UNITED STATES REPORTS
VOLUME 349
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1954
April 11 Through June 6, 1955 (End of Term)
WALTER WYATT
REPORTER OF DECISIONS
UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1955
For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $4.00 (Buckram)
JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS.
EARL WARREN, Chief Justice.
HUGO L. BLACK, Associate Justice. STANLEY REED, Associate Justice. FELIX FRANKFURTER, Associate Justice. WILLIAM O. DOUGLAS, Associate Justice. HAROLD H. BURTON, Associate Justice. TOM C. CLARK, Associate Justice. SHERMAN MINTON, Associate Justice. JOHN M. HARLAN, Associate Justice.
HERBERT BROWNELL, Jr., Attorney General.
SIMON E. SOBELOFF, Solicitor General.
HAROLD B. WILLEY, Clerk.
WALTER WYATT, Reporter of Decisions.
T. PERRY LIPPITT, Marshal.
HELEN NEWMAN, Librarian.
SUPREME COURT OF THE UNITED STATES.
Allotment of Justices.
It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, section 42, and that such allotment be entered of record, viz:
For the District of Columbia Circuit, Earl Warren, Chief Justice.
For the First Circuit, Felix Frankfurter, Associate Justice.
For the Second Circuit, John M. Harlan, Associate Justice.
For the Third Circuit, Harold H. Burton, Associate Justice.
For the Fourth Circuit, Earl Warren, Chief Justice.
For the Fifth Circuit, Hugo L. Black, Associate Justice.
For the Sixth Circuit, Stanley Reed, Associate Justice.
For the Seventh Circuit, Sherman Minton, Associate Justice.
For the Eighth Circuit, Tom C. Clark, Associate Justice.
For the Ninth Circuit, William 0. Douglas, Associate Justice.
For the Tenth Circuit, Tom C. Clark, Associate Justice.
April 4, 1955.
(For next previous allotment, see 347 U. S., p. v.)
DEATH OF OWEN J. ROBERTS.
Supreme Court of the United States.
MONDAY, MAY 2 3, 1955.
Present: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr. Justice Clark, Mr. Justice Minton, and Mr. Justice Harlan.
The Chief Justice announced the death, on May 17, 1955, of Owen J. Roberts, of Pennsylvania, a former Associate Justice of this Court.
Appointed by President Hoover, Mr. Justice Roberts took his seat June 2,1930 (281 U. S. m, n. 3), and resigned effective July 31, 1945 (326 U. S. iv, n. 1).
vn
PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES
In Wmorg of Wr. Chief Justice Finson1
MONDAY, OCTOBER 2 5, 195 4
Present: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr. Justice Clark, and Mr. Justice Minton.
Mr. Solicitor General Sobeloff addressed the Court as follows:
May it please the Court: This morning, at a meeting called for that purpose,2 members of the Bar of the Supreme Court adopted resolutions 3 expressing their profound sorrow at the death of Chief Justice Vinson. Addresses were made to the Bar by Judge John J. Parker of the United States Court of Appeals for the Fourth Circuit, Mr. Edward H. Foley, Jr., and Mr. Cody Fowler. The resolutions are as follows:
1 Mr. Chief Justice Vinson died in Washington, D. C., on September 8, 1953. Services were held at the Cathedral Church of Saint Peter and Saint Paul, in Washington, D. C., on September 10, 1953, and at the Louisa Methodist Church, in Louisa, Ky., on September 11, 1953. Interment was in Pine Hill Cemetery, at Louisa, Ky., on September 11, 1953. See 346 U. S. pp. iv, vn.
2 The Committee on Arrangements for the meeting of the Bar consisted of Solicitor General Simon E. Sobeloff, Chairman, Judge Walter M. Bastian, Mr. Joseph E. Davies, Mr. John Diederich, Mr. Cody Fowler, Mr. J. Howard McGrath, and Chief Judge John J. Parker.
3 The Committee on Resolutions consisted of Mr. Sam Rayburn, Chairman, Mr. Dean Acheson, Mr. Francis Biddle, Mr. James Craw-
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MR. CHIEF JUSTICE VINSON.
RESOLUTIONS
We of the Bar of the Supreme Court are met here to record our regret at the untimely death of Chief Justice Fred M. Vinson. He died suddenly on September 8, 1953, at the age of sixty-three, after seven years of service on the bench of the Supreme Court as the thirteenth Chief Justice of the United States—the culmination of a life of service to his country.
Fred M. Vinson was born in 1890 on the banks of the Big Sandy River in the little town of Louisa in Eastern Kentucky. His father was the town jailer, and the family living quarters were in the same building that housed the jail. The boy was thus born almost, if not actually, in the jail—a circumstance to which in later life he sometimes humorously referred. The Vinson family knew poverty. The boy, Fred, knew also the stimulus and opportunities of American life. As a youth, he was a prodigious reader and read all that the Louisa Library offered. In the public schools of Louisa and Catlettsburg he excelled in both scholarship and sports.
The family was determined that he should go to college, and he went first to Kentucky Normal College and then, in 1908, on to the study of law at Centre College, Danville, ford Biggs, Mr. William Marshall Bullitt, Mr. W. Cameron Burton, Mr. Clark M. Clifford, Mr. Thomas G. Corcoran, Mr. Homer S. Cummings, Mr. Walter J. Cummings, Jr., Mr. Evan T. Davis, Mr. John W. Davis, Judge Charles Fahy, Mr. David E. Feller, Mr. Edward H. Foley, Jr., Chief Justice D. Lawrence Groner (retired), Chief Judge Learned Hand (retired), Chief Judge Marvin Jones, Chief Judge Bolitha J. Laws, Mr. Wilbur R. Lester, Mr. Chesley Lycan, Chief Judge Albert B. Maris, Mr. William M. Martin, Judge Wilbur K. Miller, Mr. William D. Mitchell, Mr. Fred W. Morrison, Mr. William W. Oliver, Mr. James C. N. Paul, Mr. Willard H. Pedrick, Mr. George Wharton Pepper, Mr. Philip B. Perlman, Mr. Charles E. Pledger, Jr., Mr. Paul Porter, Mr. Karl R. Price, Mr. Murray Schwartz, Mr. Arthur R. Seder, Chief Judge Harold M. Stephens, Mr. John L. Sullivan, Mr. Howard J. Trienens, Mr. Joseph P. Tumulty, Jr., Mr. Simeon S. Willis, and Mr. Henry A. Wise.
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Kentucky. There his feats, academic and athletic, are legendary. A leader among his fellow students, he graduated as the top-ranking student in his class in 1909, won prizes in the Law School in 1910 and 1911, and emerged from the Law School in 1911 with the unique distinction of possessing the highest academic record in the history of the Law School. At the same time, he ranked as one of the outstanding college athletes of his day as shortstop and captain of the Centre baseball team for two years. It is more than rumor that he was tempted by a career in professional baseball. But he turned from this prospect to law and public service, never, however, losing his deep interest in the great American game. He was, in fact, a living encyclopedia of baseball learning and when in later life his responsibilities required decisions affecting this American institution he always approached them with special relish.
He entered the practice of the law in Louisa in 1911, and soon became City Attorney, an office then apparently more distinguished in its title than in its rewards. His varied practice in Louisa was interrupted during the First World War with a brief stint of military service ending in Officers Candidate School at the time of the Armistice.
As a lawyer and a Kentuckian he was naturally interested in politics. He was, moreover, singularly endowed for public service. His ability, integrity, fair-mindedness, and genial spirit won an ever-widening circle of friends and admirers. In 1921, he was elected Commonwealth’s Attorney for his district. In 1923, when thirty-three years of age, he ran for Congress in the old Ninth District of Kentucky and was elected. Save for the Democratic eclipse of 1928, when he established a law partnership in Ashland, he was re-elected with ever-increasing majorities until his resignation from Congress in 1938.
For fourteen years Fred M. Vinson served his country in the Congress of the United States, and distinguished service it was. In 1931, in recognition of his demonstrated ability, he was assigned to the critically important
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Ways and Means Committee of the House of Representatives where he soon became a key figure. In 1936, despite his lesser seniority, he was named as Chairman of the Special Subcommittee on Revenue Legislation of the House Ways and Means Committee. In all, seven revenue acts were passed while Fred Vinson wTas a member of the House Ways and Means Committee. Each reflected his handiwork. Many of the major features of our modern revenue system stem from his work. When the Revenue Bill of 1938, a wholesale revision of the revenue statute and predecessor of the Internal Revenue Code, was before the House, it was then known that he was leaving Congress for the bench of the Court of Appeals for the District of Columbia. The bill was passed almost without debate as a tribute to its guiding spirit and the time was given over instead to heartfelt tributes from both sides of the aisle to this man from Kentucky who had served his country so well.
But he was more than the Congressional tax expert, though there are easier subjects. His mastery of intricate revenue legislation, his fabulous facility with figures, his ability to translate the complex into the understandable and his talent for conciliation of divergent viewpoints combined to make him a key Congressional leader on such important measures as the Vinson-Guffey Coal Acts, the Social Security Act of 1935, the Fair Labor Standards Act, the National Labor Relations Act, and the reciprocal trade legislation. He was in fact one of the architects of the basic social and economic reform legislation of the Thirties. He believed in all rights guaranteed by the Constitution. He believed in the importance of all the “folks” and in the obligation of government to preserve for all the opportunity to live fruitful, useful, and happy lives. To this end, as a legislative leader, he devoted his talents and in so doing won the deep respect and the abiding friendship of adherents and opponents alike.
President Franklin D. Roosevelt in 1937 appointed him to a position on the bench of the Court of Appeals for the
MR. CHIEF JUSTICE VINSON.
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District of Columbia. Resigning from Congress after the passage of the Revenue Act of 1938, he took the oath of office as an Associate Justice of that Court on May 12, 1938. To the bench he brought experience as a lawyer in private practice, extraordinary legislative experience, the technical competence of a legal draftsman, and, most important of all, real understanding and wisdom. From bench and bar alike he won respect and recognition. His opinions on the variety of subjects coming before that court were notable for their good sense and clarity of expression.
With the advent of World War II and the institution by Congress of a system of price and rent controls, Chief Justice Stone of the Supreme Court was charged with the responsibility of designating a Federal Judge to serve as Chief Judge of the newly established Emergency Court of Appeals to review administrative rulings of the Office of Price Administration. In 1942, Fred M. Vinson was selected by Chief Justice Stone for this responsibility.
A year later, he was asked by President Roosevelt to become the Director of Economic Stabilization, to serve in effect as the President’s deputy to stabilize the civilian economy in support of the war effort. With his characteristic willingness to do the job that needed doing, he left the security of the federal judiciary to become, in the Executive Department, one of our great wartime civilian leaders—serving in a swift succession of positions of grave responsibility. No assignment was too demanding, no task was too hard for “Available Vinson” as he became affectionately known by the press. As Director of Economic Stabilization his was the duty, for twenty-one months, to fight the fires of inflation and thus help to sustain both the fighting front and home front. Resisting pressures for special dispensation with firmness, he “held the line” in the national interest.
Appointed by President Franklin D. Roosevelt to serve as Federal Loan Administrator in March of 1945, he held the post for one month. He was then named by the
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President as Director of War Mobilization and Reconversion, an office charged not only with continued mobilization of resources for war but also with formulating the basic plans for converting our economy from war to peace. Enlisting the cooperation of other federal agencies, he immediately entered upon that task and in three months basic policies and plans for that purpose were formulated.
In July 1945, President Truman appointed Fred M. Vinson as Secretary of the Treasury. The nomination received the enthusiastic approval of the Senate and for eleven months he served his country in that post. It was a period of acute responsibility for the Treasury Department. As Secretary, his tax recommendations eventuated in the first postwar legislation carrying out the policies that he had outlined while Director of War Mobilization and Reconversion. On the international front he represented this Nation in negotiating the British Loan and the Lend-Lease Settlements, and in inaugurating the International Bank for Reconstruction and the International Monetary Fund. With his keen perception, ready wit, and practiced skill at negotiation, he proved a most effective international representative for this Nation’s interest.
On June 6, 1946, his service as Secretary of Treasury was cut short, when President Harry Truman appointed him as Chief Justice of the United States. The Senate unanimously confirmed the nomination and on June 24, 1946, he took the oaths of office. For seven years until his death on September 8, 1953, Fred M. Vinson served as the thirteenth Chief Justice of the United States. That is not a long time as terms of the Chief Justices have run. But the years of his service as Chief Justice presented issues to the Court of transcendent importance to the Nation. Questions as to whether the equal protection of the laws extended to all races in all circumstances were presented in new and sharper focus. Congressional measures to thwart the conspiratorial apparatus of a foreign power were challenged as invasions of personal lib
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erty. The authority of the Chief Executive to act to protect the national interest in times of emergency was presented for judicial determination.
Such were some of the questions submitted to the Court while Chief Justice Vinson presided. Many of the Vinson opinions deal, not with such large issues, but with questions of lesser moment, technical and limited in scope, of interest to the profession and to few others. This was no accident. Charged with responsibility for opinion assignment, he was chary of reserving for himself the notable cases. He left his mark nonetheless. Shelley v. Kraemer, 334 U. S. 1, on racial restrictive covenants, Sweatt n. Painter, 339 U. S. 629, and McLaurin n. Oklahoma State Regents, 339 U. S. 637, on racial discrimination in higher education, all written for a unanimous Court, are landmarks in the struggle to bring to all the equal protection of the laws.
He was devoted to the cause of freedom and convinced at the same time that “the effective operation of government . . . is an essential precondition to the existence of all civil liberties.” In that conviction he wrote the opinions for the majority in American Communications Association v. Douds, 339 U. S. 382, and Dennis n. United States, 341 U. S. 494, sustaining the validity of Congressional enactments directed against the machinations of the Communist apparatus. The accommodation in a free society of personal liberty and security for the Nation will probably never be easy. It will certainly never be undertaken with a higher sense of dedication to the interest of the Nation and the liberty of its citizenry than Chief Justice Vinson brought to the task.
On occasion he dissented. Notable among his dissents was that in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 667, stating forcefully his own uncompromising conviction.
His dissenting opinions were not numerous. In a real sense, therefore, the judgments of the Court on the large
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issues decided during his period as Chief Justice were his own judgments as well. They were judgments accepted generally by the citizenry as fitting and wise. The Court has been strengthened as an institution of democratic government by the service of this Chief Justice who to the country* so well represented justice administered fairly, with wisdom and dignity.
Beyond this, to those who knew something of the operation of the Court, there was appreciation for his fair-minded administration of the day-to-day business, for his devotion to the work of the Judicial Conference and for his effective leadership in the improvement of the administration of justice.
This then is the record of some of the public service in a career of rare distinction. Congressman, judge, wartime administrator, Cabinet officer, Chief Justice of the United States, Fred Vinson graced every role.’ To each task he gave his best with genial spirit, confident of the promise of the future. His was the faith that problems made by man can all be solved, to use his language, with “patience, tolerance, and understanding.” Those are not common virtues. They were his in uncommon measure. A man of good will, friendly, approachable, genuinely interested in “folks,” he has left behind him friends literally without number.
His was a good life. From his family life with his devoted and gracious wife, Roberta Dixon Vinson, and their two sons, his strength was renewed for the long and continuous service demanded of him by his country. His family also shared in his sacrifice, for a life of public service leaves only a legacy of honor.
On the death of this statesman and jurist, President Dwight D. Eisenhower proclaimed a period of national mourning and in tribute said of Fred M. Vinson: “a man of exemplary character, he possessed great human understanding, appreciation of our national heritage, and a keen mind. He has filled positions of great responsibility in all three branches of government—legislative, administra
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tive, and judicial. In all of them he served with efficiency, dignity, and integrity. He was an outstanding citizen whose death was a loss to America.”
It is accordingly
Resolved, That we, the Bar of the Supreme Court of the United States, express our profound sorrow at the untimely death of Chief Justice Fred M. Vinson and our enduring appreciation for the contribution this great statesman and jurist has made to our profession and to our country:
It is further Resolved
That the Attorney General be asked to present these resolutions to the Court and to request that they be inscribed upon its permanent records and that copies of these resolutions be forwarded to the widow and sons of Chief Justice Vinson.
Mr. Attorney General Brownell addressed the Court as follows:
Eminent members of the legal profession have today paid just tribute to the memory of the late Chief Justice Vinson. The strength of his character, his friendliness and humility, and his devotion to the public service as legislator, as Circuit Judge, as administrator and Cabinet officer, and finally as Chief Justice of the United States are indelibly impressed on our hearts and minds.
The Nation first knew him for his fourteen years of service in Congress. His warm personality, his folksy way of weaving homespun philosophy, his capacity for making friends and above all his integrity, combined to win over his adversaries in Congress to many social and economic reforms which he supported.
In 1937, he was offered a judgeship on the Court of Appeals for the District of Columbia. Reluctantly he decided to abandon his legislative career to assume judicial duties. In his later years he often reminisced, with obvious relish, about his Congressional career.
340907 0-55-2
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In his new judicial post, he served with distinction. His colleagues on the Court of Appeals, Judges Groner, Stephens, Rutledge, and others, were his good friends and held him in highest regard and affection.
He was a stickler for the facts and studied each record with great care. Lacking pretense and despising sham, he would not hesitate to pierce the armor of any attorney who dared advance an untenable argument or one not based on the record. Yet, he was also so considerate, gentle, and courteous, that the inexperienced and uninitiated lawyer was promptly set at ease in his presence. Off the bench, in meeting a young attorney, the “Chief” did not permit the occasion to pass without offering a kind word of encouragement.
If one quality stood out in him above others, it was his complete devotion to duty. When the country called upon him to render service to it, he responded without the slightest hesitation or thought of personal sacrifice. The circumstances surrounding his resignation from the Court of Appeals testify to the high sense of duty which actuated him.
One day while he was a member of the Court of Appeals and talking to a brother judge in his office, the phone rang. It was the President. Would he resign to accept the wartime job of Economic Stabilizer? The immediate answer was, “Yes, sir, if you think I can be of help.” There was no indecision, no thought about personal considerations ; there were no expressed regrets about assuming one of the most controversial positions in Government.
As Director of Economic Stabilization from 1943 to 1945, he was called upon to administer a most difficult assignment. It was his job to direct and implement a policy of holding the line against increases in ceilings on prices and wages. That he was successful in achieving this aim during a highly inflationary war period is a tribute to his tact and courage in the face of great pressures from every source.
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In 1945, he was appointed Federal Loan Administrator. Shortly thereafter, he was appointed Director of War Mobilization and Reconversion, and in the same year was made Secretary of the Treasury. This was his last executive post. In 1946, President Truman appointed him as the thirteenth Chief Justice of the United States. It was this great office which crowned his life work as a public servant. He held it until his untimely death in 1953.
The “Chief” cannot, among his friends and associates here today, be remembered merely in terms of the opinions rendered by him while on the Supreme Court. He was full of wordly wisdom, dignity, and humility.
The “Chief” brought to his high office a very rare quality—a keen and sympathetic understanding of people and their proper place in an orderly society. He came with a great breadth of legislative and executive experience. In the give and take of political life, he had learned to appraise men for what they were. He brought to the Court and to the conference table the practical viewpoint of the country lawyer. This seventh sense served him well in judging the conflicts that frequently arise in the course of human affairs and in the clash between the rights of the individual and those of government. His moderating influence was a decisive factor in mellowing deliberations and maintaining the prestige of the Court.
His opinions were marked by clarity and comprehension. He hated abstractions. As Judge Learned Hand once said of Mr. Justice Cardozo, so, too, Fred Vinson “never disguised the difficulties, as lazy judges do who win the game by sweeping all the chessmen off the table . . . .” You might disagree with him but there was no mistaking where he stood.
The “Chief” was a person of deep conviction and sturdy independence. Yet he realized only too well that there is no conclusive solution for many of the problems presented in the law. This knowledge and tolerance gave
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him the capacity of differing with his associates without rancor or ill-will.
As he revered the high traditions of the law and our system of justice, so he abhorred the slightest transgression in the courts of the legal rights of even the worst offenders. Though concerned about maintaining a secure and orderly government, the “Chief” was zealous in the protection of the individual citizen from arbitrary or capricious action by government officials. He condemned bail set at amounts the accused could not raise, even though the defendants were Communists whom he loathed. To him the equal protection of the laws was not merely an empty slogan. His decisions in the racial restrictive covenant cases and in the cases involving racial discrimination in higher education were a major contribution to the thinking and conclusion of the Court in its recent decision declaring segregation in the public schools to be unconstitutional.
He spoke for the Court in upholding the validity of the Smith Act by which Communist leaders could be imprisoned for conspiring to overthrow the Government by force and violence. He joined in sustaining contempt convictions of Communist lawyers who by conduct unbecoming their high profession tried to bring our courts into disrepute. And he struck out against irresponsible union action in the mine fields which would have paralyzed our country in a period of a war emergency. He was not only a distinguished legislator, an able executive, and a noted jurist but he was in every way an exemplary citizen, completely devoted to his gracious wife and two fine sons.
It was the country’s good fortune that brought a man of such character, attainment, and integrity into public office. It was the country’s great loss when he was taken from it.
May it please this Honorable Court: In the name of the lawyers of this Nation, and particularly of the Bar of this Court, I respectfully request that the resolution presented
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to you in memory of the late Chief Justice Fred M. Vinson be accepted by you, and that it, together with the chronicle of these proceedings, be ordered kept for all time in the records of this Court.
The Chief Justice said:
Mr. Attorney General: The Court receives with great sensibility the resolutions of the Bar paying respect to the memory of the late Chief Justice Fred M. Vinson. In this tribute, we affectionately join. It is an eloquent expression of the sentiments common to all Americans, for the simple virtues and public services of this great Chief Justice are deeply inscribed in the hearts of all of us.
Eminent lawyer, legislator, administrator, statesman, jurist and, above all, great humanitarian, his life is an expression of the truth of the Biblical admonition, “Neither do men light a candle and put it under a bushel, but on a candlestick; and it giveth light unto all that are in the house.” (Matthew 5:15.) His light glowed so brightly in all the positions that he held with such distinction that, even before coming to the Chief Justiceship, he had devoted practically all of his mature years to rendering valuable service for his country.
Few men have been so well qualified by experience, intellect and personality to meet the exacting responsibilities of this position. While it was not my privilege to serve with him here, as did my brothers, I knew him well enough to realize that, although he rose from humble beginnings to the highest offices in all three Branches of our Government, he never lost his understanding of people—that common touch and good judgment so essential in one who attains such heights.
Chief Justice Vinson served here but seven years, a short span in the history of this Court. But as the 13th Chief Justice of the United States, he forged a strong link in the chain of constitutional interpretation. His varied
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background had given him tools which enabled him to perform his work with precision and dispatch. He came to the Court from the high office of Secretary of the Treasury, where he had served with distinction in the field of domestic and international finance. Prior to that, he filled the positions of Director of Economic Stabilization, Federal Loan Administrator, and Director of Mobilization and Reconversion. For the five years preceding his entry into the Executive Branch of the Government, he had been a judge on the United States Court of Appeals for the District of Columbia, where in this short period he had written over one hundred opinions, excluding those handed down as Chief Judge of the Emergency Court of Appeals. In those courts, as here, he carried more than his full share of the work. Before being appointed to the Court of Appeals, he represented his native state in the Congress of the United States for more than ten years.
Hence, he came to the Chief Justiceship with the prestige and experience of honorable service in the Legislative, Executive and Judicial Branches of the Government—a unique distinction. This long dedication to the public service gave Chief Justice Vinson a comprehension of the difficult problems of the day that led not only to the writing of memorable decisions affecting almost every phase of American life but also brought to the judicial system an administrator of unfailing judgment.
To understand fully the import of his decisions one must remember that his tenure as Chief Justice covered crucial years in our history. Coming to this office soon after our country had emerged victorious from World War II, he witnessed the enormous tensions of the cold war. The problems arising out of this conflict affected the very life of the Government and at the same time threatened individual freedoms. It was the task of this Court to reconcile the two, enabling the Government to insure the survival of our way of life without infringing upon individual liberties.
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His thought always was for country and he thus expressed it: “In our complex society, there is a great variety of limited loyalties, but the overriding loyalty of all is to our country.” The causes he participated in were and still are controversial decisions. But all admire the legal craftsmanship exhibited in his handling of the delicate problems involved, the sincerity of the conclusions reached, and the strong moral overtones clearly expressing the philosophy of the Chief Justice that one’s first and unswerving duty is to his country.
Chief Justice Vinson believed in the supreme worth of the individual, and he demanded equality before the law for all persons regardless of race. With characteristic fervor, he wrote: “Whatever else the framers [of the Constitution] sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color.”
Because of his great interest in tax problems, which originated during his service on the Committee on Ways and Means of the House of Representatives, the Chief Justice played a major role in the tax litigation before this Court. His expert knowledge enabled him to solve the intricate problems in this field with such clarity that his opinions gained universal acceptance.
In appraising Chief Justice Vinson’s judicial work, we must not limit our consideration to cases before the Court. His juristic achievement extended as well to judicial administration in which he excelled. Under his guidance, the Judicial Conference of the United States became an increasingly potent force in the effective operation of the federal judicial system. His responsibility in this field weighed heavily upon him. He devoted much time and energy to its performance. As a result, the Conference has become an important instrumentality in the
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judicial service, according with the intentions of those who had so much to do with its creation and inception— Chief Justices Taft, Hughes and Stone.
Moreover, Chief Justice Vinson firmly believed that “justice delayed” often means “justice denied.” In the performance of his administrative duties on the Court, he made sure that this Court kept abreast of its cases and that the long delays in the lower federal courts were eliminated as soon as possible.
But such tangible and recorded achievements of the late Chief Justice were but one side of his busy life. His was a winning personality, a warm Southern heart which, combined with marked ability, made of him a gracious and trusted leader. But he was also a great mediator, and he could interplay these normally inconsistent roles with limitless tact and great personal warmth. Certainly he was “one who could disagree without being disagreeable.” His persuasive powers were strengthened by a phenomenal memory not only of events but of figures. With the wink of an eye he could tell you the batting average of almost any player in the big leagues or the number of completed passes in any prominent football game. Likewise he remembered what had transpired at a conference long before or the content of an unreported argument in the Courtroom.
Chief Justice Vinson was a kindly and humble man who loved his fellow man. There was no austerity in his being. Yet he possessed a quiet natural dignity that inspired respect and admiration, whether he was here on the Bench or in the stands witnessing an athletic contest.
His selfless nature and devotion to country are illustrated by his resignation from the Court of Appeals, at the request of the President, to accept the position of Director of Economic Stabilization, where he was in charge of the economic phases of the war effort. In tribute to this patriotic action, a group of some fifteen local lawyers organized the Vinson Club. Later its lim-
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ited membership was enlarged to fifty. The sole function of the group was to meet at dinner each time he received a new honor as he advanced in the service of his Government. After having met four times in celebration of such an occasion in the short space of two years, the group had its crowning fulfillment when in 1946 Secretary Vinson became the Chief Justice. Thereafter, during his lifetime the Vinson Club met once each year at dinner to honor him. Now they meet to keep bright his memory.
Although Chief Justice Vinson’s judicial career was cut short early in life, his was a long service to his country and its people. Though he is no longer with us, so long as this building is dedicated to the administration of justice, there shall be preserved here the best record of his service. Those who seek for his monument need only look here where are recorded the accomplishments of his high judicial station. We are grateful for the life of this brother who met every responsibility with integrity and complete fidelity. May he rest in peace.
Let the Resolutions be spread upon the minutes of this Court.
PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES
5n Mmorg of Wr. Justice Jackson1
MONDAY, APRIL 4, 1955
Present: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr. Justice Clark, Mr. Justice Minton, and Mr. Justice Harlan.
Mr. Solicitor General Sobeloff addressed the Court as follows:
May it please the Court: This morning, in the Conference Room, there was a meeting of the Bar of the Supreme Court in honor of the memory of Mr. Justice Jackson.2 The meeting was addressed by Mr. John Lord O’Brian, Mr. Gordon Dean, and Professor Paul Freund. Resolutions read by Mr. Sidney Aiderman, Chairman of the Committee, were adopted.3 With your permission I will read the Resolutions.
1 Mr. Justice Jackson died in Washington, D. C., on October 8, 1954. See 348 U. S. vn. Services were held at the Cathedral Church of Saint Peter and Saint Paul, in Washington, D. C., on October 12, 1954, and at St. Luke’s Protestant Episcopal Church in Jamestown, N. Y., on October 13, 1954. Interment was in Maple Grove Cemetery at Frewsburg, N. Y., on October 13, 1954.
2 The Committee on Arrangements for the meeting of the Bar consisted of Solicitor General Simon E. Sobeloff, Chairman, Mr. Dean Acheson, Mr. Thomas E. Dewey, Mr. Marion H. Fisher, Chief Judge Edmund H. Lewis, Mr. John Lord O’Brian, and Judge E. Barrett Prettyman, Sr.
3 The Committee on Resolutions consisted of Mr. Sidney S. Aiderman, Chairman, Mr. Thurmond Arnold, Mr. James V. Bennett, Mr. Francis Biddle, Mr. William Marshall Bullitt, Mr. Edward B. Burling,
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MR. JUSTICE JACKSON.
RESOLUTIONS
Associate Justice Robert Houghwout Jackson died suddenly of a heart attack on Saturday, October 9, 1954, at the age of sixty two and at the height of his brilliant judicial career. On the convening of the Court on Monday, October 11, Mr. Chief Justice Warren made the following statement:
“One short week ago this Court convened for its 164th Term, its membership intact and cheerfully anticipating the work before us. Today the chair of our Brother Jack-son is vacant, and we are sad indeed. He passed away last Saturday suddenly but by the Grace of God without suffering. For this we are all grateful, because he lived and died as was his great desire—active and useful to the end.
“Able lawyer, statesman and jurist, his passing leaves a great void in this Court. We shall miss greatly his wise counsel, his clarity of expression and his genial companionship.
“For 20 years, as General Counsel, as Solicitor General, as Attorney General of the United States, and as a member
Mr. Charles C. Burlingham, Mr. Howard C. Buschman, Jr., Mr. James F. Byrnes, Mr. Ernest Cawcroft, Mr. Benjamin V. Cohen, Mr. Alan Y. Cole, Mr. John F. Costelloe, Mr. G. Bowdoin Craighill, Sr., Mr. Donald Cronson, Mr. Homer S. Cummings, Mr. Walter J. Cummings, Jr., Mr. John F. Cushman, Mr. John W. Davis, Mr. Gordon Dean, Mr. Thomas J. Dodd, Mr. Allen W. Dulles, Mr. Newell W. Ellison, Judge Charles Fahy, Professor Paul Freund, Mr. Harold J. Gallagher, Mr. Murray Gartner, Mr. Robert J. Gill, Mr. Tappan Gregory, Judge Philip Halpern, Judge Learned Hand, Mr. Charles A. Horsky, Mr. Benjamin Kaplan, Mr. Arthur H. Kent, Mr. Allen T. Klots, Mr. Monte M. Lemann, Mr. William P. MacCracken, Jr., Mr. J. Howard McGrath, Mr. Henry S. Manley, Mr. James M. Marsh, Mr. William D. Mitchell, Mr. Phil C. Neal, Mr. C. George Niebank, Jr., Chief Judge John J. Parker, Mr. George Wharton Pepper, Mr. Philip B. Perlman, Mr. Herman Phleger, Mr. E. Barrett Prettyman, Jr., Mr. William H. Rehnquist, Mr. Samuel I. Rosenman, Mr. Whitney North Seymour, Mr. Francis M. Shea, Mr. Robert G. Storey, Mr. Telford Taylor, Mr. Harrison Tweed, Mr. Herbert Wechsler, and Mr. William Dwight Whitney.
