............................ 855 Pennsylvania R. Co. v. O’Rourke........................ 334,811 Pennsylvania R. Co. v. Purvis.............................. 898 Peoples First National Bank, Sherwood Company v.......... 818 Perez v. California........................................ 903 Perkins v. Illinois........................................ 918 Petroleum Conversion Corp., Vaughan v...................... 917 Petrone v. United States................................... 848 Petroski v. Illinois....................................... 887 Pianezzi v. Heinze......................................... 904 Pickerill v. Schott........................................ 815 Pidd, Atlantic Coast Line v................................ 874 Pierce v. United States.................................... 846 Pignataro v. Waterman Steamship Corp....................... 829 Pilots Organization, Banks v............................... 868 Pine, Kaufman v............................................ 891 xxxviii TABLE OF CASES REPORTED. Page Pizzo v. Geotechnical Corporation........................... 879 Place v. Commissioner....................................... 927 Plumbers & Steamfitters Union v. Graham..................... 811 Podolski v. Michigan.................................... 845,888 Polizzi v. Cowles Magazines, Inc............................ 853 Polk v. Teets............................................... 844 Ponce v. Heinze............................................. 845 Pope v. Atlantic Coast Line................................. 863 Port v. Goodman............................................ 808 Posey v. Dowd............................................... 933 Power Commission v. Idaho Power Co....................... 17,910 Power Commission v. Northeastern Gas Co..................... 818 Pratt v. Washington......................................... 840 Pressey & Son v. Schlottman................................. 817 Price, United States v...................................... 911 Price Stabilization Director v. Safeway Stores, Inc......... 803 Priestly v. Donaldson..................................... 880 Prince Edward County School Board, Davis v.................... 1 Protestant Episcopal Seminary, Williams v............... 864,894 Providence Fruit & Produce Bldg. v. Gamco Incorporated.... 817 Public Safety Department, Bolden v.......................... 845 Public Service Comm’n, Fry Roofing Co. v.................... 157 Public Service Comm’n v. Wycoff Company..................... 237 Public Utilities Comm’n, Mineral County v................ 810 Public Utilities Comm’n v. United States................ 254,936 Public Utilities Comm’n, United States v.................... 810 Puerto Rico v. Cementerio Buxeda, Inc....................... 876 Purchasing Corporation, United States v..................... 923 Purcilia v. Michigan...................................... 868 Pure Oil Co., Geotechnical Corporation v.................. 874 Purvis, Pennsylvania R. Co. v............................... 898 Putnam v. Illinois.......................................... 923 Pyeatte v. Burke............................................ 842 Pyle v. Kansas.............................................. 915 Radio & Machine Workers v. Oliver Corporation............... 897 Radio Officers’ Union v. Labor Board........................ 852 Ragen, Bertrand v........................................... 887 Ragen, Clark v.............................................. 936 Ragen, Daniels v............................................ 841 Ragen, Dixon v....................................... 843 Ragen, Dutton v............................................. 873 Ragen, Kaval v.............................................. 842 Ragen, Kirsch v............................................. 930 Ragen, Malone v............................................. 894 TABLE OF CASES REPORTED. xxxix Page Ragen, Okulczyk v......................................... 880 Ragen, Pappas v....................................... 910 Ragen, Ross v......................................... 918 Ragen, Skelly v....................................... 881 Ragen, Squires v...................................... 905 Ragen, Williams v..................................... 887 Ragen, Youngs v........................................ 841 Railroad Commission of Florida v. United States........ 254,936 Railway & Motor Coach Employees v. Detroit............. 805,882 Ramspeck v. Federal Trial Examiners Conference........ 853 Razete v. United States............................... 904 Reconstruction Finance Corp., McGee v.................... 833 Reconstruction Finance Corp., West Coast Meat Co. v..... 839 Rednour, St. John v....................................... 899 Redwine v. Georgia Railroad & Banking Co.................. 925 Reed v. Texas............................................. 851 Reed Roller Bit Co., Pacific Employers Ins. Co. v......... 920 Registration and Education Dept., Klein v................. 855 Reid, Hicks v............................................. 840 Reid v. Maryland.......................................... 848 Restaurant Employees v. Richards-Greenfield, Inc.......... 824 Revedin v. Acheson........................................ 820 Revenue Commissioner v. Georgia R. & B. Co................ 925 Revenue Treasurer of Denver, Dameron v.................... 891 Rheim v. New York......................................... 900 R. H. Johnson & Co. v. Securities & Exchange Comm’n.... 855 Rice v. Sayers......................................... 877 Richards-Greenfield, Inc., Hotel Employees’ Union v..... 824 Richardson, Aiken v.................................... 802,905 Richmond v. St. Louis Southwestern R. Co.............. 913,931 Richmond, F. & P. R. Co. v. Brooks........................ 828 Riley v. Steinberg........................................ 926 Rising v. United States................................... 835 Risling, United States v.................................. 856 Rivera, Martinez v........................................ 828 Rivers v. Indiana......................................... 846 Riverview State Bank, Ernest v............................ 892 R. K. O. Radio Pictures, Chorak v....................... 887,910 Roberts v. Pennsylvania................................... 841 Roberts Dairy Co. v. Commissioner......................... 865 Robins v. Atlantic Coast Line............................. 816 Robinson, Greene v........................................ 842 Robinson v. Illinois...................................... 847 Robinson v. Louisiana..................................... 904 xl TABLE OF CASES REPORTED. Page Robinson, Motors Ins. Corp, v........................ 803,900 Robinson v. Swope......................................... 867 Robison v. Robison........................................ 829 Robison, Tide Water Associated Oil Co. v.............. 804,888 Rockaway News Supply Co., Labor Board v................... 863 Roles v. Earle............................................ 819 Rolland v. Michigan....................................... 885 Rosenberg v. United States........................ 838,850,889 Ross v. Ragen............................................. 918 Ross v. United States..................................... 832 Rubens v. Boies........................................... 840 Rubino v. New York........................................ 846 Ruddy Brook Clothes, Inc. v. British Ins. Co.............. 816 Rumely, United States v................................... 812 Russian Orthodox Church, Kedroff v...................... 94 Safeway Stores, Inc., Arnall v............................ 803 St. John v. Rednour....................................... 899 St. Louis Southwestern R. Co., Richmond v............. 913,931 Saint Nicholas Cathedral, Kedroff v........................ 94 Sakis v. United States.................................... 801 Salvaggio v. Barnett...................................... 879 Sanders v. United States.................................. 829 Sanford v. Kepner.......................................... 13 Sanguigni v. Frisbie...................................... 808 Sanson Hosiery Mills v. Labor Board..................... 863 Sauber, Whetstone v....................................... 928 Sawyer v. Dollar.......................................... 806 Sayers, Rice v......................................... 877 Schaefer v. Macri......................................... 832 Schaeffer, United States v................................ 854 Schilder, Gusik v......................................... 844 Schlottman, Pressey v..................................... 817 Schmidt v. United States.................................. 896 Schneider v. Tipton....................................... 852 School Board of District #22, Briggs v...................... 1 School Board of Prince Edward County, Davis v............... 1 Schott, Pickerill v....................................... 815 Schultz, Knetzer v........................................ 908 Schultz v. Pennsylvania................................... 868 Schwartz v. Texas......................................... 199 Schwiem v. Michigan....................................... 880 Scott v. Babb............................................. 935 Scott, Calmar Steamship Corp, v.......................... 853 Scott v. Mississippi...................................... 805 TABLE OF CASES REPORTED. XLI Page Scott v. United States...................................... 879 Scoville, Bullen v.......................................... 903 Secretary of Agriculture v. Kass............................ 891 Secretary of Agriculture v. United States................... 298 Secretary of Commerce v. Dollar............................. 806 Secretary of Defense, Burns v............................ 903,936 Secretary of Labor, Alstate Construction Co. v.......... 895,926 Secretary of Labor, Johnson v.............................. 926 Secretary of Labor, Pennington-Winter Co. v................. 926 Secretary of Labor, Traders Compress Co. v.............. 909,931 Secretary of State, Bode v.................................. 583 Secretary of State, Mandoli v............................... 133 Secretary of State, Revedin v............................... 820 Secretary of State, Wohlmuth v............................ 833 Secretary of Treasury, Aron v............................ 854,888 Securities & Exchange Comm’n, Johnson & Co. v............... 855 Sellers v. United States................................. 867 Seven-Up Bottling Co., Labor Board v.................... 344,811 Severa v. Throop........................................ 847,882 Shannon v. Union Barge Line Corp............................ 846 Sharpe, Bolling v........................................... 873 Shaughnessy v. U. S. ex rel. Mezei.......................... 809 Shaw, Small v............................................... 842 Shell Oil Co. v. Wilkin................................. 854,888 Sherwood Distilling Co. v. Peoples First Nat. Bank.......... 818 Shields v. Michigan......................................... 899 Sholter v. Claudy........................................... 881 Shotkin v. Black............................................ 844 Shotkin v. Lindsley......................................... 842 Sig Ellingson & Co. v. Butenbach............................ 934 Sig Ellingson & Co. v. De Vries............................. 934 Simon v. McGee.............................................. 899 Simonds Abrasive Co., Wells v............................... 815 Simpson, Carter v........................................... 837 Simpson v. United States.................................... 816 Sinclair Refining Co. v. Gutowski........................... 821 Sinking Fund Comm’rs v. Howard.............................. 624 Skelly v. Ragen............................................. 881 Skinner v. Dow Chemical Co.................................. 856 Slackman v. United States................................... 828 Slenker v. Grand Lodge of Order of Odd Fellows........... 830,888 Slusser v. Ellis.................................... 807,857,882 Small v. Shaw............................................... 842 Smith v. Baldi.............................................. 561 XLII TABLE OF CASES REPORTED. Page Smith, Commissioner v.......................................... 813 Smith, Massachusetts Life Ins. Co. v........................... 823 Smith, Ortman v................................................ 856 Smith, Weiss v................................................. 831 Snyder, Aron v.............................................. 854,888 Sobell v. United States................................ 838,850,889 Social Security Administration, Babb v......................... 807 South Buffalo R. Co. v. Ahern.................................. 367 South Carolina, Ferguson v..................................... 830 South Carolina, Greer v........................................ 808 Southern Pacific Co. v. Ericksen............................... 897 Sparacino v. Illinois.......................................... 887 Speller v. Allen............................................... 443 Spencer v. New York............................................ 930 Spencer v. United States................................... 828,869 Sprading v. United States...................................... 859 Spradling v. Eidson............................................ 907 Springfield Savings Institution v. Worcester Loan Assn...... 884 Squires v. Ragen............................................... 905 Starnes v. Swygert............................................. 862 Starr, Jeronis v............................................... 851 State. See name of State. State Board of Dental Examiners, Fernandez v................... 802 State Revenue Comm’r v. Georgia R. & B. Co..................... 925 Steamfitters Union v. Graham................................... 811 Steele v. Bulova Watch Co...................................... 280 Steele, Byers v............................................ 852,867 Steele, Curlanis v............................................. 808 Steele, Jordan v............................................... 808 Steele, Lizzi v................................................ 894 Steele, Taylor v............................................... 849 Steele, Williams v............................................. 822 Steelworkers of America, Local 2286 v. United States........ 915 Steen v. United States......................................... 822 Stein v. New York.............................................. 815 Steinberg, Riley v........................................... 926 Steiner, Dunlap v.............................................. 894 Stelloh v. Wisconsin........................................... 846 Stevenson-Chislett, Inc., United States v...................... 167 Stewart v. Alvis............................................... 845 Stewart, Nelson v.............................................. 891 Stilley Plywood Co. v. Labor Board............................. 933 Stoehr v. United States........................................ 826 Stone v. New York, C. & St. L. R. Co....................... 407,863 TABLE OF CASES REPORTED. XLIII Page Stone’s Mercantile Agency, Watwood v...................... 821 Street & Electric Railway Employees v. Detroit........ 805,882 Superintendent of Insurance, Motors Ins. Corp, v....... 803,900 Superior Court of Butte County, Houston v................. 887 Supero v. Illinois........................................ 844 Su ver v. Kentucky........................................ 934 Sweeney v. Woodall..................................... 86,916 Swenson, Carroll v........................................ 910 Swenson, Knott v.......................................... 847 Swope, Fleck v............................................ 883 Swope, Robinson v......................................... 867 S. W. Pressey & Son v. Schlottman........................ 817 Swygert, Starnes v........................................ 862 Sydow v. Golden........................................... 902 Tan v. United States...................................... 895 Tarranto v. Babb.......................................... 833 Tartar v. Heinze.......................................... 886 Tate v. California.................................... 910,931 Tate v. U. S. District Court.............................. 850 Taylor v. Commissioner.................................... 822 Taylor v. Kentucky.................................... 830,888 Taylor v. Steele.......................................... 849 Teamsters Union, Labor Board v............................ 853 Teets, Gerundo v.......................................... 933 Teets, Kerr v....................................i.^.... 846 Teets, Polk v............................................. 844 Telegraphers Union v. Labor Board......................... 852 Tennessee, Casone v....................................... 849 Terry v. Adams............................................ 883 Terry, Zachry Company v............................... 819,882 Texas, Gasway v........................................... 874 Texas, Golemon v....................................... 847,882 Texas, Harris v........................................... 899 Texas, Ivey v............................................. 801 Texas, Lopez v............................................ 893 Texas v. New Mexico................................... 806,906 Texas, Paris v........................................ 857,888 Texas, Reed v............................................. 851 Texas, Schwartz v......................................... 199 Theriot v. Commissioner................................... 874 Thomas v. California...................................881,916 Thomas v. Chesapeake & O. R. Co........................... 921 Thomas v. Hempt Brothers.................................. 895 Thomas v. Millard......................................... 899 XLIV TABLE OF CASES REPORTED. Page Thompson v. Cranor.................................... 905 Thompson v. Illinois.................................. 899 Thompson, United States v.......................... 856 Throop, Severa v...................................... 847,882 Tide Water Associated Oil Co. v. Robison.............. 804,888 Tierney, Goodyear Tire & Rubber Co. v................. 825 Tilley v. Illinois.................................... 824 Tillman v. Illinois................................... 899 Timmons v. United States.............................. 844,882 Tinder v. United States............................... 883 Tinkoff v. United States.............................. 917 Tipton, Schneider v...................................... 852 Tisneros v. Chicago & N. W. R. Co......................... 885 T. M. Duche & Sons v. United States....................... 830 Tobin, Alstate Construction Co. v..................... 895,926 Tobin, Johnson v.......................................... 926 Tobin, Pennington-Winter Construction Co. v............... 926 Tobin, Traders Compress Co. v....................... 909,931 Todd, McGuire v........................................... 835 Topeka Board of Education, Brown v..................... 1,141 Town. See name of town. Township. See name of township. Trade Commission, Automatic Canteen Co. v................. 809 Trade Commission, Colon v................................. 823 Trade Commission, Consumer Sales Corp, v.................. 912 Trade Commission, Lichtenstein v...................... 819,882 Trade Commission v. Minneapolis-Honeywell Co.......... 206 Trade Commission v. Motion Picture Service Co........ 392,811 Traders Compress Co. v. Tobin......................... 909,931 Trades Council v. Ledbetter Erection Co................... 178 Tramaglino v. United States............................... 864 Transcontinental & Western Air, Inc. v. Koppal............ 933 Transit Advertisers, Inc., N. Y., N. H. & H. R. Co. v.... 817 Treasurer of Denver, Dameron v............................ 891 Trial Examiners Conference, Ramspeck v.................... 853 Trustees of School District #22, Briggs v................... 1 Tucker Truck Lines, United States v........................ 33 Tully v. Washington....................................... 841 Tustin, Cross v....................................... 900,923 Typographical Union v. Labor Board........................ 816 Unexcelled Chemical Corp. v. United States................ 862 Union Barge Line Corp., Shannon v......................... 846 Union Carbide Corp. v. Graver Tank Co..................... 849 Union City Transfer v. Adams.............................. 912 TABLE OF CASES REPORTED. XLV Page Union of Oil Workers, Tide Water Oil Co. v................. 804,888 Union Properties, Inc., Halliday v......................... 802 United Association of Plumbers v. Graham...................... 811 United Automobile Workers v. Huffman.......................... 814 United Automobile Workers v. Labor Board...................... 823 United Brick & Clay Workers v. Deena Artware, Inc...... 897,919 United Brick & Clay Workers, Deena Products Co. v...... 822 United Construction Workers v. Labor Board.................... 876 United Electrical Workers v. Oliver Corporation............... 897 United Fruit Co. v. Hedger Transportation Corp................ 896 United Hoisting Co. v. Labor Board............................ 914 United Longshoremen’s Assn. v. Virginia Ferry Corp......... 893 United Mine Workers v. Labor Board........................ 884,920 United States. See also U. S. ex rel. United States v. Abrams....................................... 855 United States, Adams v........................................ 891 United States v. Adams Packing Assn........................... 865 United States, Alexander v.................................... 879 United States, Alison v....................................... 167 United States, Allen v.................................... 869,932 United States, All States Freight, Inc. v................... 804 United States, American Trucking Assns. v.................. 298 United States, Barber v.................................... 857 United States, Baumet v.................................... 82,916 United States, Bayne v........................................ 881 United States v. Beacon Brass Co............................... 43 United States v. Bell Aircraft Corp........................... 860 United States, Blume v........................................ 873 United States, Booth v............... ................i.. 909 United States, Brehm v........................................ 838 United States, Brennan v...................................... 935 United States, Brooks Transportation Co. v.................... 804 United States v. Brown........................................ 851 United States, Bryant v....................................... 913 United States, Byers v........................................ 898 United States v. California................................... 872 United States, California v.................................. 831 United States, Calmar Steamship Corp, v.................. 853 United States v. Caltex (Philippines), Inc...... 149,919 United States v. Cardiff.................................. 174 United States, Carengella v............................... 881 United States v. Certain Parcels of Land in Virginia.......... 812 United States, Chapman v.................................. 821 United States, Chicago & E. I. R. Co. v....... 917 XLVI TABLE OF CASES REPORTED. Page United States, Chicago & N. W. R. Co. v............... 871,900 United States, Chronister v................................ 867 United States, Clark v..................................... 929 United States v. Clarksville................................ 927 United States, Clawson v................................... 929 United States, Close v..................................... 879 United States, Copperweld Steel Co. v................. 871,900 United States, Costello v.............................. 874,900 United States, C-O-Two Fire Equipment Co. v................. 892 United States v. Crescent Amusement Co...................... 901 United States, Crolich v................................... 830 United States, Dalehite v.................................. 873 United States, Danforth v.................................. 912 United States, Da vena v................................... 878 United States, Davenport v................................ 835 United States, Davidson v................................... 866 United States, DeBruhl v.................................... 868 United States, De Guia v.................................... 895 United States, De La Rama Steamship Co. v............... 386,883 United States, Depew Paving Co. v........................ 854 United States, Dillner Transfer Co. v....................... 883 United States, Drown v...................................... 920 United States, Duche & Sons v........................... 830 United States, Duncan v..................................... 885 United States, Eastern Motor Express v...................... 298 United States v. Excel Packing Co........................... 851 United States, Farnsworth v................................. 915 United States, Frankfeld v............................... 922 United States, F. S. Whelan & Sons v..................... 818 United States, Gadsden v.................................... 935 United States, Gage v................................. 829,894 United States, George v..................................... 843 United States, Gibson v....L............................. 907 United States v. Gilbert Associates, Inc.................... 911 United States, Goldberger v................................. 833 United States, Gordon v................................. 414,813 United States, Gordon Woodroffe Corp, v..................... 908 United States v. Great Northern R. Co....................... 848 United States v. Grower-Shippers Vegetable Assn............. 901 United States, Hamilton v................................... 849 United States v. Henning................................. 66,910 United States, Herrin Transportation Co. v.................. 925 United States, Holmes Projector Co. v.................... 912 United States, Hoxsey Cancer Clinic v....................... 928 TABLE OF CASES REPORTED. XLVII Page United States, Humble Oil & Refining Co. v...................... 909 United States v. International Building Co...................... 927 United States, Interstate Commerce Comm’n v............... 893 United States, Jackson v................................... 858 United States, Jefferson Lake Sulphur Co. v............... 818 United States, Johansen v.................................. 848 United States, Johnson v................................... 839 United States, Jonikas v................................... 877 United States, Kawakita v.................................. 850 United States, Kemble v.................................... 893 United States, King v.................................... 254,936 United States, Kornfeind v................................. 862 United States, Kuiken v.................................. 867,910 United States v. Lane Motor Co............................. 630 United States v. L. A. Tucker Truck Lines................ 33 United States, Lawrence v................................ 849,919 United States, LeForce v................................... 833 United States, Lutwak v.................................. 604,809 United States, Malone Freight Lines v.................. 925 United States, Mandel v.................................... 848 United States, Marpes v.................................... 876 United States, Marshall v........................... t.. 926 United States, Matveychuk v..................................... 845 United States v. McConville..................................... 877 United States v. McGhee.................................... 856 United States, McQuaid v................................... 929 United States, Miller v.................................... 886 United States, Mills v..................................... 826 United States, Miranda v................................... 842 United States, Newtex Steamship Corp, v................ 901 United States, Norwitt v................................... 817 United States, Olney v........................................ 898 United States, One 1951 Ford Pick-up Truck v................... 928 United States, On Lee v......................................... 848 United States, Oyster Shell Products Corp, v................ 885 United States, Palmer v......................................... 842 United States v. Partridge...................................... 911 United States, Petrone v........................................ 848 United States, Pierce v......................................... 846 United States v. Price.......................................... 911 United States v. Public Utilities Comm’n........................ 810 United States v. Purchasing Corporation......................... 923 United States, Razete v......................................... 904 United States, Rising v......................................... 835 xlviii TABLE OF CASES REPORTED. Page United States v. Risling........................................ 856 United States, Rosenberg v............................. 838,850,889 United States, Ross v........................................... 832 United States v. Rumely......................................... 812 United States, Sakis v.......................................... 801 United States, Sanders v........................................ 829 United States v. Schaeffer...................................... 854 United States, Schmidt v....................................... 896 United States, Scott v.......................................... 879 United States, Secretary of Agriculture v....................... 298 United States, Sellers v........................................ 867 United States, Simpson v........................................ 816 United States, Slackman v....................................... 828 United States, Sobell v................................ 838,850,889 United States, Spencer v................................... 828,869 United States, Sprading v....................................... 859 United States, Steelworkers of America v........................ 915 United States, Steen v.......................................... 822 United States v. Stevenson-Chislett, Inc........................ 167 United States, Stoehr v......................................... 826 United States, Tan v............................................ 895 United States v. Thompson....................................... 856 United States, Timmons v.................................... 844,882 United States, Tinder v......................................... 883 United States, Tinkoff v........................................ 917 United States, T. M. Duche & Sons v...................... 830 United States, Tramaglino v..................................... 864 United States v. Tucker Truck Lines.............................. 33 United States, Unexcelled Chemical Corp, v...................... 862 United States v. U. S. District Court........................... 908 United States, United Steelworkers v............................ 915 United States v. Universal C. I. T. Credit Corp................. 218 United States, Vetterli v....................................... 872 United States, Voltz v.......................................... 859 United States, Wagstaff v....................................... 920 United States, Walker v......................................... 877 United States, Ward v....................................... 814,924 United States v. Waterbury...................................... 911 United States, Weber v.......................................... 834 United States, Weiss v.......................................... 934 United States, Weldon v......................................... 849 United States, Whelan & Sons v.................................. 818 United States, Whiting v........................................ 929 United States v. Wilson......................................... 923 TABLE OF CASES REPORTED. XLIX Page United States, Witt v......................................... 827 United States, W. J. Dillner Co. v............................ 883 United States, Woodroffe Corporation v........................ 908 United States, Zephyr Aircraft Corp, v........................ 878 U. S. Attorney, Centracchio v............................. 866 U. S. District Court, Collins v........................... 808 U. S. District Court, Galloway v.......................... 852 U. S. District Court, Malone v............................ 927 U. S. District Court, Tate v.............................. 850 U. S. District Court, United States v..................... 908 U. S. District Judge, California Texas Oil Co. v.......... 902,904 U. S. District Judge, Curtis v............................ 932 U. S. District Judge, Fujimoto v.......................... 852 U. S. District Judge, Gulf Research Co. v............... 861,900 U. S. District Judge, Jeronis v........................... 851 U. S. District Judge, Kaufman v.......................... 891 U. S. District Judge, Nelson v............................ 891 U. S. District Judge, Starnes v........................... 862 U. S. ex rel. Daverse v. Hohn............................. 913 U. S. ex rel. Mezei, Shaughnessy v......................... 809 U. S. ex rel. Smith v. Baldi.............................. 561 U. S. Marshal, Knetzer v.................................. 908 U. S. Marshal, Sydow v.................................... 902 United Steelworkers v. United States.......................... 915 Universal C. I. T. Credit Corp., United States v.............. 218 Updegraff, Wieman v........................................... 183 Utah Public Service Comm’n v. Wycoff Co., Inc................. 237 Utilities Commission, Mineral County v........................ 810 Utilities Commission, United States v......................... 810 Vaughan v. Petroleum Conversion Corp.......................... 917 Veal v. Leimkuehler........................................... 913 Verderber v. Ohio............................................. 884 Vetterli v. United States..................................... 872 Virginia, Bailey v............................................ 886 Virginia, Lewis v......................................... 880,900 Virginia Ferry Corp., Longshoremen’s Assn, v.................. 893 Vitari, In re................................................. 896 Voltz v. United States........................................ 859 Wabash R. Co. v. Byler........................................ 826 Wabash R. Co., Frizzell v..................................... 934 Wabash R. Co., Kenney v....................................... 913 Wagner v. Illinois............................................ 858 Wagstaff v. United States..................................... 920 Walker v. United States....................................... 877 226612 0—53------4 l TABLE OF CASES REPORTED. Page Wallace v. Heck......................................... 931 Wallace, Labrenz v...................................... 824 Ward v. United States............................... 814,924 Warden of Michigan State Prison, Malek v................ 936 Warden of Texas Prison, Dunlap v........................ 911 Warehousemen & Helpers Union, Labor Board v............. 853 Washington, Bowman v.................................. 894 Washington, Dunbar v.................................... 841 Washington v. Florida................................... 869 Washington, Griffin v................................... 898 Washington, Latimer v................................... 840 Washington, Mell v...................................... 887 Washington, O’Dwyer v................................... 869 Washington, Pratt v..................................... 840 Washington, Tully v.................................... 841 Washington Lumber Co. v. Dant & Russell Sales Co....... 835 Waterbury, United States v............................. 911 Waterman v. Nelson...................................... 843 Waterman Steamship Corp., Pignataro v................... 829 Watson v. Commissioner.................................. 895 Watson, Lindsey v....................................... 849 Watwood v. Stone’s Mercantile Agency.................... 821 Wayne, Lionshead Lake, Inc. v........................... 919 W. C. Nabors Co. v. Labor Board......................... 865 Weathers v. Florida..................................... 896 Weber v. United States.................................. 834 Webster v. Ohio......................................... 825 W. E. Hedger Transportation Corp., United Fruit Co. v.. 896 Weiss v. Smith.......................................... 831 Weiss v. United States.................................. 934 Weitknecht v. District of Columbia...................... 837 Welch, Bozell v........................................ 907 Weldon v. United States................................. 849 Wells v. Simonds Abrasive Co............................ 815 Westbury v. Florida..................................... 910 West Coast Meat Co. v. Reconstruction Finance Corp..... 839 Wester v. California.................................... 847 Western Air Lines v. Civil Aeronautics Board............ 875 Western New York Water Co. v. Erie Water Authority..... 892 Western P. R. Co., Metzger v............................ 809 Western P. R. Corp. v. Western P. R. Co................. 809 Western Union Telegraph Co. v. Lesesne.................. 896 Westwood Pharmacal Corp. v. Fielding.................... 897 Whelan & Sons v. United States......................... 818 TABLE OF CASES REPORTED. li Page Whetstone v. Sauber...................................... 928 White v. Chicago Land Clearance Comm’n.................. 824 White v. Commissioner................................ 835,882 Whiting v. United States................................ 929 Whitman, Andrus v........................................ 817 Whittington v. Moore-McCormack Lines................ 865,894 Whorton v. Eidson....................................... 808 Wieman v. Updegraff.................................... 183 Wiig, Fujimoto v......................................... 852 Wild v. Atlantic Refining Co............................. 857 Wilkin v. Shell Oil Co............................... 854,888 Willett Company, Chicago v............................... 574 Williams v. Alabama...................................... 852 Williams, Austrian v..................................... 909 Williams v. Humphrey..................................... 862 Williams v. Jackson...................................... 902 Williams v. Labor Board.................................. 834 Williams v. Protestant Episcopal Seminary............ 864,894 Williams v. Ragen........................................ 887 Williams v. Steele....................................... 822 Williams Lumber Co. v. Labor Board....................... 834 Williamson v. Oklahoma................................... 904 Willoughby, Orloff v................................... 873 Wilson, Burns v.......................................... 936 Wilson v. Cranor......................................... 915 Wilson, United States v......................... I. . ^... 923 Wine, Bitsakis v......................................... 841 Winer, Incorporated, Labor Board v....................... 819 Wisconsin, Stelloh v..................................... 846 Wissner v. New York.................................... 815 Witt v. United States.................................... 827 Witte v. Dowd............................................ 841 W. J. Dillner Transfer Co. v. United States.............. 883 Wohlmuth v. Acheson...................................... 833 Wood, Fry Roofing Co. v.................................. 157 Woodall, Sweeney v.................................... 86,916 Woodroffe Corporation v. United States................... 908 Woods v. California...................................... 860 Woods, McRae v....................................... 892,910 Woollomes v. Heinze...................................... 929 Wool worth Company v. Contemporary Arts, Inc............. 228 Wooton v. McWilliams..................................... 866 Worcester Savings Assn., Springfield Savings Inst, v.... 884 Wottle v. Atchison, T. & S. F. R. Co..................... 850 lii TABLE OF CASES REPORTED. Page Wright v. Illinois.................................. 840 W. T. Grant Co. v. Labor Board...................... 928 Wycoff Company, Public Service Comm’n v............. 237 Yanish v. Barber.................................... 817 Young, Felornia v,.................................. 886 Youngs v. Ragen..................................... 841 Zachry Company v. Terry......................... 819,882 Zephyr Aircraft Corp. v. United States.............. 878 TABLE OF CASES Cited in Opinions Page Abernathy, Ex parte, 320 U. S. 219 456 Adams v. McCann, 317 U. S. 269 503 Adams Express Co. v. New York, 232 U. S. 14 577,578 Adamson, Ex parte, 334 U. S. 834; 167 F. 2d 996 538 Adamson v. California, 332 U. S. 46 93,465,534,538 Adamson v. California, 333 U. S. 831 538 Adkins v. Smyth, 188 F. 2d 452 451 Adler v. Board, 342 U. S. 485 188-191 Aetna Ins. Co. v. Haworth, 300 U. S. 227 242,243,246,250,252 Aetna Ins. Co. v. Kennedy, 301 U. S. 389 51 Akins v. Texas, 325 U. S. 398 471 Alabama v. United States, 283 U. S. 776 274 Alabama Fed. of Labor v. McAdory, 325 U. S. 450 247 A. L. A. Schechter Corp. v. United States, 295 U. S. 495 313 Albori, In re, 95 Cal. App. 42 363 Allen v. State, 52 Fla. 1 436 Allen v. United States, 91 U. S. App. D. C. 197 476 Almeida v. Baldi, 195 F. 2d 815 451 A. Magnano Co. v. Hamilton, 292 U. S. 40 585 Amalgamated Utility Workers v. Edison Co., 309 U. S. 261 27 Page American Banana Co. v. United Co., 213 U. S. 347 288,290,291 American Banana Co. v. United Co., 160 F. 184; 166 F. 261 288 American Communications Assn. v. Douds, 339 U. S. 382 117-119,189 American Express Co. v. Caldwell, 244 U. S. 617 273 American Express Co. v. South Dakota, 244 U. S. 617 277 American Nat. Bank v. United States, 77 U. S. App. D. C. 243 74 American Power Co. v. Comm’n, 329 U. S. 90 322 American R. Exp. Co. v. Levee, 263 U. S. 19 372 American Surety Co. v. Ak- ron Sav. Bk., 212 U. S. 557 28 American Trading Co. v. Steele, 274 F. 774 355 American Trucking Assns. v. United States, 101 F. Supp. 710 301 Anderson v. Brand, 303 U. S. 95 97 Anderson v. Eidson, 191 F. 2d 989 451,526 Apger v. United States (D. C. N. D. Ohio) 301 Arant v. Lane, 245 U. S. 166 38 Arizona v. California, 283 U. S. 423 241 Asgill v. United States, 60 F. 2d 776 419 Ashcraft v. Tennessee, 327 U. S. 274 475 LUI LIV TABLE OF CASES CITED. Page Ashwander v. T. V. A., 297 U. S. 288 242 Atchison, T. & S. F. R. Co. v. Comm’n, 283 U. S. 380 203 Automobile Workers v. O’Brien, 339 U. S. 454 166 Bacom v. Sullivan, 181 F. 2d 177 448 Bacom v. Sullivan, 194 F. 2d 166 448,451 Bailey v. Central Vt. R. Co., 319 U. S. 350 409 Baizlev Iron Works v. Span, 281 U. S. 222 339,341 Baldwin Co. v. Howard Co., 256 U. S. 35 180 Baltimore & Carolina Line v. Redman, 295 U. S. 654 51 Baltimore & O. R. Co. v. United States, 298 U. S. 349 320 Bandini Co. v. Superior Court, 284 U. S. 8 181 Barkley v. Hayes, 208 F. 319 110,116,121 Barrett v. New York, 232 U. S. 14 577,578 Baumet v. United States, 343 U. S. 925; 344 U. S. 82 70 Baumet v. United States, 191 F. 2d 194 70,84 Baumgartner v. United States, 322 U. S. 665 507 Bay State Dredging Co. v. Porter, 153 F. 2d 827 373 Beauharnais v. Illinois, 343 U. S. 250 129 Bell, In re, 19 Cal. 2d 488 361 Berger v. United States, 295 U. S. 78 460 Bethlehem Steel Co. v. Board, 330 U. S. 767 166 Bihn v. United States, 328 U. S. 633 460 Blackmer v. United States, 284 U. S. 421 282,285,290,291 Blair v. B. & O. R. Co., 323 U. S. 600 409 Blockburger v. United States, 284 U. S. 299 221,224 Page Blumenthal v. United States, 332 U. S. 539 619 Board of Comm’rs' v. Seber, 318 U. S. 705 28 Board of Regents v. Updegraff, 205 Okla. 301 186,187 Boehm v. Comm’r, 326 U. S. 287 170 Bolling v. Sharpe (U. S. Ct. App. D. C.) 3 Bonner, In re, 151 U. S. 242 93 Boston Gas Co. v. Comm’r, 128 F. 2d 473 170 Boston Sand Co. v. United States, 278 U. S. 41 221 Bowditch v. Boston, 101 U. S. 16 154 Bowen v. Johnston, 306 U. S. 19 41 Bowles v. Willingham, 321 U. S. 503 156 Bowling & Miami Co. v. United States, 233 U. S. 528 28 Bowman v. Continental Oil Co., 256 U. S. 642 577,578 Bowman v. Loperena, 311 U. S. 262 21,210 Boyd v. Grand Trunk W. R. Co., 338 U. S. 263 373 Bradley, In re, 318 U. S. 50 428 Bramwell v. U. S. Fidelity Co., 269 U. S. 483 28,32 Branch v. Comm’n, 141 F. 2d 31 282,286 Bridges, Ex parte, 2 Woods 428 499 Bridges v. Wixon, 326 U. S. 135 597 Briggs v. Elliott, 344 U. S. 1 2 Brillhart v. Excess Ins. Co., 316 U. S. 491 250 British Nylon Spinners v. Imperial Industries, [1952] 2 All Eng. 780 289 Brown v. Allen, 344 U. S. 443 452, 460, 466, 479, 481, 490, 543, 550, 565, 569, 570 Brown v. Board, 344 U. S. 1 2 Brown v. Crawford, 98 F. Supp. 866 452,455,490 Brown v. Mississippi, 297 U. S. 278 475 TABLE OF CASES CITED. LV Page Brown v. North Carolina, 341 U. S. 943 447,543 Brown v. O’Keefe, 300 U. S. 598 27 Brundage v. Deardorf, 55 F. 839; 92 F. 214 116 Bruner v. United States, 343 U. S. 112 390 Brunson v. North Carolina, 333 U. S. 851 470,474,479,550,555 Bryan v. United States, 338 U. S. 552 65 Buck v. Kuykendall, 267 U. S. 307 161,162,165,252 Buren v. Southern Pac. Co., 50 F. 2d 407 341 Byars v. Swenson, 192 F. 2d 739 451 Byrd v. N. Y. Central System, 6 N. J. Super. 568 341 Callen v. Pennsylvania R. Co., 332 U. S. 625 372 Campbell Soup Co. v. Armour & Co., 175 F. 2d 795 283 Cantwell v. Connecticut, 310 U. S. 296 100 Carlson v. Landon, 342 U.S. 524 598 Carrier v. Carrier, 226 N. Y. 114 106,118 Carter v. A. & St. A. B. R. Co., 338 U. S. 430 410 Carter v. Texas, 177 U. S. 442 471 Caskey Baking Co. v. Virginia, 313 U. S. 117 582 Cassarello v. United States, 271 F. 486 71,74 Cassell v. Texas, 339 U. S. 282 470,479 Catlin v. United States, 324 U. S. 229 216 Chambers v. Florida, 309 U. S. 227 475 Chemical Bank Co. v. Group of Investors, 343 U.S. 982 890 Chicago v. Willett Co., 341 U. S. 913 576 Chicago v. Willett Co., 406 Ill. 286 576-582 Chicago v. Willett Co., 409 Ill. 480 576 Page Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585 348 City. See name of city. Claflin v. Houseman, 93 U. S. 130 499 Clark v. Poor, 274 U. S. 554 161 Claussen v. Day, 279 U. S. 398 599 Cleveland-Cliffs Co. v. Arctic Co, 248 U. S. 178 5 Cleveland Trust Co. v. Berry, 99 F. 2d 517 14 Clune v. United States, 159 U. S. 590 617 Cobbledick v. United States, 309 U. S. 323 216 Cochran v. Kansas, 316 U. S. 255 91,93,363 Coffman v. Breeze Corporations, 323 U. S. 316 246 Cohen v. Beneficial Loan Corp, 337 U. S. 541 182 Cole v. Arkansas, 333 U. S. 196 363 Cole v. Cunningham, 133 U. S. 107 289 Colegrove v.Green, 328U.S. 549 246 Columbia Terminals • Co. v, Lambert, 309 U. S. 620 161,166 Columbia Terminals Co. v. Lambert, 30 F. Supp. 28 161,162,166 Commissioner v. Switlik, 184 F. 2d 299 8,11 Commissioner v. Wilcox, 327 U. S. 404 170 Commonwealth. See also name of Commonwealth. Commonwealth v. Cilione, 293 Pa. 208 567 Commonwealth v. lacobino, 319 Pa. 65 567 Commonwealth v. McCan, 277 Mass. 199 435 Commonwealth v. Scovern, 292 Pa. 26 567 Commonwealth v. Smith, 362 Pa. 222 564 Commonwealth ex rel. Mattox v. Supt. of Prison, 152 Pa. Super. 167 93 LVI TABLE OF CASES CITED. Page Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93 564-571 Cone v. West Va. Paper Co., 330 U. S. 212 50-57,63 Consolidated Edison Co. v. Board, 305 U. S. 197 354 Conway v. O’Brien, 111 F. 2d 611 55 Conway v. Regina, 7 Irish L. Rep. 149 441 Cooney v. Mountain States Tel. Co., 294 U. S. 384 577,578 Cooper Union v. Gass, 190 N. Y. 323 129 Coray v. Southern Pac. Co., 335 U. S. 520 410 County. See name of county. Cox v. Hakes, 15 A. C. 506 509 Credit Co. v. Arkansas C. R. Co., 128 U. S. 258 211 Crescent Express Lines v. United States, 320 U. S. 401 316,317,329 Cross v. Burke, 146 U. S. 82 38 Crowe v. United States, 175 F. 2d 799 480 Crowell v. Benson, 285 U. S. 22 337 Currin v. Wallace, 306 U. S. 1 246,322 Dad’s Root Beer Co. v. Doc’s Beverages, 193 F. 2d 77 283 Daniel Ball, The, 10 Wall. 557 277 Daniels v. Allen, 344 U. S. 443 453,482,489,552 Daniels v. Allen, 192 F. 2d 763 490,558,560 Daniels v. Crawford, 99 F. Supp. 208 454,456,490 Daniels v. North Carolina, 339 U. S. 954 447,464 Darnel’s Case, 3 How. St. Tr. 1 533 Darr v. Burford, 339 U. S. 200 448-452, 457-464, 478, 486-489, 495, 502, 511, 514, 541, 560 Page Dartmouth College v. Woodward, 4 Wheat. 518 128 Daverse v. Hohn, 198 F. 2d 934 451 Davilla v. Brunswick-Balke Co., 94 F. 2d 567 229,235 Davis, Ex parte, 318 U. S. 412 464 Davis v. Board, 344 U. S. 1 2,3 Davis v. Dept, of Labor, 317 U. S. 249 337,341 Davis v. O’Connell, 185 F. 2d 513 88 Davis v. Wechsler, 263 U. S. 22 372 Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 804 De Bardeleben Corp. v. Henderson, 142 F. 2d 481 341 De Meerleer v. Michigan, 329 U. S. 663 486,511 Denholm & McKay Co. v. Comm’r, 132 F. 2d 243 461 Department of Banking v. Pink, 317 U. S. 264 20,211 Desper v. Starved Rock Ferry Co., 342 U. S. 187 341 Dice v. A, C. & Y. R. Co., 342 U. S. 359 372 Dickinson v. Petroleum Corp., 338 U. S. 507 213,215 Dixon v. Duffy, 341 U. S. 938 144 Dixon v. Duffy, 342 U. S. 33 145 Dixon v. Duffy, 342 U. S. 805 144 Dixon v. Duffy, 343 U. S. 393 145 Dixon v. Duffy, 344 U. S. 143 538 Dobson v. Comm’r, 320 U. S. 489 12 Dorsey v. Gill, 80 U. S. App. D. C. 9 456 Doud v. United States, 340 U. S. 206 363 Douglas v. Cunningham, 294 U. S. 207 231,235,236 Dowd v. Cook, 340 U. S. 206 486 Drew v. Thaw, 235 U. S. 432 90 TABLE OF CASES CITED. LVII Page Duncan v. Thompson, 315 U. S. 1 373 Dunn, In re, 136 Eng. Rep. 859 533 Duvall v. Synod, 222 F. 669 121 Dve v. Johnson, 338 U. S. 864 88,93 Eagle Oil Co. v. Vacuum Oil Co., 162 F. 671 287 Eagles v. Samuels, 329 U. S. 304 485 Eastern Motor Express v. United States, 103 F. Supp. 694 301 Eccles v. Peoples Bank, 333 U. S. 426 246 Eichholz v. Comm’n, 306 U. S. 268 162,165,245 Ekberg v. McGee, 191 F. 2d 625 448,451 Ekberg v. McGee, 194 F. 2d 178 451 Ellis v. Union Pac. R. Co., 329 U. S. 649 409 Erie R. Co. v. Tompkins, 304 U. S. 64 115,131,283 Erie R. Co. v. Winfield, 244 U. S. 170 372,374 Everson v. Board, 330 U. S. 1 100 Ex parte. See name of party. Fair, The, v. Kohler Die Co., 228 U. S. 22 248 Fashion Originators’ Guild v. Comm’n, 312 U. S. 457 395 Fay v. New York, 332 U. S. 261 471,473 Federal Communications Comm’n v. Pottsville Co., 309 U. S. 134 20,214 Federal Power Comm’n v. Idaho Power Co., 344 U.S. 17 211,214,216 Federal Power Comm’n v. Panhandle Pipe Line Co., 337 U. S. 498 313 Federal Trade Comm’n v. Beech-Nut Co., 257 U. S. 441 394 Federal Trade Comm’n v. Cement Institute, 333 U. S. 683 395,396,401 Page Federal Trade Comm’n v. Curtis Pub. Co., 260 U. S. 568 397 Federal Trade Comm’n v. Gratz, 253 U. S. 421 404,405 Federal Trade Comm’n v. Keppel & Bro., 291 U. S. 304 394,403 Federal Trade Comm’n v. Klesner, 280 U. S. 19 404 Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37 20,214,402 Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470 212 Fenwick, Trials of, 7 How. St. Tr. 120, 315 441 Ferguson, Ex parte, [1917] 1 K. B. 176 533 Ferris v. United States, 40 F. 2d 837 618 Filson v. Fountain, 171 F. 2d 999 63 Fine v. Paramount Pictures, 181 F. 2d 300 211 First English Lutheran Church v. Lutheran Synod, 135 F. 2d 701 110 First Nat. Bank v. Heiner, 66 F. 2d 925 169 Fisher v. United States, 328 U. S. 463 570 Fiswick v. United States, 329 U. S. 211 617,618 Fitzpatrick v. United States, 178 U. S. 304 618 Fleniken v. Great Am. Co., 142 F. 2d 938 55 Florida v. United States, 282 U. S. 194 269,270,274,278 Florida v. United States, 292 U. S. 1 267-275 Foley Bros. v. Filardo, 336 U. S. 281 282,285, 286,290 Fong Yue Ting v. United States, 149 U. S. 698 598,599 Ford v. Parker, 52 F. Supp. 98 341 Ford v. United States, 273 U. S. 593 288 Ford Motor Co. v. Board, 305 U. S. 364 21 LVIII TABLE OF CASES CITED. Page Fountain v. Filson, 336 U. S. 681 50,57,63 Fouquette v. Bernard, 198 F. 2d 96 451 Francis v. Resweber, 329 U. S. 459 93 Frank v. Mangum, 237 U. S. 309 503,533 Franklin v. South Carolina, 218 U. S. 161 471 Frazier v. Ellis, 196 F. 2d 231 451 Free Church of Scotland v. Overtoun, [1904] A. C. 515 124 Frisbie v. Collins, 342 U. S. 519 502,553,555 Funk v. United States, 290 U. S. 371 418,613,615 F. W. Woolworth Co. v. Contemporary Arts, 193 F. 2d 162 229 Gallegos v. Nebraska, 342 U. S. 55 476 Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 576 Gardner v. New Jersey, 329 U. S. 565 30,295 Garner v. Board, 341 U. S. 716 188 Garrett v. Moore-McCormack Co., 317 U. S. 239 372 Gaunt v. United States, 184 F. 2d 284 46 Gavieres v. United States, 220 U. S. 338 45 General Am. Tank Corp. v. El Dorado Co., 308 U. S. 422 312 George W. Luft Co. v. Zande Co., 142 F. 2d 536 287 Georgia Pub. Serv. Comm’n v. United States, 283 U. S. 765 274-278 Georgia R. Co. v. Redwine, 342 U. S. 299 926 Gerende v. Board, 341 U. S. 56 188 German Reformed Church v. Seibert, 3 Pa. 282 110 Gibbons v. Ogden, 6 Wheat. 448- 180 Page Gibbs v. Ashe, 93 F. Supp. 542 451 Gibson v. Armstrong, 7 Ben. Monroe 481 110 Gilpin v. State, 142 Md. 464 435 Globe Liquor Co. v. San Roman, 332 U. S. 571 50,57,63 Globe Liquor Co. v. San Roman, 160 F. 2d 800 63 Goldman v. United States, 316 U. S. 129 419 Gonzalez v. Archbishop, 280 U. S.1 116,122 Goodman v. Lainson, 182 F. 2d 814 451 Goodwin v. Smyth, 181 F. 2d 498 451 Goto v. Lane, 265 U. S. 393 485 Grayson v. Harris, 267 U. S. 352 97 Great Lakes Co. v. Huffman, 319 U. S. 293 251,253 Gregoire v. Biddle, 177 F. 2d 579 535 Greyvan Lines v. United States (D. C. N. D. Ill.) 301 Griffin v. McCoach, 313 U. S. 498 131 Griffin v. United States, 336 U. S. 704 622 Gussie v. Pennsylvania R. Co., 1 N. J. Super. 293 341 Haley v. Ohio, 332 U. S. 596 507 Hallowell v. Commons, 239 U.S. 506 390 Hamilton v. Regents, 293 U. S. 245 100 Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U. S. 251 456,491 Hanson v. Hanson, 287 Mass. 154 612 Harlem Check Corp. v. Bell, 296 N. Y. 15 202 Harris v. South Carolina, 338 U. S. 68 536 Hartley v. Comm’r, 295 U. S. 216 356 Hawk, Ex parte, 321 U. S. 114 88,89,456,458,490 Hawk v. Hann, 103 F. Supp. 138 451 TABLE OF CASES CITED. LIX Page Hawk v. Olson, 326 U. S. 271 452,486,559 Hazel-Atlas Co. v. Hartford- Empire Co., 322 U. S. 238 217 Heagney v. Brooklyn Termi- nal, 190 F. 2d 976 372,373 Hebert v. Louisiana, 272 U. S. 312 99,196,465 Hecker H-0 Co. v. Holland Corp., 36 F. 2d 767 287 Hedgebeth v. North Caro- lina, 334 U. S. 806 359 Helm v. Zarecor, 213 F. 648 116 Helvering v. Gowran, 302 U. S. 238 459 Helvering v. Reynolds To- bacco Co., 306 U. S. 110 356 Hendrick v. Maryland, 235 U. S. 610 585,586 Herb v. Pitcairn, 324 U. S. 117 144-147,361,364 Herb v. Pitcairn, 325 U. S. 77 147 Herndon v. Lowry, 301 U. S. 242 177,486 Heston v. Kuhlke, 179 F. 2d 222 14 Hill v. Florida, 325 U. S. 538 166 Hill v. Hawes, 320 U. S. 520 212 216 Hill v. Texas, 316 U. S. 400 471,481 Hill v. Wooster, 132 U. S. 693 15 Hillsborough v. Cromwell, 326 U. S. 620 253 Hines v. Davidowitz, 312 U. S. 52 166 Hoge, Ex parte, 48 Cal. 3 363 Holcombe v. McKusick, 20 How. 552 215 Holland v. Eidson, 90 F. Supp. 314 451 Honeyman v. Hanan, 300 U. S. 14 146 Hood & Sons v. Du Mond, 336 U. S. 525 162 Hoover Co. v. Coe, 325 U. S. 79 15 Hormel v. Helvering, 312 U. S. 552 217 House v. Mayo, 324 U. S. 42 456 Page Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342 269 H. P. Hood & Sons v. Du Mond, 336 U. S. 525 162 H. P. Welch Co. v. New Hampshire, 306 U. S. 79 162 Hughes v. State, 35 Ala. 351 437 Hulbert v. Chicago, 202 U. S. 275 358 Illinois Commerce Comm’n v. United States, 292 U. S. 474 273,275 Illinois ex rel. McCollum v. Board, 333 U. S. 203 100 Indiana ex rel. Anderson v. Brand, 303 U. S. 95 97 In re. See name of party. International Auto. Workers v. O’Brien, 339 U. S. 454 166 International Salt Co. v. United States, 332 U. S. 392 399 Interstate Transit v. Lindsey, 283 U. S. 183 584 Jackson v. Ruthazer, 181 F. 2d 588 88 Jacob Siegel Co. v. Comm’n, 327 U. S. 608 21,396 Japanese Immigrant Case, 189 U. S. 86 598 Jennings v. Illinois, 342 U. S. 104 * 146 J. E. Riley Co. v. Comm’r, 311 U. S. 55 459 Jewell-LaSalle Co. v. Buck, 283 U. S. 202 234 Job v. Erie R. Co., 79 F. Supp.698 341 John Baizley Iron Works v. Span, 281 U. S. 222 339,341 Johnson v. Dye, 175 F. 2d 250 93 Johnson v. Eisentrager, 339 U. S. 763 597,598 Johnson v. Matthews, 86 U. S. App. D. C. 376 88,93 Johnson v. N. Y., N. H. & H. R. Co., 344 U. S. 48; 194 F. 2d 194 63 Johnson v. Zerbst, 304 U. S. 458 41,485,486,500, 503,507 LX TABLE OF CASES CITED. Page Johnson & Son v. Johnson, 175 F. 2d 176 283 Juragua Iron Co. v. United States, 212 U. S. 297 154 Kane v. New Jersey, 242 U. S. 160 586 Kawakita v. United States, 343 U. S. 717 139 Kedrovsky v. Archbishop, 249 N. Y. 75, 516; 218 App. Div. 121; 220 App. Div. 750 104 Kedrovsky v. Archbishop, 195 App. Div. 127 104 Kedrovsky v. Roj desvensky, 242 N. Y. 547; 214 App. Div. 483 104 Kepner v. United States, 195 U. S. 100 428 Keystone Iron Co. v. Martin, 132 U. S. 91 215 King v. United States, 344 U. S. 254 905 Kinloch’s Case, 2 Fost. 16 441 Klaxon Co. v. Stentor Co., 313 U. S. 487 131 Knauff v. Shaughnessy, 338 U. S. 537 533,595,596 Knutson v. Gallsworthy, 82 U. S. App. D. C. 304 14 Koehler v. United States, 342 U. S. 852; 189 F. 2d 711 535 Kotteakos v. United States, 328 U. S. 750 460 Krulewitch v. United States, 336 U. S. 440 616-622 Kulick v. Kennedy, 157 F. 2d 811 554,558 Kwock Jan Fat v. White, 253 U. S. 454 598 Labor Board v. American Thread Co., 198 F. 2d 137 378 Labor Board v. Case Co., 189 F. 2d 599 378 Labor Board v. Clark Shoe Co., 189 F. 2d 731 378 Labor Board v. Dant, 344 U. S. 375 924 Labor Board v. Gullett Gin Co., 340 U. S. 361 348-353 Page Labor Board v. Highland Park Mfg. Co., 341 U. S. 322 378 Labor Board v. Jones & Laughlin, 301 U. S. 1 322 Labor Board v. Killoren, 122 F. 2d 609 26 Labor Board v. Nina Dye Works, 198 F. 2d 362 378,382 Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 347,355 Labor Board v. Postex Cot- ton Mills, 181 F. 2d 919 378 Labor Board v. White Swan Co., 313 U. S. 23 4 La Crosse Tel. Corp. v. Board, 336 U. S. 18 166 Lamar v. United States, 240 U. S. 60 288 Lange, Ex parte, 18 Wall. 163 428,503 Lanzetta v. New Jersey, 306 U. S. 451 364 Lapina v. Williams, 232 U. S. 78 599 Latter-Day Saints Corp. v. United States, 136 U. S. 1 119,120 L. A. Westermann Co. v. Dispatch Co., 249 U. S. 100 232 Lees, Ex parte, 120 Eng. Rep.718 533 Leloup v. Mobile, 127 U. S. 640 589 Leon v. State, 180 Md. 279 202 Levindale Co. v. Coleman, 241 U. S. 432 173 Lewis v. Frick, 233 U. S. 291 599 Liberty Warehouse Co. v. Grannis, 273 U. S. 70 241 Lichter v. United States, 334 U. S. 742 156 Life & Fire Ins. Co. v. Adams, 9 Pet. 573 215 Loftus v. Illinois, 334 U. S. 804 144,146 Logan v. United States, 144 U. S. 263 617,618 Long Island R. Co. v. Lowe, 145 F. 2d 516 340 TABLE OF CASES CITED. lxi Page Lord v. Equitable Society, 194 N. Y. 212 129 Loughran v. Loughran, 292 U. S. 216 610 Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 93 Louisiana Public Service Comm’n v. T. & N. 0. R. Co., 284 U. S. 125 273,278 Louisville v. Sebree, 308 Ky. 420 628,629 Louisville Trust Co. v. Knott, 191 U. S. 225 38 Lowden v. N. W. Nat. Bank, 298 U. S. 160 4 Luft Co. v. Zande Co., 142 F. 2d 536 287 Lutheran Church v. Lutheran Synod, 135 F. 2d 701 110 Luxton v. North River Co., 147 U. S. 337 216 Lyle v. Eidson, 197 F. 2d 327 451 Lynch v. United States, 292 U. S. 571 388 Lyons v. Oklahoma, 322 U. S. 596 475 Mac. See Me. Magnano Co. v. Hamilton, 292 U. S. 40 585 Malinski v. New York, 324 U. S. 401 458,475,536 Malsed v. Marshall Field & Co., 96 F. Supp. 372 229 Mandeville Island Farms v. Am. Sugar Co., 334 U. S. 219 286,287 Manufacturers R. Co. v. United States, 246 U. S. 457 320 Marino v. Ragen, 332 U. S. 561 511 Marshall Field & Co. v. Board, 318 U. S. 253 350 Martinez v. Neelly, 344 U. S. 916 540 Maryland v. Baltimore Radio Show, 338 U. S. 912 834 Massie v. Watts, 6 Cranch 148 289 Master v. Baldi, 198 F. 2d 113 448,451 Page Matton Steamboat Co. v. Murphy, 319 U. S. 412 213 Mattox v. Supt. of Prison, 152 Pa. Super. 167 93 Maty v. Grasselli Co., 303 U. S. 197 217 Maurer v. Boardman, 336 Pa. 17 162 Maurer v. Hamilton, 309 U. S. 598 162 McBoyle v. United States, 283 U. S. 25 176 McCardle, Ex parte, 7 Wall. 506 390 McCarroll v. Dixie Lines, 309 U. S. 176 584 McCollum v. Board, 333 U. S. 203 100 McCullough v. Smith, 293 U. S. 228 73 McDonald v. Thompson, 305 U. S. 263 162 McGarty v. O’Brien, 188 F. 2d 151 451,568 McGarty v. O’Brien, 96 F. Supp.704 451 McGinnis v. Watson, 41 Pa. 9 110 McGourkey v. T. & O. R. Co., 146 U. S. 536 215 McGrath v. Kristensen, 340 U. S. 162 140 McKane v. Durston, 153 U. S. 684 486 McNabb v. United States, 318 U. S. 332 476 Meador v. Williams, 117 Mo. App. 564 436 Melanson v. O’Brien, 191 F. 2d 963 451 Memphis v. Brown, 94 U. S. 715 212,216 Merritt-Chapman & Scott Corp. v. Willard, 189 F. 2d 791 340 Michelson v. United States, 335 U. S. 469 420,423 Minneapolis Honeywell Co. v. Milwaukee Gas Co., 174 F. 2d 203 14 Minnesota v. Nat. Tea Co., 309 U. S. 551 146,147,361 LXII TABLE OF CASES CITED. Page Missouri ex rel. Watson v. Farris, 45 Mo. 183 110 Mitchell v. Harmony, 13 How. 115 152 Mixon v. Littleton, 265 F. 603 173 Mobile v. Kimball, 102 U. S. 691 277 Montana v. United States, 106 F. Supp. 778 259,273 Montgomery Ward & Co. v. Duncan, 311 U. S. 243 51,56,57 Mooney v. Holohan, 294 U. S. 103 364, 458, 500, 533, 540 Moore v. Dempsey, 261 U. S. 86 364, 464, 478, 503, 533, 540, 549, 553, 554 Moore v. Illinois C. R. Co., 312 U. S. 630 933 Morgantown v. Royal Ins. Co., 337 U. S. 254 216 Morris v. Altstedter, 173 App. Div. 932; 93 Mise. 329 287 Movers’ Conference v. United States (D. C. E. D. Mich.) 301 Mullane v. Central Bank Co., 339 U. S. 306 296 Murdock v. Pennsylvania, 319 U. S. 105 585 Mutual Life Ins. Co., In re, 188 F. 2d 424 55 Mutual Life Ins. Co. v. Mc- Grew, 188 U. S. 291 358 Myers v. Bethlehem Corp., 303 U. S. 41 246 Nardone v. United States, 302 U. S. 379 201,204 Nardone v. United States, 308 U. S. 338 204 Nash v. United States, 229 U. S. 373 405 Nash v. United States, 54 F. 2d 1006 619 Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 241 National Broadcasting Co. v. United States, 319 U. S. 190 310 Page National Fruit Co. v. Dwinell-Wright Co., 47 F. Supp. 499 283 National Labor Relations Board. See Labor Board. National Tea Co. v. State, 208 Minn. 607 147 Neal v. Delaware, 103 U. S. 370 471 Neilson v. Lagow, 12 How. 98 146 Nemolovsky v. Rykhloff, 187 App. Div. 290 104 New Jersey v. New York, 283 U. S. 473 289 New York v. United States, 257 U. S. 591 274 New York v. United States, 331 U. S. 284 320 New York Cent. R. Co. v. Winfield, 244 U. S. 147 373 374 New York, C. & H. R. R.’ Co. v. Miller, 202 U. S. 584 577-581 Nikulnikoff v. Archbishop, 142 Mise. 894 104 Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128 336-342 Nogueira v. N. Y., N. H. & H. R. Co., 32 F. 2d 179 340 Norfolk v. Portsmouth, 186 Va. 1032 627 Norfolk & W. R. Co. v. Conley, 236 U. S. 605 267,274 Norman v. State, 127 Tenn. 340 612 Norris v. Alabama, 294 U. S. 587 471 North American Co. v. Comm’n, 327 U. S. 686 322 North American Oil v. Burnet, 286 U. S. 417 8 North Carolina v. United States, 325 U. S. 507 269,270,274-279 Northern Pac. R. Co. v. North Dakota, 236 U. S. 585 267,274 Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292 577-581 TABLE OF CASES CITED. LXIII Page Norton v. Warner Co., 321 U. S. 565 340 Odell v. Hudspeth, 189 F. 2d 300 451 Oklahoma-La. Motor Corp. v. United States (D. C. W. D. Okla.) 301 Old Dominion S. S. Co. v. Gilmore, 207 U. S. 398 291 Oliver, In re, 333 U. S. 257 363 Omnia Co. v. United States, 261 U. S. 502 156 On Lee v. United States, 343 U. S. 747 204,205 Order of Railway Conductors v. Swan, 329 U. S. 520 251 Osborne v. Florida, 164 U. S. 650 577,578 Pacific Tel. Co. v. Comm’n, 297 U. S. 403 577-582 Palko v. Connecticut, 302 U. S. 319 426,427,432,438,439 Panama Rfg. Co. v. Ryan, 293 U. S. 388 313 Paonessa v. New York, 344 U. S. 860 486 Parham v. The Justices, 9 Ga. 341 154 Parker v. Lester, 191 F. 2d 1020 ; 98 F. Supp. 300 594 Parker v. Motor Boat Sales, 314 U.S. 244 340,341 Patton v. Mississippi, 332 U. S. 463 471,551 Pecheur Co. v. Nat. Candy Co., 315 U. S. 666 281 Pennsylvania ex rel. Gibbs v. Ashe, 93 F. Supp. 542 451 Pennsylvania ex rel. Smith v. Ashe, 340 U. S. 812 565 People. See also People ex rel. People v. Adamson, 34 Cal. 2d 320; 27 Cal. 2d 478 538 People v. Barrett, 2 Caines 304 436 People v. Channell, 107 Cal. App. 2d 192 202 People v. Davis, 52 Mich. 569 419 Page People v. Garza, 86 Cal. App. 97 359 People v. McDermott, 97 Cal. 247 361 People v. Schainuck, 286 N. Y. 161 419 People v. Stemmer, 298 N. Y. 728 202 People v. Stone, 93 Cal. App. 2d 858 361 People v. Sukovitzen, 67 Cal. App. 2d 901 359 People v. Walsh, 262 N. Y. 140 419 People v. Wells, 33 Cal. 2d 330 537 People ex rel. Cooper Union v. Gass, 190 N. Y. 323 129 People ex rel. N. Y., C. & H. R. R. Co. v. Miller, 202 U. S. 584 577-581 Perkins v. Elg, 307 U. S. 325 135,138,246 Peterson, Ex parte, 253 U.S. 300 502 Pfister v. Finance Corp., 317 U.S. 144 21,210 Phelps v. McDonald, 99 U. S. 298 289 Phelps Dodge Corp. v. Board, 313 U. S. 177 27, 30,310,346,349 Phillips - Jones Corp. v. Parmley, 302 U. S. 233 7 Phyle v. Duffy, 334 U. S. 431 569 Picking v. Pennsylvania R. Co., 151 F. 2d 240 535 Piedmont & N. R. Co. v. United States, 280 U. S. 469 241 Pierre v. Louisiana, 306 U. S. 354 471 Pizano v. State, 20 Tex. App. 139 436 Plankinton Packing Co. v. Board, 338 U. S. 953 166 Ponce v. Roman Catholic Church, 210 U. S. 296 120 Powell v. Alabama, 287 U. S. 45 363,507 Pratt Institute v. New York, 183 N. Y. 151 129 LXIV TABLE OF CASES CITED. Page Preston v. Texas, 343 U. S. 917 486 Price v. Johnston, 334 U. S. 266 480,540,541 Pullman Co. v. Adams, 189 U. S. 420 577-581 Pullman Co. v. Kansas, 216 U. S. 56 589 Pure Oil Co. v. Puritan Oil Co., 127 F. 2d 6 287 Purvis v. Pennsylvania R. Co., 198 F. 2d 631 373 Pyle v. Finnessy, 275 Pa. 54 52 Queen v. Charlesworth, 1 B. & S. 460 441 Queen v. Lewis, 2 Cr. App. R. 180 441 Quon Quon Poy v. Johnson, 273 U. S. 352 599 Radio Station WOW v. Johnson, 326 U. S. 120 180,182 Railroad Comm’n v. C., B. & Q. R. Co., 257 U. S. 563 269,274-278 Railway Conductors v. Swan, 329 U. S. 520 251 Regina v. Straffen, [1952] 2 Q. B. 911 571 Reid v. Colorado, 187 U. S. 137 203 Republic Steel Corp. v. Board, 311 U. S. 7 348,353-355 Rescue Army v. Municipal Court, 331 U. S. 549 181 Respublica v. Sparhawk, 1 Dall. 357 154,155 Rice v. Santa Fe Corp., 331 U. S. 218 166 Richardson v. Central R. Co., 233 App. Div. 603 341 Ricketts v. Pennsylvania R. Co., 153 F. 2d 757 372 Riley Co. v. Comm’r, 311 U. S. 55 459 Riss & Co. v. United States, 341 U. S. 907 36,39,40 Rist v. Pittsburgh & Conneaut Co., 104 F. Supp. 29 341 Page Rochin v. California, 342 U. S. 165 432,534 Ross v. Middlebrooks, 188 F. 2d 308 88 Royall, Ex parte, 117 U. S. 241 500,503,533 Rubber Co. v. Goodyear, 6 Wall. 153 212,216 Ruhlin v. N. Y. Life Ins. Co., 304 U. S. 202 116 St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 320,322 St. Louis & S. F. R. Co. v. James, 161 U. S. 545 586 St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1 96, 97, 100, 106-109, 117, 118, 122 St. Nicholas Cathedral v. Kedroff, 276 App. Div. 309 99 St. Nicholas Cathedral v. Kedroff, 192 Mise. 327 100 Salinger v. Loisel, 265 U. S. 224 457,463,464,508 Salton Sea Cases, 172 F. 792 289 Salzer v. United States, 300 F. 764 71 Sammons v. Colonial Press, 126 F. 2d 341 229,235 Sampsell v. California, 191 F. 2d 721 451 Sampsell v. Imperial Corp., 313 U. S. 215 29 Savage v. Jones, 225 U. S. 501 203 Schechter Corp. v. United States, 295 U. S. 495 313 Schibi v. Schibi, 136 Conn. 196 612 Schneider v. State, 308 U. S. 147 366 S. C. Johnson & Son v. Johnson, 175 F. 2d 176 283 Screws v. United States, 325 U. S. 91 535 Second Employers’ Liability Cases, 223 U. S. 1 277 TABLE OF CASES CITED. LXV Page Secretary ' of State v. O’Brien, [1923] A. C. 603 509 Securities & Exchange Comm’n v. Minas de Art-emisa, 150 F. 2d 215 289 Sheldon v. Metro-Goldwyn Corp., 309 U. S. 390 234,235 Shepard v. Barkley, 247 U. S. 1 110,121 Sherard v. Walton, 206 F. 562 116 Shreveport Rate Case, 234 U. S. 342 276,277 Siegel Co. v. Comm’n, 327 U. S. 608 21,396 Skinner v. Robinson, 105 F. Supp. 153 451 Skiriotes v. Florida, 313 U. S. 69 286,291 Slocum v. D., L. & W. R. Co., 339 U. S. 239 933 Slocum v. N. Y. Life Ins. Co., 228 U. S. 364 51 Smith v. Ashe, 340 U. S. 812 565 Smith v. Ashe, 364 Pa. 93 564-571 Smith v. Baldi, 344 U. S. 561 461,486,488 Smith v. Baldi, 192 F. 2d 540 451 Smith v. Baldi, 96 F. Supp. 100 570 Smith v. Carter Corp., 130 F. 2d 555 14 Smith v. Hoboken R. Co., 328 U. S. 123 30 Smith v. Texas, 311 U. S. 128 471 Snow, In re, 120 U. S. 274 224 Snow v. United States, 118 U. S. 346 38 Snyder v. Buck, 340 U. S. 15 805 Solesbee v. Balkcom, 339 U. S. 9 569 Soulia v. O’Brien, 188 F. 2d 233; 94 F. Supp. 764 451 South Carolina Hwy. Dept. v. Barnwell Bros., 303 U. S. 177 162,165 South Chicago Coal Co. v. Bassett, 309 U. S. 251 340 Page Southern Gas Corp. v. Alabama, 301 U. S. 148 582 Southern Pac. Co. v. Jensen, 244 U. S. 205 336,338 Southern R. Co. v. King, 217 U. S. 524 585,588 Spector Motor Service v. O’Connor, 340 U. S. 602 251,582,585 Spector Motor Service Co. v. McLaughlin, 323 U. S. 101 251 Speller v. Allen, 344 U. S. 443 452,477,490,551 Speller v. Allen, 192 F. 2d 477 456,490 Speller v. Crawford, 99 F. Supp. 92 451-455,459,490 Speller v. North Carolina, 340 U. S. 835 447 Spencer, Ex parte, 228 U. S. 652 480,486 Spier, In re, 12 N. C. 491 433 Spies v. United States, 317 U. S. 492 46 Spiller v. A., T. & S. F. R. Co., 253 U. S. 117 36 Sprout v. South Bend, 277 U. S. 163 577-585 Stairs v. Peaslee, 18 How. 521 356 Standard Dredging Corp. v. Henderson, 57 F. Supp. 770 341 Standard Oil Co. v. New Jersey, 341 U. S. 428 296 Standard Oil Co. v. United States, 337 U. S. 293 400,401,402 Stapf v. Corsi, 287 U. S. 129 599 Stark v. Wickard, 321 U. S. 288 406 State. See also name of State; State ex rel. State v. Andrews, 166 N. C. 349 434 State v. Bachman, 41 Nev. 197 419 State v. Bass, 82 N. C. 570 434,435 State v. Benham, 7 Conn. 414 435 226612 0—53------5 LXVI TABLE OF CASES CITED. Page State v. Brock, 234 N. C. 390 426,430 State v. Brown, 233 N. C. 202 466,467,470-473,550 State v. Brunn, 22 Wash. 2d 120 435 State v. Callendine, 8 Iowa 288 436 State v. Clemmons, 207 N. C. 276 435 State v. Daniels, 231 N. C. 17 483-485,557 State v. Daniels, 231 N. C. 341 483 State v. Daniels, 231 N. C. 509 484 State v. Daniels, 232 N. C. 196 483,557 State v. Davis, 109 N. C. 780 470 State v. Dixon, 131 N. C. 808 470 State v. Dove, 222 N. C. 162 426,434,437 State v. Ellis, 200 N. C. 77 434 State v. Falconer, 70 Iowa 416 436 State v. Frey, 76 Minn. 526 612 State v. Garrigues, 2 N. C. 241 442 State v. Garrigues, 2 N. C. 276 432 State v. Guice, 201 N. C. 761 426,434-437 State v. Lampkin, 227 N. C. 620 484 State v. Little, 120 W. Va. 213 436 State v. Matthews, 231 N. C. 617 425,430 State v. Moore, 210 N. C. 686 484 State v. Morrow, 220 N. C. 441 484 State v. Nelson, 7 Ala. 610 436,437 State v. O’Brien, 106 Vt. 97 435 State v. Palko, 121 Conn. 669 438 State v. Parker, 66 Iowa 586 436 State v. Peoples, 131 N. C. 784 471 Page State v. Richardson, 47 S. C. 166 436 State v. Speller, 229 N. C. 67; 230 N. C. 345 477,482 State v. Speller, 231 N. C. 549 478 State v. Watson, 208 N. C. 70 484 State v. Weaver, 13 Ired. L. 203 426 State ex rel. Meador v. Williams, 117 Mo. App. 564 436 State Tax Comm’n v. Van Cott, 306 U. S. 511 147,204,361,364 Stauffer v. Exley, 184 F. 2d 962 283 Steele v. Secretary of National Economy (Second Court of Supreme Court of Mexico) 285 Stembridge v. Georgia, 343 U. S. 541 362 Stephenson v. Binford, 287 U. S. 251 586 Stonebreaker v. Smyth, 163 F. 2d 498 455,490,491 Storaasli v. Minnesota, 283 U. S. 57 586 Strassheim v. Daily, 221 U. S. 280 288 Strauder v. West Virginia, 100 U. S. 303 471 Stroble v. California, 343 U. S. 181 507 Summers, In re, 325 U. S. 561 192 Sunal y. Large, 332 U.S. 174 485,497,503 Surplus Trading Co. v. Cook, 281 U. S. 647 627 Taft v. Comm’r, 304 U. S. 351 356 Tait v. Western Maryland R. Co., 289 U. S. 620 398 Tax Comm’n v. Van Cott, 306 U. S. 511 147,204,361,364 Taylor, In re, 229N.C.297; 230 N. C. 566 483 Taylor v. Alabama, 335 U. S. 252 483 TABLE OF CASES CITED. LXVII Page Taylor v. Anderson, 234 U. S. 74 248 Taylor v. United States, 179 F. 2d 640 46 Tennessee v. Union Bank, 152 U. S.454 248 Testa v. Katt, 330 U. S. 386 499 Thiel v. Southern Pac. Co., 328 U. S. 217 473 Thompson v. Magnolia Co., 309 U. S. 478 30 Thompson v. McDonald, 95 F. 2d 937 162 Thompson v. Texas M. R. Co., 328 U. S. 134 30 Thompson v. United States, 155 U.S. 271 427,439,440 Thomsen v. Cayser, 243 U. S. 66 286,288 Thomson v. United States, 321 U. S. 19 309,314 Toledo Scale Co. v. Computing Co., 261 U. S. 399 211 Travelers Ins. Co. v. Branham, 136 F. 2d 873 341 Travelers Ins. Co. v. Mc- Manigal, 139 F. 2d 949 341 Trials of Whitebread & Fenwick, 7 How. St. Tr. 120, 315 441 Trono v. United States, 199 U. S. 521 428 Trounstine v. Bauer, Pogue & Co., 144 F. 2d 379; 44 F. Supp. 767 9 Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 128 Trustees of Presbytery v. Westminster Church, 222 N. Y. 305 109 Turner v. Pennsylvania, 338 U. S. 62 536 Twining v. New Jersey, 211 U. S. 78 426 Unemployment Comm’n v. Aragon, 329 U. S. 143 36 Union Brokerage Co. v. Jensen, 322 U. S. 202 581 United Auto. Workers v. O’Brien, 339 U. S. 454 166 Page United Public Workers v. Mitchell, 330 U. S. 75 191,192 United States. See also U. S. ex rel. United States v. Aluminum Co., 148 F. 2d 416 288 United States v. Bausch & Lomb Co., 321 U. S. 707 287 United States v. Borden Co., 308 U. S. 188 47 United States v. Bowman, 260 U. S. 94 291 United States v. Carolina Corp., 315 U. S. 475 331 United States v. Carver, 260 U. S. 482 492 United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499 398 United States v. Citizens Co., 316 U. S. 209 73-76 United States v. Cohen Grocery Co., 255 U. S. 81 176 United States v. Corrick, 298 U. S. 435 374 United States v. Darby, 312 U. S.100 322 United States v. Fisher, 2 Cranch 358 221 United States v. Frankfort Distilleries, 324 U. S. 293 287 United States v. Gilliland, 312 U. S. 86 46 United States v. Gooding, 12 Wheat. 