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of this Court, he labored manfully with the complex and baffling problems of our time. His contributions were great. He has earned his rest.
“Funeral services will be held tomorrow afternoon at three o’clock at the Washington Cathedral, this city. His body will then be taken tenderly to Jamestown, New York, the little city of his youth, where, in pleasant and familiar surroundings, it will abide in peace among his earliest friends.
“In respect to his memory, this Court will now adjourn until Thursday, October 14, 1954, at twelve noon.”
The Chief Justice, all the Associate Justices, and the Clerk and the Marshal of the Court accompanied the remains, along with the family and the office staff of Mr. Justice Jackson, to Jamestown, New York, and the members of the Court acted as honorary pallbearers at the funeral services at Jamestown and at the interment at Frewsburg.
Justice Jackson had suffered a previous attack in the spring of 1954 and had spent several weeks in a hospital in Washington and recuperating at his beautiful home, Hickory Hill, at McLean, Virginia. His doctors gave him the choice between years of comparative inactivity or a continuation of his normal activity at the risk of death at any time. With characteristic fortitude he chose the second alternative. He returned to his work on the Court, sat at the session of May 17, 1954, and joined in the unanimous opinion of that date in the school segregation cases. After a restful summer vacation at his home, at the Bohemian Grove in California and on a fishing trip in Canada, he returned for the present term of the Court and sat at its opening session on Monday, October 4.
The members of the Bar of the Supreme Court are met today to honor his memory and to record their estimate of the man, of the lawyer, of the judge, and of the statesman.
He was a self-educated and self-made man in the Lincoln tradition and his life will ever be an inspiration
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to young men of our time who, all too often, tend to feel that ours may be no longer a land of opportunity.
He was born at Spring Creek, Warren County, Pennsylvania, on February 13, 1892, the son of William Eldred and Angelina Houghwout Jackson. His father, a lumberman, farmer and stock breeder, was a stubborn Scotsman who wanted his son to be a doctor and refused to assist him in obtainingba legal education. He died when the son was a young man. His mother, a woman of strength and fortitude, with the best characteristics of her Dutch ancestry, had a profound influence on her son’s life and character. She died shortly after he became Associate Justice. He was the only son and is survived by two devoted sisters, Mrs. Helen J. Adams and Mrs. Ella M Springer, both of Frewsburg, New York.
When Robert H. Jackson was five years old, the family moved across the state line to Frewsburg, Chautauqua County, New York, a small village some five miles south of Jamestown. There he attended grade and grammar school. In 1910 he graduated from Jamestown High School. He never attended college, but immediately entered the office of Frank H. Mott, an able young lawyer and like Jackson a Democrat, to study law. He attended Albany Law School for one year and then resumed his studies in Mr. Mott’s law office. He passed the New York bar examinations and was admitted to practice on November 24, 1913, at the age of twenty-one, when he would normally have been graduating from college. He always retained the view that the old system of studying in a law office provided one of the best schools for a legal education.
Years later, in his thoughtful address on “Training the Trial Lawyer” 4 delivered at the dedication of The Stanford University School of Law, he made witty reference to his own law education, saying:
“Considerations of an autobiographical nature would make it immodest for me to suggest what a law school
4 3 Stanford Law Review 48, 50.
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should teach and how best to teach it. I am a vestigial remnant of the system which permitted one to come to the bar by way of apprenticeship in a law office. Except for one term at law school, I availed myself of that method of preparation which already was causing uneasiness—to which feeling I must have added, for the system was almost immediately abolished. You may be comforted to realize that I am the last relic of that method likely to find a niche on the Supreme Court.”
He was always an omnivorous reader. He devoured everything he could lay his hands on in history, biography, philosophy, the law and the classics of literature, so that he became an extraordinarily well-read man. He was a lifelong student of the Bible, an Episcopalian and a thirty-third-degree Mason. He was a deeply religious man but was bound to no orthodoxy.
His farm boyhood taught him the strength and solace that comes from nature and the out-of-doors life. He was an ardent horseman, fisherman, camper, hiker; best of all, he loved a morning canter or a summer camping trip with his daughter, Mary. In these recreations he found release from the turmoil and contentions of an active professional life, although it is said he sometimes argued his cases on horseback.
Standing and reputation came to him rapidly in that greatest school for trial advocates, the general, country and small-town practice. He was early made Corporation Counsel of Jamestown. Like Lincoln he was a railroad trial lawyer and represented a typical clientele of corporations, large and small, and of individuals, rich and poor. He was vice president and general counsel of a short-line railroad and of two traction companies and was director and general counsel of a local bank and of the local telephone company.
He practiced alone until 1919, when he became junior member of the firm of Dean, Edson & Jackson. In 1923 he formed a partnership with Henry S. Manley and Gerald A. Herrick under the firm name of Jackson, Manley
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& Herrick. The firm became Jackson, Herrick, Durkin & Leet in 1927 and continued until 1933. It was during this period that Robert Jackson developed a social philosophy emphasizing the rights of the individual, of the underprivileged, of small business, and opposing monoply and oppression in all their forms.
Talents such as he possessed made it inevitable that he should quickly achieve recognition beyond his local community and county. He was one of the leading spirits in the organization of the Federation of Bar Associations of Western New York and was its President from 1928 to 1930. In 1933 he was elected Chairman of the National Conference of Bar Association Delegates, then a section of the American Bar Association. In that position he came into contact with lawyers from all over the Nation and his national reputation began to grow.
He never sought a career in public life, and, when such a career was pressed upon him, he entered upon it with great reluctance. He prided himself on being a countryman and a country lawyer. 'He wanted to accumulate a modest competency and to live the life of a country squire. He refused all offers to join Buffalo and New York law firms. But, as a Democrat of prominence, in a county in which Democrats were a distinct minority, he attracted the attention of Governor Franklin D. Roosevelt. In 1930, on the nomination of the President of the New York State Bar Association, he was appointed to serve on a special commission created by the legislature of New York to investigate the administration of justice in that State. Three years later Governor Herbert H. Lehman named him director of the New York Scrip Corporation, organized to handle negotiable scrip which the legislature had authorized State banks to issue as an emergency in the current financial stringency.
When the Democrats took over the national administration under President Roosevelt, this up-state country lawyer and Democrat was promptly urged to come to Washington. His reluctance was overcome and early in
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1934 he accepted appointment as General Counsel of the Bureau of Internal Revenue, Treasury Department. While in that office he conducted important tax litigation with ability and was specially designated as counsel for the Securities and Exchange Commission in the litigation which tested and sustained the constitutionality of the Public Utility Holding Company Act of 1935. In 1936 he was appointed Assistant Attorney General in charge of the Tax Division, Department of Justice, and was later placed in charge of the Antitrust Division.
As Assistant Attorney General he was one of President Franklin D. Roosevelt’s ablest advocates in supporting the Bill to Reorganize the Judicial Branch of the Government, in 1937. His interesting book, The Struggle for Judicial Supremacy, shows that he was attracted by the ultimate purposes of that plan rather than by the method proposed.
On March 4, 1938, President Roosevelt made him Solicitor General of the United States, upon the appointment of Stanley F. Reed to the Supreme Court. As Solicitor General, his ability to understand and expound issues, no matter how ramified or complex, together with his surpassing skill in oral argument, won the admiration of the Court and of his brothers at the bar. It was a position which he enjoyed perhaps more than any other he ever held.
On January 4, 1940, he was appointed by President Roosevelt as Attorney General, to succeed Frank Murphy, after the latter’s appointment to the Court. His work in that office was concerned principally with questions arising out of World War II. President Roosevelt’s executive agreement with Great Britain, exchanging fifty over-age destroyers for naval and air bases in the British possessions in the Western Hemisphere, was negotiated on his advice as Attorney General. The international law aspects of this transaction, as well as the legal basis for “Aid to Britain” and the rights of the United States as a nonbelligerent, were clearly and powerfully set forth in his
340907 0-55-3
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address at the Havana meeting of the Inter-American Bar Association, in which he took the position for the United States that the war of aggression waged by Germany was in violation of American treaty rights and that the doctrines of international law did not oblige the United States to remain indifferently neutral but authorized aid to those resisting aggression.
During all this time the future Justice had been completing his self-education, building himself upon himself, preparing for a greater career. His foundations were native ability, general reading, sound common sense, and long and successful experience as a trial and appellate court advocate.
When on June 12, 1941, he was nominated Associate Justice by President Roosevelt, his nomination was promptly confirmed on July 7 by the Senate. Four days later he was commissioned and took the oath of office. He took his seat on the Court on October 6, 1941, filling the vacancy caused by the elevation of Associate Justice Harlan Fiske Stone to be Chief Justice of the United States. During the thirteen years of his judicial tenure he was absent from the Court for over a year and a half on the historic Nuremberg war crimes mission. Thus his active service on the Court comprised less than eleven and a half years, but in that period he made a contribution to our federal jurisprudence seldom excelled in the history of the Republic.
He wrote a total of 318 opinions. Of these, 151 were opinions for the Court, 42 were concurring opinions, and 125 were dissents, although a few of his opinions which we have classified as for the Court were concurred in by less than an actual majority but announced the judgment of the Court.
With little formal education, he developed a literary style wholly different from the styles of Holmes, Cardozo, and other great stylists who have adorned the Court. He was as much given to aphorism as Holmes but was much less cryptic. One never had to labor over his pungent
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phrases to discover a hidden meaning. He would simply state, “Chaos serves no social end.” 5 Or, speaking of the Court, he would dryly remark, “We are not final because we are infallible, but we are infallible only because we are final.”6 Or he would tersely state, “Environment illuminates the meaning of acts, as context does that of words.” 7
He wrote with a trenchant, concrete, Saxon style of great beauty and vigor, nurtured chiefly on the King James version of the Bible and on Shakespeare. He contributed to the literature of the Court elements of freshness, clarity, and originality that will never be forgotten.
A slightly skeptical strain in his thinking, his devotion to freedom of the individual and particularly to freedom of thought and belief, and the charm of his style, are all well illustrated by the following from his separate dissent in United States v. Ballard:8 “All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop’s fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. ... I would dismiss the indictment and have done with this business of judicially examining other people’s faiths.”
He had a faculty for stripping away nonessentials and laying bare the heart of a controversy. An effective advocate before he came to the bench, he became and remained a lawyer’s judge. He exposed fallacies in argu
5 State Tax Comm’n v. Aldrich, 316 U. S. 174, 185, at 196.
6 Brown v. Allen, 344 U. S. 443, 532, at 540.
7 Cramer v. United States, 325 U. S. 1, 33.
8 322 U. S. 78,92, at 94, 95.
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ment relentlessly but with unfailing courtesy and good humor. He admired and enjoyed good advocacy. His expressive face was quick to show appreciation of a professional job well done.
He made many contributions to legal literature and to the work of bar associations. He wrote many important law review articles, and all over the United States and in Canada, England, and France he delivered memorable addresses on legal subjects. In 1954 the New York bar awarded him its gold medal for distinguished service to the law and to the legal profession. For a year and a half before his death he served diligently as chairman of the special committee set up by the American Bar Association to conduct a comprehensive study of criminal law and procedure in the United States. On November 2, 1953, he delivered an address at the laying of the cornerstone of the American Bar Center at Chicago, eloquently attesting his devotion to the law as a science and as a learned profession. In the title and in the text of that address he used an expression which has been carved over the portal of the Center, calling it “A Cathedral to testify to our faith in the rule of law.”
Friendliness was one of his outstanding characteristics. It is safe to say that no member of the Court in our history has had a wider circle of intimate and devoted friends among lawyers and jurists all over the world. He liked to be called “Bob” and usually signed his personal letters that way. Although he had great zest for his work as a member of the Court, he often chafed under the cloistered isolation of the judicial position and always loved to come into intimate and social contact with kindred spirits. His charm of personality, his engaging humor, his conversational and anecdotic gifts, and his frank and forthright manner of expression endeared him to all. But, deeper than all this, he had a faculty of inspiring loyalty in friends, in associates, and particularly in subordinates, that goes only with great personality.
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He was a prodigious and indefatigable worker. His opinion for the Court in Morissette v. United States9 is a good example. Although the case dealt with a narrow and technical question as to when a claim of right constitutes a defense to a charge of criminal conversion of property, Justice Jackson wrote an opinion of twenty-nine pages, coming to grips with the entire vexing problem of the intent and culpability intrinsic to a charge of crime and bringing extraordinary research and erudition to the service of deep moral insight.
He wrote the opinion for the Court in Board of Education v. Barnette,10 overruling the contrary decision in Minersville District v. Gobitis11 and holding that the action of a State making it compulsory for school children to salute the Flag and to take the oath of allegiance violates the First and Fourteenth Amendments. In that opinion he said:
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” 12
And, after a close analysis of the reasoning in the Gobitis case, he said:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 13
9 342 U. S. 246.
10 319 U. S. 624.
11 310 U. S. 586.
12 319 U. S. 624, 638.
13 319 U. S. 624, 642.
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His separate opinion, “concurring and dissenting, each in part,” in Communications Assn. v. Douds,14 gives perhaps the best summary of his attitude towards freedom of thought and speech. He said:
“Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to re-examine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate’s complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tryanny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.”
Justice Jackson had personal and professional courage of the highest degree. All knew exactly where he stood. On occasion he could confess his own previous error. In McGrath n. Kristensen,15 he differed with his own opinion as Attorney General and refused to be bound by it. In his concurring opinion, among other illustrations of graceful and good-natured surrendering of former views to a better-considered position, he invoked, as applicable to his situation, Mr. Justice Story’s statement, “My own error, however, can furnish no ground for its being adopted
14 339 U. S. 382, 422, at 442-443.
15 340 U. S. 162, 176, at 178.
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by this Court . . .” and Lord Westbury’s statement, “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.” He was one of the few Supreme Court Justices in our history to take leave of absence from his judicial position in order to perform for the United States an international mission. President Truman, on May 2, 1945, six days before Germany’s surrender, appointed him by executive order, “as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.”
This was a draft to service which Justice Jackson accepted as a patriotic duty. It was a tremendous organizational problem, an outstanding diplomatic responsibility, with the duty of preparing and prosecuting a criminal trial unprecedented in history. If ever a man literally gave his heart to the service of his country, Justice Jackson gave his in that mission.
He conducted the four-power negotiations in London with Great Britain, the Provisional Government of France, and the Soviet Union, resulting in the Agreement and Charter of August 8, 1945, denouncing the plotting and waging of aggressive war as an international crime and setting up the International Military Tribunal. He directed for the United States the negotiations for the drafting of the indictment filed with the Tribunal. He largely directed the combing of the war-torn European Theater for the evidence and he took the leading part in the trial.
This is neither the time nor the place to attempt a summary or evaluation of the Nuremberg trial or of its place in history. Suffice it here to say that it made Justice Robert H. Jackson a world figure. His opening statement and his final summation to the Tribunal will
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take high place in any history of forensic eloquence of the twentieth century. His handling of the difficult international negotiations was in the best tradition of American diplomacy.
His introduction to a recent book on the Nuremberg trial,16 just off the press a few weeks before he died, was one of his last published writings and contains his estimate of Nuremberg in retrospect. In it he gave his own answers to the criticisms which have been directed against that proceeding. He ended it with his personal, ultimate conclusion, “that the hard months at Nuremberg were well spent in the most important, enduring, and constructive work of my life.”
Mr. Justice Jackson returned from Nuremberg covered with honors from European countries. He was the guest of the Government of Czechoslovakia in Prague, before the iron curtain closed around that brave little country. He was the guest of the Austrian Government in Vienna. He was twice received for lengthy audiences by Pope Pius XII. In April 1946, he addressed the French magistrates and lawyers in Paris, on which occasion the Order of Advocates bestowed on him the medal which had been struck off in 1934 for the leader of the French bar, former President Raymond Poincare, who had died before he could receive it. The magistrates of France also awarded him a special medal. He was installed as an Honorary Bencher of the Honourable Society of the Middle Temple of London. The Cour de Cassation of Belgium, in solemn session, gave him its second reception to an American citizen, the only other having been to Ambassador Brand Whitlock. The University of Brussels conferred on him the degree of Doctor of Laws, and the Prince Regent gave him a state luncheon honoring his contribution to international law. He was received and honored as guest of the Governments of Norway, Denmark, and Sweden.
16 Tyranny on Trial, by Whitney R. Harris, Southern Methodist University Press, Dallas, 1954.
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In this country degrees were showered upon him by colleges and universities all over our land. President Truman awarded him the Medal for Merit. He received another degree of Doctor of Laws from the Ambassador of Poland, on behalf of the University of Warsaw. The country lawyer who had no college or law degree ended with perhaps as many honorary degrees as were ever received by any member of the Supreme Court.
It should be recorded that when he assumed the judicial robe he ceased to be a partisan and a representative of a particular school of political philosophy. His devotion was to the law. He believed in the law and in that element of stability embodied in the doctrine of stare decisis. He was no hidebound follower of precedent and said in one opinion,17 “Of course, it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it”—yet in another, concerned at the Court’s readiness to overturn its own precedents, he tartly remarked,18 “But I know of no way that we can have equal justice under law except we have some law.”
His opinions show a deep concern over the difficult problem of accommodating the sometimes conflicting purposes of maintaining freedom of the individual and, at the same time, a stable order of society under the reign of a rule of law. But he was generally on the side of full application of the Bill of Rights until he was convinced that the rule of law was seriously threatened.
It is not easy to fit his thinking on the Constitution and the law into labeled categories. He had written the Godkin Lectures, which he was to have delivered at Harvard University this year. They will soon be published and will set forth his principal views in his own language.
His basic political philosophy was one of moderation in the conduct of public affairs. His standards of public service and his fundamental ideas on the Constitution and
17 United States v. Bryan, 339 U. S. 323, 343, at 346.
18 Brown v. Allen, 344 U. S. 443, 532, at 546.
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the law, formed in simpler times in the relative quiet of Jamestown, continued as guiding principles throughout his life.
One of his finest public utterances, showing his great capacity to appreciate the high qualities of one representing a political philosophy different from his own, was his eloquent tribute, as Attorney General, to Mr. Justice Pierce Butler at the memorial services of the Court in the latter’s honor.19
On April 24, 1916, in Albany, New York, he married Irene Alice Gerhardt, daughter of Henry Gerhardt, a builder, of Kingston, New York. Charming, cultured, gracious, devoted, she remained his companion, inspiration and comfort throughout his career. She survives him, as do their two children, William Eldred Jackson and Mary Jackson Craighill, and five grandchildren. The children and grandchildren were devoted to him and he to them. William Eldred Jackson, who was his father’s personal aide in London and in Nuremberg, and his son-in-law, G. Bowdoin Craighill, Jr., are both practicing lawyers.
We of the Bar of the Supreme Court join the members of the family in their grief and express to them our sympathy in their great loss.
Resolved, That the foregoing Minute be adopted; that a copy of it be transmitted to the Attorney General of the United States for presentation to the Court; and that the Chairman be directed to forward copies of it to the widow and surviving members of the family of Mr. Justice Robert Houghwout Jackson.
Mr. Attorney General Brownell addressed the Court as follows:
As we assemble today to honor the memory of Justice Robert Houghwout Jackson, our sadness is lightened somewhat when we recall the warmth of his personality,
19 310 U. S. xin-xv.
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the depth of his scholarship, and his great contributions to the science of the law and to the Nation.
Mere recital of the chronology of his life gives vivid color to the unfolding of three great careers: trial lawyer, government administrator, and Supreme Court Justice.
Born on a farm at Spring Creek, Pennsylvania, on February 13, 1892, his family moved to Frewsburg and, later, Jamestown, New York, during his early years. His secondary education was completed in Jamestown and his formal legal education consisted of one year of study at the Albany Law School. This abbreviated course of formal study often prompted Robert Jackson to make himself the butt of disparaging remarks about his untutored background. They served, however, quite unintentionally to sharpen the awareness of the audience or reader that here was a man in the tradition of Lincoln who made his way from self-education in the law to worldwide recognition as a brilliant scholar and jurist.
In 1913, at the age of 21, Robert Jackson began the practice of law in Jamestown. The passing years brought him deserved recognition as an able advocate and sound counsellor. During these years, his searching, receptive mind began to respond to his thirst for understanding of the many subjects making up well-rounded scholarship. With his naturally keen mind, talent for expression, and abundant energy, Robert Jackson was well on the way to distinction of the highest order.
His service for the State of New York in the early 1930’s in the investigation of the administration of justice in that State and in directing the handling of the State’s negotiable scrip program so commended him for attention that he was called to Washington in 1934 to serve as General Counsel of the Bureau of Internal Revenue, Treasury Department. He thus began a seven-year career in public administration. In retrospect, it is easy to understand why high achievement inevitably was to come. Strong, straightforward, clear-thinking, well-informed, and loyal, his outstanding talents were succes
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sively pressed into the service of the Nation through appointment as Solicitor General of the United States in 1938, and as Attorney General of the United States in 1940. As a well-seasoned trial lawyer, with experience and soundness of judgment, his service in those positions reflected great credit upon the offices and earned for him eminent standing at the bar.
It is said that he perhaps enjoyed the challenge and advocate’s duties as Solicitor General as much as any other he had ever undertaken. During that period he presented argument to this Court in a long series of cases which have left large and lasting imprint on the pages of legal history. Among the prominent cases of that period, which he argued with great skill, were those in which the Court upheld the validity of the Tobacco Inspection Act of 1935,1 the Agricultural Adjustment Act of 1938,2 federal control of milk marketing,3 as well as others which marked the assumption of larger responsibilities by the Federal Government for the good of the Nation.
In reference to this period of his life, Justice Jackson displayed his ready wit and appreciation of the art of oral argument when he remarked:
“I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned—as I thought, logical, coherent, complete. Second was the one actually presented—interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.”
On October 6, 1941, as the 87th appointee, Robert Jackson assumed his place on the Court as Associate Justice. Here, in the final years of his life, the abundant learning and maturity of experience brought lasting enrichment to the law.
1 Currin v. Wallace, 306 U. S. 1.
2 Muljord n. Smith, 307 U. S. 38.
3 United States v. Rock Royal Co-op., 307 U. S. 533.
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It is fitting that we of the profession so revered by Robert Jackson should recount with pride and pleasing recollection a few excerpts from his writings which reflect the force of his beliefs.
Justice Jackson was a realist. To him, the law never rose above the dignity of man. This was well illustrated by his first concurring opinion, written less than two months after he took his seat on the Court.
In the Edwards case,4 the Court held invalid, as imposing an unconstitutional burden upon interstate commerce, a provision of California law which made it a crime to bring a nonresident indigent person into the State. Though agreeing with the result, Justice Jackson believed that the Commerce Clause had been invoked in a setting which called for a more spirited and earthy expression of the rights of man. He urged the Court to:
. . hold squarely that it is a privilege of citizenship of the United States, protected from state abridgment, to enter any state of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this, it means nothing.” 5
Then, with characteristic clarity and vividness of expression, he said:
“Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.” 6
It is not the well-turned phrase, however, which earned for Justice Jackson high respect and affectionate regard.
His opinions are models of clarity. In the instance of each of these, there was never the slightest doubt as to
4 Edwards v. California, 314 U. S. 160 (decided November 24, 1941).
5 At p. 183.
6 At p. 186.
XLVI
MR. JUSTICE JACKSON.
where Justice Jackson stood and why. In agreement or in disagreement his position was abundantly clear. In economic regulations, civil liberties, taxation, commerce, and in the many and varied constitutional problems before the Court, Justice Jackson gave the same measure of directness and forceful expression.
Easy to memory, for example, is his opinion for the Court in the West Virginia compulsory flag salute case, Board of Education v. Barnette.7 As he there said:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
In Haupt n. United States, Justice Jackson reflected his trial training in dissecting the defendant’s objections to the interpretation reasonably to be given to factual events. Even in a charge of treason, Justice Jackson noted, for the majority, that “it is not required that testimony be so minute as to exclude every fantastic hypothesis that can be suggested.”8
And in his opinion, partly concurring and partly dissenting, in the Douds case,9 Justice Jackson laid bare the evil design and purposes of the Communist Party in such simple, but dramatic, terms that any schoolboy could quickly understand the basic character of the problem upon a quick reading.
Action by the Government in proper areas of regulation, and through proper means, found Justice Jackson ready to strike down ill-founded attacks. But he was equally outspoken and determined when legally offensive methods were used in the administration of the law. Perhaps typical both of his directness and artistry in laying bare the heart of a matter, is his statement in the Di Re 10
7 319 U. S. 624, 642.
8 330 U. S. 631, 640.
9 Communications kssn. v. Douds, 339 U. S. 382.
10 United States v. Di Re, 332 U. S. 581, 595.
MR. JUSTICE JACKSON.
XLVII
opinion condemning an unlawful search and seizure: “. . . a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.”
In other public expressions we also see the many facets of his interests and personality. Justice Jackson’s address at the American Bar Center cornerstone ceremony on November 2, 1953, reflects his lifelong interest in the rules of law and the role of the lawyer and judge in their administration. On that occasion, in discussing the responsibility of the Bar in the administration of justice, he remarked : “Cornerstones are commonplace unless they gain distinction from the vision and faith of those who lay them.” He then set forth a standard of moral accountability for the legal profession:
“Our profession is duty-bound to supply bold and imaginative leadership to bring and keep justice within the reach of persons in every condition of life, to devise processes better to secure men against false accusation and society against crime and violence, and to preserve not merely the forms of constitutional government but the spirit of liberty under law as embodied in our Constitution.”
One need look no further than Justice Jackson himself for an outstanding example of the force and quality of leadership in the bar to which he alluded. As one of the organizers of the Federation of Bar Associations of Western New York in the 1920’s, he continued his strong interest in legal reforms and in maintaining the highest standards of ethics among lawyers until his death, when he was engaged in an intensive analysis and search for reforms in our criminal law and procedure.
Even the briefest biographical reference of Robert Jack-son must underscore the warmth of his personality. Friendship was natural to one of his capacity for understanding personal values and the large margin for human error. Justice Jackson was always within reach of people—the high and the small. He was not above the
XLVIII
MR. JUSTICE JACKSON.
commonplace in life. Indeed, his entire philosophy was related to the simple, but inviolate rights of the little man. Here was dignity, but not coldness. Compassion without mawkish sentimentality. Scholarship, but not snobbery. Mention of the name of Robert Houghwout Jackson stimulates an immediate feeling of affectionate regard.
A wonderful person—a great American—passed this way.
May it please this Honorable Court: In the name of the lawyers of this Nation, and particularly of the Bar of this Court, I respectfully request that the resolution presented to you in memory of the late Justice Robert H. Jackson be accepted by you, and that it, together with the chronicle of these proceedings, be ordered kept for all time in the records of this Court.
The Chief Justice said:
Mr. Attorney General: You have spoken of our Brother Jackson with great affection and understanding. That your eloquent words are to become a permanent record of his standing in his beloved profession and a lasting memorial to his memory makes them of particular significance to the Court. We all share your sentiments. Tradition requires that I should respond to your gracious words rather than another of his associates who knew him personally and professionally much better than I, and who witnessed more closely the processes of his brilliant mind. This perhaps is unfortunate, but by way of extenuation I say with all confidence that I can match the affection of my associates for our Brother if not their ability to record his many great qualities which could be fully known only to those who were favored by long and intimate collaboration with him. But all of us—even his successor who practiced at the same bar and who served on the Court of Appeals of his circuit—enjoyed that collaboration to a degree—some for many years, others for a few, I for only one Court term.
MR. JUSTICE JACKSON.
XLIX
The others knew every facet of his distinguished career, but even I had a unique, though transient, opportunity before coming to the Court to gain a lasting impression of his strong character, his deep convictions, and his understanding of people. For years, it was a midsummer custom with him, as it has been with me, to make a trek with congenial souls to a beautiful grove of giant redwoods in my native state. Here, removed from the stresses of everyday life, there was opportunity for fellowship, reflection and an exchange of ideas that is rarely available to us in busy American life. In the presence of these giants of the forest with their heads above the clouds, standing serenely there since before the birth of Christ, man is equated to time, size, and importance in the scheme of things. In that majestic setting, through an occasional stroll on the mountainside or a swim in the beautiful winding river or sitting around an evening campfire, I first came to know the man we there affectionately called Bob Jackson. In this relationship I acquired some insight into his mind and character that might not even be revealed in his daily work or in his formal writings for the Court. It was a rewarding experience for me— one I shall not forget.
It often happens that men best reveal their character at such times and also when writing informally of other people. A few days ago my Brother Frankfurter called to my attention a delightful article written by Justice Jackson more than a decade ago concerning what he termed “the disappearing country lawyer.” If time permitted, I could with great profit to all of us read it from beginning to end because it is as character-revealing as anything he has, to my knowledge, written. I must at least read two passages from it. In paying his respects to the country lawyer, which he always claimed to be, he wrote:
“That lawyer has been an American institution— about the same in South and North and East and West. Such a man understands the structure of
340907 0-55-4
L
MR. JUSTICE JACKSON.
society and how its groups interlock and interact, because he lives in a community so small that he can keep it all in view. Lawyers in large cities do not know their cities; they know their circles, and urban circles are apt to be made up of those with a kindred outlook on life. But the circle of the man from the small city or town is the whole community and embraces persons of every outlook. He sees how this society lives and works under the law and adjusts its conflicts by its procedures. He knows how disordered and hopelessly unstable it would be without law. He knows that in this country the administration of justice is based on law practice.
"Paper ‘rights’ are worth, when they are threatened, just what some lawyer makes them worth. Civil liberties are those which some lawyer, respected by his neighbors, will stand up to defend. Any legal doctrine which fails to enlist the support of well regarded lawyers will have no real sway in this country.”
And then, after reciting some of the human foibles of that species, he wrote in summation:
"But he loved his profession; he had a real sense of dedication to the administration of justice; he held his head high as a lawyer; he rendered and exacted courtesy, honor, and straightforwardness at the bar. He respected the judicial office deeply, demanded the highest standards of competence and disinterestedness and dignity, despised all political use of or trifling with judicial power, and had an affectionate regard for every man who filled his exacting prescription of the just judge. The law to him was like a religion, and its practice was more than a means of support; it was a mission. He was not always popular in his community, but he was respected. Unpopular minorities and individuals often found in him their only mediator and advocate. He was too independ
MR. JUSTICE JACKSON.	li
ent to court the populace—he thought of himself as a leader and lawgiver, not as a mouthpiece. He ‘lived well, worked hard and died poor.’ Often his name was forgotten in a generation or two.
“It was from this brotherhood that America has drawn its statesmen and its judges. A free and self-governing Republic stands as a monument for the little known and unremembered as well as for the famous men of our profession.”