460 617 United States v. Gottfried, 165 F. 2d 360 619 United States v. Hark, 320 U. S. 531 212,216 United States v. Heinszen & Co., 206 U. S. 370 40 United States v. Henning, 344 U. S. 66 83-85 United States v. Jin Fuey Moy, 241 U. S. 394 221 United States v. Kennedy, 157 F. 2d 811 554 United States v. Klinger, 199 F. 2d 645 79 United States v. Krulewitch, 145 F. 2d 76 419 LXVIII TABLE OF CASES CITED. Page United States v. L. A. Tucker Truck Lines, 344 U. S. 33 883 United States v. La Tuff Transfer Service, 95 F. Supp. 375 160 United States v. L. Cohen Co., 255 U. S. 81 176 United States v. Lee, 101 F. 2d 472 74 United States v. Lewis, 340 U. S. 590 8,9 United States v. Louisiana, 290 U. S. 70 264-267,270-275,278 United States v. Madigan, 300 U. S. 500 75 United States v. Masonite Corp., 316 U. S. 265 397 United States v. More, 3 Cranch 159 38 United States v. National Lead Co., 332 U. S. 319 289 United States v. Northern Pac. R. Co., 288 U. S. 490 36 United States v. Noveck, 273 U. S. 202 45,46 United States v. One 1948 Plymouth, 198 F. 2d 399 631 United States v. One 1950 Ford Truck, 195 F. 2d 857 631 United States v. Oregon Medical Soc., 343 U. S. 326 400,536 United States v. Pacific R. Co., 120 U. S. 227 153,154 United States v. Pennsylvania R. Co., 323 U. S. 612 310,312,327 United States v. Pullman Co., 330 U. S. 806; 50 F. Supp. 123 399 United States v. Rickert, 188 U. S. 432 28 United States v. Rock Island Motor Co., 340 U. S. 419 313,315 United States v. Rock Royal Co-op., 307 U. S. 533 322 United States v. Rosenblum Truck Lines, 315 U. S. 50 314 Page United States v. Rosenwas-ser, 323 U. S. 360 225 United States v. Rubenstein, 151 F. 2d 915 612,618 United States v. Russell, 13 Wall. 623 152 United States v. San Francisco, 310 U. S. 16 21 United States v. Sisal Sales Corp., 274 U. S. 268 288 United States v. State Bank, 6 Pet. 29 28 United States v. Texas & Pac. Motor Co., 340 U. S. 450 313,315 United States v. Tucker Truck Lines, 344 U. S. 33 883 United States v. Union Pac. R. Co., 168 U. S. 505 5 United States v. Univis Lens Co., 316 U. S. 241 287 United States v. Weber, 197 F. 2d 237 834 United States v. Weitzel, 246 U. S. 533 176 United States v. Yellow Cab Co., 332 U. S. 218 399 United States v. Zazove, 334 U. S. 602 71,72,75 U. S. ex rel. Almeida v. Baldi, 195 F. 2d 815 451 U. S. ex rel. Arant v. Lane, 245 U. S. 166. 38 U. S. ex rel. Claussen v. Day, 279 U. S. 398 599 U. S. ex rel. Jackson v. Ruthazer, 181 F. 2d 588 88 U. S. ex rel. Knauff v. Shaughnessy, 338 U. S. 537 533,595,596 U. S. ex rel. Kulick v. Kennedy, 157 F. 2d 811 554,558 U. S. ex rel. Master v. Baldi, 198 F. 2d 113 448,451 U. S. ex rel. Smith v. Baldi, 344 U. S. 561 461,486,488 U. S. ex rel. Smith v. Baldi, 192 F. 2d 540 451 U. S. ex rel. Smith v. Baldi, 96 F. Supp. 100 570 U. S. ex rel. Stapf v. Corsi, 287 U. S. 129 599 TABLE OF CASES CITED. LXIX Page U. S. ex rel. Vajtauer v. Comm’r, 273 U. S. 103 36 U. S. ex rel. Volpe v. Smith, 289 U. S. 422 599 U. S. Printing Co. v. Griggs Co., 279 U. S. 156 287 Unkle v. Wills, 281 F. 29 173 Upshaw v. United States, 335 U. S. 410 476 Urie v. Thompson, 337 U. S. 163 409 Uveges v. Pennsylvania, 335 U. S. 437 493 Vacuum Oil Co. v. Eagle Oil Co., 154 F. 867 287 Vajtauer v. Comm’r, 273 U. S. 103 36 Van Cott v. Comm’n, 98 Utah 264 147 Venides v. United Corp., 168 F. 2d 681 55 Vermilya-Brown Co. v. Connell, 335 U. S. 377 286,291 Virginia Electric Co. v. Board, 319 U. S. 533 347 Volpe v. Smith, 289 U. S. 422 599 Vrennan v. B. & 0. R. Co., 115 F. 2d 555 55 Wade v. Hunter, 336 U. S. 684 427,428,439 Waipa v. Kushwara, 283 N. Y. 780; 259 App. Div. 843 104 Walker v. Johnston, 312 U. S. 275 461,505 Washington v. Dawson & Co., 264 U. S. 219 337 Watkins, Ex parte, 3 Pet. 193 533,540 Watson v. Avery, 2 Bush 332 112-114 Watson v. Farris, 45 Mo. 183 110 Watson v. Jones, 13 Wall. 679 109-116,121,122 Watts v. Indiana, 338 U. S. 49 536 Wayne Gas Co. v. Owens- Illinois Co., 300 U. S. 131 210 Webber v. Commonwealth, 119 Pa. 223 567 Page Webster v. Fall, 266 U. S. 507 38 Weeks v. United States, 232 U. S. 383 201 Weiss v. United States, 308 U. S. 321 201 Welch Co. v. New Hampshire, 306 U. S. 79 162 Wells, Ex parte, 90 F. Supp. 855 537 Wells, Ex parte, 99 F. Supp. 320 451,538 Wells, In re, 35 Cal. 2d 889 538 Wells v. California, 338 U. S. 836 537 Wells v. California, 340 U. S. 937 538 West v. Manatawny Ins. Co., 277 Pa. 102 52 Westermann Co. v. Dispatch Co., 249 U. S. 100 232 Western Maid, The, 257 U. S. 419 390 Western Union Tel. Co. v. Kansas, 216 U. S. 1 589 West Virginia Paper Co. v. Cone, 153 F. 2d 576 63 White v. Johnson, 282 U. S. 367 4 White v. Ragen, 324 U. S. 760 456,465 Whitebread & Fenwick, Trials of, 7 How. St. Tr. 120, 315 441 Wichita Falls v. Bowen, 143 Tex. 45 627 Wilkerson v. McCarthy, 336 U. S. 53 409 Williams v. N. J.-N. Y. Transit Co., 113 F. 2d 649 55 Willing v. Chicago Auditorium Assn., 277 U. S. 274 241 Winsor v. Queen, 118 Eng. C. L. R. 141 441 Winters v. New York, 333 U. S. 507 99,366 Wisconsin Railroad Comm’n v. C., B. & Q. R. Co., 257 U. S. 563 269,274-278 Wissner v. Wissner, 338 U. S. 655 76 lxx TABLE OF CASES CITED. Page Wolf v. Colorado, 338 U. S. 25 201,205,432,534 Wolfle v. United States, 291 U.S. 7 613,614 Wong Yang Sung v. Mc- Grath, 339 U. S. 33 37-42,598 Wood, In re, 140 U. S. 278 480,486 Woods v. Nierstheimer, 328 U. S. 211 361 Woolworth Co. v. Contemporary Arts, 193 F. 2d 162 229 Page Wright v. Georgia R. Co., 216 U. S. 420 926 Wycoff Co. v. Comm’n, 227 P. 2d 323 244 Yamashita, In re, 327 U. S. 1 485 Yerger, Ex parte, 8 Wall. 85 512 Zientek v. Reading Co., 93 F. Supp. 875 341 Zimmern v. United States, 298 U. S. 167 211,216 Zorach v. Clauson, 343 U. S. 306 100 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page 1789, Sept. 24, c. 20, §25, 1 Stat. 85........... 178 1793, Feb. 12, c.'7, 1 Stat. 302 ......................... 86 1868, July 27, c. 249, 15 Stat. 223............ 133 1871, Feb. 25, c. 71, §4, 16 Stat. 431................... 386 1887, Feb. 8, c. 119, §5, 24 Stat. 388................... 171 1889, Feb. 6, c. 113, §6, 25 Stat. 655 .................. 889 1893, Mar. 2, c. 196, 27 Stat. 531 .............. 334 1906, June 28, c. 3572, 34 Stat. 539.......... 171 1907, Mar. 2, c. 2534, 34 Stat. 1228......... 133 Mar. 2, c. 2565, 34 Stat. 1246.................. 218 1908, Apr. 22, c. 149,35 Stat. 65 ..................... 334,407 1910, Apr. 5, c. 143, 36 Stat. 291 ........................ 407 June 18, c. 309, § 13, 36 Stat. 539......... 254 1911, Mar. 3, c. 231, §§ 128, 238, 240, 241, 36 Stat. 1087.................. 889 1914, Sept. 26, c. 311, 38 Stat. 717................... 206 §5........................ 392 Oct. 15, c. 323, 38 Stat. 730 ........................ 206 §3........................ 392 1915, Mar. 4, c. 153, 38 Stat. 1164 ....................... 334 1916, Sept. 6, c. 448, 39 Stat. 726 ........................ 407 1917, Feb. 5, c. 29, §§ 3, 19, 39 Stat. 874................ 590 Page 1917, June 15, c. 30, 40 Stat. 217 .......................... 590 Oct. 6, c. 105, §§402, 403, 40 Stat. 398.. 66 1918, May 22, c. 81, § 1, 40 Stat. 559..................... 590 Oct. 16, c. 186, 40 Stat. 1012 ......................... 590 1919, Feb. 24, c. 18, 40 Stat. 1057 ........................ 43 Dec. 24, c. 16, §§4, 13 , 19, 41 Stat. 371. 66 1920, Feb. 28, c. 91, §§13, 15a, 41 Stat. 484... 254 Mar. 9, c. 95, 41 Stat. 525 .......................... 386 June 10, c. 285, §§ 4, 6, 10, 41 Stat. 1063... 17 1924, May 26, c. 190, 43 Stat. 153..................... 604 June 2, c. 234, 43 Stat. 42 June 7, c. 320, §§ 3, 26, 43 Stat. 607........ 66 1925, Mar. 4, c. 553, 43 Stat. 1302 .......................... 66 1927, Mar. 4, c. 509, 44 Stat. 1424 ......................... 334 1929, Mar. 4, c. 690, 45 Stat. 1551 ......................... 604 1933, Mar. 3, c. 204, § 77, 47 Stat. 1467.................... 293 May 27, c. 38, § 9, 48 Stat. 74....................... 33 1934, June 6, c. 404, § 25, 48 Stat. 881...................... 33 June 14, c. 512, 48 Stat. 955..................... 237 June 19, c. 652, § 605, 48 Stat. 1064...... 199 LXXI LXXII TABLE OF STATUTES CITED. Page 1935, July 5, c. 372, § 10, 49 Stat. 449................ 25,344 Aug. 9, c. 498, 49 Stat. 543 ........................ 157 §§202-204, 206... 298 §20 7 ..... 33,298 §§ 208, 209, 212, 216-218, 222... 298 Aug. 26, c. 687, §§ 4, 6, 10, 49 Stat. 803... 17 §24........................ 3 §§201,202,313... 17 Aug. 27, c. 774, §77, 49 Stat. 911......... 293 1936, June 19, c. 592, 49 Stat. 1526................ 206 1938, Mar. 21, c. 49, 52 Stat. Ill ........................ 392 June 22, c. 575, §§ 63, 64, 52 Stat. 840... 25 June 25, c. 675, §§ 301, 704, 52 Stat. 1040.. 174 June 25, c. 676, §§ 6, 7, 52 Stat. 1060 ....... 218 § 10...................... 33 §§ 11, 15, 16.............. 218 1939, Aug. 11, c. 685, 53 Stat. 1404 ....................... 407 1940, June 29, c. 447, 54 Stat. 689................... 386 Sept. 18, c. 722, 54 Stat. 898............... 157,298 §§ 1, 15a...................254 Oct. 8, c. 757, §602, 54 Stat. 974.......... 66 Oct. 14, c. 876, §§ 307, 325, 54 Stat. 1137.. 590 1941, June 21, c. 210, 55 Stat. 252................... 590 1942, July 15, c. 505, §§ 7-9, 56 Stat. 659................ 66 1944, Mar. 22, c. 123, 58 Stat. 118................... 386 1945, Dec. 28, c. 591, 59 Stat. 659................... 604 1946, June 11, c. 324, §§ 4, 5, 7 , 8, 60 Stat. 237... 298 §1 1 .......... 33 July 5, c. 540, §§32, 34-36, 38, 39, 45, 60 Stat. 427............ 280 Page 1946, Aug. 1, c. 728, §§ 4, 9, 60 Stat. 781...... 66 §§601, 602 .... 66,82 1947, June 23, c. 120, § 8, 61 Stat. 136................... 375 §9 94,375 § 10 ..... 344,375 §101 375 July 25, c. 327, 61 Stat. 449 ........................ 386 July 30, c. 388, 61 Stat. 633 ........................ 386 1948, June 25, c. 646, § 36, 62 Stat. 991................ 6 July 1, c. 783, 62 Stat. 1206 ....................... 590 1949, July 20, 63 Stat. 1240. 590 Oct. 26, c. 736, §§ 6, 7, 11, 15, 16, 63 Stat. 910 ........................ 218 1950, Aug. 9, c. 656, 64 Stat. 427 ........................ 590 Sept. 23, c. 1024, §5, 64 Stat. 987......... 590 Sept. 27, c. 1052, 64 Stat. 1044 .................. 33 1951, Oct. 22, c. 534, 65 Stat. 601 ....................... 375 1952, June 27, c. 477, § 330, 66 Stat. 163...... 590 §350 ..................... 133 §405 ..................... 590 June 30, c. 530, 66 Stat. 296................... 803 Constitution. See Index at end of volume. Criminal Code. See also U. S. Code, Title 18. §35.................... 43 Internal Revenue Code. See also U. S. Code, Title 26. §23 .................. 6,167 §§H5, H7................ 6 §145 ..................... 43 §311 ...................... 6 §3116................. 630 Judicial Code. See also U. S. Code, Title 28... 48 §36 ....................... 6 §§ 128, 238, 240, 241... 889 TABLE OF STATUTES CITED. LXXIII Page Revised Statutes. §13 ..................... 386 §761 .................... 443 §914...................... 48 § 3466 ................... 25 §§4904, 4915.......... 13 U. S. Code. Title 1, §109 ........... 386 Title 4, §§ 105-110.... 624 Title 5, §1001 et seq.. 33,298 § 1002 ................. 375 §1003 .................. 298 § 1010................... 33 Title 8, c. 11....... 133,590 §17..................... 133 §§137-4, 155............. 590 §§ 180a, 220, 232... 604 §§701-747 ............... 590 §800 ................... 133 Title 11, §§ 1,103,104...... 25 §205 ................... 293 Title 15, §13 ................. 206 §§ 14, 45............ 206,392 §§ 77i, 78y, 79x.... 33 §§96, 124, 1051 et seq., 1114, 1116-1118, 1120, 1121, 1127 ............. 280 Title 16, §797............ 17 Title 17, §101............228 Title 18, §80................... 43 §88 .................... 604 §243 ................... 443 §371 ................... 604 §659 ................... 414 §§ 1001, 1010, 1014. 43 § 1546 ................. 604 §2314................... 414 § 3281 .................. 86 §3282 ................... 43 §3731 ............... 43,218 Title 21, §§331, 333.. 174 Title 22, §223........... 590 Title 26, §§ 145, 3748.. 43 Title 28, §452 ................ 206 §461 ................... 443 Page U. S. Code—Continued. Title 28—Continued. § 1253 .............. 254 § 1254 ............ 1,4,167 § 1257 ............. 178, 583,805,863,901 § 1331 .............. 237 § 1336 .............. 254 §2101 ................ 1, 17, 206, 254, 860, 870, 881, 887, 900, 915, 916, 936 §2103 ........... 806,901 §2106................. 48 §§2201, 2202.......... 237 §2241 .... 86,443,908 §§2242-2253 ....... 443 §2254 ............ 86,443 §§2281, 2284.......... 237 §§2321-2324 .......... 298 §2325 ........... 254,298 §2516 ............... 386 Title 29, §§ 157, 158........ 375 § 159 ............. 94,375 § 160 ........ 33,344,375 §§206, 207........... 218 §210.................. 33 §§211, 215, 216.... 218 Title 33, §901 et seq.. 334 Title 35, §§ 52, 63.... 13 Title 38, §§ 424, 451, 514, 516 ............. 66 § 801 ................ 82 §801 et seq........... 66 §802 ................. 82 §§ 802 et seq., 851 et seq., 852..... 66 Title 45, § 1 et seq......... 334 §51 ................. 367 §51 etseq.... 334,407 §55 ................. 367 Title 46, §688 ........... 48,334 §§ 741 et seq., 745, 1128d .......... 386 Title 47, §§151 et seq., 501 ............... 199 LXXIV TABLE OF STATUTES CITED. Page U. S. Code—Continued. Title 49, § 1 ........ 254,298 §§13, 15a................. 254 § 301 et seq... 157, 237,298 §§303, 304................ 157 §307 33 §308 298 §309 157,298 §322 157 Title 50, §191 590 §§462, 465................ 924 Administrative Procedure Act ............ 33,298,375 Alien & Sedition Laws.... 183 Bankruptcy Act........ 25,293 Buck Act................. 624 Clayton Act.......... 206,392 Communications Act....... 199 Conformity Act............ 48 Copyright Act............ 228 Criminal Appeals Act..... 218 Declaratory Judgment Act. 237 Defense Production Act.... 803 Employers’ Liability Act.. 334, 367,407 Fair Labor Standards Act.. 33, 218 Federal Communications Act ..................... 199 Federal Declaratory Judgment Act................. 237 Federal Employers’ Liability Act ........... 334,367,407 Federal Food, Drug, & Cosmetic Act................ 174 Federal Motor Carrier Act. 157, 237,298 Federal Trade Commission Act ............... 206,392 Federal Water Power Act.. 17 Food, Drug, & Cosmetic Act ................... 174 General Allotment Act.... 171 General Savings Statute.... 386 Habeas Corpus Act........ 443 Harbor Workers’ Compensation Act................. 334 Hatch Act................ 183 Page Immigration Act.......... 590 Immigration & Nationality Act ................... 133,590 Interstate Commerce Act... 33, 157,254,298,392 Jones Act............. 48,334 Judiciary Act........ 178,443 Labor Management Relations Act............ 344,375 Lanham Trade-Mark Act.. 280 Longshoremen’s & Harbor Workers’ Compensation Act ................... 334 Magnuson Act............. 590 Motor Carrier Act. 157,237,298 Nationality Act....... 133,590 National Labor Relations Act.. 25, 33, 94, 344, 375, 812 National Motor Carrier Act ........... 157,237,298 National Service Life Insurance Act.................. 66 Osage Indian Allotment Act. 171 Public Utility Holding Company Act............... 17,33 Railway Labor Act.........933 Robinson-Patman Act. 206,392 Safety Appliance Acts.... 334 Securities Act............ 33 Securities Exchange Act.... 33 Sedition Laws............ 183 Servicemen’s Indemnity Act .................... 66 Sherman Act........... 280,392 Subversive Activities Control Act................. 590 Suits in Admiralty Act... 386 Supplemental Appropriation Act, 1951............... 33 Taft-Hartley Act...... 344,375 Trade Commission Act. 206,392 Trade-Mark Act........... 280 Transportation Act.... 254,298 Utility Holding Company Act ................. 17,33 Wagner Act............... 25, 33,94,344,375,812 War Brides Act........... 604 War Risk Insurance Act. 66,386 Water Power Act.......... 17 World War Veterans’ Act.. 66 TABLE OF STATUTES CITED. LXXV (B) Statutes of the States and Territories. Page Arkansas. 1941 Acts, No. 367, §§ 5, 11 ................. 157 Motor Act................. 157 California. Penal-Code, §647.......... 357 Deering Penal Code, 1949, § 1253........ 357 Vagrancy Act..............357 Colorado. Stats. Ann., 1952 Replacement, c. 95, §10................. 443 Georgia. Code Ann., 1951, §59.106 ............ 443 Illinois. Rev. Stats., 1951, c. 95%, §§ 9, 11, 20.... 583 Chicago Municipal Code, c. 163........ 574 Motor Vehicle Law.... 583 Kansas. Gen. Stats., 1949, c. 43. 443 Kentucky. Rev. Stats., 19 4 8, §3.010 .................. 624 Rev. Stats., 19 4 8, §29.070 ................. 443 Rev. Stats., § 91.200... 624 City of Louisville Ordinance 83, Series 1950. 624 Maryland. Ann. Code, 1939, Art. 51, f6................ 443 Michigan. Stats. Ann., 1938, 1951, §§27.246, 27.247.... 443 Montana. Rev. Code, 1947, Tit. 93, § 1402.......... 443 New York. Constitution, Art. X, § 1 ................. 94 1925 Laws, c, 463.......... 94 50 McKinney Consol. Laws, §§ 5, 105, 107. 94 Page New York—Continued. McKinney Consol. Laws, Judiciary Law, §§502, 596.... 443 McKinney Consol. Laws, Workmen’s Compensation Law, § 113................ 367 Religious Corporations Law, §§ 2, 5, 105, Art. 5-C ...................... 94 Workmen’s Compensation Law............ 367 Feinberg Law.............. 183 North Carolina. 1947 Sess. Laws, c. 264 . 443 1949 Sess. Laws, c. 577. 443 Gen. Stats., §§ 105-336, 105-339 ............ 443 Geri. Stats., 1943, c. 9, Arts. 1-4........... 443 Gen. Stats., 1943, §§ 1-587, 9-1............ 443 Gen. Stats., Recompiled 19 5 0, §§ 105-307, 105-341 ................. 443 Public-Local Laws, 1937, c. 206 ....... 443 North Dakota. Rev. Code, 1943, §27-0906 ............... 443 Oklahoma. Stats. Ann., 1950 (1952 Supp.), Tit. 51, §§37.1 to 37.8...... 183 Stats. Ann., 1951, Tit. 38, §18.................. 443 Oregon. Comp. Laws Ann., 1940, § 14-201 ........... 443 Pennsylvania. 1905 Laws, No. 198.... 48 19 Purdon Stats. Ann., § 1352 ............. 561 1925 Laws, c. 49, § 1... 199 Code of Crim. Proc., Art. 727a........... 199 LXXVI TABLE OF STATUTES CITED. Page Texas—Continued. Vernon Stats., 1948, Code Crim. Proc., Art. 727a........... 199 Utah. Code Ann., 1943, § 48-0-17 ............... 443 Page Washington. Remington Rev. Stats., 1932, §94................. 443 Wyoming. Comp. Stats., 1945, §12-101 ............ 443 (C) Foreign Statutes. England. 31 Car. II, c. 2........443 39 & 40 Viet. 380...... 443 Appellate Jurisdiction Act .............. 443 Common Law Procedure Acts.......... 48 Habeas Corpus Act.... 443 Germany. 5 Gesetz-Sammlung fur die Koniglich Preus-sischen Staaten 154.. 94 Germany—Continued. 6 Gesetz-Sammlung fiir die Koniglich Preus-sischen Staaten 30... 94 7 Gesetz-Sammlung fiir die Koniglich Preus-sischen Staaten 291.. 94 Reichs - Gesetzblatt, 1871, p. 442; 1872, p. 253; 1874, p. 43; 1876, p. 28............ 94 Falk Laws.............. 94 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1952. BROWN et al. v. BOARD OF EDUCATION OF TOPEKA ET AL. NO. 8. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS.* October 8, 1952. In two cases set for argument in October, laws of Kansas and South Carolina providing for racial segregation in public schools were challenged as violative of the Fourteenth Amendment. In another case raising the same question with respect to laws of Virginia, appellants had filed a statement of jurisdiction and a motion requesting that all three cases be argued together. There was pending in the United States Court of Appeals for the District of Columbia Circuit a case in which segregation in public schools of the District of Columbia was challenged as violative of the Fifth Amendment. Held: 1. The Kansas and South Carolina cases are continued on the docket; probable jurisdiction is noted in the Virginia case; and arguments in all three will be heard in December. Pp. 2-3. 2. Judicial notice is taken of the pendency of the District of Columbia case. The Court will entertain a petition for certiorari in that case, which, if presented and granted, will afford opportunity for argument of that case immediately following arguments in the other three cases. P. 3. *Together with No. 101, Briggs et al. v. Elliott et al., Members of Board of Trustees of School District #22, on appeal from the United States District Court for the Eastern District of South Carolina; and No. 191, Davis et al. v. County School Board of Prince Edward County et al., on appeal from the United States District Court for the Eastern District of Virginia. 1 2 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. The following are citations to the reports of the decisions below: No. 8, the Kansas case, 98 F. Supp. 797; No. 101, the South Carolina case, 103 F. Supp. 920; No. 191, the Virginia case, 103 F. Supp. 337. Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, George E. C. Hayes, George M. Johnson, William R. Ming, Jr., James M. Nabrit, Jr. and Frank D. Reeves for appellants. Oliver W. Hill was also with them on the brief in No. 191. T. CxCallison, Attorney General of South Carolina, John W. Davis, Robert McC. Figg, Jr. and William R. Meagher for appellees in No. 101. J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the State of Virginia, and T. Justin Moore, Archibald G. Robertson and John W. Riely for the Prince Edward County School Board et al., appellees in No. 191. Per Curiam. In two appeals now pending, No. 8, Brown et al. v. Board of Education of Topeka et al., and No. 101, Briggs et al. v. Elliott et al., the appellants challenge, respectively, the constitutionality of a statute of Kansas, and a statute and the Constitution of South Carolina, which provide for segregation in the schools of these states. Appellants allege that segregation is, per se, a violation of the Fourteenth Amendment. Argument in these cases has heretofore been set for the week of October 13, 1952. In No. 191, Davis et al. v. County School Board of Prince Edward County et al., the appellants have filed a statement of jurisdiction raising the same issue in respect to a statute and the Constitution of Virginia. Appellees in the Davis case have called attention to the similarity between it and the Briggs and Brown cases; by motion BROWN v. BOARD OF EDUCATION. 3 1 Opinion of the Court. they have asked the Court to take necessary action to have all three cases argued together. This Court takes judicial notice of a fourth case, which is pending in the United States Court of Appeals for the District of Columbia Circuit, Bolling et al. v. Sharpe et al., No. 11,018 on that court’s docket. In that case, the appellants challenge the appellees’ refusal to admit certain Negro appellants to a segregated white school in the District of Columbia; they allege that appellees have taken such action pursuant to certain Acts of Congress; they allege that such action is a violation of the Fifth Amendment of the Constitution. The Court is of the opinion that the nature of the issue posed in those appeals now before the Court involving the Fourteenth Amendment, and also the effect of any decision which it may render in those cases, are such that it would be well to consider, simultaneously, the constitutional issue posed in the case of Bolling et al. v. Sharpe et al. To the end that arguments may be heard together in all four of these cases, the Court will continue the Brown and Briggs cases on its docket. Probable jurisdiction is noted in Davis et al. v. County School Board of Prince Edward County et al. Arguments will be heard in these three cases at the first argument session in December. The Court will entertain a petition for certiorari in the case of Bolling et al. v. Sharpe et al., 28 U. S. C. §§ 1254 (1), 2101 (e), which if presented and granted will afford opportunity for argument of the case immediately following the arguments in the three appeals now Pe"ding' It ii so ordered. Mr. Justice Douglas dissents from postponing argument and decision in the three cases presently here for Bolling et al. v. Sharpe et al., in the United States Court of Appeals for the District of Columbia Circuit. 4 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. CIVIL AERONAUTICS BOARD et al. v. AMERICAN AIR TRANSPORT, INC. et al. CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 126. Certificate dismissed October 20, 1952. A certificate of the Court of Appeals certifying to this Court, under 28 U. S. C. § 1254 (3), questions concerning the validity of a regulation of the Civil Aeronautics Board is dismissed on the authority of cases cited in the opinion; and an application of the Board for an order requiring the Court of Appeals to send up the entire record, thus bringing up “the entire matter in controversy” for decision, is denied. Pp. 4-5. The United States District Court for the District of Columbia enjoined enforcement of a regulation of the Civil Aeronautics Board unless and until plaintiffs were afforded “a full and fair evidentiary hearing with respect thereto.” See 98 F. Supp. 660. On appeal to the United States Court of Appeals for the District of Columbia Circuit, three judges were unable to agree on a disposition of the case and certified to this Court questions concerning the validity of the regulation. The Civil Aeronautics Board applied to this Court under Rule 37 (2) of the Rules of this Court for an order requiring the Court of Appeals to send up the entire record. Certificate dismissed and order denied, pp. 4-5. Solicitor General Perlman and Emory T. Nunneley, Jr. for the Civil Aeronautics Board. Per Curiam. The certificate is dismissed. Labor Board n. White Swan Co., 313 U. S. 23 (1941); Lowden v. Northwestern National Bank & Trust Co., 298 U. S. 160 (1936); White CIVIL AERO. BD. v. AM. AIR TRANSP. 5 4 Opinion of the Court. v. Johnson, 282 U. S. 367 (1931); United States v. Union Pacific R. Co., 168 U. S. 505 (1897). The Civil Aeronautics Board has applied to this Court for an order requiring the Court of Appeals to send up the entire record. To grant such an application would bring “the entire matter in controversy” before the Court for decision. 28 U. S. C. § 1254 (3). Since the certificate must be dismissed, the Court should not exercise its discretionary power to bring up “the entire matter in controversy” for review. See Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 248 U. S. 178 (1918). Perhaps the Court of Appeals may now wish to hear this case en banc to resolve the deadlock indicated in the certificate and give full review to the entire case. This Court does not normally review orders of administrative agencies in the first instance; and the Court does not desire to take any action at this time which might foreclose the possibility of such review in the Court of Appeals. For these reasons the Board’s application is denied. Mr. Justice Douglas dissents. 226612 0—53------------6 6 OCTOBER TERM, 1952. Syllabus. 344 U. S. ARROWSMITH et al., EXECUTORS, et al. v. COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 51. Argued October 24, 1952.—Decided November 10, 1952. In 1937 two taxpayers decided to liquidate and divide the proceeds of a corporation in which each owned 50% of the stock. Partial distributions were made in 1937, 1938, and 1939 and a final one in 1940; and the profits thereon were reported by the taxpayers in their income tax returns as “capital gains.” In 1944 a judgment was rendered against the corporation and against one of the taxpayers individually. Each of the two taxpayers paid half of this judgment and deducted 100% of the amount so paid as an ordinary business loss in his income tax return for 1944. Held: Under §§23 (g) and 115 (c) of the Internal Revenue Code, these losses should have been treated as “capital losses,” since they were paid because of liability imposed on the taxpayers as transferees of liquidation distribution assets. Pp. 7-9. (a) A different result is not required because of the principle that each taxable year is a separate unit for tax accounting purposes. Pp. 8-9. (b) Nor is a different result required as to one of the taxpayers because the judgment was against him personally as well as against the corporation. P. 9. 193 F. 2d 734, affirmed. The Commissioner of Internal Revenue determined that a judgment loss paid by petitioners as transferees of liquidation assets of a corporation were “capital losses” under the Internal Revenue Code. The Tax Court held that they were ordinary business losses. 15 T. C. 876. The Court of Appeals reversed. 193 F. 2d 734. This Court granted certiorari. 343 U. S. 976. Affirmed, p. 9. George R. Sherriff argued the cause for petitioners. With him on the brief was Joseph C. Woodie. ARROWSMITH v. COMMISSIONER. 7 6 Opinion of the Court. Helen Goodner argued the cause for respondent. With her on the brief were Acting Solicitor General Stern, Assistant Attorney General Lyon, Philip Elman, Ellis N. Slack and Harry Baum. Briefs of amici curiae supporting petitioners were filed by Norman D. Keller for Edgar J. Kaufmann; and by John W. Burke. Mr. Justice Black delivered the opinion of the Court. This is an income tax controversy growing out of the following facts as shown by findings of the Tax Court. In 1937 two taxpayers, petitioners here, decided to liquidate and divide the proceeds of a corporation in which they had equal stock ownership.* Partial distributions made in 1937, 1938, and 1939 were followed by a final one in 1940. Petitioners reported the profits obtained from this transaction, classifying them as capital gains. They thereby paid less income tax than would have been required had the income been attributed to ordinary business transactions for profit. About the propriety of these 1937-1940 returns, there is no dispute. But in 1944 a judgment was rendered against the old corporation and against Frederick R. Bauer, individually. The two taxpayers were required to and did pay the judgment for the corporation, of whose assets they were transferees. See Phillips-Jones Corp. v. Parmley, 302 U. S. 233, 235-236. Cf. I. R. C., § 311 (a). Classifying the loss as an ordinary business one, each took a tax deduction for 100% of the amount paid. Treatment of the loss as a capital one would have allowed deduction of a much smaller amount. See I. R. C., § 117 (b), (d) (2) and (e). The Commis- *At dissolution the corporate stock was owned by Frederick P. Bauer and the executor of Davenport Pogue’s estate. The parties here now are Pogue’s widow, Bauer’s widow, and the executor of Bauer’s estate. 8 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. sioner viewed the 1944 payment as part of the original liquidation transaction requiring classification as a capital loss, just as the taxpayers had treated the original dividends as capital gains. Disagreeing with the Commissioner the Tax Court classified the 1944 payment as an ordinary business loss. 15 T. C. 876. Disagreeing with the Tax Court the Court of Appeals reversed, treating the loss as “capital.” 193 F. 2d 734. This latter holding conflicts with the Third Circuit’s holding in Commissioner n. Switlik, 184 F. 2d 299. Because of this conflict, we granted certiorari. 343 U. S. 976. I. R. C., § 23 (g) treats losses from sales or exchanges of capital assets as “capital losses” and I. R. C., § 115 (c) requires that liquidation distributions be treated as exchanges. The losses here fall squarely within the definition of “capital losses” contained in these sections. Taxpayers were required to pay the judgment because of liability imposed on them as transferees of liquidation distribution assets. And it is plain that their liability as transferees was not based on any ordinary business transaction of theirs apart from the liquidation proceedings. It is not even denied that had this judgment been paid after liquidation, but during the year 1940, the losses would have been properly treated as capital ones. For payment during 1940 would simply have reduced the amount of capital gains taxpayers received during that year. It is contended, however, that this payment which would have been a capital transaction in 1940 was transformed into an ordinary business transaction in 1944 because of the well-established principle that each taxable year is a separate unit for tax accounting purposes. United States v. Lewis, 340 U. S. 590; North American Oil n. Burnet, 286 U. S. 417. But this principle is not breached by considering all the 1937-1944 liquidation transaction events in order properly to classify the nature ARROWSMITH v. COMMISSIONER. 9 6 Douglas, J., dissenting. of the 1944 loss for tax purposes. Such an examination is not an attempt to reopen and readjust the 1937 to 1940 tax returns, an action that would be inconsistent with the annual tax accounting principle. The petitioner Bauer’s executor presents an argument for reversal which applies to Bauer alone. He was liable not only by reason of being a transferee of the corporate assets. He was also held liable jointly with the original corporation, on findings that he had secretly profited because of a breach of his fiduciary relationship to the judgment creditor. Trounstine v. Bauer, Pogue & Co., 44 F. Supp. 767, 773; 144 F. 2d 379, 382. The judgment was against both Bauer and the corporation. For this reason it is contended that the nature of Bauer’s tax deduction should be considered on the basis of his liability as an individual who sustained a loss in an ordinary business transaction for profit. We agree with the Court of Appeals that this contention should not be sustained. While there was a liability against him in both capacities, the individual judgment against him was for the whole amount. His payment of only half the judgment indicates that both he and the other transferee were paying in their capacities as such. We see no reason for giving Bauer a preferred tax position. Affirmed. Mr. Justice Douglas, dissenting. I agree with Mr. Justice Jackson that these losses should be treated as ordinary, not capital, losses. There were no capital transactions in the year in which the losses were suffered. Those transactions occurred and were accounted for in earlier years in accord with the established principle that each year is a separate unit for tax accounting purposes; See United States v. Lewis, 340 U. S. 590. I have not felt, as my dissent in the Lewis case indicates, that the law made that an inexora- 10 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. ble principle. But if it is the law, we should require observance of it—not merely by taxpayers but by the Government as well. We should force each year to stand on its own footing, whoever may gain or lose from it in a particular case. We impeach that principle when we treat this year’s losses as if they diminished last year’s gains. Mr. Justice Jackson, whom Mr. Justice Frankfurter joins, dissenting. This problem arises only because the judgment was rendered in a taxable year subsequent to the liquidation. Had the liability of the transferor-corporation been reduced to judgment during the taxable year in which liquidation occurred, or prior thereto, this problem, under the tax laws, would not arise. The amount of the judgment rendered against the corporation would have decreased the amount it had available for distribution, which would have reduced the liquidating dividends proportionately and diminished the capital gains taxes assessed against the stockholders. Probably it would also have decreased the corporation’s own taxable income. Congress might have allowed, under such circumstances, tax returns of the prior year to be reopened or readjusted so as to give the same tax results as would have obtained had the liability become known prior to liquidation. Such a solution is foreclosed to us and the alternatives left are to regard the judgment liability fastened by operation of law on the transferee as an ordinary loss for the year of adjudication or to regard it as a capital loss for such year. This Court simplifies the choice to one of reading the English language, and declares that the losses here come “squarely within” the definition of capital losses contained within two sections of the Internal Revenue ARROWSMITH v. COMMISSIONER. 11 6 Jackson, J., dissenting. Code. What seems so clear to this Court was not seen at all by the Tax Court, in this case or in earlier consideration of the same issue; nor was it grasped by the Court of Appeals for the Third Circuit. Commissioner v. Switlik, 184 F. 2d 299 (1950). I find little aid in the choice of alternatives from arguments based on equities. One enables the taxpayer to deduct the amount of the judgment against his ordinary income which might be taxed as high as 87%, while if the liability had been assessed against the corporation prior to liquidation it would have reduced his capital gain which was taxable at only 25% (now 26%). The consequence may readily be characterized as a windfall (regarding a windfall as anything that is left to a taxpayer after the collector has finished with him). On the other hand, adoption of the contrary alternative may penalize the taxpayer because of two factors: (1) since capital losses are deductible only against capital gains, plus $1,000, a taxpayer having no net capital gains in the ensuing five years would have no opportunity to deduct anything beyond $5,000; and (2) had the liability been discharged by the corporation, a portion of it would probably in effect have been paid by the Government, since the corporation could have taken it as a deduction, while here the total liability comes out of the pockets of the stockholders. Solicitude for the revenues is a plausible but treacherous basis upon which to decide a particular tax case. A victory may have implications which in future cases will cost the Treasury more than a defeat. This might be such a case, for anything I know. Suppose that subsequent to liquidation it is found that a corporation has undisclosed claims instead of liabilities and that under applicable state law they may be prosecuted for the benefit of the stockholders. The logic of the Court’s decision here, if adhered to, would result in a lesser return to the 12 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. Government than if the recoveries were considered ordinary income. Would it be so clear that this is a capital loss if the shoe were on the other foot? Where the statute is so indecisive and the importance of a particular holding lies in its rational and harmonious relation to the general scheme of the tax law, I think great deference is due the twice-expressed judgment of the Tax Court. In spite of the gelding of Dobson n. Commissioner, 320 U. S. 489, by the recent revision of the Judicial Code, Act of June 25, 1948, § 36, 62 Stat. 991-992, I still think the Tax Court is a more competent and steady influence toward a systematic body of tax law than our sporadic omnipotence in a field beset with invisible boomerangs. I should reverse, in reliance upon the Tax Court’s judgment more, perhaps, than my own. SANFORD v. KEPNER. 13 Opinion of the Court. SANFORD v. KEPNER. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 46. Argued October 24, 1952.—Decided November 10, 1952. In a proceeding under R. S. § 4915, 35 U. S. C. § 63, brought by an applicant for a patent to review an adverse decision of a board of interference examiners, when a district court has found against petitioner on the issue of priority of invention it need not go further and consider the validity of a rival applicant’s claim to a patent on the same device. Pp. 13-16. 195 F. 2d 387, affirmed. In a proceeding under R. S. § 4915, 35 U. S. C. § 63, the District Court found against petitioner on an issue of priority of invention and dismissed the bill without considering the validity of a rival applicant’s claim to a patent on the same device. 99 F. Supp. 221. The Court of Appeals affirmed. 195 F. 2d 387. This Court granted certiorari. 343 U. S. 976. Affirmed, p. 16. J. Preston Swecker argued the cause and filed a brief for petitioner. Hugh M. Morris argued the cause for respondent. With him on the brief were Wilmer Mechlin and George R. Ericson. Mr. Justice Black delivered the opinion of the Court. Claiming he was the original and sole inventor of a mechanical device, the respondent Kepner asked the United States Patent Office for a patent. Later the petitioner Sanford filed a similar application making the same claim. As authorized by R. S. § 4904, 35 U. S. C. § 52, the Commissioner of Patents directed a board of interference examiners to hold hearings and determine the 14 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. dispute over priority of invention—which of the two first used the device. The Board decided for respondent Kep-ner. Sanford’s application for patent was accordingly refused. As authorized by R. S. § 4915, 35 U. S. C. § 63, Sanford brought this bill in equity praying that he be adjudged inventor of the device and entitled to a patent. Sanford also prayed that Kepner’s claims be adjudged unpatentable, charging that many previous patents had been granted on Kepner’s device, some of which had expired. Agreeing with the Board of Interference Examiners, the District Court found against Sanford on the issue of prior use. Since this was enough to justify refusal to issue Sanford a patent, the District Court declined to go further and consider Kepner’s claim to a patent. Accordingly Sanford’s bill was dismissed. 99 F. Supp. 221. Agreeing with the District Court, the Court of Appeals affirmed. 195 F. 2d 387. The circuits have different views concerning the duty of district courts to consider and adjudicate questions of invention and patentability when parties urge them in R. S. § 4915 proceedings.* To settle these differences we granted certiorari. 343 U. S. 976. So far as relevant to the precise question here, R. S. § 4915, as now contained in 35 U. S. C. § 63, reads: “. . . whenever any applicant is dissatisfied with the decision of the board of interference examiners, the applicant . . . may have remedy by bill in equity . . . and the court . . . may adjudge that such applicant is entitled, according to law, to receive a patent for his invention .... And such *In accord with the Court of Appeals, Heston v. Kuhlke, 179 F. 2d 222; Smith n. Carter Carburetor Corp., 130 F. 2d 555; Cleveland Trust Co. v. Berry, 99 F. 2d 517. Contra: Minneapolis Honeywell Regulator Co. n. Milwaukee Gas Specialty Co., 174 F. 2d 203; Knutson v. Gallsworthy, 82 U. S. App. D. C. 304, 164 F. 2d 497. SANFORD v. KEPNER. 15 13 Opinion of the Court. adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication and otherwise complying with the requirements of law.” The obvious purpose of the quoted part of R. S. § 4915 is to give a judicial remedy to an applicant who has been finally denied a patent because of a Patent Office decision against him and in favor of his adversary on the question of priority. When the trial court decides this factual issue of priority against him and thus affirms the refusal of the patent by the Patent Office, he has obtained the full remedy the statute gives him. Only if he wins on priority may he proceed. In that event, the statute says, the court may proceed to “adjudge that such applicant is entitled, according to law, to receive a patent for his invention . . . ” So adjudging, it may authorize issuance of the patent. But judicial authorization of issuance implies judicial sanction of patentability and for this reason this Court has said, “It necessarily follows that no adjudication can be made in favor of the applicant, unless the alleged invention for which a patent is sought is a patentable invention.” Hill v. Wooster, 132 U. S. 693, 698. The principle of the Hill case is that the court must decide whether claims show patentable inventions before authorizing the Commissioner to issue a patent. No part of its holding or wording nor of that in Hoover Co. v. Coe, 325 U. S. 79, requires us to say R. S. § 4915 compels a district court to adjudicate patentability at the instance of one whose claim is found to be groundless. Sanford’s claim was found to be groundless. It is unlikely that this equity proceeding would develop a full investigation of validity. There would be no attack on the patent comparable to that of an infringement action. Here the very person who claimed an invention 16 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. now asks to prove that Kepner’s similar device was no invention at all because of patents \issued long before either party made claim for his discovery. There is no real issue of invention between the parties here and we see no reason to read into the statute a district court’s compulsory duty to adjudicate validity. Affirmed. F. P. C. v. IDAHO POWER CO. 17 Syllabus. FEDERAL POWER COMMISSION v. IDAHO POWER CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 12. Argued October 20-21, 1952.—Decided November 10, 1952. Under § 4 (e) of the Federal Power Act, the Federal Power Commission issued to a power company a license to construct, operate and maintain a hydroelectric project including a dam, power plant and transmission lines on public lands, subject to the condition that the company permit the interconnection of transmission facilities of the United States with the company’s transmission lines and the transfer over those lines of energy generated in power plants owned by the United States. The Court of Appeals held that the Commission had no authority to attach these conditions and entered a judgment that the Commission’s order “be modified” and that the cause be remanded to the Commission “for the entry of an order in accordance with the opinion of this Court.” On motion of the Commission for clarification, the court entered a new judgment, stating that the order of the Commission “be, and it is hereby, modified by striking therefrom paragraph (F) thereof [containing the conditions], and that the order of the Federal Power Commission herein as thus modified be, and it is hereby, affirmed.” Held: 1. When the Court of Appeals, by its second judgment, decided that the license should issue without the conditions, it usurped an administrative function. Pp. 19-20. (a) The power of the Court of Appeals under § 313 (b) “to affirm, modify, or set aside” an order of the Commission “in whole or in part” does not authorize it to exercise an essentially administrative function. P. 21. (b) Whether the objective of § 10 (a) of the Act may be achieved if the contested conditions are stricken from the Commission’s order is an administrative, not a judicial, decision. P. 21. 2. When read in the context of §§ 4 and 10 of the Act, § 6, making each license subject to conditions prescribed by the Commission, authorizes the Commission to attach the conditions im- 18 OCTOBER TERM, 1952. Syllabus. 344 U. S. posed here; and that authority is not impaired by §201 (f) of Part II of the Act, providing that no provision of Part II shall apply to the United States. Pp. 21-24. (a) Protection of the public domain, conservation of waterpower resources, development of comprehensive plans for waterways—each might on the facts of a case be sufficient to authorize the grant of permission to a public utility company to use the public domain provided it agreed to use its excess capacity to transmit government power. P. 23. (b) The powers conferred by Part II of the Act to regulate public utilities engaged in the interstate transmission and sale of electric energy cannot be construed as a repeal by implication of the powers conferred by Part I to regulate public lands or the use of navigable streams. Pp. 23-24. • 3. A petition to this Court for certiorari, filed within 90 days after the Court of Appeals’ second judgment, though more than 90 days after the first, was timely. Pp. 19-20. 4. There is no merit in the contention that the Commission’s motion for clarification was untimely under the rules of the Court of Appeals governing petitions for rehearing, since, assuming that the motion was a petition for rehearing within the meaning of the rules, it was entertained and considered on the merits. P. 21, n. 1. 89 U. S. App. D. C. 1, 189 F. 2d 665, reversed. The Federal Power Commission issued to respondent power company, under § 4 (e) of the Federal Power Act, a conditional license to construct, operate and maintain a hydroelectric project. The Court of Appeals modified the Commission’s order by striking out the conditions, and affirmed the order as thus modified. 89 U. S. App. D. C. 1, 189 F. 2d 665. This Court granted certiorari. 342 U. S. 941. Reversed, p. 24. Philip Elman argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, As-sistant Attorney General Baldridge, Paul A. Sweeney, Morton Liftin, Bradford Ross and Willard W. Gatchell. Harry A. Poth, Jr. and A. C. Inman argued the cause and filed a brief for respondent. F. P. C. v. IDAHO POWER CO. 19 17 Opinion of the Court. Mr. Justice Douglas delivered the opinion of the Court. Respondent applied to petitioner under § 4 (e) of the Federal Power Act, 41 Stat. 1065, 49 Stat. 840, 16 U. S. C. § 797 (e), for a license to construct, operate, and maintain a hydroelectric project (known as the Bliss development) on the Snake River in southern Idaho. This project included a dam and power plant occupying some 500 acres of lands of the United States and two transmission lines. These lines for most of their length crossed lands of the United States and joined the company’s interconnected primary transmission system. The United States has power projects in this area; and the Bureau of Reclamation and the Bonneville Power Administration were contemplating the construction of a transmission line which would connect the same areas as respondent’s proposed lines. Therefore the Federal Power Commission, on the suggestion of the Secretary of the Interior, authorized the project on conditions specified in paragraph (F) of the order. These conditions, in summary, were that the licensee permit the interconnection of transmission facilities of the United States with the two transmission lines, and the transfer over those lines of energy generated in power plants owned by the United States “in such amounts as will not unreasonably interfere” with the licensee’s use of the lines, the United States to pay the licensee for government power so transmitted. Respondent petitioned for review of the Commission’s order. The Court of Appeals held that the Commission had no authority to attach the condition. It entered a judgment that the Commission’s order “be modified” and that the cause be remanded to the Commission “for the entry of an order in accordance with the opinion of this Court.” That was on May 10, 1951. 89 U. S. App. D. C. 1, 189 F. 2d 665. The Commission moved for a 20 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. clarification of the judgment. On September 21, 1951, the Court of Appeals entered a new judgment, stating that the order of the Commission “be, and it is hereby, modified by striking therefrom paragraph (F) thereof, and that the order of the Federal Power Commission herein as thus modified be, and it is hereby, affirmed.” The petition for certiorari was filed within 90 days of the amended order but more than 90 days after the first order. The question which therefore lies at the threshold of the case is whether the petition is timely. See 28 U. S. C. §2101 (c). First. If the court did no more by the second judgment than to restate what it had decided by the first one, Department of Banking v. Pink, 317 U. S. 264, would apply and the 90 days would start to run from the first judgment. But the court by the second judgment undertook to modify the license. By the first judgment it did no more than keep the Commission within the bounds set by its opinion. On remand the Commission might have reissued the order without the contested conditions or it might have withheld its consent to any license. It is the Commission’s judgment on which Congress has placed its reliance for control of licenses. See §§ 6, 10 (a), 10 (g). When the court decided that the license should issue without the conditions, it usurped an administrative function. There doubtless may be situations where the provision excised from the administrative order is separable from the remaining parts or so minor as to make remand inappropriate. But the guiding principle, violated here, is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the Commission for reconsideration. See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134; Federal Trade Commission n. Morton Salt Co., 334 U. S. 37. F. P. C. v. IDAHO POWER CO. 21 17 Opinion of the Court. The Court, it is true, has power “to affirm, modify, or set aside” the order of the Commission “in whole or in part.” § 313 (b). But that authority is not power to exercise an essentially administrative function. See Ford Motor Co. v. Labor Board, 305 U. S. 364, 373-374; Siegel Co. v. Federal Trade Commission, 327 U. S. 608. The nature of the determination is emphasized by § 10 (a) which specifies that the project adopted “shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan . . . for the improvement and utilization of water-power development, and for other beneficial public uses.” Whether that objective may be achieved if the contested conditions are stricken from the order is an administrative, not a judicial, decision.1 Second. The power of Congress over public lands, conferred by Art. IV, § 3 of the Constitution, is “without limitations,” as we stated in United States v. San Francisco, 310 U. S. 16, 29. The Court of Appeals, while recognizing that principle, held that Congress had not granted the Commission authority to condition the use of public lands by requiring a public utility to carry government power. It relied on § 201 (f) of the Act which says that “No provision in this Part shall apply to . . . the United States . . . The Part referred to is Part II of the Act which set up a system of control over the transmission of electric energy in interstate commerce. It granted the Commission authority, among other things, to direct a public utility to establish physical connection of its transmission facilities with the facilities of other persons en- 1 An argument is made that the Commission’s motion for clarification was untimely under the rules of the Court of Appeals governing petitions for rehearing. Assuming, arguendo, that the motion was a petition for rehearing within the meaning of those rules, it was entertained and considered on the merits (cf. Bowman v. Loperena, 311 U. S. 262; Pfister v. Finance Corp., 317 U. S. 144, 149) and the new judgment entered was erroneous. 226612 0—53-----------7 22 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. gaged in the transmission or sale of electric energy. § 202 (b). Since that power was not extended to the United States, the court concluded that a license under Part I of the Act could not be conditioned on an interconnection with federal power. Part I and Part II provide different regulatory schemes. Part II is an exercise of the commerce power over public utilities engaged in the interstate transmission and sale of electric energy. See S. Rep. No. 621, 74th Cong., 1st Sess., p. 17. Part II does not undertake to regulate public lands or the use of navigable streams. That function is covered by Part I, which dates back to the Federal Water Power Act of 1920, 41 Stat. 1063. Section 4 (e) of Part I gives the Commission power to issue licenses to private or public bodies for the purpose of “constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States . . . ” (Italics added.) By § 4 (g) the Commission is given authority to investigate the actual or intended occupancy of “public lands” for the purpose of developing electric power and to issue such order as it may find “appropriate, expedient, and in the public interest to conserve and utilize the . . . water-power resources of the region.” As already noted, § 10 (a) provides that no license shall be granted unless in the judgment of the Commission the project “will be best adapted to a comprehensive plan . . . for the improvement and utilization of water-power development, and for other beneficial public uses . . .; and if necessary F. P. C. v. IDAHO POWER CO. 23 17 Opinion of the Court. in order to secure such plan the Commission shall have authority to require the modification of any project . . . before approval.” 2 Under these sections the Commission is plainly made the guardian of the public domain. The requirement that existing lines be fully utilized before additional lines are authorized would seem to be relevant to a decision under § 10 (a) that the project submitted was consonant with the “comprehensive plan” for the waterway. And the Commission might well determine under § 4 (g) that if public lands are to be used for the transmission of power, conservation of the “water-power resources of the region” requires that public power as well as private power be transmitted over them. Sections 4 and 10 speak specifically of the public domain—waterways and public lands. Section 6 makes each license subject to all the terms and conditions of the Act and to “such further conditions, if any, as the Commission shall prescribe in conformity with this Act. . . .” Section 6, read in the context of §§ 4 and 10, would seem to give ample authority to the Commission to attach the conditions imposed here. Protection of the public domain, conservation of water-power resources, development of comprehensive plans for the waterways—each of these might on the facts of a case be sufficient to authorize the grant of permission to a public utility company to use the public domain provided it agreed to use its excess capacity to transmit government power. It is difficult for us to read § 201 (f) as in any way affecting that power. Sections 201 (f) and 202 deal with interconnections of facilities generally. They do not extend the new powers granted by Part II to government 2 Sections 4 (e) and 10 (a) appeared in the Federal Water Power Act of 1920, 41 Stat. 1063, 1065, 1068. Section 4 (g) was added by the Public Utility Holding Company Act of 1935, 49 Stat. 838, 841. 24 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. lines. On the other hand they do not purport to change or alter any power granted under Part I. They do not deal with the grant of licenses. They do not purport to lay down conditions for the issuance of licenses for use of the public domain. We therefore cannot construe the limitation on the new powers conferred by Part II as a repeal by implication of the powers over licensees that are deeply engrained in Part I of the Act and put there by the Congress for the purpose of protecting the public domain. Reversed. Mr. Justice Burton and Mr. Justice Clark took no part in the consideration or decision of this case. NATHANSON v. LABOR BOARD. 25 Syllabus. NATHANSON, TRUSTEE IN BANKRUPTCY, v. NATIONAL LABOR RELATIONS BOARD. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 33. Argued October 23, 1952.—Decided November 10, 1952. The National Labor Relations Board ordered a company to pay certain employees back pay. After an involuntary petition in bankruptcy had been filed against the company, the Court of Appeals decreed enforcement of the Board’s order. The Board filed in the bankruptcy proceeding a proof of claim for the back pay. Held: 1. The Board is a “creditor” as respects the back-pay awards, within the meaning of the Bankruptcy Act. Pp. 26-27. 2. The Board’s back-pay order is a provable claim in bankruptcy—as a debt founded upon an “implied” contract within the meaning of § 63 (a) (4) of the Bankruptcy Act. P. 27. 3. The Board’s claim is not a debt due to the United States within the meaning of R. S. § 3466, and it is not entitled to priority under § 64 (a) (5) of the Bankruptcy Act, though it is entitled to such priority as wage claims enjoy under §64 (a) (2). Bramwell v. U. S. Fidelity Co., 269 U. S. 483, distinguished. Pp. 27-29. 4. Computation of the amount of the back-pay award was properly referred to the Board by the bankruptcy court. Pp. 29-30. (a) The fixing of the back pay is one of the functions confided to the Board as an administrative matter. Pp. 29-30. (b) Wise administration demands that the bankruptcy court accommodate itself to the administrative process and refer to the Board the liquidation of the claim, giving the Board a reasonable time for its administrative determination. P. 30. 194 F. 2d 248, reversed. A proof of claim filed by the National Labor Relations Board, based on a back-pay award against the bankrupt, was disallowed by the referee in bankruptcy. The District Court set aside the disallowance. 100 F. Supp. 489. The Court of Appeals affirmed. 194 F. 2d 248. This 26 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Court granted certiorari. 343 U. S. 962. Reversed and remanded, p. 31. Joseph Kruger argued the cause for petitioner. With him on the brief were Alan J. Dimond and Henry Friedman. Mozart G. Ratner argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, George J. Bott, David P. Findling, Owsley Vose and Irving M. Herman. Mr. Justice Douglas delivered the opinion of the Court. Respondent, the National Labor Relations Board, issued a complaint against the present bankrupt company alleging unfair labor practices, and, after appropriate proceedings, ordered the bankrupt to pay certain employees back pay which they had lost on account of an unfair labor practice of the bankrupt. Before the order was enforced by the Court of Appeals an involuntary petition had been filed against the company. Thereafter the Court of Appeals entered its decree, enforcing the Board’s order. In due course the Board filed a proof of claim for the back pay which was disallowed by the referee. The District Court set aside the disallowance. 100 F. Supp. 489. The Court of Appeals affirmed (194 F. 2d 248) holding that the Board’s order is a provable claim in bankruptcy, that the Board can liquidate the claim, and that it is entitled to priority as a debt owing to the United States under § 64 (a)(5) of the Act. The petition for certiorari was granted because of a conflict on the question of priority between that decision and Labor Board v. Killoren, 122 F. 2d 609, decided by the Court of Appeals for the Eighth Circuit. NATHANSON v. LABOR BOARD. 27 25 Opinion of the Court. We think the Board is a creditor as respects the back pay awards, within the meaning of the Bankruptcy Act.1 The Board is the public agent chosen by Congress to enforce the National Labor Relations Act. Amalgamated Workers v. Edison Co., 309 U. S. 261, 269. A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice. Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197. Congress has made the Board the only party entitled to enforce the Act. A back pay order is a command to pay an amount owed the Board as agent for the injured employees. The Board is therefore a claimant in the amount of the back pay. The claim is provable as a debt founded upon an “implied” contract within the meaning of § 63 (a) (4) of the Bankruptcy Act.2 It is an indebtedness arising out of an obligation imposed by statute—an incident fixed by law to the employer-employee relationship. A liability based on quasi-contract is one on an “implied” contract within the meaning of § 63 (a)(4) of the Bankruptcy Act. See Brown v. O’Keefe, 300 U. S. 598, 606-607. We do not, however, agree with the lower court that this claim, enforceable by the Board, is a debt due to the United States within the meaning of R. S. § 3466, and therefore entitled to priority under § 64 (a) (5) of the Bankruptcy Act. It does not follow that because the Board is an agency of the United States, any debt owed it is a debt owing the United States within the meaning of R. S. § 3466. The priority granted by that stat- 1 “ 'Creditor’ shall include anyone who owns a debt, demand, or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy.” 11 U. S. C. § 1 (11). 2 “Debts of the bankrupt may be proved and allowed against his estate which are founded upon ... (4) an open account, or a contract express or implied.” § 63 (a) (4); 11 U. S. C. § 103 (a) (4). 28 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ute was designed “to secure an adequate revenue to sustain the public burthens and discharge the public debts.” See United States n. State Bank, 6 Pet. 29, 35. There is no function here of assuring the public revenue. The beneficiaries of the claims are private persons as was the receiver in American Surety Co. n. Akron Savings Bank, 212 U. S. 557. It is true that Bramwell n. U. S. Fidelity Co., 269 U. S. 483, extended the priority to a claim of the United States for Indian moneys. But that case rests on the status of the Indians as wards of the United States (see Bowling n. United States, 233 U. S. 528) and the continuing responsibility which it has for the protection of their interests. See United States v. Rickert, 188 U. S. 432, 444; Board of Commissioners v. Seber, 318 U. S. 705. We cannot extend that reasoning so as to give priority to a claim which the United States is collecting for the benefit of a private party. See American Surety Co. n. Akron Savings Bank, supra. The beneficiaries here are not wards of the Federal Government; they are wage claimants who were discriminated against by their employer. The Board has eliminated the discrimination by the back pay order; and enforcement of its order has been directed by the Court of Appeals. The full sanction of the National Labor Relations Act has therefore been placed behind the order. The Board argues that the interest of the United States in eradicating unfair labor practices is so great that the back pay order should be given the additional sanction of priority in payment. Whether that should be done is a legislative decision. The contest now is no longer between employees and management but between various classes of creditors. The policy of the National Labor Relations Act is fully served by recognizing the claim for back pay as one to be paid from the estate. The question whether it should be paid in preference to other creditors is a question to be answered from NATHANSON v. LABOR BOARD. 29 25 Opinion of the Court. the Bankruptcy Act. When Congress came to claims for unpaid wages it did not grant all of them priority. It limited the priority to $600 for each claimant and even then only allowed it as respects wages earned within three months before the date of the commencement of the proceedings. §64 (a)(2). We would depart from that policy if we granted the priority to one class of wage claimants irrespective of the amount of the claim or the time of its accrual. The theme of the Bankruptcy Act is “equality of distribution” (Sampsell v. Imperial Paper Corp., 313 U. S. 215, 219); and if one claimant is to be preferred over others, the purpose should be clear from the statute. We can find in the Bankruptcy Act no warrant for giving these back pay awards any different treatment than other wage claims enjoy. The trustee claims that the liquidation of the back pay award should not have been referred to the Board. Section 10 (c) of the National Labor Relations Act authorizes the Board, once an unfair labor practice has been found, to require, inter alia, the person who committed it to “take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” The fixing of the back pay is one of the functions confided solely to the Board. At the time an order of the Board is enforced the amount of back pay is often not computed. Once an enforcement order issues the Board must work out the details of the back pay that is due and the reinstatement of employees that has been directed. This may be done by negotiation; or it may have to be done in a proceeding before the Board. The computation of the amount due may not be a simple matter. It may require, in addition to the projection of earnings which the employee would have enjoyed had he not been discharged and the computation of actual interim earnings, the determination whether the employee wilfully incurred 30 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. losses, whether the back pay period should be terminated because of offers of reinstatement or the withdrawal of the employee from the labor market, whether the employee received equivalent employment, and the like. See Phelps Dodge Corp. n. Labor Board, supra, 190 et seq. Congress made the relation of remedy to policy an administrative matter, subject to limited judicial review, and chose the Board as its agent for the purpose. The bankruptcy court normally supervises the liquidation of claims. See Gardner v. New Jersey, 329 U. S. 565, 573. But the rule is not inexorable. A sound discretion may indicate that a particular controversy should be remitted to another tribunal for litigation. See Thompson v. Magnolia Co., 309 U. S. 478, 483. And where the matter in controversy has been entrusted by Congress to an administrative agency, the bankruptcy court normally should stay its hand pending an administrative decision. That was our ruling in Smith v. Hoboken R. Co., 328 U. S. 123, and Thompson v. Texas M. R. Co., 328 U. S. 134, where we directed the reorganization court to await administrative rulings by the Interstate Commerce Commission before adjudicating the controversies before it. Like considerations are relevant here. It is the Board, not the referee in bankruptcy nor the court, that has been entrusted by Congress with authority to determine what measures will remedy the unfair labor practices. We think wise administration therefore demands that the bankruptcy court accommodate itself to the administrative process and refer to the Board the liquidation of the claim, giving the Board a reasonable time for its administrative determination. In summary, we agree with the Court of Appeals that the claim was provable by the Board and that the computation of the amount of the award was properly referred to the Board. But since we disagree with the rul- NATHANSON v. LABOR BOARD. 