This could well be a summation of the life of Justice Jackson, both in theory and in practice. There is, however, one exception. He is not destined to be among those of whom he wrote “Often his name was forgotten in a generation or two.” So long as America maintains the fight for preservation of our constitutional freedoms, so long as free men anywhere believe that the experiences of the past can be helpful in solving the problems of their day, so long as the decisions of this Court are regarded as a bulwark of human liberty, just so long will the name of Robert H. Jackson be remembered for his high personal character, his dedication to American principles, and his devotion to duty. No finer remembrance than this could be left by any American.
And as the years roll by, generations of the town of his youth will visit his resting place in the peaceful countryside near little Frewsburg, which he loved so well, and there gather inspiration and strength from his fine life and from the pride that he so often expressed of being—in their community—a “country lawyer.” To this man—“country lawyer,” statesman, jurist, and friend— we humbly pay homage today.
Let the Resolutions be spread upon the minutes of this Court.
TABLE OF CASES BEPOBTED
Note: Cases reported before page 901 are those decided with opinions of the Court. Those reported on pages 901 et seq. are memorandum decisions and orders.
Page
Accardi, Shaughnessy ...................................... 280
Administrator. See name of administrator; Housing Expediter ; Housing and Home Administrator.
Adonis v. New Jersey....................................... 912
Affronti v. United States.................................. 951
Agent of Levin, Groat ..................................... 949
Aircooled Motors, Inc. v. Williams......................... 907
Alien Property Custodian, National Savings Co. v........... 955
Alker v. Fidelity-Philadelphia Trust Co.................... 939
Allentown Broadcasting Corp., Communications Comm’n v...	358
Alpha Silk Co. v. United States............................ 905
Amarillo v. Copeland....................................... 954
Anastaplo, In re........................................ 903,	908
Anglo-California National Bank, Thys Co. v................. 946
Anglo Chinese Shipping Co. v. United States................ 938
Applebaum v. Paramount Pictures, Inc....................... 961
Arizona, Gusick v....................................... 922,969
Arkansas, Philyaw v........................................ 967
Armstrong v. Armstrong..................................... 915
Aspbury, Pollack v......................................... 940
Association of Employees v. Westinghouse Corp.............. 925
Atkinson v. Ellis.......................................... 924
Atlantic Coast Line v. Chancey............................. 916
Atlantic Coast Line, Kammerer v............................ 922
Atlantic Coast Line, Smalls v.............................. 907
Attorney General, Hamilton v............................... 936
Attorney General, Hopwood v................................ 927
Attorney General v. Lee Optical of Oklahoma................ 925
Attorney General, Lew Wah Fook v........................... 944
Attorney General, National Savings Co. v................... 955
Attorney General, Weldon v................................. 949
Automatic Die & Products Co. v. Campbell................... 929
Axel Bros., Inc., Jungersen v.............................. 940
Babb, Illinois ex rel. Goldstein v......................... 928
LUI
LIV
TABLE OF CASES REPORTED.
Page
Baby Bathinette Corp., Hentschel v.......................... 923
Baker, Hamilton v...............................M.........	968
Baldridge v. Illinois....................................... 962
Baltimore & 0. R. Co., Thrailkill v......................... 956
Baltzegar, In re............................................ 951
Bank of Hawaii,	Crozier v................................... 959
Banks v. Illinois........................................... 932
Bannan, Ginivalli v......................................... 931
Bannan, Skladd	v......................................... 925
Barber, Heikkila v.......................................... 927
Bard-Parker Co. v. Commissioner............................. 906
Barnes, Falcone v........................................... 927
Barnes v. Federal Communications Comm’n..................... 962
Barnes v. Texas............................................. 919
Baroid Sales Division, Rosaire v............................ 916
Barr v. Ragen............................................... 931
Bart v. United States....................................... 219
Bates v. United States...................................... 961
Baynes, Newstead v.......................................... 950
Beasley v. United States.................................... 907
Beaty v. United States...................................... 946
Beecher v. Leavenworth State Bank....................... 945,947
Bell v. United States........................................ 81
Belton, Gebhart v........................................... 294
Bender v. United States..................................... 920
Bennett, Day ton v.......................................... 961
Benton County v. Clackamas County........................... 912
Bernhardt v. Polygraphic Co................................. 943
Berry v. United States...................................... 938
Bianchi v. United States...............................  915,969
Bigelow, Farnum v........................................... 936
Binkley v. Federal District Court........................... 919
Bishop v. United States..................................... 955
Bisso v. Inland Waterways Corp............................... 85
Board of Education, Oklahoma ex rel. Grimes v............... 903
Board of Education of Topeka, Brown v....................... 294
Board of Education of Yonkers, Ellis v...................... 458
Bolesta v. United States.................................... 927
Bolling v. Sharpe........................................... 294
Bollotin v. Workman Service Co.............................. 969
Bompensiero v. Superior Court............................... 914
Bonds, Marcello v........................................... 302
Boone v. Massachusetts...................................... 964
Borg-Warner Corp., Mall Tool Co. v.......................... 946
TABLE OF CASES REPORTED. lv
Page
Boston Metals Co. v. The Winding Gulf......................... 122
Bowers, First Federal Savings Assn, v......................... 143
Bowers, Pure Oil Co. ......................................... 925
Bowers, Society for Savings of Cleveland v.................... 143
Brabson v. New York........................................... 941
Bradley v. Howard University.................................. 908
Brians v. Roodhouse........................................... 938
Briggs v. Elliott......................................... 294,914
Brill v. Cohen & Miller Advertising, Inc...................... 955
Brotherhood of Electrical Workers v. United States............ 917
Brotherhood of Railway Clerks, Pellicer v..................... 912
Brown v. Board of Education	of	Topeka....................... 294
Brownell, Hamilton ........................................... 936
Brownell, Hopwood ............................................ 927
Brownell, Lew Wah Fook ....................................... 944
Brownell, National Savings &	Trust Co. ....................... 955
Brownell, Weldon ............................................. 949
Bruce v. Pennsylvania......................................... 924
Bruswitz v. United States..................................... 913
Budd Co., Pennsylvania ....................................... 935
Building & Laborers’ Union	v.	Mason & Hanger Co............ 915
Burden v. United States....................................... 960
Burke v. United States........................................ 926
Burt, Isthmus Development	Co. ............................. 922
Burwell v. California......................................... 936
Business Men’s Assurance Co.	v. Driggers...................... 946
Butler, Ex parte.............................................. 936
Butler v. Illinois............................................ 941
Buzzie v. California.......................................... 968
Byers v. United States........................................ 966
Byrnes v. Illinois............................................ 966
Cagle v. Hardwick............................................. 919
Caldwell v. United States................................. 930,969
California, Burwell .......................................... 936
California, Buzzie ........................................... 968
California, Davis ............................................ 905
California, Garrow ....................................... 933,969
California, Kostal ........................................... 923
California, Marcias .......................................... 967
California, Meehan ........................................... 922
California, Meek ............................................. 919
California, Mitchell ......................................... 962
California, Nordeste ......................................... 934
California, Rogers ........................................... 936
LVI
TABLE OF CASES REPORTED.
Page
California, Wellens v....................................... 950
California Dolomite Co., Standridge v....................... 921
Cammarata v. Michigan....................................... 953
Campbell, Automatic Die & Products Co. v.................... 929
Campbell, Lloyd v....................................... 911,948
Candy & Confectionery Workers v. Labor Board................ 952
Capitol Hill Citizens Assn. v.	Coe.......................... 944
Carroll v. Lanza............................................ 408
Cason v. United States...................................... 966
Cato v. Silling............................................. 924
Cefalu v. United States..................................... 952
Center Amusements v. Paramount Pictures, Inc................ 961
Chancey, Atlantic Coast Line v.............................. 916
Chapman v. Looney........................................... 936
Charizio v. Cummings........................................ 968
Chicago, R. I. & P. R. Co. v. Wright........................ 905
China, National City Bank v................................. 913
Christopher Gale, The, v. Nielson........................... 129
Circuit Court Judge, Hamilton v............................. 968
Citizens Assn. v. Coe....................................... 944
City. See name of city.
Clackamas County, Benton County v..........................  912
Clackamas County, McKay v............................... 909,	934
Clark v. Florida............................................ 959
Claudy, Pennsylvania ex rel. Herman v....................... 904
Clemmer, Davis v............................................ 927
Clemmer, LaRose v........................................... 927
Clerk of U. S. District Court, Vaughan v.................... 920
Clifford v. Ohio............................................ 929
Coco v. Florida............................................. 931
Coe, Capitol Hill Citizens Assn, v.......................... 944
Cohen v. Glass.............................................. 929
Cohen & Miller Advertising, Inc., Brill v................... 955
Colbert v. Roodhouse........................................ 938
Cole, Shanks Village Residents Assn, v...................... 906
Collins, In re.............................................. 951
Collins v. Heinze........................................... 940
Collins v. Ragen............................................ 950
Combs v. Illinois Toll Highway Comm’n................... 942,	969
Commander of Boston Shipyard, Fitzpatrick v................. 946
Commanding General, Nistal v................................ 962
Commissioner, Bard-Parker Co. v............................. 906
Commissioner, Edwards v..................................... 905
Commissioner v. Glenshaw Glass Co........................... 925
TABLE OF CASES REPORTED. lvii
Page
Commissioner, Lewyt Corp, v............................... 237
Commissioner, Obear-Nester Glass Co. v.................... 948
Commissioner, Stockton Harbor Co. v....................... 904
Commissioner, Vermont Transit Co. v....................... 945
Commissioner of Internal Revenue. See Commissioner. Commissioners of Land Office v. Magnolia Co............... 916
Common Laborers v. Mason & Hanger Co...................... 915
Commonwealth. See name of Commonwealth.
Communications Comm’n v. Allentown Broad. Corp..........	358
Communications Comm’n,	Barnes	v........................ 962
Communist Party of U. S. v. Subversive Control Board. .. .	943
Conboy, Zakowicki ........................................ 968
Condon v. New York........................................ 961
Confectionery Workers v.	Labor	Board..................... 952
Connecticut, Donahue ..................................... 926
Connolly v. First Trust & Deposit Co...................... 944
Consolidated Engineering Corp. v. United States........... 939
Consolidated Freightways, Inc. v. United Truck Lines, Inc...	905
Cooks & Stewards’ Union v. Labor Board................ 909,930
Cooper v. Denno........................................... 968
Copeland, Amarillo ....................................... 954
Copiah County Lumber Co., Wallace v....................... 966
Corbett, Hicks ........................................... 965
Corporation Comm’n, Michigan-Wisconsin Co. v.............. 908
Corporation Comm’n, Natural	Gas	Co.	v................ 44
Corporation Comm’n, Panhandle Pipe Line Co. v............. 908
County. See also name of county.
County School Board, Davis v.............................. 294
Courtney, Haines v........................................ 958
Couto v. Shaughnessy...................................... 952
Crowe v. Illinois......................................... 932
Crozier v. Bank of Hawaii................................. 959
Cumberland Battery Mfg. Co. v. Mitchell................... 914
Cummings, Chari zio v..................................... 968
Cummings, Owens v......................................... 968
Curtis v. Michigan........................................ 967
C. W. Vollmer & Co., Mitchell v....................... 427,918
Danker v. Starr........................................... 950
Darsyn Laboratories v. Lenox	Laboratories................. 921
Dauntless Towing Line,	United	States	v.................. 129
Davidson	v. United States............................... 918
Davis	v.	California..................................... 905
Davis	v.	Clemmer........................................ 927
Davis	v.	Illinois....................................... 924
LVIII
TABLE OF CASES REPORTED.
Page
Davis v. Prince Edward County School Board................. 294
Davis v. Summerfield....................................... 965
Day, Firmstone v........................................... 967
Day, Sell v................................................ 948
Day ton v. Bennett......................................... 961
DeFoe v. Weaver Bros.................................... 933,969
Delmore, Mason v........................................... 957
Delmore, McAlmond v........................................ 955
Delmore, Sam v............................................. 936
Delmore, Williams v........................................ 924
De Lorenzo v. United States................................ 964
De Moss v. United States................................... 918
Denno, Cooper v............................................ 968
Department of Army, Pratt v................................ 965
Department of Revenue, National Bank of Detroit v.......... 934
DeRosier v. United States.................................. 921
Desmond v. United States................................... 911
Dictograph Products, Inc. v. Federal Trade Comm’n.......	940
Dillner Transfer Co. v. Penn. Utility Comm’n............... 903
Dillon v. United States.................................... 914
Director of Immigration. See District Director of Immigra-
tion; Immigration Officer.
Directors of Equitable Assn., Perpetual Bldg. Assn, v...	911
District Court. See also Federal District Court; U. S. District
Judge.
District Court, Rutledge v................................. 958
District Director of Immigration v. Accardi................ 280
District Director of Immigration, Couto v.................. 952
District Director of Immigration, Gonzales v............... 943
District Director of Immigration, Heikkila v............... 927
District Director of Immigration v. Pedreiro................ 48
District Director of Immigration, Pino v................... 901
District Judge. See U. S. District Judge.
District of Columbia, Ford v............................... 964
District of Columbia, Wilson v............................. 963
Dixon, Ellis v............................................. 458
Dolan v. United States..................................... 923
Donaducy v. Pennsylvania................................... 913
Donahue v. Connecticut..................................... 926
Doris v. Missouri.......................................... 968
Doto v. New Jersey......................................... 912
Drexel & Co., Securities & Exchange Comm’n v............ 910,913
Driggers, Business Men’s Assurance Co. v................... 946
Dubin v. Worthing.......................................... 919
TABLE OF CASES REPORTED.
LIX
Page
Dulles, Fong v.............................................. 941
Dumaine v. Securities & Exchange Comm’n..................... 929
Du Pont de Nemours & Co. v. Lyles & Lang Co................. 956
Edmondson, Strong v......................................... 958
Edwards v. Commissioner..................................... 905
Edwards v. United States.................................... 961
Eidson, Mahurin ............................................ 957
Eidson, Potter ............................................. 927
Eidson, Williams v.......................................... 934
E.	I. du Pont de Nemours & Co. v. Lyles & Lang Co........	956
Electrical Workers v. United States......................... 917
Elliott, Briggs ........................................ 294,914
Elliott v. Oregon........................................... 929
Ellis, Atkinson v........................................... 924
Ellis v. Dixon.............................................. 458
Ellis, Hall ................................................ 966
Ellis, MacMann v............................................ 933
Ellis, Pellegrini .......................................... 932
Ellis, Rooks ............................................... 949
Employees Association v. Westinghouse Corp.................. 925
Emspak v. United States..................................... 190
Equitable Building Assn., Perpetual Bldg.	Assn, v........... 911
Ex parte. See name of party.
Express Employees, Pellicer v............................... 912
Fairbairn v. North Atlantic & Gulf S. S. Co................. 952
Falcone v. Barnes........................................... 927
Farnum v. Bigelow........................................... 936
Farris v. Heinze............................................ 950
Faubert v. Michigan......................................... 908
Federal Communications Comm’n v. Allentown Corp...........	358
Federal Communications Comm’n, Barnes	v.............. 962
Federal District Court. See also U. S. District Judge.
Federal District Court, Binkley v........................... 919
Federal Power Comm’n, Hastings v............................ 920
Federal Power Comm’n v. Oregon.............................. 435
Federal Power Comm’n, Panhandle Pipe Line Co. v............. 945
Federal Power Comm’n v. Sierra Pacific Power Co............. 937
Federal Trade Comm’n, Dictograph Products, Inc. v.........	940
Feldmann v. Perlman......................................... 952
Ferguson v. Illinois........................................ 932
Fidelity-Philadelphia Trust Co., Alker v.................... 939
53rd Street Subway Liquor Store v. O’Grady.................. 939
Finn v. United States....................................... 906
Fireman’s Fund Ins. Co., Wilburn Boat Co. v................. 907
lx TABLE OF CASES REPORTED.
Page
Firmstone v. Day............................................ 967
First Federal Savings & Loan Assn. v. Bowers................ 143
First Trust & Deposit Co., Connolly v....................... 944
Fitzpatrick v. Snyder....................................... 946
Fleischman v. New York...................................... 932
Florida, Clark v............................................ 959
Florida, Coco v............................................. 931
Florida, Worthington v...................................... 966
Florida State Improvement Comm’n, Pirman v.................. 956
Fong v. Dulles............................................   941
Ford v. District of Columbia................................ 964
Forsythe v. New Jersey.................................. 927,969
Foster, Plocar v............................................ 962
F.	P. Newport Corp. v. Sampsell............................ 925
Frantz v. United States..................................... 954
Freccia v. New York......................................... 964
Freight Handlers, Pellicer v................................ 912
Froman v. Pan American	Airways.............................. 947
Furman v. Illinois.......................................... 941
Galle v. Ragen.............................................. 963
Garrow v. California.................................... 933,969
Gates v. Illinois........................................... 967
Gebhart v. Belton........................................... 294
General Casualty Co.,	United	States v....................... 938
Georgia, Reece v............................................ 944
Georgia, Williams v......................................... 375
Gibson v. Lockheed Aircraft Service......................... 943
Ginivalli v. Bannan......................................... 931
Gladden, Manchester v....................................... 949
Glass, Cohen v.............................................. 929
Glenshaw Glass Co., Commissioner v.......................... 925
Goldstein v. Babb........................................... 928
Gonzales v. Landon.......................................... 943
Goodson v. Virginia......................................... 932
Gordon v. Gordon............................................ 947
G.	& P. Amusement Co. v. Regent Theater Co................. 904
Granville-Smith v. Granville-Smith............................ 1
Greeley County District Court, Rutledge v................... 958
Green v.	Green........................................ 917,948
Griffin v.	Illinois..................................... 937,949
Grimes v.	Board of Education............................... 903
Grimes v.	Maynard.......................................... 904
Groat v. Agent of Levin..................................... 949
Groob v. Reconstruction Finance Corp........................ 930
TABLE OF CASES REPORTED.
LXI
Page
Gusick v. Arizona...................................... 922,	969
Haines v. Courtney......................................... 958
Haines v. Ragen............................................ 963
Hall v. Ellis.............................................. 966
Hall v. Illinois........................................... 963
Hall, Walters ............................................. 953
Hamilton v. Baker.......................................... 968
Hamilton v. Brownell....................................... 936
Hamilton v. Uffelman....................................... 950
Hanratty v. United States.................................. 928
Hardwick, Cagle v.......................................... 919
Hardwick, Tabor v.......................................... 950
Harner, Jamouneau v........................................ 904
Harriman v. United States.................................. 928
Harris v. Teets............................................ 958
Harrison v. Missouri....................................... 948
Hartfield v. Ragen......................................... 956
Harvey v. Mayo............................................. 965
Hastings v. Federal Power Comm’n........................... 920
Hausauer, Nistal v......................................... 962
Hawke, In re............................................... 951
Hayman v. United States.................................... 959
Hayward, Levy v............................................ 958
Hazelcorn v. United States................................. 930
Heide, Inc. v. Labor Board................................. 952
Heikkila v. Barber......................................... 927
Heinze, Collins v.......................................... 940
Heinze, Farris v........................................... 950
Heinze, Lang v......................................... 927,931
Heinze, Sullivan v...................................... 927,968
Heinze, Winston v.......................................... 906
Heirens v. Illinois........................................ 947
Henderson v. United States............................. 920,969
Henry Heide, Inc. v. Labor Board........................... 952
Hentschel v. Baby Bathinette Corp.......................... 923
Herman v. Claudy........................................... 904
Hertz, Record Publishing Co. v............................. 912
Herzic v. Illinois......................................... 922
Hicks v. Corbett........................................... 965
Hightower, Ex parte........................................ 950
Hightower v. United States................................. 957
Hilderbrand v. Steele...................................... 950
Hill v. Looney............................................. 919
Hill v. Texas.............................................. 930
LXII
TABLE OF CASES REPORTED.
Page
Hill v. United States................................................ 964
Hiller v. United States.............................................. 918
Hite v. Western Maryland Railway..................................... 960
H.	Koch & Sons v. Hycon Mfg. Co.................................... 953
Hobby, Peters v.............................................. 331,903,926
Hodge v. United States............................................... 959
Hoffman v. Mississippi River Fuel Corp............................... 935
Holbrook v. United States............................................ 915
Homestead Valve Mfg. Co., Wilson v................................... 916
Hopwood v. Brownell.................................................. 927
Housing Expediter, McRae v........................................... 925
Housing & Home Administrator, Shanks Village Assn, v.............	906
Howard University, Bradley v......................................... 908
Howell v. Looney..................................................... 950
Howlery, In re....................................................... 950
Hudson v. Iowa....................................................... 961
Hudson v. United States.............................................. 968
Hupman v. United States.............................................. 953
Hycon Mfg. Co., Koch & Sons v........................................ 953
Illinois. See also Illinois ex rel.
Illinois, Baldridge v................................................ 962
Illinois,	Banks	v.................................................. 932
Illinois,	Butler	v.................................................. 941
Illinois,	Byrnes	v.................................................. 966
Illinois,	Crowe	v.................................................. 932
Illinois,	Davis v.................................................... 924
Illinois,	Ferguson v................................................. 932
Illinois,	Furman v................................................... 941
Illinois,	Gates v.................................................... 967
Illinois,	Griffin v.............................................. 937,949
Illinois,	Hall v..................................................... 963
Illinois,	Heirens v.................................................. 947
Illinois,	Herzic v................................................... 922
Illinois,	McCoy v.................................................... 931
Illinois,	Ortega v................................................... 967
Illinois, Provancher v............................................... 958
Illinois,	Serraille v................................................ 961
Illinois,	Siciliano v................................................ 931
Illinois,	Smart v.................................................... 923
Illinois,	Sproch v................................................... 963
Illinois,	Taylor v................................................... 964
Illinois,	Vraniak v.................................................. 963
Illinois,	Westbrook v................................................ 957
Illinois Central R. Co. v. Miss. Service Comm’n...................... 908
TABLE OF CASES REPORTED.
LXIII
Page
Illinois Central R. Co., Whitehouse v....................... 366
Illinois ex rel. Goldstein v. Babb.......................... 928
Illinois Toll Highway Comm’n, Combs v................... 942,969
Immigration and Naturalization Service. See District Director of Immigration; Immigration Officer.
Immigration Officer, Falcone v.............................. 927
Immigration Officer, Marcello v............................. 302
Independent Poster Exchange v. National Screen Corp.......	322
Indiana, Kelly	v........................................... 966
Indiana, Lunce	v.......................................... 960
Indiana, Myles	v.......................................... 932
Indiana, Pond	v........................................... 959
Indian Towing	Co. v. United States.................... 902,926
Inland Waterways Corp., Bisso v.............................. 85
In re. See name of party.
Inspector of Buildings, Lutheran School Conference v......	913
International Electrical Workers v. United States........... 917
Interstate Commerce Comm’n v. Miss. Service Comm’n........	908
Iowa, Hudson v.........................................	961
Isthmus Development Co. v. Burt.............................. 922
Jackson, Ex parte............................................ 950
Jackson v. Moore............................................. 933
Jackson, Rodriguez v......................................... 963
Jackson v. United States..................................... 933
James v. United States....................................... 925
Jamouneau v. Harner.......................................... 904
Janowicz v. Michigan......................................... 923
Jarrico v. RKO Radio Pictures, Inc........................... 928
Jennings v. Nester.......................................... 958
Johnson v. Mississippi...................................... 946
Johnson v. New York, N. H. & H. R. Co....................... 954
Johnson v. United States.................................... 923
Jones, In re................................................ 950
Judd, In re................................................. 924
Jungersen v. Axel Bros., Inc................................ 940
Kammerer v. Atlantic Coast Line............................. 922
Kansas City Southern R. Co., Schwartz v..................... 931
Kelley v. Virginia.......................................... 950
Kelly v. Indiana............................................ 966
Kendrick v. Manning......................................... 950
Kent, Lancaster v........................................... 950
Kentucky, Milan v........................................... 964
King Packing Co., Mitchell v................................ 914
Kirkpatrick, Norwood v....................................... 29
LXIV
TABLE OF CASES REPORTED.
Page
Knapp Brothers Mfg. Co., Urbain v......................... 930
Koch & Sons v. Hycon Mfg. Co.............................. 953
Kormuth v. U. S. Steel Co................................. 911
Koss v. Randolph.......................................... 923
Kostal v. California...................................... 923
Kreuter v. United States.................................. 932
Kubus v. Minnesota........................................ 959
Labor Board, Candy & Confectionery Workers v.............. 952
Labor Board, Heide, Inc. v................................ 952
Labor Board, National Union of Marine Cooks v......... 909,930
Labor Board, Osbrink v.................................... 928
Labor Board, Union Mfg. Co. v..........;.................. 921
Labor Board, West Texas Utilities Co. v................... 953
Labor Board, Whitin Machine Works v....................... 905
Laborers’ Union v. Mason & Hanger Co...................... 915
Lake, New York Life Ins. Co. v............................ 917
Lake Charles Electric Co., Carroll v...................... 408
Lancaster v. Kent......................................... 950
Lancaster v. Pennsylvania................................. 966
Land Office v. Magnolia Co................................ 916
Landon, Gonzales ......................................... 943
Landon, Pino v............................................ 901
Lang v. Heinze........................................ 927,931
Lanza, Carroll ........................................... 408
LaRose v. Clemmer......................................... 927
Lawler, Matson Navigation Co. v........................... 912
Lawlor v. National Screen Service Corp.................... 322
Lawson v. Michigan........................................ 941
Lazar v. Oklahoma......................................... 902
Leavenworth State Bank, Beecher	v................... 945,947
Lee v. McDonald........................................... 948
Lee Optical of Oklahoma, Williamson v..................... 925
Lefors v. Texas........................................... 929
Lenox Laboratories, Darsyn Laboratories v................. 921
Lenz v. Looney............................................ 965
Leslie Salt Co., United States	v.......................... 951
Lester v. National Broadcasting Co........................ 917
Levin, Groat ............................................. 949
Levy v. Hayward........................................... 958
Lewis v. Mississippi...................................... 907
Lewis v. United States................................ 917,954
Lew Wah Fook v. Brownell.................................. 944
Lewyt Corp. v. Commissioner............................... 237
Lilly v. Randolph......................................... 924
TABLE OF CASES REPORTED.
LXV
Page
Lipscomb, Ex parte........................................ 950
Lloyd v. Campbell..................................... 911,948
Local Candy Union v. Labor	Board......................... 952
Local Electrical Workers v. United States................. 917
Lockheed Aircraft Service, Gibson v....................... 943
Looney, Chapman v......................................... 936
Looney, Hill v............................................ 919
Looney, Howell v.......................................... 950
Looney, Lenz v............................................ 965
Looney, Mitchell v........................................ 927
Lopiparo v. United States................................. 969
Louisiana, Mississippi v.................................. 935
Lovejoy v. Skeen.......................................... 940
Lunce v. Indiana.......................................... 960
Lutheran High School Conference v. Sinar.................. 913
Lyles & Lang Construction Co. v. Du Pont Co............... 956
Lyons v. Weems............................................ 962
Mac. See also Me.
MacMann v. Ellis.......................................... 933
Magnolia Petroleum Co., Comm’rs of Land Office v.........	916
Mahoney v.	Sailors’	Union............................... 915
Mahurin v.	Eidson....................................... 957
Mahurin v.	Morris....................................... 960
Mahurin v.	Tomlinson..................................   957
Mall Tool Co. v. Borg-Warner Corp......................... 946
Malvin v. New Jersey...................................... 967
Manchester v. Gladden..................................... 949
Maneja v. Waialua Agricultural Co......................... 254
Manhat v. United States................................... 966
Manning, Kendrick v....................................... 950
Marcello v. Bonds......................................... 302
Marcias v. California..................................... 967
Marine Cooks & Stewards v. Labor Board................ 909,930
Mason v. Delmore.......................................... 957
Mason & Hanger Co., Rock Drilling Union v................. 915
Massachusetts, Boone v.................................... 964
Massachusetts, Pugliese v................................. 966
Matson Navigation Co. v. Lawler........................... 912
Maynard, Grimes v......................................... 904
Mayo, Harvey v............................................ 965
Me. See also Mac.
Me Almond v. Delmore...................................... 955
McCoy v. Illinois......................................... 931
McCoy v. Michigan......................................... 933
340907 0-55-5
LXVI
TABLE OF CASES REPORTED.
Page
McDonald, Lee .............................................. 948
McGee, Witt ................................................ 961
McGowan v. United States.................................... 944
McKay v. Clackamas County............................... 909,934
McRae v. United States...................................... 925
McRae v. Woods.............................................. 925
Meehan v. California........................................ 922
Meek v. California.......................................... 919
Members of Yonkers Education Board, Ellis v................. 458
Merchants Matrix Cut Syndicate v. United States............. 945
Meyer v. St. Louis Southwestern R. Co....................... 942
Michigan, Cammarata v....................................... 953
Michigan, Curtis ........................................... 967
Michigan, Faubert v......................................... 908
Michigan, Janowicz ......................................... 923
Michigan, Lawson ........................................... 941
Michigan, McCoy ............................................ 933
Michigan, Moriconi ......................................... 933
Michigan, Newton ........................................... 919
Michigan, Pickett v......................................... 937
Michigan Dept, of Revenue, National Bank v.................. 934
Michigan-Wisconsin Pipe Line Co. v. Corporation Comm’n...	908
Milan v. Kentucky........................................... 964
Miller, Vaughan v........................................... 920
Minker, United States v..................................... 904
Minnesota, Kubus v.......................................... 959
Mississippi, Johnson v...................................... 946
Mississippi, Lewis v........................................ 907
Mississippi v. Louisiana.................................... 935
Mississippi, Sorber v....................................... 948
Mississippi Public Service Comm’n, Illinois Cent. R. Co. v.	908
Mississippi Public Service	Comm’n, I. C. C. v............... 908
Mississippi River Fuel Corp., Wright v...................... 935
Missouri, Doris v........................................... 968
Missouri, Harrison v........................................ 948
Mitchell v. California...................................... 962
Mitchell v. King Packing	Co....................... 914
Mitchell v. Looney....*..................................... 927
Mitchell v. Myrtle Grove	Packing Co................... 937
Mitchell, Steiner v......................................... 914
Mitchell v. Vollmer & Co................................ 427,	918
Mondakota Gas Co. v. Montana-Dakota Utilities Co...........	969
Montana-Dakota Utilities Co., Mondakota Gas Co. v..........	969
Moore, Jackson v............................................ 933
TABLE OF CASES REPORTED.
LXVII
Page
Monconi v. Michigan......................................... 933
Morris, Mahurin v........................................... 960
Moyle v. Teets.............................................. 965
Murchison, In re............................................ 133
Myles v. Indiana............................................ 932
Myrtle Grove Packing Co.,	Mitchell v...................... 937
National Airlines v. Scholnik............................... 956
National Bank of Detroit v. Department of Revenue........	934
National Broadcasting Co., Lester v......................... 917
National City Bank v. Republic of China..................... 913
National Labor Relations Board. See Labor Board.
National Lead Co., Rosaire v................................ 916
National Savings & Trust Co. v. Brownell.................... 955
National Screen Service Corp., Lawlor v..................... 322
National Union of Marine Cooks v. Labor Board............ 909,930
Natural Gas Pipeline Co. v. Corporation Comm’n............... 44
Natural Gas Pipeline Co. v. Panoma Corp...................... 44
Nester, Jennings v.......................................... 958
New Jersey, Adonis v........................................ 912
New Jersey, Doto v.......................................... 912
New Jersey, Forsythe	v............................... 927,969
New Jersey, Malvin v........................................ 967
New Jersey, Tune v.......................................... 907
New Jersey, Worbetz	v.................................... 941
New Mexico, Texas v......................................... 942
Newport Corp. v. Sampsell................................... 925
Newstead v. Baynes.......................................... 950
Newton v. Michigan.......................................... 919
New York, Brabson v......................................... 941
New York, Condon v.......................................... 961
New York, Fleischman v...................................... 932
New York, Freccia v......................................... 964
New York, Regan v............................................ 58
New York, Squire v.......................................... 924
New York, Von Glahn v....................................... 948
New York, Wohl v............................................ 967
New York Life Ins. Co. v. Lake.............................. 917
New York, N. H. & H. R. Co., Johnson v...................... 954
Nielson, United States v.................................... 129
Niles v. United States...................................... 939
Nistal v. Hausauer.......................................... 962
Nordeste v. California...................................... 934
Norris v. Smyth........................•.................... 911
North Atlantic & Gulf S. S. Co., Fairbairn v................ 952
Lxviii TABLE OF CASES REPORTED.
Page
Norvell v. Ragen............................................ 924
Norwood v. Kirkpatrick...................................... 29
Obear-Nester Glass Co. v. Commissioner...................... 948
Obery v. United States..................................... 923
O’Grady, Wood v............................................ 939
Ohio, Clifford v........................................... 929
Ohio, Stewart v............................................ 933
Ohio Tax Comm’r, First Federal Savings Assn, v............. 143
Ohio Tax Comm’r, Pure Oil Co. v............................ 925
Ohio Tax Comm’r, Society for Savings v..................... 143
Oklahoma, Lazar v.......................................... 902
Oklahoma City Board of Education, Grimes v................. 903
Oklahoma Corporation Comm’n, Michigan-Wisconsin Co. v...	908
Oklahoma Corporation Comm’n, Natural Gas Co. v.............. 44
Oklahoma Corporation Comm’n, Panhandle Pipe Line Co. v..	908
Oklahoma ex rel. Grimes v. Board of Education.............. 903
Oklahoma ex rel. Land Comm’rs v. Magnolia Co............... 916
Olympic Radio & Television, Inc., United States v.......... 232
Oregon, Elliott v.......................................... 929
Oregon, Federal Power Comm’n v............................. 435
Ortega v. Illinois......................................... 967
Ortega v. Ragen............................................ 940
Osbrink v. Labor Board..................................... 928
Owens v. Cummings.......................................... 968
Pacific Employers Ins. Co. v. Wackerle..................... 955
Pacific Gas & Electric Co. v. Sierra Power Co.............. 937
Page v. Skeen.............................................. 965
Pan American Airways, Froman v............................. 947
Pan-Atlantic S. S. Corp., Ryan Stevedoring Co. v....... 901,926
Panhandle Eastern Pipe Line Co. v. Corporation Comm’n....	908
Panhandle Eastern Pipe Line Co. v. Power Comm’n............ 945
Panoma Corp., Natural Gas Pipeline Co. v.................... 44
Papalardo v. United States.................................. 920
Paramount Pictures, Inc., Applebaum v....................... 961
Parissi v. Telechron, Inc................................... 46
Parker v. United States..................................... 959
Pedreiro, Shaughnessy v..................................... 48
Pellegrini v. Ellis......................................... 932
Pellicer v. Brotherhood of Railway Clerks................... 912
Pennsylvania, Bruce v....................................... 924
Pennsylvania v. Budd Co..................................... 935
Pennsylvania, Donaducy v.................................... 913
Pennsylvania, Lancaster v................................... 966
Pennsylvania ex rel. Herman v.	Claudy....................... 904
TABLE OF CASES REPORTED.
LXIX
Page
Pennsylvania Utility Comm’n, Dillner Co. v................. 903
Perlman, Feldmann v........................................ 952
Permanente S. S. Corp. v. Peterson......................... 953
Perpetual Building & Loan Assn. v. Series Directors........ 911
Peters v. Hobby.................................... 331,903,926
Peterson, Permanente S. S. Corp, v......................... 953
Peterson v. Phillips Petroleum Co.......................... 947
Phillips Petroleum Co., Peterson v......................... 947
Philyaw v. Arkansas........................................ 967
Pickett v. Michigan........................................ 937
Pino v. Landon............................................. 901
Pirman v. Florida State Improvement Comm’n................. 956
Plocar v. Foster........................................... 962
Pollack v. Aspbury......................................... 940
Polygraphic Co., Bernhardt v............................... 943
Pond v. Indiana............................................ 959
Porter v. Smyth............................................ 941
Postmaster General, Davis v................................ 965
Postmaster General v. Sunshine Book Co..................... 921
Potter v. Eidson........................................... 927
Power Comm’n, Hastings v................................... 920
Power Comm’n v. Oregon..................................... 435
Power Comm’n, Panhandle Pipe Line Co. v.................... 945
Power Comm’n v. Sierra Pacific Power Co.................... 937
Pratt v. Department of Army................................ 965
Prince Edward County School Board, Davis v................. 294
Provancher v. Illinois..................................... 958
Pruitt v. United States.................................... 907
Public Service Comm’n, Illinois Central R. Co. v........... 908
Public Service Comm’n, Interstate Commerce Comm’n v......	908
Public Utility Comm’n, Dillner Co. v....................... 903
Pugliese v. Massachusetts.................................. 966
Pure Oil Co. v. Bowers..................................... 925
Quinn v. United States..................................... 155
Ragen, Barr v.............................................. 931
Ragen, Collins v........................................... 950
Ragen, Galle v............................................. 963
Ragen, Haines v............................................ 963
Ragen, Hartfield	v........................................ 956
Ragen, Norvell v........................................... 924
Ragen, Ortega v............................................ 940
Ragen, Randall v........................................... 962
Ragen, Tait v.............................................. 967
Ragen, Washington v........................................ 924
LXX
TABLE OF CASES REPORTED.
Page
Ragen, Woods v.............................................. 964
Ragen, Zieman .............................................. 923
Railway Clerks, Pellicer v.................................. 912
Randall v. Ragen............................................ 962
Randolph, Koss ............................................. 923
Randolph, Lilly ............................................ 924
Reconstruction Finance Corp., Groob v....................... 930
Record Publishing Co. v. Hertz.............................. 912
Reece v. Georgia............................................ 944
Regan v. New York............................................ 58
Regent Theater Co., G. & P. Amusement Co. v................. 904
Republic of China, National	City Bank v..................... 913
Rex Trailer Co. v. United States............................ 937
R. H. Osbrink Mfg. Co. v. Labor Board....................... 928
Rice v. Sioux City Memorial Park Cemetery.................... 70
Ridgeway v. Ridgeway........................................ 925
Rines, In re................................................ 935
RKO Radio Pictures, Inc., Jarrico v......................... 928
Roberson, United States v................................... 954
Robinson v. United States................................... 906
Rock Drilling & Laborers’ Union v. Mason & Hanger Co.....	915
Rodriguez v. Jackson........................................ 963
Rogers v. California........................................ 936
Roodhouse, Brians v......................................... 938
Roodhouse, Colbert ......................................... 938
Rooks v. Ellis.............................................. 949
Rosaire v. National Lead Co................................. 916
Ross v. Teets............................................... 957
Rossi v. United States...................................... 938
Rutledge v. Greeley County	Court........................ 958
Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp.......... 901,926
Sailors’ Union, Mahoney v................................... 915
St. Louis Southwestern R.	Co., Meyer v...................... 942
Sam v. Delmore.............................................. 936
Sampsell, Newport Corp,	v................................. 925
Sawyer v. Stevens........................................... 908
Schnackenberg v. Towle...................................... 939
Scholnik, National Airlines v............................... 956
School Board of Prince Edward County, Davis v............... 294
Schwartz v. Kansas City Southern R. Co...................... 931
Seaboard Air Line R. Co. v. United States................ 902,941
Seay v. United States....................................... 916
Secretary of Air Force, Toth v.............................. 949
Secretary of Air Force, Waterman v.......................... 968
Secretary of Army, Sawyer v................................. 908
TABLE OF CASES REPORTED.
LXXI
Page
Secretary of Interior v. Clackamas	County............... 909,934
Secretary of Labor v. King Packing	Co....................... 914
Secretary of Labor v. Myrtle Grove	Packing	Co............... 937
Secretary of Labor, Steiner v.................................. 914
Secretary of Labor v. Vollmer & Co......................... 427,918
Secretary of State, Fong v..................................... 941
Securities & Exchange Comm’n v. Drexel &	Co........... 910,913
Securities & Exchange Comm’n, Dumaine v........................ 929
Sell v. Day.................................................... 948
Series Directors of Equitable Assn., Perpetual Bldg. Assn. v..	911
Serraille v. Illinois.......................................... 961
Shanks Village Residents Assn. v. Cole......................... 906
Sharpe, Bolling v.............................................. 294
Shaughnessy v. Accardi......................................... 280
Shaughnessy, Couto v........................................... 952
Shaughnessy v. Pedreiro......................................... 48
Shaughnessy v. U. S. ex rel. Accardi........................... 280
Shelton v. United States....................................... 943
Shurman v. United States....................................... 921
Siciliano v. Illinois.......................................... 931
Sierra Pacific Power Co., Federal Power Comm’n v............... 937
Sierra Pacific Power Co., Pacific Gas Co. v.................... 937
Silling, Cato v................................................ 924
Simpson v. Teets............................................... 960
Sinar, Wisconsin Lutheran School Conference v.................. 913
Sioux City Memorial Park Cemetery, Rice v....................... 70
Skeen, Lovejoy v............................................... 940
Skeen, Page v.................................................. 965
Skinner v. United States....................................... 924
Skladd v. Bannan............................................... 925
Smalls v. Atlantic Coast Line.................................. 907
Smart v. Illinois.............................................. 923
Smith v. Texas................................................. 944
Smith v. United States......................................... 932
Smith v. Virginia.............................................. 932
Smyth, Norris v................................................ 911
Smyth, Porter v................................................ 941
Snyder, Fitzpatrick v.......................................... 946
Society for Savings of Cleveland v. Bowers..................... 143
Sorber v. Mississippi.......................................... 948
Southeast Citizens Assn. v. Coe................................ 944
Sproch v. Illinois............................................. 963
Squire v. New York............................................. 924
Standridge v. California Dolomite Co........................... 921
Starr, Danker v................................................ 950
lxxii TABLE OF CASES REPORTED.
Page
State Toll Highway Comm’n, Combs v..................... 942,969
Station Employees, Pellicer v.............................. 912
Steamship Clerks, Pellicer v............................... 912
Steele, Hilderbrand v...................................... 950
Steiner v. Mitchell........................................ 914
Stevens, Sawyer v.......................................... 908
Stewards’ Union v. Labor Board......................... 909,930
Stewart v. Ohio............................................ 933
Stockton Harbor Industrial Co. v. Commissioner............. 904
Strong v. Edmondson........................................ 958
Subversive Control Board, Communist Party of U. S. v......	943
Sullivan v. Heinze..................................... 927,968
Summerfield, Davis v....................................... 965
Summerfield v. Sunshine Book Co............................ 921
Sun Oil Co., Tubular Service Co. v......................... 947
Sunshine Book Co., Summerfield v.........................	921
Superior Court, Bompensiero v.............................. 914
Superior Court, Till v..................................... 933
Swaggerty v. United States................................. 959
Sykes v. Teets......................................... 927,934
Tabor v. Hardwick.......................................... 950
Tait v. Ragen.............................................. 967
Talbott, U. S. ex rel. Toth v.............................. 949
Tax Commissioner, First Federal Savings Assn, v............ 143
Tax Commissioner, Pure Oil Co. v........................... 925
Tax Commissioner, Society for Savings v.................... 143
Taylor v. Illinois......................................... 964
Taylor v. United States.................................... 950
Teets, Harris v............................................ 958
Teets, Moyle v............................................. 965
Teets, Ross v.............................................. 957
Teets, Simpson v........................................... 960
Teets, Sykes v......................................... 927,934
Telechron, Inc., Parissi v.................................. 46
Texas, Barnes v............................................ 919
Texas, Hill v.............................................. 930
Texas, Lefors v............................................ 929
Texas v. New Mexico........................................ 942
Texas, Smith v............................................. 944
Thrailkill v. Baltimore & O. R. Co......................... 956
Thys Co. v. Anglo-California National Bank................. 946
Till v. Superior Court..................................... 933
Tomlinson, Mahurin v....................................... 957
Topeka Board of Education, Brown v......................... 294
Toth v. Talbott............................................ 949
TABLE OF CASES REPORTED. lxxiii
Page
Towle, Schnackenberg v......................................... 939
Trade Comm’n, Dictograph Products, Inc. v...................... 940
Transit Co. v. Commissioner.................................... 945
Tubular Service & Engineering Co. v. Sun Oil Co................ 947
Tune v. New Jersey............................................. 907
Uffelman, Hamilton v........................................... 950
Ullmann v. United States....................................... 951
Union Mfg. Co. v. Labor Board.................................. 921
Union of Candy Workers v. Labor Board.......................... 952
Union of Common Laborers v. Mason & Hanger Co.................. 915
Union of Marine Cooks v. Labor Board....................... 909,930
United States. See also U. S. ex rel.
United States, Affronti v...................................... 951
United States, Alpha Silk Co. v................................ 905
United States, Anglo Chinese Shipping Co. v.................... 938
United States, Bart v.......................................... 219
United States, Bates v......................................... 961
United States, Beasley v....................................... 907
United States, Beaty v......................................... 946
United States, Bell v........................................... 81
United States, Bender v........................................ 920
United States, Berry v......................................... 938
United States, Bianchi v................................... 915,969
United States, Bishop v........................................ 955
United States, Bolesta v....................................... 927
United States, Bruswitz	v.................................... 913
United States, Burden v........................................ 960
United States, Burke v......................................... 926
United States, Byers v......................•.................. 966
United States, Caldwell	v................................ 930,969
United States, Cason v......................................... 966
United States, Cefalu v......................................   952
United States, Consolidated Engineering Corp, v................ 939
United States, Davidson v...................................... 918
United States, De Lorenzo v........................;........... 964
United States, De Moss	v................................ 918
United States, DeRosier	v................................... 921
United States, Desmond	v................................ 911
United States, Dillon v........................................ 914
United States, Dolan v......................................... 923
United States, Edwards	v................................ 961
United States, Electrical	Workers v............................ 917
United States, Emspak v........................................ 190
United States, Finn v.......................................... 906
United States, Frantz v........................................ 954
lxxiv TABLE OF CASES REPORTED.
Page
United States v. General Casualty Co............................ 938
United States, Hanratty v....................................... 928
United States, Harriman ........................................ 928
United States, Hayman v......................................... 959
United States, Hazelcorn ....................................... 930
United States, Henderson v.................................. 920,969
United States, Hightower v...................................... 957
United States, Hilderbrand v.................................... 917
United States, Hill v........................................... 964
United States, Hiller v......................................... 918
United States, Hodge v.......................................... 959
United States, Holbrook v....................................... 915
United States, Hudson v......................................... 968
United States, Hupman v......................................... 953
United States, Indian Towing	Co. v......................... 902,926
United States, Jackson v........................................ 933
United States, James v.......................................... 925
United States, Johnson v........................................ 923
United States, Kreuter v........................................ 932
United States v. Leslie Salt Co................................. 951
United States, Lewis v...................................... 917,954
United States, Local Electrical Workers v....................... 917
United States, Lopiparo v....................................... 969
United States, Manhat v......................................... 966
United States, McGowan v........................................ 944
United States, McRae v.......................................... 925
United States, Merchants Matrix Cut Syndicate v................. 945
United States v. Minker......................................... 904
United States v. Nielson........................................ 129
United States, Niles v.......................................... 939
United States, Obery v.......................................... 923
United States v. Olympic Radio & Television, Inc................ 232
United States, Papalardo v...................................... 920
United States, Parker .......................................... 959
United States, Pruitt v......................................... 907
United States, Quinn v.......................................... 155
United States, Rex Trailer Co. v................................ 937
United States v. Roberson....................................... 954
United States, Robinson v....................................... 906
United States, Rossi v.......................................... 938
United States, Seaboard Air Line R. Co. v................... 902,941
United States, Seay v........................................... 916
United States, Shelton v........................................ 943
United States, Shurman v........................................ 921
United States, Skinner v........................................ 924
TABLE OF CASES REPORTED.
LXXV
Page
United States, Smith v......................................... 932
United States, Swaggerty	v................................... 959
United States, Taylor v........................................ 950
United States, Ullmann v....................................... 951
United States, Vandever	v................................... 963
United States,	Ward	v....................................... 960
United States,	Watts	v....................................... 939
United States, Wheeler v....................................... 944
United States,	White	v....................................... 934
United States	v. Williams.................................... 938
United States,	Winslow v...................................... 922
United States,	Wright v....................................... 919
United States,	Yager v........................................ 963
U. S. District Court, Binkley v................................ 919
U. S. District Court Clerk, Vaughan v.......................... 920
U. S. District Judge, Danker v................................. 950
U. S. District Judge, Groat v.................................. 949
U. S. District Judge, Lancaster v.............................. 950
U. S. District Judge, Norwood v................................. 29
U. S. ex rel. Accardi, Shaughnessy v....t...................... 280
U. S. ex rel. Toth v. Talbott.................................. 949
U. S. Steel Co., Kormuth v..................................... 911
United Truck Lines, Consolidated Freightways v................. 905
Urbain v. Knapp Brothers Mfg. Co............................... 930
Utilities Co. v. Labor Board................................... 953
Utilities Co., Mondakota Gas Co. v............................. 969
Utility Comm’n, Dillner Co. v.................................. 903
Vandever v. United States...................................... 963
Vaughan v. Miller.............................................. 920
Vermont Transit Co.	v.	Commissioner.......................... 945
Virginia, Goodson v............................................ 932
Virginia, Kelley v............................................. 950
Virginia, Smith v.............................................. 932
Vollmer & Co., Mitchell	v................................ 427,918
Von Glahn v. New York.......................................... 948
Vraniak v. Illinois............................................ 963
Wackerle, Pacific Employers Ins. Co. v......................... 955
Waialua Agricultural Co. v. Maneja............................. 254
Wallace v. Copiah County Lumber Co............................. 966
Walters v. Hall................................................ 953
Ward v. United States.......................................... 960
Washington v. Ragen............................................ 924
Waterman v. Secretary of Air Force............................. 968
Watts v. United States......................................... 939
Weaver Bros., DeFoe v...................................... 933,	969
lxxvi TABLE OF CASES REPORTED.
Page
Weems, Lyons ............................................ 962
Weinberg, In re.......................................... 919
Weldon v. Brownell....................................... 949
Wellens v. California.................................... 950
Westbrook v. Illinois.................................... 957
West Edmond Hunton Lime	Unit	v. Young................ 909
Western Maryland Railway,	Hite	v....................... 960
Westinghouse Employees v. Westinghouse Corp.............. 925
West Texas Utilities Co. v. Labor Board.................. 953
Wheeler v. United States................................. 944
White v. United States................................... 934
Whitehouse v. Illinois Central R. Co..................... 366
Whitin Machine Works v. Labor Board...................... 905
Wilburn Boat Co. v. Fireman’s Fund Ins. Co............... 907
Williams, Aircooled Motors, Inc. v....................... 907
Williams v. Delmore...................................... 924
Williams v. Eidson....................................... 934
Williams v. Georgia...................................... 375
Williams, United States v................................ 938
Williamson v. Lee Optical of Oklahoma.................... 925
Wilson v. District of Columbia........................... 963
Wilson v. Homestead Valve Mfg. Co........................ 916
Winding Gulf, The, Boston Metals Co. v................... 122
Winslow v. United States................................. 922
Winston v. Heinze........................................ 906
Wisconsin ex rel. High School Conference v. Sinar........ 913
Wisconsin Lutheran School Conference v. Sinar............ 913
Witt v. McGee............................................ 961
W. J. Dillner Transfer Co. v. Penn. Utility Comm’n....... 903
Wohl v. New York......................................... 967
Wood v. O’Grady.......................................... 939
Woods, McRae v........................................... 925
Woods v. Ragen........................................... 964
Worbetz v. New Jersey.................................... 941
Workman Service Co., Bollotin v.......................... 969
Worthing, Dubin v........................................ 919
Worthington v. Florida................................... 966
Wright, Chicago, R. I. & P. R. Co. v..................... 905
Wright v. Mississippi River	Fuel	Corp.................... 935
Wright v. United States.................................. 919
Yager v. United States................................... 963
Yonkers Board of Education,	Ellis	v...................... 458
Young, West Edmond Hunton Lime Unit v.................... 909
Zakowicki v. Conboy...................................... 968
Zieman v. Ragen.......................................... 923
TABLE OF CASES CITED
Page
Abie State Bank v. Bryan, 282 U. S. 765	383,400
A. B. Kirschbaum Co. v.
Walling, 316 U. S. 517 271,429
Abram v. San Joaquin Oil
Co., 49 F. Supp. 393	271
Accardi v. Shaughnessy, 347
U. S. 260	281-287, 311, 319
Adam v. N. Y. Trust Co., 282 U. S. 814	78
Adams v. Maryland, 347
U. S. 179	173,211
Adamson v. California, 332
U. S. 46	59,65,67
Addison v. Holly Hill, Inc., 322 U. S. 607	260,343
Adriatic, The, 30 T. L. R.
699	95,123,127
Aetna Ins. Co. v. Dunken, 266 U. S. 389	416,418
Aetna Ins. Co. v. Ill. Cent.
R. Co., 302 U. S. 652	78
Aircraft & Diesel Corp. v.
Hirsch, 331 U. S. 752	464
Aiuppa v. United States, 201 F. 2d 287	201
Alabama Fed. of Labor v.
McAdory, 325 U. S. 450 464
Alaska Commercial Co. v.
Williams, 128 F. 362 87,110-112
Alaska Packers Assn. v.
Comm’n, 294 U. S. 532 411,416-422
Alaska S. S. Co. v. United States, 290 U. S. 256	25
Albion, The, [1953] 2 All
Eng. 679	115
Alexander v. Hillman, 296 U. S. 222	300
Alexander v. United States, 181 F. 2d 480	201
All States Freight v. Moda-
relli, 196 F. 2d 1010 30,31,43 Alma Motor Co. v. Timken-
Detroit Co., 329 U. S. 129 338
Page
Alstate Constr. Co. v. Durkin, 345 U. S. 13	270,429
Alton v. Alton, 347 U. S. 610	4,8,13
Alton v. Alton, 347 U. S.
911; 207 F. 2d 667	4
Alton v. Alton, 121 F. Supp. 878	3,15
Amalgamated St. R. Employees v. So. Bus Lines, 172 F. 2d 946	36
American Communications Assn. v. Douds, 339 U. S. 382	349
American Fire Ins. Co. v.
King Co, 250 U. S. 2	415
American R. Exp. Co. v.
Levee, 263 U. S. 19	463
American R. Exp. Co. v.
Rouw Co, 173 Ark. 810	42
Amos v. Prom, Inc, 117 F.
Supp. 615	76
Anderson v. Dunn, 6 Wheat. 204	161,169
Anderson v. Sanderson &
Porter, 146 F. 2d 58	423
Anglo & London-Paris Bank v. Consolidated Bank, 280 U. S. 526	78
Anthony v. Veatch, 189 Ore. 462	439
Anti-Fascist Committee v.
McGrath, 341 U. S. 123 338,349,352
Arbitration of Milius & Co, In re, 305 N. Y. 562	462
Arizona Mng. Co. v. Iron Cap Co, 119 Me. 213	42
Arndstein v. McCarthy, 254 U. S. 71	198
Ashcraft v. Tennessee, 322 U. S. 143	67
Ashmore v. Penn. Towing Co, 4 Dutcher 180	89
Ashwander v. T. V. A, 297 U. S. 288	74
Lxxvn
LXXVIII
TABLE OF CASES CITED.
Page
Association of Employees v.
Westinghouse Corp., 348
U. S. 437	34
Atchison, T. & S. F. R. Co.
v. Sowers, 213 U. S. 55	414
Atlantic Coast Line v. Davis,
185 F. 2d 766	43
Auten v. Auten, 306 N. Y.
752	462
Avery v. Georgia, 345 U. S. 559	378,400,407
Avery v. State, 209 Ga. 116 379,400,402
Bailey v. Richardson, 341
U. S. 918; 86 U. S. App.
D. C. 248	333,338
Baldwin Co. v. Maner, 273
S. W. 2d 28	410, 413,423
Baltimore & O. R. Co. v.
Kepner, 314 U. S. 44	34,38
Baltimore & O. S. R. Co. v.
Voigt, 176 U. S. 498	103
Balzac v. Porto Rico, 258 U. S.298	5
Bank of Commerce v.
Commas, 2 Black 620 144,146
Bank Tax Case, 2 Wall. 200 144,147
Barrows v. Jackson, 346 U. S. 249	72
Bart v. United States, 349 U. S. 219	213
Bart v. United States, 91
U. S. App. D. C. 370
185,187,221,226
Bates v. United States, 348
U. S. 966	918
Batista v. Nicolls, 213 F. 2d 20	49
Bentsen v. Blackwell, 347 U. S. 925	79
Berger v. Berger, 210 F. 2d 403	11
Betts v. Brady, 316 U. S. 455 391
Bigelow v. Old Dominion
Co., 225 U. S. Ill 330
Bisso v. Inland Corp., 349
U. S. 85	123,127,131
Bivins v. McDonald, 50 Ga.
App. 299	384
Blau v. United States, 340
U. S. 159	67,
162,171,184,197,199,206
Page
Blau v. United States, 340 U. S. 332	184
Bloodworth v. Georgia, 161 Ga. 332	387
Boland v. The Oceanica, 215 U. S. 599	87
Bonaparte v. Tax Court, 104
U. S. 592	415
Bond v. Hume, 243 U. S. 15 415
Boston Metals Co. v. The Winding Gulf, 349 U. S. 122	92,95,109,131
Boston Metals Co. v. The Winding Gulf, 209 F. 2d 410	109
Bowie v. Gonzalez, 117 F. 2d 11	262,277
Bowles v. Seminole Rock Co., 325 U. S. 410	355
Boyd v. Grand T. W. R. Co., 338 U. S. 263	91
Boyd v. Nebraska ex rel.
Thayer, 143 U. S. 135	463
Boyd v. United States, 116 U. S. 616	162
Boynton v. Hutchinson Co., 292 U. S. 601	78
Bradford Electric Co. y.
Clapper, 286 U. S. 145 411,416,419
Bridges v. Wixon, 326 U. S. 135	320
Briggs v. Elliott, 342 U. S. 350	299
Brinkmeier v. Missouri P. R.
Co., 224 U. S. 268	464
Brinn, In re, 305 N. Y. 626 462
British Columbia Tug Co. v.
Mylroie, 259 U. S. 1	112
Broderick v. Rosner, 294 U. S. 629	413-415
Brotherhood of Trainmen v.
Templeton, 181 F. 2d 527 370
Brown v. Allen, 344 U. S. 443	401,404
Brown v. Bell Co., 146 Iowa 89	76
Brown v. Georgia, 141 Ga. 783	383
Brown v. Postal Tel. Co., Ill N. C. 187	89
Brown v. St. Louis Trust Co., 348 U. S. 932	79
TABLE OF CASES CITED.
LXXIX
Page
Brown v. Walker, 161 U. S. 591	62,184, 205,206
Brown v. Western R. of Alabama, 338 U. S. 294	463
Brownell v. Rubinstein, 346 U. S. 929	49
Brunner v. United States, 343 U. S. 918; 190 F. 2d 167	162,199
Bruszewski v. United States, 181 F. 2d 419	330
Bryan v. Georgia, 124 Ga. 79 388
Bugajewitz v. Adams, 228
U. S. 585	320,321
Bullen v. Wisconsin, 240 U. S. 625	240
Bunner v. Patti, 343 Mo. 274 409,424
Burch v. Burch, 195 F. 2d 799	7-11 23
Burford v. Sun Oil Co., 319 U. S. 315	396
Burnet v. Sanford & Brooks Co., 282 U. S. 359	250
Butler v. Pennsylvania, 10 How. 402	89
Calaf v. Gonzalez, 127 F. 2d 934	262
Calder v. Bull, 3 Dall. 386 319
California ex rel. Brown v.
St. Louis Trust Co., 348 U. S. 932	79
California Oregon Power Co.
v. Beaver Co., 295 U. S.
142	448,454
Cameron v. United States, 231 U. S. 710	211
Canada Malting Co. v.
Paterson, Ltd., 285 U. S. 413	36
Cardillo v. Liberty Ins. Co., 330 U. S. 469	416,419
Carlson v. United States, 209
F. 2d 209	168
Carpenter v. Common-wealth, 17 How. 456	320
Carpenter v. Shaw, 280 U. S. 363	151
Carter v. Texas, 177 U. S. 442	463
Carter Oil Co. v. Eli, 277 U. S. 573	78
Page
Case v. Bowles, 327 U. S. 92 27
Central Union Tel. Co. v.
Edwardsville, 269 U. S.
190	383,462
Chandler v. Peketz, 297 U. S.
609	416
Chapman, In re, 166 U. S.
661	161,165,169
Charles River Bridge v.
Warren Bridge, 11 Pet.
420	338,349
Chicago & A. R. Co. v.
Wiggins Co., 119 U. S. 615 414
Chicago G. W. R. Co. v.
Comm’n, 294 U. S. 50	373
Chicago, R. I. & P. R. Co.
v. Igoe, 212 F. 2d 378	43
Child Labor Tax Case, 259
U. S. 20	12,28
China, The, 7 Wall.	53	94
Christianson v. King County, 239 U. S. 356	6,19
Cincinnati Soap Co. v.
United States, 301 U. S.
308	5
Cities Service Co. v. Peerless
Co., 340 U. S. 179	45
Civil Rights Cases, 109 U. S.
3	72
Clark v. Williard, 292 U. S.
112	414,426
Cleveland Trust Co. v.
Lander, 184 U. S. Ill 148
Clinton v. Englebrecht, 13 Wall. 434	19
Cobbledick v. United States, 309 U. S. 323	64
Cochran v. Kansas, 316 U. S.
255	66
Collett, Ex parte, 337 U. S.
55	32,37-40
Collett v. Springfield Savings
Soc., 56 Ohio St. 776; 13
Ohio C. C. R. 131	150
Commercial Cable Co. v.
Burleson, 250 U. S. 360 919
Compania de Navigacion v.
Brauer, 168 U. S. 104 104,105
Compania de Navegacion v.
Fireman’s Fund Co., 277
U. S. 66	88,
96,99,105-107,113,114
LXXX
TABLE OF CASES CITED.
Page
Compañía de Navegación v.
Fireman’s Fund Co., 14 F. 2d 196	105,114
Compañía de Navegación v.
The Lisa R., 116 F. Supp. 560	114
Converse v. Hamilton, 224 U. S. 243	416,417
Cooke v. United States, 267
U. S. 517	134,137
Cooley v. Board of Wardens, 12 How. 299	94
Cope v. Cope, 137 U. S. 682 19,24
Cornelious v. Georgia, 193 Ga. 25	388,404,405
Cornell Steamboat Co. v.