31 25 Jackson, J., dissenting. ing on the priority of the claim we reverse the judgment and remand the cause for proceedings in conformity with this opinion. It is so ordered. Mr. Justice Jackson, with whom Mr. Justice Black joins, dissenting. I think we should affirm the judgment below. I agree that the claim is one which can be proved in bankruptcy by the United States. The same reasoning which enables the Government to assert the claim would seem to enable it to assert the priority. The claims which the United States asserts herein are something more than merely private indebtedness. The debtor’s liability, enforceable only by the Government, is one of the most important sanctions to effectuate the policy of the National Labor Relations Act. That is one, at least, of the reasons why Congress did not see fit to leave prosecution of these usually small claims to scattered and often impecunious individual wage earners in a multiplicity of actions. I see nothing in the policy of the Bankruptcy Act which precludes these claims, allowed in the Government’s right and in its name, from sharing in the Government’s general priority. Title 11, § 104 (a) sets up five levels of priority: first is administration expenses; second, wages not to exceed $600 to each claimant which have been earned within three months before commencement of bankruptcy proceedings; third, certain costs and expenses not material here; fourth, taxes legally due and owing by the bankrupt to the United States, or any state or any subdivision thereof; fifth, debts owing to any person, including the United States, who under its laws is entitled to priority. It can hardly be questioned that Labor Board awards constitute wages or their equivalent, but beneficiaries of 32 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. these awards rarely can comply with the three-months time limitation for wage priority because of the lag occasioned by Labor Board proceedings to establish the unlawfulness of their discharge by the employer. If they could do so, their claims would doubtless take the second priority and be paid in preference to everything except administration expenses. The judgment below denies these claims second priority but admits them to the fifth class. Ahead of them, in the fourth class, are all taxes owing to the United States and to any state or subdivision, and this obviously is the priority intended to protect the federal revenues. Only after all revenue requirements are thus satisfied does the judgment below allow these claims to be paid. The Bankruptcy Act in this fifth category certainly contemplates a class of Government claims not arising out of taxation. It does not seem to me inappropriate to consider the relation of the Government to the wronged laborer established by the Labor Relations Act as analogous to the Government’s wardship toward Indians, found to warrant invocation of its priority in Bramwell v. United States Fidelity Co., 269 U. S. 483. The slogan “equality of distribution” can have little meaning when we are considering a section of a statute designed to establish inequality bjr a series of priorities. To protect the bankrupt’s estate against inequalities caused by the unlawful preferences attempted by the bankrupt is one thing; to invoke such a “theme” to level out priorities created by statute is another. While the legislation is not as complete or clear as one would like, supplying the rule for conflicts unanticipated by Congress is a large part of our work and I think the courts below have arrived at a practical solution of this question that accomplishes the purposes both of the Bankruptcy Act and the National Labor Relations Act. I would therefore affirm. UNITED STATES v. TUCKER TRUCK LINES. 33 Syllabus. UNITED STATES et al. v. L. A. TUCKER TRUCK LINES, INC. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI. No. 18. Argued October 20, 1952.—Decided November 10, 1952. A motor carrier applied to the Interstate Commerce Commission for a certificate of convenience and necessity under § 207 (a) of the Interstate Commerce Act. Appellee intervened in opposition. The hearings were conducted by an examiner not appointed pursuant to § 11 of the Administrative Procedure Act; but appellee did not object at any stage of the administrative proceedings, although it had ample opportunity to do so. The Commission granted the certificate. Appellee petitioned a district court to set aside the Commission’s action and, for the first time, challenged its validity on the ground that the examiner was not appointed pursuant to § 11 of the Administrative Procedure Act. It offered no excuse for its failure to raise the question sooner and made no claim of actual prejudice by the conduct of the examiner or the manner of his appointment. Held: The district court should not entertain this objection when first made at that stage of the proceedings. Pp. 34-38. (a) The defect in the examiner’s appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. P. 38. (b) But it is not one which deprives the Commission of power or jurisdiction, so that even in the absence of timely objection its order should be set aside as a nullity. P. 38. (c) Riss & Co. v. United States, 341 U. S. 907, and Wong Yang Sung v. McGrath, 339 U. S. 33, distinguished. Pp. 36-38. 100 F. Supp. 432, reversed. The District Court set aside an order issued by the Interstate Commerce Commission under § 207 (a) of the Interstate Commerce Act, on the sole ground that the hearings on the application therefor were conducted by an examiner not appointed pursuant to § 11 of the Ad- 34 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ministrative Procedure Act. 100 F. Supp. 432. On appeal to this Court, reversed and remanded, p. 38. Edward M. Reidy argued the cause for the United States and the Interstate Commerce Commission. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Clapp, Robert W. Gin-nane and Charles H. Weston. Philip B. Perlman, then Solicitor General, and Daniel W. Knowlton, then Chief Counsel for the Interstate Commerce Commission, were on the Statement as to Jurisdiction. B. W. La Tourette argued the cause for appellee. With him on the brief was G. M. Rebman. Mr. Justice Jackson delivered the opinion of the Court. One Cunningham applied to the Interstate Commerce Commission for a certificate of public convenience and necessity to authorize extension of his existing motor carrier route.1 A railroad and eleven motor carriers, including appellee, intervened to oppose. The issues were referred to an examiner who after hearing recommended that, with exceptions not material here, a certificate be granted. Appellee excepted, whereupon Division 5 of the Commission, in substance, approved the recommendation. Appellee requested reconsideration by the full Commission, which was denied, and then petitioned for “extraordinary relief,” which also was refused. The Commission thereupon issued a certificate to Cunningham. Appellee, upon the ground that the evidence did not show need for the additional transportation service, petitioned the District Court to set aside the certificate and order. The Commission and the United States answered and a three-judge court was convened. 149 U. S. C. § 307. UNITED STATES v. TUCKER TRUCK LINES. 35 33 Opinion of the Court. On the day appointed for hearing, appellee moved for leave to amend its petition to raise, for the first time, a contention that the Commission’s action was invalid for want of jurisdiction because the examiner had not been appointed pursuant to § 11 of the Administrative Procedure Act.2 The District Court allowed amendment and, upon proof that the appointment had not been in accordance with that Act, invalidated the order and certificate without going into the merits of the issue tendered in the original complaint.3 This appeal by the United States and the Interstate Commerce Commission raises but a single question—whether such an objection, first made at that stage of the proceedings, was not erroneously entertained. We hold that it was. Appellee did not offer nor did the court require any excuse for its failure to raise the objection upon at least one of its many opportunities during the administrative proceeding. Appellee does not claim to have been misled or in any way hampered in ascertaining the facts about the examiner’s appointment. It did not bestir itself to learn the facts until long after the administrative proceeding was closed and months after the case was at issue in the District Court, at which time the Commission promptly supplied the facts upon which the contention was based and sustained. The apparent reason for complacency was that it was not actually prejudiced by the conduct or manner of appointment of the examiner. There is no suggestion that he exhibited bias, favoritism or unfairness. Nor is there ground for assuming it from the relationships in the proceeding. He did not act and was not expected to act both as prosecutor and judge. The Commission, which appointed him, did not institute or become a party in 25U. S.C.§ 1010. 3100 F. Supp. 432. 36 OCTOBER TERM, 1952. Opinion of the Court. 344U.S. interest to the proceeding. Neither it nor its examiner had any function except to decide justly between contestants in an adversary proceeding. The issue is clearly an afterthought, brought forward at the last possible moment to undo the administrative proceedings without consideration of the merits and can prevail only from technical compulsion irrespective of considerations of practical justice. In Riss & Co. v. United States, 341 U. S. 907, this Court held that officers hearing applications for certificates of convenience and necessity under § 207 (a) of the Interstate Commerce Act are subject to the provisions of the Administrative Procedure Act.4 But timeliness of the objection was not before us, because in that case the examiner’s appointment had been twice challenged in the administrative proceedings, once, as it should have been, before the examiner at the hearings and again before the Commission on a petition for rehearing. That decision established only that a litigant in such a case as this who does make such demand at the time of hearing is entitled to an examiner chosen as the Act prescribes. We have recognized in more than a few decisions,5 and Congress has recognized in more than a few statutes,8 4 Our decision in the Riss case was announced after the administrative proceeding herein, but before the District Court’s hearing. Riss apparently prompted appellee to raise the point about the examiner’s qualifications in the District Court. 5 Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117, 130; United States ex rel. Vajtauer v. Commissioner, 273 U. S. 103, 113; United States v. Northern Pacific R. Co., 288 U. S. 490, 494; Unemployment Compensation Commission of Alaska v. Aragon, 329 U. S. 143, 155. 6 Section 9 (a) of the Securities Act of 1933, 15 U. S. C. § 77i; § 25 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78y; § 24 of the Public Utility Holding Company Act, 15 U. S. C. § 79x; § 10 of the Fair Labor Standards Act, 29 U. S. C. §210; § 10 (e) of the National Labor Relations Act, 29 U. S. C. § 160 (e). UNITED STATES v. TUCKER TRUCK LINES. 37 33 Opinion of the Court. that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. It is urged in this case that the Commission had a predetermined policy on this subject which would have required it to overrule the objection if made. While this may well be true, the Commission is obliged to deal with a large number of like cases. Repetition of the objection in them might lead to a change of policy, or, if it did not, the Commission would at least be put on notice of the accumulating risk of wholesale reversals being incurred by its persistence.7 Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice. It is argued, however, that this case falls outside of this general rule and the result below is technically compelled because, if the appointment of the hearing examiner was irregular, the Commission in some manner lost jurisdiction and its order is totally void. This inference is drawn from our decision in Wong Yang Sung v. McGrath, 339 U. S. 33, for it is contended we could not have sustained a collateral attack by writ of habeas corpus in that case unless we found the defect in that examiner’s appointment to be one of jurisdictional magnitude. We need 7 The Government informs us that in about five thousand cases commenced after the effective date of the Administrative Procedure Act, orders are for an indefinite period vulnerable to attack if no timely objection during the administrative process is required. The policy of the Commission is to grant application for rehearing in cases where applicant made the objection before the examiner. Since its established practice is not to consider issues not raised before the examiner, it will refuse rehearings in other cases. 226612 0—53----8 38 OCTOBER TERM, 1952. Frankfurter, J., dissenting. 344 U. S. not inquire what should have been the result upon that case had the Government denied or the Court considered whether the objection there sustained was taken in time. The effect of the omission was not there raised in briefs or argument nor discussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point.8 Even as to our own judicial power or jurisdiction, this Court has followed the lead of Mr. Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.9 The question not being foreclosed by precedent, we hold that the defect in the examiner’s appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. But it is not one which deprives the Commission of power or jurisdiction, so that even in the absence of timely objection its order should be set aside as a nullity. The judgment is reversed and the cause remanded to the District Court for determination on the merits. Reversed. Mr. Justice Frankfurter, dissenting. Were we dispensing what is complacently called oriental justice, according to which the merits of the individual case alone, so one is told, determine the result, I would join my brethren in reversing this judgment. For I see no reason to disagree with the Court’s view that in this case non-compliance by the Interstate Commerce Commission with the requirements of the Administrative 8 Webster v. Fall, 266 U. S. 507. 9 United States v. More, 3 Cranch 159, 172; Snow v. United States, 118 U. S. 346, 354; Cross v. Burke, 146 U. S. 82, 87; Louisville Trust Co. v. Knott, 191 U. S. 225, 236; Arant v. Lane, 245 U. S. 166, 170. UNITED STATES v. TUCKER TRUCK LINES. 39 33 Frankfurter, J., dissenting. Procedure Act did not prejudice the appellee. Nor do I deny that some rights personal to a party may be waived, either explicitly or by failure to assert them. But I find no explicit waiver here, nor is it clear to me how the appellee can be charged with knowledge of the official status of the examiner on the basis of whose report the Commission took action adverse to it. In any event, the requirement of the Administrative Procedure Act that proceedings which lead to an administrative adjudication must be conducted by an independent hearing examiner is not something personal to a party. It is a requirement designed to assure confidence in the administrative process by defining and limiting the various organs through which that process is allowed to function. I do not use the term “jurisdiction” because it is a verbal coat of too many colors. But we are dealing with legislation which sought to remedy what were believed to be evils in the way in which administrative agencies exercised their authority prior to the enactment of the Administrative Procedure Act of June 11, 1946. That Act accordingly prohibited the commingling of the conflicting functions exercised by these agencies. I do say, therefore, that it created unwaivable limitations upon the power of these agencies, as much so as do the definitions in judiciary acts of the different categories of cases which different courts are empowered to hear and decide. The limitations upon the power of the Interstate Commerce Commission to act, imposed by the command that it must do so only in accordance with the requirements of the Administrative Procedure Act, are thus not within the dispensing power of any litigant. They bind and confine the Commission itself. I cannot otherwise read what we decided in Wong Yang Sung v. McGrath, 339 U. S. 33, and Riss & Co., Inc. v. United States, 341 U. S. 907. I do not rest my conclusion on any assumption of jurisdiction sub silentio in the Wong 40 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. Yang Sung case. What I am resting on is the significance we attached to the requirement of independent hearing examiners as inherent in the process of administrative adjudication. After we decided Wong Yang Sung v. McGrath, supra, Congress was promptly asked to relieve the deportation process of this requirement and it did so. See Chapter III of the Supplemental Appropriation Act, 1951 (Act of September 27, 1950, 64 Stat. 1044, 1047). After we made the same ruling as to the Interstate Commerce Commission, Congress was promptly asked to validate proceedings previously conducted by the Commission in disregard of the requirements for independent hearing examiners. Congress has chosen not to enact such remedial legislation.1 I do not construe this want of action as controlling upon the issue before us. I refer to this subsequent legislative history merely as an indication of the path by which undesirable consequences flowing from our decision in Riss & Co., Inc. v. United States, supra, may be corrected without injustice. Situations like this arise from time to time when decisions of this Court in the observance of law suggest corrective legislation. See, e. g., United States v. Heinszen & Co., 206 U. S. 370. Mr. Justice Douglas, dissenting. This decision gives a capricious twist to the law. One would assume from a reading of the opinion in Wong Yang Sung n. McGrath, 339 U. S. 33, that the failure of a federal agency to use the type of examiner prescribed by Congress in the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq., vitiated the proceedings whether objection was raised or not. The Congress de- 1A remedial bill was successful in the House but failed in the Senate. The bill was H. R. 5045. See H. R. Rep. No. 1637, 82d Cong., 2d Sess. UNITED STATES v. TUCKER TRUCK LINES. 41 33 Douglas, J., dissenting. cided to separate the judicial functions of examiners from the investigative and prosecuting functions. It required the separation in cases involving property interests as well as those involving personal liberty. It condemned as unfair a practice which had grown up of allowing one man to be the police officer, the prosecutor, and the judge. Violation of that requirement led the Court in Wong Yang Sung’s case to issue a writ of habeas corpus to save an alien from deportation where the hearing examiner did not meet the requirements of the Administrative Procedure Act. That was a collateral attack on the administrative proceeding, successfully made even though no objection to the examiner was raised at the hearing.* The objection raised in the present case likewise was not made at the hearing; but it was made before review of the order had been completed. It would seem, therefore, that reversal of this administrative order would follow a fortiori from Wong Yang Sung’s case. No one knows how the commingling of police, prosecutor and judicial functions in one person may affect a particular decision. In some situations it might make no difference; in others it might subtly corrupt the administrative process. The only important consideration for us is that Congress has condemned the practice; and we as supervisors of the federal system should see to it that the law is enforced, not selectively but in all cases coming before us. Of course, an agency that flouts the mandate for fair examiners does not lose jurisdiction of the case. Even habeas corpus is no longer restricted to the testing of “jurisdiction” in the historic sense. See Johnson v. Zerbst, 304 U. S. 458, 467; Bowen n. Johnston, 306 U. S. *And the alien in that case, like the respondent here, was represented by counsel in the administrative proceedings. 42 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. 19, 24. But the action of the Commission in the present case created an error that permeates the entire proceeding. It is error that goes to the very vitals of the case. I would therefore set aside the order and send the case back for a hearing that meets the statutory standards of fairness. I would make the rule of Wong Yang Sung’s case good for more than the day and the occasion. UNITED STATES v. BEACON BRASS CO. 43 Opinion of the Court. UNITED STATES v. BEACON BRASS CO., INC. ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. No. 30. Argued October 23, 1952.—Decided November 10, 1952. A willful attempt to evade or defeat taxes by making false statements to Treasury representatives violates § 145 (b) of the Internal Revenue Code, 26 U. S. C. §145(b), and is not punishable exclusively under § 35 (A) of the Criminal Code, 18 U. S. C. § 1001, which outlaws the willful making of false statements “in any matter” within the jurisdiction of any department or agency of the United States. Pp. 43-47. 106 F. Supp. 510, reversed. The District Court dismissed an indictment under § 145 (b) of the Internal Revenue Code, 26 U. S. C. § 145 (b), on the ground that it failed to charge an offense thereunder. 106 F. Supp. 510. On direct appeal to this Court under 18 U. S. C. § 3731, reversed, p. 47. Marvin E. Frankel argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Lyon, Ellis N. Slack and Melva M. Graney. Philip B. Perlman, then Solicitor General, was on the Statement as to Jurisdiction. Richard Maguire argued the cause and filed a brief for appellees. Mr. Justice Minton delivered the opinion of the Court. On March 16, 1951, a one-count indictment was returned in the United States District Court for the District of Massachusetts against the appellees, Beacon Brass Company, a corporation, and Maurice Feinberg, its 44 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. president and treasurer. The indictment charged that in violation of § 145 (b) of the Internal Revenue Code, 40 Stat. 1085, as amended, 26 U. S. C. § 145 (b), the appellees had willfully attempted to evade taxes by making false statements to Treasury representatives on October 24, 1945, “for the purpose of supporting, ratifying, confirming and concealing the fraudulent and incorrect statements and representations made in the corporate tax return of said Beacon Brass Co., Inc., for the fiscal period ending October 31, 1944, filed on or about January 5, 1945 . . . ” Section 145 (b) provides in pertinent part: “[A]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony ... (Emphasis supplied.) The six-year limitation period, 43 Stat. 341, 342, as amended, 26 U. S. C. § 3748 (a)(2), applicable to offenses under this statute, had expired on a charge for filing a false tax return in January 1945, but it had not expired on a charge of making false statements to Treasury employees in October 1945. The District Court viewed the indictment as charging the separate crimes of filing a false return and making subsequent false statements to Treasury representatives, and dismissed the indictment as duplicitous. On September 14, 1951, a second indictment was returned against the appellees which repeated the charge that in violation of § 145 (b) they “did wilfully and knowingly attempt to defeat and evade a large part of the taxes due and owing by the said corporation ... by making certain false and fraudulent statements and representations, at a hearing and conference before representatives and employees of the United States Treasury UNITED STATES v. BEACON BRASS CO. 45 43 Opinion of the Court. Department, on or about October 24, 1945 . . . .” Reference to the allegedly false return filed in January 1945 was omitted, and instead it was charged that the false statements were made “for the purpose of concealing additional unreported net income . . . .” Section 35 (A) of the Criminal Code, 18 U. S. C. (1946 ed.) §80 (now 18 U. S. C. (Supp. V) § 1001) makes it unlawful to “knowingly and willfully . . . make . . . any false or fraudulent statements or representations . . . in any matter within the jurisdiction of any department or agency of the United States . . . .” Obviously, at the times of the indictments here, the three-year limitation period, 18 U. S. C. (Supp. V) § 3282, for violations of this statute had expired as to statements made in October 1945. The District Court concluded that since § 35 (A) deals specifically with false statements, Congress must be presumed to have intended that the making of false statements should be punishable only under § 35 (A). Therefore, the District Court dismissed the indictment on the ground that it failed to charge an offense under 26 U. S. C. § 145 (b). 106 F. Supp. 510. We noted probable jurisdiction of the United States’ appeal taken under authority of 18 U. S. C. (Supp. V) § 3731. We have before us two statutes, each of which proscribes conduct not covered by the other, but which overlap in a narrow area illustrated by the instant case. At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute. United States v. Noveck, 273 U. S. 202, 206; Gavieres v. United States, 220 U. S. 338. Unlike § 35 (A), § 145 (b) requires proof that the false statements were made in a willful effort to evade taxes. The purpose to evade taxes is crucial under this section. The language of § 145 (b) which outlaws willful attempts to evade taxes “in any manner” is clearly broad enough to include false statements made to Treasury representatives 46 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. for the purpose of concealing unreported income. Cf. Spies v. United States, 317 U. S. 492, 499. The question raised by the decision below is whether by enacting a statute specifically outlawing all false statements in matters under the jurisdiction of agencies of the United States, Congress intended thereby to exclude the making of false statements from the scope of § 145 (b). We do not believe that Congress intended to require the tax-enforcement authorities to deal differently with false statements than with other methods of tax evasion. By providing that the sanctions of § 145 (b) should be “in addition to other penalties provided by law,” Congress recognized that some methods of attempting to evade taxes would violate other statutes as well. See Taylor n. United States, 179 F. 2d 640, 644. Moreover, since no distinction is made in § 35 (A) between written and oral statements, the reasoning of the court below would be equally applicable to false tax returns which are, of course, false written statements. But the Courts of Appeals have uniformly applied § 145 (b) to attempts to evade taxes by filing false returns. E. g., Gaunt v. United States, 184 F. 2d 284, 288; Taylor v. United States, supra, at 643-644. Further support for our conclusion can be found in United States v. Noveck, supra, where this Court rejected the contention that the enactment of § 145 (b) impliedly repealed the general perjury statute insofar as that statute applied to false tax returns made under oath. Cf. United States v. Gilliland, 312 U. S. 86, 93, 95-96. Finally, the enactment of other statutes expressly outlawing false statements in particular contexts, e. g., 18 U. S. C. (Supp. V) §§ 1010, 1014, negates the assumption—which was the foundation of the decision of the court below—that Congress intended the making of false statements to be punishable only under § 35 (A). The appellees contend that the acts charged constitute only one crime of tax evasion which was complete when UNITED STATES v- BEACON BRASS CO. 47 43 Opinion of the Court. the allegedly false tax return was filed. On the basis of this contention, appellees seek to sustain the decision below on the grounds that the six-year statute of limitations had run, and that the dismissal of the first indictment is res judicata and a bar to the second indictment for the same offense. We do not consider these questions because our jurisdiction on this appeal is limited to review of the District Court’s construction of the statute in the light of the facts alleged in the indictment. 18 U. S. C. (Supp. V) § 3731; United States v. Borden Co., 308 U. S. 188, 206-207. The judgment of the District Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Black is of the opinion that the District Court reached the right result and would affirm its judgment. 48 OCTOBER TERM, 1952. Syllabus. 344 U. S. JOHNSON, ADMINISTRATRIX, v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 40. Argued October 23-24, 1952.—Decided November 17, 1952. At the close of the evidence in a suit in a federal district court under the Jones Act for wrongful death, defendant moved to dismiss the complaint and for a directed verdict in its favor. The court reserved decision on the motion and submitted the case to the jury. A verdict was returned for plaintiff and judgment was entered thereon. Within ten days after reception of the verdict, defendant moved to have it set aside, but did not move for judgment notwithstanding the verdict. The court denied plaintiff’s motion to set aside the verdict and denied the pre-verdict motions for dismissal and for a directed verdict. On appeal, the Court of Appeals held that the motion for a directed verdict should have been granted and reversed the judgment of the district court. Held: Under Rule 50 (b) of the Federal Rules of Civil Procedure, the Court of Appeals could not direct entry of a judgment for defendant notwithstanding the verdict. Pp. 49-54. (a) In the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of the verdict, Rule 50 (b) forbids the trial judge or an appellate court to enter such a judgment. P. 50. (b) Defendant’s motion to set aside the verdict cannot be treated as a motion to enter judgment notwithstanding the verdict. Pp. 50-51. (c) The trial judge’s express reservation of decision on the motion for a directed verdict did not relieve defendant from the duty under Rule 50 (b) to make a motion after the verdict for judgment notwithstanding the verdict. Pp. 51-54. (d) Defendant is entitled only to a new trial, not to a judgment in its favor. P. 54. 194 F. 2d 194, judgment vacated and cause remanded. In a suit under the Jones Act, 46 U. S. C. § 688, for wrongful death, the District Court rendered judgment for the plaintiff. The Court of Appeals reversed. 194 F. 2d JOHNSON v. NEW YORK, N. H. & H. R. CO. 49 48 Opinion of the Court. 194. This Court granted certiorari. 343 U. S. 975. Judgment vacated and cause remanded, p. 54. Jacquin Frank argued the cause for petitioner. With him on the brief was Herman B. Gerringer. Robert M. Peet argued the cause for.respondent. With him on the brief was Edward R. Brumley. Mr. Justice Black delivered the opinion of the Court. This case raises questions concerning the power of a Court of Appeals to render judgment for a defendant instead of merely ordering a new trial after it has set aside a jury verdict and trial court judgment for a plaintiff. The petitioner sued the respondent railroad under the Jones Act, 46 U. S. C. § 688, for wrongful death of her husband. When the evidence was all in, the railroad moved to dismiss the complaint and also asked for a directed verdict in its favor on the grounds that no negligence had been proven and that the deceased had been responsible for his own death. The trial court reserved decision on the motion, submitted the case to the jury, a verdict of $20,000 was returned for petitioner, z and judgment was entered on the verdict. Within ten days after reception of the verdict the railroad moved to have the verdict set aside on the ground that it was excessive, contrary to the law, to the evidence, to the weight of the evidence. More than two months later this motion was denied; in the same order denying that motion the court also denied the pre-verdict motions for dismissal and for a directed verdict on which action had been reserved prior to verdict. Holding that the motion for a directed verdict should have been granted, the Court of Appeals reversed. 194 F. 2d 194. Both parties agree that this reversal requires the District Court to enter judgment for the railroad notwithstanding the verdict, 50 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. thereby depriving petitioner of another trial. Whether the Court of Appeals could direct such a judgment consistently with Rule 50 (b) of the Federal Rules of Civil Procedure1 is the single question we granted certiorari to review. 343 U. S. 975. On several recent occasions we have considered Rule 50 (b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment. Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212. We repeated that construction of the rule in Globe Liquor Co. v. San Roman, 332 U. S. 571, and reemphasized it in Fountain v. Filson, 336 U. S. 681. Although this respondent made several motions it did not as the rule requires move within ten days after verdict “to have judgment entered in accordance with his [its] motion for a directed verdict.” We are told, however, in respondent’s brief that its motion to set aside the verdict “was intended to be a motion for judgment in its favor or for a new trial” and that “[o]bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a new 1 “Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. . . .” JOHNSON v. NEW YORK, N. H. & H. R. CO. 51 48 Opinion of the Court. trial.” The defect in this argument is that respondent’s motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears to have treated the motion to set aside the verdict as asking for anything but that. And surely petitioner is not to have her opportunity to remedy any shortcomings in her case jeopardized by a failure to fathom the unspoken hopes of respondent’s counsel. Respondent’s' motion should be treated as nothing but what it actually was, one to set aside the verdict—not one to enter judgment notwithstanding the verdict. Respondent separately argues that a trial judge’s express reservation of decision on motion for a directed verdict relieves a party from any duty whatever under 50 (b) to make a motion for judgment after verdict. This contention not only flies in the teeth of the rule’s unambiguous language but if sustained would undermine safeguards for litigants some of which have been pointed out in prior cases. The rule carefully sets out the steps and procedures to be followed by the parties as a prerequisite to entry of judgments notwithstanding an adverse jury verdict. Montgomery Ward & Co. v. Duncan, 311 U. S. 243, 250. It was adopted following confusion in this field brought about in part by three cases decided by this Court, Slocum v. New York Life Ins. Co., 228 U. S. 364; Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654; and Aetna Ins. Co. v. Kennedy, 301 U. S. 389. The Slocum case was understood to hold that the Seventh Amendment forbade United States courts to enter judgments in favor of one party after jury verdict in favor of the other. The Redman case tried in New York held that the Seventh Amendment did not forbid entry of judgment notwithstanding a verdict where, prior to the verdict, the trial judge, following New York procedure, had expressly reserved his decision on a motion for a directed verdict. The New York District Court was au- 52 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. thorized to follow this state practice because of the Conformity Act, R. S. (1878) §914. Thus the Redman case did not purport to adopt New York procedure for the general guidance of federal courts. Later the Kennedy case cast doubt on the Redman holding, at least as to its scope. In the Kennedy case plaintiff’s request for directed verdict had not been followed by a timely motion for judgment notwithstanding the verdict as required by Pennsylvania law. Failure to conform to this Pennsylvania practice was a reason given by this Court for finding lack of power in the District Court to enter judgment contrary to the verdict.2 Rule 50 (b) was designed to provide a precise plan to end the prevailing confusion about directed verdicts and motions for judgments notwithstanding verdicts. State procedure was no longer to control federal courts as it had in the Redman and Kennedy cases. Federal courts were to be guided by this new rule, which provided its own exclusive procedural program. It rejected the New York procedure applied in the Redman case, which permitted judgment to be set aside even though no motion to do so had been filed after verdict. Instead it approached more closely the Pennsylvania rule, relied 2 The controlling Pennsylvania statute then was Pa. Laws 1905, No. 198. Like Rule 50 (b) it provided for a timely motion for judgment notwithstanding the verdict. The binding duty to do this was explained by the Supreme Court of Pennsylvania as follows, in a case relied on by this Court in the Kennedy case: “To secure the benefit of that act its terms must be complied with, that is, the refusal of the request for binding instructions must be followed by a proper motion made in due time: Pyle v. Finnessy, 275 Pa. 54, 57. Here the record as duly certified discloses no such motion nor any evidence that one was made. True, the question of the absence of such motion was not raised in the lower court but, being one of jurisdiction, it cannot be ignored. It follows that as the record stands the judgment cannot be sustained.” West v. Manatawny Mut. F. & S. Ins. Co., 277 Pa. 102, 104, 120 A. 763, 764. JOHNSON v. NEW YORK, N. H. & H. R. CO. 53 48 Opinion of the Court. on in the Kennedy case, under which judgments contrary to verdicts would not be awarded in the absence of specific timely motions for them. But Rule 50 (b) departed from the New York and Pennsylvania procedures by making it wholly unnecessary for a judge to make an express reservation of his decision on a motion for directed verdict. The rule itself made the reservation automatic. A court is always “deemed to have submitted the action to the jury subject to a later determination” of the right to a directed verdict if a motion for judgment notwithstanding the verdict is made “within 10 days after the reception of a verdict . . . .” This requirement of a timely application for judgment after verdict is not an idle motion. This verdict solves factual questions against the post-verdict movant and thus emphasizes the importance of the legal issues. The movant can also ask for a new trial either for errors of law or on discretionary grounds. The requirement for timely motion after verdict is thus an essential part of the rule, firmly grounded in principles of fairness. See Cone v. West Virginia Pulp & Paper Co., supra, at 217-218. Poor support for its abandonment would be afforded by the mere fact that a judge makes an express reservation of a decision which the rule reserves regardless of what the judge does. Rule 50 (b) as written and as construed by us is not difficult to understand or to observe. Rewriting the rule to fit counsel’s unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end. In 1946 this Court was asked to adopt an amendment to the rule which would have given appellate courts power to enter judgments for parties who, like this respondent, had made no timely motion for judgment notwithstanding the verdict. We did not adopt the amendment then. 5 Moore, Federal Practice (2d ed. 1951), flfl 50.01 [7], 50.01 [9], 50.11. 226612 0—53--------------9 54 OCTOBER TERM, 1952. Frankfurter, J., dissenting. 344 U. S. No sufficiently persuasive reasons are presented why we should do so now under the guise of interpretation. Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50 (b). It failed to comply with permission given by 50 (b) to move for judgment n. o. v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor. The judgment of the Court of Appeals is vacated and the cause is remanded to it for further proceedings consistent with this opinion.3 It is so ordered. Mr. Justice Frankfurter, whom Mr. Justice Jack-son, Mr. Justice Burton and Mr. Justice Minton join, dissenting. If the Court’s opinion in this case merely disposed of a particular litigation by finding error in a decision of the 3 The writer of this opinion and The Chief Justice are not convinced that the Court of Appeals attempted to direct a verdict for the railroad. What the court said was: “In our opinion the motion for a directed verdict should have been granted. Accordingly the judgment is reversed.” But holding that a directed verdict should have been given cannot be the equivalent of a court’s entry of judgment for defendant notwithstanding a jury verdict for plaintiff. For after setting aside a verdict as authorized by Rule 50 (b), a trial judge may “either” enter a judgment contrary to the verdict “or” order a new trial. The rule thereby requires the exercise of an informed judicial discretion as a condition precedent to a choice between these two alternatives. Cone n. West Virginia Pulp & Paper Co., supra, at 215. And this discretion must be exercised by the court, not by its clerk. The Court was told during oral argument that it is the practice in the Second Circuit for the clerk to include in his mandate a direction to the district court to have a judgment entered in favor of a party notwithstanding the verdict where the court reverses a district court’s refusal to direct a verdict. A rule of practice of this kind under which a court clerk’s mandate would automatically direct entry of a judgment for defendant after court reversal of a plaintiff’s judgment could not possibly be the result of JOHNSON v. NEW YORK, N. H. & H. R. CO. 55 48 Frankfurter, J., dissenting. Court of Appeals that a judgment be entered for the defendant in a negligence suit, an expression of dissent, let alone a dissenting opinion, would not be justified. If that were all there were to it, neither would the Court have been justified in granting the petition for certiorari. The same considerations which made the case one of general importance for review here make it appropriate to spell out the grounds of dissent. Not the least important business of this Court is to guide the lower courts and the Bar in the effective and economical conduct of litigation. That is what is involved in this case. The immediate issue is the construction of one of the important Rules of Civil Procedure. That construction in turn depends upon our basic attitude toward those Rules—whether we take their force to lie in their very words, treating them as talismanic formulas, or whether we believe they are to be applied as rational the kind of judicial discretion directed by Rule 50 (b). We are not willing to attribute such a practice to the Second Circuit. The Second Circuit’s Rules of Practice do not prescribe a practice, of that kind. See F. C. A., Rules, c. 5, pp. 96-103, 16 S. Ct. Dig. 143-169, U. S. Dig., Court Rules (L. Ed.), pp. 573-589. Nor do the rules of any other circuit. See F. C. A., Rules, cc. 4-13, pp. 84-194, 16 S. Ct. Dig. 107-523, U. S. Dig., Court Rules (L. Ed.), pp. 545-827. No case has been found that indicates such a practice by the Second or any other Circuit. Since adoption of Rule 50 (b) in 1938, courts of appeals wishing to enter or direct judgment have said so in clear, simple and mandatory language. As to the Second Circuit, see e. g., Venides v. United Greek Shipowners Corp., 168 F. 2d 681; Brennan v. B. & 0. R. Co., 115 F. 2d 555; Williams v. New Jersey-N. Y. Transit Co., 113 F. 2d 649; Conway v. O’Brien, 111 F. 2d 611. The Fifth Circuit emphatically pointed out that mere reversal and remand for proceedings consistent with the opinion did not authorize a trial court to enter judgment notwithstanding the verdict; entry of such a judgment was only to be granted as of discretion and after a hearing. Fleniken v. Great American Indemnity Co., 142 F. 2d 938; see also In re Mutual Life Ins. Co. of New York, 188 F. 2d 424, 425-426. 56 OCTOBER TERM, 1952. Frankfurter, J., dissenting. 344 U. S. instruments for doing justice between man and man in cases coming before the federal courts. Our concern is with Rule 50 (b) of the Federal Rules of Civil Procedure.1 The Rules became effective on September 16, 1938. Two years later, in Montgomery Ward & Co. v. Duncan, 311 U. S. 243, this Court was called upon to determine the appropriate procedure under Rule 50 (b). To do so, the Court had to consider the experience that led to the promulgation of the Rule. Its aim was to speed litigation without prejudicing the legitimate interests of litigants; to see to it that full and fair consideration is given to the issues litigants raise but that litigation does not become a socially wasteful game. The unanimous opinion of the Court in the Montgomery Ward case gave this guiding direction: . the courts should so administer the rule as to accomplish all that is permissible under its terms.” 311 U. S., at 253. This attitude was made specific by the statement that if the trial judge rules, as he properly 1<<(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.” JOHNSON v. NEW YORK, N. H. & H. R. CO. 57 48 Frankfurter, J., dissenting. should, on alternative motions for judgment n. o. v. and for a new trial, and denies them both, the appellate court may reverse the former action and direct the entry of judgment n. o. v. 311 U. S., at 254. Subsequent to Montgomery Ward & Co. v. Duncan, supra, three cases came here in which we reversed because Courts of Appeals disregarded the procedure outlined in that case in one significant respect. The Courts of Appeals directed the entry of judgments n. o. v. although no motions for such judgments had been made in the trial courts. Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212; Globe Liquor Co. v. San Roman, 332 U. S. 571; Fountain v. Filson, 336 U. S. 681. Our decisions do not suggest, however, that the party in whose favor a Court of Appeals directs a judgment n. o. v. is required to use a ritualistic formula in the District Court. The only relevant inquiry in this case, therefore, is whether the fair meaning of the proceedings after a verdict was rendered in fact constituted disposition of a motion to enter judgment n. o. v. This is so unless Rule 50 (b) commands that after the reception of a verdict a party must not only “move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict,” but must do so by a particular form of words. The Rule does not require this. Nothing in the Rule, either by its terms or its origin, requires some abracadabra of obedience to it. A comparison of the facts in the Cone, Globe and Fountain cases with those in this case leaves no doubt that this case has nothing in common with Cone, Globe and Fountain. A tabular analysis of the procedural facts in all four cases is appended, post, p. 63. There were no motions n. o. v. in Cone, Globe and Fountain, and the failure to make them resulted in a prejudice to the losing 58 OCTOBER TERM, 1952. Frankfurter, J., dissenting. 344 U. S. parties in the Courts of Appeals in those three cases which is wholly wanting here.2 In each of the three earlier cases the decision of the Court of Appeals either applied to the facts a legal theory other than the one on which the parties proceeded in the trial court, or for the first time assigned decisive importance to the choice by the losing party of a legal theory on which to claim or resist recovery. Cone was tried on the assumption that proof of constructive possession would sustain the cause of action; the Court of Appeals definitively disposed of the litigation by holding that actual possession must be proved. In Globe the plaintiff secured a verdict on the basis of an express warranty in a sale; the Court of Appeals held that he had failed in this and directed the entry of a judgment for the seller, even though on a new trial, which alone was what the seller had asked, it would have been open for the buyer, with the aid of additional evidence, to succeed on proof of an implied warranty. In Fountain the plaintiff sued to have himself declared the beneficiary of a resulting 2 The post-verdict motions in Cone and Globe (there was none in Fountain) specifically prayed for a new trial, and the grounds they recited went wholly to the issue of whether or not a new trial would be proper. The Cone motion relied on newly discovered evidence. Moreover, it was much too late to pray for judgment n. o. v. under Rule 50 (b). In Globe the motion claimed error in rulings on evidence and in taking the case from the jury. The motion in our case, timely under Rule 50 (b), was “to set aside the verdict” on grounds which supported both judgment n. o. v. and the grant of a new trial. Having heard argument and requested briefs and the trial transcript, the judge held that the evidence permitted recovery. It could not do so, of course, if it were insufficient in law. Nor should the fact be forgotten that the judge was dealing with arguments which had been presented to him before on a motion for a directed verdict, as to which he had reserved decision. Motions for directed verdict had been made by defendants in Cone and Globe as well, but they had been expressly denied before the verdict. JOHNSON v. NEW YORK, N. H. & H. R. CO. 59 48 Frankfurter, J., dissenting. trust in certain realty. While the Court of Appeals agreed with the District Court that New Jersey law precluded the imposition of such a resulting trust, it directed the District Court to enter a personal money judgment for the plaintiff. In all three cases we held that the District Court never had opportunity to exercise the discretion which would have been open to it had the grounds on which the litigation went off in the Court of Appeals been relied on before the District Court in an appropriate motion. In this case there was no such deviation from the trial issues. The case went to the jury on the issues of defendant’s negligence in departing from an alleged common custom, and of causation. These issues were duly pressed before the trial judge after verdict. The case went against the petitioner in the Court of Appeals on one of them. In contrast to the situation in the other three cases no possible claim of surprise can here find nourishment. The Cone, Globe and Fountain cases, being decisively different from this case, cannot govern it. Let me set out, side by side, so much as is pertinent in the motion made after the verdict in the Montgomery Ward case and the motion made in this case. Montgomery Ward Comes the defendant, Montgomery Ward & Company, and files its motion praying that the jury’s verdict herein and the judgment rendered and entered thereon be set aside and judgment entered herein for the defendant notwithstanding the verdict, and its motion for a new trial in the alternative, and as grounds therefor states: Johnson On behalf of the defendant, The New York, New Haven & Hartford Railroad, I move to set aside the verdict on the ground 60 OCTOBER TERM, 1952. Frankfurter, J., dissenting. 344 U. S. Montgomery Ward A. . . . Motion ... to enter judgment .... 1. That the verdict is contrary to the law. 2. That the verdict is contrary to the evidence. 3. That the verdict is contrary to the law and evidence. Johnson that it is contrary to the law and contrary to the evidence 8. That the defendant has failed to prove by a preponderance of the evidence .... B. . . . motion for a new trial: [Specifications 1-8 same as above.] 9. That the damages found by the jury and the verdict based thereon were excessive.3 and contrary to the weight of the evidence and excessive. The difference between the two motions is nil. One was written and formally labelled and detailed. While the other was oral, it was cast in form familiar to New York practitioners and its meaning was no less clear. The District Judge’s action demonstrates this. But under the Court’s holding it is no longer sufficient to move for a directed verdict and then, within the time provided by the Rule, ask the trial judge either to grant judgment or a new trial. The Court so holds even though the trial judge already has expressly stated he has reserved for his consideration at that time (after verdict) the very issue which a motion for judgment n. o. v. would repeat. The 3 The specifications which I do not quote do not add materially to the motion for judgment n. o. v. in the Montgomery Ward case. JOHNSON v. NEW YORK, N. H. & H. R. CO. 61 48 Frankfurter, J., dissenting. obvious, which is left unsaid in colloquies between counsel and the court, must now be spoken. The redundant, omitted out of respect for a judge’s intelligence and professional competence, must always be spelled out. The parties must be sure to indulge the ancient weakness of the law for stylized repetition, and it is necessary that the judge answer the same question twice before his answer is to be recognized. In this way do we conduce “to the efficiency and the economy of the administration of justice.” Federal Rules of Civil Procedure, Proceedings of the Institute at Washington, D. C. and of the Symposium in New York City, 87 (1938) (Chesnut, J.). If on that fateful Friday the 13th, in April, 1951, sometime shortly after 10:30 in the morning when the jury’s verdict was opened, the defendant had prefaced his argument by saying, “Your Honor, before addressing myself to my pending motion for directed verdict, on which your Honor reserved decision, and which of course now necessarily is a motion for judgment n. o. v., I first want to renew that motion,” he would have avoided today’s decision against him, although he would not have added one jot of information to that of counsel for the plaintiff or of the judge regarding the issues before the court for decision. To require this is to make Rule 50 (b) read (added language in italics): “Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside. Such a motion will be treated as a motion to have judgment entered in accordance with his motion for a directed verdict if he repeats the motion for directed verdict or states to the court that he now makes a ‘motion for judgment notwithstanding the verdict.’ ” JOHNSON v. NEW YORK, N. H. & H. R. CO. 63 48 Appendix to Opinion of Frankfurter, J., dissenting. Cone v. W. Va. P. & P. Co. 330 U. S. 212 Globe Co. v. San Roman 332 U. S. 571 Fountain v. Filson 336 U. S. 681 Johnson v. N. Y., etc. Co. Cause of Action. Trespass. Contract. Resulting trust. Wrongful death—Jones Act. Trial Issues. Title and possession. Existence of contract and express warranty. Existence of resulting trust under deed and option. Existence of common custom, and causation. Pre-verdi CT Motions. For directed verdict, by defendant. Denied. For directed verdict, by defendant. Denied. For directed verdict, by plaintiff. Granted. For summary judgment, by defendant. Granted. For directed verdict, by defendant. Decision reserved. Judgment. For plaintiff. For plaintiff. For defendant. For plaintiff. Post-verdict Motions. For new trial, by defendant; denied. No motion for judgment n. o. v. For new trial, by defendant; denied. No motion for judgment n. o. v. None. To set aside the verdict, by defendant; denied on ground that evidence sufficient to support cause of action. Time Elapsed Between Judgment and Motion. 62 days. 8 days. Motion made immediately after verdict. Disposition in C. A. District Court directed to enter judgment for defendant. 153 F. 2d 576. District Court directed to enter judgment for defendant. 160 F. 2d 800. District Court directed to enter judgment for plaintiff. 171 F. 2d 999. District Court directed to enter judgment for defendant. 194 F. 2d 194. Disposition Here. Reversed. Trial judge must be given chance to exercise discretion to enter judgment n. o. v. or grant a new trial. Reversed. Cone case governs. Reversed. C. A. judgment entered “on a new issue as to which the opposite party had no opportunity to present a defense before the trial court.” 336 U. S. at 683. 226612 0—53 62 OCTOBER TERM, 1952. Frankfurter, J., dissenting. 344 U. S. The Federal Rules of Civil Procedure are the product of the progress of centuries from the medieval court-room contest—a thinly disguised version of trial by combat— to modern litigation. “Procedure is the means; full, equal and exact enforcement of substantive law is the end.” Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules; with it in mind we construed Rule 50 (b) in the Montgomery Ward case. It has been said of the great Baron Parke: “His fault was an almost superstitious reverence for the dark technicalities of special pleading, and the reforms introduced by the Common Law Procedure Acts of 1854 and 1855 occasioned his resignation.” (Sir James Parke, 15 D. N. B. 226.) Baron Parke despaired prematurely. If he had waited another hundred years this Court today would have vindicated his belief that judges must be imprisoned in technicalities of their own devising, that obedience to lifeless formality is the way to justice. [For dissenting opinion of Mr. Justice Minton, see post, p. 65.] JOHNSON v. NEW YORK, N. H. & H. R. CO. 65 48 Minton, J., dissenting. Mr. Justice Minton, dissecting. I agree with all'that Mr. Justice Frankfurter has said in upholding the action of the Court of Appeals in returning the case to the District Court with directions to enter a verdict for the defendant. I would add another reason why I think the action was valid. After the Cone, Globe Liquor and Fountain cases were decided, Congress in 1948 revised the Judicial Code, and in 28 U. S. C. § 2106 clearly authorized the action taken by the Court of Appeals here. Section 2106 reads as follows: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” To me, this statute is controlling. We found it controlling of the action of the Court of Appeals in a criminal case. Bryan v. United States, 338 U. S. 552. Mr. Justice Black, who now speaks for the Court, dissented in the Bryan case because he thought Cone controlling. By act of Congress, the discretion now rests with the Court of Appeals to grant a new trial or to direct a verdict according to law on the record already made. 66 OCTOBER TERM, 1952. Syllabus. 344 U. S. UNITED STATES v. HENNING et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 10. Argued April 1, 1952.—Reargued October 14, 1952.— Decided November 17, 1952. An insured under a policy of National Service Life Insurance who had designated his father as sole beneficiary, died in active service in July 1945. Five months later the father died, and four years later the father’s second wife (the insured’s stepmother) died. Neither had received any part of the policy’s proceeds. The insured’s natural mother survived. The District Court found that the stepmother had stood in loco parentis to the insured for at least one year prior to his entry into active service, and also that, within the meaning of § 602 (h) (3) (C) of the National Service Life Insurance Act, both the stepmother and the natural mother “last bore” the parental relationship to the insured. Held: 1. Installments of the proceeds of the policy which, though accrued, had not been received by a beneficiary prior to his death, cannot be awarded to the estate of such deceased beneficiary, since § 602 (i) conditions payments on the beneficiary’s being alive to receive them. Pp. 69-76. 2. The insured’s natural mother is a surviving beneficiary entitled to take by devolution under § 602 (h) (3) (C) of the Act. Pp. 76-78. (a) The finding that the stepmother “last bore” the parental relationship to the insured, within the meaning of § 602 (h) (3) (C), does not preclude a finding that the insured’s natural mother also “last bore” that relationship. Pp. 76-77. (b) This Court accepts what the courts below deemed a continuing parental relationship between the insured and his natural mother. Pp. 77-78. (c) Since the insured’s natural mother is a surviving beneficiary entitled to take by devolution under §602 (h)(3)(C), she is the “beneficiary to whom payment is first made,” within the meaning of § 602 (h)(1) and (2). Pp. 77-78. 3. Since there is a surviving beneficiary entitled to take by devolution under §602 (h)(3)(C), the Government may not in- UNITED STATES v. HENNING. 67 66 Opinion of the Court. voke the provisions of § 602 (j) to withhold, for the benefit of the National Service Life Insurance Fund, payment of the installments accrued from the date of the insured’s death. P. 78. 191 F. 2d 588, reversed. In an action for a judicial determination of the proper beneficiary under a policy of National Service Life Insurance, the District Court divided the proceeds among three parties. 93 F. Supp. 380. The Court of Appeals agreed. 191 F. 2d 588. This Court granted certiorari. 342 U. S. 917. Reversed, p. 78. Morton Liftin argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Samuel D. Slade. Richard H. Lee argued the cause for Kennedy, Administrator, respondent. With him on the brief was Arthur V. Getchell. Mr. Justice Clark delivered the opinion of the Court. Conflicting claims to the proceeds of a policy of National Service Life Insurance frame the controversy before us. Disposition of the cause depends on our interpretation of the National Service Life Insurance Act of 1940, as amended, 38 U. S. C. § 801 et seq., which in pertinent part1 provides: § 602 (g). “The insurance shall be payable only to a widow, widower, child . . ., parent, brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided . . . 1 In 1946, the Act was amended prospectively in several material respects. 60 Stat. 781 et seq. Since the policy before us matured in 1945, the 1946 amendments do not govern the distribution of the proceeds here in issue. 68 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. § 601 (f). “The terms ‘parent’, ‘father’, arid ‘mother’ include a father, mother, father through adoption, mother through adoption [and] persons who have stood in loco parentis to a member of the military or naval forces at any time prior to entry into active service for a period of not less than one year . . . .” § 602 (i). “If no beneficiary is designated by the insured or if the designated beneficiary does not survive the insured, the beneficiary shall be determined in accordance with the order specified in subsection (h)(3) of this section and the insurance shall be payable in equal monthly installments in accordance with subsection (h) .... The right of any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments. No person shall have a vested right to any installment or installments of any such insurance and any installments not paid to a beneficiary during such beneficiary’s lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority, as provided in subsection (h) . . . .” § 602 (h)(3). “Any installments certain of insurance remaining unpaid at the death of any beneficiary shall be paid in equal monthly installments in an amount equal to the monthly installments paid to the first beneficiary, to the person or persons then in being within the classes hereinafter specified and in the order named, unless designated by the insured in a different order— “(C) if no widow, widower, or child, to the parent or parents of the insured who last bore that relationship, if living, in equal shares; . . . UNITED STATES v. HENNING. 69 66 Opinion of the Court. § 602 (j). “No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary, and in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made. . . The material facts are not disputed. Eugene C. Henning, a Naval Reservist insured under a $10,000 term policy of National Service Life Insurance which named his father as sole beneficiary,2 died on July 4, 1945, in his country’s service. Otto F. Henning, the father, died five months later, without having received any part of the policy’s proceeds. Bessie, his second wife and the insured’s stepmother, and Clara Belle, his former wife and the insured’s natural mother, survived. Both survivors subsequently filed claims to the proceeds of the serviceman’s policy. On June 30, 1949, during the pendency of an interpleader action for a judicial determination of the proper taker, Bessie died, leaving the natural mother as sole surviving claimant. The Government thereupon asserted that Bessie had last borne the parental relationship to the insured; that consequently Clara Belle could not come within the statutory class of devolutionary takers; and that, in the absence of cognizable claims to the proceeds, they escheat to the National Service Life Insurance Fund. The District Court’s judgment, however, divided the proceeds, payable in installments, among three parties.3 The court read the statute as imposing no bar to the 2 The insured at one time had designated his wife as beneficiary and his father as contingent beneficiary. Subsequently he properly changed this designation and named his father as sole beneficiary. The marriage was dissolved prior to the insured’s death. The earlier designation is thus not material here. 3 93 F. Supp. 380 (D. Mass. 1950). 70 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. award of matured but unpaid installments to the estates of deceased beneficiaries. It therefore awarded to the father’s estate the installments which had matured during his lifetime but remained unpaid. And, finding that Bessie, the stepmother, had stood in loco parentis to the insured for at least one year prior to his entry into active service, it concluded that both she and Clara Belle, the natural mother, were parents who “last bore that relationship” and thus qualified to take the remaining proceeds by devolution under § 602 (h)(3)(C) of the Act. The installments which had matured during the stepmother’s lifetime were shared equally between her estate and Clara Belle; installments thereafter maturing were awarded to the latter alone. The Court of Appeals agreed.4 Conceding that the literal wording of the statute went “a long way” toward sustaining the Government’s opposing contentions, the court, fearful of unfortunate consequences that might flow from strict adherence to the text of the Act, nevertheless ruled that estates of deceased beneficiaries might take. And, noting its disagreement with the Second Circuit’s ruling in Baumet v. United States,5 it further held that one in loco parentis who qualified as a beneficiary under § 602 (h)(3)(C) of the Act did not necessarily exclude from participation in policy proceeds a natural parent of the same sex who also “last bore” the parental relationship to the insured. We granted certiorari to settle problems important in the administration of the National Service Life Insurance 4 191 F. 2d 588 (1st Cir. 1951). The Court of Appeals reversed and remanded for proper computation of the installments which it found due the various parties. In view of our disposition of the case, we are not now concerned with that part of its holding. 5191 F. 2d 194 (1951), cert, granted, 343 U. S. 925, decided this day, post, p. 82. UNITED STATES v. HENNING. 71 66 Opinion of the Court. Act and to resolve conflicting statutory interpretations by the Courts of Appeals. 342 U. S. 917. Congress through war risk insurance legislation has long sought to protect from financial hardship the surviving families of those who had served under the nation’s flag. Comprehensive insurance programs enacted in 1917, 1940, and 1951 reflect this consistent legislative concern in times of crisis. Since public funds were to meet a large part of the programs’ cost,6 the statutes closely circumscribed the class of permissible takers to preclude those not the object of congressional concern from draining the treasury when hazards of war service multiplied policy maturities. The War Risk Insurance Act of 1917 enumerated only the serviceman’s spouse and immediate blood relatives as permissible beneficiaries of policy proceeds;7 a beneficiary’s interest was extinguished by death.8 The National Service Life Insurance Act of 1940, again constricting the class of permissible takers,9 restates the legislative purpose of the prior Act. In the Servicemen’s Indemnity Act of 1951 the previous restrictions once more appear, reiterated in a flat proviso: “No payment shall be made to the estate of any deceased person.”10 Accenting these wartime limitations is the liberalizing legislation by which Congress after cessation of hostilities in World Wars I and II placed its insurance programs on more nearly a commercial basis. Amend- *E- g., §403, W. R. I. A. of 1917, 40 Stat. 410; §602 et seq., N. S. L. I. Act of 1940, 38 U. S. C. § 802 et seq., see United States v. Zazove, 334 U. S. 602, 616 (1948); Servicemen’s Indemnity Act of 1951, 38 U. S. C. (Supp. V) § 851 et seq.; S. Rep. No. 91, 82d Cong., 1st Sess.; H. R. Rep. No. 6, 82d Cong., 1st Sess. 7 § 402; 40 Stat. 409. 8 Cassarello v. United States, 271 F. 486; Salzer n. United States, 300 F. 764. 9 § 602 (g); 38 U. S. C. § 802 (g). 10 § 3; 38 U. S. C. (Supp. V) § 852. 226612 0—53----------10 72 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ments to the War Risk Insurance Act in 1919 expanded the permitted beneficiary class to include more distant relatives of the insured, and, significantly, provided that installments payable but unpaid upon a beneficiary’s death might go to his estate.11 This broadening legislation was substantially reenacted in the World War Veterans’ Act of 1924.12 And after World War II, Congress in 1946 once more liberalized the benefits of the National Service Life Insurance Act. As to policies maturing after August 1946 it removed the restrictions on the insured’s choice of beneficiary, and in certain instances permitted the payment of installment proceeds to deceased beneficiaries’ estates.13 From this course of legislation an unmistakable pattern of congressional policy emerges: Statutes enacted in time of war crisis narrow the range of beneficiaries; post-war legislation broadens it.14 Section 602 of the N. S. L. I. Act of 1940, governing the distribution of the policy proceeds here in controversy, must take meaning from its historical setting. Cf. United 11 §§ 4,13,19; 41 Stat. 371,375, 376. 12 §§ 3, 26; 43 Stat. 607, 614; 38 U. S. C. §§424, 451. 13 §§ 4, 9; 60 Stat. 782, 785; 38 U. S. C. §§802 (g), (u). 14 As to the 1946 amendments, see testimony of Mr. Harold W. Breining, Assistant Administrator for Insurance, Veterans’ Administration, Hearings before the Subcommittee on Insurance of the Committee on World War Veterans’ Legislation, House of Representatives, 79th Cong., 2d Sess., on H. R. 5772 and H. R. 5773 (p. 1): “The fundamental reasons for liberalization are that during the war the bulk of losses all came from the National Treasury. Through this method the Government assumed the losses due to the extra hazards of military and naval services. Since the Government during the war bore the major part of the losses it was not felt that the Government would want to pay, indirectly through this channel, large sums of money to persons who might be beneficiaries only because of some speculation, or because the insured might wish to give it to them as distinguished from persons who were likely to be dependent or to whom the insured might owe some semblance of a moral obligation. These restrictions originally were placed in the law with the UNITED STATES v. HENNING. 73 66 Opinion of the Court. States v. Zazove, 334 U. S. 602 (1948). Subsection (i) conditions the right of a beneficiary to the payment of any installments “upon his or her being alive to receive such payments”; it adds that “no person shall have a vested right to any installment . . . and any installments not paid to a beneficiary during such beneficiary’s lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority . . . .” And subsection (j), so as to disclaim any possible analogy to prior peacetime legislation which at one time had been construed to confer such rights,15 emphasizes that “no installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary.” On the contrary, the subsection directs “in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made.” In the face of this clear statutory language we are nevertheless urged to distinguish installments neither accrued nor paid from accrued installments that an intended beneficiary for some reason has not received. Whereas clear intent that they would be eliminated when the period of the emergency was over.” For congressional attitudes in enacting the W. R. I. A. of 1917, see, e. g., 55 Cong. Rec. 6761, 7690, and H. R. Rep. No. 130, 65th Cong., 1st Sess., Pt. 3, p. 5. The legislative history of the 1940 Act contains little expression of congressional intent. The Act was presented while a controversial revenue measure was under consideration. The Committee reports accompanying the revenue bill of which the N. S. L. I. Act became part contain no reference to the insurance legislation. A Conference Committee Report devoted less than a page to the Insurance Act. See H. R. Rep. No. 2894, S. Rep. No. 2114, H. R. Rep. No. 3002, all of the 76th Cong., 3d Sess. 15 McCullough v. Smith, 293 U. S. 228 (1934); cf. United States v. Citizens Loan & Trust Co., 316 U. S. 209 (1942), both cases involving the 1925 amendments to the World War Veterans’ Act. 43 Stat. 1310,38 U. S. C. § 514. 74 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. the former concededly may not pass to the estate of a deceased beneficiary, it is argued that the latter may. For to hold otherwise, the argument runs, might result in “amazing consequences”; the government, for example, by simply withholding payments until one beneficiary died might unjustly enrich another in a lower priority, or, if none survived, favor the public purse; moreover, a low-priority beneficiary by litigating a specious claim might profitably suspend payment until the higher-priority takers died. We reject the conclusion and its premises. The asserted distinction assumes that when Congress in § 602 (i) conditioned payment to beneficiaries on their “being alive to receive such payments” it meant something else; that it exempted, without words or other indication, installments accrued but not yet paid. But to read such language into subsection (i) strips it of significance; if limited in application to unmatured installments the strictures of that subsection would be mere surplusage, forbidding what the priority ladder of § 602 (h) (3) in any event could not logically permit. We cannot so nullify the clear import of subsection (i). In drafting the 1940 statute, Congress must have been fully cognizant of insurance legislation of the prior war. The 1917 War Risk Insurance Act was well understood to prohibit payment of accrued installments to the estates of beneficiaries who did not live to take their intended shares;16 the very contention made here today was then examined and rejected.17 No peacetime amendments, as those which in 16 Treasury Dept., Bureau of War Risk Insurance, Division of Military and Naval Insurance, Bulletin No. 1, p. 4 (1917); Cassar ello v. United States, 271 F. 486 (1919). 