United States, 321 U. S.
634	91,96,114
Corry v.Baltimore, 196 U.S. 466	148
Counselman v. Hitchcock, 142 U. S. 547 62,162,173,184,205
Crabb v. Weiden Bros., 164 F. 2d 797	433
Crawley v. Georgia, 151 Ga.
818	386
Cray v. Georgia, 37 Ga. App.
371	386
Cromwell v. Sac County, 94
U. S. 351	326
Crownover v. Crownover, 58
N. M. 597	27
Cumming v. Georgia, 155
Ga. 346	388,396,404
Cummings v. Missouri, 4
Wall. 277	320
Currie v. Georgia, 156 Ga.
85	386
Daly v. United States, 209
F. 2d 232	202
Davis v. Currie, 266 U. S.
182	78
Davis v. Wechsler, 263 U. S.
22	399,463
De la Bouillerie v. De
Vienne, 300 N. Y. 60	42
Delgadillo v. Carmichael, 332 U. S. 388	320
Dennis v. United States, 341
U. S. 494	349
Page
Deputy v. Du Pont, 308
U. S. 488	235,236
Des Moines Nat. Bank v.
Fairweather, 263 U. S. 103 147
Devonshire, The, [1913] P.
13	124
Director of Lands v. Villa-
Abrille, 283 U. S. 785	78
District of Columbia v.
Sweeney, 310 U. S. 631	77
Dixie Pine Co. v. Comm’r, 320 U. S. 516	250
Doran v. United States, 181
F.	2d 489	201
Dowd v. U. S. ex rel. Cook, 340 U.S.206	66
Downes v. Bidwell, 182 U. S.
244	5
Doyal v. Georgia, 73 Ga. 72 386
Duncan v. Thompson, 315
U. S. 1	91
Eccles v. People’s Bank, 333
U. S. 426	373
Echols v. Georgia, 87 Ga.
App. 565	384
Edelman v. California, 344
U. S. 357	79,407
Edge v. State, 200 Ga. 257
402-406
Edmund L. Levy, The, 128
F.	683	87,114
Educational Films Corp. v.
Ward, 282 U. S. 379 146,151
Elgin, J. & E. R. Co. v.
Burley, 325 U. S. 711	372
Elgin, J. & E. R. Co. v.
Churchill, 284 U. S. 589	78
Ellison v. Koswig, 276 U. S.
598	78
E.	Milius & Co., In re, 305
N. Y. 562	462
Empire Gas Co. v. Saunders, 278 U. S. 581	78
Emspak v. United States,
349 U. S. 190
164, 171, 185, 189, 220, 227
Emspak v. United States, 91
U. S. App. D. C. 378
172,185,187
Erie R. Co. v. Kirkendall, 266 U. S. 185	78
Estes v. Potter, 183 F. 2d 865	201
TABLE OF CASES CITED.
LXXXI
Page
Estes v. Union Terminal Co., 89 F. 2d 768	370
Ethridge v. Georgia, 164 Ga. 53	386
Eugene F. Moran, The, 212 U. S. 466	94,126
Ex parte. See name of party.
Express Co. v. Caldwell, 21 Wall. 264	89
Farmers & Mechanics Bank
v. Minnesota, 232 U. S.
516	144
Farmers Reservoir Co. v.
McComb, 337 U. S. 755	278
Federal Communications
Comm’n v. Am. Broad.
Co., 347 U. S. 284	343
Federal Crop Ins. Corp. v.
Merrill, 332 U. S. 380	355
Federal Power Comm’n v.
Niagara Mohawk Corp., 347 U. S. 239	453
Federal Trade Comm’n v.
Claire Co., 274 U. S. 160 372
Federal Trade Comm’n v.
Raladam Co., 316 U. S. 149	328
Feldman v. United States, 322 U. S. 487	69
Fields v. United States, 82
U. S. App. D. C. 354 185,186
Fireman’s Fund Ins. Co. v.
Compania de Navegacion, 19 F. 2d 493	105
First Iowa Electric Coop. v.
Comm’n, 328 U. S. 152 437,445,446,454,455
First Nat. Bank v. Anderson, 269 U. S. 341	463
First Nat. Bank v. United
Air Lines, 342 U. S. 396 414
Fitzgerald Constr. Co. v.
Pedersen, 324 U. S. 720	429
Fletcher v. Peck, 6 Cranch 87	320
Ford Motor Co. v. Ryan, 182
F. 2d 329	36,43
Forfarshire, The, [1908] P.
D. 339	115
Fort Smith S. R. Co. v.
Kansas City S. R. Co., 288 U. S. 587	78
Page
Fox Film Corp. v. Muller, 294 U. S. 696	78
Fox Film Corp. v. Muller, 296 U. S. 207	399
Franklin-Am. Trust Co. v.
St. Louis Trust Co., 286
U. S. 533	78
Fudge v. Georgia, 190 Ga. 340	•	388
Furness, Withy Co. v. Yang-
Tsze Assn, 242 U. S. 430	78
Galvan v. Press, 347 U. S. 522	314
Gamburg v. Ray, 167 La. 865	42
Garland, Ex parte, 4 Wall. 333	320
Gendron v. Burnham, 146 Me. 387	168
General Committee v. M.-K.-T. R. Co, 320. U. S. 323	372
Getchel v. Bradish, 95 Wis. 205	137
Girouard v. United States, 328 U. S. 61	25
Glasser v. United States, 315 U. S. 60	198
Goins v. United States, 306 U. S. 622	78
Gonzales v. United States, 348 U. S. 407	918
Goodman v. United States, 305 U. S. 578	78
Gore v. U. S. Steel Corp, 15 N. J. 301	41
Gorman v. Washington University, 316 U. S. 98	79
Graham v. United States, 99
F. 2d 746	184
Great Lakes Towing Co. v.
Am. S. S. Co, 165 F. 2d 368	88,110
Great Lakes Towing Co. v. Bethlehem Corp, 65 F. 2d 543	109,110
Great Western R. Co. v.
Miller, 19 Mich. 305	36
Greenberg v. United States, 341 U. S. 944	206
Greenberg v. United States, 343 U. S. 918	199,200
340907 0-55-6
LXXXII
TABLE OF CASES CITED.
Page
Gregonis v. Phila. & R. Coal
Co., 235 N. Y. 152	42
Griffin v. McCoach, 313
U. S. 498	416,419,426
Gromer v. Standard Co., 224
U. S. 362	19
Gulf, M. & N. R. Co. v.
Williams, 280 U. S. 526	78
Gulf Oil Corp. v. Gilbert, 330 U. S. 501	30,35,36,39
Gutierres v. Albuquerque
Co., 188 U. S. 545	446
Guy v. Donald, 203 U. S. 399 127
Halcyon Lines v. Haenn
Corp., 342 U. S. 282	116
Hale v. Wyatt, 78 N. H. 214 139
Hall-Scott Motor Co. v. Uni-
versal Co., 122 F. 2d 531
112,113,117
Hammerstein v. Superior
Court, 341 U. S. 491	79
Hancock Nat. Bank v. Farnum, 176 U. S. 640	414
Harisiades v. Shaughnessy,
342 U. S. 580	16,314, 321
Harris v. Georgia, 150 Ga.
680	387
Harris v. Georgia, 188 Ga.
745	386
Harris v. Zion’s Savings
Bank, 313 U. S. 541	78
Heaburg v. Independent Oil
Mill, 46 F. Supp. 751	271
Healey v. United States, 186
F. 2d 164	201
Hecht, In re, 305 N. Y. 800 462
Hecht Co. v. Bowles, 321
U. S. 321	300
Hedgebeth v. North Carolina, 334 U. S. 806	79
Heike v. United States, 227
U. S. 131	206
Heikkila v. Barber, 345
U. S.229	50, 54
Helvering v. Winmill, 305
U. S. 79	355
Herndon v. Georgia, 295
U. S. 441	403
Hoffman v. United States,
341 U. S. 479
162,168,197-200, 206
Hofsaes v. Warden, 302 N. Y. 403	64
Page
Hoke v. United States, 227 U. S. 308	83
Home Savings Bank v. Des
Moines, 205 U. S. 503	152
Hood v. McGehee, 237 U. S.
611	416
Hornbuckle v. Toombs, 18 Wall. 648	19
Hougland, Inc. v. Musco-valley, 184 F. 2d 530 88,110
Houston Oil Co. v. Goodrich, 245 U. S. 440	78
Hubbard v. Georgia, 5 Ga.
App. 599	386
Hughes v. Fetter, 341 U. S.
609	413-415
Hulbert v. Chicago, 202 U. S. 275	407
Humburd v. Crawford, 128 Iowa 743	76
Humphries v. Georgia, 100 Ga. 260	388
Hunt v. Western Cas. Co., 293 U. S. 530	78
Hynes v. Grimes Co., 337 U. S. 86	444
Ickes v. Fox, 300 U. S. 82 454,455
Indian Towing Co. v. United States, 349 U. S. 902	926
Industrial Comm’n v. Mc-
Cartin, 330 U. S. 622 415,419 In re. See name of party.
International Marine Co. v.
Fletcher Co., 296 F. 855 117
International Milling Co. v.
Columbia Co., 292 U. S.
511	42
International Teamsters Union v. Denver Milk Producers, 334 U. S. 809 464 lowa-Des Moines Bank v.
Bennett, 284 U. S. 239	399
Ivey v. State, 4 Ga. App. 828 397
Jackson & Sons v. Lumbermen’s Co., 86 N. H. 341	36
Japanese Immigrant Case, 189 U. S. 86	315
Jennison v. Kirk, 98 U. S. 453	448
Jesionowski v. B. & M. R.
Co., 329 U. S. 452	33
TABLE OF CASES CITED.
LXXXIII
Page
J. F. Fitzgerald Co. v. Pedersen, 324 U. S. 720	429
Jiffy Co. v. Stewart-Warner
Corp., 177 F. 2d 360	31,43
Johannessen v. United
States, 225 U. S. 227 320,321
John Hancock Ins. Co. v.
Yates, 299 U. S. 178 416,418
John J. Feeney, The, 3 F.
Supp. 270	113
Johnson v. Great Lakes Pipe
Co., 358 Mo. 445	424
Johnson v. Muelberger, 340 U. S. 581	27
Johnson v. Thornburgh, 276 U. S. 601	78
Johnson v. Zerbst, 304 U.S.
458	198
Joint Anti-Fascist Committee v. McGrath, 341 U. S.
123	338,349, 352
Jones v. Opelika, 315 U. S.
782	78
Jonty Jenks, The, 54 F. 1021 87,114
Jordan v. State, 22 Ga. 545
396,404
Josephson, In re, 218 F. 2d 174	43
Kasinowitz v. United States, 181 F. 2d 632	201,210
Kato v. Georgia, 33 Ga. App.
342	388
Keller v. Adams-Campbell Co., 264 U. S. 314	78
Kelly v. Ford, Bacon &
Davis, Inc., 162 F. 2d 555 432
Kemper v. Gluck, 327 Mo.
733	425
Kerotest Co. v. C-O-Two
Co., 342 U. S. 180	39
Kiewel v. United States, 204
F. 2d 1	202
Kilbourn v. Thompson, 103
U. S. 168	161,169
King v. State, 174 Ga. 432 402
Kirby v. Pennsylvania R.
Co., 188 F. 2d 793	370
Kirschbaum Co. v. Walling, 316U. S. 517	271,429
Klaxon Co. v. Stentor Co., 313 U. S.487	416,417,426
Page
Koepfle v. Garavaglia, 200 F. 2d 191	433
Kookaburra, The, 69 F. 2d 71	126
Koster v. Am. Lumbermens
Co., 330 U. S. 518	35,36
Kotch v. Comm’rs, 330 U. S.
552	94
Kutcher v. Gray, 91 U. S.
App. D. C. 266	348
Labor Board v. Pittsburgh
S. S. Co., 340 U. S. 498	365
Labor Board v. Universal * Camera Corp., 190 F. 2d
429	364
Lang v. United States, 286
U. S. 523	78
Langley v. The Syracuse, 14
Fed. Cas. 1115	101
La Société du Gaz v. La
Société de Navigation, [1926] Scot. Sess. Cas. (H. L.) 13	36
Layne & Bowler Corp. v.
Western Works, 261 U. S.
387	78,79
Lewyt Corp. v. Comm’r, 215
F. 2d 518	233
Leyra v. Denno, 347 U. S.
556	67
Liverpool & G. W. S. Co. v.
Phenix Co., 129 U. S. 397 89,91,97,103
Locomotive Engineers v. M.-
K.-T. R. Co., 320 U. S. 323 372 Loftus v. Illinois, 337 U. S.
935	79
Logan v. Bank of Scotland, [1906] 1 K. B. 141	37
Louisville & N. R. Co. v.
Parker, 287 U. S. 569	78
Lowe v. Summers, 69 Mo.
App. 637	167
Lumpkin v. Georgia, 152 Ga.
229	388,404,405
Lynch v. N. Y. ex rel. Pierson, 293 U. S. 52	78,459
Mac. See Me.
Maffie v. United States, 209
F. 2d 225	201,212
Magnolia Petroleum Co. v.
Hunt, 320 U. S. 430 410,420
LXXXIV
TABLE OF CASES CITED.
Page
Magnum Co. v. Coty, 262 U. S. 159	74
Mahler v. Eby, 264 U. S.
32	320,321
Manning v. Seeley Co., 338
U. S. 561	242,251
Marcello v. United States, 196 F. 2d 437	201,212
Marin v. Augedahl, 247 U. S.
142	416
Mason v. United States, 244
U. S. 362	205,206
Maynard v. Hill, 125 U. S.
190	6,7,19
McCarthy, Ex parte, 29 Cal.
395	167
McCarthy v. Arndstein, 266
U. S. 34	173,184
McCarthy v. Bruner, 323
U. S. 673	79
McCulloch v. Maryland, 4 Wheat. 316	144
McCullough v. Kammerer
Corp., 323 U.	S. 327	79
McDonald v. Keeler, 99
N. Y. 463	167
McGoldrick v. Gulf Oil
Corp., 309 U.	S. 2	78
McGrain v. Daugherty, 273
U. S.135	161
McLeod v. Threlkeld, 319
U. S. 491	429
Mellon v. McKinley, 275
U. S. 492	78
Mengel Co. v. Inland Corp.,
34 F. Supp. 685	114
Mercer, The, 14 F. 2d 488	87
Merritt v. Georgia, 152 Ga.
405	386
Miles v. Ill. C. R. Co., 315
U. S. 698	38
Milius & Co., In re, 305
N. Y. 562	462
Miller Bros. Co. v. Maryland, 347 U. S. 340	22
Minnesota v. United States, 305 U. S. 382	444
Missouri ex rel. Mo. Ins. Co.
v. Gehner, 281 U. S. 313
151,399 Missouri-K.-T. R. Co. v.
Texas, 275 U. S. 494	78
Page
Mitchell v. Georgia, 69 Ga.
App. 771	388
Mitchell v. Stinson, 217 F.
2d 210	271
M. J. Cummings, The, 18 F.
178	87,114
Modern Woodmen v. Mixer, 267 U. S. 544	416
Monarch, The, 235 F. 795 88,114 Mondakota Co. v. Montana-
Dakota Co., 194 F. 2d 705 47 Montana v. Lee, 2 Mont. 124	6
Moon v. Georgia, 68 Ga. 687
388, 396,405
Mooney v. Holohan, 294
U. S. 103	391
Moor v. T. & N. O. R. Co., 297 U. S. 101	78
Moss v. Gillioz Co., 206 F. 2d 819	433
Murchison, In re, 340 Mich.
151	136
Murphey v. Reed, 335 U. S.
865	430,432
Murphy, In re, 5 Wyo. 297 19 Mutual Life Ins. Co. v. Mc-
Grew, 188 U. S. 291	407
Myers v. Bethlehem Corp.,
303 U. S. 41	374
Mylroie v. British Columbia
Co., 268 F. 449	88, 111, 112
National Bank v. Commonwealth, 9 Wall. 353	147
National Labor Relations Board. See Labor Board.
National Loan Assn. v. Bra-han, 193 U. S. 635	416,417
National Shawmut Bank v.
Waterville, 285 Mass. 252 36
Natural Gas Co. v. Panoma Corp., 349 U. S. 44	908
Naughton v. Pennsylvania
R. Co., 85 F. Supp. 761	30
Nebraska v. Wyoming, 325
U. S. 589	448,453
Neff, In re, 206 F. 2d 149 201 New Amsterdam Cas. Co. v.
Boaz-Kiel Co., 115 F. 2d 950	424
New Jersey Nav. Co. v.
Merchants’ Bank, 6 How.
344	104,105
TABLE OF CASES CITED.
LXXXV
Page
New Jersey Realty Co. v.
Tax Appeals, 338 U.S. 665 144,151
Newport News Dock Co. v.
United States, 34 F. 2d 100	117
New York Central R. Co. v.
The Talisman, 288 U. S. 239	108
New York Central R. Co. v.
White, 243 U. S. 188	432
New York, C. & St. L. R.
Co. v. Granfell, 278 U. S. 576	78
New York ex rei. Bank of
Commerce v. Comm’rs, 2
Black 620	144,146
New York Life Ins. Co. v.
Head, 234 U. S. 149 416,418
Ng Fung Ho v. White, 259 U. S. 276	320
Nicol v. Koscinski, 188 F. 2d 537	36,43
Nielson v. United States, 209 F. 2d 958	109
Nieves v. Standard Corp., 152 F. 2d 719	432
Nord v. Griffin, 86 F. 2d 481 370
Norris v. Alabama, 294 U. S. 587	393
Norris v. State, 229 Ala. 226 393
North River Barge Line v.
Chile Co., 213 F. 2d 882	92
Norwegian Nitrogen Co. v.
United States, 288 U. S. 294	355
O’Berry v. Georgia, 153 Ga. 644	386
Oceanica, The, 144 F. 301 87,114
Oceanica, The, 170 F. 893 87,97,108,109,114
Offutt v. United States, 348 U. S. 11	136,141
Ogden v. Saunders, 12 Wheat. 213	319
Ohio v. Chattanooga Tank
Co., 289 U. S. 439	415
Oklahoma v. Long Bell Co., 22 Okla. 890	19
Oklahoma ex rei. Phillips v.
Atkinson Co., 313 U. S.
508	453
Page
Oliver, In re, 333 U. S. 257
134,140,141
Olmsted v. Olmsted, 216
U. S. 386	416,417
O’Neill v. Cunard, Ltd., 160
F. 2d 446	42
Order of R. Conductors v.
Pitney, 326 U. S. 561	372
Order of R. Telegraphers v.
N. O., T. & M. R. Co., 156 F. 2d 1	370
Order of United Travelers v.
Wolfe, 331 U. S. 586 416,418
Overstreet v. North Shore
Corp, 318 U. S. 125	429
Pacific Employers Ins. Co. v.
Comm’n, 306 U. S. 493
410-422
Pacific Maru, The, 8 F. 2d 166	88,114
Palko v. Connecticut, 302 U. S. 319	65
Paolo v. Garfinkel, 200 F. 2d 280	52
Parker v. Illinois, 333 U. S.
571	383,403,462
Parker v. Los Angeles, 338
U. S. 327	79
Parks v. Georgia, 204 Ga. 41 383
Patterson v. Alabama, 294
U. S. 600	389-396
Patterson v. Georgia, 208
Ga. 689	384
Patterson v. State, 229 Ala.
270	393
Pennsylvania Ins. Co. v.
Gold Issue Co, 243 U. S.
93	414
Pennsylvania R. Co. v. Ill.
Brick Co, 297 U. S. 447 383
People v. Daniels, 6 Utah 288	6,11,19
People ex rel. Hofsaes v.
Warden, 302 N. Y. 403	64
People ex rel. McDonald v.
Keeler, 99 N. Y. 463	167
Perrett v. Georgia, 16 Ga.
App. 587	386
Peters v. Equitable Assur.
Co, 196 Mass. 143	42
Petterson Corp. v. The J.
Raymond Russell, 87 F.
Supp. 467	113
LXXXVI
TABLE OF CASES CITED.
Page
Phillips v. Atkinson, 313 U. S. 508	453
Phillips Petroleum Co. v.
Oklahoma, 340 U. S. 190 45
Phillips Petroleum Co. v.
Wisconsin, 347 U. S. 672 44 45
Phyle v. Duffy, 334 U. S. 431 79
Pierre v. Louisiana, 306 U. S.
354	383,400
Pink v. A. A. A. Hwy. Express, 314 U. S. 201 416-421
Pope v. Atlantic Coast Line, 345 U. S. 379	38
Poretto v. United States, 196 F. 2d 392	202
Porto Rico v. Rosaly y Castillo, 227 U. S. 270	6,26
President Van Buren, The, 16 Aspinall’s Rep. (N. S.) 444	92,95,115
Primrose, The, 3 F. Supp. 267	113
Public Serv. Comm’n v. Wy-coff Co, 344 U. S. 237	373
Puerto Rico v. Shell Co, 302
U. S. 253	6,10,18
Pulliam v. Georgia, 199 Ga. 709	384
Queen v. London County Council, [1892] 1 Q. B. 190	137
Queen, The, v. Boyes, 1 B. & S. 311	205
Quinn v. United States, 349
U. S. 155	171,180,
185,191,194, 213,220-224
Quinn v. United States, 91
U. S. App. D. C. 344	172
Radio Station WOW v. Johnson, 326 U. S. 120	383
Railroad Co. v. Lockwood, 17 Wall. 357	89,97,103
Railroad Telegraphers v.
N. O, T. & M. R. Co, 156
F. 2d 1	370
Railroad Trainmen v. Templeton, 181 F. 2d 527	370
Railway Conductors v. Pitney, 326 U. S. 561	372
Ramsden, The, [1943] P. D. 46	115
Page
Rassmussen v. United States,
197 U. S. 516	5
Raymond v. C, M. & St. P.
R. Co, 243 U. S. 43 428-431
Raymond v. Chicago Traction Co, 207 U. S. 20	72
Redding v. State, 183 Ga.
704	402-406
Rescue, The, 24 F. 190	114
Rescue Army v. Municipal
Court, 331 U. S. 549	464
Rice v. Sioux City Cemetery, 348 U. S. 880	73
Richmond, The, 19 T. L. R. 29	124
Robinson v. United States, 143 F. 2d 276	82
Rochin v. California, 342 U. S. 165	67
Rodriguez v. Landon, 212 F. 2d 508	52
Rogers v. Alabama, 192 U. S.
226	383,399
Rogers v. Georgia, 129 Ga. 589	384
Rogers v. United States, 340
U. S. 367	173,206,226
Royal Arcanum v. Green, 237 U. S. 531	416
Rubinstein v. Brownell, 92
U. S. App. D. C. 328	49
Russell v. Place, 94 U. S. 606	327
Ryan Stevedoring Co. v. Pan Atlantic Corp, 349 U. S. 901	926
Sacher v. United States, 343 U. S. 1	134,140
Sacramento Nav. Co. v.
Saiz, 273 U. S. 326; 3 F. 2d 759	112
St. Louis Car Co. v. Hostetter, 345 Mo. 102	425
St. Winifred, The, [1913] P. 13	124
Sanchez v. Borras, 283 U. S. 798	78
Santa Fe, P. & P. R. Co. v.
Grant Co, 228 U. S. 177 103
Satterlee v. Matthewson, 2 Pet. 380	319
Saudades, The, 67 F. Supp. 820	42
TABLE OF CASES CITED.
LXXXVII
Page
Savin, Ex parte, 131 U. S. 267	134
Scholl v. McWilliams Co., 169 F. 2d 729	432
Schumacher v. Leslie, 360
Mo. 1238	424,425
Seaboard Air Line R. Co. v.
Johnson, 278 U. S. 576	78
Sea Lion, The, 12 F. 2d 124
88,114
Security Mills Co. v.
Comm’r, 321 U. S. 281 236,242,250 Sevier Comm’n Co. v. Wal-
lowa Bank, 287 U. S. 575	78
Shapiro v. Bonanza Hotel
Co., 185 F. 2d 777	43
Shaughnessy v. Accardi, 349
U. S. 280	281-287, 311,319
Shaughnessy v. Pedreiro, 349
U. S. 48	310
Shelley v. Kraemer, 334 U. S.
1	72
Sinclair v. United States, 279
U. S. 263	165,169,
172-175, 186, 195, 203, 213 Singleton v. United States,
343 U. S. 944	199,206
Skagway, The, 1925 Am.
Mar. Cas. 1133	114
Sky Wav Broad. Corp. v.
F. C. C., 85 U. S. App.
D. C. 425	362
Smith v. Georgia, 2 Ga. App.
574	385, 386,402
Smith v. Pierce, 1 La. 350
89,94
Smith v. United States, 337
U. S. 137	162,184,196,198
Snowden v. Hughes, 321
U. S. 1	72
Snowden v. Red River Dist., 284 U. S. 592	78
Snyder v. Massachusetts, 291
U. S. 97	65
Somers N. Smith, The, 120
F. 569	88,114
Southern Cal. Edison Co. v.
Herminghaus, 275 U. S.
486	78
Southern Power Co. v. N. C.
Pub. Serv. Co., 263 U. S.
508	78
Page Sovereign Camp v. Bolin,
305 U. S. 66	416
Standard Pipe Line Co. v.
Comm’rs, 278 U. S. 558	78
State. See also name of State.
State Auto. Ins. Assn. v.
Glick, 294 U. S. 697	78
State ex rel. St. Louis Car
Co. v. Hostetter, 345 Mo. 102	425
State ex rel. Wors v. Hostetter, 343 Mo. 945	425
State Farm Ins. Co. v. Duel, 324 U. S. 154	416,419
Steamer Syracuse, The, 12 Wall. 167	86-88,
95,99-107,112,114
Steamer Syracuse, The, 23 Fed. Cas. 593	101,114
Stembridge v. Georgia, 343 U. S. 541	79,459
Stevens v. The White City, 285 U. S. 195	97,116
Stimson Lumber Co. v.
Kuykendall, 275 U. S. 207 96 Street R. Employees v. So.
Bus Lines, 172 F. 2d 946	36
Sturgis v. Boyer, 24 How.
110	126
Sun Oil Co. v. Dalzell Co.,
287 U. S. 291	92-100,
106,108,117,127,131 Sun Oil Co. v. Dalzell Co.,
55 F. 2d 63	93
Superior Court v. Lillefloren,
335 U. S. 906	79
Supreme Council v. Green,
237 U. S. 531	416
Sutter v. Midland V. R. Co., 280 U. S. 521	78
Swift & Co. v. Hocking V. R.
Co., 243 U. S. 281	204
Tasmania, The, 13 P. D. 110 115 Tax Comm’n v. Wilbur, 304
U. S. 544	78
Taylor v. Georgia, 121 Ga.
348	388
Taylor v. State, 132 Ga. 235 401 Teamsters Union v. Denver
Milk Producers, 334 U. S.
809	464
lxxxviii TABLE OF CASES CITED.
Page
10 E. 40th St. Bldg., Inc. v.
Callus, 325 U. S. 578	272
Ten Eyck v. Director of Railroads, 267 F. 974	87
Tennessee C., I. & R. Co. v.
George, 233 U. S. 354 414, 415
Terral v. Burke Co., 257 U. S. 529	66
Terrill v. Terrill, 2 Alaska 475	9
Territory. See also name of Territory.
Territory v. Long Bell Co., 22 Okla. 890	19
Terry v. Adams, 345 U. S. 461	72
Texas & N. 0. R. Co. v.
Neill, 302 U. S. 645	78
Tiaco v. Forbes, 228 U. S. 549	6,10,19
Tobin v. Pennington-Winter Co., 198 F. 2d 334	429
Townsend v. United States, 68 App. D. C. 223	186
Tri-State Transit Co. v.
Mondy, 194 Miss. 714	42
Tumey v. Ohio, 273 U. S. 510	136,142
Twining v. New Jersey, 211 U. S. 78	65,162
Tyre v. Georgia, 38 Ga. App. 206	383
Tyrrell v. District of Columbia, 243 U. S. 1	78
Ulrich v. The Sunbeam, 24
Fed. Cas. 515	90,114
United Service, The, 9 P. D. 3	115
United States. See also U. S. ex rel.
United States v. American Trucking Assns., 310 U. S. 534	278,355
United States v. Bart, Crim.
No. 1746-50 (D. D. C.) 220
United States v. Browder, .
Crim. No. 1784-50 (D. D.
C.)	166
United States v. Burr, 25 Fed. Cas. 38	168,197,199
United States v. Butler, 297
U. S. 1	258, 259
Page
United States v. Chandler-Dunbar Co., 229 U. S. 53 454
United States v. Chicago,
M., St. P. & P. R. Co., 312 U. S. 592	454
United States v. Coffey, 198
F. 2d 438	. 198-206
United States v. Columbia
Steel Co., 334 U. S. 495	328
United States v. Commodore
Park, Inc., 324 U. S. 386 454
United States v. Daisart, Inc., 169 F. 2d 856	196
United States v. Doto, 205 F. 2d 416	202
United States v. Emspak, 95
F.	Supp. 1010	159,193, 220
United States v. Emspak,
Crim. No. 1742-50 (D. D.
C.)	193
United States v. Fitzpatrick, 96 F. Supp. 491	159
United States v. Girgenti, 197 F. 2d 218	202
United States v. Grant Co., 345 U. S. 629	919
United States v. Greenberg, 192 F. 2d 201	200
United States v. Hoffman, 185 F. 2d 617	200
United States v. International Bldg. Co., 345 U. S. 502	327
United States v. Kamp, 102 F. Supp. 757	166
United States v. Koppers
Co., 348 U. S. 254	242,251
United States v. Lovett, 328
U. S. 303	338,349,352
United States v. Matles, Crim. No. 1745-50 (D. D.
C.)	193
United States v. Minnesota, 270 U. S. 181	448
United States v. Monia, 317 U. S. 424	173
United States v. Morgan, 313
U. S. 409	290
United States v. Moser, 266 U. S. 236	326
United States v. Murdock, 284 U. S. 141	186
TABLE OF CASES CITED.
LXXXIX
Page
United States v. Murdock, 290 U. S. 389	213
United States v. Nielson, 349 U. S. 129	109
United States v. O’Donnell, 303 U. S. 501	448
United States v. Olympic Radio, Inc., 349 U. S. 232 237,244,249
United States v. Panzino, Crim. No. 1747-50 (D. D.
C.)	159
United States v. Parker, 120 U. S.89	327
United States v. Quinn, Crim. No. 1744-50 (D. D.
C.)	159
United States v. Raley, 96 F. Supp.495	210
United States v. Rimer, 220 U. S. 547	78
United States v. Rio Grande Irrigation Co., 174 U. S. 690	446
United States v. Rumely, 345 U. S. 41	161,222
United States v. St. Pierre, 128 F. 2d 979	197
United States v. Singleton, 193 F. 2d 464	199
United States v. Trucking Assns., 310 U. S. 534 278,355
United States v. Universal
C.	I. T. Corp., 344 U. S.
218	81
United States v. Utah, 283 U. S. 64	444
United States v. Weisman,
111 F. 2d 260
197,201,206,207
United States v. Wickersham, 201 U. S. 390	345
United States v. Winans, 198 U. S. 371	439
United States v. W. T.
Grant Co., 345 U. S. 629 919
United States v. Zwillman, 108 F. 2d 802	201
U. S. ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 281-287,311,319
Page
U. S. ex rel. Chicago G. W.
R. Co. v. Comm’n, 294
U. S. 50	373
U. S. ex rel. Vajtauer v.
Comm’r, 273 U. S. 103	173
U. S. Merchants’ Ins. Co. v.
A/S Den Norske Afrika, 65 F. 2d 392	41
United Travelers v. Wolfe, 331 U. S. 586	416,418
Universal Camera Corp. v.
Board, 340 U. S. 474 364, 365
Universal Corp. v. Midland
Bank, 281 Mass. 303	36,41
Urie v. Thompson, 337 U. S. 163	383,400
Utah Fuel Co. v. Comm’n, 306 U. S. 56	374
Utilities Ins. Co. v. Potter, 312 U. S. 662	78
Vajtauer v. Comm’r, 273 U. S. 103	173
Van Allen v. Assessors, 3 Wall. 573	147,152
Vandalia R. Co. v. Ind. ex rel. South Bend, 207 U. S. 359	383,400,464
Vanderslice v. The Superior, 28 Fed. Cas. 970	89,114
Van Klaveren v. Killian-
House Co., 210 F. 2d 510 433
Vim, The, 40 F 2d 638 88,114
Virginian R. Co. v. Kirk, 278 U. S. 582	78
Walker v. N. M. & S. P. R.
Co., 165 U. S. 593	19
Wallace v. Georgia, 205 Ga. 751	387
Wallace v. Motor Products
Corp., 279 U. S. 859	78
Walling v. Jacksonville
Paper Co., 317 U. S. 564 272,429
Walter G. Hougland, Inc. v. Muscovalley, 184 F. 2d 530	88,110
Wash Gray, The, 277 U. S.
66	88,96,99,105-107,114
Washington Dept, of Game v. Comm’n, 347 U. S. 936 443
Washington Dept, of Game
v. Comm’n, 207 F. 2d 391 443,446
xc
TABLE OF CASES CITED.
Page
Washington ex rel. Stimson
Co. v. Kuykendall, 275 U. S. 207	96
Watson v. Employers Liability Corp., 348 U. S. 66	413
Wellington, The, 30 T. L. R. 699	123,127
Wells v. Simonds Co., 345 U. S. 514	39,414,415
West Cock, The, [1911] P.
D.	208	115
Westinghouse Employees v.
Westinghouse Corp., 348 U. S. 437	34
Weston v. City Council, 2 Pet. 449	144
White, In re, 340 Mich. 140 136
White v. Ragen, 324 U. S. 760	79
White v. The Mary Ann, 6 Cal. 462	89
Wickard v. Filburn, 317 U. S. Ill	258,259
Wieman v. Updegraff, 344
U. S. 183	338,347
Wilburn Boat Co. v. Fireman’s Fund Co., 348 U. S. 310	116
Wilcoxon v. Aldredge, 192 Ga. 634	388, 397
Williams v. Fanning, 332 U. S. 490	54
Williams v. Georgia, 12 Ga.
App. 337	385
Williams v. State, 210 Ga. 665	404-406
Page
Williams v. State, 31 Ga.
App. 173	397,405
Williamson v. North-Eastern
R. Co., 11 Scot. Sess. Cas.
(4th Ser.) 596	37,41
Wilson v. Wilson, 10 Alaska 616	10
Wiren v. Laws, 90 U. S. App.
D. C. 105	36,43
Wisconsin Electric Co. v.
Dumore Co., 282 U. S. 813 78
Wisconsin ex rel. Getchel v.
Bradish, 95 Wis. 205	137
Wong Yang Sung v. Mc-
Grath, 339 U. S. 33
306,315,316
Wood v. United States, 75
U. S. App. D. C. 274’	184
Wooden v. Austin, 51 Barb.
9	89
Woodmen of the World v.
Bolin, 305 U. S. 66	416
Woods v. Nierstheimer, 328
U. S. 211	79
Wors v. Hostetter, 343 Mo.
945	425
Wors v. Tarlton, 234 Mo.
App. 1173	425
Wright v. Davis, 184 Ga.
846	384
Wuttke, In re, 305 N. Y.
694	462
Youngstown Sheet Co. v.
Sawyer, 343 U. S. 579
349,350
TABLE OF STATUTES CITED
(A) Statutes of the United States.
Page
1850, Sept. 9, c. 49, 9 Stat. 446 .................... 1
1866, July 26, c. 262, § 9, 14 Stat. 251................... 435
1870, July 9, c. 235, § 17, 16
Stat. 217.................... 435
1877, Mar. 3, c. 107, 19 Stat.
377 ......................... 435
1886, July 30, c. 818, 24 Stat.
170............................ 1
1900, Apr. 12, c. 191, 31 Stat.
77............................. 1
Apr. 30, c. 339, 31 Stat.
141............................ 1
1902, June 17, c. 1093, 32 Stat. 388................... 435
1910, Apr. 5, c. 143, §6, 36
Stat. 291..................... 29
June 25, c. 395, § 2, 36
Stat. 825..................... 81
June 25, c. 421, 36 Stat. 847 .................. 435
June 25, c. 431, 36 Stat. 855 .................. 435
1912, Aug. 24, c. 387, 37 Stat.
512............................ 1
1917, Feb. 5, c. 29, § 19, 39 Stat. 874.................... 48
Mar. 2, c. 145, 39 Stat.
951............................ 1
Mar. 3, c. 171, 39 Stat. 1132.............. 1
1918, May 11, c. 72, 40 Stat.
548 .......................... 85
1920, June 10, c. 285, §§ 3, 4, 9, 10, 23, 24, 27, 41 Stat. 1063.................. 435
1926, May 20, c. 347, § 3, 44 Stat. 577............. 366
1933, June 13, c. 64, 48 Stat.
128.......................... 143
1934, June 7, c. 426, 48 Stat.
926 ......................... 366
Page
1935, Aug. 26, c. 687, §§ 3,
4,	49 Stat. 838..... 435
§ 12 ..................... 910
§ 23	435
1936, June 22, c’ 699^ 49 Stat.
1807 ...................... 1
1937, Sept. 1, c. 898, 50 Stat.
903 ........................ 254
1938, June 25, c. 676, § 3, 52
Stat. 1060.............. 254
§7		 254,427
§11	.......... 427
§	13 ......... 254
§15	.......... 427
§	16 ......... 254
§	17 ......... 427
1940, May 22, 54 Stat. 1238.	48
Sept. 18, c. 722, 54
Stat. 898 ................... 85
1946, June 11, c. 324, §§5-7,
60 Stat. 237................ 302
§8		 302,358
§10	........... 48
§	11 ......... 302
§	12 ....... 48,	302
1947, June 23, c. 120, 61
Stat. 136................... 190
§ 10		 358
Aug. 8, c. 519, 61 Stat.
922	254
1948, June 25, c. 646, 62 Stat.
869	29
July 1, c. 783, §19, 62
Stat. 1206................. 280
1949, Oct. 26, c. 736, 63 Stat. 910............. 254,427
1950, Aug. 1, c. 512, 64 Stat.
384 .......................... 1
Sept. 27, c. 1052, 64 Stat. 1044........... 302
1952, June 27, c. 477, §§ 101,
241,	66 Stat. 163... 302
§242	...... 48,302
§244	......... 302
xci
XCII
TABLE OF STATUTES CITED.
Page
1954, July 22, c. 558, 68 Stat. 497................... 1
Aug. 20, c. 769, 68
Stat. 745............ 155,190
Constitution. See Index at end of volume. Internal Revenue Code. §§21,22................... 237
§§ 23,41.............. 232,237
§42		 237
§§43, 48, 122......... 232,237
Judicial Code.
§	1404 ............ 29
Revised Statutes. §859 ................. 190
§3701 ................... 143
§§	4235-4237, 4439, 4442, 4444, 4449, 4450........ 85
U. S. Code.
Title 2, § 192.. 155,190,219
Title 5, § 633 ........ 331
§§ 1001-1008 ............. 302
§ 1009 ............... 48,302
§§1010,1011............... 302
Title 7, §1131........... 254
Title 8, § 155 ........ 280
§ 155a .............. 302
§ 1101 et seq... 48,302 §§ 1251, 1252, 1254. 302
Title 12, § 1461 et seq. 143
Title 15, §26............ 322
Title 16, §§ 791a-825r.. 435
Title 18, §§371, 1001, 2385.. 190 § 2421 ................ 81
§3486 ................... 190
Title 26, §2591 ........ 302
§3806 ..................... 237
Title 28, § 1254 ....... 435
§ 1404 ................... 29
§ 1738 .................. 408
§§1917,2107................ 46
§§2281,2284............... 294
Title 29, § 159 ........ 190
§ 160 ................... 358
§201 et seq... 254,427
Page
U. S. Code—Continued.
Title 29—Continued.
§203 .................... 254
§207 ................ 254,427
§213 .................... 254
Title 31,	§742...... 143
Title 43,	§§321, 661.. 435
Title 45,
§ 51	et seq..... 427
§ 56	............ 29
§ 151	et seq.... 366
Title 46, §§ 183c, 190-192, 211-215, 223, 228, 239, 240, 1300-1308 ................ 85
Title 47, § 307.358
Title 48, §§ 45, 77, 519, 821,	1392,	1405a,
1405o, 1405r, 1406, 1406g, 1423a, 1471, 1541 et seq., 1542, 1561, 1572, 1575.... 1
Title 49, §§ 901-923.... 85 U. S. Code Annotated.
Title 48, § 1574.......... 1
Administrative Procedure
Act ............ 48,302,358
Agricultural Marketing Act. 254
Communications Act....... 358
Compulsory Testimony Act. 155
Desert Land Act.......... 435
Employers’ Liability Act... 29, 427
Evarts Act................ 70
Fair Labor Standards Act.. 254, 427
Federal Communications
Act ................... 358
Federal Employers’ Liability
Act ................ 29,427
Federal Power Act........ 435
Foraker Act................ 1
Home Owners’ Loan Act... 143 Immigration Acts.. 48,280,302 Immigration & Nationality
Act.............. 48,302, 901
Interstate Commerce Act... 85
Judiciary Act............. 70
Labor Management Relations Act............. 358
Mann Act.................. 81
TABLE OF STATUTES CITED.
xeni
Page
Marihuana Tax Act........ 302
Natural Gas Act.......... 44
Organic Act of Alaska....	1
Organic Act of Hawaii....	1
Organic Act of New Mexico.	1
Power Act............... 435
Price Control Act........ 190
Railway Labor Act........ 366
Page
Reclamation Act.......... 435
Revenue Act, 1941........ 237
Smith Act................ 190
Supplemental Appropriation
Act, 1951................ 302
Taft-Hartley Act....... 29,190
Universal Military Training
& Service Act............ 918
(B) Statutes of the States and Territories.
Alaska.
Comp. Laws, 1913, §§ 1293-1306 ......... 1
Arkansas.
1947 Stats., §§81-1301 et seq., 81-1304, 81-1340 ............... 408
California.
Compensation Act...........408
Georgia.
Code Ann., §§ 2-4502, 59-106, 59-803, 70-303 ................ 375
Hawaii.
Rev. Laws, 1945, Tit. 9, c. 75, §§4351-4366.. 254
Iowa.
1953 Laws, c. 84, §§ 1,
8, 9, 12................... 70
Code Ann. (1954 Cum.
Supp.),§566A. 1-11. 70
Massachusetts.
Compensation Act .... 408 Michigan.
Stats. Ann., 1954, §§28.943,28.944....... 133
Missouri.
1953 Laws, § 1, p. 535.. 408
Rev. Stats., 1949,
§§ 287.040,	287.060,
287.110,	287.120,
287.150,	287.380,
287.400, 287.450.......... 408
Compensation Act...........408
New York.
Constitution, Art. I, § 6........ 58
Art. VI, §7............... 458
1953 Laws, c. 891.......... 58
Civil Practice Act, §§ 588,589,592...... 458
Code of Criminal Procedure, § 10......... 58
Education Law, § 414.. 458
Penal Law, §§381, 584, 996 ................. 58
McKinney Lien Law, §80.................. 85
McKinney Navigation
Law, §§41,64,87-98 . 85
McKinney Penal Law, §§ 1501,1913,1961.. 85
New York City Charter, §903 .................. 58
Ohio.
Gen. Code, §§ 5324, 5408, 5411-2, 5412, 5638-1, 5672, 5673, 5673-1, 5673-2........ 143
Oregon.
Comp. Laws, 1940, §§83-116,	119-101,
119-103, 119-106.... 435
Virgin Islands.
1944 Acts, Bill No. 14, §§7-9.................. 1
1953 Acts, Bill No. 55 (3d Sess.), §9......... 1
(C) Treaties.
1855, June 25, 12 Stat. 963
(Indian).....................435
I Treaty of Paris............ 1
I United Nations Charter.... 70
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1954.
GRANVILLE-SMITH v. GRANVILLE-SMITH.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 261. Argued February 3-4, 1955.—Decided April 11, 1955.
By the Organic Act of the Virgin Islands, Congress delegated to their Legislative Assembly authority to enact laws on subjects “of local application.” The Legislative Assembly enacted a divorce law, § 9 (a) of which provides that, if the plaintiff has been continuously within the district for six weeks and the defendant has been personally served or enters a general appearance, the District Court of the Virgin Islands shall have jurisdiction “without further reference to domicile.” Held: Section 9 (a) exceeds the power of the Legislative Assembly, and hence the District Court of the Virgin Islands has no jurisdiction to grant a divorce on a mere showing of continuous presence of the plaintiff in the Virgin Islands for six weeks and entry by the defendant of a general appearance and consent to a default decree. Pp. 2-16.
(a)	The Organic Acts of Alaska and Hawaii limit divorce jurisdiction to cases where the plaintiffs have resided in the territory for at least two years; and it is not reasonable to believe that Congress was less concerned with the scope of divorce jurisdiction in the Virgin Islands, an unincorporated territory, or that it intended to grant them unrestricted freedom in the field of divorce legislation. P. 9.
(b)	The term “local application” in the Organic Act of the Virgin Islands implies limitation to subjects having relevant ties within the territory, to laws growing out of the needs of the Islands and governing relations within them. P. 10.
1
2
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
(c)	In the light of its legislative history, it is obvious that § 9 (a) of the Virgin Islands divorce law was not concerned with the needs and interests of the local population but was passed for the purpose of encouraging persons from other jurisdictions to visit the Virgin Islands to obtain divorces. Pp. 10-16.
(d)	In the circumstances, it cannot be concluded that, if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so. P. 16.
214 F. 2d 820, affirmed.
Abe Fortas argued the cause for petitioner. With him on the brief were George H. T. Dudley and Milton V. Freeman.
By invitation of the Court, 348 U. S. 885, Erwin N. Griswold argued the cause, as amicus curiae, in support of the judgment below. He also filed a brief.
Mr. Justice Frankfurter delivered the opinion of the Court.
This case concerns § 9 (a) of the divorce law of the Virgin Islands:
“Notwithstanding the provisions of sections 8 and 9 hereof, f1] if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant
1 Section 8 deals with annulment and is not here relevant. Section 9 reads as follows: “In an action for the dissolution of the marriage contract or for a legal separation the plaintiff therein must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction without regard to the place where the marriage was solemnized or the cause of action arose.” Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
Section 9 (a) was added by amendment in 1953. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
GRANVILLE-SMITH v. GRANVILLE-SMITH. 3
1	Opinion of the Court.
has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.”
The circumstances of the case and the course of the litigation are briefly stated. Petitioner filed suit for divorce because of “irreconcilable incompatibility”2 in the District Court of the Virgin Islands on March 16, 1953. The complaint alleged that she had been a “resident and inhabitant” of the Islands for more than six weeks prior to the commencement of the action, that respondent was not a resident of the Islands, and that the couple had no children under 21. Through Virgin Islands counsel—authorized by a power of attorney executed in New York—respondent entered an appearance, waived personal service, denied petitioner’s allegations, and filed a “Waiver and Consent” to “hearing of this cause as if by default” and to “such findings of fact and conclusions of law and decree as to the Court may seem just and reasonable.”
Solely on the basis of petitioner’s testimony that she had resided in the Virgin Islands continuously for 43 days before bringing suit, the Commissioner who heard the case found that she was a resident and inhabitant of the Islands and had been so for more than six weeks prior to the action. Having also found that the claimed ground for divorce was substantiated, he recommended that she be granted a divorce. On petitioner’s motion to confirm the Commissioner’s recommendation, the District Court inquired of petitioner’s counsel whether he had “any more evidence to offer on the question of domicile.” Since no further evidence was proffered, the court, relying on its earlier opinion in Alton v. Alton, 121 F. Supp. 878, dis-
2 Section 7 (8), Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
340907 0-55-7
4
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
missed the complaint for want of jurisdiction over petitioner.
The Court of Appeals for the Third Circuit, sitting en banc, affirmed, 214 F. 2d 820, on the basis of its decision in the Alton case, 207 F. 2d 667. In that case, the Court of Appeals, likewise sitting en banc and three judges dissenting, held § 9 (a) in violation of “due process” guaranteed by the Fifth Amendment and the Virgin Islands Organic Act. This Court had granted certiorari in the Alton case, 347 U. S. 911, but intervening mootness aborted disposition on the merits. 347 U. S. 610. The obvious importance of the issue which brought the Alton case here led us to grant certiorari in this case. 348 U. S. 810. In view of the lack of genuine adversary proceedings at any stage in this litigation, the outcome of which could have far-reaching consequences on domestic relations throughout the United States, the Court invited specially qualified counsel “to appear and present oral argument, as amicus curiae, in support of the judgment below.” 348 U. S. 885.
We need not consider any of the substantive questions passed on below and we intimate nothing about them. For we find that Congress did not give the Virgin Islands Legislative Assembly power to enact a law with the radiations of § 9 (a).
Article IV, § 3 of the Constitution gives the Congress authority to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . Accordingly, Congress has from time to time established governments in the various territories that have come under federal control. Territorial government in the continental United States was customarily viewed as a transition step to statehood, and statehood in fact resulted. The Spanish-American War opened a new chapter. Beginning with the Treaty of Paris, the United States acquired by conquest, treaty or
GRANVILLE-SMITH v. GRANVILLE-SMITH. 5
1	Opinion of the Court.
purchase outlying territories for which statehood was not contemplated. The position of these territories in our national scheme gave rise to lively political controversy. Answers to some of the constitutional issues that arose were unfolded in a series of decisions best formulated, perhaps, in opinions by Mr. Chief Justice White3 and Mr. Chief Justice Taft.4
A vital distinction was made between “incorporated” and “unincorporated” territories.5 The first category had the potentialities of statehood like unto continental territories. The United States Constitution, including the Bill of Rights, fully applied to an “incorporated” territory. See, e. g., Rassmussen v. United States, 197 U. S. 516. The second category described possessions of the United States not thought of as future States. To these only some essentials, withal undefined, of the Constitution extended. See, e. g., Balzac v. Porto Rico, 258 U. S. 298. The incidence of the differentiation fell in two areas: (a) the right of the individual to trial by jury and similar protections, e. g., Balzac v. Porto Rico, supra; (b) the right of the Federal Government to tax territorial products on a nonuniform basis, e. g., Downes v. Bidwell, 182 U. S. 244.
The legislative power of territories has customarily been expressed as extending to “all rightful subjects of
3 Beginning with Downes v. Bidwell, 182 U. S. 244, 287-344; see Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Col. L. Rev. 823.
4 In Balzac v. Porto Rico, 258 U. S. 298.
5 Both were distinguished from States. “A state, except as the Federal Constitution otherwise requires, is supreme and independent. ... A dependency [here the Philippines] has no government but that of the United States, except in so far as the United States may permit. . . . [O]ver such a dependency the nation possesses the sovereign powers of the general government plus the powers of a local or a state government in all cases where legislation is possible.” Cincinnati Soap Co. v. United States, 301 U. S. 308, 317.
6
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
legislation” not inconsistent with the Constitution or laws of the United States.6 This conventional phrasing was altered to subjects of “local application,” or “not locally inapplicable,” in the case of unincorporated territories such as pre-Commonwealth Puerto Rico, the Virgin Islands, and Guam.7
The questions that have arisen under grants of legislative powers to territories have fallen into three main classes: (1) those in which the sovereign immunity of the territory was in issue, e. g., Porto Rico v. Rosaly y Castillo, 227 U. S. 270; (2) those in which conflict was claimed with the United States Constitution or laws, e. g., Puerto Rico v. Shell Co., 302 U. S. 253; Territory of Montana v. Lee, 2 Mont. 124; (3) those in which the “rightful” nature of particular territorial legislation was assailed, e. g., Tiaco v. Forbes, 228 U. S. 549; People n. Daniels, 6 Utah 288, 22 P. 159. It is the third group that is our immediate concern. In determining the rightfulness of territorial legislation the courts have considered whether a territorial legislature has transcended the familiar bounds of legislation. See, e. g., Christianson v. King County, 239 U. S. 356. One of the earlier questions regarding the power of territorial legislatures involved the right to pass laws applicable not generally but to specific individuals or portions of a territory. In Maynard v. Hill, 125 U. S. 190, this Court held that a legislative divorce granted without cause by the Oregon Territorial Legislature to a local homesteader was valid though the wife was not in the Territory and had had no notice. The Court relied on the historic practice of individual legislative divorces.8 It is
6 E. g., 37 Stat. 514, 48 U. S. C. § 77 (Alaska).
7 39 Stat. 964, 48 U. S. C. §821 (Puerto Rico); 68 Stat. 500, 48 U. S. C. A. § 1574 (a) (Virgin Islands); 64 Stat. 387, 48 U. S. C. § 1423a (Guam).
8	. . the granting of divorces was a rightful subject of legislation
according to the prevailing judicial opinion of the country, and the
GRANVILLE-SMITH v. GRANVILLE-SMITH. 7
1	Opinion of the Court.
significant, however, that while the litigation was in progress Congress forbade territories to pass “local” or “special” divorce laws. 24 Stat. 170, now 48 U. S. C. § 1471.
The United States acquired the Virgin Islands by purchase from Denmark in 1917,9 but it was not until the Organic Act of 1936 that Congress provided a complete government—including a Legislative Assembly. The Organic Act: (1) labeled the Islands an “insular possession” of the United States, 49 Stat. 1807, 48 U. S. C. § 1405a; (2) endowed the Legislative Assembly (consisting of the two pre-existing municipal councils in joint session) with power to enact laws on “all subjects of local application not inconsistent with . . . this title or the laws of the United States made applicable to said islands, but no law shall be enacted which would impair rights existing or arising by virtue of any treaty entered into by the United States, nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents,” 49 Stat. 1811, 48 U. S. C. § 1405r; (3) enacted a due process clause for the Islands, 49 Stat. 1815, 48 U. S. C. § 1406g; and (4) gave the District Court jurisdiction over “[a] 11 cases of divorce,” 49 Stat. 1814, 48 U. S. C. § 1406 (4).
The Legislative Assembly was held on a checkrein by a presidentially appointed governor who shared with the
understanding of the profession, at the time the organic act of Oregon was passed by Congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature.” 125 U. S., at 209.
9 The local law as it had existed under Danish rule was continued in effect, 39 Stat. 1132, 48 U. S. C. § 1392, subject to change by the two Colonial Councils, the instruments of municipal government for the two districts of the Islands. Presidential approval of any change in this body of law was required. Ibid. Each Colonial Council subsequently passed a divorce law, verbally drawn from that of Alaska. Burch v. Burch, 195 F. 2d 799, 805-806.
8
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
President an absolute veto over legislation. Congress had the customary reserved power to annul legislation. 49 Stat. 1810, 48 U. S. C. § 1405o.
By virtue of the 1936 Organic Act, the Legislative Assembly passed the 1944 divorce law making six weeks’ “residence” by an “inhabitant” sufficient for divorce jurisdiction.10 In 1952, the Court of Appeals for the Third Circuit construed “inhabitant” and “residence” to imply “domiciliary” and “domicile.” Burch n. Burch, 195 F. 2d 799. The legislature thereupon provided that six weeks’ “physical presence” was adequate as a basis for divorce. The Governor vetoed this amendment.11 To overcome the veto, § 9 (a) was enacted. Bill No. 55,17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
Congress passed a revised Organic Act in 1954. Act of July 22, 1954, 68 Stat. 497, 48 U. S. C. A. § 1541 et seq. Previous to the legislation, this Court, on June 1, had dismissed Alton v. Alton, supra, for mootness. Though the judgment below was vacated, the Court of Appeals had expressed its views on the constitutionality of § 9 (a). Certainly no inference favorable to its validity can be drawn from the revised Organic Act.12
10 See note 1, supra.
11 His objection was that the amendment made physical presence sufficient in both ex parte and contested actions.
12 For the first time, the legislation explicitly characterized the Virgin Islands an “unincorporated territory.”
The Senate Report spoke as follows: “S. 3378 declares the Virgin Islands to be ‘an unincorporated territory of the United States of America.’ Thus, their legal status would be distinct and wholly different from that of Hawaii and Alaska, which are Incorporated Territories. . . . [Statehood has unvaryingly been the destiny of all Incorporated Territories. ... On the other hand, there is no precedent ... for statehood for a political, geographic, and economic unit such as the Virgin Islands would become under S. 3378. . . . A still higher degree of self-government and autonomy is, of course, possible within that framework—such as an elective governor when
GRANVILLE-SMITH v. GRANVILLE-SMITH. 9
1	Opinion of the Court.
In giving content to the power to pass legislation having “local application,” two considerations at once obtrude. The phrase most liberally interpreted can be no broader than “all rightful subjects of legislation.” 13 Yet in the Organic Acts of the “incorporated” territories, Alaska and Hawaii, there is specific limitation on divorce jurisdiction to cases where the plaintiff has resided in such territory for at least two years.14 37 Stat. 514, 48 U. S. C. § 45 (Alaska); 31 Stat. 150, 48 U. S. C. § 519 (Hawaii). It is hardly reasonable to believe that Congress was less concerned with the scope of divorce jurisdiction in the “unincorporated” possession of the Virgin Islands, so temptingly near the mainland, and that it intended to give them unrestricted freedom in this sensitive field of legislation. The Virgin Islands divorce law, with the exception of substantive grounds drawn from Danish law, copied that of Alaska. See Compiled Laws of the Territory of Alaska (1913) §§ 1293-1306; cf. Terrill v.
the people are ready for it.” S. Rep. No. 1271, 83d Cong., 2d Sess. 8. Congressman Powell, on the other hand, criticized "... the unwarranted failure of the bill to provide for any advance whatsoever toward increased self-government.” 100 Cong. Rec. 8664.
13 See note 12, supra. The Senate Report on the 1936 Organic Act gives some idea of the legislative purpose: . . the inhabitants of the Virgin Islands . . . are capable of managing their local affairs. Unfortunately, the islands are not yet economically self-supporting. Hence it has been necessary to provide for an amount of Federal control over local affairs commensurate with continuing expenditures of Federal funds to subsidize the local government. . . . Matters of purely local concern are placed within local legislative power. The levying of local taxes and the expenditure of local revenue are authorized. It has not been deemed wise to give the local government power to incur bonded indebtedness so long as local revenue is insufficient to pay the entire cost of local government. Locally enacted bills may be vetoed by the Governor.” S. Rep. No. 1974, 74th Cong., 2d Sess. 2.
14 For the history of the Alaskan provision, see 48 Cong. Rec. 5267-5270, 5293, 5297-5298.
10
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
Terrill, 2 Alaska 475; Wilson v. Wilson, 10 Alaska 616. Secondly, “local application” obviously implies limitation to subjects having relevant ties within the territory,15 to laws growing out of the needs of the Islands and governing relations within them. An example is provided by Puerto Rico v. Shell Co., supra, which involved the validity of a territorial antitrust law. “It requires no argument to demonstrate that a conspiracy in restraint of trade within the borders of Puerto Rico is clearly a local matter, and that it falls within the precise terms of the power granted . . . .” 302 U. S., at 261. And in upholding the power of the Philippine Legislature to deport dangerous aliens, Mr. Justice Holmes, for the Court, observed that “the local government has all civil and judicial power necessary to govern the Islands. . . . It would be strange if a government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the spot.” Tiaco v. Forbes, 228 U. S., at 557.
In such light the decisive question is: was § 9 (a) concerned with the needs and interests of the local population or was it, as amicus pressed upon us, designed for export? 16 For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it
15 Of course a suit for damages brought by a resident of the Virgin Islands for an injury occurring on the mainland, or a suit against a defendant served in the Virgin Islands arising out of a commercial transaction connecting both the Virgin Islands and the mainland, would clearly contain a relevant tie amply affording jurisdiction to the courts of the Virgin Islands.
16 We are dealing here with the bearing of the statute on consensual divorces. So far as these are concerned § 9 (a) is an entirety, for in its application the first part of the section accomplishes precisely the same thing as the second. Under our system of law a judge is not charged with the role of an adversary party, and as such called upon to assume responsibility for rebutting a statutory presumption.
GRANVILLE-SMITH v. GRANVILLE-SMITH. 11
1	Opinion of the Court.
has no point.17 The Virgin Islanders could of course bring themselves within the 1944 law as interpreted in Burch n. Burch, 195 F. 2d 799. They would have no difficulty in making the appropriate showing of connection with the forum. Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands. Cf. Berger v. Berger, 210 F. 2d 403 (C. A. 3d Cir.). It hardly needs proof to read this statute as one designed for people outside the Virgin Islands. The Virgin Islands Legislative Assembly stated the purpose of § 9 (a) with disarming frankness.18
17 Cf. People v. Daniels, 6 Utah 288, 293, 22 P. 159, 160,	. . as
to the extent to which the legislature may act on a rightful subject, when the limit is not expressly fixed, the court must ascertain the limit and determine whether the law is within it. To illustrate: . . . Divorce is also a rightful subject of legislation, but a law giving any married person who might apply to the court a right to a divorce without cause would be invalid.”
18 Three members of the Legislative Assembly addressed themselves to the reasons for changing the result of the Court of Appeals in Burch v. Burch, see p. 8, supra.
Mr. Rohlsen spoke with authority as member in charge of the bill: “The divorce business in the Virgin Islands is quite a thriving business. I understand that this business provides quite an income for the municipalities since it is estimated that over $300,000 a year is spent within the Virgin Islands by persons who have been using the facilities of our divorce law to put their homes in order. Unfortunately, because of an error in the draft of original law . . . and because of the Governor’s attitude ... it now becomes necessary for us to consider another amendment which is designed to enhance this u-coming [sic] business in the islands .... I am not trying to speak for or against the moral ethics of divorce because, as far as I am concerned, those issues were denied when the statute was encted [sic] making it possible for people to come here for divorces. ... I consider this matter as a means of enhancing the economy of our islands . . . .”