17 24 Comp. Dec. 733 (1918). Cf. American National Bank & Trust Co. v. United States, 77 U. S. App. D. C. 243, 134 F. 2d 674 (1943); United States v. Lee, 101 F. 2d 472 (1939), which interpreted 38 U. S. C. § 516, providing for reinstatement of lapsed World War I UNITED STATES v. HENNING. 75 66 Opinion of the Court. 1919 and 1924 specifically altered the deliberate wartime result, can aid the contention presented today.18 The conclusion is irresistible that when in 1940 the law conditioned payments on the beneficiary’s being alive to receive them, Congress said what it meant and meant what it said. Were more needed, the consistent course of administrative practice under the Acts of 1917 and 1940 applied the statutes to bar payments to deceased beneficiaries’ estates;19 that factor, too, must be accorded weight. United States v. Zazove, supra; United States v. Citizens Loan & Trust Co., 316 U. S. 209 (1942); United States v. Madigan, 300 U. S. 500 (1937). We are not unmindful of the fact that unanticipated delay in the payment of policy proceeds may withhold from a beneficiary the funds that Congress intended him to get; seven years and three deaths have not yet brought this litigation to an end. But we cannot apportion the blame for this cruel delay. And we may surely not speculate that the officials entrusted with the administration of the Act would attempt to enrich other beneficiaries or the treasury itself by a sardonic waiting game. We conclude that in this crisis legislation Congress, fully aware of the sometimes inevitable delays in pay- policies, as forbidding the payment of installments to the estates of deceased beneficiaries. These holdings turned on the section’s enumeration of a restricted class of permissible takers; estates of deceased persons were held not to fall within that class. The pertinent terms of that enactment are almost identical with portions of §§ 602 (g) and (h) of the National Service Life Insurance Act we must construe today. 18 Since this policy matured in 1945, we are not here concerned with whatever effects the 1946 amendments to the National Service Life Insurance Act might have on this or similar cases. 19 See 24 Comp. Dec. 733 (1918); Bulletin, note 16, supra; Communication to the Solicitor General of the United States from the Solicitor, Veterans’ Administration, dated March 12, 1952, reprinted as Appendix B, Brief for the United States. 76 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ment, preferred the occasionally harsh result to a course of action which would permit funds intended for living members of the narrow statutory class of permissible takers to seep down to an enlarged class of sub-beneficiaries created not by the Act itself but by intended beneficiaries’ testamentary plans. Courts may not flout so unmistakable a legislative purpose, expressed in so clear a congressional command. United States N. Citizens Loan & Trust Co., supra; Wissner v. Wissner, 338 U. S. 655 (1950). We hold that the award of accrued installments to the estates of deceased beneficiaries cannot stand. There remains the controversy between the natural mother and the United States. The Government contends that because Bessie, the stepmother, had stood in loco parentis to the insured at the time of his death, she was the maternal parent “who last bore that relationship” within the meaning of § 602 (h)(3)(C); consequently Clara Belle, the natural mother, despite a District Court finding that she, too, “last bore that relationship,” was displaced and forever lost any right to take by devolution under the Act. In essence, the argument is that no more than one parent of each sex may contemporaneously meet the test imposed by the Act; the “last” parent takes all, to the exclusion of others. And since the “last” parent is now dead, no one may take. We cannot agree. While the contention has the merit of simplicity, simplicity cannot supplant statutory interpretation. Section 602 (h)(3)(C), too, has a historical setting. The National Service Life Insurance Act as enacted in 1940 confined the class of devolutionary takers to the spouse and blood relatives of the insured.20 So written 20 §§ 602 (g) and (h)(3)(C), 54 Stat. 1010. The insured, however, was permitted to designate persons in loco parentis as beneficiaries. UNITED STATES v. HENNING. 77 66 Opinion of the Court. the legislation proved unsatisfactory in practice. As construed, that provision required payment of proceeds to an insured’s natural parents though they had abandoned him to be raised and supported wholly by foster parents, the latter being excluded from participation by the Act.21 Upon recommendation of the Veterans’ Administrator, Congress in 1942 amended the Act to foreclose that result. Persons who stood in loco parentis to the insured for at least one year prior to his entry into active military service were included within the Act’s definition of “parent.” And they qualified as takers by devolution if they “last bore that relationship” to the insured,22 an essential statutory condition to preclude the parceling out of proceeds among a series of transient hosts and to assure full benefits to those most likely to merit the insured’s financial support. The thrust of the amendment thus was directed at the inclusion of worthy foster parents, not the exclusion of natural parents however deserving. It may well be that ordinarily a foster relationship does not begin until natural parental ties, realistically viewed, are severed; if so, the foster parent bears the parental relationship when the natural parent has ceased to be such in truth and fact. And in that case, the clear intent of the 1942 amendments would demand the exclusion of the natural parent from participation in the proceeds. But since that determination, based on realities, not status, necessarily must depend on the facts of a particular case, it is peculiarly within the competence of others who are closer to the living facts. Here the District Court found that the parental relationship con- 21S. Rep. No. 1430, 77th Cong., 2d Sess., p. 2; H. R. Rep. No. 2312, 77th Cong., 2d Sess., p. 4. Cf. S. Rep. No. 91, 82d Cong., 1st Sess., p. 12; H. R. Rep. No. 6, 82d Cong., 1st Sess., p. 14. 22 §§ 7 to 9, 56 Stat. 659; 38 U. S. C. §§801 (f), (g), and (h) (3) (C). Cf. § 3 of the Servicemen’s Indemnity Act of 1951, 38 U. S. C. (Supp. V) § 852. 78 OCTOBER TERM, 1952. Opinion of Burton, J. 344 U. S. tinued until the insured’s death, and the Court of Appeals observed that “there is no finding or evidence of any estrangement, to say nothing of abandonment, or even any lack of parental feeling, between [the insured] and his mother, Clara Belle.” 23 Unable to freeze into formula the subtle family relations that may constitute a genuine parental bond, we must accept what the courts below deemed a continuing parental relationship between mother and son. Since we hold that Clara Belle Henning, the insured’s natural mother, is a surviving beneficiary entitled to take by devolution under § 602 (h)(3)(C), the Government may of course not invoke the provisions of § 602 (j) to withhold, for the benefit of the National Service Life Insurance Fund, payment of the installments accrued from the date of the insured’s death. It equally follows that the method of distribution of installments to Clara Belle, as “the beneficiary to whom payment is first made,” must depend on her age at the date of policy maturity, subject to her election of an optional settlement as provided by § 602 (h)(1) and (2) and applicable administrative regulations under the Act.24 Reversed. Mr. Justice Burton, with whom The Chief Justice joins, concurring in part and dissenting in part. I agree with the opinion and the judgment of the Court insofar as it holds that no installments may be paid to the legal representatives of the estates of the respective deceased beneficiaries. However, I feel obliged to conclude that, within the meaning of the Act, only the natural father and the foster mother of the insured last 23191 F. 2d, at 593. 24 38 U. 8. C. §802 (h)(1) and (2); 38 CFR, 1944 Supp., § 10.3475 et seq., applicable to this policy which matured in 1945. UNITED STATES v. HENNING. 79 66 Jackson, J., dissenting. bore to him, at the time of his death, the relationship of parents. That last relationship was then to the exclusion of everyone, even to the exclusion of his natural mother. Consequently, upon the death of those two persons who last bore the relationship of parent to the insured, there remained no person entitled under the terms of the Act to receive any of the proceeds as a contingent beneficiary. Accordingly, the proceeds should be withheld for the benefit of the National Service Life Insurance Fund. Mr. Justice Jackson, whom Mr. Justice Frankfurter joins, dissenting. Perhaps a halfhearted dissent, like an extemporaneous speech, is only worth the paper it is written upon. We do no more than point out that we would prefer a more benign construction of these complex statutes which would be equally reasonable. The problem is of that recurring sort well described by Judge Learned Hand as follows: “The issue involves the baffling question which comes up so often in the interpretation of all kinds of writings; how far is it proper to read the words out of their literal meaning in order to realize their overriding purpose? It is idle to add to the acres of paper and streams of ink that have been devoted to the discussion. When we ask what Congress ‘intended,’ usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion. He who supposes that he can be certain of the result, is the least fitted for the attempt.” United States v. Klinger, 199 F. 2d 645, 648. 80 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. The literal language of Congress in 38 U. S. C. § 802 (i) we would read with emphasis as follows: “The right Qi any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments.” This, on our reading, says that a beneficiary’s claim to an installment is matured and his right is perfected when the installment becomes due and he is alive to receive it whether or not he then actually reduces it to possession. Under the Court’s construction, no “right” to an installment comes into existence until the claimant has actually received payment. On that event, we would think he would cease to have the “right.” It is not clear what the Court would do about the case where a check was sent to pay the claim and the claimant died while it was in the mails or after he had received the check but before it was actually presented for payment. But to us this language means that installments accrue to a beneficiary when they fall due during his lifetime and thereupon become his of right. We do not read § 802 (j) as taking away what § 802 (i) grants. It may be read with this emphasis: “No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary . . . .” Just what “as such” adds or subtracts may be debated, but to us the phrase, if it is to have any significance in this context, means that payments cannot accrue to an administrator or executor, because a personal representative as such cannot become a beneficiary. But it does not mean that the personal representative cannot collect installments which had become the “right” of decedent during his lifetime. This construction would avoid what the Court admits is a harsh and capricious result. It seems strange, in dealing with a bereaved beneficiary, if our Government makes a promise to the ear to be broken to the hope. Under the Court’s view, though the beneficiary is alive UNITED STATES v. HENNING. 81 66 Jackson, J., dissenting. to receive the payment and therefore has the statutory “right” to it, any event that delays its actual payment may cancel his “right.” By an adverse claim, however fictitious, or a litigation, however frivolous, a junior beneficiary may delay payments and gamble on winning them for himself through death of the senior beneficiary. Some period of waiting is inevitable in the settlement of claims in any event, and we all know the tendency of claim papers to shuffle back and forth between Washington desks while time, which means little to the administrative staff, means everything to the claimant. We would not put upon beneficiaries all risks caused by delay and thus make their statutory rights as contingent as lottery tickets. Beneficiaries of this class are often dependents, left in urgent need by death of the insured. When red tape or litigiousness delays the promised income, should not the beneficiary while waiting to hear from Washington have a firm right to accrued installments on which he or his estate could depend? The reasoning that would deny the asset to the estate may also deny the needy beneficiary credit. We do not think that the Court’s admittedly harsh result is the fairest permissible interpretation of this statute. We would allow the estate of a beneficiary to recover payments that fall due while the beneficiary is alive to receive them. On this point alone do we dissent. 82 OCTOBER TERM, 1952. Syllabus. 344 U. S. BAUMET et al. v. UNITED STATES et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 39. Argued October 15, 1952.—Decided November 17, 1952. At the time of the death in 1942 of a serviceman insured under the National Service Life Insurance Act of 1940, his policy designated an uncle as sole beneficiary. The insured’s natural father instituted an action to claim the proceeds. The uncle died while that action was pending. The District Court found that the uncle and the uncle’s wife had stood in loco parentis to the insured from 1938 until the death of the insured; and that, long before the insured’s death, his natural father had abandoned him. Held: 1. An award to the deceased uncle’s personal representative cannot be sustained. United States v. Henning, ante, p. 66. Pp. 83-84. 2. Since the natural father had abandoned his son and thus ceased to be a parent in truth and fact, he is not a parent “who last bore that relationship” within the meaning of § 602 (h) (3) (C) and therefore may not claim the proceeds. Pp. 84-85. 3. The insured’s foster mother (the uncle’s wife), as the sole survivor of those who “last bore” the parental relationship to the insured, was entitled in her own right to all the accrued policy proceeds. P. 85. 191 F. 2d 194, reversed. In an action to determine the beneficiary under a policy of National Service Life Insurance, the District Court made an award of part of the proceeds to the personal representative of a deceased beneficiary. The Court of Appeals affirmed. 191 F. 2d 194. This Court granted certiorari. 343 U. S. 925. Reversed, p. 85. Louis A. D’Agosto argued the cause and filed a brief for petitioners. Morton Liftin argued the cause for the United States. With him on the brief were Acting Solicitor General BAUMET v. UNITED STATES. 83 82 Opinion of the Court. Stern, Assistant Attorney General Baldridge and Paul A. Sweeney. Thomas Thacher argued the cause for Peters, individually and as Executrix, respondent. With him on the brief was George G. Gallantz. Mr. Justice Clark delivered the opinion of the Court. Based on conflicting claims to the proceeds of a National Service Life Insurance policy, this is a companion case to United States v. Henning, ante, p. 66, decided today. The controversy is bottomed on the following facts: At the time of the insured serviceman’s death in 1942, his policy designated John J. Peters, his uncle, as sole beneficiary. Challenging the uncle’s standing as a permissible beneficiary under the statute, William Baumet, the insured’s natural father, instituted an action to claim the proceeds.1 Before that action came to trial, John J. Peters died.2 After a subsequent trial of the cause, the District Court found that John J. Peters and his wife Julie Peters had stood in loco parentis to the insured from 1938 until his death, and that the natural father’s 1 The insured’s natural mother died in 1936, and no claim is raised on her behalf. However, the infant half-brothers and half-sisters of the insured by their guardian ad litem filed a claim asserting that they followed their father William Baumet on the priority ladder of § 602 (h) (3); 38 U. S. C. § 802 (h) (3). But their standing under § 602 (h) (3) (D) is conditioned on the absence of takers qualifying under § 602 (h) (3) (C). Since we find such a taker, their claims need not be considered here. 2 Julie Peters, as John’s executrix, moved for substitution in his stead. The District Court denied the motion, on the ground that John J. Peters’ rights were extinguished by his death. 81 F. Supp. 1012 (S. D. N. Y. 1948). The Court of Appeals reversed, holding that accrued installments passed to a deceased beneficiary’s estate. 177 F. 2d 806 (2d Cir. 1949), cert, denied, 339 U. S. 923 (1950). A subsequent trial followed. 84 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. contemporaneous conduct had amounted to an abandonment of his son.3 Concluding that John J. Peters, as a person in loco parentis, was a validly designated beneficiary under the Act,4 it dismissed Baumet’s complaint. Accordingly, the court awarded the installments which had matured during John J. Peters’ lifetime to Julie Peters as his personal representative, and the installments thereafter maturing to Julie individually as a person in loco parentis who “last bore” the parental relationship to the insured.5 The Court of Appeals affirmed.6 It agreed that “after 1938 his father never saw him, manifested no interest in his career and contributed nothing toward his support”; in fact, there was “a permanent estrangement between them.” 7 And it approved the District Court’s allocation of the policy’s proceeds. In so holding, the Court of Appeals assumed that estates of deceased beneficiaries were proper takers, and that the foster parents had long supplanted the natural father in the parental relationship to the insured. In any event, the court thought, “the insured can have but one maternal parent and one paternal parent.”8 We granted certiorari, 343 U. S. 925. For the reasons detailed in United States v. Henning, supra, we hold that estates of deceased beneficiaries may not take proceeds under the Act. The award to John J. Peters’ personal representative must therefore fall. In regard to the natural father’s claim, the District Court’s findings sharply reveal that William Baumet long before 3 The District Court’s unreported findings and opinion are reprinted at pp. 10 to 24 of the Appendix to the Brief for the United States. 4 §§ 601 (f), 602 (g); 38 U. S. C. §§ 801 (f), 802 (g). 5 § 602 (h) (3) (C); 38 U. S. C. § 802 (h) (3) (C). 6 Baumet v. United States, 191 F. 2d 194 (2d Cir. 1951). 7 Id., at 195-196. 8 Ibid. BAUMET v. UNITED STATES. 85 82 Douglas, J., dissenting in part. his son’s death had “abandoned his son” and ceased to be a parent in truth and fact. He may not now retrieve the discarded paternal robes to lay claim to the policy proceeds; to rule otherwise would foil the plain intent of the 1942 amendments. Since the foster parents, not he, “last bore” the parental relationship, he cannot qualify as a taker by devolution under § 602 (h)(3)(C) of the Act. For that reason we hold that the foster mother, Julie Peters, as the sole survivor of those who “last bore” the parental relationship, in her own right must take all accrued policy proceeds. Reversed. Mr. Justice Frankfurter and Mr. Justice Jackson, for the reasons stated in the dissenting opinion of Mr. Justice Jackson in United States v. Henning, ante, p. 79, decided this date, dissent from the Court’s refusal to permit the deceased beneficiary’s estate to share in the proceeds. Mr. Justice Douglas, dissenting in part. I think William Baumet and Julie Peters should share the accrued policy proceeds pari passu. I believe that the natural father as well as the foster mother “last bore” the parental relationship to the insured. No law, no dictionary, no form of words can change that biological fact. The natural father, as well as the natural mother, remains a parent no matter how estranged parent and child may become. A stranger may by conduct become a foster parent; but no conduct can transmute a natural parent into a stranger. 86 OCTOBER TERM, 1952. Syllabus. 344 U. S. SWEENEY, SHERIFF, v. WOODALL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 100. Certiorari granted and judgment reversed, Nov. 17, 1952. A fugitive from an Alabama prison was arrested in Ohio and held there for return to Alabama pursuant to proceedings instituted by the Governor of Alabama. Although he had made no attempt to raise such a question in the courts of Alabama, he claimed in Ohio that his confinement in Alabama amounted, and would amount again, to cruel and unusual punishment contrary to the Eighth and Fourteenth Amendments; and he applied unsuccessfully to an Ohio state court for release on a writ of habeas corpus. After exhausting his remedies in the Ohio courts, he applied to a federal district court in Ohio for habeas corpus on the same grounds. Alabama was not a party to that proceeding. Held: The district court should not entertain the application on its merits. Pp. 87-90. (a) The scheme of interstate rendition set forth in Art. IV, § 2, cl. 2 of the Constitution and the statutes thereunder contemplates the prompt return of a fugitive from justice as soon as the state from which he fled demands him; these provisions do not contemplate an appearance by that state in the asylum state to defend against claimed abuses of the former state’s prison system. Pp. 89-90. (b) The prisoner should test the constitutionality of his treatment by Alabama in the courts of that State, where all parties may be heard, where all pertinent testimony will be readily available and where suitable relief, if any is necessary, may be fashioned. P. 90. 194 F. 2d 542, reversed. The District Court dismissed respondent’s petition for habeas corpus. The Court of Appeals reversed. 194 F. 2d 542. On petition to this Court, certiorari granted and judgment reversed, p. 90. Frank T. Cullitan and Gertrude M. Bauer for petitioner. Frank C. Lyons for respondent. SWEENEY v. WOODALL. 87 86 Opinion of the Court. Eugene Cook, Attorney General, M. H. Blackshear, Jr., Deputy Assistant Attorney General, and Lamar W. Sizemore, Assistant Attorney General, filed a brief for the State of Georgia, as amicus curiae, supporting the petition. Per Curiam. The respondent is a fugitive from a prison in Alabama. The Governor of that State instituted proceedings for his return, and respondent was arrested in Ohio. Petitioner, the Sheriff of Cuyahoga County, Ohio, now holds respondent for delivery to the authorities of Alabama. In an attempt to prevent his rendition to Alabama, respondent applied to the Court of Common Pleas of Cuyahoga County for a writ of habeas corpus. He alleged that during his confinement in Alabama he had been brutally mistreated, that he would be subjected to such mistreatment and worse if returned. Invoking the Eighth and Fourteenth Amendments, he asserted that his past confinement had amounted to cruel and unusual punishment, that any future confinement administered by Alabama would similarly be in violation of rights secured to him under the Federal Constitution. Respondent asked that petitioner’s efforts to return him to the custody of Alabama be halted and that he be immediately released. Refusing to hear this claim on its merits, the Court of Common Pleas denied respondent’s application. This judgment was affirmed by the Ohio Court of Appeals for the Eighth District. 88 Ohio App. 202, 89 N. E. 2d 493. An appeal to the State’s Supreme Court was dismissed. 152 Ohio St. 368, 89 N. E. 2d 494. This Court denied a petition for certiorari. 339 U. S. 945. Respondent then applied to the United States District Court for the Northern District of Ohio, seeking his release upon the same ground theretofore urged in the Ohio 226612 0—53-------------11 88 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. courts. The District Court dismissed his petition for a writ of habeas corpus without hearing evidence. But the Court of Appeals for the Sixth Circuit reversed, without opinion, remanding the cause to the District Court for a hearing on the merits of the constitutional claim. 194 F. 2d 542. Petitioner has now applied to this Court for a writ of certiorari. Recently, in Dye n. Johnson, 338 U. S. 864 (1949), this Court considered a petition for certiorari in a similar case. The Court of Appeals for the Third Circuit had sustained an application for habeas corpus by a fugitive prisoner from Georgia who alleged, as respondent does now, that his confinement in the demanding state amounted to cruel and unusual punishment in violation of his constitutional rights. Presented with a petition for certiorari to review this decision, we reversed, summarily, citing Ex parte Hawk, 321 U. S. 114 (1944). Shortly after our decision in the Dye case, the Court of Appeals for the District of Columbia Circuit affirmed a District Court’s dismissal of a similar petition for habeas corpus from still another fugitive, holding that the federal courts in the asylum should not entertain such applications. Johnson v. Matthews, 86 U. S. App. D. C. 376, 182 F. 2d 677 (1950).1 In the present case, as in the others, a fugitive from justice has asked the federal court in his asylum to pass 1 In other similar cases, the Court of Appeals for the Ninth Circuit, in Ross v. Middlebrooks, 188 F. 2d 308 (1951), and the Court of Appeals for the Eighth Circuit, in Davis n. O’Connell, 185 F. 2d 513 (1950), have reached a like result. In United States ex rel. Jackson n. Ruthazer, 181 F. 2d 588 (1950), the Court of Appeals for the Second Circuit held that a fugitive from Georgia was not entitled to a hearing in the federal courts in his asylum on the ground that the merits had been fully heard in the state courts of the asylum and the fugitive’s claim disproved. SWEENEY v. WOODALL. 89 86 Opinion of the Court. upon the constitutionality of his incarceration in the demanding state, although the demanding state is not a party before the federal court and although he has made no attempt to raise such a question in the demanding state. The question is whether, under these circumstances, the district court should entertain the fugitive’s application on its merits. Respondent makes no showing that relief is unavailable to him in the courts of Alabama. Had he never eluded the custody of his former jailers he certainly would be entitled to no privilege permitting him to attack Alabama’s penal process by an action brought outside the territorial confines of Alabama in a forum where there would be no one to appear and answer for that State. Indeed, as a prisoner of Alabama, under the provisions of 28 U. S. C. § 2254,2 and under the doctrine of Ex parte Hawk, supra, he would have been required to exhaust all available remedies in the state courts before making any application to the federal courts sitting in Alabama. By resort to a form of “self help,” respondent has changed his status from that of a prisoner of Alabama to that of a fugitive from Alabama. But this should not affect the authority of the Alabama courts to determine the validity of his imprisonment in Alabama. The scheme of interstate rendition, as set forth in both the 2 “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 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.” 90 OCTOBER TERM, 1952. Frankfurter, J., concurring. 344 U. S. Constitution 3 and the statutes which Congress has enacted to implement the Constitution,4 contemplates the prompt return of a fugitive from justice as soon as the state from which he fled demands him; these provisions do not contemplate an appearance by Alabama in respondent’s asylum to defend against the claimed abuses of its prison system.5 Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available and where suitable relief, if any is necessary, may be fashioned. The District Court properly dismissed the application for habeas corpus on its face, and the Court of Appeals erred in holding that the applicant was entitled to a hearing in the District Court of Ohio on the merits of his constitutional claim against prison officials of Alabama. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed. It is so ordered. Mr. Justice Frankfurter, concurring. I join in the Court’s opinion because I agree that due regard for the relation of the States, one to another, in our federal system and for that of the courts of the 3 U. S. Const., Art. IV, § 2, cl. 2: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” 4 1 Stat. 302, as amended, 18 U. S. C. § 3281. 5Cf. Drew v. Thaw, 235 U. S. 432 (1914). SWEENEY v. WOODALL. 91 86 Douglas, J., dissenting. United States to those of the States requires that claims even as serious as those here urged first be raised in the courts of the demanding State. Even so, it is appropriate to emphasize that in this case there is no suggestion in the application for habeas corpus that the prisoner would be without opportunity to resort to the courts of Alabama for protection of his constitutional rights upon his return to Alabama. We cannot assume unlawful action of the prison officials which would prevent the petitioner from invoking the aid of the local courts nor readily open the door to such a claim. Compare Cochran v. Kansas, 316 U. S. 255. Our federal system presupposes confidence that a demanding State will not exploit the action of an asylum State by indulging in outlawed conduct to a returned fugitive from justice. Mr. Justice Douglas, dissenting. The petition presents facts which, if true, make this a shocking case in the annals of our jurisprudence. Respondent, a Negro, was convicted of burglary in Alabama and sentenced to hard labor at a state penitentiary. After six years he escaped and was apprehended in Ohio. Thereafter Alabama undertook to extradite him so that he could be returned to Alabama and serve the balance of his sentence. He thereupon filed this petition for habeas corpus to be released from the custody of petitioner, the Ohio sheriff who presently detains him. He offered to prove that the Alabama jailers have a nine-pound strap with five metal prongs that they use to beat prisoners, that they used this strap against him, that the beatings frequently caused him to lose consciousness and resulted in deep wounds and permanent scars. He offered to prove that he was stripped to his waist and forced to work in the broiling sun all day long without a rest period. 92 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. He offered to prove that on entrance to the prison he was forced to serve as a “gal-boy” or female for the homosexuals among the prisoners. Lurid details are offered in support of these main charges. If any of them is true, respondent has been subjected to cruel and unusual punishment in the past and can be expected on his return to have the same awful treatment visited upon him. The Court allows him to be returned to Alabama on the theory that he can apply to the Alabama courts for relief from the torture inflicted on him. That answer would suffice in the ordinary case. For a prisoner caught in the mesh of Alabama law normally would need to rely on Alabama law to extricate him. But if the allegations of the petition are true, this Negro must suffer torture and mutilation or risk death itself to get relief in Alabama. It is contended that there is no showing that the doors of the Alabama courts are closed to petitioner or that he would have no opportunity to get relief. It is said that we should not assume that unlawful action of prison officials would prevent petitioner from obtaining relief in the Alabama courts. But we deal here not with an academic problem but with allegations which, if proved, show that petitioner has in the past been beaten by guards to the point of death and will, if returned, be subjected to the same treatment. Perhaps those allegations will prove groundless. But if they are supported in evidence, they make the return of this prisoner a return to cruel torture. I am confident that enlightened Alabama judges would make short shrift of sadistic prison guards. But I rebel at the thought that any human being, Negro or white, should be forced to run a gamut of blood and terror in order to get his constitutional rights. That is too great a price to pay for the legal principle that before a state prisoner can get federal relief he must exhaust his state SWEENEY v. WOODALL. 93 86 Douglas, J., dissenting. remedies. The enlightened view is indeed the other way. See Johnson n. Dye, 175 F. 2d 250 (which unhappily the Court reversed, 338 U. S. 864); Johnson v. Matthews, 86 U. S. App. D. C. 376, 383-386, 182 F. 2d 677, 684-687; Commonwealth v. 'Superintendent of County Prison, 152 Pa. Super. 167, 31 A. 2d 576. Certainly there can be no solid objection to the use of habeas corpus to test the legality of the treatment of a prisoner who has been lawfully convicted. In Cochran v. Kansas, 316 U. S. 255, 258, habeas corpus was used to challenge the legality of the practice of prison officials in denying a convict the opportunity of presenting appeal papers to a higher court. And see In re Bonner, 151 U. S. 242. Such an act of discrimination against a prisoner was a violation of the Equal Protection Clause of the Fourteenth Amendment. The infliction of “cruel and unusual punishments” against the command of the Eighth Amendment is a violation of the Due Process Clause of the Fourteenth Amendment, whether that clause be construed as incorporating the entire Bill of Rights or only some of its guaranties. See Adamson n. California, 332 U. S. 46. Even under the latter and more restricted view, the punishments inflicted here are so shocking as to violate the standards of decency implicit in our system of jurisprudence. Cf. Francis v. Resweber, 329 U. S. 459. The Court of Appeals should be sustained in its action in giving respondent an opportunity to prove his charges. If they are established, respondent should be discharged from custody and saved the ordeal of enduring torture and risking death in order to protect his constitutional rights.* *The requirements of 28 U. S. C. § 2241 (c) regulating the use of habeas corpus are met since the charges, if proved, would result in a return of respondent to Alabama to a “custody in violation of the Constitution” of the United States. 94 OCTOBER TERM, 1952. Syllabus. 344 U. S. KEDROFF et al. v. SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX CHURCH IN NORTH AMERICA. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 3. Argued February 1, 1952.—Reargued October 14, 1952.— Decided November 24, 1952. In a suit brought in a New York state court by a corporation, holder of the legal title, to determine which prelate was entitled to the use and occupancy of a Cathedral of the Russian Orthodox Church in New York City, the Court of Appeals of New York held for plaintiff, on the ground that Article 5-C of the Religious Corporations Law of New York had the purpose and effect of transferring the administrative control of the Russian Orthodox churches in North America from the Supreme Church Authority in Moscow to the authorities selected by a convention of the North American churches. Held: As thus construed and applied, the New York statute interferes with the free exercise of religion, contrary to the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 95-121. (a) Legislation which determines, in an hierarchical church, ecclesiastical administration or the appointment of the clergy, or transfers control of churches from one group to another, interferes with the free exercise of religion contrary to the Constitution. Pp. 106-116, 119. (b) That the purpose of such legislation is to protect American churches from infiltration of atheistic or subversive influences does not require a different result, though legislative power to punish subversive action cannot be doubted and neither his robe nor his pulpit would be a defense to a cleric attempting subversive actions. Pp. 108-110, 117-121. (c) American Communications Association n. Douds, 339 U. S. 382; and Late Corporation of Latter-Day Saints v. United States, 136 U. S. 1, distinguished. Pp. 117-121. (d) Freedom to select the clergy, where no improper methods of choice are proven, must now be said to have federal constitutional protection against state interference, as a part of the free exercise of religion. Pp. 115-116. KEDROFF v. ST. NICHOLAS CATHEDRAL. 95 94 Opinion of the Court. (e) Even in those cases when property rights follow as incidents from decisions of the church custom or law on ecclesiastical issues, the church rule controls and must be accepted by the civil courts. Watson v. Jones, 13 Wall. 679. Pp. 115-116, 120-121. 302 N. Y. 1, 33, 96 N. E. 2d 56, 74, reversed and remanded. In an action brought in a state court by appellee, a New York corporation, to determine the right to the use and occupancy of a church in New York City, the trial court gave judgment in favor of the defendants, appellants here. 192 Mise. 327, 77 N. Y. S. 2d 333. The Appellate Division of the State Supreme Court affirmed. 276 App. Div. 309, 94 N. Y. S. 2d 453. The Court of Appeals reversed. 302 N. Y. 1, 33, 96 N. E. 2d 56, 74. On appeal to this Court, reversed and remanded, p. 121. Philip Adler argued the cause and filed the briefs for appellants. Ralph Montgomery Arkush argued the cause and filed the brief for appellee. Mr. Justice Reed delivered the opinion of the Court. The right to the use and occupancy of a church in the city of New York is in dispute. The right to such use is claimed by appellee, a corporation created in 1925 by an act of the Legislature of New York, Laws of New York 1925, c. 463, for the purpose of acquiring a cathedral for the Russian Orthodox Church in North America as a central place of worship and residence of the ruling archbishop “in accordance with the doctrine, discipline and worship of the Holy Apostolic Catholic Church of Eastern Confession as taught by the holy scriptures, holy tradition, seven oecumenical councils and holy fathers of that church.” The corporate right is sought to be enforced so that the head of the American churches, religiously affiliated with the Russian Orthodox Church, may occupy the 96 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Cathedral. At the present time that head is the Metropolitan of All America and Canada, the Archbishop of New York, Leonty, who like his predecessors was elected to his ecclesiastical office by a sobor of the American churches.1 That claimed right of the corporation to use and occupancy for the archbishop chosen by the American churches is opposed by appellants who are in possession. Benjamin Fedchenkoff bases his right on an appointment in 1934 by the Supreme Church Authority of the Russian Orthodox Church, to wit, the Patriarch locum tenens of Moscow and all Russia and its Holy Synod, as Archbishop of the Archdiocese of North America and the Aleutian Islands. The other defendant-appellant is a priest of the Russian Orthodox Church, also acknowledging the spiritual and administrative control of the Moscow hierarchy. Determination of the right to use and occupy Saint Nicholas depends upon whether the appointment of Ben- XA sobor is a convention of bishops, clergymen and laymen with superior powers, with the assistance of which the church officials rule their dioceses or districts. There is no problem of title. It is in the appellee corporation. The issue is the right of use. St. Nicholas Cathedral n. Kedrofi, 302 N. Y. 1, 20, 96 N. E. 2d 56, 66-67. The deed to the Cathedral Corporation required the grantee to hold the property in accordance with the terms of the Act of 1925, set out at the opening of this opinion. As said by the Court of Appeals, 302 N. Y., at 20, 96 N. E. 2d, at 66: “Plaintiff does not dispute this trust theory, but on the contrary relies upon it. Plaintiff has endeavored to prove that the beneficial use of the property today rightfully belongs to the Russian church in America (Religious Corporations Law, § 105) which was forced to declare its administrative autonomy at the Detroit sobor of 1924 in order to preserve and adhere to those principles and practices fundamental to the Russian Orthodox faith, free from the influence of an atheistic and antireligious foreign civil government.” See also Religious Corporations Law, § 5, 50 McKinney’s N. Y. Laws § 5. KEDROFF v. ST. NICHOLAS CATHEDRAL. 97 94 Opinion of the Court. jamin by the Patriarch or the election of the Archbishop for North America by the convention of the American churches validly selects the ruling hierarch for the American churches. The Court of Appeals of New York, reversing the lower court, determined that the prelate appointed by the Moscow ecclesiastical authorities was not entitled to the Cathedral and directed the entry of a judgment that appellee corporation be reinvested with the possession and administration of the temporalities of St. Nicholas Cathedral. St. Nicholas Cathedral v. Ked-roff, 302 N. Y. 1, 33, 96 N. E. 2d 56, 74. This determination was made on the authority of Article 5-C of the Religious Corporations Law of New York, 302 N. Y., at 24 et seq., 96 N. E. 2d, at 68 et seq., against appellants’ contention that this New York statute, as construed, violated the Fourteenth Amendment to the Constitution of the United States. Because of the constitutional questions thus generally involved, we noted probable jurisdiction, and, after argument and submission of the case last term, ordered reargument and requested counsel to include a discussion of whether the judgment might be sustained on state grounds. 343 U. S. 972. Both parties concluded that it could not, and the unequivocal remittitur of the New York Court of Appeals, 302 N. Y. 689, 98 N. E. 2d 485, specifically stating the constitutionality of the statute as the necessary ground for decision, compels this view and precludes any doubt as to the propriety of our determination of the constitutional issue on the merits. Grayson v. Harris, 267 U. S. 352; Indiana ex rel. Anderson v. Brand, 303 U. S. 95. The case now has been reargued and submitted. Article 5-C was added to the Religious Corporations Law of New York in 1945 and provided both for the incorporation and administration of Russian Orthodox churches. Clarifying amendments were added in 1948. 98 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. The purpose of the article was to bring all the New York churches, formerly subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow or the Patriarch of Moscow, into an administratively autonomous metropolitan district. That district was North American in area, created pursuant to resolutions adopted at a sobor held at Detroit in 1924.2 This declared autonomy was made effective by a further legislative requirement that all the churches formerly administratively subject to the Moscow synod and patri- 2 50 McKinney’s N. Y. Laws § 105: “The ‘Russian Church in America’, as that term is used anywhere in this article, refers to that group of churches, cathedrals, chapels, congregations, societies, parishes, committees and other religious organizations of the Eastern Confession (Eastern Orthodox or Greek Catholic Church) which were known as (a) Russian American Mission of the Russian Orthodox Church from in or about seventeen hundred ninety-three to in or about eighteen hundred seventy; (b) Diocese of Alaska and the Aleutian Islands of the Russian Orthodox Church from in or about eighteen hundred seventy to in or about nineteen hundred four; (c) Diocese of North America and the Aleutian Islands (or Alaska) of the Russian Orthodox Church from in or about nineteen hundred four to in or about nineteen hundred twenty-four; and (d) Russian Orthodox Greek Catholic Church of North America since in or about nineteen hundred twenty-four; and were subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow until in or about nineteen hundred seventeen, later the Patriarchate of Moscow, but now constitute an administratively autonomous metropolitan district created pursuant to resolutions adopted at a general convention (sobor) of said district held at Detroit, Michigan, on or about or between April second to fourth, nineteen hundred twenty-four. “A ‘Russian Orthodox church’, as that term is used anywhere in this article, is a church, cathedral, chap [t] el, congregation, society, parish, committee or other religious organization founded and established for the purpose and with the intent of adhering to, and being subject to the administrative jurisdiction of said mission, diocese or autonomous metropolitan district hereinabove defined as the Russian Church in America.” KEDROFF v. ST. NICHOLAS CATHEDRAL. 99 94 Opinion of the Court. archate should for the future be governed by the ecclesiastical body and hierarchy of the American metropolitan district.3 The foregoing analysis follows the interpretation of this article by the Court of Appeals of New York, an interpretation binding upon us.4 3 Id., § 107: “1. Every Russian Orthodox church in this state, whether incorporated before or after the creation of said autonomous metropolitan district, and whether incorporated or reincorporated pursuant to this article or any other article of the religious corporations law, or any general or private law, shall recognize and be and remain subject to the jurisdiction and authority of the general convention (sobor), metropolitan archbishop or other primate or hierarch, the council of bishops, the metropolitan council and other governing bodies and authorities of the Russian Church in America, pursuant to the statutes for the government thereof adopted at a general convention (sobor) held in the city of New York on or about or between October fifth to eighth, nineteen hundred thirty-seven, and any amendments thereto and any other statutes or rules heretofore or hereafter adopted by a general convention (sobor) of the Russian Church in America and shall in all other respects conform to, maintain and follow the faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the Eastern Confession (Eastern Orthodox or Greek Catholic Church). “3. The trustees of every Russian Orthodox church shall have the custody and control of all temporalities and property, real and personal, belonging to such church and of the revenues therefrom and shall administer the same in accordance with the by-laws of such church, the normal statutes for parishes of the Russian Church in America approved at a general convention (sobor) thereof held at Cleveland, Ohio, on or about or between November twentieth to twenty-third, nineteen hundred thirty-four, and any amendments thereto and all other rules, statutes, regulations and usages of the Russian Church in America.” 4 Hebert v. Louisiana, 272 U. S. 312, 317; Winters v. New York, 333 U. S. 507, 514. The court expressed its conclusion in reversing the judgment of the Appellate Division of the Supreme Court, St. Nicholas Cathedral v. Kedroff, 276 App. Div. 309, 94 N. Y. S. 2d 453, which had affirmed 100 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Article 5-C is challenged as invalid under the constitutional prohibition against interference with the exercise of religion.5 The appellants’ contention, of course, is based on the theory that the principles of the First Amendment are made applicable to the states by the Fourteenth.6 See Stokes, Church and State in the United States (1950), vol. 1, c. VIII. The Russian Orthodox Church is an autocephalous member of the Eastern Orthodox Greek Catholic Church. It sprang from the Church of Constantinople in the Tenth Century. The schism of 1054 A. D. split the Universal Church into those of the East and the West. Gradually self-government was assumed by the Russian Church until in the Sixteenth Century its autonomy was recognized and a Patriarch of Moscow appeared. Fortescue, Orthodox Eastern Church, c. V. For the next one hun- the Trial Term. 192 Mise. 327, 77 N. Y. S. 2d 333. The Court of Appeals held: “The only construction which gives meaning to all the language in sections 105 and 107 is that the statute was intended to apply to those Russian Orthodox churches founded and established before 1924 for the purpose of adhering and being subject to the North American Mission or North American Diocese, and to those Russian Orthodox churches founded and established after 1924 for the purpose of adhering and being subject to the autonomous metropolitan district. The majority in the Appellate Division further intimated that to read the statute literally would result in an interference in ecclesiastical concerns not within the competency of the Legislature. The latter suggestion is the only one which requires discussion, for, as already indicated, the intent of the Legislature (as distinguished from its competency) is unmistakable.” 302 N. Y., at 29, 96 N. E. 2d, at 71. 5First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . .” 6 Hamilton v. Regents, 293 U. S. 245, 262; Cantwell v. Connecticut, 310 U. S. 296, 303; Everson v. Board of Education, 330 U. S. 1, 14-15; Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 210-211; Zorach v. Clauson, 343 U. S. 306, 310. KEDROFF v. ST. NICHOLAS CATHEDRAL. 101 94 Opinion of the Court. dred years the development of the church kept pace with the growth of power of the Czars but it increasingly became a part of the civil government—a state church. Throughout that period it also remained an hierarchical church with a Patriarch at its head, governed by the conventions or sobors called by him. However, from the time of Peter the Great until 1917 no sobor was held. No patriarch ruled or was chosen. During that time the church was governed by a Holy Synod, a group of ecclesiastics with a Chief Procurator representative of the government as a member. Late in the Eighteenth Century the Russian Church entered the missionary field in the Aleutian Islands and Alaska. From there churches spread slowly down the Pacific Coast and later, with the Slavic immigration, to our eastern cities, particularly to Detroit, Cleveland, Chicago, Pittsburgh and New York. The character of the administrative unit changed with the years as is indicated by the changes in its name. See note 2. In 1904 when a diocese of North America was created its first archbishop, Tikhon, shortly thereafter established himself in his seat at Saint Nicholas Cathedral. His appointment came from the Holy Synod of Russia as did those of his successors in order Platon and Evdokim. Under those appointments the successive archbishops occupied the Cathedral and residence of Saint Nicholas under the administrative authority of the Holy Synod. In 1917 Archbishop Evdokim returned to Russia permanently. Early that year an All Russian Sobor was held, the first since Peter the Great. It occurred during the interlude of political freedom following the fall of the Czar. A patriarch was elected and installed—Tikhon who had been the first American Archbishop. Uncertainties as to the succession to and administration of the American archbishopric made their appearance following this sobor and were largely induced 102 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. by the almost contemporaneous political disturbances which culminated swiftly in the Bolshevik Revolution of 1917. The Russian Orthodox Church was drawn into this maelstrom. After a few years the Patriarch was imprisoned. There were suggestions of his counterrevolutionary activity. Church power was transferred, partly through a sobor considered by many as non-canonical, to a Supreme Church Council. The declared reforms were said to have resulted in a “Living Church” or sometimes in a “Renovated Church.” Circumstances and pressures changed. Patriarch Tikhon was released from prison and died in 1925. He named three bishops as locum tenens for the patriarchal throne. It was one of these, Sergius, who in 1933 appointed the appellant Benjamin as Archbishop. The Church was registered as a religious organization under Soviet law in 1927. Thereafter the Russian Church and the Russian State approached if not a reconciliation at least an adjustment which eventuated by 1943 in the election of Sergius, one of the bishops named as locum tenens by Tikhon, to the Patriarchate. The Living or Renovated Church, whether deemed a reformed, a schismatic or a new church, apparently withered away. After Sergius’ death a new Patriarch of the Russian Orthodox Church, Alexi, was chosen Patriarch in 1945 at Moscow at a sobor recognized by all parties to this litigation as a true sobor held in accordance with the church canons.7 The Russian upheaval caused repercussions in the North American Diocese. That Diocese at the time of the Soviet Revolution recognized the spiritual and ad- 7 Fortescue, supra (1916); Brian-Chaninov, The Russian Church (1931), c. VIII; Zernov, The Russians and Their Church (1945); French, The Eastern Orthodox Church (1951), c. VII; Danzas, The Russian Church (1936); Anderson, People, Church and State in Modern Russia (1944), pp. 121-140; Bolshakoff, The Foreign Missions of the Russian Orthodox Church (1943), c. IV. KEDROFF v. ST. NICHOLAS CATHEDRAL. 103 94 Opinion of the Court. ministrative control of Moscow. White Russians, both lay and clerical, found asylum in America from the revolutionary conflicts, strengthening the feeling of abhorrence of the secular attitude of the new Russian Government. The church members already here, immigrants and native-born, while habituated to look to Moscow for religious direction, were accustomed to our theory of separation between church and state. The Russian turmoil, the restraints on religious activities and the evolution of a new ecclesiastical hierarchy in the form of the “Living Church,” deemed noncanonical or schismatic by most churchmen, made very difficult Russian administration of the American diocese. Furthermore, Patriarch Tikhon, on November 20,1920, issued Decision No. 362 relating to church administration for troublesome times. This granted a large measure of autonomy, when the Russian ruling authority was unable to function, subject to “confirmation later to the Central Church Authority when it is re-established.” Naturally the growing number of American-born members of the Russian Church did not cling to a hierarchy identified with their country of remote origin with the same national feeling that moved their immigrant ancestors. These facts and forces generated in America a separatist movement. That movement brought about the arrangements at the Detroit Sobor of 1924 for a temporary American administration of the church on account of the disturbances in Russia.8 This was followed by the declarations of autonomy of the successive sobors since that date, a spate of 8 The attitude of the Russian Church in America will be made sufficiently plain by these extracts from their records of action taken at the Detroit Sobor, 1924: “Point 1. Temporarily, until the convocation of the All Russian Sobor further indicated in Point 5, to declare the Russian Orthodox Diocese in America a self-governed Church so that it be governed by its own elected Archbishop by means of a Sobor of Bishops, a Council 226612 0—53-12 104 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. litigation concerning control of the various churches and occupancy of ecclesiastical positions,9 the New York legislation (known as Article 5-C, notes 2 and 3, supra), and this controversy. Delegates from the North American Diocese intended to be represented at an admittedly canonical Sobor of the Russian Orthodox Church held in 1945 at Moscow. They did not arrive in time on account of delays, responsibility for which has not been fixed. The following stipulation appears as to their later actions while at Moscow: “It is stipulated that Bishop Alexi and Father Dzvonchik, representing the local group of American Churches under Bishop Theophilus, appeared before the Patriarch and the members of his Synod in Moscow, presented a written report on the condition of the American Church, with a request for autonomy and a few days later received from the Patriarch the Ukase . . . composed of those elected from the clergy and laity, and periodic Sobors of the entire American Church. “Point 5. To leave the final regulation of questions arising from the relationship of the Russian and the American Churches to a future Sobor of the Russian Orthodox Church which will be legally convoked, legally elected, will sit with the participation of representatives of the American Church under conditions of political freedom, guaranteeing the fullness and authority of its decisions for the entire Church, and will be recognized by the entire Oecumenical Orthodox Church as a true Sobor of the Russian Orthodox Church.” 9Nemolovsky n. Rykhloff, 187 App. Div. 290, 175 N. Y. S. 617; Kedrovsky n. Archbishop and Consistory, 195 App. Div. 127, 186 N. Y. S. 346; Kedrovsky n. Rojdesvensky, 214 App. Div. 483, 212 N. Y. S. 273; id., 242 N. Y. 547, 152 N. E. 421; Kedrovsky n. Archbishop and Consistory, 218 App. Div. 121, 124, 217 N. Y. S. 873, 875; id., 220 App. Div. 750, 222 N. Y. S. 831; id., 249 N. Y. 75, 516, 162 N. E. 588, 164 N. E. 566 ~,Nikulnikofj n. Archbishop and Consistory, 142 Mise. 894, 255 N. Y. S. 653; Waipa v. Kushwara, 259 App. Div. 843, 20 N. Y. S. 2d 174; id., 283 N. Y. 780, 28 N. E. 2d 417. KEDROFF v. ST. NICHOLAS CATHEDRAL. 105 94 Opinion of the Court. There came to the Russian Church in America this Ukase of the Moscow Patriarchy of February 14 or 16, 1945, covering Moscow’s requirements for reunion of the American Orthodox Church with the Russian. It required for reunion that the Russian Church in America hold promptly an “all American Orthodox Church Sobor”; that it express the decision of the dioceses to reunite with the Russian Mother Church, declare the agreement of the American Orthodox Church to abstain “from political activities against the U. S. S. R.” and so direct its parishes, and elect a Metropolitan subject to confirmation by the Moscow Patriarchy. The decree said, “In view of the distance of the American Metropolitan District from the Russian Mother Church . . . the Metropolitan-Exarch . . . may be given some extended powers by the Moscow Patriarchy . . . The American congregations speaking through their Cleveland Sobor of 1946 refused the proffered arrangement and resolved in part: “That any administrative recognition of the Synod of the Russian Orthodox Church Abroad is hereby terminated, retaining, however, our spiritual and brotherly relations with all parts of the Russian Orthodox Church abroad . . . This ended the efforts to compose the differences between the Mother Church and its American offspring, and this litigation followed. We understand the above factual summary corresponds substantially with the factual basis for determination formulated by the Court of Appeals of New York. From those circumstances it seems clear that the Russian Orthodox Church was, until the Russian Revolution, an hierarchical church with unquestioned paramount jurisdiction in the governing body in Russia over the American Metropolitanate. Nothing indicates that either the Sacred Synod or the succeeding Patriarchs 106 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. relinquished that authority or recognized the autonomy of the American church. The Court of Appeals decision proceeds, we understand, upon the same assumption. 302 N. Y., at 5, 23, 24, 96 N. E. 2d, at 57, 68, 69. That court did consider “whether there exists in Moscow at the present time a true central organization of the Russian Orthodox Church capable of functioning as the head of a free international religious body.” It concluded that this aspect of the controversy had not been sufficiently developed to justify a judgment upon that ground. 302 N. Y., at 22-24, 96 N. E. 2d, at 67-69. The Religious Corporations Law.—The New York Court of Appeals depended for its judgment, refusing recognition to Archbishop Benjamin, the appointee of the Moscow Hierarchy of the Russian Orthodox Church, upon Article 5-C of the Religious Corporations Law, quoted and analyzed at notes 2 and 3, supra™ Certainly a legislature 10 The Court said, 302 N. Y. 1, 96 N. E. 2d 56: “The Legislature has made a determination that the ‘Russian Church in America’ was the one which, to use our words in 249 New York at pages 77-78, was the trustee which ‘may be relied upon to carry out more effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N. Y. 114)’ by reason of the changed situation of the patriarchate in Russia.” 302 N. Y., at 30, 96 N. E. 2d, at 72. “The courts have always recognized that it is the province of the Legislature to make the underlying findings of fact which give meaning and substance to its ultimate directives. The courts have traditionally refused to consider the wisdom or technical validity of such findings of fact, if there be some reasonable basis upon which they may rest.” 302 N. Y., at 31, 96 N. E. 2d, at 72-73. “The Legislature of the State of New York, like the Congress, must be deemed to have investigated the whole problem carefully before it acted. The Legislature knew that the central authorities of the Russian Orthodox Church in Russia had been suppressed after the 1917 revolution, and that the patriarchate was later resurrected by the Russian Government. The Legislature, like Congress, knew the character and method of operation of international communism and KEDROFF v. ST. NICHOLAS CATHEDRAL. 107 94 Opinion of the Court. is free to act upon such information as it may have as to the necessity for legislation. But an enactment by a legislature cannot validate action which the Constitution prohibits, and we think that the statute here in question passes the constitutional limits. We conclude that Article 5-C undertook by its terms to transfer the control of the New York churches of the Russian Orthodox religion from the central governing hierarchy of the Russian Orthodox Church, the Patriarch of Moscow and the Holy Synod, to the governing authorities of the Russian Church in America, a church organization limited to the diocese of North America and the Aleutian Islands. This transfer takes place by virtue of the statute. Such a law violates the Fourteenth Amendment. It prohibits in this country the free exercise of religion. Legislation that regulates church administration, the operation of the churches, the appointment of clergy, by requiring conformity to church statutes “adopted at a general conven- the Soviet attitude toward things religious. The Legislature was aware of the contemporary views of qualified observers who have visited Russia and who have had an opportunity to observe the present status of the patriarchate in the Soviet system. The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary admin-istrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate. On the basis of these facts, and the facts stated (supra) and no doubt other facts we know not of, our Legislature concluded that the Moscow Patriarchate was no longer capable of functioning as a true religious body, but had become a tool of the Soviet Government primarily designed to implement its foreign policy. Whether we, as judges, would have reached the same conclusion is immaterial. It is sufficient that the Legislature reached it, after full consideration of all the facts.” 302 N. Y., at 32-33, 96 N. E. 2d, at 73-74. 108 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. tion (sobor) held in the City of New York on or about or between October fifth to eighth, nineteen hundred thirty-seven, and any amendments thereto,” note 3, supra, prohibits the free exercise of religion. Although this statute requires the New York churches to “in all other respects conform to, maintain and follow the faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the Eastern Confession (Eastern Orthodox or Greek Catholic Church),” their conformity is by legislative fiat and subject to legislative will. Should the state assert power to change the statute requiring conformity to ancient faith and doctrine to one establishing a different doctrine, the invalidity would be unmistakable. Although § 5 of the Religious Corporations Law11 had long controlled religious corporations, the Court of Appeals held that its rule was not based on any constitutional requirement or prohibition.12 Since certain events of which the Court took judicial notice indicated to it that the Russian Government exercised control over the cen- 11 “The trustees of every religious corporation shall have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom, and shall administer the same in accordance with the discipline, rules and usages of the corporation and of the ecclesiastical governing body, if any, to which the corporation is subject, . . . .” 12 302 N. Y., at 30, 96 N. E. 2d, at 72: “As a broad guide this rule undoubtedly has worked well, but it is by no means a constitutional doctrine not subject to change or modification by the same Legislature which announced it, in cases where literal enforcement would be unreasonable and opposed to the public interest. The Legislature, in the exercise of its extensive and acknowledged power to act for the common welfare, may find as a fact that a situation has arisen of such novelty and uniqueness that existing law is incapable of performing its avowed function—the preservation of religious temporalities for the use of their original and accustomed beneficiaries. If the Legislature find as a fact that, because of drastically changed circumstances, the accustomed beneficiaries of religious KEDROFF v. ST. NICHOLAS CATHEDRAL. 109 94 Opinion of the Court. tral church authorities and that the American church acted to protect its pulpits and faith from such influences, the Court of Appeals felt that the Legislature’s reasonable belief in such conditions justified the State in enacting a law to free the American group from infiltration of such atheistic or subversive influences.13 This legislation, Art. 5-C, in the view of the Court of Appeals, gave the use of the churches to the Russian Church in America on the theory that this church would most faithfully carry out the purposes of the religious trust.14 Thus dangers of political use of church pulpits would be minimized. Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric, neither his robe nor his pulpit would be a defense. But in this case no problem properties are thus threatened with their loss, and if there be a basis for such finding, we perceive no constitutional objection to a legislative attempt to trace and identify, as of today, the authentic group entitled to the administration of such properties.” 13 302 N. Y., at 13, 96 N. E. 2d, at 62: “The control of all phases of Russian life by the Government was not as apparent in 1924 as it is a quarter of a century later and on the surface, at least, the case appeared to be a proper one for the application of the rule that in an ecclesiastical dispute involving a denominational church, the decision of the highest church judicatories will be accepted as final and conclusive by the civil courts (Trustees of Presbytery of N. Y. v. Westminster Presbyt. Church, 222 N. Y. 305, 315; Watson v. Jones, 13 Wall. [U. S.] 679, 724-727; Religious Corporations Law, §§4, 5).” “. . . we feel we must accept the historical statements contained in the dissenting opinion of Mr. Justice Van Voorhis, below: ‘. . . In recent public pronouncements the State Department, and our representatives in the United Nations, have frequently recognized and denounced the suppression of human rights and basic liberties in religion as well as in other aspects of life, existing in Soviet Russia and in all of its satellite states. . . .”’ 302 N. Y., at 23, 96 N. E. 2d, at 68. 14 See note 10, supra. 110 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. of punishment for the violation of law arises. There is no charge of subversive or hostile action by any ecclesiastic. Here there is a transfer by statute of control over churches. This violates our rule of separation between church and state. That conclusion results from the purpose, meaning and effect of the New York legislation stated above, considered in the light of the history and decisions considered below. Hierarchical churches may be defined as those organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head. In Watson v. Jones, 13 Wall. 679, they are spoken of in like terms.15 That opinion has been given consideration in subsequent church litigation—state and national.16 The opinion itself, however, did not turn on either the establishment or the prohibition of the free exercise of religion. It was a church controversy in the Third or Walnut Street Presbyterian Church of Louisville, Kentucky, arising out of the slavery conflict and was filled with the acrimony of that period. It was decided here at the 1871 Term. “The government of the [Presbyterian] church is exercised by and through an ascending series of ‘judicatories,’ known as Church Sessions, Presby- 15 “The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.” 13 Wall. 679, 722-723. 16 Zollmann, American Church Law (1933), c. 9. E. g., Shepard v. Barkley, 247 U. S. 1; Barkley v. Hayes, 208 F. 319, 326; McGinnis V. Watson, 41 Pa. 9; Missouri ex rel. Watson v. Farris, 45 Mo. 183,197-198; First English Lutheran Church v. Evangelical Lutheran Synod, 135 F. 2d 701. Cf. Gibson v. Armstrong, 7 Ben. Monroe (Ky.) 481; German Reformed Church v. Commonwealth ex rel. Seibert, 3 Pa. 282. KEDROFF v. ST. NICHOLAS CATHEDRAL. Ill 94 Opinion of the Court. teries, Synods, and a General Assembly.” Id., at 681. The opinion of this Court assumed without question that the Louisville church, its property and its officers were originally and up to the beginning of the disagreements subjected to the operation of the laws of the General Assembly of the Presbyterian Church. Id., at 683. The actual possession of the church property was in trustees; its operation or use controlled by the Session composed of elders.17 Both were groups elected at intervals by the members. In May of 1865 the General Assembly, the highest judicatory of the church, made a declaration of loyalty to the Federal Government denouncing slavery, and directed that new members with contrary views should not be received. The Louisville Presbytery, the immediate superior of the Walnut Street Church, promptly issued a Declaration and Testimony, refusing obedience and calling for resistance to the alleged usurpation of authority. The Louisville Presbytery divided as did the Walnut Street Church and the proslavery group obtained admission into the Presbyterian Church of the Confederate States. In June 1867 the Presbyterian General Assembly 17 “One or two propositions which seem to admit of no controversy are proper to be noticed in this connection. 1. Both by the act of the Kentucky legislature creating the trustees of the church a body corporate, and by the acknowledged rules of the Presbyterian Church, the trustees were the mere nominal title-holders and custodians of the church property, and other trustees were, or could be elected by the congregation, to supply their places once in every two years. 2. That in the use of the property for all religious services or ecclesiastical purposes, the trustees were under the control of the church session. 3. That by the constitution of all Presbyterian churches, the session, which is the governing body in each, is composed of the ruling elders and pastor, and in all business of the session the majority of its members govern, the number of elders for each congregation being variable.” Id., at 720. 112 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. for the United States declared the Presbytery and Synod recognized by the proslavery party were “in no sense a true and lawful Synod and Presbytery in connection with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America.” They were “permanently excluded from connection with or representation in the Assembly. By the same resolution the Synod and Presbytery adhered to by those whom [the proslavery party] opposed were declared to be the true and lawful Presbytery of Louisville, and Synod of Kentucky.” Id., at 692. Litigation started in 1866 with a suit in the state court by certain of the antislavery group to have declared their right to act as duly elected additional elders “in the management of the church property for purposes of religious worship.” Id., at 685. As the Court of Appeals of Kentucky thought that certain acts of the Louisville Presbytery and the General Assembly of the United States, in pronouncing the additional elders duly elected, were void as beyond their functions, id., at 693,18 it refused the plea of the antislavery group and left the proslavery elders and trustees in control of the Walnut Street Church. Thereupon a new suit, Watson v. Jones, was begun by alleged members of the church to secure the use of the Walnut Street Church for the antislavery group. This suit was to decide not the validity of an election of elders 18 Watson v. Avery, 2 Bush (Ky.) 332, 347 et seq. “But we hold that the assembly, like other courts, is limited in its authority by the law under which it acts; and when rights of property, which are secured to congregations and individuals by the organic law of the church, are violated by unconstitutional acts of the higher [church] courts, the parties thus aggrieved are entitled to relief in the civil courts, as in ordinary cases of injury resulting from the violation of a contract, or the fundamental law of a voluntary association.” Id., at 349. KEDROFF v. ST. NICHOLAS CATHEDRAL. 113 94 Opinion of the Court. fought out in Watson v. Avery, supra, but which one of two bodies should be recognized as entitled to the use of the Walnut Street Presbyterian Church. It was determined that plaintiffs had a beneficial interest in the church property and therefore a standing to sue for its proper use, if they were members. Id., at 697, 714. A schism was recognized. Id., at 717. It was held: “The trustees obviously hold possession for the use of the persons who by the constitution, usages, and laws of the Presbyterian body, are entitled to that use.” Id., at 720. They were required to recognize “the true uses of the trust.” Id., at 722. Then turning to the consideration of an hierarchical church, as defined in n. 15, supra, and, as it found the Presbyterian Church to be, this Court said: “In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Id., at 727. As the General Assembly of the Church had recognized the antislavery group “as the regular and lawful Walnut Street Church and officers,” id., at 694, newly elected, and the trial court had found complainants members of that group, and had entered a decree adjudging that this group’s duly chosen and elected pastor, ruling elders 114 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. and trustees “respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged to pastor, elders, and trustees, respectively, in churches in connection with ‘The Presbyterian Church in the United States of America,’ Old School, and according to the regulations and usages of that church,” id., at 698, this Court affirmed the decree. In affirming, the Court recognized the contrariety of views between jurists as to civil jurisdiction over church adjudications having an effect upon property or its uses, when the civil courts determine the church judicatory has violated the church’s organic law.19 Its ruling is summed up in these words: “In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular 19 Compare Watson v. Avery, n. 18, supra, at 349, with Watson v. Jones, supra, at 732 et seq. KEDROFF v. ST. NICHOLAS CATHEDRAL. 115 94 Opinion of the Court. courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.” Id., at 728-729. This is applicable to “questions of discipline, or of faith, or ecclesiastical rule, custom, or law,” id., at 727.20 This controversy concerning the right to use St. Nicholas Cathedral is strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America. No one disputes that such power did lie in that Authority prior to the Russian Revolution. Watson v. Jones, although it contains a reference to the relations of church and state under our system of laws,21 was decided without depending upon prohibition of state interference with the free exercise of religion. It was decided in 1871, before judicial recognition of the coercive power of the Fourteenth Amendment to protect the limitations of the First Amendment against state action. It long antedated the 1938 decisions of Erie R. 20 The decision has encountered vivid and strong criticism for the breadth of its statement that where “a subject-matter of dispute, strictly and purely ecclesiastical in its character,” is decided, the civil court may not examine the conclusion to see whether the decision exceeds the powers of the judicatory. Id., at 733. See Zollmann, American Church Law (1933), c. 9, p. 291. The criticism does not go so far, however, as to condemn the nonreviewability of questions of faith, religious doctrine and ecclesiastical government, Watson v. Jones, at 729, 732, when within the “express or implied stipulations” of the agreement of membership. Zollmann, supra, §§310, 311, 315, 340. 21 Id., at 727. See pp. 113, 114-115, supra. 116 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., 304 U. S. 64 and 202, and, therefore, even though federal jurisdiction in the case depended solely on diversity, the holding was based on general law rather than Kentucky law.22 The opinion radiates, however, a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy, where no improper methods of choice are proven,23 we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference. 22 Barkley v. Hayes, 208 F. 319, 334; Sherard v. Walton, 206 F. 562, 564; Helm v. Zarecor, 213 F. 648, 657. 23 Gonzalez v. Archbishop, 280 U. S. 1, 16-17: “Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. Under like circumstances, effect is given in the courts to the determinations of the judicatory bodies established by clubs and civil associations.” See Brundage n. Deardorj, 55 F. 839, where Taft, Circuit Judge, in overruling a demurrer, stated: “Even if the supreme judicatory has the right to construe the limitations of its own power, and the civil courts may not interfere with such a construction, and must take it as conclusive, we do not understand the supreme court, in Watson v. Jones, to hold that an open and avowed defiance of the original compact, and an express violation of it, will be taken as a decision of the supreme judicatory which is binding on the civil courts.” P. 847. Later the case was considered on appeal by the Circuit Court of Appeals; Lurton, Circuit Judge, writing, thought that the facts proven showed conclusively that Watson v. Jones did control. 92 F. 214, 230. KEDROFF v. ST. NICHOLAS CATHEDRAL. 117 94 Opinion of the Court. Legislative Power.—The Court of Appeals of New York recognized, generally, the soundness of the philosophy of ecclesiastical control of church administration and polity but concluded that the exercise of that control was not free from legislative interference.24 That Court presented forcefully the argument supporting legislative power to act on its own knowledge of “the Soviet attitude toward things religious.” 302 N. Y., at 32-33, 96 N. E. 2d, at 74. It was said: “The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary administrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate.” 302 N. Y., at 33, 96 N. E. 2d, at 74. It was thought that American Communications Assn. v. Douds, 339 U. S. 382, supported the thesis that where there is some specific evil, found as a fact, “some infringement upon traditional liberties was justifiable” to effect a cure. 302 N. Y., at 31, 96 N. E. 2d, at 73. On that reasoning it was thought permissible, in view “of the changed situation of the patriarchate in Russia,” to replace it with the Russian Church in America as the ruling authority over the administration of the church. The legal basis for this legislative substitution was found in the theory that the Russian Church in America “was the trustee which ‘may be relied upon to carry out more 24 St. Nicholas Cathedral n. Kedrofi, 302 N. Y. 1, 30, 96 N. E. 2d 56, 72; note 12, supra. 118 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N. Y. 114).’ ” 302 N. Y., at 30, 96 N. E. 2d, at 72. Mindful of the authority of the Court of Appeals in its interpretation of the powers of its own legislature and with respect for its standing and ability, we do not agree with its statement as to legislative power over religious organizations. In our view the Douds case may not be interpreted to validate New York’s Article 5-C. That case involved the validity of § 9 (h) of the National Labor Relations Act as amended, 61 Stat. 136, 146, 29 U. S. C. § 159 (h). That section forbade the N. L. R. B. from acting at the suggestion of a labor organization unless affidavits of its officers were filed denying affiliation with subversive organizations or belief in the overthrow of this Government by force or other unconstitutional means. We upheld the enactment as a proper exercise of the power to protect commerce from the evil of disruption from strikes so politically inspired. In so doing we said, “legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights.” 339 U. S., at 399. And added, “But insofar as the problem is one of drawing inferences concerning the need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to substitute its judgment as to the necessity or desirability of the statute for that of Congress.” Id., at 400. It is an exaggeration to say that those sound statements point to a legislative power to take away from a church’s governing body and its duly ordained representative the possession and use of a building held in trust for the purposes for which it is being employed because of an apprehension, even though reason- KEDROFF v. ST. NICHOLAS CATHEDRAL. 119 94 Opinion of the Court. able, that it may be employed for improper purposes. In Douds we saw nothing that was aimed at the free expression of views. Unions could have officers with such affiliations and political purposes as they might choose but the Government was not compelled to allow those officers an opportunity to disrupt commerce for their own political ends. We looked upon the affidavit requirement as an assurance that disruptive forces would not utilize a government agency to accomplish their purposes. Id., at 403. In upholding the validity of Article 5-C, the New York Court of Appeals apparently assumes Article 5-C does nothing more than permit the trustees of the Cathedral to use it for services consistent with the desires of the members of the Russian Church in America. Its reach goes far beyond that point. By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment. Such prohibition differs from the restriction of a right to deal with Government allowed in Douds, in that the Union in the Douds case had no such constitutionally protected right. New York’s Article 5-C directly prohibits the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy. We do not think that New York’s legislative application of a cy-pres doctrine to this trust avoids the constitutional rule against prohibition of the free exercise of religion. Late Corporation of Latter-Day Saints v. United States, 136 U. S. 1, relied upon by the appellee, does not support its argument. There the Church of Jesus Christ of Latter-Day Saints had been incorporated as a religious corporation by the State of Deseret, with subsequent confirmation by the Territory of Utah. Its property was held 226612 0—53-----------13 120 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. for religious and charitable purposes. That charter was revoked by Congress and some of the property of the church was escheated to the United States for the use of the common schools of Utah. This Court upheld the revocation of the charter, relying on the reserved power of the Congress over the acts of territories, 136 U. S., at 45-46. The seizure of the property was bottomed on the general rule that where a charitable corporation is dissolved for unlawful practices, id., at 49-50, the sovereign takes and distributes the property according to the cypres doctrine to objects of charity and usefulness, e. g., schools. Id., at 47, 50-51. A failure of the charitable purpose could have the same effect. Id., at 59. None of these elements exist to support the validity of the New York statute putting the Russian Orthodox churches of New York under the administration of the Russian Church in America. See notes 2 and 3, supra. The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarch in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church. Ours is a government which by the “law of its being” allows no statute, state or national, that prohibits the free exercise of religion. There are occasions when civil courts must draw lines between the responsibilities of church and state for the disposition or use of property.25 Even in those cases when the property right follows as an incident from decisions of the church custom or law on ecclesiastical 25 Ponce n. Roman Catholic Church, 210 U. S. 296, 322. KEDROFF v. ST. NICHOLAS CATHEDRAL. 121 94 Frankfurter, J., concurring. issues, the church rule controls.26 This under our Constitution necessarily follows in order that there may be free exercise of religion. The decree of the Court of Appeals of New York must be reversed, and the case remanded to that court for such further action as it deems proper and not in contravention of this opinion. It is so ordered. Mr. Justice Frankfurter, concurring.* Let me put to one side the question whether in our day a legislature could, consistently with due process, displace the judicial process and decide a particular controversy affecting property so as to decree that A not B owns it or is entitled to its possession. Obviously a legislature would not have that power merely because the property belongs to a church. In any event, this proceeding rests on a claim which cannot be determined without intervention by the State in a religious conflict. St. Nicholas Cathedral is not just a piece of real estate. It is no more that than is St. Patrick’s Cathedral or the Cathedral of St. John the Divine. A cathedral is the seat and center of ecclesiastical authority. St. Nicholas Cathedral is an archiepiscopal see of one of the great religious organizations. What is at stake here is the power to exercise religious authority. That is the essence of this controversy. It is that even though the religious authority becomes manifest and is exerted through authority over the Cathedral as the outward symbol of a religious faith. 26 Watson v. Jones, supra; Barkley v. Hayes, 208 F. 319, 327, affirmed on appeal, Duvall n. Synod, 222 F. 669; Shepard v. Barkley, 247 U. S. 1. * [Joined by Mr. Justice Black and Mr. Justice Douglas, see post, p. 126.] 122 OCTOBER TERM, 1952. Frankfurter, J., concurring. 344 U. S. The judiciary has heeded, naturally enough, the menace to a society like ours of attempting to settle such religious struggles by state action. And so, when courts are called upon to adjudicate disputes which, though generated by conflicts of faith, may fairly be isolated as controversies over property and therefore within judicial competence, the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism. Watson v. Jones, 13 Wall. 679. This very limited right of resort to courts for determination of claims, civil in their nature, between rival parties among the communicants of a religious faith is merely one aspect of the duty of courts to enforce the rights of members in an association, temporal or religious, according to the laws of that association. See Gonzalez N. Archbishop, 280 U. S. 1, 16-17. Legislatures have no such obligation to adjudicate and no such power. Assuredly they have none to settle conflicts of religious authority and none to define religious obedience. These aspects of spiritual differences constitute the heart of this controversy. The New York legislature decreed that one party to the dispute and not the other should control the common center of devotion. In doing so the legislature effectively authorized one party to give religious direction not only to its adherents but also to its opponents. See St. Nicholas Cathedral n. Kedroff, 302 N. Y. 1, 24-29, 96 N. E. 2d 56, 68-72. The arguments by which New York seeks to justify this inroad into the realm of faith are echoes of past attempts at secular intervention in religious conflicts. It is said that an impressive majority both of the laity and of the priesthood of the old local church now adhere to the party whose candidate New York enthroned, as it were, as Archbishop. Be that as it may, it is not a function of civil government under our constitutional system to assure rule to any religious body by a counting of heads. KEDROFF v. ST. NICHOLAS CATHEDRAL. 123 94 Frankfurter, J., concurring. Our Constitution does assure that anyone is free to worship according to his conscience. A legislature is not free to vest in a schismatic head the means of acting under the authority of his old church, by affording him the religious power which the use and occupancy of St. Nicholas Cathedral make possible. Again, it is argued that New York may protect itself from dangers attributed to submission by the mother church in Moscow to political authority. To reject this claim one does not have to indulge in the tendency of lawyers to carry arguments to the extreme of empty formal logic. Scattered throughout the country there are religious bodies with ties to various countries of a world in tension—tension due in part to shifting political affiliation and orientation. The consideration which permeates the court’s opinion below would give each State the right to assess the circumstances in the foreign political entanglements of its religious bodies that make for danger to the State, and the power, resting on plausible legislative findings, to divest such bodies of spiritual authority and of the temporal property which symbolizes it. Memory is short but it cannot be forgotten that in the State of New York there was strong feeling against the Tsarist regime at a time when the Russian Church was governed by a Procurator of the Tsar. And when Mussolini exacted the Lateran Agreement, argument was not wanting by those friendly to her claims that the Church of Rome was subjecting herself to political authority.1 The fear, perhaps not wholly groundless, that the loyalty of its citizens might be diluted by their adherence to a 1 The Encyclopedia Britannica recounts that under the agreement between the Papal See and Mussolini, “The supremacy of the state was recognized by compelling bishops and archbishops to swear loyalty to the government.” Encyclopedia Britannica: “Anticlericalism,” 62, 62A (1948 ed.). 124 OCTOBER TERM, 1952. Frankfurter, J., concurring. 344 U. S. church entangled in antagonistic political interests, reappears in history as the ground for interference by civil government with religious attachments.2 Such fear readily leads to persecution of religious beliefs deemed dangerous to ruling political authority. It was on this basis, after all, that Bismarck sought to detach German Catholics from Rome by a series of laws not too different in purport from that before us today.3 The long, unedifying history of the contest between the secular state and the church is replete with instances of attempts by civil gov- 2 Such apprehension, at least in part, seems to have underlain two important religious controversies in a nation as devoted to freedom as Great Britain and as recently as a century ago. Both the dispute giving rise to the Free Church of Scotland Appeals and the brief but vigorous anti-Catholic outburst of 1850 are not unfairly attributable to a claim by the State of comprehensive loyalty, undeflected by the competing claims of religious faith. See Laski, Studies in the Problem of Sovereignty, 27-68, 121-210. See also Buchanan, The Ten Years’ Conflict (Edinburgh, 1849); Free Church of Scotland v. Overtoun, [1904] A. C. 515; The Free Church of Scotland Appeals (Orr. ed., Edinburgh, 1904). 3 Reichs-Gesetzblatt, 1871, p. 442; Reichs-Gesetzblatt, 1872, p. 253; Reichs-Gesetzblatt, 1874, p. 43; Reichs-Gesetzblatt, 1876, p. 28; 5 Gesetz-Sammlung fiir die Koniglich Preussischen Staaten 154, 221, 223, 225, 228, 337, 342; 6 id., at 30, 38, 40, 75, 170; 7 id., at 291. These laws have been thus summarized: ‘‘The Falk Laws are an attempt to insist on the universal paramountcy of German influences. The expulsion of the Jesuits removed an order which he [Bismarck] believed to be concerned with the promotion of Polish interests. The refusal of bishoprics to any save a German who has followed a course of study approved by the government has a clear purport ... of purging the Catholic episcopate of men not likely to be in sympathy with German ideals .... The twenty-fourth article went even further and gave the State the right of interference with ecclesiastical functions where it deemed them improperly performed. . . . The law of the twentieth of May, 1874, virtually handed over the control of vacant bishoprics to the State .... Catholic Churches on Prussian soil were handed over to the old Catho- KEDROFF v. ST. NICHOLAS CATHEDRAL. 125 94 Frankfurter, J., concurring. eminent to exert pressure upon religious authority. Religious leaders have often made gestures of accommodation to such pressures. History also indicates that the vitality of great world religions survived such efforts. In any event, under our Constitution it is not open to the governments of this Union to reinforce the loyalty of their citizens by deciding who is the true exponent of their religion. Finally, we are told that the present Moscow Patriarchate is not the true superior church of the American communicants. The vicissitudes of war and revolution which have beset the Moscow Patriarchate since 1917 are said to have resulted in a discontinuity which divests the present Patriarch of his authority over the American church. Both parties to the present controversy agree that the present Patriarch is the legitimately chosen holder of his office, and the account of the proceedings and pronouncements of the American schismatic group so indicates. Even were there doubt about this it is hard to see by what warrant the New York legislature is free to substitute its own judgment as to the validity of Patriarch Alexi’s claim and to disregard acknowledgment of the present Patriarch by his co-equals in the Eastern Confession, the Patriarchs of Constantinople, Alexandria, Antioch, and Jerusalem, and by religious leaders throughout the world, including the present Archbishop of York.4 lies [those refusing to adhere to the newly-promulgated dogma of papal infallibility] in such parishes as those in which the majority consisted of their sympathisers, for certain hours of the day . . . .” Laski, op. cit. supra, note 2, at 256-258. Bismarck’s Kulturkampf, of which these laws were a part, is fully discussed in Goyau, Bismarck et I’Eglise. A full text of the laws may be found in the appendix to that work. 4 See Garbett, In an Age of Revolution, 207-213; Niemoller, Why I Went to Moscow, The Christian Century, March 19, 1952, p. 338. 126 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. These considerations undermine the validity of the New York legislation in that it enters the domain of religious control barred to the States by the Fourteenth Amendment. Mr. Justice Black agrees with this opinion on the basis of his view that the Fourteenth Amendment makes the First Amendment applicable to the States. Mr. Justice Douglas, while concurring in the opinion of the Court, also joins this opinion. Mr. Justice Jackson, dissenting. New York courts have decided an ordinary ejectment action involving possession of New York real estate in favor of the plaintiff, a corporation organized under the Religious Corporations Law of New York under the name “Saint Nicholas Cathedral of the Russian Orthodox Church in North America.” Admittedly, it holds, and since 1925 has held, legal title to the Cathedral property. The New York Court of Appeals decided that it also has the legal right to its possession and control. The appellant Benjamin’s defense against this owner’s demand for possession and the basis of his claimed right to enjoy possession of property he admittedly does not own is set forth in his answer to the ejectment suit in these words: “Said premises pursuant to the above rules of the Russian Orthodox Church are held in trust for the benefit of the accredited Archbishop of the said Archdiocese, to be possessed, occupied and used by said Archbishop as his residence, as a place for holding religious services, and other purposes related to his office and as the seat and headquarters for the administration, by him, of the affairs of the Archdiocese both temporal and spiritual.” And, says the appellant Benjamin, he is that Archbishop. These allegations are denied, and they define the issues as tendered to the state courts. KEDROFF v. ST. NICHOLAS CATHEDRAL. 127 94 Jackson, J., dissenting. I greatly oversimplify the history of this controversy to indicate its nature rather than to prove its merits. This Cathedral was incorporated and built in the era of the Czar, under the regime of a state-ridden church in a church-ridden state. The Bolshevik Revolution may have freed the state from the grip of the church, but it did not free the church from the grip of the state. It only brought to the top a new master for a captive and submissive ecclesiastical establishment. By 1945, the Moscow patriarchy had been reformed and manned under the Soviet regime and it sought to re-establish in other countries its prerevolutionary control of church property and its sway over the minds of the religious. As the Court’s opinion points out, it demanded of the Russian Church in America, among other things, that it abstain “from political activities against the U. S. S. R.” The American Cathedral group, along with others, refused submission to the representative of the Moscow Patriarch, whom it regarded as an arm of the Soviet Government. Thus, we have an ostensible religious schism with decided political overtones. If the Fourteenth Amendment is to be interpreted to leave anything to the courts of a state to decide without our interference, I should suppose it would be claims to ownership or possession of real estate within its borders and the vexing technical questions pertaining to the creation, interpretation, termination, and enforcement of uses and trusts, even though they are for religious and charitable purposes. This controversy, I believe, is a matter for settlement by state law and not within the proper province of this Court. I. As I read the prevailing opinions, the Court assumes that some transfer of control has been accomplished by legislation which results in a denial of due process. This, 128 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. of course, would raise a question of deprivation of property, not of liberty, while only the latter issue is raised by the parties. And it could be sustained only by a finding by us that the legislation worked a transfer rather than a confirmation of property rights. The Court of Appeals seems to have regarded the statute merely as a legislative reaffirmation of principle the Court would find to be controlling in its absence. But this Court apparently thinks that by mere enactment of the statute the legislature invaded a field of action reserved to the judiciary. However desirable we may think a rigid separation of powers to be (and I, for one, think it is basic in the Federal Government), I do not think the Fourteenth Amendment undertakes to control distribution of powers within the states. At all events, I do not think we are warranted in holding that New York may not enact this legislation in question, which is in form and in substance an amendment of its Religious Corporations Law. Nothing in New York law required this denomination to incorporate its Cathedral. The Religious Corporations Law of the State expressly recognizes unincorporated churches (§2) and undertakes no regulation of them or their affairs. But this denomination wanted the advantages of a corporate charter for its Cathedral, to obtain immunity from personal liability and other benefits. This statute does not interfere with religious freedom but furthers it. If they elect to come under it, the statute makes separate provision for each of many denominations with corporate controls appropriate to its own ecclesiastical order. When it sought the privilege of incorporation under the New York law applicable to its denomination, it seems to me that this Cathedral and all connected with its temporal affairs were submitted to New York law. As a consequence of this Court’s decision in Dartmouth College v. Woodward, 4 Wheat. 518, the Constitution of KEDROFF v. ST. NICHOLAS CATHEDRAL. 129 94 Jackson, J., dissenting. New York since 1846 has authorized the legislature to create corporations by general laws and special acts, subject, however, to a reservation that all such acts “may be altered from time to time or repealed.” New York Const., Art. X, § 1. That condition becomes a part of every corporate charter subsequently granted by New York. Lord v. Equitable Life Assurance Society, 194 N. Y. 212, 87 N. E. 443; People v. Gass, 190 N. Y. 323, 83 N. E. 64; Pratt Institute v. New York, 183 N. Y. 151, 75 N. E. 1119. What has been done here, as I see it, is to exercise this reserved power which permits the State to alter corporate controls in response to the lessons of experience. Of course, the power is not unlimited and could be so exercised as to deprive one of property without due process of law. But, I do not think we can say that a legislative application of a principle so well established in our common law as the cy-pres doctrine is beyond the powers reserved by the New York Constitution. II. The Court holds, however, that the State cannot exercise its reserved power to control this property without invading religious freedom, because it is a Cathedral and devoted to religious uses. I forbear discussion of the extent to which restraints imposed upon Congress by the First Amendment are transferred against the State by the Fourteenth Amendment beyond saying that I consider that the same differences which apply to freedom of speech and press (see dissenting opinion in Beauharnais v. Illinois, 343 U. S. 250, 287) are applicable to questions of freedom of religion and of separation of church and state. It is important to observe what New York has not done in this case. It has not held that Benjamin may not act as Archbishop or be revered as such by all who will follow him. It has not held that he may not have a Cathedral. 130 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. Indeed, I think New York would agree that no one is more in need of spiritual guidance than the Soviet faction. It has only held that this cleric may not have a particular Cathedral which, under New York law, belongs to others. It has not interfered with his or anyone’s exercise of his religion. New York has not outlawed the Soviet-controlled sect nor forbidden it to exercise its authority or teach its dogma in any place whatsoever except on this piece of property owned and rightfully possessed by the Cathedral Corporation. The fact that property is dedicated to a. religious use cannot, in my opinion, justify the Court in sublimating an issue over property rights into one of deprivation of religious liberty which alone would bring in the religious guaranties of the First Amendment. I assume no one would pretend that the State cannot decide a claim of trespass, larceny, conversion, bailment or contract, where the property involved is that of a religious corporation or is put to religious use, without invading the principle of religious liberty. Of course, possession of the property will help either side that obtains it to maintain its prestige and to continue or extend its sway over the minds and souls of the devout. So would possession of a bank account, an income-producing office building^ or any other valuable property. But if both claimants are religious corporations or personalities, can not the State decide the issues that arise over ownership and possession without invading the religious freedom of one or the other of the parties? Thus, if the American group, which owns the title to the Cathedral, had by force barred Benjamin from entering it physically, would the Court say it was an interference with religious freedom to entertain and decide his ejectment action? If state courts are to decide such controversies at all instead of leaving them to be settled by a show of force, is it constitutional to decide for only KEDROFF v. ST. NICHOLAS CATHEDRAL. 131 94 Jackson, J., dissenting. one side of the controversy and unconstitutional to decide for the other? In either case, the religious freedom of one side or the other is impaired if the temporal goods they need are withheld or taken from them. As I have earlier pointed out, the Soviet Ecclesiast’s claim, denial of which is said to be constitutional error, is not that this New York property is impressed with a trust by virtue of New York law. The claim is that it is impressed with a trust by virtue of the rules of the Russian Orthodox Church. This Court so holds. I shall not undertake to wallow through the complex, obscure and fragmentary details of secular and ecclesiastical history, theology, and canon law in which this case is smothered. To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow patriarchate, I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution. (See “The Soviet Propaganda Program,” Staff Study No. 3, Senate Subcommittee on Overseas Information Programs of the United States, 82d Cong., 2d Sess.) I have supposed that a State of this Union was entirely free to make its own law, independently of any foreign-made law, except as the Full Faith and Credit Clause of the Constitution might require deference to the law of a sister state or the Supremacy Clause require submission to federal law. I do not see how one can spell out of the principles of separation of church and state a doctrine that a state submit property rights to settlement by canon law. If there is any relevant inference to be drawn, I should think it would be to the contrary, though I see no obstacle to the state allowing ecclesiastical law to govern in such a situation if it sees fit. I should infer that from the trend of such decisions as Erie R. Co. v. Tompkins, 304 U. S. 64; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498. 132 OCTOBER TERM, 1952. Jackson, J., dissenting. 344 U. S. The only ground pressed upon this appeal is that the judgment below violates the religious freedom guaranteed by the Fourteenth Amendment. I find this contention so insubstantial that I would dismiss the appeal. Whether New York has arrived at the correct solution of this question is a matter on which its own judges have disagreed. But they have disagreed within the area which is committed to them for agreement or disagreement and I find nothing which warrants our invading their jurisdiction. MANDOLI v. ACHESON. 133 Syllabus. MANDOLI v. ACHESON, SECRETARY OF STATE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 15. Argued October 17, 1952.—Decided November 24, 1952. 1. Under the Expatriation Act of 1907, a United States citizen by birth who by foreign law derives from his parents citizenship of a foreign nation held not to have lost his United States citizenship by foreign residence long continued after attaining his majority. Pp. 135-139. (a) In such case the native-born citizen, by continuing to reside in the foreign country after attaining his majority, cannot be deemed to have elected between his dual citizenships in favor of that of the foreign country; and, when he attained his majority, he was under no statutory duty to make an election and to return to this country for permanent residence if he elected United States citizenship. Pp. 135-139. (b) Perkins v. Elg, 307 U. S. 325, is not to the contrary. Pp. 138-139. (c) The dignity of citizenship which the United States Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate. P. 139. 2. One of the grounds of decision relied on by the District Court, based on the citizen’s having served in the army of the foreign country and taken an oath of allegiance to that country, was abandoned by the Government, the Attorney General having ruled that such service and oath had been taken under legal compulsion amounting to duress. P. 135. 90 U. S. App. D. C. 1121, 193 F. 2d 920, reversed. In an action brought by petitioner to establish his citizenship, the District Court gave judgment against him. The Court of Appeals affirmed. 90 U. S. App. D. C. 1121, 193 F. 2d 920. This Court granted certiorari. 343 U. S. 976. Reversed, p. 139. 134 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Jack Wasserman argued the cause for petitioner. With him on the brief were Gaspare Cusumano and Harry Meisel. Oscar H. Davis argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg and John R. Wilkins. Mr. Justice Jackson delivered the opinion of the Court. This case presents but a single question, upon which petitioner and the Government are substantially agreed that the judgment of the Court of Appeals should be reversed.1 Does a United States citizen by birth who by foreign law derives from his parents citizenship of a foreign nation lose his United States citizenship by foreign residence long continued after attaining his majority? Petitioner Mandoli was born in this country, of unnaturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law. While he was a suckling, his parents returned to Italy taking him with them. At about the age of fifteen, he sought to come to the United States; but permission was refused by the American Consul at Palermo upon the ground that he was too young to take the journey unaccompanied. In 1931, Mandoli saw brief service in the Italian army. In 1937, being 29 or 30 years of age, he attempted to come to the United States, but was rejected because of such army service. He renewed the effort in 1944, with the same result. In 1948, he was granted a certificate of identity which permitted him to enter the United 1 Certiorari was granted without opposition, 343 U. S. 976. MANDOLI v. ACHESON. 135 133 Opinion of the Court. States for prosecution of an action to establish his citizenship. Judgment in the District Court went against him on the ground that expatriation had resulted from two causes: first, contrary to his contentions, it found that his service in the Italian army was voluntary and that he then took an oath of allegiance to the King of Italy; second, that he continued to reside in Italy after attaining his majority, thereby electing between his dual citizenships in favor of that of Italy.2 The Government abandoned the first ground because the Attorney General ruled that such service in the Italian army by one similarly situated could “only be regarded as having been taken under legal compulsion amounting to duress.” He said, “The choice of taking the oath or violating the law was, for a soldier in the army of Fascist Italy, no choice at all.” 3 The Court of Appeals, however, relying largely on Perkins n. Elg, 307 U. S. 325, affirmed upon the ground that failure to return to the United States upon the attainment of his majority operated to extinguish petitioner’s American citizenship.4 We conclude that Mandoli has not lost his citizenship. It would be as easy as it would be unrewarding to point out conflict in precept and confusion in practice on this side of the Atlantic, where ideas of nationality and expatriation were in ferment during the whole Nineteenth Century. Reception of the common law confronted American courts with a doctrine that a national allegiance into which one was born could be renounced only with consent of his sovereign. European rulers, losing subjects (particularly seamen) to the New World, adhered fiercely to the old doctrine. On the other hand, the 2D. C. opinion not reported. 3 41 Op. Atty. Gen., Op. No. 16. 4 90 U. S. App. D. C. 1121, 193 F. 2d 920. 226612 0—53------14 136 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. United States, prospering from the migrant’s freedom of choice, became champion of the individual’s right to expatriate himself, for which it contended in diplomacy and fought by land and by sea. However, this personal freedom of expatriation was not always recognized by our own courts, because of their deference to common-law precedent. Finally, Congress, by the Act of July 27, 1868, declared that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness” and that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”5 But this statute left unanswered many questions as to the overt acts that would effect a voluntary expatriation by our own citizens or would cause an involuntary forfeiture of citizenship. Prior to 1907, courts and administrators were left to devise their own answers. Preparatory to legislative action on the subject, Congress sought and received a report of a special citizenship board. Reviewing judicial decisions, this report concluded that the courts recognized well-established doctrines of election in cases dealing with rights of persons with dual citizenship. This board recommended that Congress follow what it assumed to be established decisional law and enact, among other things, that expatriation be assumed as to any citizen who became domiciled in a foreign state, with a rebuttable presumption of foreign domicile from five years of residence in a foreign state.6 This was proposed as to all citizens and not 515 Stat. 223, 8 U. S. C. § 800. 6 H. R. Doc. No. 326, 59th Cong., 2d Sess., p. 23; see also 74, 79, 160 et seq. MANDOLI v. ACHESON. 137 133 Opinion of the Court. merely those possessing dual citizenship. Congress, however, instead of accepting this broad doctrine of expatriation, by the Expatriation Act of 1907 limited the presumption of expatriation from foreign residence to the case of naturalized but not of native-born citizens.7 If petitioner, when he became of full age in 1928, were under a statutory duty to make an election and to return to this country for permanent residence if he elected United States citizenship, that duty must result from the 1907 Act then applicable. In the light of the foregoing history, we can find no such obligation imposed by that Act; indeed, it would appear that the proposal to impose that duty was deliberately rejected.8 The Nationality Act of 1940,9 though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill. This disagreement between the Departments was called to the attention of the Con 7 34 Stat. 1228. 8 Administrative practice, when involving protections abroad, involves very different policy considerations and is not controlling here. However, while not always consistent, it seems to have settled to the rule we apply in this case. 3 Hackworth, Digest of International Law, 371; see also Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col. L. Rev. 840, 854. 9 8 U.S. C., c. 11. 138 OCTOBER TERM, 1952. Opinion of the Court. 344U.S. gress.10 While in some other respects Congress enlarged the grounds for loss of nationality, it refused to require a citizen by nativity to elect between dual citizenships upon reaching a majority.11 The Court of Appeals, however, applied such a rule because it understood that this Court, in Perkins N. Elg, supra, had declared it to be the law. Miss Elg was American-born, of naturalized parents Swedish in origin. They took her to Sweden when she was but four years old, where she remained during her nonage. By virtue of a Swedish-American Treaty of 1869, this resumption of residence in Sweden repatriated the parents, which carried with it Swedish citizenship for their minor child. Under the Act of 1907, any American citizen is deemed expatriated if naturalized in a foreign state in conformity with its laws. Undoubtedly, Miss Elg had become naturalized under the laws of Sweden. But it was not by any act of her own or within her control, and about eight months after she became twenty-one, she sought and obtained an American passport and returned to this country where she resided for something over five years. American immigration officials then decided that her derivative naturalization had deprived her of American citizenship and put their harsh and technical doctrine to test by instituting proceedings to deport her. That case did not present and the Court could not properly have decided any question as to consequences of a failure to elect American citizenship, for Miss Elg promptly did so elect and decisively evidenced it by resuming residence here. What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because 10 See Hearings before House of Representatives Committee on Immigration and Naturalization on H. R. 9980, 76th Cong., 1st Sess., p. 32. 11 See also § 350 of Pub. L. No. 414, 82d Cong., 2d Sess., 66 Stat. 163, 269. MANDOLI v. ACHESON. 139 133 Douglas, J., dissenting. the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so. We find no warrant in the statutes for concluding that petitioner has suffered expatriation. And, since Congress has prescribed a law for this situation, we think the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate.12 The judgment of the Court of Appeals should be reversed, with directions to remand the case to the District Court for the entry of an order declaring that the petitioner is a citizen of the United States. Reversed and so ordered. Mr. Justice Douglas, with whom The Chief Justice, Mr. Justice Reed, and Mr. Justice Clark concur, dissenting. At the times relevant here Congress made the taking of “an oath of allegiance to any foreign state” the ground for loss of American citizenship. 34 Stat. 1228, 8 U. S. C. §17. The findings of the District Court in this case state that “On May 24, 1931, the plaintiff took an oath of allegiance to the King of Italy.” That finding is uncontroverted here and the precise circumstances surrounding the taking of the oath are unexplained. All we know is that plaintiff, without protest, was inducted into the 12 The question of whether the statutory grounds under the 1940 Act exclude other acts that will amount to voluntary expatriation was reserved in Kawakita v. United States, 343 U. S. 717, 730-732. It is not present in this case. 140 OCTOBER TERM, 1952. Douglas, J., dissenting. 344U.S. Italian Army and served there from April 14, 1931, to September 5,1931. If we are to base our decision on the record, we would be compelled to affirm. For it is plain that petitioner did take an oath of allegiance to a foreign state. The Court, however, ignores the record and rests on an opinion of the Attorney General in another case (cf. Mr. Justice Jackson concurring, McGrath v. Kristensen, 340 U. S. 162, 176), saying that one who took an oath in the Army of Fascist Italy did so under duress. We have no basis for knowing that every inducted soldier who took an oath in Mussolini’s army did so under duress. For all we know, this American citizen took the oath freely and gladly. At least, he took it. If we acted in the role of Secretary of State or Attorney General, we might exercise our discretion in favor of the citizen and decide not to move against him on such a showing. But we sit not as cabinet officers but as judges to decide cases on the facts of the records before us. BROWN v. BOARD OF EDUCATION. 141 Opinion of the Court. BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. No. 8. November 24, 1952. This is an appeal from a decision of the District Court sustaining the constitutionality of a state statute which authorized racial segregation in the public schools of Kansas. In the District Court the State intervened and defended the constitutionality of the statute; but neither the State, nor any of the other appellees, has entered an appearance or filed a brief here. Because of the importance of the issue, this Court requests that the State present its views at the oral argument. If the State does not desire to appear, the Attorney General of the State is requested to advise this Court whether the State’s default shall be construed as a concession of the invalidity of the statute. Pp. 141-142. The decision below is reported in 98 F. Supp. 797. Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, George E. C. Hayes, George M. Johnson, William R. Ming, Jr., James M. Nabrit, Jr. and Frank D. Reeves for appellants. Per Curiam. This action was instituted by the appellants attacking a Kansas statute which authorized segregation in the schools of that State. It was urged that the State of Kansas was without power to enact such legislation, claimed by appellants to be in contravention of the Fourteenth Amendment. In the District Court, the State, by its Governor and Attorney General, intervened and defended the constitutionality of the statute. The court upheld its validity. In this Court, the appellants continue their constitutional attack. No appearance has been entered here by 142 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. the State of Kansas, the Board of Education of Topeka, and the other appellees; nor have they presented any brief in support of the statute’s validity. The Court has been advised by counsel for the Board of Education that it does not propose to appear in oral argument or present a brief. Because of the national importance of the issue presented and because of its importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the Attorney General to advise whether the State’s default shall be construed as a concession of invalidity. DIXON v. DUFFY. 143 Syllabus. DIXON v. DUFFY, WARDEN. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. No. 4. Argued October 16, 1951.—Continued November 5, 1951.— Further continued May 12, 1952.—Decided December 8, 1952. In a state court, petitioner was convicted of a crime and sentenced to imprisonment. He did not appeal, but petitioned the State Supreme Court for habeas corpus, which was denied without opinion. This Court granted certiorari because of a serious claim that petitioner had been deprived of his rights under the Federal Constitution. At the bar of this Court, the State Attorney General argued that the State Supreme Court’s judgment rested on an adequate state ground. After twice continuing the cause on its docket to enable petitioner’s counsel to obtain from the State Supreme Court a determination as to whether its judgment was intended to rest upon an adequate state ground, this Court is now informed that the State Supreme Court considers that it has no jurisdiction to render such a determination. Held: 1. To the end that the doubt as to the jurisdiction of this Court to review the judgment of the State Supreme Court may be resolved, that judgment is vacated and the cause is remanded for further proceedings. Pp. 144-146. 2. A new judgment may be entered, and petitioner may also be informed by an official determination from the State Supreme Court whether or not that judgment rests on an adequate state ground. Pp. 144-146. Judgment vacated and cause remanded. Petitioner’s application for a writ of habeas corpus was denied by the Supreme Court of California without opinion. This Court granted certiorari. 341 U. S. 938. Judgment vacated and cause remanded, p. 146. Franklin C. Stark, acting under appointment by the Court, argued the cause and filed a brief for petitioner. Clarence A. Linn, Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General, and Howard S. Goldin, Deputy Attorney General. 144 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Mr. Chief Justice Vinson delivered the opinion of the Court. This case originated on October 21, 1950, when petitioner, a prisoner in San Quentin, filed an application for a writ of habeas corpus in the Supreme Court of California. That court, summarily, but with two dissents, denied the application. To review this decision, petitioner applied to this Court for certiorari. The Court granted the petition, 341 U. S. 938, and thereafter appointed counsel to represent the petitioner. 342 U. S. 805. The Attorney General of California appeared for respondent. At the bar of this Court, he argued that the judgment of the Supreme Court of California rested on an adequate nonfederal ground. Admitting that habeas corpus is ordinarily an available means to California prisoners to challenge the constitutionality of the proceedings which resulted in their incarceration, the Attorney General told us that the writ was unavailable in this particular case, to this particular petitioner because he could have and should have presented his federal claim in an appeal from his original conviction. Counsel for petitioner vigorously opposed this contention, insisting that habeas corpus was an available remedy under California law, that the federal question was properly before the court. This Court, of course, does not sit to determine matters of state law; nor is it the appropriate forum to resolve the argument raised by the earnest objections of the Attorney General of California. Accordingly, we followed our precedents.1 We continued the cause “for such period” as would “enable counsel for petitioner to secure a determination from the 1 Loftus v. Illinois, 334 U. S. 804 (1948); Herb n. Pitcairn, 324 U. S. 117 (1945). DIXON v. DUFFY. 145 143 Opinion of the Court. Supreme Court of California as to whether the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered.” 342 U. S. 33, 34. (Emphasis supplied.) Counsel for petitioner, in December 1951, duly filed in the Supreme Court of California a “Petition for Determination of Basis of Judgment” which requested an expression by that court on the issue raised by our order. Subsequently, the Clerk of this Court received a letter from the Clerk of the Supreme Court of California relative to this question. But we received no official determination of the issue from the Supreme Court of California. We could not regard the letter from the Clerk of the Supreme Court of California as a “sufficient ‘determination’ of the question raised in our order of November 5, 1951.” Therefore, on May 12, 1952, we “further continued” the cause on our docket to enable counsel for petitioner to secure from the Supreme Court of California its official determination as requested by our earlier order. 343 U. S. 393. Though some months have now elapsed, we still have received no advice from the Supreme Court of California. We are informed, however, that the California court advised petitioner’s counsel informally that it doubted its jurisdiction to render such a determination. And, although counsel subsequently submitted briefs to the contrary, the California court again informed counsel, through its Clerk, that it was powerless, for want of jurisdiction, to issue any further official expression on the case. It appears, then, that so long as this cause continues on our docket, counsel cannot procure that which we asked him to procure. We granted certiorari in this case “because of a serious claim that petitioner had been deprived of his rights under the Federal Constitution.” 342 U. S. 33. This Court, 146 OCTOBER TERM, 1952. Jackson, J., dissenting. 344U.S. alone, is the final arbiter of such a claim, and our grant of certiorari should entitle petitioner to the chance to have the matter resolved by this Court—provided that the state judgment was not based on an adequate state ground. If the state judgment was based on an adequate state ground, the Court, of course, would be without jurisdiction to pass upon the federal question. Doubt has since arisen that such jurisdiction exists. These circumstances should not now act to deprive petitioner of his day in this Court,2 but they do require that we take scrupulous care, as we have so often done before,3 to determine our jurisdiction. This involves further delay, and in this case further delay is regrettable. But delay is necessary unless we are to resolve the jurisdictional issue by simply assuming the nonexistence of an adequate state ground though in fact one may exist. To the end that the doubt in this case may be resolved, we vacate the judgment of the Supreme Court of California and remand the cause for further proceedings. A new judgment may be entered, and petitioner also may be informed by an official determination from the Supreme Court of California whether or not that judgment rests on an adequate state ground.4 So ordered. Mr. Justice Jackson, dissenting. Both the wisdom and the legality of this policy toward the highest court of a state appear dubious to me. What we are doing, in essence, is to vacate a state court judg- 2 See Neilson v. Lagow, 12 How. 98, 109-110 (1852). 3 See, e. g., Jennings n. Illinois, 342 U. S. 104 (1951); Loftus v. Illinois, supra; Herb n. Pitcairn, supra. Minnesota n. National Tea Co., 309 U. S. 551 (1940); Honeyman v. Hanan, 300 U. S. 14 (1937). 4Cf. Jennings v. Illinois, supra; Minnesota v. National Tea Co., supra; Honeyman v. Hanan, supra. DIXON v. DUFFY. 147 143 Jackson, J., dissenting. ment, not because it is found to be inconsistent with federal law, but because the state court has not told us, with an acceptable degree of formality, what reasons led to rendering it. This Court has blazed the way for the practice of dispensing with opinions in denying petitions for discretionary orders, such as certiorari and motions for leave to file petitions for habeas corpus. Unless we mean to impose on state courts a burden we are unwilling to assume ourselves, we should not vacate this state judgment. Doubt of our jurisdiction is no justification for exercising it; quite the contrary is the rule. Those few of the cases cited by the Court in which this procedure was followed are not persuasive. There was no examination of the Court’s power to vacate, and the results do not encourage its repetition. In two cases, the judgment vacated was simply reinstated by the State Supreme Court and the litigants were never heard from again. Compare Minnesota v. National Tea Co., 309 U. S. 551, with National Tea Co. v. State, 208 Minn. 607, 294 N. W. 230; State Tax Common v. Van Cott, 306 U. S. 511, with Van Cott v. State Tax Comm’n, 98 Utah 264, 96 P. 2d 740. In another instance, however, we pursued a less drastic course; we stayed our own hand while petitioner applied to the state court for clarification of its grounds of decision. Compare Herb n. Pitcairn, 324 U. S. 117, with id., 325 U. S. 77. In this case, the Supreme Court of California, having promptly and officially, albeit informally, advised us of its ground of decision, feels itself without power to make a formal order therein. One reason is that it has long since closed the case with a final determination, and another is that we, by grant of certiorari, have lifted the case, record and all, out of that court. I cannot say that it is unreasonable for a state court to refrain from enter- 148 OCTOBER TERM, 1952. Jackson, J., dissenting. 344U.S. ing formal orders in a case which is no longer pending before it. The plain truth of the matter is that the grant of certiorari was an irresponsible exercise of our own power without requiring or considering adequate jurisdictional information. The California Supreme Court has a perfect right to deny an application for habeas corpus to review a contention that under state practice could have, and should have, been urged on appeal. We are without power to require states to allow retrial de novo via habeas corpus of issues tried and open to review on the original record. It seems to me probable that this is the ground the California Supreme Court has taken, not, as this Court intimates, for this particular case, but as a general rule of state law, and I think a wise and proper one. It probably will reaffirm by reinstating the judgment we upset today. I think dismissal of our own writ of certiorari on the candid admission that it was improvidently granted is our wise and lawful course. UNITED STATES v. CALTEX, INC. 149 Syllabus. UNITED STATES v. CALTEX (PHILIPPINES), INC. ET AL. CERTIORARI TO THE COURT OF CLAIMS. No. 16. Argued October 20, 1952.—Decided December 8, 1952. In the circumstances of this case, the wartime destruction of private property by the Army to prevent its imminent capture and use by an advancing enemy did not entitle the owner to compensation under the Fifth Amendment. Pp. 150-156. (a) Whether or not the principle laid down in United States v. Pacific R. Co., 120 U. S. 227, was dictum when enunciated, this Court holds that it is the law today. Pp. 153-154. (b) Mitchell v. Harmony, 13 How. 115, and United States v. Russell, 13 Wall. 623, distinguished. Pp. 152-153. (c) A different result is not required by the fact that the Army exercised “deliberation” in singling out this property, in “requisitioning” it from its owners, and in exercising “control” over it before destroying it, nor by the fact that the destruction was effected prior to withdrawal. Pp. 154-155. 120 Ct. Cl. 518, 100 F. Supp. 970, reversed. In a suit to recover compensation under the Fifth Amendment for property destroyed by the Army in wartime to prevent its use by the enemy, the Court of Claims gave judgment for the plaintiffs. 120 Ct. Cl. 518, 100 F. Supp. 970. This Court granted certiorari. 343 U. S. 955. Reversed, p. 156. Assistant Attorney General Baldridge argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Robert W. Ginnane, Paul A. Sweeney and Benjamin Forman. Albert R. Connelly argued the cause for the Shell Company of Philippine Islands, Ltd. et al., and Leo T. Kissam for Caltex (Philippines), Inc., respondents. They also were on a brief for respondents. 150 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Mr. Chief Justice Vinson delivered the opinion of the Court. Each of the respondent oil companies owned terminal facilities in the Pandacan district of Manila at the time of the Japanese attack upon Pearl Harbor. These were used to receive, handle and store petroleum products from incoming ships and to release them for further distribution throughout the Philippine Islands. Wharves, rail and automotive equipment, pumps, pipe lines, storage tanks, and warehouses were included in the property on hand at the outbreak of the war, as well as a normal supply of petroleum products. News of the Pearl Harbor attack reached Manila early in the morning of December 8, 1941. On the same day, enemy air attacks were mounted against our forces in the Philippines, and thereafter the enemy launched his amphibious assault. On December 12, 1941, the United States Army, through its Chief Quartermaster, stationed a control officer at the terminals. Operations continued at respondents’ plants, but distribution of the petroleum products for civilian use was severely restricted. A major share of the existing supplies was requisitioned by the Army. The military situation in the Philippines grew worse. In the face of the Japanese advance, the Commanding General on December 23, 1941, ordered the withdrawal of all troops on Luzon to the Bataan Peninsula. On December 25, 1941, he declared Manila to be an open city. On that same day, the Chief Engineer on the staff of the Commanding General addressed to each of the oil companies letters stating that the Pandacan oil depots “are requisitioned by the U. S. Army.” The letters further stated: “Any action deemed necessary for the destruction of this property will be handled by the U. S. Army.” An engineer in the employ of one of the com- 149 UNITED STATES v. CALTEX, INC. 151 Opinion of the Court. panies was commissioned a first lieutenant in the Army Corps of Engineers to facilitate this design. On December 26, he received orders to prepare the facilities for demolition. On December 27, 1941, while enemy planes were bombing the area, this officer met with representatives of the companies. The orders of the Chief Engineer had been transmitted to the companies. Letters from the Deputy Chief of Staff, by command of General MacArthur, also had been sent to each of the oil companies, directing the destruction of all remaining petroleum products and the vital parts of the plants. Plans were laid to carry out these instructions, to expedite the removal of products which might still be of use to the troops in the field, and to lay a demolition network about the terminals. The representatives of Caltex were given, at their insistence, a penciled receipt for all the terminal facilities and stocks of Caltex. At 5:40 p. m., December 31, 1941, while Japanese troops were entering Manila, Army personnel completed a successful demolition. All unused petroleum products were destroyed, and the facilities were rendered useless to the enemy. The enemy was deprived of a valuable logistic weapon. After the war, respondents demanded compensation for all of the property which had been used or destroyed by the Army. The Government paid for the petroleum stocks and transportation equipment which were either used or destroyed by the Army, but it refused to compensate respondents for the destruction of the Pandacan terminal facilities. Claiming a constitutional right under the Fifth Amendment1 to just compensation for these terminal facilities, respondents sued in the Court of Claims. Recovery was allowed. 120 Ct. Cl. 518, 100 F. 1 “. . . nor shall private property be taken for public use, without just compensation.” 226612 0—53------------------15 152 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Supp. 970. We granted certiorari to review this judgment. 343 U. S. 955. As reflected in the findings of the Court of Claims, there were two rather distinct phases of Army operations in the Pandacan district in December 1941. While the military exercised considerable control over the business operations of respondents’ terminals during the period between December 12 and December 26, there was not, according to the findings below, an assumption of actual physical or proprietary dominion over them during this period.2 Bound by these findings, respondents do not now question the holding of the Court of Claims that prior to December 27 there was no seizure for which just compensation must be paid. Accordingly, it is the legal significance of the events that occurred between December 27 and December 31 which concerns us. Respondents concede that the Army had a right to destroy the installations. But they insist that the destruction created a right in themselves to exact fair compensation from the United States for what was destroyed. The argument draws heavily from statements by this Court in Mitchell v. Harmony, 13 How. 115 (1852), and United States n. Russell, 13 Wall. 623 (1871). We agree that the opinions lend some support to respondents’ view.3 2 At one point shortly after the outbreak of the war, the Army contemplated leasing respondents’ facilities. But this plan was never put into effect. Respondents continued to operate the plants themselves up to December 26, 1941. 3 In the Russell case, supra, the Court said, 13 Wall., at 627-628: “Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner. . . . Exigencies of the kind do arise in time of war or 149 UNITED STATES v. CALTEX, INC. 153 Opinion of the Court. But the language in those two cases is far broader than the holdings. Both cases involved equipment which had been impressed by the Army for subsequent use by the Army. In neither was the Army’s purpose limited, as it was in this case, to the sole objective of destroying property of strategic value to prevent the enemy from using it to wage war the more successfully. A close reading of the Mitchell and Russell cases shows that they are not precedent to establish a compensable taking in this case. Nor do those cases exhaust all that has been said by this Court on the subject. In United States v. Pacific R. Co., 120 U. S. 227 (1887), Mr. Justice Field, speaking for a unanimous Court, discussed the question at length. That case involved bridges which had been destroyed during the War Between the States by a retreating Northern Army to impede the advance of the Confederate Army.4 Though the point was not directly involved, the Court raised the question of whether this act constituted a compensable taking by the United States and answered it in the negative: “The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences. Whatever would embarrass or impede the advance impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.” 4 The narrow issue in the case was whether, after the Army rebuilt the bridges it had previously destroyed, the Army could charge for the expense of the rebuilding. On this issue the Court held for the railroad. 154 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss.”5 It may be true that this language also went beyond the precise questions at issue. But the principles expressed were neither novel nor startling, for the common law had long recognized that in times of imminent peril—such as when fire threatened a whole community— the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved.6 And what was said in the Pacific Railroad case was later made the basis for the holding in Juragua Iron Co. n. United States, 212 U. S. 297 (1909), where recovery was denied to the owners of a factory which had been destroyed by American soldiers in the field in Cuba because it was thought that the structure housed the germs of a contagious disease. Therefore, whether or not the principle laid down by Mr. Justice Field was dictum when he enunciated it, we hold that it is law today. In our view, it must govern in this case. Respondents and the majority of the Court of Claims, arguing to the contrary, have placed great emphasis on the fact that the Army exercised “deliberation” in singling out this property, in “requisitioning” it from its owners, and in exercising “control” over it before devastating it. We need not labor over these labels; it may be 5120 U. S., at 234. 6 For earlier cases expressing such principles see, e. g., Bowditch v. • Boston, 101 U. S. 16, 18-19 (1879); Respublica n. Sparhawk, 1 Dall. 357 (1788); Parham v. The Justices, 9 Ga. 341, 348-349 (1851). See also 2 Kent’s Commentaries (14th ed.) 338. 149 UNITED STATES v. CALTEX, INC. 155 Opinion of the Court. that they describe adequately what was done, but they do not show the legal consequences of what was done. The “requisition” involved in this case was no more than an order to evacuate the premises which were slated for demolition. The “deliberation” behind the order was no more than a design to prevent the enemy from realizing any strategic value from an area which he was soon to capture. Had the Army hesitated, had the facilities only been destroyed after retreat, respondents would certainly have no claims to compensation. The Army did not hesitate. It is doubtful that any concern over the legal niceties of the situation entered into the decision to destroy the plants promptly while there was yet time to destroy them thoroughly.7 Nor do we think it legally significant that the destruction was effected prior to withdrawal. The short of the matter is that this property, due to the fortunes of war, had become a potential weapon of great significance to the invader. It was destroyed, not appropriated for subsequent use. It was destroyed that the United States might better and sooner destroy the enemy. The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war. This Court has long recognized that in wartime many losses must be attributed solely to the fortunes of war, 7 Cf. Respublica v. Sparhawk, supra, where the following appears, 1 Dall., at 363: “We find, indeed, a memorable instance of folly recorded in the 3 Vol. of Clarendon’s History, where it is mentioned, that the Lord Mayor of London, in 1666, when that city was on fire, would not give directions for, or consent to, the pulling down forty wooden houses, or to the removing the furniture, &c. belonging to the Lawyers of the Temple, then on the Circuit, for fear he should be answerable for a trespass; and in consequence of this conduct half that great city was burnt.” 156 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. and not to the sovereign.8 No rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each case must be judged on its own facts. But the general principles laid down in the Pacific Railroad case seem especially applicable here. Viewed realistically, then, the destruction of respondents’ terminals by a trained team of engineers in the face of their impending seizure by the enemy was no different than the destruction of the bridges in the Pacific Railroad case. Adhering to the principles of that case, we conclude that the court below erred in holding that respondents have a constitutional right to compensation on the claims presented to this Court. n , Reversed. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. I have no doubt that the military had authority to select this particular property for destruction. But whatever the weight of authority may be, I believe that the Fifth Amendment requires compensation for the taking. The property was destroyed, not because it was in the nature of a public nuisance, but because its destruction was deemed necessary to help win the war. It was as clearly appropriated to that end as animals, food, and supplies requisitioned for the defense effort. As the Court says, the destruction of this property deprived the enemy of a valuable logistic weapon. It seems to me that the guiding principle should be this: Whenever the Government determines that one person’s property—whatever it may be—is essential to the war effort and appropriates it for the common good, the public purse, rather than the individual, should bear the loss. 8 Lichter v. United States, 334 U. S. 742, 787-788 (1948); Bowles v. Willingham, 321 U. S. 503, 517-519 (1944); Omnia Commercial Co. v. United States, 261 U. S. 502 (1923). FRY ROOFING CO. v. WOOD. 157 Syllabus. LLOYD A. FRY ROOFING CO. v. WOOD et al, MEMBERS OF THE ARKANSAS PUBLIC SERVICE COMMISSION. CERTIORARI TO THE SUPREME COURT OF ARKANSAS. No. 37. Argued November 10, 1952.