“The people of the Virgin Islands have enjoyed great financial benefits by an influx of people to these islands for the purpose of getting divorced. ... I recommend to my colleagues this piece of legislation for their favorable consideration inasmuch as they can
12
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
It is inadmissible to assume that Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders. What Mr. Chief Justice Taft for the Court said in another connection is strikingly applicable here: “All others can see and understand this. How can we properly shut our minds to it?” Child Labor Tax Case, 259 U. S. 20, 37. But it sometimes helps to prove, as well as to see, the obvious.19
see the disadvantage in which the municipalities have been placed by not having the divorce court functioning at the present time.” Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953, pp. 46-47, 66-67.
Moving adoption of the earlier version of §9 (a), which the Governor vetoed but which does not, so far as concerns our problem, differ from § 9 (a), Mr. Richards stated: . . personally I do not see why this Assembly should be deliberating so extensively on this amendment. Only about 2% of the divorces heard and the decisions rendered in the District Courts affect the residents of the Virgin Islands. I should conclude that this law was enacted not to facilitate the bona fide residents of the Virgin Islands but in order to provide as it were source of economic asset to the islands by which people are brought to our shores and contribute to the general economic welfare of the islands. ... I feel proud to see that only a possible of 2 or three resident[s] of the Virgin Islands are involved in divorce cases a year.” Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1953, p. 10.
Mr. Heywood, in discussing the earlier amendment, observed: “This bill No. 54 before us today appears to be in my opinion, a devise [sic] aimed primarily at transients in the islands. ... I am very well aware of the volume of divorce business being carried on in these islands. ... I have heard that there is anticipated a half a million dollars-business in this current year which will be distributed among lawyers, hotel bills, taxi cabs and other business ventures in the Community.” Id., at p. 8.
19 The statistics which follow are derived from these sources: United States Bureau of the Census, Statistical Abstract of the United States: 1954, pp. 9, 63, 85, 940, 942; United States Department of Health, Education, and Welfare, Summary of Marriage and Divorce Statis-
GRANVILLE-SMITH v. GRANVILLE-SMITH. 13
1	Opinion of the Court.
In 1950 the Virgin Islands had 26,665 inhabitants in its 133 square miles; for at least 20 years the population had remained relatively static, and the 1952 census estimates indicate a slight decline. In 1940, 34 divorces were granted in the Islands (1.4 per 1,000 population). In 1951 the figure had reached 312 (12.5 per 1,000). This, per capita, represented the second highest figure for any State or Territory of the United States. Moreover, the Virgin Islands far exceeded its leader, Nevada, in ratio of divorces to marriages. Nevada in 1951 had 55.7 divorces per 1,000 population but at the same time had 289.5 marriage licenses per 1,000. Thus while Nevada granted 5 marriage licenses for every divorce, the Virgin Islands was granting 4 divorces for every 3 marriages. Lest this year be considered unrepresentative, we may look to 1950 and 1952, during which the Islands granted 2 for 1 and 7 for 5 divorces over marriages respectively. Only in the Virgin Islands did divorces exceed marriages during any of the years under consideration. The national average in 1940 was 2.0 divorces and 12.1 marriages per 1,000 population. Apart from some wartime fluctuations, the ratios have been quite stable. In 1951 the average was 2.5 divorces and 10.4 marriages. Thus, while the Virgin Islands was somewhat below the national average for marriages in 1951, it was 5 times the national average for divorce.
In 1952 the Virgin Islands hit its peak of divorces. Three hundred and forty-three were granted (14.3 per 1,000) as opposed to only 237 marriages. But the decisions in Alton v. Alton reduced the divorce figure to 236 in 1953, and only 111 divorces were granted between January and November of 1954.
tics, United States, 1952, pp. 45, 52-53; United States Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Vol. 3, No. 12, Feb. 15, 1955, p. 7; Brief for Petitioner, p.53.
14
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
The extraordinary rate of divorce and the disproportion between marriages and divorces raise controlling doubts of the “local” application of § 9 (a), especially in the context of its legislative history. Such doubts are confirmed by further inquiry. The 1950 Census reveals that only 416 widowed or divorced men and 1,105 widowed or divorced women resided in the Islands.20 Thus the number of divorces in 1951 nearly equalled the total widowed or divorced male population of the Islands. Remarriage can serve only as a partial explanation. Petitioner’s brief reveals a second surprising disproportion. Although the two components of the Islands (the Municipality of St. Croix and the Municipality of St. Thomas and St. John) are nearly equal in population, and although in 1940 St. Croix granted 18 divorces and St. Thomas and St. John 16, by 1952 St. Croix had increased only to 33, whereas St. Thomas and St. John had gone up nearly 2,000% to 310.21 It is not inappropriate to take judicial notice of the considerably greater tourist facilities on the Islands of St. Thomas and St. John.22
We have no information as to the duration of residence of divorcees under the questioned law. But we are advised that contest of jurisdiction occurred in only 1% of the 310 cases concluded in St. Thomas and St. John in 1952 and that contest of the merits was no more frequent. A general appearance—which strips the court of its power to inquire further into domicile—but no contest as to any issue, was the practice in most cases. The clear impact of the legislation, even if we disregard the candid explanations of local political, commercial and
20 United States Bureau of the Census, Statistical Abstract of the United States: 1954, p. 939.
21 Brief for Petitioner, p. 53.
22 See Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 125-127; VIII Virgin Islands Magazine (Special Edition 1954) 7 et seq.; Murray, The Complete Handbook of the Virgin Islands (1951), 12-100.
GRANVILLE-SMITH v. GRANVILLE-SMITH. 15
1	Opinion of the Court.
legal sources 23 and the rapid drop in divorces following the initial decision of unconstitutionality, is to provide a convenient forum for prosperous persons with substantial connections to the mainland, who desire to sever their marital ties while vacationing. The Commissioner in the case at bar did not even ask petitioner where she lived in the Virgin Islands.
The Legislative Assembly is much less liberal toward would-be voters.24 One-year domicile is required. Fur-
23 The St. Croix Chamber of Commerce Newsletter for Feb. 1, 1954, cited the “change in the divorce situation” as one reason for the tourist slump during the previous season. District Judge Moore, who decided both Alton v. Alton, supra, and this case, wrote the Senate Committee on Interior and Insular Affairs: . . the present court is not unsympathetic to the fact that the failure to grant these divorces has affected the economic status of both lawyers and guesthouse keepers . . . .” Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 4, 54.
24 “(b) For the purpose of this law ‘residents of the Virgin Islands’ shall be persons who have maintained legal residence in the Virgin Islands for a period of one year next preceding the date of the election, and in the district in which they desire to vote for a period of sixty days next preceding the election. In all cases of doubt as to legal residence, the Board shall request the registrant to submit substantial and satisfactory proof that the said registrant has fulfilled the legal residence requirement. The domicile, which is the registrant’s legal residence, shall be determined in accordance with the following rules:
“1) Every person has a domicile.
“2) There can be but one domicile.
“3) Legal residence or domicile is the place where a person habitually resides when not called elsewhere to work or for some other temporary purpose and to which such person returns in season for rest.
“4) Legal domicile or residence may be changed by joinder of act and intent.
“5) A domicile cannot be lost until a new one has been acquired. “This subsection shall be strictly enforced by the Board.” Bill No. 86, 18th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1954, c. II, § 1.
16
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
ther, a personal property or income tax on persons physically present for six weeks but with no stronger link to the Islands would no doubt be strongly challenged and of questionable validity.
In the circumstances, we cannot conclude that if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so.
Affirmed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Clark, with whom Mr. Justice Black and Mr. Justice Reed join, dissenting.
A “fundamental tenet of judicial review,” the late Mr. Justice Jackson said, is that “not the wisdom or policy of legislation, but only the power of the legislature, is a fit subject for consideration by the courts.” Jackson, The Struggle for Judicial Supremacy (1941), p. 81. Some 10 years later in Harisiades v. Shaughnessy, 342 U. S. 580, 590, he added that “judicially we must tolerate what personally we may regard as a legislative mistake.”
I must dissent here because I feel that the majority, in striking down the Virgin Islands’ divorce law, is substituting its wisdom and policy for that of the Congress. I fail to see how the Virgin Islands’ failure to require— in form as well as substance—jurisdictional requirements for divorce equal to those presently in vogue in the States is any more than a “legislative mistake.” The Court, however, in the face of an unbroken national history of granting to our territories full authority in legislating on such subjects, declares the Islands’ divorce law invalid on the ground that, rather than being “of local
GRANVILLE-SMITH v. GRANVILLE-SMITH. 17
1	Clark, J., dissenting.
application,”1 it was “designed for export.” In so doing, the Court does violence to the command of the Congress; it overrides a long line of its own decisions, as well as the unanimous opinion in this case of the seven judges of the Court of Appeals for the Third Circuit, each of whom has had long experience with territorial acts; and, finally, it confounds the fundamental law governing our territories which heretofore has gone unquestioned.
What is the Legislative History?
The legislative history of the “subjects of local application” provision, on which the Court grounds its action, shows beyond a doubt that today’s construction was never dreamed of by the Congress.
The Congress first used closely similar language in 1850. The Organic Act for the Territory of New Mexico provided that “the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of New Mexico as elsewhere within the United States.” (Emphasis supplied.) 9 Stat. 452. The Act also declared that the legislative power of the Territory covered “all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act.” 9 Stat. 449.
Fifty years later, the Foraker Act, 31 Stat. 77, establishing a civil government for Puerto Rico, used the same “not locally inapplicable” provision when extending the laws of the United States to that Island. With reference to the powers of the local legislature, the Act repeated this phrasing, extending the local authority to “all matters
1 The words of the Organic Act, however, appear to require that local laws merely be on “subjects of local application.” Divorce, it seems to me, is such a subject.
18
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
of a legislative character not locally inapplicable . . . ,” 2 31 Stat. 83, instead of “rightful subjects of legislation.” After the Foraker Act, the words evolved but little, until now, with the dropping of the double negative, the phrase has become “subjects of local application.”
The majority does not dispute that the legislative power of the Virgin Islands is at least on a par with that of Puerto Rico under the Foraker Act. It does, however, contend that the phrase “of local application” represents a positive limitation on the powers of the Islands below that of a State. That the Virgin Islands has not the quantum of self-government which a State possesses is beyond question. All local laws are subject to the absolute veto shared by the appointive governor and the President of the United States. There are specific limitations on the Islands’ legislative power.3 And Con-
2 Rather than interpreting this as a greater restriction, it would seem more reasonable to me to assume that the Congress, in repeating these words, meant that the legislature, within the specific limitations laid down in the Organic Act, was to exercise the same type of power as Congress could for the Territory, subject, of course, to the power of the Congress. This view is supported by the Government’s argument in Puerto Rico v. Shell Co., 302 U. S. 253, cited by the majority: “The broad grant to a territorial legislature of ‘all local legislative power’ in the Territory, to ‘extend to all matters of a legislative character not locally inapplicable’, in language such as, or similar to, that used in the Organic Act for Puerto Rico, taken in connection with the other provisions of an organic act establishing, as in Puerto Rico, an organized territorial government in accordance with the American system, with legislative, executive and judicial powers, confers (with the exceptions specifically stated in the Organic Act) as plenary local legislative power upon the territorial legislature as that habitually exercised by the legislature of a State.” (Emphasis supplied.) Government brief, p. 31.
3 These include the substance of the Bill of Rights, 48 U. S. C. § 1561, and provisions covering the pay of legislators, 48 U. S. C. § 1572, the extent of the franchise, 48 U. S. C. § 1542, and various aspects of legislative procedure, 48 U. S. C. § 1575.
GRANVILLE-SMITH v. GRANVILLE-SMITH. 19
1	Clark, J., dissenting.
gress has specifically provided that it may annul any local law. 48 U. S. C. § 1574 (c). However, the Islands’ divorce law has been neither vetoed nor annulled.
As the majority points out, “the phrase [of local application] most liberally interpreted can be no broader than ‘all rightful subjects of legislation.’ ” Illiberally interpreted, however, it can be no narrower. The Senate Report on the Foraker bill could not possibly be clearer in saying, with reference to the “not locally inapplicable” phrase, that the “legislative assembly . . . shall have complete power, subject to the veto of the governor and the supervision of Congress, to legislate upon all rightful subjects of legislation.” (Emphasis supplied.) S. Rep. No. 249, 56th Cong., 1st Sess. 3.
What then, has this Court said, is the meaning of “rightful subjects of legislation”? We note that the majority cites People v. Daniels, 6 Utah 288, 22 P. 159, a decision by the territorial court of Utah, that the Territory was “restricted” to “rightful subjects of legislation.” In Cope v. Cope, 137 U. S. 682, 684, decided the following year, this Court held “With the exceptions noted in this section [such as ‘no law shall be passed interfering with the primary disposition of the soil’], the power of the Territorial legislature was apparently as plenary as that of the legislature of a State.” 4
Nor were the Caribbean territories placed on a footing different from that of our other possessions. The debates
4 See also Walker v. Southern Pacific R. Co., 165 U. S. 593, 604 (1897) (New Mexico); Clinton v. Englebrecht, 13 Wall. 434, 441 (1872) (Utah); Hornbuckle v. Toombs, 18 Wall. 648, 655 (1874) (Montana); Gromer n. Standard Dredging Co., 224 U. S. 362, 370 (1912) (Puerto Rico); Christianson v. King County, 239 U. S. 356, 365 (1915) (Washington); Maynard v. Hill, 125 U. S. 190, 204 (1888) (Oregon); Tiaco v. Forbes, 228 U. S. 549 (Philippine Islands); In re Murphy, 5 Wyo. 297, 310, 40 P. 398, 402 (1895) (Wyoming); Territory v. Long Bell Lumber Co., 22 Okla. 890, 898, 99 P. 911, 914-915 (1908) (Oklahoma); 19 Op. Atty. Gen. 335, 338 (Arizona).
340907 0-55-8
20
349 U.S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
show that Congress was not unaware of the nature of the power it was granting to the local legislators in our Caribbean possessions. Rather than asserting that Puerto Rico had been given less power, one Congressman complained that it had been given more power than had been granted to any territory. 54 Cong. Rec. 3008-3009. Likewise, the debates on the Foraker Act and its successors indicate that the Congress thought that our Caribbean possessions had, within specific restrictions, attained self-government, 54 Cong. Rec. 3074; 53 Cong. Rec. 7478. In one of the debates, at 33 Cong. Rec. 3079, one Senator said, “Congress, having supreme legislative power over the Territories and not being expressly restricted by the Constitution, can delegate power to local tribunals for self-government, corresponding with the powers of the States of the Union as to legislation .... Congress has chosen to leave Puerto Rico [and Hawaii] under the control of their local laws.” In the debates somewhat earlier, the view was expressed that there was no “radical difference” between Puerto Rico and the other territories, 33 Cong. Rec. 3084, and that Puerto Rico was to receive local self-government, 53 Cong. Rec. 8470. The debates provide further evidence that the phrase “of local application,” like its ancestral provisions, was not meant as a limitation on the powers of the territories. Again and again in these debates and committee reports, limitations on self-government for the territories are listed. An examination of these listings shows them to be quite complete, but nowhere does the phrase “of local application” or its equivalent appear among them. 53 Cong. Rec. 7479; H. R. Rep. No. 163, 62d Cong., 1st Sess., p. 2 (with reference to Alaska). In fact, nowhere in the hundreds of pages of legislative history of the acts of Congress using this phrase does it appear that Congress ever contemplated that “of
GRANVILLE-SMITH v. GRANVILLE-SMITH. 21
1	Clark, J., dissenting.
local application” might be interpreted as a specific limitation.
The government of our Caribbean possessions has been modified by Congress on various occasions, always definitely in the direction of more self-government. See H. R. Rep. No. 461, 63d Cong., 2d Sess. ; 53 Cong. Rec. 7469. As is common in such enactments, a compromise is reached between those who want still greater independence and those who feel that the present degree of restriction is warranted. Yet, after exhaustive research, we have found nowhere in the debates or hearings, or in the arguments of those supporting complete self-government for the Islands, even a hint that the phrase “of local application” represents any type of a restriction upon the local government, above and beyond our usual concepts of legislative jurisdiction.
In light of this study, it is difficult for me to follow the reasoning of the majority opinion. Apparently, the Court says a statute is not of local application if it is intended to reach beyond its borders, and, since the Islands’ law attracts domiciliarles of other States to the Islands specifically to get divorces, it is ipso facto not “of local application.” Under this reasoning, other laws would not be “of local application.” Five States have divorce laws that certainly attract out-of-staters. Puerto Rico has established “operation bootstrap,” a planned campaign to attract industry to the Island by means of tax benefits and several of the States have similar programs. Probably most clearly analogous to the Virgin Islands divorce law is the corporation law of the State of Delaware, which often attracts enterprises doing no business in that State; except for incorporation there may be no contact between these companies and their “home” State. In view of our relatively abstruse constitutional standards of legislative jurisdiction under the Due Process Clause,
22
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
see Miller Bros. Co. v. Maryland, 347 U. S. 340, it strikes me as completely unreasonable to assume that “of local application,” without the faintest indication of such in the legislative history, was meant to delegate to the Court a novel standard, equally indefinite, which it might apply on an ad hoc basis.
The slenderness of the reed on which the majority depends is further emphasized by the fact that in the 55 years that the “of local application” provision has been used in describing the power of territorial legislatures it has not, so far as I can find, ever been contended in any court, in any judicial opinion, or in any law review or treatise, that the phrase represented any such limitation as the majority has placed upon it.
What Weight Statistics?
I assume the majority agrees that the Islands’ legislature has the power to pass laws on the subject of divorce. In studying this problem, however, it seems to be impressed by the fact that the effect of this law upon the tourist trade (though I assume this too is a local enterprise) was considered of great importance. I had always thought that the courts were not to concern themselves with the motives of the legislature in exercising its powers.
The majority admits that the State of Nevada hands out each year forty times as many divorces per capita as the Virgin Islands.5 The opinion concludes, however, that the Islands are really extending their borders further than Nevada attempts, because their ratio of marriages to divorces is much lower. This approaches the perfect non sequitur. The statistics have no relevance whatever to the question before us. I feel, however, that I should point out some of the reasons for the higher ratio
5 Nevada’s yearly average is about 9,000; the Islands’ highest total is 343, and its 5-year average is about 200.
GRANVILLE-SMITH v. GRANVILLE-SMITH. 23
1	Clark, J., dissenting.
of marriages to divorces in Nevada. First, the Nevada divorce machinery has become so smooth that the hus-band-to-be often flies out to be present at the divorce, gets married in the church next door, and then accompanies his new wife to their “new” domicile. Secondly, Nevada does a thriving business not only in divorcing out-of-staters but in marrying them as well; by requiring no waiting period before marriage, Nevada steals a march on nearby California and other States which attempt to force their often impatient residents to wait three days.6
What Law Would Be “Of Local Application”?
The majority’s holding that the Islands’ law is not “of local application” can be appreciated more fully by asking the question, “What type of a divorce law would be of local application?” The majority does not pass on this, but its whole reasoning is founded on the proposition that only domicile will suffice. The law is not of local application because, “For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point.” Pp. 10-11. Why? Because, says the majority, “Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands.” They are domiciled in the Islands and could of course bring themselves within the 1944 law as interpreted in Burch n. Burch, 195 F. 2d 799, 805. They would have no difficulty in making the “appropriate showing of connection with the forum.” It is crystal clear that any divorce law not requiring domicile will also “be abstractly relevant but practically [will have] no point.” In fact, by definition,
6 This arrangement has taken so many nuptials to Nevada that the marriage trade has also become a very lucrative business. So good, in fact, that Nevada’s legislature has recently found it necessary to settle a squabble between local officials as to who might perform the marriage ceremony. See Reno Evening Gazette, March 21, 1955, p. 11, col. 3; March 23, p. 11, col. 6.
24
349 U.S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
the only people in the Islands who are not mere “sojourners” or “transients” are those domiciled there. Thus the “appropriate showing of connection with the forum” required before the law can be of other than local application is nothing other than the sacred cow of domicile. Is it any more meaningful to ask whether Congress specifically required the Islands to adhere to domicile as a basis for divorce jurisdiction, come what may, than to ask whether “Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to moneymaking by the Islanders”? Congress authorized the Islands in this area to have the power of a State and thought no more about it. If the majority is willing to say that a State is restrained by the Constitution from passing such enactments, that is another story. But it has not done so. The language of Mr. Justice Brown in Cope v. Cope, supra, at 685, is peculiarly appropriate here: “[W]hile it is the duty of the courts to put a construction upon statutes, which shall, so far as possible, be consonant with good morals, we know of no legal principle which would authorize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void, by reason of its failure to conform to our own standard of social and moral obligations. Legislatures are as competent as courts to deal with these subjects, and, in fixing a standard of their own, are beyond our control.”
What Weight Hawaii and Alaska?
To rationalize its Procrustean treatment of the Virgin Islands Organic Act, the majority argues that, since Congress has specifically limited the divorce jurisdiction of Alaska and Hawaii to cases where the plaintiff has resided in the Territory for at least two years, it follows that the Congress must have intended similarly to limit the Islands “so temptingly near the mainland.” This is but another non sequitur. Since 1921 the residence require-
GRANVILLE-SMITH v. GRANVILLE-SMITH. 25
1	Clark, J., dissenting.
ment in the Islands has never been longer than six months; the 1936 Organic Act in effect recognized and continued that requirement; three years thereafter, in 1939, the residence period was reduced to six weeks; and, in the 1944 law, this new requirement was continued. Then, 10 years later, long after the “extraordinary rate of divorce” had occurred and the controversy over the Islands’ law was brought to the attention of the Congress, it adopted, in 1954, a new Organic Act which re-enacted the identical “subjects of local application” provision of the 1936 Act. Cf. Alaska Steamship Co. v. United States, 290 U. S. 256.7
Moreover, the conclusion of the Court that the two-year limitation placed on Alaska and Hawaii casts its shadow on the Islands is “hardly reasonable.” If anything, it would be the more logical to assume the opposite—that the Congress, having placed a specific requirement in the Alaskan and Hawaiian Acts and not in the subsequently passed Act for the Islands, had granted the Islands divorce jurisdiction without any such limitation. It is interesting to note the explanation
7 In addition to all this, I believe the re-enactment by Congress of this provision in 1954 is entitled to extra weight. When the Organic Act came up before Congress, the Third Circuit had construed it to permit the Virgin Islands’ divorce law. Nor does the fact that the majority in the Third Circuit held the Virgin Islands’ law invalid on other grounds change the weight to be given to the re-enactment. Any lawyer would know that, on the constitutional grounds relied on by the one-judge majority, the Supreme Court was just as likely to disagree as to agree. In the not improbable case that the Court held the Virgin Islands’ enactment constitutional, a small change in the Organic Act would be the only way of preventing the operation of this Insular “Pied Piper.” Yet Congress made no such change. As Chief Justice Stone said dissenting in Girouard v. United States, 328 U. S. 61, 75, 76, “in any case it is not lightly to be implied that Congress . . . has delegated to this Court the responsibility of giving new content to language deliberately readopted.”
26
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
of Government counsel on this point in Porto Rico v. Rosaly y Castillo, supra:
“That no provision similar to the one here under discussion is contained in the organic act of Hawaii, passed at the same session [of the Congress] is wholly without significance, when due regard is given to the actual conditions of Congressional draftsmanship. The two acts issued from two different committees, and were actually drawn by different sets of legislators. Instances, such as this case discloses, of the lack of uniformity in similar enactments and general want of scientific draftsmanship, are bound to present themselves . . . .” Page 8, Government Brief.
What Weight Constitutional Doubts?
While the Court’s opinion makes no reference to any constitutional doubts, these may have motivated it in striking down the Islands’ law on the statutory ground. In my opinion this may be an explanation but it is not an excuse. There are limits to which the Court should not run to escape a constitutional adjudication. Admittedly, the doubt that domicile is not a constitutional requirement is not free from doubters. Even though judge-made, it does involve a peculiarly sensitive area of American life. Nevertheless, the Virgin Islands are entitled to a forthright adjudication on their statute—not one by a phantom escape clause.
The constitutional questions presented on brief and at argument involve the Due Process Clause of the Fifth Amendment, the Full Faith and Credit Clause, and the Tenth Amendment. First of all, neither of the Granville-Smiths claims to have been deprived of life, liberty, or property without due process of law. While the State has an interest in the marital relationship, certainly this
GRANVILLE-SMITH v. GRANVILLE-SMITH. 27
1	Clark, J., dissenting.
interest does not come within the protection of the Due Process Clause. Likewise, full faith and credit is not applicable. Mrs. Granville-Smith is not asking that this Court make her divorce, if granted, valid in the States. That issue is not here and may never be. All she asks is that the Islands be permitted to proceed under their own law. In this connection, I find no words in the Constitution which require a Territory to give full faith and credit to the laws of a State.
Nor have the Islands invaded the sphere of activities reserved to the States, contrary to the Tenth Amendment. The “Tenth Amendment Moes not operate as a limitation upon the powers, express or implied, delegated to the national government.’ ” Case v. Bowles, 327 U. S. 92, 102. The Congress has the power to deal with the Islands, granting or withholding from them the powers of a State as it sees fit.
The only constitutional bugaboo is a judge-made one, domicile.8 It creates strange anomalies. A married couple, both of whom desire a divorce, can obtain one in Nevada merely by having one spouse “reside” there uninterruptedly for six weeks, and claim an intention to take up permanent residence there. See, e. g., Business Week, July 14, 1945, p. 24. Then, after divorce, though the divorcee immediately leaves Nevada, as was always intended, both sides here concede that regardless of how evident it is there was no domicile in the divorcing State, no other State can question the validity of the divorce so long as both parties appeared in the action. See Johnson v. Muelberger, 340 U. S. 581. We too agree with the language of Mr. Chief Justice Taft: “All others can see and understand this. How can we properly shut our
8 Even this is being fast undone and “English courts may now grant divorces in many cases where the parties are not domiciled in England.” See 65 Harv. L. Rev. 193, 200. See also Crownover v. Crownover, 58 N. M. 597, 274 P. 2d 127 (1954).
28	OCTOBER TERM, 1954.
Clark, J., dissenting.	349 U. S.
minds to it?” Child Labor Tax Case, 259 U. S. 20, 37.9 Still the Court strikes down the Islands’ law which avoids this judicial fraud.
Divorce is an intensely practical matter, and if a husband and wife domiciled in any State want a divorce enough, we all know that they can secure it in several of our States. This being true, I see no sense in striking down the Islands’ law. There is no virtue in a state of the law the only practical effect of which would be to make New Yorkers fly 2,400 miles over land to Reno instead of 1,450 miles over water to the Virgin Islands.
The only vice of the Virgin Islands’ statute, in an uncontested case like this, is that it makes unnecessary a choice between bigamy and perjury. I think the Court should not discourage this and I would reverse.
9 An article on the Nevada divorce in a popular magazine shows that the people have not closed their minds even if this Court has. “Nevada’s first requirement for a divorce is what lawyers smugly refer to as a ‘legal fiction’: six weeks’ steady residence in Nevada . . . . After this a mild sort of perjury is committed when the applicant mumbles, in reply to the judge’s mumble, that she does intend to continue residence in Nevada.” Holiday, February 1949, p. 98.
NORWOOD v. KIRKPATRICK.
Opinion of the Court.
29
NORWOOD et al. v. KIRKPATRICK, U. S. DISTRICT JUDGE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 337. Argued March 4, 1955—Decided April 11, 1955.
1.	Under 28 U. S. C. § 1404 (a), which provides that “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought,” the district court has a broader discretion than under the doctrine of forum non conveniens. Pp. 29-33.
2.	28 U. S. C. § 1404 (a) is not merely a codification of the doctrine of forum non conveniens. P. 32.
3.	Three dining car employees who were injured in the derailment of an interstate railroad’s train near Dillon, S. C., brought separate suits against the railroad under the Federal Employers’ Liability Act in a Federal District Court in Pennsylvania. The defendant filed motions to dismiss or, in the alternative, to transfer the cases to the Eastern District of South Carolina. The District Court denied the motions to dismiss and granted the motions to transfer under 28 U. S. C. § 1404 (a). Held: The judgment of the District Court was correct in law and warranted by the facts. Pp. 29-33.
Affirmed.
Joseph S. Lord III argued the cause and B. Nathaniel Richter filed a brief for petitioners.
H. Francis DeLone argued the cause for respondent. With him on the brief was William H. Lowery.
Mr. Justice Minton delivered the opinion of the Court.
The three petitioners, dining car employees, filed separate suits in the United States District Court for the Eastern District of Pennsylvania, against the Atlantic Coast Line Railroad Co. They sued under the Federal Employers’ Liability Act for injuries received upon the
30
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
derailment of one of defendant’s trains near Dillon, South Carolina. The defendant filed motions to dismiss or, in the alternative, to transfer the cases to the Florence Division of the Eastern District of South Carolina. The District Court denied the motions to dismiss and granted the motions to transfer under 28 U. S. C. § 1404 (a).*
Since the Court of Appeals for the Third Circuit had held, in All States Freight v. Modarelli, 196 F. 2d 1010, that the order for transfer was not appealable, the petitioners filed applications for mandamus or prohibition to the district judge in order to require him to set aside his orders of transfer. The Court of Appeals denied the applications, and we granted certiorari. 348 U. S. 870.
The cases of the three petitioners present identical questions of law, were consolidated for argument here, and will be disposed of in this opinion.
The district judge in granting the motions to transfer stated that if he had been free to construe § 1404 (a) as he did in the case of Naughton v. Pennsylvania R. Co., 85 F. Supp. 761, he would have denied the transfers because, in his view, it called for an application of the stricter rule of forum non conveniens as recognized in decisions of this Court. See Gulf Oil Corp. v. Gilbert, 330 U. S. 501. But since the Naughton case, the Circuit Court of Appeals for the Third Circuit had held, in All States Freight v. Modarelli, supra, that the district judge had a broader discretion in the application of the statute than under the doctrine of forum non conveniens. The district judge, therefore, followed the rule laid down in the All States Freight case, supra. We think the Court of Appeals correctly rejected the narrower doctrine of forum non conveniens and properly construed the statute.
* “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
NORWOOD v. KIRKPATRICK.
31
29	Opinion of the Court.
As Judge Goodrich, speaking for the court, appropriately pointed out, at p. 1011:
“The forum non conveniens doctrine is quite different from Section 1404 (a). That doctrine involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else. It is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing an action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section 1404 (a) avoids this latter danger. Its words should be considered for what they say, not with preconceived limitations derived from the forum non conveniens doctrine.”
Judge Maris, who was Chairman of the Judicial Conference Committee on the revision of the Code and approved the text submitted to Congress, sat on the Court of Appeals en banc when AU States Freight was decided. And Judge Parker of the Fourth Circuit, consultant to the Advisory Committee, writing for the court in Jiffy Lubricator Co., Inc. v. Stewart-Warner Corp., 177 F. 2d 360, 362, also construed the statute as we understand it:
. A dismissal in application of that [forum non conveniens] or any other principle puts an end to the action and hence is final and appealable. An order transferring it to another district does not end but preserves it as against the running of the statute of limitations and for all other purposes. The notion that 28 U. S. C. A. § 1404 (a) was a mere codification of existing law relating to forum non conveniens is erroneous. It is perfectly clear that the purpose of
32
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
this section of the Revised Judicial Code was to grant broadly the power of transfer for the convenience of parties and witnesses, in the interest of justice, whether dismissal under the doctrine of forum non conveniens would have been appropriate or not.”