—Decided December 8, 1952. Petitioner manufactures in Tennessee products which it sends in trucks to customers in nearby states. Finding that driver-owners carrying those products in Arkansas, who allegedly had leased their vehicles to petitioner, were in reality transporting petitioner’s goods as “contract carriers” for which a state Act required a permit, the State Supreme Court dismissed petitioner’s bill praying that enforcement of the Act be enjoined. Neither petitioner nor the drivers had obtained any kind of authority from the Interstate Commerce Commission. Held: 1. The finding of the State Supreme Court that the driver-owners were in reality transporting petitioner’s goods as contract carriers is not without factual foundation and is accepted by this Court. Pp. 159-160. 2. The State’s requirement of a permit in such circumstances is not an undue burden on interstate commerce, and does not conflict with the Commerce Clause of the Federal Constitution nor with the Federal Motor Carrier Act. Pp. 161-163. 3. Buck v. Kuykendall, 267 U. S. 307, distinguished. Pp. 161— 162. 4. It is unnecessary here to consider apprehended burdensome conditions which the State has not attempted to enforce. Pp. 162-163. 5. The State is not without power to require interstate motor carriers to identify themselves as users of the State’s highways. P.163. 219 Ark. 553, 244 S. W. 2d 147, affirmed. In an action brought by petitioner in an Arkansas state court to enjoin enforcement of the Arkansas Motor Carrier Act, the State Supreme Court ordered dismissal of the bill. 219 Ark. 553, 244 S. W. 2d 147. This Court granted certiorari. 343 U. S. 962. Affirmed, p. 163. 158 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Glenn M. Elliott argued the cause for petitioner. With him on the brief was James W. Wrape. John R. Thompson and Eugene R. Warren submitted on brief for respondents. Mr. Justice Black delivered the opinion of the Court. The petitioner, Lloyd A. Fry Roofing Company, manufactures asphalt roofing products in Memphis, Tennessee, and sends them in trucks to customers in nearby states. Some of these trucks are driven by their owners who have allegedly leased them to the petitioner. Five of these driver-owners while carrying Fry’s interstate shipments on Arkansas highways were arrested for having failed to obtain a permit as required of all contract carriers by § 11 of the Arkansas Motor Act.1 Petitioner brought this action in an Arkansas state court to enjoin the state’s Public Service Commission from further molestation or prosecution of the drivers. The bill asserted both state and federal grounds for denying that the state law could be applied to require a permit. The state grounds alleged were: Neither petitioner Fry Roofing Company nor the truck drivers could be required to get a state permit, because the state law exempted “private” carriers from that duty, and petitioner was such a “private carrier”—that is, a commercial enterprise, carrying its own products exclusively in its own leased trucks operated by its own bona fide driver-employees. Since, petitioner claimed, the drivers were its bona fide employees, it necessarily followed that they need not get 1 “No person shall engage in the business of a contract carrier by motor vehicle over any public highway in this State unless there is in force with respect to such carrier a permit issued by the Commis-sion, authorizing such persons to engage in such business. . . .” Ark. Acts 1941, No. 367, at 937, 947-948. FRY ROOFING CO. v. WOOD. 159 157 Opinion of the Court. state permits as “contract carriers” because they were not in the business of transporting goods for hire.2 The federal ground asserted by petitioner to prevent application of the state statute was that requiring either Fry or the drivers to get state permits would unduly burden interstate commerce in violation of the United States Constitution and would invade a field of regulation pre-empted by the Federal Motor Carrier Act.3 Answering the bill, the State Commission asked the court to dismiss it, strongly urging that petitioner’s alleged lease of trucks and operation of them by its own employees were mere pretenses, a subterfuge to enable petitioner and others to evade and escape the regulatory provisions of the Arkansas Motor Act. After lengthy hearings the trial court found that the arrested drivers were in fact bona fide employees of petitioner, that the truck leases were also bona fide, and that petitioner was therefore transporting its own goods as a private carrier exempt from the state Act. For this reason the court held that the Act did not require either petitioner or its drivers to get a permit. Accordingly the Commission was enjoined as prayed. Reviewing the facts for itself the State Supreme Court found that the arrested truck 2 The State Act’s definition of a contract carrier is: “The term ‘contract carrier by motor vehicle’ means any person, not a common carrier included under Paragraph 7, Section 5 (a) of this Act, who or which, under individual contracts or agreements, and whether directly or indirectly or by a lease of equipment or franchise rights, or any other arrangement, transports passengers or property by motor vehicle for compensation.” Ark. Acts 1941, No. 367, § 5 (a) (8). Compare definition in the United States Motor Carrier Act, Part II of the Interstate Commerce Act, 49 U. S. C. § 303 (15). 3 49 Stat. 543, as amended, 54 Stat. 919, 49 U. S. C. §§ 301 et seq. The Federal Act contention was not specifically referred to in the original bill, but was urged in, considered and rejected by the State Supreme Court. 160 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. drivers were not petitioner’s employees, that the truck lease arrangements were shams, and that petitioner was therefore a shipper—not a carrier of any kind. In this situation the court found that the driver-owners were in reality transporting petitioner’s goods as “contract carriers” for hire, engaged in the very kind of business for which § 11 of the state Act required a permit. The court then dismissed the bill and denied a rehearing, thereby rejecting the federal questions raised. 219 Ark. 553, 244 S. W. 2d 147. Certiorari was granted because of the Commerce Clause and Federal Motor Carrier Act questions. 343 U. S. 962. We are urged to set aside the findings of the State Supreme Court before passing upon the constitutional questions presented. Petitioner contends that these findings are without evidential support and that the subsidiary findings do not support the ultimate conclusion that the leases were shams. Whether rejection of these findings would place petitioner’s Commerce Clause contentions in a more favorable position, we need not consider. For there is much record evidence, both oral and written, some of which tends to support petitioner’s contention of good-faith arrangements and some the contrary. Some details of petitioner’s conduct resemble and some details differ from patterns of conduct found by courts in other cases to have been contrived to avoid legal regulation. See, e. g., United States N. La Tuff Transfer Service, 95 F. Supp. 375, and cases there cited. There are no exceptional circumstances of any kind that would justify us in rejecting the Supreme Court’s findings; they are not without factual foundation, and we accept them. The finding that the arrested drivers own and operate the trucks for hire makes them contract carriers as defined in the State Act. Section 11 of that Act requires contract carriers to get a permit and outlines certain considerations FRY ROOFING CO. v. WOOD. 161 157 Opinion of the Court. the State Commission may weigh in granting or refusing the permit. Among these matters is the adequacy of transportation services already being performed by “any railroad, street railway or motor carrier.” Refusal of a state certificate based on such grounds was held to be an unconstitutional obstruction of interstate commerce in Buck v. Kuykendall, 267 U. S. 307. To deny these interstate carriers an Arkansas permit for such reasons would conflict with the Buck holding. Unlike the situation in the Buck case, Arkansas has not refused to grant a permit for interstate carriage of goods on state highways. It has asked these driverowners to do nothing except apply for a permit as contract carriers are required to do by the State Act. And the State Commission here expressly disclaims any “discretionary right to refuse to grant a permit for contract carriage where that carriage is in interstate commerce.” The state asserts no power or purpose to require the drivers to do more than register with the appropriate agency.4 Such an identification is necessary, the Commission urges, in order that it may properly apply the state’s valid police, welfare, and safety regulations to motor carriers using its highways. Nor is there any showing whatever that the Commission has attempted or will attempt to attach any burdensome conditions to the grant of a permit, or conditions that would in any manner 4 “It appeared that while the Act calls the certificate one of ‘public convenience and necessity,’ the Commission had recognized, before this suit was begun, that, ... it had no discretion where the carrier was engaged exclusively in interstate commerce, and was willing to grant to plaintiffs a certificate upon application and compliance with other provisions of the law.” Clark v. Poor, 274 U. S. 554, 556. In the Clark case this Court affirmed an order dismissing the bill. See Columbia Terminals Co. n. Lambert, 30 F. Supp. 28, 32, and 309 U. S. 620. 162 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. conflict with the National Motor Carrier Act or any Interstate Commerce Commission regulations issued thereunder. Moreover, the Arkansas Act imposes upon its Commission the duty of reconciling state regulation with that of the Interstate Commerce Commission, just as the Interstate Commerce Act requires federal officials to cooperate with the states and their duly authorized state officials. Here neither petitioner nor the drivers have obtained any kind of authority from the Interstate Commerce Commission. Indeed, petitioner’s whole case has been built on the premise that neither it nor the drivers must get a permit from the state or the national regulatory agency. In this situation our prior cases make clear that a state can regulate so long as no undue burden is imposed on interstate commerce, and that a mere requirement for a permit is not such a burden.5 It will be time enough to consider apprehended burdensome conditions when and if the state attempts to impose and 5 In Columbia Terminals Co. n. Lambert, 30 F. Supp. 28, the District Court upheld a Missouri statute reading: “It is hereby declared unlawful for any motor carrier ... to use any of the public highways of this state for the transportation of persons or property, or both, in interstate commerce without first having obtained from the commission a permit so to do. . . Buck v. Kuykendall, 267 U. S. 307, was held not to require the statute’s invalidation, since Missouri had not refused to grant a permit on the ground that the state had power to say what interstate commerce would benefit the state and what would not. Agreeing with this constitutional holding, we ordered the complaint dismissed. 309 U. S. 620. See also Eichholz n. Public Service Comm’n, 306 U. S. 268, 273-274; H. P. Welch Co. v. New Hampshire, 306 U. S. 79, 84, 85; Maurer n. Hamilton, 309 U. S. 598, affirming 336 Pa. 17, 7 A. 2d 466; McDonald v. Thompson, 305 U. S. 263, affirming 95 F. 2d 937; South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177. Cf. Buck n. Kuykendall, 267 U. S. 307, and Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 538. FRY ROOFING CO. v. WOOD. 163 157 Douglas, J., dissenting. enforce them. At present we hold only that Arkansas is not powerless to require interstate motor carriers to identify themselves as users of that state’s highways. Affirmed. Mr. Justice Douglas, with whom The Chief Justice, Mr. Justice Burton and Mr. Justice Minton join, dissenting. Whether the driver-owners involved here are contract or private carriers is immaterial to the determination of the federal question presented. That question is whether Arkansas can require a person engaged exclusively in the interstate transportation of goods by motor carrier to obtain a certificate of necessity and convenience from Arkansas. That is precisely what Arkansas has required, as made clear by the opinion of the State Supreme Court in the instant case. The Court said, "We are of the opinion that the driver-owners involved in this litigation were contract carriers” (as defined in the Arkansas statute) and . . and that they were therefore required to have a Certificate of Necessity and Convenience from the Arkansas Public Service Commission.” 219 Ark. 553, 557, 244 S. W. 2d 147, 149. The label “Certificate of Necessity and Convenience” is more accurate than the word “permit,” for the Arkansas law makes the grant of permission dependent upon a consideration of the following factors:1 “the reliability and financial condition of the applicant”—his “sense of responsibility toward the public”—“the transportation service being maintained by any railroad, street railway 1 The relevant parts of § 11 of Act No. 367, Ark. Acts 1941, pp. 947-949, are as follows: “(a) No person shall engage in the business of a contract carrier by motor vehicle over any public highway in this State unless there 164 OCTOBER TERM, 1952. Douglas, J., dissenting. 344U.S. or motor carrier”—“the likelihood of the proposed service being permanent and continuous throughout twelve months of the year”—“the effect which such proposed transportation service may have upon existing transpor- is in force with respect to such carrier a permit issued by the Commission, authorizing such persons to engage in such business. . . . “(c) Subject to this Act a permit shall be issued to any qualified applicant therefor authorizing in whole or in part the operations covered by the application, if it appears from the application or from any hearing held thereon, that the applicant is fit, willing, and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this Act and the lawful requirements, rules and regulations of the Commission, and the proposed operation, to the extent authorized by the permit, will promote the public interest and the policy declared in Section Two (2) of this Act; otherwise such application shall be denied. . . . “(e) In granting applications for permits, the Commission shall take into consideration the reliability and financial condition of the applicant and his sense of responsibility toward the public; the transportation service being maintained by any railroad, street railway or motor carrier; the likelihood of the proposed service being permanent and continuous throughout twelve months of the year, and the effect which such proposed transportation service may have upon existing transportation service; and any other matters tending to show the necessity or want of necessity for granting said application. “(f) The Commission shall specify in the permit the business of the contract carrier covered thereby and the scope thereof and shall attach to it, at the time of issuance, and from time to time thereafter, such reasonable terms, conditions, and limitations consistent with the character of the holder as a contract carrier as are necessary to carry out, with respect to the operations of such carrier, the requirements established by the Commission under this Act; provided, however, that no terms, conditions, or limitations shall restrict the right of the carrier to substitute or add contracts within the scope of the permit, or to add to his or its equipment facilities, within the scope of the permit, as the development of the business and the demands of the public may require.” FRY ROOFING CO. v. WOOD. 165 157 Douglas, J., dissenting. tation service”—“any other matters tending to show the necessity or want of necessity for granting said application.” The permit will issue if it appears that “the applicant is fit, willing, and able” properly to perform the service and if the proposed operation “will promote the public interest” and the policy of the Act.2 This statute is a regulation of interstate commerce, not a regulation of the use of Arkansas’ highways. It is precisely the kind of control which the State of Washington tried to exercise over motor carriers and which was denied her by Buck v. Kuykendall, 267 U. S. 307. As Mr. Justice Brandeis, speaking for the Court in that case, said, the effect of this kind of state regulation is “not merely to burden but to obstruct” interstate commerce. Id., at 316. State regulations in the interest of safety, the exaction of a fee for highway maintenance, and the like are of a different character. See Highway Dept. n. Barnwell Bros., 303 U. S. 177,189, and cases cited. So is a requirement that an interstate carrier get a permit to do intrastate business. See Eichholz v. Commission, 306 U. S. 268. The certificate or permit exacted here is one authorizing an interstate contract carrier “to engage in such business.” Until today no state could impose any such condition on one engaged exclusively in interstate commerce. Until today such a certificate was the concern solely of the Interstate Commerce Commission. Congress gave the Commission authority to regulate interstate contract carriers (49 U. S. C. § 304 (a) (2)). Congress made it mandatory for them to obtain a permit to do business (id., § 309). It gave the Commission broad powers of investigation over these carriers (id., § 304 (c)), provided for injunctions against violations (id., § 322 (b)), and imposed 2 § 11, note 1, supra. 166 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. criminal sanctions (id., § 322 (a)). There is no phase of the operation, which Arkansas in this action seeks to regulate, that Congress has left untouched. It is the Interstate Commerce Commission that must determine whether this leasing operation is bona fide or a sham, whether the carriers are private interstate carriers requiring no permit or interstate contract carriers requiring one. Congress in other words has pre-empted the field, precluding both inconsistent and overlapping state regulations.3 See Hines v. Davidowitz, 312 U. S. 52; Hill v. Florida, 325 U. S. 538; Rice n. Santa Fe Elevator Corp., 331 U. S. 218; Bethlehem Steel Co. v. State Board, 330 U. S. 767; La Crosse Tel. Corp. n. Wisconsin Board, 336 U. S. 18; Plankinton Packing Co. v. Wisconsin Board, 338 U. S. 953; Automobile Workers v. O’Brien, 339 U. S. 454. 3 Columbia Terminals Co. v. Lambert, 30 F. Supp. 28, whose ruling we sustained, 309 U. S. 620, is not in point. The Interstate Commerce Commission had ruled in that case that the particular operations there involved were not covered by the Federal Act. See 30 F. Supp., at 30. ALISON v. UNITED STATES. 167 Syllabus. ALISON v. UNITED STATES. NO. 79. CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.* Argued November 12, 1952.—Decided December 8, 1952. Sections 23 (e) and (f) of the Internal Revenue Code provide that, in computing net income for the purpose of the federal income tax, there shall be allowed as deductions “losses sustained during the taxable year.” Treasury Regulations provide that “A loss from theft or embezzlement occurring in one year and discovered in another is ordinarily deductible for the year in which sustained.” Held: 1. Whether and when a deductible loss results from an embezzlement is a factual question, a practical one to be decided according to surrounding circumstances. Pp. 169-170. 2. Under the special factual circumstances found by the District Courts in the two cases here involved, the taxpayers were entitled, under the Code provisions and the Treasury Regulations, to deductions for the year in which the embezzlement losses were discovered and their amounts ascertained. Pp. 168-170. 97 F. Supp. 959, reversed; 98 F. Supp. 252, affirmed. No. 79. In an action for a refund of income taxes, the District Court gave judgment against the taxpayer. 97 F. Supp. 959. The Court of Appeals certified a question to this Court, which ordered the entire record sent up. Reversed, p. 170. No. 80. In an action for a refund of income taxes, the District Court gave judgment for the taxpayer. 98 F. Supp. 252. The Court of Appeals certified a question to this Court, which ordered the entire record sent up. Affirmed, p. 170. Karl E. Weise argued the cause for Alison in No. 79. With him on the brief was Paul Kern Hirsch. *Together with No. 80, United States v. Stevenson-Chislett, Inc., also on certificate from the same court. 226612 0—53------16 168 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Hilbert P. Zarky argued the cause for the United States in Nos. 79 and 80. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Lyon, Ellis N. Slack and Lee A. Jackson. David B. Buerger argued the cause for Stevenson-Chislett, Inc. in No. 80. With him on the brief was George M. Heinitsh, Jr. Mr. Justice Black delivered the opinion of the Court. The questions in these two income tax cases are so much alike that they can be treated in one opinion. Both taxpayers had moneys embezzled by trusted agents and employees. As usual, the defalcations had been going on for many years before they were discovered. On discovery, efforts were made immediately to identify the takers and fix the dates and amounts of the thefts. In the Alison case, No. 79, the books revealed the thief and the precise amounts taken each year from 1931 to 1940. In No. 80, Stevenson-Chislett, Inc., the cover-up had been so successful that painstaking investigation failed to reveal who took the funds or the time when the unascertained person or persons took them. Each taxpayer claimed a tax deduction for the year the losses were discovered and their amounts ascertained. The Government objected, claiming that the deduction should have been taken in each of the prior years during which the moneys were being surreptitiously taken. In the Stevenson-Chislett case, the District Court held that the uncertain circumstances of the embezzlement entitled the taxpayer to take its losses the year the loss was discovered and the amount ascertained. 98 F. Supp. 252. The District Judge decided the other way in the Alison case and denied her declarations. 97 F. Supp. 959. His holding, however, was not in accord with his own views, but was compelled, he thought, by the Third Circuit’s decision in ALISON v. UNITED STATES. 169 167 Opinion of the Court. First National Bank of Sharon, Pa. v. Heiner, 66 F. 2d 925. The Court of Appeals for the Third Circuit certified to us the question of deductibility in both cases. Pursuant to 28 U. S. C. § 1254 (3), we ordered the complete records sent up so that we might decide the entire matters in controversy. Internal Revenue Code, §§23 (e) and (f) authorize de-’ ductions for “. . . losses sustained during the taxable year. ...” The Government reads this section as requiring a taxpayer to take a deduction for loss from embezzlement in the year in which the theft occurs, even though inability to discover in time might completely deprive the taxpayer of the benefit of this statutory deduction. Only at the time the money is stolen, so it is argued, is a loss “sustained.” But Treasury practice itself belies this rigid construction. For more than thirty years the Regulations have provided that “A loss from theft or embezzlement occurring in one year and discovered in another is ordinarily deductible for the year in which sustained.” 26 CFR § 29.43-2. (Emphasis supplied.) Information contained in a letter from the Commissioner attached as an appendix to the Government’s brief cites many instances in which the Treasury has allowed deductions for embezzlement losses in years subsequent to those in which the thefts occurred. Apparently the Department has felt constrained to do this in order to prevent hardships and injustice. These have been departures from the “ordinary” rule of attributing embezzlement losses to the year of theft. This Treasury practice evidently stems at least in part from the special nature of the crime of embezzlement. Its essence is secrecy. Taxpayers are usually well aware of all the circumstances of financial losses for which tax deductions are allowed. Not so when a trusted adviser or employee steals. For years his crime may be known only to himself. He may take money planning to return 170 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. it and he may return it before there is discovery. Furthermore, the terms embezzlement and loss are not synonymous. The theft occurs, but whether there is a loss may remain uncertain. One whose funds have been embezzled may pursue the wrongdoer and recover his property wholly or in part. See Commissioner v. Wilcox, 327 U. S. 404. Events in the Alison case show the practical value of this right of recovery. A substantial proportion of the embezzled funds was recovered in 1941, ten years after the first embezzlement occurred. This recovery alone is ample refutation of the view that a loss is inevitably “sustained” at the very time an embezzlement is committed. Whether and when a deductible loss results from an embezzlement is a factual question, a practical one to be decided according to surrounding circumstances. See Boehm v. Commissioner, 326 U. S. 287. An inflexible rule is not needed; the statute does not compel it. For years the Treasury has administered the tax law under regulations saying that deductions shall “ordinarily” be taken in the year of embezzlement. Ordinarily does not mean always. We hold that the special factual circumstances found by the District Courts in both these cases justify deductions under I. R. C., §§23 (e) and (f) and the long-standing Treasury Regulations applicable to embezzlement losses. See Boston Consolidated Gas Co. v. Commissioner, 128 F. 2d 473; Gwinn Bros. & Co. v. Commissioner, 7 T. C. 320. Accordingly, the judgment in No. 79 is reversed and the judgment in No. 80 is affirmed. It is so ordered. Mr. Justice Douglas and Mr. Justice Burton dissent. BAILESS v. PAUKUNE. 171 Opinion of the Court. BAILESS, COUNTY TREASURER, et al. v. PAUKUNE. CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. No. 242. Submitted November 10, 1952.—Decided Dec. 8, 1952. Under the General Allotment Act of February 8, 1887, a trust patent to land in Oklahoma was issued to an Apache Indian. He died, leaving a will devising an undivided interest in the allotment to his widow. No fee patent had been issued and the trust period had not expired. Held: If the widow is not an Indian, her interest is subject to state taxation. Pp. 171-173. 206 Okla. 527, 244 P. 2d 1137, reversed and remanded. Respondent sued in an Oklahoma state court to enjoin state taxation of her undivided interest in a trust patent for land issued to her deceased Indian husband. Without determining whether the widow was an Indian, the trial court held that the interest was not taxable, and the Supreme Court of Oklahoma affirmed. 206 Okla. 527, 244 P. 2d 1137. This Court granted certiorari. 344 U. S. 812. Reversed and remanded, p. 173. R. L. Lawrence and R. F. Barry submitted on brief for petitioners. Reford Bond, Jr. submitted on brief for respondent. Acting Solicitor General Stern filed a memorandum for the United States, as amicus curiae, supporting petitioners. Mr. Justice Douglas delivered the opinion of the Court. In 1901 an Apache Indian, Paukune, was issued a trust patent to land in Caddo County, Oklahoma. This allotment was made under the General Allotment Act of Feb- 172 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ruary 8, 1887, 24 Stat. 388, 389.1 Paukune died testate in 1919, leaving a wife Juana and a son Jose. By his will he devised an undivided one-third interest in the allotment to his widow and an undivided two-thirds interest to his son. No fee patent to the land has issued to Paukune, to his widow, or to the son. The trust period of twenty-five years has from time to time been extended. In other words, the United States still holds the land in trust for Paukune and his. heirs. In 1947 Juana’s undivided one-third interest was assessed for ad valorem taxes in the amount of $21.33 and was advertised for sale for failure to pay. She thereupon instituted this suit in the Oklahoma courts to enjoin the sale and any further levy of ad valorem taxes on the theory that the land was exempt from state taxation. The petitioners answered, alleging that Juana was a nonIndian and therefore not exempt from the taxes. The 1 Section 5 of the Act provides in part as follows: “That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, That the law of descent and partition in force in the State or Territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided . . . .” BAILESS v. PAUKUNE. 173 171 Opinion of the Court. trial court, without determining whether the widow was an Indian, held her interest non taxable by the state; and the Supreme Court of Oklahoma affirmed, 206 Okla. 527, 244 P. 2d 1137, saying it mattered not under federal law whether the widow was Indian or non-Indian. The case is here on certiorari. 344 U. S. 812. Levindale Lead Co. v. Coleman, 241 U. S. 432, dealt with restrictions on alienation attached to land under the Osage Indian Allotment Act of June 28, 1906, 34 Stat. 539. The Court held that the policy of that Act did not embrace persons who were not Indians, since the Congress sought to protect only those toward whom it owed the duties of a guardian. The same answer must be given here. If Juana is not an Indian, the United States has no interest of hers in the land to protect.2 True, the United States holds the legal title to the land. But nothing in the Act prevents the devolution of the equitable interest to the widow. If she is not within the class whom Congress sought to protect, the trust is a dry and passive one; there remains only a ministerial act for the trustee to perform, namely the issuance of a fee patent to the cestui. The judgment of the Supreme Court of Oklahoma is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion. So ordered. 2 And see Mixon v. Littleton, 265 F. 603; Unkle v. Wills, 281 F. 29, 35. 174 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. UNITED STATES v. CARDIFF. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 27. Argued November 17, 1952.—Decided December 8, 1952. It is not an offense under §§ 301 (f) and 704 of the Federal Food, Drug, and Cosmetic Act for the president of a corporation operating a factory engaged in packing and preparing food for interstate distribution to refuse to grant permission for inspectors of the Food and Drug Administration to enter and inspect the factory at reasonable times. Pp. 174-177. 194 F. 2d 686, affirmed. Respondent was convicted of a violation of § 301 (f) of the Federal Food, Drug, and Cosmetic Act. 95 F. Supp. 206. The Court of Appeals reversed. 194 F. 2d 686. This Court granted certiorari. 343 U. S. 940. Affirmed, p. 177. James L. Morrisson argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Carl H. Imlay and William W. Goodrich. John Lichty argued the cause and filed a brief for respondent. Mr. Justice Douglas delivered the opinion of the Court. Respondent was convicted of violating § 301 (f) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U. S. C. § 331 (f). That section prohibits “The refusal to permit entry or inspection as authorized by section 704.”1 Section 704 authorizes the federal officers or employees “after first making request and obtaining permis- 1 The violation is made a misdemeanor by 21 U. S. C. § 333. UNITED STATES v. CARDIFF. 175 174 Opinion of the Court. sion of the owner, operator, or custodian” of the plant or factory “to enter” and “to inspect” the establishment, equipment, materials and the like “at reasonable times.”2 Respondent is president of a corporation which processes apples at Yakima, Washington, for shipment in interstate commerce. Authorized agents applied to respondent for permission to enter and inspect his factory at reasonable hours. He refused permission, and it was that refusal which was the basis of the information filed against him and under which he was convicted and fined. 95 F. Supp. 206. The Court of Appeals reversed, holding that § 301 (f), when read with § 704, prohibits a refusal to permit entry and inspection only if such permission has previously been granted. 194 F. 2d 686. The case is here on certiorari. 343 U. S. 940. The Department of Justice urges us to read § 301 (f) as prohibiting a refusal to permit entry or inspection at any reasonable time. It argues that that construction is needed if the Act is to have real sanctions and if the benign purposes of the Act are to be realized. It points out that factory inspection has become the primary investigative device for enforcement of this law, that it is from factory inspections that about 80 percent of the violations are discovered, that the small force of inspectors makes factory inspection, rather than random sampling 2 Section 704 reads as follows: “For purposes of enforcement of this Act, officers or employees duly designated by the Administrator, after first making request and obtaining permission of the owner, operator, or custodian thereof, are authorized (1) to enter, at reasonable times, any factory, warehouse, or establishment in which food, drugs, devices, or cosmetics are manufactured, processed, packed, or held, for introduction into interstate commerce or are held after such introduction, or to enter any vehicle being used to transport or hold such food, drugs, devices, or cosmetics in interstate commerce; and (2) to inspect, at reasonable times, such factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials, containers, and labeling therein.” 176 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. of finished goods, the only effective method of enforcing the Act. All that the Department says may be true. But it does not enable us to make sense out of the statute. Nowhere does the Act say that a factory manager must allow entry and inspection at a reasonable hour. Section 704 makes entry and inspection conditioned on “making request and obtaining permission.” It is that entry and inspection which § 301 (f) backs with a sanction. It would seem therefore on the face of the statute that the Act prohibits the refusal to permit inspection only if permission has been previously granted. Under that view the Act makes illegal the revocation of permission once given, not the failure to give permission. But that view would breed a host of problems. Would revocation of permission once given carry the criminal penalty no matter how long ago it was granted and no matter if it had no relation to the inspection demanded? Or must the permission granted and revoked relate to the demand for inspection on which the prosecution is based? Those uncertainties make that construction pregnant with danger for the regulated business. The alternative construction pressed on us is equally treacherous because it gives conflicting commands. It makes inspection dependent on consent and makes refusal to allow inspection a crime. However we read § 301 (f) we think it is not fair warning (cf. United States v. Weitzel, 246 U. S. 533; McBoyle n. United States, 283 U. S. 25) to the factory manager that if he fails to give consent, he is a criminal. The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid (cf. United States v. Cohen Grocery Co., 255 U. S. 81) may be as much of a trap for the innocent as the ancient laws of Caligula. We cannot sanction taking a UNITED STATES v. CARDIFF. 177 174 Opinion of the Court. man by the heels for refusing to grant the permission which this Act on its face apparently gave him the right to withhold. That would be making an act criminal without fair and effective notice. Cf. Herndon v. Lowry, 301 U. S. 242. Affirmed. Mr. Justice Jackson concurs in the result. Mr. Justice Burton dissents. 178 OCTOBER TERM, 1952. Syllabus. 344 U. S. MONTGOMERY BUILDING & CONSTRUCTION TRADES COUNCIL et al. v. LEDBETTER ERECTION CO., INC. CERTIORARI TO THE SUPREME COURT OF ALABAMA. No. 43. Argued November 13, 1952.—Decided December 8, 1952. Respondent filed a bill in equity in an Alabama state court to enjoin certain picketing activities, wholly peaceful, carried on by petitioner labor organizations. The court forthwith issued a temporary injunction. Subsequently a motion by petitioners to dissolve the temporary injunction was denied by the trial court, and its order was affirmed by the State Supreme Court. Held: The judgment of the State Supreme Court was not a “final” judgment within the meaning of 28 U. S. C. § 1257, and therefore was not reviewable by this Court. Pp. 179-181. (a) The fact that as long as a temporary injunction is in force it may be as effective as a permanent injunction, and that appeals from interlocutory judgments have for that reason been authorized by state legislatures and in some circumstances by Congress, does not give interlocutory judgments the aspect of finality required by 28 U. S. C. § 1257. Pp. 180-181. (b) Since there was no final judgment of the State Supreme Court reviewable here, the writ of certiorari which was granted in this case is dismissed as improvidently granted. P. 181. Writ of certiorari dismissed. An order of an Alabama state court denying petitioners’ motion to dissolve a temporary injunction against certain picketing activities of petitioners, was affirmed by the State Supreme Court. 256 Ala. 678, 57 So. 2d 112, rehearing denied, 256 Ala. 689, 57 So. 2d 121. This Court granted certiorari. 343 U. S. 962. Writ dismissed as improvidently granted, p. 181. Herbert 8. Thatcher argued the cause for petitioners. With him on the brief were J. Albert Woll, James A. Glenn, Joseph E. Finley and Earl McBee. BUILDING UNION v. LEDBETTER CO. 179 178 Opinion of the Court. By special leave of Court, Mozart G. Ratner argued the cause for the National Labor Relations Board, as amicus curiae, urging reversal. With him on the brief were Acting Solicitor General Stern, Marvin E. Frankel, George J. Bott, David P. Findling and Bernard Dunau. Jack Crenshaw argued the cause for respondent. With him on the brief was Files Crenshaw. Arthur J. Goldberg filed a brief for the Congress of Industrial Organizations, as amicus curiae, supporting petitioners. Mr. Justice Minton delivered the opinion of the Court. The respondent filed a bill in equity in the Circuit Court of Montgomery County, Alabama, to enjoin certain picketing activities, wholly peaceful, carried on by the petitioners, labor organizations. Upon the sworn bill and without notice, the court issued forthwith a “Temporary Writ of Injunction.” The petitioners appeared and filed an answer and a motion to dissolve the injunction on numerous grounds. Subsequently, the petitioners withdrew their answer and most of the grounds assigned for dissolution of the injunction and filed new grounds therefor. The motion to dissolve was denied, and from this order of the court the petitioners appealed to the Supreme Court of Alabama, which affirmed the order of the trial court. 256 Ala. 678, 57 So. 2d 112, rehearing denied, 256 Ala. 689, 57 So. 2d 121. Certiorari was sought here and granted, 343 U. S. 962. At the very threshold, we are presented with a question of jurisdiction. This Court may grant certiorari from a judgment or decree of the Supreme Court of Alabama, the highest court in the State, only if the judgment or decree is final. 28 U. S. C. § 1257. Was this a final judgment or decree? 180 OCTOBER TERM, 1952. Opinion of the Court. 344U.S. From the earliest days, this Court has refused to accept jurisdiction of interlocutory decrees, such as is involved in this case. In Gibbons v. Ogden, 6 Wheat. 448, the first case presenting this issue to this Court, an injunction had been granted by a Chancery Court of the State of New York. The defendant answered and moved to dissolve the injunction. The court denied the motion to dissolve, and the defendant appealed to the Court for the Trial of Impeachments and Correction of Errors which affirmed. The appeal to this Court was dismissed because there was no final decree in the court of last resort for this Court to review. The provision of § 1257 that only “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . has been carried in almost identical language since the Judiciary Act of 1789, 1 Stat. 85, § 25. “This requirement is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system.” Radio Station WOW v. Johnson, 326 U. S. 120, 124. The distinction between a preliminary or temporary injunction and a final or permanent injunction was elementary in the law of equity. The classical concept was at once recognized and applied in Gibbons v. Ogden, supra. There is no room here for interpretation. The rule remains unchanged. True, as long as a temporary injunction is in force it may be as effective as a permanent injunction, and for that reason appeals from interlocutory judgments have been authorized by state legislatures and Congress. But such authorization does not give interlocutory judgments the aspect of finality here, even though we may have inadvertently granted certiorari. Baldwin Co. v. Howard Co., 256 U. S. 35, 40. BUILDING UNION v. LEDBETTER CO. 181 178 Douglas, J., dissenting. It is argued that if this is not held to be a final decree or judgment and decided now, it may never be decided, because to await the outcome of the final hearing is to moot the question and to frustrate the picketing. However appealing such argument may be, it does not warrant us in enlarging our jurisdiction. Only Congress may do that. Furthermore, the interlocutory decree could have been readily converted into a final decree, and the appeal could have proceeded without question as to jurisdiction just as effectively and expeditiously as the appeal from the interlocutory injunction was pursued in this case. Since there was no final judgment of the Supreme Court of Alabama for review, the writ of certiorari must be dismissed as improvidently granted. It is so ordered. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. The question presented is the power of the state court to issue a temporary injunction in this kind of labor dispute. If petitioners had sought mandamus or another appropriate state writ directed against the judge who issued the temporary injunction, I should have no doubt that it would be a final judgment which we would review. See Bandini Co. v. Superior Court, 284 U. S. 8, 14. Cf. Rescue Army v. Municipal Court, 331 U. S. 549, 565. I see no difference of substance between that case and this. The mischief of temporary injunctions in labor controversies is well known. It is done when the interlocutory order is issued. The damage is often irreparable. The assertion by the state court of power to act in an interlocutory way is final. Whether it has that power may be determined without reference to any future proceedings which may be taken. Unless the rule of finality is to be 182 OCTOBER TERM, 1952. t Douglas, J., dissenting. 344U.S. purely mechanical, which to date it has not been (see Radio Station WOW v. Johnson, 326 U. S. 120, 124), we should determine now whether the National Labor Relations Act permits a state court to interfere with a labor controversy in a way, which though interim in form, irretrievably alters the status of the dispute or in fact settles it.* *This “practical” rather than “technical” construction is as necessary here as it is in cases involving appeals from “final decisions” in.the federal system. See Cohen v. Beneficial Loan Corp., 337 U. S. 541,545-546. WIEMAN v. UPDEGRAFF. 183 Syllabus. WIEMAN ET AL. v. UPDEGRAFF et al. APPEAL FROM THE SUPREME COURT OF OKLAHOMA. No. 14. Argued October 16, 1952.—Decided December 15, 1952. Oklahoma Stat. Ann., 1950, Tit. 51, §§37.1-37.8 (1952 Supp.), requires each state officer and employee, as a condition of his employment, to take a “loyalty oath,” stating, inter alia, that he is not, and has not been for the preceding five years, a member of any organization listed by the Attorney General of the United States as “communist front” or “subversive.” As construed by the Supreme Court of Oklahoma, it excludes persons from state employment solely on the basis of membership in such organizations, regardless of their knowledge concerning the activities and purposes of the organizations to which they had belonged. Held: As thus construed, the Act violates the Due Process Clause of the Fourteenth Amendment. Pp. 184-192. (a) The Due Process Clause does not permit a state, in attempting to bar disloyal persons from its employment on the basis of organizational membership, to classify innocent with knowing association. Adler v. Board of Education, 342 U. S. 485; Gerende v. Board of Supervisors, 341 U. S. 56; and Gamer v. Board of Public Works, 341 U. S. 716, distinguished. Pp. 188-191. (b) The protection of the Due Process Clause extends to a public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory. Adler n. Board of Education, 342 U. S. 485, and United Public Workers v. Mitchell, 330 U. S. 75, distinguished. Pp. 191-192. 205 Okla. 301, 237 P. 2d 131, reversed. The Supreme Court of Oklahoma affirmed the judgment of a trial court sustaining the constitutionality of Okla. Stat. Ann., 1950, Tit. 51, §§ 37.1-37.8 (1952 Supp.), and enjoining payment of salaries to state employees who had refused to subscribe to the “loyalty oath” required by that Act. 205 Okla. 301, 237 P. 2d 131. On appeal to this Court, reversed, p. 192. H. D. Emery argued the cause for appellants. With him on the brief was Robert J. Emery. 226612 0—53------------17 184 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Fred Hansen, First Assistant Attorney General of Oklahoma, argued the cause for the Board of Regents of the Oklahoma Agricultural Colleges et al., appellees. With him on the brief was Mac Q. Williamson, Attorney General. Paul W. Updegraff argued the cause and filed a brief pro se. Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. Mr. Justice Clark delivered the opinion of the Court. This is an appeal from a decision of the Supreme Court of Oklahoma upholding the validity of a loyalty oath1 prescribed by Oklahoma statute for all state officers and 1“I,, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Oklahoma against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of Oklahoma; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter. “And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means; That I am not affiliated directly or indirectly with the Communist Party, the Third Communist International, with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization; nor do I advocate revolution, teach or justify a program of sabotage, force or violence, sedition or treason, against the Government of the United States or of this State; nor do I advocate directly or indirectly, teach or justify by any means whatsoever, the overthrow of the Government of the United States or of this State, or change in the form of Government thereof, by force WIEMAN v. UPDEGRAFF. 185 183 Opinion of the Court. employees. Okla. Stat. Ann., 1950, Tit. 51, §§ 37.1-37.8 (1952 Supp.). Appellants, employed by the State as members of the faculty and staff of Oklahoma Agricultural and Mechanical College, failed, within the thirty days permitted, to take the oath required by the Act. Appellee Updegraff, as a citizen and taxpayer, thereupon brought this suit in the District Court of Oklahoma County to enjoin the necessary state officials from paying further compensation to employees who had not subscribed to the oath. The appellants, who were permitted to intervene, attacked the validity of the Act on the grounds, among others, that it was a bill of attainder; an ex post facto law; impaired the obligation of their contracts with the State and violated the Due Process Clause of the Fourteenth Amendment. They also sought a mandatory injunction directing the state officers to pay or any unlawful means; that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of the Communist Party, the Third Communist International, or of any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public agency of the United States to be a communist front or subversive organization, or of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means; “And I do further swear (or affirm) that during such time as I am (Here put name of office, or, if an employee,) insert ‘An employee of followed by the complete designation of the employing officer, office, agency, authority, commission, department or institution. “I will not advocate and that I will not become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means.” 186 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. their salaries regardless of their failure to take the oath. Their objections centered largely on the following clauses of the oath: “. . . That I am not affiliated directly or indirectly . . . with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization; . . . that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of . . . any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public agency of the United States to be a communist front or subversive organization , . . The court upheld the Act and enjoined the state officers from making further salary payments to appellants. The Supreme Court of Oklahoma affirmed, sub nom. Board of Regents n. Updegraff, 205 Okla. 301, 237 P. 2d 131 (1951).2 We noted probable jurisdiction because of the public importance of this type of legislation and the recurring serious constitutional questions which it presents. 2 The state officials named as defendants in Updegraff’s suit took the position in the state courts That the statute was unconstitutional. Following a policy of the Oklahoma Attorney General not to appeal from adverse decisions of the state supreme court, these defendants are here only because they were made appellees by the appellantintervenors. They have chosen in their brief merely to restate, without argument, their position in the court below. WIEMAN v. UPDEGRAFF. 187 183 Opinion of the Court. The District Court of Oklahoma County in holding the Act valid concluded that the appellants were compelled to take the oath as written; that the appellants “and each of them, did not take and subscribe to the oath as provided in section 2 of the Act and wilfully refused to take that oath and by reason thereof the Board of Regents is enjoined from paying them, and their employment is terminated.” In affirming, the Supreme Court of Oklahoma held that the phrase of the oath “any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization” actually “refers to a list or lists of such organizations in existence at the time of the passage of the act which had been prepared by the Attorney General [of the United States] under governmental directive. Such list or lists are in effect made a part of the oath by reference.” On this point the opinion continues: “There is no requirement in the act that an oath be taken of nonmembership in organizations not on the list of the Attorney General of the United States at the time of the passage of this act.” We read this part of the highest state court’s decision as limiting the organizations proscribed by the Act to those designated on the list or lists of the Attorney General which had been issued prior to the effective date of the Act. Although this interpretation discarded clear language of the oath as surplusage, the court denied the appellants’ petition for rehearing which included a plea that refusal of the court to permit appellants to take the oath as so interpreted was violative of due process. The purpose of the Act, we are told, “was to make loyalty a qualification to hold public office or be employed by the State.” 205 Okla., at 305, 237 P. 2d, at 136. 188 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. During periods of international stress, the extent of legislation with such objectives accentuates our traditional concern about the relation of government to the individual in a free society. The perennial problem of defining that relationship becomes acute when disloyalty is screened by ideological patterns and techniques of disguise that make it difficult to identify. Democratic government is not powerless to meet this threat, but it must do so without infringing the freedoms that are the ultimate values of all democratic living. In the adoption of such means as it believes effective, the legislature is therefore confronted with the problem of balancing its interest in national security with the often conflicting constitutional rights of the individual. In a series of cases coming here in recent years, we have had occasion to consider legislation aimed at safeguarding the public service from disloyalty. Garner n. Board of Public Works, 341 U. S. 716 (1951); Adler v. Board of Education, 342 U. S. 485 (1952); Gerende v. Board of Supervisors, 341 U. S. 56 (1951). It is in the context of these decisions that we determine the validity of the oath before us. Garner involved a Los Angeles ordinance requiring all city employees to swear that they did not advocate the overthrow of the government by unlawful means or belong to organizations with such objectives. The ordinance implemented an earlier charter amendment which disqualified from municipal employment all persons unable to take such an oath truthfully. One of the attacks made on the oath in that case was that it violated due process because its negation was not limited to organizations known by the employee to be within the proscribed class. This argument was rejected because we felt justified in assuming that scienter was implicit in each clause of the oath. WIEMAN v. UPDEGRAFF. 189 183 Opinion of the Court. Adler also indicated the importance of determining whether a rule of exclusion based on association applies to innocent as well as knowing activity. New York had sought to bar from employment in the public schools persons who advocate, or belong to organizations which advocate, the overthrow of the government by unlawful means. The Feinberg Law directed the New York Board of Regents to make a listing, after notice and hearing, of organizations of the type described. Under § 3022 of the statute, the Regents provided by regulation that membership in a listed organization should be prima facie evidence of disqualification for office in the New York public schools. In upholding this legislation, we expressly noted that the New York courts had construed the statute to require knowledge of organizational purpose before the regulation could apply. 342 U. S., at 494. Cf. American Communications Assn. v. Douds, 339 U. S. 382, 413 (1950). The oath in Gerende was required of candidates for public office who sought places on a Maryland ballot. On oral argument in that case, the Maryland Attorney General assured us that he would advise the proper state authorities to accept, as complying with the statute, an affidavit stating that the affiant was not engaged in an attempt to overthrow the government by force or violence or knowingly a member of an organization engaged in such an attempt. Because we read an earlier Maryland Court of Appeals’ decision as interpreting the statute so that such an affidavit would satisfy its requirements, we affirmed on the basis of this assurance. We assumed in Garner, that if our interpretation of the oath as containing an implicit scienter requirement was correct, Los Angeles would give the petitioners who had refused to sign the oath an opportunity to take it as interpreted and resume their employment. But here, with our decision in Garner before it, the Oklahoma Su- 190 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. preme Court refused to extend to appellants an opportunity to take the oath. In addition, a petition for rehearing which urged that failure to permit appellants to take the oath as interpreted deprived them of due process was denied. This must be viewed as a holding that knowledge is not a factor under the Oklahoma statute. We are thus brought to the question touched on in Garner, Adler, and Gerende: whether the Due Process Clause permits a state, in attempting to bar disloyal individuals from its employ, to exclude persons solely on the basis of organizational membership, regardless of their knowledge concerning the organizations to which they had belonged. For, under the statute before us, the fact of membership alone disqualifies. If the rule be expressed as a presumption of disloyalty, it is a conclusive one. But membership may be innocent. A state servant may have joined a proscribed organization unaware of its activities and purposes. In recent years, many completely loyal persons have severed organizational ties after learning for the first time of the character of groups to which they had belonged. “They had joined, [but] did not know what it was, they were good, fine young men and women, loyal Americans, but they had been trapped into it—because one of the great weaknesses of all Americans, whether adult or youth, is to join something.” 3 At the time of affiliation, a group itself may be innocent, only later coming under the influence of those who would turn it toward illegitimate ends. Conversely, an organization formerly subversive and therefore designated as such may have subsequently freed itself from the influences which originally led to its listing. There can be no dispute about the consequences visited upon a person excluded from public employment on dis- 3 Testimony of J. Edgar Hoover, Hearings before House Committee on Un-American Activities on H. R. 1884 and H. R. 2122, 80th Cong., 1st Sess. 46. WIEMAN v. UPDEGRAFF. 191 183 Opinion of the Court. loyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when “each man begins to eye his neighbor as a possible enemy.”4 Yet under the Oklahoma Act, the fact of association alone determines disloyalty and disqualification; it matters not whether association existed innocently or knowingly. To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief sources. We hold that the distinction observed between the case at bar and Garner, Adler and Gerende is decisive. Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power. The oath offends due process. But appellee insists that Adler and United Public Workers v. Mitchell, 330 U. S. 75 (1947), are contra. We are referred to our statement in Adler that persons seeking employment in the New York public schools have “no right to work for the State in the school system on their own terms. United Public Workers v. Mitchell . . . . They may work for the school system upon the reasonable terms laid down by the proper authorities of New York.” 342 U. S., at 492. To draw from this language the facile generalization that there is no constitutionally protected right to public employment is to obscure the issue. For, in United Public Workers, though we held that the Federal Government through the Hatch Act could properly bar its employees from certain types of political activity thought inimical to the interests of the Civil Service, we cast this holding into perspective by emphasizing that Congress could not “enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal 4 Address by Judge Learned Hand at the 86th Convocation of the University of the State of New York, delivered October 24, 1952, at Albany, New York. 192 OCTOBER TERM, 1952. Black, J., concurring. 344 U. S. office, or that no federal employee shall attend Mass or take any active part in missionary work.” 330 U. S., at 100. See also In re Summers, 325 U. S. 561, 571 (1945). We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory. Because of this disposition, we do not pass on the serious questions raised as to whether the Act, in proscribing those “communist front or subversive organizations” designated as such on lists of the Attorney General of the United States, gave fair notice to those affected, in view of the fact that those listings have never included a designation of “communist fronts,” and have in some cases designated organizations without classifying them. Nor need we consider the significance of the differing standards employed in the preparation of those lists and their limited evidentiary use under the Federal Loyalty Program. Reversed. Mr. Justice Jackson, not having heard the argument, took no part in the consideration or decision of this case. Mr. Justice Burton concurs in the result. Mr. Justice Black, concurring. I concur in all the Court says in condemnation of Oklahoma’s test oath. I agree that the State Act prescribing that test oath is fatally offensive to the due process guarantee of the United States Constitution. History indicates that individual liberty is intermittently subjected to extraordinary perils. Even countries dedicated to government by the people are not free from such cyclical dangers. The first years of our Republic marked such a period. Enforcement of the Alien and WIEMAN v. UPDEGRAFF. 193 183 Black, J., concurring. Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its policies, either foreign or domestic. Our constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome. Today however, few individuals and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference. For this and other reasons the present period of fear seems more ominously dangerous to speech and press than was that of the Alien and Sedition Laws. Suppressive laws and practices are the fashion. The Oklahoma oath statute is but one manifestation of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people. Test oaths are made still more dangerous when combined with bills of attainder which like this Oklahoma statute impose pains and penalties for past lawful associations and utterances. Governments need and have ample power to punish treasonable acts. But it does not follow that they must have a further power to punish thought and speech as distinguished from acts. Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly free or eventually be wholly lost. 194 OCTOBER TERM, 1952. Frankfurter, J., concurring. 344U.S. It seems self-evident that all speech criticizing government rulers and challenging current beliefs may be dangerous to the status quo. With full knowledge of this danger the Framers rested our First Amendment on the premise that the slightest suppression of thought, speech, press, or public assembly is still more dangerous. This means that individuals are guaranteed an undiluted and unequivocal right to express themselves on questions of current public interest. It means that Americans discuss such questions as of right and not on sufferance of legislatures, courts or any other governmental agencies. It means that courts are without power to appraise and penalize utterances upon their notion that these utterances are dangerous. In my view this uncompromising interpretation of the Bill of Rights is the one that must prevail if its freedoms are to be saved. Tyrannical totalitarian governments cannot safely allow their people to speak with complete freedom. I believe with the Framers that our free Government can. Mr. Justice Douglas concurs in this opinion. Mr. Justice Frankfurter, whom Mr. Justice Douglas joins, concurring. The times being what they are, it is appropriate to add a word by way of emphasis to the Court’s opinion, which I join. The case concerns the power of a State to exact from teachers in one of its colleges an oath that they are not, and for the five years immediately preceding the taking of the oath have not been, members of any organization listed by the Attorney General of the United States, prior to the passage of the statute, as “subversive” or “Communist-front.” Since the affiliation which must thus be forsworn may well have been for reasons or for purposes as innocent as membership in a club of WIEMAN v. UPDEGRAFF. 195 183 Frankfurter, J., concurring. one of the established political parties, to require such an oath, on pain of a teacher’s loss of his position in case of refusal to take the oath, penalizes a teacher for exercising a right of association peculiarly characteristic of our people. See Arthur M. Schlesinger, Sr., Biography of a Nation of Joiners, 50 Am. Hist. Rev. 1 (1944), reprinted in Schlesinger, Paths To The Present, 23. Such joining is an exercise of the rights of free speech and free inquiry. By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers. The Constitution of the United States does not render the United States or the States impotent to guard their governments against destruction by enemies from within. It does not preclude measures of self-protection against anticipated overt acts of violence. Solid threats to our kind of government—manifestations of purposes that reject argument and the free ballot as the means for bringing about changes and promoting progress—may be met by preventive measures before such threats reach fruition. However, in considering the constitutionality of legislation like the statute before us it is necessary to 196 OCTOBER TERM, 1952. Frankfurter, J., concurring. 344 U. S. keep steadfastly in mind what it is that is to be secured. Only thus will it be evident why the Court has found that the Oklahoma law violates those fundamental principles of liberty “which lie at the base of all our civil and political institutions” and as such are imbedded in the due process of law which no State may offend. Hebert n. Louisiana, 272 U. S. 312, 316. That our democracy ultimately rests on public opinion is a platitude of speech but not a commonplace in action. Public opinion is the ultimate reliance of our society only if it be disciplined and responsible. It can be disciplined and responsible only if habits of open-mindedness and of critical inquiry are acquired in the formative years of our citizens. The process of education has naturally enough been the basis of hope for the perdurance of our democracy on the part of all our great leaders, from Thomas Jefferson onwards. To regard teachers—in our entire educational system, from the primary grades to the university—as the priests of our democracy is therefore not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms WIEMAN v. UPDEGRAFF. 197 183 Frankfurter, J., concurring. of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by National or State government. The functions of educational institutions in our national life and the conditions under which alone they can adequately perform them are at the basis of these limitations upon State and National power. These functions and the essential conditions for their effective discharge have been well described by a leading educator: “Now, a university is a place that is established and will function for the benefit of society, provided it is a center of independent thought. It is a center of independent thought and criticism that is created in the interest of the progress of society, and the one reason that we know that every totalitarian government must fail is that no totalitarian government is prepared to face the consequences of creating free universities. “It is important for this purpose to attract into the institution men of the greatest capacity, and to encourage them to exercise their independent judgment. “Education is a kind of continuing dialogue, and a dialogue assumes, in the nature of the case, different points of view. “The civilization which I work and which I am sure, every American is working toward, could be called a civilization of the dialogue, where instead of shooting one another when you differ, you reason things out together. “In this dialogue, then, you cannot assume that you are going to have everybody thinking the same way or feeling the same way. It would be unprogressive if that happened. The hope of eventual development would be gone. More than that, of course, it would be very boring. “A university, then, is a kind of continuing Socratic conversation on the highest level for the very best people you can think of, you can bring together, about the most important questions, and the thing that you must do to the uttermost possible limits is 198 OCTOBER TERM, 1952. Frankfurter, J., concurring. 344U.S. to guarantee those men the freedom to think and to express themselves. “Now, the limits on this freedom, the limits on this freedom, cannot be merely prejudice, because although our prejudices might be perfectly satisfactory, the prejudices of our successors or of those who are in a position to bring pressure to bear on the institution, might be subversive in the real sense, subverting the American doctrine of free thought and free speech.” Testimony of Robert M. Hutchins, Associate Director of the Ford Foundation, November 25, 1952, in Hearings before the House Select Committee to Investigate Tax-Exempt Foundations and Comparable Organizations, pursuant to H. Res. 561, 82d Cong., 2d Sess. SCHWARTZ v. TEXAS. 199 Opinion of the Court. SCHWARTZ v. TEXAS. CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 41. Argued November 12, 1952.—Decided December 15, 1952. Section 605 of the Federal Communications Act, which provides that “no person not being authorized by the sender shall intercept any communication and divulge or publish” the contents thereof to any person, and which has been construed to render such intercepted communications inadmissible as evidence in federal courts, does not exclude such intercepted communications from evidence in criminal proceedings in state courts. Pp. 199-204. — Tex. Cr. R. —, 246 S. W. 2d 174, affirmed. Petitioner was convicted in a Texas state court as an accomplice to the crime of robbery, upon evidence obtained by wire tapping. The Court of Criminal Appeals of Texas upheld the conviction. -----Tex. Cr. R.-----, 246 S. W. 2d 174, rehearing denied,----------------------Tex. Cr. R.-, 246 S. W. 2d 179. This Court granted certiorari. 343 U. S. 975. Affirmed, p. 204. Maury Hughes and Reuben M. Ginsberg argued the cause and filed a brief for petitioner. By special leave of Court, Calvin B. Garwood, Jr., Assistant Attorney General of Texas, pro hac vice, and Henry Wade argued the cause for respondent. With them on the brief were Price Daniel, Attorney General, Hugh Lyerly and William S. Lott, Assistant Attorneys General, and Ray L. Stokes. Mr. Justice Minton delivered the opinion of the Court. The petitioner, Schwartz, a pawnbroker, entered into a conspiracy with Jarrett and Bennett whereby the latter two were to rob places to be designated by Schwartz and 226612 0—53---18 200 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. bring the loot to him to dispose of and divide the proceeds with them. Pursuant to the plan, Jarrett and Bennett robbed a woman in Dallas, Texas, of her valuable jewels and brought the loot to the petitioner. After the petitioner repeatedly delayed settlement with the robbers, the thieves finally fell out, which proved very helpful to the police. The petitioner tipped off the police where they could find Jarrett. After Jarrett had been in jail about two weeks, he consented to telephone the petitioner from the sheriff’s office. With the knowledge and consent of Jarrett, a professional operator set up an induction coil connected to a recorder amplifier which enabled the operator to overhear and simultaneously to record the telephone conversations between Jarrett and the petitioner. These records were used as evidence before the jury that tried and convicted the petitioner as an accomplice to the crime of robbery. The records, admitted only after Jarrett and the petitioner had testified, corroborated Jarrett and discredited the petitioner. The Court of Criminal Appeals of Texas upheld the conviction, --- Tex. Cr. R. ---, 246 S. W. 2d 174, rehearing denied,----Tex. Cr. R.---, 246 S. W. 2d 179. We granted certiorari, 343 U. S. 975. Petitioner contends that § 605 of the Federal Commu-nications Act1 makes inadmissible in evidence the records of intercepted telephone conversations without the petitioner’s consent. The pertinent provision of the statute reads as follows: . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence,-contents, substance, purport, effect, or meaning of such intercepted communication to any person . . . .” 148 Stat. 1064, 47 U. S. C. § 151 et seq. SCHWARTZ v. TEXAS. 201 199 Opinion of the Court. Section 501 of 47 U. S. C. provides a penalty for the violation of § 605. We are dealing here only with the application of a federal statute to state proceedings. Without deciding, but assuming for the purposes of this case, that the telephone communications were intercepted without being authorized by the sender within the meaning of the Act, the question we have is whether these communications are barred by the federal statute, § 605, from use as evidence in a criminal proceeding in a state court. We think not. Although the statute contains no reference to the admissibility of evidence obtained by wire tapping, it has been construed to render inadmissible in a court of the United States communications intercepted and sought to be divulged in violation thereof, Nardone n. United States, 302 U. S. 379, and this is true even though the communications were intrastate telephone calls. Weiss v. United States, 308 U. S. 321, 329. Although the intercepted calls would be inadmissible in a federal court, it does not follow that such evidence is inadmissible in a state court. Indeed, evidence obtained by a state officer by means which would constitute an unlawful search and seizure under the Fourth Amendment to the Federal Constitution is nonetheless admissible in a state court, Wolf v. Colorado, 338 U. S. 25, while such evidence, if obtained by a federal officer, would be clearly inadmissible in a federal court. Weeks v. United States, 232 U. S. 383. The problem under § 605 is somewhat different because the introduction of the intercepted communications would itself be a violation of the statute, but in the absence of an expression by Congress, this is simply an additional factor for a state to consider in formulating a rule of evidence for use in its own courts. Enforcement of the statutory prohibition in § 605 can be achieved under the penal provisions of §501. 202 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. This question has been many times before the state courts, and they have uniformly held that § 605 does not apply to exclude such communications from evidence in state courts. Leon v. State, 180 Md. 279, 23 A. 2d 706; People v. Stemmer, 298 N. Y. 728, 83 N. E. 2d 141; Harlem Check Cashing Corp. n. Bell, 296 N. Y. 15, 68 N. E. 2d 854; People v. Channell, 107 Cal. App. 2d 192, 236 P. 2d 654. While these cases are not controlling here, they are entitled to consideration because of the high standing of the courts from which they come. Texas itself has given consideration to the admissibility of evidence obtained in violation of constitutional or statutory law and has carefully legislated concerning it. In 1925 Texas enacted a statute providing that evidence obtained in violation of the Constitution or laws of Texas or of the United States should not be admissible against the accused in a criminal case.2 In 1929 this Article 727a of the Texas Code of Criminal Procedure was amended to provide that evidence obtained in violation of the Constitution or laws of Texas or the Constitution of the United States should be inadmissible in evidence,3 thus eliminating from the coverage of the statute evidence obtained in violation of the laws of the United States. Where a state has carefully legislated so as not to render inadmissible evidence obtained and sought to be divulged in violation of the laws of the United States, this Court will not extend by implication the statute of the United States so as to invalidate the specific language of the state statute. If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to 2 Tex. Laws 1925, c. 49, § 1. 3 Vernon’s Tex. Stat., 1948, Code Crim. Proc., Art. 727a. SCHWARTZ v. TEXAS. 203 199 Opinion of the Court. supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed. “The principle thus applicable has been frequently stated. It is that the Congress may circumscribe its regulation and occupy a limited field, and that the intention to supersede the exercise by the State of its authority as to matters not covered by the federal legislation is not to be implied unless the Act of Congress fairly interpreted is in conflict with the law of the State.” Atchison, T. & S. F. R. Co. v. Railroad Commission, 283 U. S. 380, 392-393. See Savage n. Jones, 225 U. S. 501, 533. “It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested.” Reid n. Colorado, 187 U. S. 137, 148. It is due consideration but not controlling that Texas has legislated in this field. Our decision would be the same if the Texas courts had pronounced this rule of evidence. We hold that § 605 applies only to the exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof; it does not exclude such evidence in state court proceedings. Since we do not believe that Congress intended to impose a rule of evidence on the state courts, we do not decide whether it has the power to do so. Since the statute is not applicable to state proceedings, we do not have to decide the questions of what amounts 204 OCTOBER TERM, 1952. Frankfurter, J., concurring in result. 344 U. S. to “interception,” or whether if there was interception, the sender had authorized it. These questions can arise only in a federal court proceeding. The judgment is Affirmed. Mr. Justice Black concurs in the result. Mr. Justice Frankfurter, concurring in the result. If the only question involved in this case were the applicability to prosecutions in State courts, in situations like the present, of § 605 of the Federal Communications Act, 47 U. S. C. § 605, as construed in the two Nardone cases, 302 U. S. 379; 308 U. S. 338, I would join in the opinion of the Court. I agree with the views on this subject expressed by Mr. Justice Minton. The matter is complicated, however, by a Texas statute (Art. 727a, Vernon’s Code of Criminal Procedure (1948)) which renders inadmissible in criminal trials evidence obtained in violation of any provision “of the Constitution of the United States.” If this limitation means, according to Texas law, that the State court is to construe what is or is not a violation under the United States Constitution, it does not raise a federal question. But if the Texas legislation means that the Texas courts are bound by what this Court deems a violation of the United States Constitution, the problem is, or might be, different. See State Tax Commission v. Van Cott, 306 U. S. 511. While, on the latter assumption, the circumstances attending the evidence that was admitted here would, in my view, render it inadmissible in a federal prosecution, see my dissent in On Lee v. United States, 343 U. S. 747, 758, the decision of this Court was to the contrary. Therefore the Texas court was in duty bound to follow that decision and to reach the result it reached even if it felt constrained, as apparently it did, to be governed SCHWARTZ v. TEXAS. 205 199 Douglas, J., dissenting. by the views of this Court as to what constitutes a violation of the United States Constitution. I cannot say that the Texas court should have followed my minority views, to which I adhere, on this constitutional question, and disregarded the Court’s authority. Mr. Justice Douglas, dissenting. Since, in my view (as indicated in my dissent in On Lee n. United States, 343 U. S. 747, 762), this wire tapping was a search that violated the Fourth Amendment, the evidence obtained by it should have been excluded. The question whether the Fourth Amendment is applicable to the states (see Wolf v. Colorado, 338 U. S. 25) probably need not be reached, because a Texas statute has excluded evidence obtained in violation of the Federal Constitution. Therefore I would reverse the judgment. It is true that the prior decisions of the Court point to affirmance. But those decisions reflect constructions of the Constitution which I think are erroneous. They impinge severely on the liberty of the individual and give the police the right to intrude into the privacy of any life. The practices they sanction have today acquired a momentum that is so ominous I cannot remain silent and bow to the precedents that sanction them. 206 OCTOBER TERM, 1952. Syllabus. 344 U. S. FEDERAL TRADE COMMISSION v. MINNEAPOLIS-HONEYWELL REGULATOR CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 11. Argued October 15-16, 1952.—Decided December 22, 1952. The Court of Appeals entered a judgment reversing the first of three parts of a cease and desist order issued by the Federal Trade Commission against respondent. After expiration of the period allowed for a petition for rehearing, the Commission filed a memorandum calling attention to the Court’s failure to decree enforcement of Parts I and II; but it requested no alteration of the judgment relative to Part III. Subsequently, the Court of Appeals issued a “Final Decree” reversing Part III of the order and decreeing enforcement of Parts I and II. More than 90 days after entry of the first judgment, the Commission petitioned this Court for certiorari to review the judgment reversing Part III of its order. Held: The 90-day period allowed by 28 U. S. C. § 2101 (c) for filing a petition for certiorari began to run on the date of the first judgment, and the petition was not timely. Pp. 207-213. (a) Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. Pp. 211-212. (b) A different result is not required by the fact that the Court of Appeals labeled its second order a “Final Decree,” whereas the word “Final” was missing from its first judgment. Pp. 212-213. (c) Statutes which limit the appellate jurisdiction of this Court to cases in which review is sought within a prescribed period are not to be applied so as to permit a tolling of the time limitations because some event occurred in the lower court after judgment was rendered which is of no import on the matters to be dealt with on review. P. 213. Writ of certiorari to review 191 F. 2d 786 dismissed. The Court of Appeals entered a judgment reversing one of three parts of a cease and desist order of the Federal Trade Commission. 191 F. 2d 786. Later it entered F. T. C. v. MINNEAPOLIS-HONEYWELL CO. 207 206 ' Opinion of the Court. another judgment reversing that part and decreeing enforcement of the other two parts of the order. On petition of the Federal Trade Commission, this Court granted certiorari to review the judgment reversing part of its order, and requested counsel to discuss the “timeliness of the application for the writ.” 342 U. S. 940. Writ dismissed, p. 213. Acting Solicitor General Stern argued the cause for petitioner. With him on the brief were Acting Assistant Attorney General Clapp, Daniel M. Friedman, W. T. Kelley and Robert B. Dawkins. Albert R. Connelly argued the cause for respondent. With him on the brief was Will Freeman. Mr. Chief Justice Vinson delivered the opinion of the Court. The initial question in this case is one of jurisdiction— whether the petition for certiorari was filed within the period allowed by law.1 We hold that it was not. The cause grows out of a proceeding initiated by petitioner, the Federal Trade Commission, in 1943. At that time, the Commission issued a three-count complaint against respondent. Count I charged a violation of § 5 of the Federal Trade Commission Act;2 Count II charged a violation of § 3 of the Clayton Act;3 Count III dealt with an alleged violation of § 2 (a) of the Clayton Act as amended by the Robinson-Patman Act.4 A protracted administrative proceeding followed. The Commission finally determined against respondent on all three counts, *28 U. S. C. §2101 (c). 2 38 Stat. 719, 15 U. S. C. § 45. 3 38 Stat. 731, 15 U. S. C. § 14. 438 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. § 13 (a). 208 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. and it issued a cease and desist order, in three parts, covering each of the three violations. Respondent petitioned the Court of Appeals for the Seventh Circuit to review and set aside this order. The Commission sought enforcement of all parts of its order in a cross-petition. Respondent abandoned completely its attack on Parts I and II of the order. In briefs and in oral argument, respondent made it clear that the legality of Part III was the only contested issue before the Court of Appeals. Neither party briefed or argued any question arising out of Parts I and II. On July 5, 1951, the Court of Appeals announced its decision. The opinion stated that since respondent did not “challenge Parts I and II of the order based on the first two counts of the complaint we shall make no further reference to them.” The court then went on to hold that Part III of petitioner’s order could not be sustained by substantial evidence and should be reversed. 191 F. 2d 786. On the same day, the court entered its judgment, the pertinent portion reading as follows: “. . . it is ordered and adjudged by this Court that Part III of the decision of the Federal Trade Commission entered in this cause on January 14, 1948, be, and the same is hereby, Reversed, and Count III of the complaint upon which it is based be, and the same is hereby Dismissed.” The Court of Appeals requires petitions for rehearing to be filed “within 15 days after entry of judgment.” The Commission filed no such petition. On August 21, 1951, long after the expiration of this 15-day period, and after a certified copy of said judgment, in lieu of mandate, was issued, the Commission filed a memorandum with the court which reads in part as follows: F. T. C. v. MINNEAPOLIS-HONEYWELL CO. 209 206 Opinion of the Court. “On July 5, 1951 the Court entered its opinion and judgment reversing Part III of the decision of the Federal Trade Commission dated January 14, 1948 and dismissing Count III of the complaint upon which it is based. No disposition has been made of the Cross-Petition filed by the Commission for affirmance and enforcement of the entire decision. The Commission takes the position that its Cross-Petition should be in part sustained, i. e., to the extent that the Court should make and enter herein a decree affirming Parts I and II of the Commission’s order to cease and desist and commanding Minneapolis-Honeywell Regulator Company to obey the same and comply therewith. . . . “11. In its briefs filed herein the petitioner abandoned its attack upon Parts I and II of the order and challenged only the validity of Part III of the order (see page 1 of petitioner’s brief dated March 15, 1951). Thus, petitioner concedes the validity of Parts I and II of the order and does not contest the prayer of the Commission’s Cross-Petition and brief with respect to the affirmance and enforcement of Parts I and II of the order.” Clearly, by this memorandum the Commission sought no alteration of the judgment relative to Part III; in fact, it acknowledged the entry of judgment reversing Part III on July 5, 1951. It did not even claim it to be a petition for rehearing. It was submitted that Parts I and II of the order were uncontested, and “In conclusion . . . submitted that the Court should make and enter ... a decree affirming and enforcing Parts I and II of the Commission’s order to cease and desist.” On September 18, 1951, the Court of Appeals issued what it called its “Final Decree.” Again the court 210 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. “ordered, adjudged and decreed” that Part III of the Commission’s order “is hereby reversed and Count III of the complaint upon which it is based be and the same *is hereby dismissed.” The court then went on to affirm Parts I and II, and it entered a judgment providing for their enforcement, after reciting again that there was no contest over this phase of the order. On December 14, 1951, the Commission filed its petition for certiorari. Obviously, the petition was out of time unless the ninety-day filing period began to run anew from the second judgment entered on September 18, 1951. In our order granting certiorari, 342 U. S. 940, we asked counsel to discuss the “timeliness of the application for the writ.” Petitioner refers us to cases which have held that when a court considers on its merits an untimely petition for a rehearing, or an untimely motion to amend matters of substance in a judgment, the time for appeal may begin to run anew from the date on which the court disposed of the untimely application.5 Petitioner apparently would equate its memorandum of August 21, 1951, with an untimely petition for a rehearing affecting Part III. But certainly its language and every inference therein is to the contrary. When petitioner filed its memorandum, the time for seeking a rehearing had long since expired. Moreover, the memorandum was labeled neither as a petition for a rehearing nor as a motion to amend the previous judgment, and in no manner did it purport to seek such relief. On the contrary, the Commission indicated that it was quite content to let the Court of Appeals’ decision of July 5 stand undisturbed. Since we cannot 5 Pfister v. Finance Corp., 317 U. S. 144, 149 (1942); Bowman v. Loperena, 311 U. S. 262, 266 (1940); Wayne United Gas Co. v. Owens-Illinois Co., 300 U. S. 131, 137-138 (1937). F. T. C. v. MINNEAPOLIS-HONEYWELL CO. 211 206 Opinion of the Court. treat the memorandum of August 21 as petitioner would have us treat it, we cannot hold that the time for filing a petition for certiorari was enlarged simply because this paper may have prompted the court below to take some further action which had no effect on the merits of the decision that we are now asked to review in the petition for certiorari. Petitioner tells us that the application must be deemed to be in time because “when a court actually changes its judgment, the time to appeal or petition begins to run anew irrespective of whether a petition for rehearing has been filed.”6 We think petitioner’s interpretation of our decisions is too liberal. While it may be true that the Court of Appeals had the power to supersede the judgment of July 5 with a new one,7 it is also true, as that court itself has recognized, that the time within which a losing party must seek review cannot be enlarged just because the lower court in its discretion thinks it should be enlarged.8 Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought.9 Only when the lower court changes matters of substance,10 or resolves a genuine ambiguity,11 in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run 6 Brief for petitioner, p. 43. 7 28 U. S. C. §452; see Zimmern v. United States, 298 U. S. 167 (1936). 8 See Fine v. Paramount Pictures, 181 F. 2d 300, 304 (1950). 9 Department of Banking n. Pink, 317 U. S. 264 (1942); Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399 (1923); Credit Co., Ltd. v. Arkansas Central R. Co., 128 U. S. 258 (1888). 10 See Zimmern v. United States, 298 U. S. 167, 169 (1936); compare Department of Banking v. Pink, supra. 11 Compare Federal Power Commission v. Idaho Power Co., 344 U. S. 17 (1952). 212 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.12 The judgment of September 18, which petitioner now seeks to have us review, does not meet this test. It reiterated, without change, everything which had been decided on July 5. Since the one controversy between the parties related only to the matters which had been adjudicated on July 5, we cannot ascribe any significance, as far as timeliness is concerned, to the later judgment.13 Petitioner puts great emphasis on the fact that the judgment of September 18 was labeled a “Final Decree” by the Court of Appeals, whereas the word “Final” was missing from the judgment entered on July 5. But we think the question of whether the time for petitioning for certiorari was to be enlarged cannot turn on the adjective which the court below chose to use in the caption of its second judgment. Indeed, the judgment of July 5 12 Compare Rubber Co. v. Goodyear, 6 Wall. 153 (1868) (appeal allowed from a second decree, restating most provisions of the first because the first decree, at the time of entry, was only regarded by the parties and the court as tentative); Memphis v. Brown, 94 U. S. 715 (1877) (appeal allowed from second judgment on the ground that the second made material changes in the first). See United States v. Hark, 320 U. S. 531, 533-534 (1944); Hill v. Hawes, 320 U. S. 520, 523 (1944). 13 The suggestion is made that the September-18 judgment injected a new controversy into the litigation—the question of whether the Court of Appeals had the power to affirm and enforce the Commission’s order after it had cross-petitioned for such relief. Cf. Federal Trade Commission n. Ruberoid Co., 343 U. S. 470 (1952). But if the respondent had sought to contest that issue, it could have done so from the start, by raising objections to enforcement of all parts of the Commission’s cross-petition. Instead, respondent refused to contest these parts of the Commission’s order. Having done so, it removed the question involved in the Ruberoid case from this case. F. T. C. v. MINNEAPOLIS-HONEYWELL CO. 213 206 Black, J., dissenting. was for all purposes final. It put to rest the questions which the parties had litigated in the Court of Appeals. It was neither “tentative, informal nor incomplete.”14 Consequently, we cannot accept the Commission’s view that a decision against it on the time question will constitute an invitation to other litigants to seek piecemeal review in this Court in the future. Thus, while we do not mean to encourage applications for piecemeal review by today’s decision, we do mean to encourage applicants to this Court to take heed of another principle—the principle that litigation must at some definite point be brought to an end.15 It is a principle reflected in the statutes which limit our appellate jurisdiction to those cases where review is sought within a prescribed period. Those statutes are not to be applied so as to permit a tolling of their time limitations because some event occurred in the lower court after judgment was rendered which is of no import to the matters to be dealt with on review. Accordingly, the writ of certiorari is Dismissed. Mr. Justice Black, dissenting. The end result of what the Court does today is to leave standing a Court of Appeals decree which I think is so clearly wrong that it could well be reversed without argument. The decree set aside an order of the Federal Trade Commission directing Minneapolis-Honeywell to stop violating § 2 (a) of the Robinson-Patman Act by selling oil burner controls to some customers cheaper than to others. The Court of Appeals not only set aside the Commission’s order as permitted under some circumstances. It went much further and ordered the Commis- 14 See Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 514 (1950). 15 See Matton Steamboat Co. n. Murphy, 319 U. S. 412, 415 (1943). 214 OCTOBER TERM, 1952. Black, J., dissenting. 344 U. S. sion to dismiss Count III of the complaint against Minneapolis-Honeywell. In doing so the Court of Appeals invaded an area which Congress has made the exclusive concern of the Federal Trade Commission. See Federal Trade Commission n. Morton Salt Co., 334 U. S. 37, 55; Federal Power Commission v. Idaho Power Co., 344 U. S. 17, 20; Federal Communications Commission n. Pottsville Broadcasting Co., 309 U. S. 134, 145-146. Moreover, the Court of Appeals held that there was no evidence at all to substantiate the Commission finding that a quantity discount pricing system of Minneapolis-Honeywell resulted in price discriminations that violated § 2 (a) of the Robinson-Patman Act. But there was evidence before the Commission that some customers of Minneapolis-Honeywell were given substantially bigger discounts on purchases than those given their competitors. And the Commission found that these variations were not justified by any differences in costs of manufacture, sale or delivery. We have emphasized that such a showing amply supports a Commission cease and desist order. Federal Trade Commission v. Morton Salt Co., 334 U. S. 37, 47. The Court of Appeals here failed to follow our holding in the Morton Salt case. For this reason also it should be reversed.. I think the following facts show that the petition for certiorari here was filed in time. The Court of Appeals was petitioned by Minneapolis-Honeywell to review and set aside a Trade Commission order in its entirety. Later Minneapolis-Honeywell apparently conceded validity of part of the order and the court’s first decree of July 5, 1951, failed to pass on all the provisions of the Commission’s order.1 The Commission had ninety days to ask 1 See, e. g., “Though the merits of the cause may have been substantially decided, while any thing, though merely formal, remains to be done, this Court cannot pass upon the subject. If from any F. T. C. v. MINNEAPOLIS-HONEYWELL CO. 215 206 Black, J., dissenting. that we review that partial order if it was a “final” one. Within that ninety days, on August 21, 1951, the Commission asked the Court of Appeals to pass on the remainder of the order. In response a new and expanded decree of the Court of Appeals came down September 18, 1951, marked “Final Decree.” December 14,1951, within ninety days after rendition of this “Final Decree,” the Commission filed here its petition for certiorari which the Court now dismisses. I think that no statute, precedent or reason relied on by the Court requires dismissal of this cause. Of course appealability of a judgment depends on its being “final” in the legalistic sense. But there is no more ambiguous word in all the legal lexicon.2 The Court of Appeals thought its second not its first decree was “final.” Counsel for the Commission evidently believed the second judgment was the “final” one. I am confident many lawyers would have thought the same under this Court’s former cases. So I would have viewed the second judgment before today’s holding. Former cases would have intermediate stage in the proceedings an appeal might be taken to the Supreme Court, the appeal might be repeated to the great oppression of the parties.” Mr. Chief Justice Marshall speaking for the Court in Life & Fire Ins. Co. of New York v. Adams, 9 Pet. 573, 602 (1835). “We think that the decree is not a final decree, and that this court has no jurisdiction of the appeal. The decree is not final, because it does not dispose of the entire controversy between the parties.” Keystone Iron Co. v. Martin, 132 U. S. 91, 93 (1889). “It is the settled practice of this court, and the same in the King’s Bench in England, that the writ will not lie until the whole of the matters in controversy in the suit below are disposed of. . . . The cause is not to be sent up in fragments.” Holcombe v. McKusick, 20 How. 552, 554 (1858). 2 “Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. . . . The cases, it must be conceded, are not altogether harmonious.” McGourkey v. Toledo & Ohio R. Co., 146 U. S. 536, 544-545. Cf. Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 511. 226612 0—53-19 216 OCTOBER TERM, 1952. Black, J., dissenting. 344 U. S. pointed strongly to rejection of appeal from the incomplete first decree as an attempted “piecemeal” review.3 The majority advances logical and rational grounds for its conclusion that the first judgment rather than the second one was “final.” That the second judgment was “final,” legalistically speaking, is equally supportable by logic, reason and precedent, if not more so.4 But in arguing over “finality” we should not ignore the fact that Congress has declared that this type of proceeding should be reviewable both in the Court of Appeals and here. We frustrate that declaration when review is denied a 3 A multitude of cases would have supported such a belief on the part of Commission counsel. See, e. g., Note 1 and the following: “But piecemeal appeals have never been encouraged.” Morgantown v. Royal Ins. Co., 337 U. S. 254, 258. “Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration.” Cobbledick n. United States, 309 U. S. 323, 325. “The foundation of this policy is not in merely technical conceptions of ‘finality.’ It is one against piecemeal litigation. ‘The case is not to be sent up in fragments. . . .’ Luxton v. North River Bridge Co., 147 U. S. 337, 341.” Catlin v. United States, 324 U. S. 229, 233-234. 4 “Upon these facts we cannot doubt that the entry of the 28th of November was intended as an order settling the terms of the decree to be entered thereafter; and that the entry made on the 5th of December was regarded both by the court and the counsel as the final decree in the cause. “We do not question that the first entry had all the essential elements of a final decree, and if it had been followed by no other action of the court, might very properly have been treated as such. But we must be governed by the obvious intent of the Circuit Court, apparent on the face of the proceedings. We must hold, therefore, the decree of the 5th of December to be the final decree.” Rubber Company v. Goodyear, 6 Wall. 153, 155-156 (1868). See also Federal Power Commission v. Idaho Power Co., 344 U. S. 17, 20-21; Hill v. Hawes, 320 U. S. 520; United States v. Hark, 320 U. S. 531; Zim-mern v. United States, 298 U. S. 167; Memphis v. Brown, 94 U. S. 715. F. T. C. v. MINNEAPOLIS-HONEYWELL CO. 217 206 Douglas, J., dissenting. litigant because of his failure to guess right when confronted in August 1951 with a puzzle, the answer to which no one could know until today. In prior cases cited in the Court’s opinion this Court has found ways to grant review to litigants bedeviled and confused by the judicially created fog of “finality.” 5 In those prior cases the Court recognized the vagueness of the finality rule and refused to throw out of court litigants who had acted bona fide. It is unfortunate that the Court today fails to utilize this same kind of judicial ingenuity to afford this litigant the review Congress saw fit to provide in the public interest. The proceedings against Minneapolis-Honeywell began before the Commission nine years ago. Sixteen hundred pages of evidence were put on the record. It all goes to nought apparently because Commission counsel lacked sufficient clairvoyance to anticipate that this Court would hold that the July judgment rather than the one in September was final. Rules of practice and procedure should be used to promote the ends of justice, not to defeat them.6 Mr. Justice Douglas, dissenting. While I do not believe the merits of the case are as clear as Mr. Justice Black indicates, I join in the parts of his opinion which deal with the question whether the petition for certiorari was timely under 28 U. S. C. §2101 (c). 5 See cases cited in Note 4. 6 Hormel v. Helvering, 312 U. S. 552, 557. See also Maty v. Gras-selli Chemical Co., 303 U. S. 197, 200-201. Cf. Hazel-Atlas Co. v. Hartford-Empire Co., 322 U. S. 238. 218 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. UNITED STATES v. UNIVERSAL C. I. T. CREDIT CORPORATION et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI. No. 47. Argued November 18-19,1952.—Decided December 22,1952. 1. In an information under §§ 15 and 16 (a) of the Fair Labor Standards Act, appellees were charged on 32 counts with violating the minimum wage, overtime and record-keeping provisions of the Act. The District Court dismissed all but three counts, one for each section violated. Held: The order of the District Court is affirmed without prejudice to amendment of the information. Pp. 218-226. 2. Section 15 of the Fair Labor Standards Act penalizes a course of conduct and is not to be read as enabling the prosecutor to treat as a separate offense each breach of the statutory duty owed to a single employee during any workweek. Pp. 221-226. 102 F. Supp. 179, affirmed. The District Court dismissed all but three counts of a 32-count information under §§15 and 16 (a) of the Fair Labor Standards Act. 102 F. Supp. 179. On appeal to this Court, under 18 U. S. C. § 3731, affirmed, p. 226. John F. Davis argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg, J. F. Bishop, William S. Tyson and Bessie Margolin. Philip B. Perlman, then Solicitor General, was on the Statement as to Jurisdiction. Melbourne B er german argued the cause for appellees. With him on the brief were Aaron Lewittes, Seymour Kleinman and James P. Aylward. Mr. Justice Frankfurter delivered the opinion of the Court. This case arises on an information under §§15 and 16 (a) of the Fair Labor Standards Act, 52 Stat. 1060, UNITED STATES v. UNIVERSAL CORP. 219 218 Opinion of the Court. 1068-1069, as amended, 63 Stat. 910, 919, 29 U. S. C. §§ 215, 216 (a), charging the defendant corporation, its division operations manager and two successive branch managers with violations of the minimum wage, overtime, and record-keeping provisions of the Act.1 Thirty-two counts were laid: six for failure under § 6 of the Act to pay minimum wages, twenty for violation of the overtime provisions of § 7, and six for failure to comply with the requirements for record-keeping under § 11. Counts 1-6 charge minimum wage violations in six separate weeks, one per week, but only as to one employee in any one week and only as to three employees in all. Counts 7-26 charge overtime violations in twenty separate weeks, one per week. A total of eleven employees are involved, two violations having been charged as to each of nine employees. Counts 27-32 charge record-keeping violations as to four employees, two violations as to each of two employees 1 The criminal enforcement provisions of the Fair Labor Standards Act are §§ 15 and 16. Section 16 provides a maximum fine of $10,000 for “[a]ny person who willfully violates any of the provisions of section 15 . . . .” Section 15 makes it “unlawful for any person ... (2) to violate any of the provisions of section 6 or section 7 ... (5) to violate any of the provisions of section 11 (c) . . . ” Section 6 provides, “Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce . . . not less than 75 cents an hour; . . . .” Section 7 provides “. . .no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” Section 11 (c) requires the employer to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order . . . .” 220 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. being charged. Section 16 of the Act subjects an employer, offending for the first time, to a maximum fine of $10,000 for violation of any provision of § 15, and would, the District Court assumed, authorize a fine of $320,000 upon conviction under this information.2 Rejecting a reading of § 15 whereby the prosecutor could treat as a separate offense each breach of the statutory duty owed to a single employee during any single workweek,3 the District Court granted defendant’s motion to dismiss all but three counts of the information. The court held that it is a course of conduct rather than the separate items in such course that constitutes the punishable offense and ordered consolidation of the separate acts set forth in the information into three counts, charg- 2102 F. Supp. 179, 186, modified by Order dated March 10, 1952, R.20. 3 The Government urges that the Act be construed “to punish each failure to comply with each duty imposed by the Act as to each employee in each workweek and as to each record required to be kept.” Brief for United States, p. 10. However, in none of the first 26 counts, charging minimum wage or overtime underpayments, were similar violations charged as to two employees in the same week, so that it would be sufficient in this case to urge that the violations may be split according to the workweek, rather than also according to the employee. As to the last six counts, charging record-keeping violations, it might have been possible for the Government to urge less than that each record required to be kept is a separate offense. With one minor exception, violations were alleged as to at least two employees in every workweek for which record-keeping violations were charged. The workweek was not the unit of prosecution, since the periods of time in these six counts range from about seven weeks to over six months. But the employee was also not the unit, since although violations as to each employee were made into separate charges, two employees are the subject of two charges apiece. Whatever differences exist between the minimum necessary to sustain this particular information and the claim made by the Government are immaterial, in view of our disposition of the case. UNITED STATES v. UNIVERSAL CORP. 221 218 Opinion of the Court. ing one violation each of §§ 6, 7 and ll.4 To review this decision, the Government brought the case here under the Criminal Appeals Act, 34 Stat. 1246, 18 U. S. C. § 3731. The problem of construction of the criminal provisions of the Fair Labor Standards Act is not easy of solution. What Congress has made the allowable unit of prosecution—the only issue before us—cannot be answered merely by a literal reading of the penalizing sections. Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. Boston Sand Co. n. United States, 278 U. S. 41, 48. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique. See United States n. Jin Fuey Moy, 241 U. S. 394, 402. For that reason we may utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. Very early Mr. Chief Justice Marshall told us, “Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived . . . ” United States v. Fisher, 2 Cranch 358, 386. Particularly is this so when we construe statutes defining conduct which entail stigma and penalties and prison. Not that penal statutes are not subject to the basic consideration that legislation like all other writings should be given, insofar as the language permits, a commonsensical meaning. But when choice has to be made between two readings of what conduct Congress 4 Appellee does not urge in this case that § 15 prescribes only one offense even if there are three kinds of violations. Such an argument seems to have been made and was rejected, as to distinct requirements under two different sections of the act there involved, in Blockburger v. United States, 284 U. S. 299, 305, where the penal provision applied to “any person who violates or fails to comply with any of the requirements of this act.” 222 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication. The penal provision of the Fair Labor Standards Act is only part of a scheme available to the Government and to the employee for enforcing the Act. The preventive remedy of an injunction and individual or class actions for restitution and damages in § 16 (b) are not only also available. They are the remedies more frequently invoked and more effective in achieving the purposes of the Act. Of course the various remedies must be read in relation to each other. But we are asked here in addition to infer that an employer’s failure to perform his obligations as to each employee creates a separate criminal offense because the provisions for civil liability in § 16 (b) expressly recognize a right in the individual employee to maintain a separate action against his employer for restitution and damages. The argument cuts both ways. If Congress had wanted to attach criminal consequences to each separate civil liability it could easily have said so, just as it had no difficulty in stating explicitly that the unit for civil liability was what was owing to each employee. Instead of balancing the various generalized axioms of experience in construing legislation, regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning. When originally introduced in Congress, the bill out of which the Fair Labor Standards Act evolved had two separate penalty provisions, one for underpayments in violation of § 6 or § 7 and one for failure to comply with the record-keeping provisions of § 11.5 Each provision 5 See §§ 27 (a) and 27 (b) in S. 2475 and H. R. 7200, 75th Cong., 1st Sess. UNITED STATES v. UNIVERSAL CORP. 223 218 Opinion of the Court. set the maximum fine at $500 and explicitly defined what constituted a separate offense. As to §§ 6 and 7 the employee was the unit of criminal offense and as to § 11 each week of violation was a separate offense.® After the measure wound its way through a long legislative process there resulted consolidation of the two penalty provisions, elimination of the separate offense clauses, and substitution of $10,000 for $500 as the maximum fine. These rather striking changes would in themselves afford justifiable ground for giving the less harsh and therefore more reasonable construction to the offense-creating portions of the legislation. In addition, we have illuminating statements in both houses concerning the separation of offenses. Although the separate offense clause for record-keeping violations was deleted early in the legislative process, the other separate offense clause was attacked in debate precisely because it would authorize the sort of multiplication of offenses by the number of employees that the information before us represents.7 Indeed, multiplication in this information goes beyond what even the original bills would have authorized. Un- 6 In §27 (a), the clause read: “Where the employment of an employee in violation of any provision of this Act or of a laborstandard order is unlawful, each employee so employed in violation of such provision shall constitute a separate offense.” In §27 (b), the clause was: “. . . and each week of such failure to keep the records required under this Act or to furnish same to the Board or any authorized representative of the Board shall constitute a separate offense.” 7 See 81 Cong. Rec. 7792; 81 Cong. Rec. 9507; 82 Cong. Rec. 1828. Force is added to these statements by the fact that one was made by a member of the House who proposed the amendment which was adopted, by vote on division, specifically to delete the separate offense clause of §27 (a) (then §22 (a)). 82 Cong. Rec. 1828-1839. The bill thus came to the Conference from the House with both separate offense clauses deleted, but from the Senate with only the clause of §27 (b) deleted. Both versions still provided a maximum fine of $500. The Conference accepted the House version, with neither 224 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. derpayments of the same employees are split into separate counts of the information, and record-keeping violations during the same week are split to serve as the basis of separate counts. It would be self-deceptive to claim that only one answer is possible to our problem. But the history of this legislation and the inexplicitness of its language weigh against the Government’s construction of a statute that cannot be said to be decisively clear on its face one way or the other. Because of the history and language of this legislation, the case is not attracted by the respective authority of two cases pressed upon us. In re Snow, 120 U. S. 274, and Blockburger v. United States, 284 U. S. 299. The district judge was therefore correct in rejecting the Government’s construction of the statute. The offense made punishable under the Fair Labor Standards Act is a course of conduct. Such a reading of the statute compendiously treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single “impulse,” a conception recognized by this Court in the Blockburger case, supra, at 302, quoting Wharton’s Criminal Law (11th ed.) § 34. Merely to illustrate, without attempting to rule on specific situations: a wholly unjustifiable managerial decision that a certain activity was not work and therefore did not require compensation under F. L. S. A. standards cannot be turned into a multiplicity of offenses by considering each underpayment in a single week or to a single employee as a separate offense. separate offense clause, but raised the maximum fine to $10,000. See S. 2475, 75th Cong., 1st Sess., §§ 23 (a), 23 (b), as reported from Committee, July 8, 1937; 81 Cong. Rec. 7957; H. R. Rep. No. 2182, 75th Cong., 3d Sess. 5; 83 Cong. Rec. 7450; Conference Report, § 16 (a), 83 Cong. Rec. 9249. UNITED STATES v. UNIVERSAL CORP. 225 218 Opinion of the Court. However, a wholly distinct managerial decision that piece workers should be paid less than the statutory requirement in terms of hourly rates, see United States v. Rosenwasser, 323 U. S. 360, involves a different course of conduct, and so would constitute a different offense. Thus, underpayments based on violations of the statute as to these piece workers could not be compounded into a single offense with unrelated underpayments which resulted from the decision that a certain activity was not work, merely because the two kinds of underpayments occurred in the same workweek or involved the same employee. Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts. This information is based on what we find to be an improper theory. But a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government’s case the defendant may insist that all the counts are merely variants of a single offense. By affirming this order without prejudice to amendment of the information, we do not mean to suggest that amendment to increase the number of offenses may be made after trial has begun. But the Government is not precluded from now amending the information either to meet the exigencies of the evidence or to charge as sep- 226 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. arate offenses separate courses of conduct as to each substantive provision. All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act. Without prejudice to amendment of the information before trial if the evidence to be offered warrants it, the order below is Affirmed. Mr. Justice Douglas, dissenting. I think the question whether an employer has violated the criminal provisions of the Act is determined by reference to what he has done to a particular employee. The Act does not speak of “course of conduct.” That is the Court’s terminology, not the Act’s. The Act requires the employer to pay “each of his employees” not less than 75 cents an hour, prohibits him from employing “any of his employees” for more than 40 hours a week unless overtime is paid, and requires him to keep records of “the persons employed by him” and the wages, hours, etc. 29 U. S. C. §§ 206, 207, 211 (c), as amended. And the Act makes it unlawful for an employer to violate “any of the provisions” of those sections. 29 U. S. C. §§ 215, 216 (a). It therefore seems clear to me that if an employer pays one employee less than 75 cents an hour or fails to pay overtime to one employee, or fails to keep the required records for one employee, a crime has been established, if scienter is shown. And it seems equally clear to me that if an employer wilfully fails to pay one employee the minimum wage, and wilfully fails to pay him the required overtime, and wilfully fails to keep the required records for him, three crimes have been committed. The crime is defined with reference to the individual employee. The crime may be a single, isolated act. It may or may not UNITED STATES v. UNIVERSAL CORP. 227 218 Douglas, J., dissenting. be recurring or continuous. The violation may affect one employee one week or one month and another employee another week or another month; and it may affect one employee in one way, another employee in a different way. The violations may be continuous, and follow a set pattern ; or they may be sporadic and erratic. The Act does not differentiate between them. Nothing is said about “course of conduct.” Perhaps a committee of Congress would be receptive to the suggestion now made. But it should be received there, not here. Of course, horrendous possibilities can be envisaged under almost every law. But the prosecutors who enforce this Act, the grand juries who hear the evidence on violations, and the District Courts who apply the sanctions have to date not made these criminal provisions oppressive and beyond reason. Yet until this case no court, so far as I can learn, has ever had the inventive genius to suggest that “course of conduct” rather than the “employee” is the unit of the crime. 228 OCTOBER TERM, 1952. Syllabus. 344 U. S. F. W. WOOLWORTH CO. v. CONTEMPORARY ARTS, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 42. Argued November 17, 1952.—Decided December 22, 1952. Respondent sued petitioner under the Copyright Act to recover for infringement of copyright on a statuette, infringing copies of which had been sold by petitioner in its stores. Petitioner proved that its gross profit from the infringement was $899.16. The evidence of damage suffered by respondent, though indicating real and substantial injury, was insufficient to establish the amount of damage actually sustained. The trial court allowed recovery of $5,000 “statutory damages.” Held: The award of damages in the amount of $5,000 was authorized by 17 U. S. C. § 101 (b). Pp. 229-234. (a) The fact that petitioner proved that its gross profit from the infringement was $899.16 does not limit recovery to that amount. Pp. 231-233. (b) Sheldon n. Metro-Goldwyn Pictures Corp., 309 U. S. 390, and Jewell-LaSalle Realty Co. v. Buck, 283 U. S. 202, distinguished. P. 234. (c) The statute empowers the trial court in the exercise of a sound judicial discretion to determine whether on all the facts a recovery upon proven profits and damages or one estimated within the statutory limits is more just; and there was no abuse of that discretion in this case. P. 234. 193 F. 2d 162, affirmed. In an action under the Copyright Act to recover for infringement of copyright, the District Court gave judgment for the plaintiff, respondent here. The Court of Appeals affirmed. 193 F. 2d 162. This Court granted a limited writ of certiorari. 343 U. S. 963. Affirmed, p. 234. Kenneth W. Greenawalt argued the cause for petitioner. With him on the brief were Martin A. Schenck and John H. Barber. WOOLWORTH CO. v. CONTEMPORARY ARTS. 229 228 Opinion of the Court. Cedric W. Porter argued the cause for respondent. With him on the brief was Harry F. R. Dolan. Mr. Justice Jackson delivered the opinion of the Court. Respondent brought this action under the Copyright Act to recover for infringement of copyright on a work of art entitled “Cocker Spaniel in Show Position.” The District Court found the copyright, of which respondent was assignee, valid and infringed and awarded statutory damages of $5,000, with a $2,000 attorney’s fee. The Court of Appeals affirmed.1 We granted certiorari,2 limiting the issues to the measure of the recovery, as to which conflict appears among lower courts.3 Respondent made small sculptures and figurines, among which were statues of the cocker spaniel, and marketed them chiefly through gift and art shops. Petitioner, from a different source, bought 127 dozen cocker spaniel statuettes and distributed them through thirty-four Wool worth stores. Unbeknown to Woolworth, these dogs had been copied from respondent’s and by marketing them it became an infringer. By the Act an infringer becomes liable— “To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only, and the defendant shall be required to prove every element of cost which he 1193 F. 2d 162. 2 343 U. S. 963. 3 F. W. Woolworth Co. v. Contemporary Arts, 193 F. 2d 162, 167— 169; Sammons v. Colonial Press, 126 F. 2d 341, 350; Davilla n. Brunswick-Balke Collender Co., 94 F. 2d 567; Malsed x. Marshall Field & Co., 96 F. Supp. 372, 376-377. 230 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. claims, or in lieu of actual damages and profits, such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated . . . and such damages shall in no other case exceed the sum of $5,000 nor be less than the sum of $250, and shall not be regarded as a penalty. . . 17 U. S. C. § 101 (b). Profits made by the petitioner from the infringement were sufficiently proved to enable assessment of that element of liability. Petitioner itself showed, without contradiction, that the 127 dozen dogs were bought at 60 cents apiece and sold for $1.19 each, yielding a gross profit of $899.16. The infringer did not assume the burden, which the statute casts upon it, of proving any other costs that might be deductible, so the gross figure is left to stand as the profit factor of the infringer’s total liability. As to the other ingredient in computing liability, damages suffered by the copyright proprietor, the record is inadequate to establish an actually sustained amount. Enough appears to indicate that real and substantial injury was inflicted. Respondent had gross annual income of about $35,000 and engaged only eight employees, indicating its small production. Its statuettes were of three media and prices: red plaster retailed at $4, red porcelain at $9, while a black and white porcelain brought $15. There was evidence that the cheaper infringing statuette was inferior in quality. Respondent proved loss of some customers and offered, but was not allowed, to show complaints from sales outlets about the Wool worth competition, decline in respondent’s sales, and eventual abandonment of the line with an unsalable stock on hand. The trial judge excluded or struck most of this testimony on the ground that authority to allow statutory damages rendered proof of actual damage unnecessary. It might have been better practice to have received the evidence, WOOLWORTH CO. v. CONTEMPORARY ARTS. 231 228 Opinion of the Court. even if it fell short of establishing the measure of liability; for when recovery may be awarded without any proof of injury, it cannot hurt and may aid the exercise of discretion to hear any evidence on the subject that has probative value. However, petitioner cannot complain of this exclusion, which was in response to its objections. At length, the court said: “If you establish this was an infringement of copyright, it is inescapably clear there is enough evidence in this case upon which to predicate damage up to $5000. I don’t think Mr. Barnes [counsel for defendant] disagrees with that, do you?” Mr. Barnes: “No, your Honor.” The court, having found infringement, accordingly allowed recovery of “statutory damages in the amount of Five Thousand Dollars ($5,000.) as provided by the Copyright Laws of the United States,” with an injunction and attorney’s fee. Petitioner’s contention here is that the statute was misapplied because its own gross profit of $899.16 supplied an actual figure which became the exclusive measure of its liability. It argues that an infringing defendant, by coming forward with an undisputed admission of its own profit from the infringement, can tie the hands of the court and limit recovery to that amount. We cannot agree. In Douglas v. Cunningham, 294 U. S. 207, 209, we said: “The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties, and to give the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits.” To fulfill that purpose, the statute has been interpreted to vest in the trial court broad discretion to determine whether it is more just to allow a recovery based on cal- 226612 0—53------20 232 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. culation of actual damages and profits, as found from evidence, or one based on a necessarily somewhat arbitrary estimate within the limits permitted by the Act. “In other words, the court’s conception of what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like, is made the measure of the damages to be paid, but with the express qualification that in every case the assessment must be within the prescribed limitations, that is to say, neither more than the maximum nor less than the minimum. Within these limitations the court’s discretion and sense of justice are controlling, but it has no discretion when proceeding under this provision to go outside of them.” L. A. Westermann Co. v. Dispatch Printing Co., 249 U. S. 100, 106-107. Few bodies of law would be more difficult to reduce to a short and simple formula than that which determines the measure of damage recoverable for actionable wrongs. The necessary flexibility to do justice in the variety of situations which copyright cases present can be achieved only by exercise of the wide judicial discretion within limited amounts conferred by this statute. It is plain that the court’s choice between a computed measure of damage and that imputed by statute cannot be controlled by the infringer’s admission of his profits which might be greatly exceeded by the damage inflicted. Indeed sales at a small margin might cause more damage to the copyright proprietor than sales of the infringing article at a higher price. Whether discretionary resort to estimation of statutory damages is just should be determined by taking into account both components and the difficulties in the way of proof of either. In this case the profits realized were established by uncontradicted evidence, but the court was WOOLWORTH CO. v. CONTEMPORARY ARTS. 233 228 Opinion of the Court. within the bounds of its discretion in concluding that the amount of damages suffered was not computable from the testimony. Lack of adequate proof on either element would warrant resort to the statute in the discretion of the court, subject always to the statutory limitations. The case before us illustrates what capricious results would follow from the practice for which petitioner contends. It has admitted gross profits, which make no deduction for sales costs, overheads or taxes and, hence, may appear substantial on this particular record. But gross profits is not what a copyright owner is entitled to recover, but only such profits as remain after the defendant reduces them, as it may, by proof of allowable elements of cost. If we sustain petitioner’s contention that profits may be the sole measure of liability as matter of law, such profits could be diminished even to the vanishing point. Net profits realized by a far-flung distributing enterprise like Woolworth’s upon sales of a given item in a few of its many stores can be calculated only by a process of allocating overheads, sales expenses, taxes, and a host of items. A plaintiff in the position of the present one could hardly verify or contest such apportionments unless it should audit the whole Woolworth business. Moreover, a rule of liability which merely takes away the profits from an infringement would offer little discouragement to infringers. It would fall short of an effective sanction for enforcement of the copyright policy. The statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct. The discretion of the court is wide enough to permit a resort to statutory damages for such purposes. Even for uninjurious and unprofitable invasions of copyright the court may, if it deems it just, impose a liability within statutory limits to sanction and vindicate the statutory policy. 234 OCTOBER TERM, 1952. Black, J., dissenting. 344 U. S. Petitioner cites Sheldon v. Metro-Goldwyn Pictures Corp., 309 U. S. 390, 399, where this Court said that the “in lieu” clause “is not applicable here, as the profits have been proved and the only question is as to their apportionment,” a statement on which petitioner leans almost its whole weight. There net profits from exhibition of an infringing picture were found to be $587,604.37. The copyright owner could show no such value to himself of his copyright; indeed, he had negotiated its sale at $30,000. The Court of Appeals cut the award of these actual profits to one-fifth thereof, upon the ground that success of the picture had been largely due to factors not contributed by the infringement. The propriety of this reduction was the sole issue before this Court. Petitioner copyright owner asserted that in such circumstances the “in lieu” clause “is not involved here.” This Court agreed that under those facts resort to the statute was not appropriate. That case did not present the question now here. Nor does anything in Jewell-LaSalle Realty Co. v. Buck, 283 U. S. 202, in the light of its facts, support petitioner. It holds use of the “in lieu” clause permissible, “there being no proof of actual damages,” but it does not hold that partial or unacceptable proof on that subject will preclude resort to the “in lieu” clause. We think that the statute empowers the trial court in its sound exercise of judicial discretion to determine whether on all the facts a recovery upon proven profits and damages or one estimated within the statutory limits is more just. We find no abuse of that discretion. The judgment below is Affirmed. Mr. Justice Black, with whom Mr. Justice Frankfurter concurs, dissenting. The earthenware dogs found to infringe respondent’s copyright were bought by F. W. Woolworth Company in WOOLWORTH CO. v. CONTEMPORARY ARTS. 235 228 Black, J., dissenting. good faith at a total cost of $914.40. Woolworth’s total profit from the sale of the dogs was $899.16. The Court now holds that Woolworth must pay the dogs’ copyright owner $5,000. This award is said to be allowed by § 101 (b) of the Copyright Act, 17 U. S. C. § 101. We do not think that section authorizes any such manifestly unjust exaction. This Court pointed out in Sheldon v. Metro-Goldwyn Pictures Corp., 309 U. S. 390, 400-401, that § 101, like an analogous patent law section, was not intended to award a copyright owner both damages and profits, but only “one or the other, whichever was the greater.” Under this rule, profits only should be awarded to respondent in this case. Reliance for awarding $5,000 against Woolworth is naturally placed on that provision of § 101 (b) which provides for damages not in excess of $5,000 “in lieu of actual damages and profits.” But this Court has said that the purpose of this section was to recompense for injury done “where the rules of law render difficult or impossible proof of damages or discovery of profits.” Douglas n. Cunningham, 294 U. S. 207, 209. Here proof of profits was neither difficult nor impossible. And in the carefully considered case of Sheldon v. Metro-Goldwyn Pictures Corp., supra, at 399, Mr. Chief Justice Hughes speaking for the Court declared, “. . . the ‘in lieu’ clause is not applicable here, as the profits have been proved . . . .” See also to the same effect Davilla v. Brunswick-Balke Collender Co., 94 F. 2d 567; Sammons v. Colonial Press, 126 F. 2d 341. We would adhere to this view and limit this recovery to profits made by Wool worth. This Court should heed the admonition given in the Sheldon case to remember that the object of § 101 (b) is not to inflict punishment but to award an injured copyright owner that which in fairness is his “and nothing beyond this.” Sheldon v. Metro-Goldwyn Pictures Corp., supra, at 399. 236 OCTOBER TERM, 1952. Black, J., dissenting. 344 U. S. The following circumstances bear on the question of unfairness of the amount of damages awarded. Petitioner contended in the Court of Appeals that the district judge did not give it a fair and impartial trial. “In support of this contention,” the Court of Appeals said, “the appellant points to several instances in the record of irrelevant and prejudicial comments and remarks” made by the trial judge. Considering the judge’s remarks as “both unseemly and uncalled for,” the Court of Appeals said: “But after careful consideration of the record as a whole we have concluded that the particular remarks of the judge which would better have been left unsaid, and are better not quoted, do not rise to the seriousness of reversible error. Having regard for the convincing nature of the plaintiff’s proof, and the unconvincing nature of that of the defendant, we do not feel that the decision reached by the court below can be attributed to bias and prejudice. That is to say, we feel that the defendant really had a fair and impartial trial.” 193 F. 2d 162, 169. We accept the Court of Appeals’ appraisal of the consequences of the judge’s remarks on the factual issue of copyright infringement. But here the trial judge gave judgment for statutory damages in an amount that smacks of punitive qualities. And this Court has held that the amount of such damages is committed to the un-reviewable discretion of a trial judge. Douglas n. Cunningham, 294 U. S. 207, 210. In view of the remarks of the trial judge directed against the Woolworth Company, we think it had a just right to complain that the amount of damages imposed ought not to stand. We would reverse and remand this case for a new trial by another judge. PUBLIC SERV. COMM’N v. WYCOFF CO. 237 Syllabus. PUBLIC SERVICE COMMISSION OF UTAH et al. v. WYCOFF COMPANY, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 44. Argued November 13, 1952.—Decided December 22, 1952. Respondent commenced in a Federal District Court a suit in equity seeking two kinds of specific relief: (1) a declaratory judgment that its carriage of motion picture film and newsreels between points in Utah constitutes interstate commerce, and (2) an injunction against the State Commission interfering with such transportation over routes authorized by the Interstate Commerce Commission. Respondent offered no evidence of any past, pending or threatened action by the State Commission touching its business in any respect. The District Court, in dismissing the complaint after trial, made a general finding that no such interference had been made or threatened; and this finding was not reversed or mentioned by the Court of Appeals. Held: The suit cannot be entertained as one for injunction and should not be continued as one for a declaratory judgment. Pp. 239-249. 1. There can be no injunction on constitutional grounds in this case. It is wanting in equity because there is no proof of any threatened or probable act of the defendants which might cause the irreparable injury essential to equitable relief by injunction. Pp. 240-241. 2. Declaratory relief is not appropriate under the circumstances of this case. Pp. 241-249. (a) The Declaratory Judgment Act, 28 U. S. C. § 2201, is an enabling Act which confers a discretion on the courts rather than an absolute right upon the litigant. P. 241. (b) The remedy afforded by the Act is available only in cases of actual controversy which admit of an immediate and definite determination of the legal rights of the parties. Pp. 242-243. (c) The propriety of declaratory relief in a particular case depends upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. Pp. 243-244. (d) Discretionary use of the Declaratory Judgment Act does not permit the grant of declaratory relief to respondent merely to 238 OCTOBER TERM, 1952. Syllabus. 344 U. S. hold it in readiness for use should the State Commission at any future time attempt to apply to respondent any part of a complicated regulatory statute. P. 245. (e) The declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review. Pp. 246-247. (f) As here invoked, the declaratory judgment proceeding is inappropriate because, in addition to foreclosing an administrative body, it is incompatible with a proper federal-state relationship. P. 247. (g) Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which determines whether there is federal-question jurisdiction in the District Court. P. 248. (h) Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. P. 248. 195 F. 2d 252, reversed. Respondent’s suit in equity for a declaratory judgment and injunction against petitioners was dismissed by the District Court. The Court of Appeals reversed. 195 F. 2d 252. This Court granted certiorari. 343 U. S. 975. Reversed with directions that the action be dismissed, p. 249. Wood R. Worsley argued the cause for petitioners. With him on the brief were C. W. Ferguson and D. A. Skeen. Harold S. Shertz and Wayne C. Durham argued the cause and filed a brief for respondent. John P. Randolph filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging reversal. PUBLIC SERV. COMM’N v. WYCOFF CO. 239 237 Opinion of the Court. Mr. Justice Jackson delivered the opinion of the Court. As this suit in equity was commenced in United States District Court it sought two kinds of specific relief: (1) a declaratory judgment that complainant’s carriage of motion picture film and newsreels between points in Utah constitutes interstate commerce; (2) that the Public Service Commission of Utah and its members be forever enjoined from interfering with such transportation over routes authorized by the Interstate Commerce Commission. The complaint alleged a course of importing, processing and transporting picture film and newsreels to support the contention that carriage between points in Utah was so integrated with their interstate movement that the whole constituted interstate commerce. It averred that the Commission and its members “threaten to and are attempting to stop and prevent plaintiff from transporting motion picture film and newsreels between points and places within the State of Utah, and they are thereby interfering with the conduct of interstate commerce by the plaintiff and imposing an undue burden upon interstate commerce,” and that unless the defendants are enjoined they will “block, harass and prevent plaintiff in the transportation of said motion picture film and newsreels in Utah.” The Commission and its members answered that respondent’s transportation between points in Utah was nothing more than intrastate commerce. They specifically denied attempting, threatening, or intending to interfere with or burden interstate commerce. The District Court, after trial, sustained the contention of the Commission and dismissed the complaint. The Court of Appeals considered only “whether the intrastate transportations are nonetheless integral parts of in 240 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. terstate transportations.” 1 It held the evidence to warrant an affirmative answer, reversed the judgment of the District Court and ordered further proceedings in conformity with that view. We granted certiorari,2 requesting counsel to discuss whether a single judge could hear and determine the case in view of 28 U. S. C. § 2281. That section provides that an injunction restraining enforcement of a state statute or the order of an administrative body thereunder “shall not be granted” upon the ground of unconstitutionality unless the application is heard and determined by a district court of three judges as provided in 28 U. S. C. § 2284. The respondent, which was plaintiff, contends that a three-judge court was not required, because the suit does not question constitutionality of any Utah statute nor the validity of any order of the State Commission. It says also that no injunction has been granted or even urged “outside of the naked recitation in the prayer of the Complaint.” It offered no evidence whatever of any past, pending or threatened action by the Utah Commission touching its business in any respect. The pleadings made that a clear-cut issue, which seems to have been completely ignored thereafter. The only issues defined on pretrial hearing were whether as matter of fact and of law the within-state transportation constituted interstate commerce. The trial court, however, made a general finding that no such interference had been made or threatened, which was not reversed or mentioned by the Court of Appeals. For more reasons than one it is clear that this proceeding cannot result in an injunction on constitutional grounds. In addition to defects that will appear in our discussion of declaratory relief, it is wanting in equity 1195 F. 2d 252. 2 343 U. S.975. PUBLIC SERV. COMM’N v. WYCOFF CO. 241 237 Opinion of the Court. because there is no proof of any threatened or probable act of the defendants which might cause the irreparable injury essential to equitable relief by injunction. The respondent appears to have abandoned the suit as one for injunction but seeks to support it as one for declaratory judgment, hoping thereby to avoid both the three-judge court requirement and the necessity for proof of threatened injury. Whether declaratory relief is appropriate under the circumstances of this case apparently was not considered by either of the courts below. But that inquiry is one which every grant of this remedy must survive. The Declaratory Judgment Act of 1934, now 28 U. S. C. § 2201, styled “creation of remedy,” provides that in a case of actual controversy a competent court may “declare the rights and other legal relations” of a party “whether or not further relief is or could be sought.” This is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant. Previous to its enactment there were responsible expressions of doubt that constitutional limitations on federal judicial power would permit any federal declaratory judgment procedure. Cf. Liberty Warehouse Co. v. Grannis, 273 U. S. 70; Willing v. Chicago Auditorium Assn., 277 U. S. 274; Arizona v. California, 283 U. S. 423; Piedmont & N. R. Co. v. United States, 280 U. S. 469. Finally, as the practice extended in the states, we reviewed a declaratory judgment rendered by a state court and held that a controversy which would be justiciable in this Court if presented in a suit for injunction is not the less so because the relief was declaratory. Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249. Encouraged by this and guided by the experience of the thirty-four states that had enacted such laws, the Senate Judiciary Committee recommended an adaptation of the principle to federal practice. Its enabling clause was narrower 242 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. than that of the Uniform Act adopted in 1921 by the Commissioners on Uniform State Laws, which gave comprehensive power to declare rights, status and other legal relations. The Federal Act omits status and limits the declaration to cases of actual controversy.3 This Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional “case or controversy” limits. In Ashwander n. Tennessee Valley Authority, 297 U. S. 288, 325, the Court said, “The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power” which still was to be tested by such established principles as that “the judicial power does not extend to the determination of abstract questions” and that “claims based merely upon ‘assumed potential invasions’ of rights are not enough to warrant judicial intervention.” In Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, Mr. Chief Justice Hughes used the whole catalogue of familiar phrases to define and delimit the measure of this new remedy. If its metes and bounds are not clearly marked, it is because his available verbal markers are themselves elastic, inconstant and imprecise. It applies, he points out, only to “cases and controversies in the constitutional sense” of a nature “consonant with the exercise of the judicial function” and “appropriate for judicial determination.” Each must present a “justiciable controversy” as distinguished from “a difference or dispute of a hypothetical or abstract character .... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law 3 See 28 U. S. C. § 2201. PUBLIC SERV. COMM’N v. WYCOFF CO. 243 237 Opinion of the Court. would be upon a hypothetical state of facts.” The relief is available only for a “concrete case admitting of an immediate and definitive determination of the legal rights of the parties.” Id., at 240, 241. Other sources have stated relevant limitations. The Senate Judiciary Committee report regarded the 1,200 American decisions theretofore rendered on the subject as establishing that “the issue must be real, the question practical and not academic, and the decision must finally settle and determine the controversy.”4 Indeed the Uniform Act, unlike the Federal Act, expressly declares the discretion of the court to refuse a decree that would not “terminate the uncertainty or controversy giving rise to the proceeding.” In recommending Rule 57 of the Federal Rules of Civil Procedure, in order to provide procedures for the declaratory decree, the Committee noted “A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case . 5 But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especialy in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differ- 4S. Rep. No. 1005, 73d Cong., 2d Sess., p. 6, May 10, 1934; Borchard, Declaratory Judgments (2d ed. 1941), 1043, 1048. 6 Borchard, op. cit., 1042. 244 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ences of opinion or conflicts of interest must be “ripe for determination” as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them. The complainant in this case does not request an adjudication that it has a right to do, or to have, anything in particular. It does not ask a judgment that the Commission is without power to enter any specific order or take any concrete regulatory step. It seeks simply to establish that, as presently conducted, respondent’s carriage of goods between points within as well as without Utah is all interstate commerce. One naturally asks, “So what?” To that ultimate question no answer is sought. A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied.) In this connection, Wycoff Co. v. Public Service Commission, ---Utah-----, 227 P. 2d 323 (1951), is brought to our attention. From this it appears that respondent and its predecessors in interest long made it a practice to obtain from the Utah Commission certificates to authorize this carriage of film commodities between points in Utah. But the Supreme Court of Utah, in the cited case, sustained the Commission in denying such an application PUBLIC SERV. COMM’N v. WYCOFF CO. 245 237 Opinion of the Court. upon a finding that the field already was adequately served. We are also told that the Commission filed a petition in a Utah state court to enjoin respondent from operating between a few specified locations within the State, but that process was never served and nothing in the record tells us what has happened to this action. We may conjecture that respondent fears some form of administrative or judicial action to prohibit its service on routes wholly within the State without the Commission’s leave. What respondent asks is that it win any such case before it is commenced. Even if respondent is engaged solely in interstate commerce, we cannot say that there is nothing whatever that the State may require. Eich-holz v. Commission, 306 U. S. 268, 273. A declaratory judgment may be the basis of further relief necessary or proper against the adverse party (28 U. S. C. § 2202). The carrier’s idea seems to be that it can now establish the major premise of an exemption, not as an incident of any present declaration of any specific right or immunity, but to hold in readiness for use should the Commission at any future time attempt to apply any part of a complicated regulatory statute to it. If there is any more definite or contemporaneous purpose to this case, neither this record nor the briefs make it clear to us. We think this for several reasons exceeds any permissible discretionary use of the Federal Declaratory Judgment Act. In the first place, this dispute has not matured to a point where we can see what, if any, concrete controversy will develop. It is much like asking a declaration that the State has no power to enact legislation that may be under consideration but has not yet shaped up into an enactment. If there is any risk of suffering penalty, liability or prosecution, which a declaration would avoid, it is not pointed out to us. If and when the State Commission takes some action that raises an issue of its power, 246 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. some further declaration would be necessary to any complete relief. The proposed decree cannot end the controversy. Nor is it apparent that the present proceeding would serve a useful purpose if at some future date the State undertakes regulation of respondent. After a sifting of evidence and a finding of facts as they are today, there is no assurance that changes of significance may not take place before the State decides to move. Of course, the remedy is not to be withheld because it necessitates weighing conflicting evidence or deciding issues of fact as well as law. That is the province of courts. Aetna Life Insurance Co. v. Haworth, supra, at 242, and see Perkins v. Elg, 307 U. S. 325; Currin v. Wallace, 306 U. S. 1. But when the request is not for ultimate determination of rights but for preliminary findings and conclusions intended to fortify the litigant against future regulation, it would be a rare case in which the relief should be granted. Cf. Coffman v. Breeze Corporations, Inc., 323 U. S. 316. Even when there is no incipient federal-state conflict, the declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review. It would not be tolerable, for example, that declaratory judgments establish that an enterprise is not in interstate commerce in order to forestall proceedings by the National Labor Relations Board, the Interstate Commerce Commission or many agencies that are authorized to try and decide such an issue in the first instance. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Eccles v. Peoples Bank, 333 U. S. 426. See Colegrove v. Green, 328 U. S. 549. Responsibility for effective functioning of the administrative process can- PUBLIC SERV. COMM’N v. WYCOFF CO. 247 237 Opinion of the Court. not be thus transferred from the bodies in which Congress has placed it to the courts. But, as the declaratory proceeding is here invoked, it is even less appropriate because, in addition to foreclosing an administrative body, it is incompatible with a proper federal-state relationship. The carrier, being in some disagreement with the State Commission, rushed into federal court to get a declaration which either is intended in ways not disclosed to tie the Commission’s hands before it can act or it has no purpose at all. Declaratory proceedings in the federal courts against state officials must be decided with regard for the implications of our federal system. State administrative bodies have the initial right to reduce the general policies of state regulatory statutes into concrete orders and the primary right to take evidence and make findings of fact. It is the state courts which have the first and the last word as to the meaning of state statutes and whether a particular order is within the legislative terms of reference so as to make it the action of the State. We have disapproved anticipatory declarations as to state regulatory statutes, even where the case originated in and was entertained by courts of the State affected. Alabama State Federation of Labor v. McAdory, 325 U. S. 450. Anticipatory judgment by a federal court to frustrate action by a state agency is even less tolerable to our federalism. Is the declaration contemplated here to be res judicata, so that the Commission cannot hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State Commission before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights. The procedures of review usually afford ample protection to a carrier whose federal rights are actually invaded, and there are remedies for threatened irreparable injuries. State courts are bound equally with the federal courts by 226612 0—53------21' 248 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. the Federal Constitution and laws. Ultimate recourse may be had to this Court by certiorari if a state court has allegedly denied a federal right. In this case, as in many actions for declaratory judgment, the realistic position of the parties is reversed.6 The plaintiff is seeking to establish a defense against a cause of action which the declaratory defendant may assert in the Utah courts. Respondent here has sought to ward off possible action of the petitioners by seeking a declaratory judgment to the effect that he will have a good defense when and if that cause of action is asserted. Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. Tennessee n. Union & Planters’ Bank, 152 U. S. 454; The Fair n. Kohler Die & Specialty Co., 228 U. S. 22; Taylor v. Anderson, 234 U. S. 74. Since this case should be dismissed in any event, it is not necessary to determine whether, on this record, the 6 See, Developments in the Law—Declaratory Judgments, 62 Harv. L. Rev. 787, 802. PUBLIC SERV. COMM’N v. WYCOFF CO. 249 237 Reed, J., concurring. alleged controversy over an action that may be begun in state court would be maintainable under the head of federal-question jurisdiction. But we advert to doubts upon that subject to indicate the injury that would be necessary if the case clearly rested merely on threatened suit in state court, as, for all we can learn, it may. We conclude that this suit cannot be entertained as one for injunction and should not be continued as one for a declaratory judgment. The judgment below should be reversed and modified to direct that the action be dismissed. Reversed and so ordered. Mr. Justice Reed, concurring. The record, although uncertain and unsatisfactory, convinces me that a suit was filed in the state court by the Public Service Commission of Utah. This state suit evidently sought to prevent respondent from transporting motion picture film and newsreels between points and places within the State of Utah. This is the portion of transportation between out-of-state points and motion picture exhibitors within Utah that raises the question as to the authority of respondent to operate under the Interstate Commerce Commission certificate. The films are unloaded at Salt Lake City, where they are prepared for exhibition, and stored by the owners until ordered out to the exhibition points. They are then again loaded on respondent’s trucks and delivered to the exhibitors. If this final part of the transportation continues the interstate commerce, respondent would be free to operate without further authority from the Utah Commission. If it is intrastate commerce, respondent would need further authority from Utah. It was apparently to determine this question that the Utah Commission filed its suit in the state court. No process was 250 OCTOBER TERM, 1952. Reed, J., concurring. 344 U. S. served. Thereafter respondent instituted this proceeding for a declaratory judgment. The authority for this litigation is the Declaratory Judgment Act of 1934, 28 U. S. C. § 2201. This provides for a judgment declaring “the rights and other legal relations of any interested party” in cases “of actual controversy.” The Act was intended by Congress as a means for parties in such controversies as that between this interstate carrier and the Utah Commission to settle their legal responsibilities and powers without the necessity and risk of violation of the rights of one by the other. The controversy here is clear and definite. A decision would settle the issue that creates the uncertainty as to the parties’ rights. See Aetna Life Ins. Co. v. Haworth, 300 U. S. 227. The Act intended operations to be conducted in the light of knowledge rather than the darkness of ignorance. S. Rep. No. 1005, 73d Cong., 2d Sess. However, it was recognized that the Declaratory Judgment Act introduced a new method for determining rights into the body of existing law. Therefore the language of the Act was deliberately cast in terms of permissive, rather than mandatory, authority to the courts to take cognizance of petitions seeking this new relief.1 This enables federal courts to appraise the threatened injuries to complainant, the necessity and danger of his acting at his peril though incurring heavy damages, the adequacy of state or other remedies, particularly in controversies with administrative bodies. But even in respect to controversies with administrative bodies, the Declaratory Judgment Act exists as an instrument to protect the citizen against the dangers and damages that may result 1H. R. Rep. No. 1264, 73d Cong., 2d Sess., p. 2; Borchard, Declaratory Judgments (2d ed. 1941), 312; Brillhart v. Excess Insurance Co., 316 U. S. 491,494. PUBLIC SERV. COMM’N v. WYCOFF CO. 251 237 Douglas, J., dissenting. from his erroneous belief as to his rights under state or federal law. Great Lakes Co. N. Huffman, 319 U. S. 293, 300. Cf. Spector Motor Co. v. McLaughlin, 323 U. S. 101, 105; Spector Motor Service v. O'Connor, 340 U. S. 602, 605. It is a matter of discretion with federal courts. The use of this new method of settlement was illustrated a few years ago in an important case dealing with the jurisdiction of the National Railroad Adjustment Board.2 That case involved a disagreement between two divisions of the National Railroad Adjustment Board as to which division had jurisdiction of disputes involving yardmasters. We held that the settlement of such a jurisdictional dispute concerning an administrative agency was a proper subject for a declaratory judgment where the controversy resulted in a complete stalemate. Here, the record does not show any unusual danger of loss or damage to respondent, a suit had already been filed and the record shows no reason why its result would not settle this controversy. Because of these circumstances, I concur with the reversal of the judgment. Mr. Justice Douglas, dissenting. Respondents hold a certificate of public convenience and necessity from the Interstate Commerce Commission for the transportation of motion picture films and newsreels from Salt Lake City, Utah, to points in Utah, Idaho, and Montana. Their transportation to Utah points is interstate commerce according to the Court of Appeals; and with that conclusion I agree since the movement in Utah is part of a continuing interstate stream. The threat of interference with that interstate activity by the Utah Public Service Commission is clear and immediate. First. The Utah Commission brought suit to enjoin those interstate activities and that suit is now pending 2 Order of Conductors v. Swan, 329 U. S. 520. 252 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. in the Utah court. Second. The Commission’s answer in the District Court denied that it was interfering with interstate commerce, not because it did not intend to prevent respondent from operating, but on the ground that the operations were deemed to be intrastate commerce and therefore subject to its regulation. Similarly, the District Court’s finding that there was no interference with interstate commerce was based on an acceptance of the Commission’s contentions as to the nature of respondent’s business. Third. In their brief here petitioners assert that the Utah Commission “will prevent the respondent from conducting” this business “unless and until he is authorized to do so by appropriate administrative order” of the Utah Commission, since in the Commission’s view the transportation is in intrastate commerce. That for me is threat enough. Moreover, Utah is not attempting to regulate a phase of interstate business that is within the reach of a State’s police power. She is endeavoring to make respondent obtain a permit to do an interstate business for which the respondent already holds a federal permit, under threat that unless he obtains a Utah permit, Utah will stop him from conducting the interstate business. That is an attempt to regulate in a field pre-empted by the Congress under the Motor Carrier Act (49 U. S. C. §§ 301 et seq.). That kind of regulation is precluded by our decision in Buck v. Kuykendall, 267 U. S. 307. Thus the controversy is definite and concrete and involves legal interests of adverse parties. The test laid down for declaratory judgments by Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, is thus satisfied. I have said enough to show that the judges who heard this case below knew that they were dealing with a live, active contest that threatened serious consequences to respondent, not PUBLIC SERV. COMM’N v. WYCOFF CO. 253 237 Douglas, J., dissenting. with a hypothetical question that might have practical repercussions only in the remote future. The fact that the Utah court can adjudicate the controversy in the pending state case is no reason why the federal court should stay its hand. There is no federal policy indicating that this is a field in which federal courts should be reluctant to intervene. That was the case in Great Lakes Dredge & Dock Co. n. Huffman, 319 U. S. 293, where we held that declaratory relief that a state tax was unconstitutional should be denied by the federal court. The basis of our ruling was that since Congress had prohibited the federal courts from enjoining state taxes where an adequate remedy was available in the state courts (cf. Hillsborough v. Cromwell, 326 U. S. 620, 623), declaratory relief should also be withheld. Congress here has given no indication that the integrity of permits granted interstate carriers by the Interstate Commerce Commission should be protected in the state rather than in the federal courts. All the presumptions are contrary. The basis of the jurisdiction of the District Court created by Congress is clear. The case “arises under the Constitution” and “laws” of the United States. 28 U. S. C. § 1331. It is proper that the federal court, absent such special circumstances as the Huffman case presented, exercise that jurisdiction and protect the federal right. The failure to do it here relegates the declaratory judgment to a low estate. 254 OCTOBER TERM, 1952. Syllabus. 344 U. S. KING et al., CONSTITUTING THE FLORIDA RAILROAD AND PUBLIC UTILITIES COM- MISSION, v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA. No. 9. Argued October 15, 1952.—Decided December 22, 1952. 1. In prescribing intrastate freight rates for railroads under § 13 (4) of the Interstate Commerce Act, the Interstate Commerce Commission may give weight to deficits in passenger revenue. Pp. 260-267. (a) Under § 15a (2) of the Interstate Commerce Act and the National Transportation Policy of 1940, the Commission may give weight to passenger revenue deficits in prescribing interstate freight rates to meet over-all revenue needs. Pp. 263-264. (b) The same National Transportation Policy applies to § 13 (4) as to §15a(2). Whichever section is used, the same economic considerations underlie the relation between freight rates and passenger deficits, whether interstate or intrastate. P. 266. 2. The findings of the Commission which are involved in this proceeding are sufficient to sustain the Commission’s order prescribing intrastate freight rates, for Florida railroads, which will reflect the same increases as have been authorized by the Commission for comparable interstate traffic. Pp. 267-276. (a) North Carolina n. United States, 325 U. S. 507, distinguished. Pp. 270-274. (b) To permit material and reports which were before the Commission in prescribing a nationwide increase in interstate freight rates and in further increasing interstate freight rates for the southern territory (including Florida) to be applied under § 15a but not under § 13 (4) would be contrary to the complementary nature of those sections. Pp. 272-273. (c) The Commission’s jurisdiction over intrastate rates is not limited to cases where those rates are confiscatory. It is sufficient that the existing intrastate rates cause “unjust discrimination against interstate or foreign commerce.” P. 274. (d) Where the Commission seeks to deal generally with rates and revenues in a large area on evidence typical of the area as a KING v. UNITED STATES. 255 254 Opinion of the Court. whole, it may proceed by way of a general order supported by sufficient evidence applicable to the whole territory, but it is well to leave the way open for modifications of that general order in specific situations where the general order is not justly applicable. Pp. 275-276. 101 F. Supp. 941, affirmed. A three-judge District Court sustained an order of the Interstate Commerce Commission prescribing intrastate freight rates for Florida railroads. 101 F. Supp. 941. On appeal to this Court under 28 U. S. C. (Supp. V) §§ 1253, 2101 (b), affirmed, p. 276. Lewis W. Petteway argued the cause and filed a brief for appellants. Charles H. Weston argued the cause for the United States and the Interstate Commerce Commission, appellees. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Clapp, James L. Morrisson and Edward M. Reidy. Philip B. Perlman, then Solicitor General, and Daniel W. Knowlton were on a motion to affirm. Frank W. Gwathmey argued the cause for the Atlantic Coast Line Railroad Co. et al., appellees. With him on the brief was James A. Bistline. Arnold H. Olsen, Attorney General, Charles V. Huppe, Assistant Attorney General, and Edwin S. Booth filed a brief for the State of Montana et al., as amici curiae, urging reversal. Mr. Justice Burton delivered the opinion of the Court. The questions here are: (1) whether the Interstate Commerce Commission, in prescribing intrastate freight rates for railroads under § 13 (4) of the Interstate Com- 256 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. merce Act,1 may give weight to deficits in passenger revenue; and (2) whether the findings of the Commission which are involved in this proceeding are sufficient to sustain the rates it has prescribed. Our answer to each question is in the affirmative. This is an action against the United States brought in the United States District Court for the Northern District of Florida, under 28 U. S. C. (Supp. V) § 1336, by appellants “as and Constituting the Florida Railroad and Public Utilities Commission.” They ask the court to enjoin, set aside and annul an order of the Interstate Commerce Commission requiring Florida railroads to establish intrastate freight rates which will reflect the same increases as have been authorized by it for comparable interstate traffic. The underlying proceedings originated in 1940. The Interstate Commerce Commission then undertook a nationwide investigation of interstate railroad freight rates, under §§13 (2) and 15a (2) of the Interstate Commerce Act, in conformity with the National Transporta- T“(4) Whenever in any such investigation [where rates made by authority of a state are in issue] the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.” (Italics supplied.) 41 Stat. 484, 49 U. S. C. § 13 (4). KING v. UNITED STATES. 257 254 Opinion of the Court. tion Policy stated in § 1 of the Transportation Act of 1940.2 The investigation dealt with past and future freight and passenger operations, intrastate as well as interstate. A Committee of Cooperating State Commissioners sat with the Commission and took part in its deliberations. Mounting railroad operating costs and declining passenger revenue led the Commission, in 1946, to authorize a nationwide increase of 20% in basic interstate freight rates. Ex Parte No. 162, Increased Railway Rates, Fares, and Charges, 191$, 264 I. C. C. 695, 266 I. C. C. 537.3 In 1947, the Commission found such further increases in operating costs and decreases in passenger revenue that it authorized an additional nationwide interim increase of 10% in interstate freight rates. Soon it raised this to 20%. In a third report it varied the percentage in different areas, with the result that in the southern territory, including Florida, the increase was 25%. The 1948 final report confirmed this 25% increase. Ex Parte No. 166, Increased Freight Rates, 1947, 269 I. C. C. 33, 270 I. C. C. 81, 93, and 403. The Commission’s estimates of revenue contemplated the application of the increased rates to intrastate, as well as to interstate, transporta- 2 § 13 (2), 36 Stat. 550, as amended, 41 Stat. 484, 49 U. S. C. § 13 (2); § 15a (2), 54 Stat. 912, 49 U. S. C. § 15a (2); § 1 of the Transportation Act of 1940, inserting a preamble to the Interstate Commerce Act, 54 Stat. 899, 49 U. S. C., note preceding § 1. 3 For earlier reports see Ex Parte No. 11$, Increased Railway Rates, Fares, and Charges, 191$, 248 I. C. C. 545. The several proceedings under §§ 15a or 13 (4) referred to in this opinion deal at length with many commodity and other rates or charges besides those which are controlled by the general percentage increases referred to in the opinion. While such variations are important and significant in adjusting each order to specific situations, their consideration is not necessary to the determination of the issues before us. The percentages used in this opinion are those which were adopted by the court below for illustrative purposes. 101 F. Supp. 941, 943-944. 258 OCTOBER TERM, 1952. Opinion of the Court. 344U.S. tion.4 The report concludes with the statement that the “Committee of Cooperating State Commissioners . . . authorize us to state that they concur in the foregoing report.” 270 I. C. C. 403, 463. Upon publication of these reports, the railroads asked their respective state authorities to authorize comparable increases in intrastate rates. The Florida Commission approved most of the increases but declined to approve the final increase from 20% to 25%.5 On petition of the Florida railroads, the Interstate Commerce Commission undertook its own investigation of Florida intrastate railroad rates under § 13 (3) and 4 In Ex Parte No. 166, 270 I. C. C. 403, 421, the tabulations of overall percentage increases in freight rates include intrastate traffic. The report says: “The table which relates to class I railroads, covers all traffic, intrastate as well as interstate, and assumes increases to have been approved on intrastate traffic similarly to those upon interstate traffic in the same territory, for the whole time.” In referring to revenue from operations for a “constructive,” normal year, the report says: “This estimate is upon the assumption that timely similar adjustments will be made upon intrastate traffic.” Id., at 428. As to rates of return on property values, it adds: “They presuppose that generally similar increases will be permitted by State authorities on intrastate traffic, or may become effective otherwise.” Id., at 437. See also, 269 I. C. C. at 39, 94-95, and 270 I. C. C. at 440. 5 In response to requests based upon Ex Parte No. 162, supra, the Florida Commission granted the original 20% general increase in intrastate freight rates but declined to allow increases in intrastate rates on logs moving to the mills, wet phosphate moving from the washer to the drying plant, waste wood moving to retort or recovery plant and sugar cane moving to the mills. It also limited rate increases on pulpwood to 9%. In response to requests to conform to Ex Parte No. 166, supra, the Florida Commission granted the additional 20% general increase in intrastate freight rates, but declined to approve the further 5% increase. It also made specific exceptions in favor of certain commodities. As the issues with which we are concerned are sufficiently raised by the Florida Commission’s action denying the final 5% increase, we confine our discussion to that item. KING v. UNITED STATES. 259 254 Opinion of the Court. (4) of the Interstate Commerce Act, 41 Stat. 484, 49 U. S. C. § 13 (3) and (4). A full hearing was had before a Commissioner and an examiner, followed by a hearing upon exceptions to the examiner’s report.6 The Commission recommended that intrastate freight rates be established “between points in Florida which will reflect the same increases as are, and for the future may be, maintained by respondents [railroads] on like interstate traffic to and from Florida, and within Florida under our authorizations in Ex Parte No. 162 and Ex Parte No. 166 .. . Finding No. 8, 2781. C. C. 41, 73. The Interstate Commerce Commission then gave the Florida Commission a final opportunity to permit the increased rates to be applied to intrastate transportation. Upon the latter’s failure to act, the Interstate Commerce Commission ordered the railroads “thereafter to maintain and apply for the intrastate transportation of freight from and to points in the State of Florida freight rates and charges which shall be no lower than the approved rates and charges, or on the approved rate bases, as provided in said report.” 7 6 While the Commission states that its conclusions differ from those in the proposed report of the examiner, they do not so differ on the issues before us. 7 For other decisions of the Commission as to intrastate rates under § 13 (3) and (4), growing out of Ex Parte Nos. 162 or 166, supra, see Increases in Alabama Freight Rates and Charges, 274 I. C. C. 439; Texas Intrastate Rates, 273 I. C. C. 749; Increases in Tennessee Freight Rates and Charges, 272 I. C. C. 625. See also, Increases in Arizona Freight Rates and Charges, 270 I. C. C. 105. A recent decision, growing out of Ex Parte No. 168, Increased Freight Rates, 1948, 276 I. C. C. 9, is Montana Intrastate Freight Rates and Charges, 284 I. C. C. 167. The intrastate rates there ordered into effect by the Commission were set aside in Montana v. United States, 106 F. Supp. 778, and 786; judgment vacated and cause remanded by this Court for further consideration in the light of the instant case, post, p. 905. 260 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. Before that order took effect, this action was filed. A three-judge District Court was convened. 28 U. S. C. (Supp. V) § 2325. Two short line railroads and numerous shippers intervened as plaintiffs. The Interstate Commerce Commission and all Class I railroads operating in Florida intervened as defendants. The entire record of the proceeding before the Commission, under § 13 (4), was introduced. The court sustained the Commission and dismissed the complaint. 101 F. Supp. 941. That judgment is here on appeal. 28 U. S. C. (Supp. V) §§ 1253, 2101 (b). I. The Interstate Commerce Commission in prescribing intrastate freight rates for railroads under §13 (4) of the Interstate Commerce Act may give weight to deficits in passenger revenue. In Ex Parte No. 168, Increased Freight Rates, 19^8, 272 I. C. C. 695, 276 I. C. C. 9, the Commission reviewed the changing attitudes it has adopted concerning the role of passenger deficits and freight rates. In such cases as the Five Per Cent Case, 31 I. C. C. 351, the Commission in 1914 concluded that each class of service should completely and independently provide its own proportionate share of expenses and profits.8 In 1949 the Commission says: “However, because of changed theories adopted by Congress in the Transportation Act, 1920, and 8 The Commission there said: “We know of no provision of law under which we should be justified in increasing freight rates to provide a return upon property used exclusively in the passenger service, much less to take care of losses incurred in such service. In our opinion each branch of the service should contribute its proper share of the cost of operation and of return upon the property devoted to the use of the public.” 31 I. C. C. at 392. KING v. UNITED STATES. 261 254 Opinion of the Court. because as a practical matter the increasing degree of unprofitableness of the passenger traffic menaced the continuity of an adequate national system of transportation, we were forced to a more comprehensive view of this question. We observe, also, that at the time of those decisions the railroads enjoyed a practical monopoly in supplying transportation, but that situation no longer exists.” 276 I. C. C. at 34. Citing with approval its similar views in Ex Parte No. 103, Fifteen Per Cent Case, 1931, 178 I. C. C. 539, and Ex Parte No. 123, Fifteen Per Cent Case, 1937-1938, 226 I. C. C. 41, the Commission summarizes its present position as follows: “These cases are typical of our more recent holdings upon this question. While we regard it as ‘trite to say that each particular service, coach, sleeper, parlor car, and head end, should as nearly as may be pay its own way and return a profit’ (Eastern Passenger Fares in Coaches, 227 I. C. C. 17, 25), and we have accepted the contention that there may be traffic that should not be burdened with a shortage of passenger service return (Livestock, Western District Rates, 190 I. C. C. 611, 629), yet, if passenger service inevitably and inescapably cannot bear its direct costs and its share of joint or indirect costs, we have felt compelled in a general rate case to take the passenger deficit into account in adjustment of freight rates and charges. Both the freight and passenger services are essential, and revenue losses or deficits on the one necessarily must be compensated by earnings on the other if the carriers are to continue operations. Both may be subjected to reasonable rates and charges to produce the fair aggregate return, even though thereby a higher rate of return may be exacted from the one than from the 262 OCTOBER TERM, 1952. Opinion of the Court. 344U.S. other. {Property Owners' Committee v. Chesapeake & 0. Ry. Co., 2371. C. C. 549,565.)” Id., at 35. See also, Ex Parte 87, Revenues in Western District, 113 I. C. C. 3, 23. This change of policy was the inevitable consequence of steadily increasing passenger operating costs, together with the growth of vigorous competition from automobiles and other forms of transportation which made it futile to compensate for the passenger deficits by increasing passenger rates. The railroads were forced to abandon passenger mileage, reduce service and improve their facilities, while fixing passenger rates at a level as adequate as competition permitted.9 In recent years, a nationwide passenger deficit has been obvious except during the peak of wartime passenger traffic. The ratio between passenger operating expense and revenue has varied in different areas but has been uniformly unfavorable to the railroads.10 9 Passenger service involves not only transportation of people but of mail, express, baggage, milk and other “head-end” services requiring the speed and service of passenger trains. These operations have shown a national operating deficit in each year from 1936 through 1948. 276 I. C. C. at 38. 10 “. . . Between the end of 1923 and the beginning of the present year [1948], the miles of line operated in passenger service of the class I roads decreased from 224,762 to 159,373 ... or 29.1 percent in 26 years. ... In addition to total abandonments, much curtailment of service has occurred, which is impossible to portray statistically. “. . . From 1923 through 1933 both the number of passengers carried and the revenues from passenger fares declined uninterruptedly. Passengers carried declined from slightly less than 1 billion in the earlier year to less than half that figure, or 433 millions, in round numbers, in the later year. Revenues from passenger fares fell from $1,148 millions to $329 millions, a decline between these 2 years of more than 70 percent. This development was accompanied, except KING v. UNITED STATES. 263 254 Opinion of the Court. Section 15a (2) of the Interstate Commerce Act and the National Transportation Policy of 194011 reflect this broad concept of the unity of the Nation’s transportation system. They direct the Commission to consider, for 1 year, by an uninterrupted increase in the passenger service operating ratio from 81.29 percent in 1923 to 101.22 percent in 1930, the latter being the first year of the 11 years 1920-30 in which there was an operating deficit in this service. Since that year there has been an annual operating deficit in passenger service, except during the war years 1942-45. “Passenger service operating ratios and net railway operating deficits in 19^8, by specified districts and regions District or region Operating ratio Net railway operating deficit Eastern district Pocahontas region Southern region Western district 120. 8 177. 8 127. 3 132. 2 $216, 450, 000 35, 725, 000 72, 982, 000 234, 625, 000 Total 127.4 559, 782, 000” 276 I. C. C. at 36, 40; see also, pp. 14-31 for data as to value, revenue, expenses, operating income, rate of return, traffic, efficiency, etc., and pp. 32-40 as to passenger deficits. See Moulton, The American Transportation Problem, c. V (1933); 63d, 64th and 65th Annual Reports of the Interstate Commerce Commission, at pp. 3, 5 and 41, respectively. 11 “In the exercise of its power to prescribe just and reasonable rates the Commission shall give due consideration, among other factors, to the effect of rates on the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management to provide such service.” 54 Stat. 912, 49 U. S. C. § 15a (2). “It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes 226612 0—53------22 264 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. among other things, the need, in the public interest, of adequate and efficient railway transportation service and the need of revenues sufficient to sustain such service. It permeates such general revenue proceedings as Ex Parte Nos. 162 and 166, supra. It leaves no ground for a claim that the Commission may not give weight to passenger revenue deficits in prescribing interstate freight rates to meet over-all revenue needs. See United States v. Louisiana, 290 U. S. 70. The question remains whether that Commission may give weight to deficits in passenger revenue (either interstate or intrastate) when prescribing intrastate freight rates under § 13 (4). It is conceivable that some considerations properly given weight by the Commission in prescribing interstate freight rates in a general revenue proceeding might not be applicable equally to transportation within a particular state. In the instant case, however, there is no showing that the character of operating conditions in Florida intrastate passenger traffic differs substantially from that of inter- of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions;—all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.” 54 Stat. 899, 49 U. S. C., note preceding § 1. KING v. UNITED STATES. 265 254 Opinion of the Court. state passenger operations in the southern territory generally. On the contrary, the Commission observes that— “Increased passenger deficits, by reason of the continuing rise in operating expenses and the growing use of other forms of transportation, is a condition bearing alike upon intrastate and interstate rates. There is here no claim or showing that the passenger deficits of the respondents do not result from intrastate as well as interstate operations, and the passenger deficit of the East Coast, which operates entirely within Florida, would appear to indicate to the contrary. “The record affords no justification for a difference in treatment in this respect [passenger deficits] between Florida intrastate traffic, on the one hand, and interstate traffic to and from Florida, on the other hand. The question of passenger deficits is a serious one for both carriers and shippers, and would become even more serious for interstate shippers if this burden were imposed entirely upon them [rather than being shared on a like basis with intrastate shippers on the same lines].” 278 I. C. C. at 67-68. See opinion below, 101 F. Supp. at 944. It appears from the report in Ex Parte No. 168, 276 I. C. C. at 40, that, in 1948, the passenger service operating ratio for the southern territory was 127.3% while the operating ratios of the three principal Florida railroads in that year were 120%, 127% and 128%. In Florida, moreover, the discontinuance of railroad passenger service would not permit the discontinuance of high-speed tracks and equipment because of the need for fast freight schedules to transport perishable fruits and vegetables from Florida. The Commission dealt with the freight and passenger revenues and properties of the Florida roads as a 266 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. whole when determining the need for increases in interstate freight rates. Nothing has been demonstrated which would demand different treatment of these properties in relation to the intrastate activities. The Commission also finds that “the Florida intrastate rates [without the 5% increase] . . . are abnormally low and are not contributing their fair share to the revenues required by respondents [Florida railroads] to enable them to render adequate and efficient service and to operate profitably, and thereby accomplish the purpose of the Interstate Commerce Act . . . .” Finding No. 5, 278 I. C. C. at 72. In the instant case there is no evidence which would require the Commission to treat Florida intrastate rates differently from interstate rates in southern territory. Instead, there are findings that it would cause unjust discrimination against interstate commerce in Florida if the intrastate freight rates are not increased so as to reflect the same increase as is applied by the Commission to like interstate traffic in the southern territory. See note 13, infra. The same National Transportation Policy applies to § 13 (4) as to § 15a (2). Whichever section is used, the same economic considerations underlie the relation between freight rates and passenger deficits, whether interstate or intrastate. This was well considered throughout the opinion of the Court in United States v. Louisiana, supra. It was there said: “This Court has consistently held that this section [§ 13 (4)] is to be construed in the light of § 15a (2) and as supplementing it, so that the forbidden discrimination against interstate commerce by intrastate rates includes those cases in which disparity of the latter rates operates to thwart the broad purpose of § 15a to maintain an efficient transportation system by enabling the carriers to earn a fair return. So KING v. UNITED STATES. 267 254 Opinion of the Court. construed, § 13 (4) confers on the Commission the power to raise intrastate rates so that the intrastate traffic may produce its fair share of the earnings required to meet maintenance and operating costs and to yield a fair return on the value of property devoted to the transportation service, both interstate and intrastate.” Pp. 74—75. This was confirmed in Florida v. United States, 292 U. S. 1, 5-6. We conclude that there is no reason why the Commission may not give weight to passenger deficits in prescribing the intrastate freight rates in Florida, as it does in prescribing interstate freight rates for the southern territory.12 II. The Commission’s findings involved in this proceeding are sufficient to sustain the rates prescribed. Several of the Commission’s findings which lend support to its order are printed in the margin.13 Its author- 12 Northern Pacific R. Co. v. North Dakota, 236 U. S. 585, and Norfolk & W. R. Co. v. Conley, 236 U. S. 605, favor, rather than oppose, this position. In those cases this Court enjoined state authorities from attempting to restrict an intrastate railroad to con-fiscatorily low freight or passenger rates. Such action, however, carried no implication that the United States’ authority to provide relief is limited to cases of threatened confiscation. In the instant case the Interstate Commerce Commission is authorized by Congress, under §§ 15a (2) and 13 (4), to override state-prescribed rates which unjustly discriminate against interstate commerce, whether or not the state rates are also confiscatory. 13 “2. That the transportation conditions incident to the intrastate transportation of freight in Florida are not more favorable and such conditions in the Florida peninsula are somewhat less favorable than those (1) within southern territory and (2) between Florida and interstate points. “3. That the present interstate freight rates and charges within Florida and between points in Florida and points in other States 268 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. ity to prescribe the rates now before us rests on the provision, in § 13 (4), that when it finds that an intrastate rate causes “any undue, unreasonable, or unjust discrimination against interstate or foreign commerce . . it shall prescribe such rate as, in its judg-are just and reasonable . . . and that intrastate rates, charges, and minimum weights herein approved will not exceed a just and reasonable level. “5. That the Florida intrastate rates, charges, and minimum weights, which are below the level herein authorized, are abnormally low and are not contributing their fair share to the revenues required by respondents to enable them to render adequate and efficient service and to operate profitably, and thereby accomplish the purpose of the Interstate Commerce Act, and as set forth in the national transportation policy declared by the Congress, to develop and preserve a national transportation system adequate to meet the needs of the commerce of the United States, of the postal service, and of the national defense; and that the burden thus cast upon interstate commerce is undue to the extent that these intrastate rates and charges are less than they would be on the basis herein approved. “6. That the establishment of intrastate rates and charges increased sufficiently to equal the level herein approved will substantially increase respondents’ revenues therefrom, and will constitute not more than a fair proportion of respondents’ total income .... “7. That the maintenance of intrastate rates and charges within Florida on bases lower than those herein approved causes, and in the future will cause, {1) in all instances, unjust discrimination against interstate commerce, (2) in nearly all instances, undue preference of and advantage to localities in intrastate commerce, and undue prejudice to localities in interstate commerce; .... “8. That this unjust discrimination and undue prejudice should be removed by establishing intrastate rates and charges between points in Florida which will reflect the same increases as are, and for the future may be, maintained by respondents on like interstate traffic to and from Florida, and within Florida under our authorizations in Ex Parte No. 162 and Ex Parte No. 166, modified as herein indicated and as proposed before the Florida commission in proceedings referred to herein: ... (5) that no intrastate rate or charge shall be increased so that it will exceed the lowest level of the corresponding rates or charges contemporaneously maintained generally on inter- KING v. UNITED STATES. 269 254 Opinion of the Court. ment, will remove the discrimination. Note 1, supra. The Commission’s finding No. 7 meets this requirement. The Commission there finds that the maintenance of the existing intrastate rates within Florida “on bases lower than those herein approved causes, and in the future will cause, (1) in all instances, unjust discrimination against interstate commerce . . . .” 278 I. C. C. at 73. If supported by adequate subsidiary findings, this ultimate finding thus sustains the authority of the Commission and the validity of its order.14 North Carolina n. United States, 325 U. S. 507, 514; Florida v. United States, 292 U. S. 1; state traffic to and from Florida points in the period from August 21, 1948, to, but not including, January 11, 1949; .... “These findings are without prejudice to the right of the authorities of the State of Florida, or any other interested party, to apply for a modification thereof as to any specific intrastate rates or charges on the ground that they are not related to the interstate rates or charges on like traffic in such a way as to contravene the provisions of the Interstate Commerce Act.” (Italics supplied.) 278 I. C. C. at 72-74. 14 An alternative provision of § 13 (4) is that whenever in such an investigation the Commission finds that an intrastate rate causes “any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand ... it shall prescribe the rate . . . thereafter to be charged ... in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination.” Note 1, supra. On this point the Commission’s finding No. 7 states that the maintenance of intrastate rates in Florida “on bases lower than those herein approved causes, and in the future will cause ... (2) in nearly all instances, undue preference of and advantage to localities in intrastate commerce, and undue prejudice to localities in interstate commerce; . . . .” 278 I. C. C. at 73. As to this alternative provision, see also, Wisconsin R. Commission n. Chicago, B. & Q. R. Co., 257 U. S. 563; Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342. In view of the above restricted finding and of the doubt expressed by the court below as to the ability of the Commission to sustain its action on that ground, we place no reliance upon this alternative here. 270 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. 282 U. S. 194; United States n. Louisiana, 290 U. S. 70. The court below adds that it is “clear from the evidence in the case that it [the existing intrastate rate] did result in undue, unreasonable and unjust discrimination against interstate commerce . . . .” 101 F. Supp. 941, 945. The nature and adequacy of the findings necessary to support an ultimate finding of “unjust discrimination against interstate commerce” were considered in North Carolina n. United States, supra. In that case this Court held that the Commission’s findings were not adequate to support the Commission’s order to raise state-wide intrastate passenger rates from 1.65 cents per mile to 2.2 cents per mile, although the latter rate was prescribed by the Commission as a minimum rate for comparable interstate passenger service on the same lines and trains. The finding which was primarily needed, and was there found lacking, was one that the intrastate service at 1.65 cents per mile did not contribute its fair share of the earnings required to meet maintenance and operating costs and to yield a fair return on the value of the property directed to the transportation service, both interstate and intrastate. This Court held that the mere disparity between the rates for comparable intrastate and interstate service was not enough per se to establish the requisite unjust discrimination. Confronted with evidence that the interstate rate of 2.2 cents per mile was above a reasonable rate level for comparable intrastate passenger service, a finding supported by evidence was held to be necessary to show the contrary. Such a finding, lacking in the North Carolina case, is supplied here by finding No. 3, which states that the “intrastate rates . . . herein approved will not exceed a just and reasonable level.” 278 I. C. C. at 72. In the North Carolina case there was no finding that the existing intrastate rate was inadequate. In fact, its KING v. UNITED STATES. 271 254 Opinion of the Court. ample adequacy was indicated by evidence of an extraordinarily large volume of available traffic and profits. In contrast, the Commission, in the instant case, has found that the existing “Florida intrastate rates . . . which are below the [proposed] level herein authorized, are abnormally low and are not contributing their fair share to the revenues . . . and that the burden thus cast upon interstate commerce is undue to the extent that these intrastate rates . . . are less than they would be on the basis herein approved.” Finding No. 5, id., at 72-73, and see 45-59. The report adds that “the revenue loss as estimated by the respondents [railroads] because of the failure to authorize the increases herein sought is $915,325 a year.” Id., at 65. Whereas in the North Carolina case there was evidence to indicate that the conditions in that State were more favorable to profitable intrastate transportation of passengers than in the Nation at large, here the Commission’s finding No. 2 expressly states that “the transportation conditions incident to the intrastate transportation of freight in Florida are not more favorable and such conditions in the Florida peninsula are somewhat less favorable than those (1) within southern territory and (2) between Florida and interstate points.” Id., at 72, and see 63-67. Supporting the conclusion that the proposed increase in the Florida intrastate freight rates will not drive away business but will prove profitable and reasonable, the Commission in its finding No. 6 says that “the establishment of intrastate rates . . . increased sufficiently to equal the level herein approved will substantially increase respondents’ [railroads’] revenues therefrom, and will constitute not more than a fair proportion of respondents’ total income . . . Id., at 73. The foregoing findings cover the needs emphasized in the North Carolina case. They go far beyond the bare disparity between the existing intrastate rate and the 272 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. proposed minimum rate which is in substantial uniformity with the interstate rate. These findings demonstrate that the proposed rate in Florida will be within the zone of reasonableness and, in the opinion of the Commission, will cause the intrastate freight traffic to contribute a fair share of the earnings. The Commission has applied to the Florida operations the same conclusion it reached as to the need for increased revenue on a national basis and has distributed the burden within Florida along the same lines it followed when estimating the revenues available in the southern territory from intrastate as well as interstate operations. In the absence of any showing that it is not applicable to Florida, the evidence which forms the basis of the Commission’s nationwide order becomes the natural basis for its Florida order. The Commission in the instant case has provided that these “findings are without prejudice to the right of the authorities of the State of Florida, or any other interested party, to apply for a modification thereof as to any specific intrastate rates ... on the ground that they are not related to the interstate rates ... on like traffic in such a way as to contravene the provisions of the Interstate Commerce Act.” Id., at 74. Certain of the rates in the original order already have been modified or removed from that order. 101 F. Supp. at 946. No question has been raised here as to the adequacy of the evidence upon which any of the findings are based. Although no such point is urged, supporting evidence appears in the record of the “full hearing” under § 13 (4), all of which was introduced in evidence in the court below. Much of the factual material that was before the Commission in Ex Parte No. 162 and Ex Parte No. 166, and the reports in those cases, were before the Commission and the court below in the present proceedings. To permit such material and reports to be applied under § 15a KING v. UNITED STATES. 273 254 Opinion of the Court. but not under § 13 (4) would be contrary to the complementary nature of those sections. “The decision in the first proceeding, that the increase in interstate rates was reasonable, was made in the hope that the state commissions would bring intrastate rates into harmony. When they failed to do so, the Commission reaffirmed its finding that the new interstate rates were reasonable and found that the intrastate rates must be raised in order that the intrastate traffic may bear its fair share of the revenue burden. It is plain from the nature of the inquiry that the rate level, to which both classes of traffic were raised, was found reasonable on the basis of the traffic as a whole. Where the conditions under which interstate and intrastate traffic move are found to be substantially the same with respect to all factors bearing on the reasonableness of the rate, and the two classes are shown to be intimately bound together, there is no occasion to deal with the reasonableness of the intrastate rates more specifically, or to separate intrastate and interstate costs and revenues. Compare American Express Co. v. Caldwell, 244 U. S. 617; United States v. Louisiana, supra [290 U. S. 70]; Florida v. United States, ante [292 U. S.], p. 1.” Illinois Commerce Commission v. United States, 292 U. S. 474, 483-484. See also, Montana v. United States, 106 F. Supp. 778, 783. The appellants point out that in the North Carolina case, this Court mentioned the absence of other findings. Those, however, are not needed to sustain an order already supported by such findings as have been made in this case.15 15 See Illinois Commerce Commission v. United States, supra; Florida v. United States, 292 U. S. 1; United States v. Louisiana, supra; Louisiana P. S. Commission n. Texas & N. 0. R. Co., 284 274 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. For example, the North Carolina case mentions the absence in that case of a finding that the existing 1.65 cent per mile intrastate passenger rate was confiscatory. Such a finding, supported by competent evidence, would have provided a constitutional ground for enjoining the state rate. See Norfolk & Western R. Co. v. Conley, 236 U. S. 605; Northern Pacific R. Co. n. North Dakota, 236 U. S. 585. The Interstate Commerce Commission’s jurisdiction over intrastate rates, however, is not limited to cases where those rates are confiscatory. It is sufficient that the existing intrastate rates cause “unjust discrimination against interstate or foreign commerce . . . .” In that event, § 13 (4) directs the Commission to prescribe intrastate rates that will remove the discrimination without raising the rate beyond the zone of reasonableness. See United States v. Louisiana, supra, at 74-75; Florida v. United States, 282 U. S. 194, 211; Wisconsin R. Commission v. Chicago, B. & Q. R. Co., 257 U. S. 563, 585-586. Similarly, the North Carolina case mentions, but does not make indispensable, the specific findings in dollars which were absent there. Reference was made in the North Carolina case to the absence of “findings as to what contribution from intrastate traffic would constitute a fair proportion of the railroad’s total income” and also to the absence of any “finding as to what amount of revenue was required to enable these railroads to operate efficiently.” 325 U. S. at 516. The Court emphasized the Commission’s reliance on “the mere existence of a disparity between what it said was a reasonable interstate rate and the intrastate rate fixed by North Carolina.” U. S. 125; Alabama v. United States, 283 U. S. 776; Georgia P. S. Commission v. United States, 283 U. S. 765; New York v. United States, 257 U. S. 591; Wisconsin R. Commission v. Chicago, B. & Q. R. Co., 257 U. S. 563. KING v. UNITED STATES. 275 254 Opinion of the Court. Ibid. In the instant case the Commission does not rely upon the mere disparity between the intrastate and interstate rates. On the contrary, the Commission states that the Florida intrastate rates “are abnormally low and are not contributing their fair share to the revenues required ... to render adequate and efficient service and to operate profitably, and thereby accomplish the purpose of the Interstate Commerce Act . . . Finding No. 5, 278 I. C. C. at 72. Also, in finding No. 6, it says that the establishment of the proposed increases in intrastate rates “will substantially increase respondents’ revenues therefrom, and will constitute not more than a fair proportion of respondents’ total income . . . Id., at 73. More is not needed. It is not necessary, for general revenue purposes, to establish for each item in each freight rate a fully developed rate case. “(T]he administrative arm of the Commission [would be] paralyzed, if instead of adjudicating upon the rates in a large territory on evidence deemed typical of the whole rate structure, it were obliged to consider the reasonableness of each individual rate before carrying into effect the necessary increased schedule.” United States n. Louisiana, 290 U. S. 70, 75-76, and see 78-79. See also, Illinois Commerce Commission v. United States, 292 U. S. 474, 483; Florida v. United States, 292 U. S. 1, 9; Georgia P. S. Commission v. United States, 283 U. S. 765, 774; Wisconsin R. Commission v. Chicago, B. & Q. R. Co., 257 U. S. 563, 588. Where the Commission seeks to deal generally with rates and revenues in a large area on evidence typical of the area as a whole, it may proceed by way of a general order supported by sufficient evidence applicable to the whole territory.16 At the same time it 16 In its report the Commission says “where, as is the case here, the intrastate and the interstate traffic, as a whole, moves under substantially similar conditions, and the expense of handling the two 276 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. is well for it to leave the way open, as it did here, for modifications of that general order in specific situations where the general order is not justly applicable. North Carolina v. United States, supra, at 518, 535. For these reasons, we conclude that the findings before us sustain the order of the Commission and that the Commission was authorized to give the weight it did to passenger deficits when prescribing intrastate freight rates. The judgment accordingly is Affirmed. Mr. Justice Black is of opinion that the facts found by the Commission were not adequate to support the order and would set aside the order on authority of North Carolina v. United States, 325 U. S. 507. Mr. Justice Douglas, with whom Mr. Chief Justice Vinson concurs, dissenting. The Court has taken an unprecedented and, in my view, an unwarranted step in enlarging the authority of the Interstate Commerce Commission. It upholds the power of the Commission to raise intrastate freight rates, not because they favor intrastate over interstate commerce, not because they fail to yield their fair share of the carriers’ revenue, but because the carriers’ interstate passenger operations are losing money. The power of Congress to regulate intrastate rates stems from its authority to promote and protect interstate commerce. See Shreveport Rate Case, 234 U. S. classes of traffic are inextricably woven together, an attempt to do the impossible, namely an attempt to show costs of intrastate service segregated from interstate costs, together with similarly segregated valuation of carrier property, would serve no useful purpose.” 278 I. C. C. at 66. KING v. UNITED STATES. 277 254 Douglas, J., dissenting. 342? By § 13 (4) of the Act, the Commission is empowered to regulate intrastate rates which are found to be discriminatory. The key to this regulatory authority is discrimination against interstate commerce, which presupposes that somehow or other the particular intrastate rates interfere with or prejudice interstate commerce. This principle is explicit in § 13 (4)2 and in the decisions of the Court, both before and after the enactment of § 13 (4).3 1 As Mr. Justice Hughes speaking for the Court in the Shreveport case said (234 U. S., p. 351): “Congress is empowered to regulate,— that is, to provide the law for the government of interstate commerce; to enact ‘all appropriate legislation’ for its ‘protection and advancement’ (The Daniel Ball, 10 Wall. 557, 564); to adopt measures ‘to promote its growth and insure its safety’ (County of Mobile v. Kimball, supra); ‘to foster, protect, control and restrain’ (Second Employers’ Liability Cases, supra). Its authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.” 2 The relevant portions of § 13 (4) read: “Whenever in any such investigation the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. . . .” 3 See Shreveport Rate Case, supra; American Express Co. v. South Dakota, 244 U. S. 617; Wisconsin Commission v. Chicago, B. & 278 OCTOBER TERM, 1952. Douglas, J., dissenting. 344 U. S. In this case there is no rational relation between intrastate freight rates and interstate passenger operations. The present level of freight rates in Florida neither hampers nor obstructs the free flow of interstate passenger transportation. They do not affect its quantity or flow. There is, therefore, no basis for a finding of discrimination against interstate commerce. The Commission, of course, is authorized to regulate intrastate rates so that intrastate operations will provide a fair share of the carriers’ revenue.4 See Wisconsin Commission v. Chicago, B. & Q. R. Co., 257 U. S. 563. But that authority rests on the Commission’s power to remove discrimination. If, for example, intrastate freight operations fail to produce an adequate return as determined by reference to the cost of the intrastate operations and the investment in the intrastate business, interstate commerce is discriminated against. But there is no such failure in this case. Intrastate freight operations in Florida are amply profitable and carry their fair share of the load. The Commission nevertheless has saddled the intrastate freight business with the deficits from the interstate passenger business. If there is any discrimination here, it is against the local Florida shipper. Q. R. Co., 257 U. S. 563; Florida v. United States, 282 U. S. 194; Georgia Commission n. United States, 283 U. S. 765; Louisiana Commission v. Texas & N. 0. R. Co., 284 U. S. 125; United States v. Louisiana, 290 U. S. 70; North Carolina v. United States, 325 U. S. 507. 4 Section 15a (2) of the Act reads in pertinent part: “In the exercise of its power to prescribe just and reasonable rates the Commission shall initiate, modify, establish or adjust such rates so that carriers as a whole . . . will, under honest, efficient and economical management and reasonable expenditures for maintenance of way, structures and equipment, earn an aggregate annual net railway operating income equal, as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation . . . .” KING v. UNITED STATES. 279 254 Douglas, J., dissenting. The Commission surmises but does not find that the intrastate passenger rates contribute to the passenger deficits of the carriers. But there is no showing that either the intrastate passenger rates or the intrastate freight rates do in fact contribute to these deficits. Moreover, even if we assume that intrastate passenger rates do contribute to the passenger deficits, we do not know the amount. The absence of these material findings (see North Carolina n. United States, 325 U. S. 507) indicates to me the short cut which the Commission is taking to enlarge its jurisdiction to unprecedented limits. 226612 0—53-----23 280 OCTOBER TERM, 1952. Syllabus. 344 U. S. STEELE et al. v. BULOVA WATCH CO., INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 38. Argued November 10, 1952.—Decided December 22, 1952. Under the Lanham Trade-Mark Act of 1946,15 U. S. C. § 1051 et seq., a federal district court has jurisdiction to award relief to an American corporation against acts of trade-mark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States who purchases parts here and some of whose products, sold abroad, enter this country where they may reflect adversely on the American corporation’s trade reputation. Pp. 281-289. (a) It is not material that the infringing trade-mark was affixed in a foreign country, or that the purchase of parts in this country, when viewed in isolation, did not violate any law of the United States. P. 287. (b) American Banana Co. n. United Fruit Co., 213 U. S. 347, distinguished. Pp. 288-289. (c) Where there can be no interference with the sovereignty of another nation, the district court, in exercising its equity powers, may command persons properly before it to cease or perform acts outside its territorial jurisdiction. P. 289. 194 F. 2d 567, affirmed. A Federal District Court dismissed a suit for injunctive and monetary relief brought by an American corporation against a citizen and resident of the United States for acts of trade-mark infringement and unfair competition consummated in Mexico. The Court of Appeals reversed. 194 F. 2d 567. This Court granted certiorari. 343 U. S. 962. Affirmed, p. 289. Wilbur L. Matthews argued the cause and filed a brief for petitioners. STEELE v. BULOVA WATCH CO. 281 280 Opinion of the Court. Marx Leva argued the cause for respondent. With him on the brief were Alexander B. Hawes, A. Lloyd Symington, Sanford H. Cohen, George Cohen, Isidor Ostroff and Maury Maverick. Mr. Justice Clark delivered the opinion of the Court. The issue is whether a United States District Court has jurisdiction to award relief to an American corporation against acts of trade-mark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States. Bulova Watch Company, Inc., a New York corporation, sued Steele,1 petitioner here, in the United States District Court for the Western District of Texas. The gist of its complaint charged that “Bulova,” a trade-mark properly registered under the laws of the United States, had long designated the watches produced and nationally advertised and sold by the Bulova Watch Company; and that petitioner, a United States citizen residing in San Antonio, Texas, conducted a watch business in Mexico City where, without Bulova’s authorization and with the purpose of deceiving the buying public, he stamped the name “Bulova” on watches there assembled and sold. Basing its prayer on these asserted violations of the trade-mark laws of the United States,2 Bulova requested injunctive and mone- 1 Joined as parties defendant were S. Steele y Cia., S. A., a Mexican corporation to whose rights Steele had succeeded, and Steele’s wife Sofia who possessed a community interest under Texas law. 2 While the record shows that plaintiff fully relied on his asserted cause of action “arising under” the Lanham Act, diversity of citizenship and the jurisdictional amount were also averred. As we are concerned solely with the District Court’s jurisdiction over the subject matter of this suit, we do not stop to consider the significance, if any, of those averments. Cf. Pecheur Lozenge Co. v. National Candy Co., 315 U. S. 666 (1942), decided prior to passage of the Lanham Act. See also note 6, infra. 282 OCTOBER TERM, 1952. Opinion of the Court. 344 U. S. tary relief. Personally served with process in San Antonio, petitioner answered by challenging the court’s jurisdiction over the subject matter of the suit and by interposing several defenses, including his due registration in Mexico of the mark “Bulova” and the pendency of Mexican legal proceedings thereon, to the merits of Bulova’s claim. The trial judge, having initially reserved disposition of the jurisdictional issue until a hearing on the merits, interrupted the presentation of evidence and dismissed the complaint “with prejudice,” on the ground that the court lacked jurisdiction over the cause. This decision rested on the court’s findings that petitioner had committed no illegal acts within the United States.3 With one judge dissenting, the Court of Appeals reversed; it held that the pleadings and evidence disclosed a cause of action within the reach of the Lanham Trade-Mark Act of 1946, 15 U. S. C. § 1051 et seq.4 The dissenting judge thought that “since the conduct complained of substantially related solely to acts done and trade carried on under full authority of Mexican law, and were confined to and affected only that Nation’s internal commerce, [the District Court] was without jurisdiction to enjoin such conduct.”5 We granted certiorari, 343 U. S. 962. Petitioner concedes, as he must, that Congress in prescribing standards of conduct for American citizens may project the impact of its laws beyond the territorial boundaries of the United States. Cf. Foley Bros., Inc. n. Filardo, 336 U. S. 281, 284-285 (1949); Blackmer n. United States, 284 U. S. 421, 436-437 (1932); Branch v. Federal Trade Commission, 141 F. 2d 31 (1944). Resolution of the jurisdictional issue in this case therefore de- 3 The District Court’s unreported findings of fact and conclusions of law, as amended, appear at R. 246-248. Cf. R. 232, 237. 4 194 F. 2d 567 (C. A. 5th Cir. 1952). 5 Id., at 573. STEELE v. BULOVA WATCH CO. 283 280 Opinion of the Court. pends on construction of exercised congressional power, not the limitations upon that power itself. And since we do not pass on the merits of Bulova’s claim, we need not now explore every facet of this complex6 and controversial 7 Act. The Lanham Act, on which Bulova posited its claims to relief, confers broad jurisdictional powers upon the courts of the United States. The statute’s expressed intent is “to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such comme[r]ce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trade-marks, trade names, and unfair competition entered 6 For able Court of Appeals discussions of the impact of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938) on the law prior and subsequent to the Lanham Act, see Dad’s Root Beer Co. n. Doc’s Beverages, Inc., 193 F. 2d 77 (C. A. 2d Cir. 1951);