See also Moore, Commentary on the Judicial Code (1949 ed.), p. 208.
When Congress adopted § 1404 (a), it intended to do more than just codify the existing law on jorum non conveniens. As this Court said in Ex parte Collett, 337 U. S. 55-61, Congress, in writing § 1404 (a), which was an entirely new section, was revising as well as codifying. The harshest result of the application of the old doctrine of jorum non conveniens, dismissal of the action, was eliminated by the provision in § 1404 (a) for transfer. When the harshest part of the doctrine is excised by statute, it can hardly be called mere codification. As a consequence, we believe that Congress, by the term “for the convenience of parties and witnesses, in the interest of justice,” intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff’s choice of forum is not to be considered, but only that the discretion to be exercised is broader.
It is conceded by the petitioners that if the district judge was correct in exercising his discretion to transfer these cases under § 1404 (a) without regard to the stringent requirements of jorum non conveniens, then the Court of Appeals properly denied the applications for mandamus and prohibition. Since we agree that the district judge correctly construed the statute in evaluating the evidence, we do not find it necessary to detail the facts considered by him in reaching his judgment. It was correct in law and warranted by the facts.
NORWOOD v. KIRKPATRICK.
33
29	Clark, J., dissenting.
Since we find that the district judge properly construed § 1404 (a), it is unnecessary to pass upon the question of whether mandamus or prohibition is a proper remedy.
The judgment is	Affirmed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Clark, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting.
Under this judgment, Alexander Norwood, who lives in Philadelphia where he filed this suit for damages against the railroad, will have to go to South Carolina if he wishes to prosecute it. Joseph Tunstall and John Smallwood, both of whom live in Washington, D. C., will likewise have to go all the way to South Carolina if they hope to recover any damages against the railroad. All three allegedly suffered permanent injuries when a passenger train on which they were employed was derailed. The derailment, with which the plaintiffs had no connection whatever, is sufficient in itself to support a finding of negligence. See Jesionowski v. Boston & Maine R. Co., 329 U. S. 452. Despite these circumstances, the district judge deprived Norwood of a trial in his home town, and Tunstall and Smallwood of one within 150 miles of theirs. This Court’s decision, sustaining that result, sends the case to South Carolina, perhaps preventing it from ever being prosecuted because of the financial condition of the plaintiffs.
This is thought justified by an interpretation of § 1404 (a) of the 1948 revision of the Judicial Code, 28 U. S. C. § 1404 (a). It provides:
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
34
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
As words on a page torn from the history of our judicial development, this direction is utterly meaningless. How great must be the inconvenience before a judge could feel justified in ordering a transfer? When would it be “in the interest of justice” to do so? It is not difficult to imagine the baffled reactions of our judiciary were this mandate not accompanied by some explanation, were it not preceded by some experience in dealing with pleas to decline suits because of inconvenience and injustice. Compare the gropings of this Court and the remainder of the federal judiciary when confronted with the blank pages presented by the celebrated § 301 of Taft-Hartley. See Association of Westinghouse Salaried Employees v. W estinghouse Electric Corp., 348 U. S. 437.
But, fortunately, the command of § 1404 (a) is accompanied by both history and explanation. The Reviser’s Notes state:
“Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 62 S. Ct. 6, 314 U. S. 44, 86 L. Ed. 28, which was prosecuted under the Federal Employer’s Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so.”
The federal courts, in exercising their discretion under this provision, are thus not set adrift on an uncharted sea, to order transfers according to their personal notions of justice. They are explicitly referred to the body of doctrine in Anglo-American law known as forum non con-
NORWOOD v. KIRKPATRICK.
35
29	Clark, J., dissenting.
veniens, a doctrine which was certainly well developed at the time of the passage of the new Code. Indeed, shortly before the revision was introduced in Congress, this Court handed down two decisions setting forth the considerations which should govern the exercise of the trial judge’s discretion. Gulf Oil Corp. v. Gilbert, 330 U. S. 501; Koster v. Lumbermens Mutual Casualty Co., 330 U. S. 518. These opinions clearly evinced the attitude with which these matters should be approached, the standard to be applied:
“It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil Corp., 330 U. S., at 508.
“Where there are only two parties to a dispute, there is good reason why it should be tried in the plaintiff’s home forum if that has been his choice. He should not be deprived of the presumed advantages of his home jurisdiction except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems. In any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown.” Koster, 330 U. S., at 524.
340907 0 - 55 -9
36
349 U.S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
There was a direct reference to the Koster decision in hearings before the Senate Committee considering the 1948 Code. Hearings before a Subcommittee of the Senate Committee on the Judiciary on H. R. 3214, 80th Cong., 2d Sess. 73-74.
The basic issue in this case is whether the district judge should exercise his discretion in the light of these opinions, and in the light of jorum non conveniens doctrine generally (of which these Supreme Court decisions are a particularization), or whether § 1404 (a) expands the range of his discretion to an as yet unstated degree, and removes these decisions and other jorum non conveniens cases as guiding precedents. The Courts of Appeals have divided on the issue. With the opinions cited by the majority, compare Ford Motor Co. n. Ryan, 182 F. 2d 329; Nicol v. Koscinski, 188 F. 2d 537; Wiren v. Laws, 90 U. S. App. D. C. 105, 194 F. 2d 873. But see Amalgamated Assn. v. Southern Bus Lines, 172 F. 2d 946, 948. The section itself is merely a restatement, in very generalized form, of the considerations thought to govern the question of jorum non conveniens. The particular words or their equivalents recur in the cases and literature on the subject.1 The Reviser’s Notes repeat these factors and
1 See Koster v. Lumbermens Mutual Casualty Co., supra, at 527 (“convenience of the parties and the ends of justice”) ; id., at 530 (“interests of justice”) ; Gulf Oil Corp. v. Gilbert, supra, at 507 (“convenience of witnesses and the ends of justice”) ; Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413, 423 (“decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents”) ; National Shawmut Bank v. City of Waterville, 285 Mass. 252, 258, 189 N. E. 92, 95 (“ends of justice”) ; Universal Adjustment Corp. v. Midland Bank, 281 Mass. 303, 313, 184 N. E. 152, 158 (“ends of justice”) ; Great Western R. Co. v. Miller, 19 Mich. 305, 315 (“inconveniences and the danger of injustice”) ; Jackson & Sons v. Lumbermen’s Mutual Casualty Co., 86 N. H. 341, 343, 168 A. 895, 896 (“ends of justice”) ; La Société du Gaz de Paris v. La Société Anonyme de Navigation “Les Armateurs Français,” [1926] Sess. Cas. (H. L.) 13, 16, 18, 22 (“the interests of all the
NORWOOD v. KIRKPATRICK.
37
29	Clark, J., dissenting.
refer explicitly to forum non conveniens. Ordinarily, these considerations, standing alone, would afford cogent grounds for finding that the old doctrine was to continue as the prevailing rule. This Court said as much in Ex parte Collett, 337 U. S. 55, 56, when it posed the issue:
“In this case we must decide whether the venue provisions of the Judicial Code render applicable the doctrine of forum non conveniens to actions under the Federal Employers’ Liability Act.” (Emphasis supplied.)
We held the doctrine was applicable to such cases.
But now it is argued that since § 1404 (a) has changed the judicial response to the inconvenient forum, providing for transfer rather than dismissal, the trial judge may exercise a broader discretion than was permissible under the old rule. The opinion of the Court, adopting this view, goes far toward assigning to the trial judge the choice of forums, a prerogative which has previously rested with the plaintiff. In so doing, the majority completely ignores the judicial and legislative background of forum non conveniens in cases arising under the Federal Employers’ Liability Act.
Section 6 of the FELA was amended in 1910 to permit suits to be brought “in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time
parties, and . . . the ends of justice”); Logan v. Bank of Scotland, [1906] 1 K. B. 141, 149, 150 (“inconvenience” and “injustice”); Williamson v. North-Eastern R. Co., 11 Sess. Cas. (4th Ser.) 596, 598 (“ends of justice”). These cases and their terminology are covered in Barrett, The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. L. Rev. 1; Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908; Dainow, The Inappropriate Forum, 29 Ill. L. Rev. 867; Foster, Place of Trial—Interstate Application of Intrastate Methods of Adjustment, 44 Harv. L. Rev. 41.
38
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
of commencing” the action. 36 Stat. 291, as amended, 45 U. S. C. § 56. We held that the congressional purpose manifested by this provision precluded the application of forum non conveniens to suits under the Act. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44; Miles v. Illinois Central R. Co., 315 U. S. 698. Agitation in Congress to limit venue under the FELA culminated in the attempted passage of the Jennings Bill, H. R. 1639, 80th Cong., 1st Sess.; the bill passed the House by a narrow margin, 93 Cong. Rec. 9193-9194, only to die in the Senate. But the 1948 revision of the Judicial Code, characterized by its legislative leaders as a noncontroversial revision and codification, see Ex parte Collett, supra, at 62, was held to overturn the Kepner and Miles decisions and make forum non conveniens applicable to actions under the FELA. In applying § 1404 (a) to FELA cases, this Court said in Collett:
“The Code, therefore, does not repeal § 6 of the Federal Employers’ Liability Act. We agree with petitioner that Congress had no such intention, as demonstrated by its failure to list the section in the meticulously prepared schedule of statutes repealed. We cannot agree that the order before us effectuates an implied repeal. The inapplicability of forum non conveniens to Liability Act suits derives from the Kepner decision. . . . Congress chose to remove its judicial gloss via another statute.” Id., at 60-61.
Removal of the “judicial gloss” would merely repeal the Kepner doctrine and thus make FELA suits, along with any civil action, subject to forum non conveniens. This Court asserted just that in Pope v. Atlantic Coast Line R. Co., 345 U. S. 379, 383:
“We have heretofore held that § 1404 (a) makes the doctrine of forum non conveniens applicable to
NORWOOD v. KIRKPATRICK.
39
29	Clark, J., dissenting.
Federal Employers’ Liability Act cases brought in federal courts and provides for the transfer of such actions to a more convenient forum. Ex Parte Collett, 337 U. S. 55 (1949).” (Emphasis supplied.)
Again in Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180, 186, we said:
“And if the manufacturer is joined as an unwilling defendant in a jorum non conveniens, he has available upon an appropriate showing the relief provided by § 1404 (a) of the Judicial Code. 62 Stat. 869, 937, 28 U. S. C. § 1404 (a).”
And as late as 1953, Justices Jackson, Black, and Minton, dissenting in Wells v. Simonds Abrasive Co., 345 U. S. 514, 522, made this statement:
“28 U. S. C. § 1404 (a) authorizes certain transfers of any civil action from state to state for the convenience of witnesses or of parties, or in the interests of justice. The purpose was to adopt for federal courts the principles of forum non conveniens. Ex Parte Collett, 337 U. S. 55. These are broad and imprecise and involve such considerations as the state of the court’s docket. Gulf Oil Corp. v. Gilbert, 330 U. S. 501.” (Emphasis supplied.)
None of these cases is even mentioned by the majority. In each is implicit the principle that § 1404 (a) embodies the doctrine of forum non conveniens; in each there is the uniform understanding of members of this Court that the language of § 1404 (a) is merely a paraphrase of that rule. Instead, the majority applies a variation of the old Jennings Bill, which Congress refused to adopt at the same session in which it inserted § 1404 (a) into the new Code. There is certainly nothing even remotely connected with the enactment of § 1404 (a) to indicate that when the section and the Reviser’s Notes referred
40
349 U.S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
to forum non conveniens—particularly as articulated in the then-recent Gulf Oil and Koster cases—they meant the Jennings Bill or anything like it. Still the majority adopts a slight modification of that rejected provision.
Much is made of the fact that there is no legislative record of opposition to the adoption of § 1404 (a). This, if true, is explained by the fact that the Reviser’s Notes, as well as Congress’ refusal to adopt the Jennings Bill, may well have lulled any opposition into a false feeling of security. The statements in Gulf Oil and Koster that the plaintiff’s choice could be disturbed only if “the balance is strongly in favor of the defendant” and that this “rarely” is the case, together with the defeat of the Jennings Bill, is certainly sufficient evidence that Congress had no intention of seriously interfering with an FELA plaintiff’s choice of forum. In this connection, we note the emphasis in Collett, 337 U. S., at 64, on the difference between the Jennings Bill and § 1404 (a); this is narrowed considerably if we permit a larger discretion in the district judge than was available under forum non conveniens.
It is said that we must uphold a clear change in the statute made by the Congress. We certainly agree. But the language of § 1404 (a), considered against the background of judicial discussion in this area, could mean nothing but the doctrine of forum non conveniens, and the Reviser’s Notes state that the purpose of the change was to apply forum non conveniens rules to the transfer of civil cases in the federal courts. The direction of Congress is clear and unmistakable. Our duty is so to interpret § 1404 (a), not to expand and enlarge upon it. Changes of this type should be made by the legislative branch. And the fact that Congress has through codification extended a previously recognized procedure to civil cases generally, with one slight change (i. e., transfer rather than dismissal), does not give this Court
NORWOOD v. KIRKPATRICK.
41
29	Clark, J., dissenting.
a blank check to recast the underlying law to suit its fancy.
Concluding that the prior tenets of forum non conveniens apply, embracing the standards laid down in Gulf Oil and Koster, we cannot help but agree with the district judge that his discretion would have been exercised differently in the instant case if he had applied the law of those decisions. Without detailing all the facts here involved, we note that one of the plaintiffs resided in the district where this suit was brought. Under the usual forum non conveniens approach, this would virtually suffice, in and of itself, to preclude a refusal to retain the case for trial. See Barrett, supra, at 413; Braucher, supra, at 916-917, 919; Dainow, supra, at 880. After all, the forum non conveniens situation generally envisaged is one involving a foreign cause of action and nonresident parties. See Blair, supra, at 34; Foster, supra, at 53. Apparently but one jurisdiction stands squarely behind the proposition that a court may decline to hear a personal injury suit, brought by a bona fide resident, in order to spare the defendant inconvenience and expense. Williamson n. North-Eastern R. Co., supra. That is the law in Scotland, a jurisdiction long noted for its distinctive doctrines in this area.2 Forum non conveniens has
2 Commentators, though endorsing the wider use of jorum non conveniens, have been critical of the decision, Dainow, supra, at 884, n. 73, and have pointed up the civil law basis of its reasoning, Blair, supra, at 21, n. 100.
The reasoning in Gore v. United States Steel Corp., 15 N. J. 301, 104 A. 2d 670 (1954), may be consistent with the Williamson result, but that case, decided after § 1404 (a) and relying on litigation under that section, involved nonresidents. And dicta to the same effect in Universal Adjustment Corp. v. Midland Bank, supra, 281 Mass., at 315, 184 N. E., at 159, must be read in the context of the litigation before the court: suit by a resident assignee of a foreign claim against a foreign corporation. Compare United States Merchants’ & Shippers’ Ins. Co. v. A/S Den Norske Afrika Og Australie Line, 65 F. 2d 392.
42
349 U.S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
no such impact in this country, and, in fact, Koster may be regarded as an extreme decision in depriving a plaintiff of his home forum.3 With this the state of the law, both now and in 1948 when the Code was adopted, we certainly should require a more explicit direction from Congress before depriving an injured party of his privilege under the FELA of bringing suit in his own district—at least when the standards of Koster have not been applied.
The district judge admitted that he had not exercised his discretion in light of Koster and Gulf Oil, the applicable decisions of this Court; he felt bound by a contrary decision of the Court of Appeals. He indicated very clearly that his decision would have been otherwise if he were free to follow the opinions we consider controlling. We should reverse and give the trial judge an opportunity to exercise his discretion under the proper standards.
The question is one of considerable importance in the administration of the lower federal courts, and, considering the inadequacy of appeal, should be settled in this case if it is to be settled at all in the near future. Every appellate court which has passed on § 1404 (a) implicitly recognizes the necessity for settling issues of law under
3 See American Ry. Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S. W. 401; Gamburg v. Ray, 167 La. 865, 120 So. 480; Arizona Commercial Mining Co. v. Iron Cap Copper Co., 119 Me. 213, 110 A. 429; Peters v. Equitable Life Assur. Co., 196 Mass. 143, 81 N. E. 964; Tri-State Transit Co. v. Mondy, 194 Miss. 714, 12 So. 2d 920; Gre-gonis v. Philadelphia & R. Coal & Iron Co., 235 N. Y. 152, 139 N. E. 223; de la Bouillerie v. de Vienne, 300 N. Y. 60, 89 N. E. 2d 15; of. O’Neill v. Cunard White Star, Ltd., 160 F. 2d 446; The Saudades, 67 F. Supp. 820. Even in those cases where the objection is that the suit creates an unreasonable burden on interstate commerce, the fact that suit is brought in the plaintiff’s home forum, though it may lack the near-conclusiveness it has in forum non conveniens cases, is nevertheless a fact of “high significance.” International Milling Co. v. Columbia Transportation Co., 292 U. S. 511, 520.
NORWOOD v. KIRKPATRICK.
43
29	Clark, J., dissenting.
the section. Even those courts which have refused relief, expressing the view that mandamus is an inappropriate remedy, have gone on to discuss the merits of the question presented. In re Josephson, 218 F. 2d 174; All States Freight, Inc. n. Modarelli, 196 F. 2d 1010; cf. Jiffy Lubricator Co. v. Stewart-Warner Corp., 177 F. 2d 360. The Court’s opinion in this case, by reserving the mandamus issue, follows the same course. We note, further, that the majority of Court of Appeals decisions dealing with § 1404 (a) find mandamus appropriate in circumstances less compelling than these. Ford Motor Co. v. Ryan, supra; Atlantic Coast Line R. Co. v. Davis, 185 F. 2d 766; Shapiro v. Bonanza Hotel Co., 185 F. 2d 777; Wiren v. Laws, supra; Chicago, R. I. & P. R. Co. n. Igoe, 212 F. 2d 378; cf. Nicol v. Koscinski, supra.
I would reverse and direct that the transfer application be determined under jorum non conveniens, and particularly the Gulj Oil and Koster decisions. The answer to the majority’s contention that this would unduly curtail a desirable reform is simply that this dispute involves not merely “forum shopping,” but the whittling away by judicial interpretation of the privileges and benefits of working men under the Federal Employers’ Liability Act. The battle over the scope of their rights should be fought out in the Congress—as it was in the case of the Jennings Bill—and not in the courts.
The Reviser’s Notes say that § 1404 (a) goes no further than jorum non conveniens. That was what Congress acted upon, not the private opinion of some of the members of the Reviser’s Committee. These distinguished participants may have thought their reform went beyond Collett. If so, they should have communicated their thought to the Congress where the final responsibility rests.
44
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
NATURAL GAS PIPELINE CO. v. PANOMA CORPORATION et al.
NO. 191. APPEAL FROM THE SUPREME COURT OF OKLAHOMA.*
Argued March 28-29, 1955.—Decided April 11, 1955.
A State may not fix a minimum price to be paid for natural gas, after its production and gathering has ended, by a company which transports the gas for resale in interstate commerce; because such sale and transportation are subject to regulation by the Federal Power Commission exclusively.
271 P. 2d 354 and 272 P. 2d 425, reversed.
Douglas F. Smith argued the cause for appellant in Nos. 191 and 321. Clarence H. Ross argued the cause for appellant in No. 321. With them on the brief were D. H. Culton, Coleman Hayes, Warren T. Spies and Arthur R. Seder, Jr.
Mac Q. Williamson, Attorney General of Oklahoma, and T. Murray Robinson argued the cause for appellees in No. 191. Hugh B. Cox argued the cause for appellees in No. 321. With them on a joint brief were Rayburn L. Foster, Harry D. Turner, R. M. Williams and Kenneth Heady. Mr. Robinson and Leon Shipp also filed a brief for appellees in No. 191.
Per Curiam.
In these cases Oklahoma has attempted to fix a minimum price to be paid for natural gas, after its production and gathering has ended, by a company which transports the gas for resale in interstate commerce. We held in Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, that
*Together with No. 321, Natural Gas Pipeline Co. v. Corporation Commission of Oklahoma et al., also on appeal from the same court, argued March 29, 1955.
NATURAL GAS CO. v. PANOMA CORP. 45
44
Opinion of the Court.
such a sale and transportation cannot be regulated by a State but are subject to the exclusive regulation of the Federal Power Commission. The Phillips case, therefore, controls this one.
We disagree with the contention of the appellees that Cities Service Gas Co. v. Peerless Oil and Gas Co., 340 U. S. 179, and Phillips Petroleum Co. v. Oklahoma, 340 U. S. 190, are applicable here. In those cases we were dealing with constitutional questions and not the construction of the Natural Gas Act. The latter question was specifically not passed upon in those cases.
Reversed.
Mr. Justice Douglas, being of opinion that State regulation of price is permissible until the Federal price regulation permitted by Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, is imposed, dissents.
Mr. Justice Harlan took no part in the consideration or decision of these cases.
46
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
PARISSI v. TELECHRON, INC. et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 302. Argued March 29, 1955.—Decided April 11, 1955.
In this case, receipt by the Clerk of the District Court of a notice of appeal within the 30-day period prescribed by 28 U. S. C. § 2107 satisfied the requirements of that section; and untimely payment of the $5 fee required by 28 U. S. C. § 1917 did not vitiate the notice of appeal.
Reversed.
Harry A. Smith argued the cause for petitioner. With him on the brief was Charles P. Bauer.
Charles H. Walker argued the cause for respondents. With him on the brief were Charles E. Nichols and Henry J. Zafian.
Per Curiam.
The judgment is reversed. The petitioner’s notice of appeal to the Court of Appeals from a judgment of the District Court for the Northern District of New York, together with his appeal bond, was received at the office of the Clerk of the District Court within the 30 days prescribed by 28 U. S. C. § 2107 for filing a notice of appeal. In dispatching these papers the petitioner inadvertently failed to include the $5 fee required by 28 U. S. C. § 1917 to be paid “upon the filing” of a notice of appeal. The Clerk notified the petitioner of his omission, and declined to “file” the notice of appeal until he received the $5 fee three or four days later. By that time the 30-day period for appeal had expired. Upon petitioner’s motion the District Court made a nunc pro tunc order according the notice of appeal a filing date as of the date it was originally received by the Clerk.
PARISSI v. TELECHRON, INC. 47
46	Opinion of the Court.
The Court of Appeals, without opinion, dismissed the appeal as untimely. We think that the Clerk’s receipt of the notice of appeal within the 30-day period satisfied the requirements of § 2107, and that untimely payment of the § 1917 fee did not vitiate the validity of petitioner’s notice of appeal. Anything to the contrary in such cases as Mondakota Gas Co. v. Montana-Dakota Utilities Co., 194 F. 2d 705 (C. A. 9th Cir. 1952), we disapprove. Our conclusion does not leave § 1917 without other sanctions.
Reversed.
48
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
SHAUGHNESSY, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZA-
TION, v. PEDREIRO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 374. Argued March 31, 1955.—Decided April 25 1955.
1.	Under § 10 of the Administrative Procedure Act, an alien whose deportation has been ordered administratively under the Immigration and Nationality Act of 1952 may obtain a judicial review of such order by an action in a federal district court for a declaratory judgment and injunctive relief. Pp. 49-52.
(a)	Heikkila v. Barber, 345 U. S. 229, distinguished. P. 50.
(b)	The provision of § 242 (b) of the Immigration and Nationality Act of 1952 which makes deportation orders of the Attorney General “final” does not “expressly” supersede or modify the provisions of the Administrative Procedure Act, within the meaning of § 12 thereof, and does not make § 10 of the latter Act inapplicable to deportation proceedings. Pp. 50-52.
(c)	A habeas corpus proceeding is not the sole means of obtaining judicial review of a deportation order issued under the 1952 Act. An action in a federal district court to declare the order void and enjoin its execution is an appropriate remedy. P. 52.
2.	In an action in a federal district court against a District Director of Immigration and Naturalization to review a deportation order, declare it void and enjoin its execution, the Commissioner of Immigration and Naturalization is not an indispensable party. Pp. 52-54.
213 F. 2d 768, affirmed.
Oscar H. Davis argued the cause for petitioner. On the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, John F. Davis, Beatrice Rosenberg and Edward S. Szukelewicz.
Aaron L. Danzig argued the cause and filed a brief for respondent.
SHAUGHNESSY v. PEDREIRO.
49
48	Opinion of the Court.
Mr. Justice Black delivered the opinion of the Court.
After administrative hearings, the respondent Pedreiro, an alien, was ordered deported under the Immigration and Nationality Act of 1952.1 He petitioned the District Court for the Southern District of New York to review the deportation order, declare it void and issue a temporary injunction restraining its execution pending final district court action. In part he contended that there was no legal evidence to support the order and that in violation of due process he had been compelled to incriminate himself in the hearings. Relief was sought only against the District Director of Immigration and Naturalization for the District of New York. The District Court dismissed the petition on the ground that either the Attorney General or the Commissioner of Immigration and Naturalization was an indispensable party and should have been joined. This holding made it unnecessary for the District Court to pass on another ground urged for dismissal, that the Immigration and Nationality Act of 1952 precluded judicial review of deportation orders by any method except habeas corpus. The Court of Appeals reversed, rejecting both contentions of the Government. 213 F. 2d 768. In doing so it followed the Court of Appeals for the District of Columbia Circuit which had held that deportation orders entered under the 1952 Immigration Act can be judicially reviewed in actions for declaratory relief under § 10 of the Administrative Procedure Act.2 Rubinstein v. Brownell, 92 U. S. App. D. C. 328, 206 F. 2d 449, affirmed by an equally divided Court, 346 U. S. 929. But the Court of Appeals for the First Circuit has held that habeas corpus is the only way such deportation orders can be attacked. Batista v.
166 Stat. 163, 8 U. S. C. § 1101 et seq.
2 60 Stat. 243, 5 U. S. C. § 1009.
50
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
Nicolls, 213 F. 2d 20. Because of this conflict among the circuits and the contention that allowing judicial review of deportation orders other than by habeas corpus conflicts with Heikkila v. Barber, 345 U. S. 229, we granted certiorari, 348 U. S. 882.
The Heikkila case, unlike this one, dealt with a deportation order under the Immigration Act of 1917. That Act provided that deportation orders of the Attorney General should be “final” 3 and had long been interpreted as precluding any type of judicial review except by habeas corpus. Heikkila contended that this narrow right of review of deportation orders under the 1917 Act had been broadened by § 10 of the 1946 Administrative Procedure Act which authorizes review of agency action by any appropriate method “except so far as (1) statutes preclude judicial review . . . .” Because this Court had construed the word “final” in the 1917 Act as precluding any review except by habeas corpus, it held that the Administrative Procedure Act gave no additional remedy since § 10 excepted statutes that precluded judicial review. The Court carefully pointed out, however, that it did not consider whether the same result should be reached under the 1952 Immigration and Nationality Act “which took effect after Heikkila’s complaint was filed.”4 Consequently Heikkila does not control this case and we must consider the effect of the 1952 Immigration and Nationality Act on the right to judicial review under the Administrative Procedure Act.
Section 10 of the Administrative Procedure Act provides that “Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.” And § 12
3 39 Stat. 889, as amended, 54 Stat. 1238.
4 Heikkila n. Barber, 345 U. S. 229,232, note 4.
SHAUGHNESSY v. PEDREIRO.
Opinion of the Court.
51
48
of the Act provides that “No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.” In the subsequent 1952 Immigration and Nationality Act there is no language which “expressly” supersedes or modifies the expanded right of review granted by § 10 of the Administrative Procedure Act. But the 1952 Immigration Act does provide, as did the 1917 Act, that deportation orders of the Attorney General shall be “final.” The Government contends that we should read this as expressing a congressional purpose to give the word “final” in the 1952 Act precisely the same meaning Heikkila gave “final” in the 1917 Act and thereby continue to deprive deportees of all right of judicial review except by habeas corpus. We cannot accept this contention.
Such a restrictive construction of the finality provision of the present Immigration Act would run counter to § 10 and § 12 of the Administrative Procedure Act. Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes like the 1952 Immigration Act. And as the Court said in the Heikkila case, the Procedure Act is to be given a “hospitable” interpretation. In that case the Court also referred to ambiguity in the provision making deportation orders of the Attorney General “final.” It is more in harmony with the generous review provisions of the Administrative Procedure Act to construe the ambiguous word “final” in the 1952 Immigration Act as referring to finality in administrative procedure rather than as cutting off the right of judicial review in whole or in part. And it would certainly not be in keeping with either of these Acts to require a person ordered deported to go to jail in order to obtain review by a court.
The legislative history of both the Administrative Procedure Act and the 1952 Immigration Act supports re-
340907 0-55-10
52
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
spondent’s right to full judicial review of this deportation order. The sponsors of the Administrative Procedure Act were Representative Walter in the House and Senator McCarran in the Senate. They were also the sponsors of the 1952 Immigration Act. While the latter Act was under consideration in the House, an amendment was proposed which provided for liberal judicial review of deportation orders. Representative Walter assured the House that the proposed amendment was not needed. He said: “Now, we come to this question of the finality of the decision of the Attorney General. That language means that it is a final decision as far as the administrative branch of the Government is concerned, but it is not final in that it is not the last remedy that the alien has. Section 10 of the Administrative Procedures Act is applicable.” 5 With reference to the same problem Senator McCarran assured the Senate that “the Administrative Procedure Act is made applicable to the bill.”6 It is argued that these assurances by the chairmen of the committees in charge of the bills were but isolated statements and that other legislative history is sufficient to refute them. We cannot agree. Our holding is that there is a right of judicial review of deportation orders other than by habeas corpus and that the remedy sought here is an appropriate one.
We also reject the Government’s contention that the Commissioner of Immigration and Naturalization is an indispensable party to an action for declaratory relief of this kind.' District Directors are authorized by regulation to issue warrants of deportation, to designate the country to which an alien shall be deported, and to determine when his mental or physical condition requires the
5 98 Cong. Rec. 4416.
6 98 Cong. Rec. 5778.
7 Compare Paolo v. Garfinkel, 200 F. 2d 280; Rodriguez v. Landon 212 F. 2d 508.
SHAUGHNESSY v. PEDREIRO.
Opinion of the Court.
53
48
employment of a person to accompany him. The regulations purport to make these decisions of the District Director final.8 It seems highly appropriate, therefore, that the District Director charged with enforcement of a deportation order should represent the Government’s interest. Otherwise in order to try his case an alien might be compelled to go to the District of Columbia to obtain jurisdiction over the Commissioner. To impose this burden on an alien about to be deported would be completely inconsistent with the basic policy of the Administrative Procedure Act to facilitate court review of such administrative action. We know of no necessity for such a harsh rule. Undoubtedly the Government’s defense can be adequately presented by the District Director who is under the supervision of the Commissioner.
It is argued, however, that the Commissioner should be an indispensable party because a judgment against a District Director alone would not be final and binding in other immigration districts. But we need not decide the effect of such a judgment. We cannot assume that a decision on the merits in a court of appeals on a question of this kind, subject to review by this Court, would be lightly disregarded by the immigration authorities. Nor is it to be assumed that a second effort to have the same issue decided in a habeas corpus proceeding would do any serious harm to the Government. In habeas corpus proceedings district courts would have the duty to consider previous court decisions on the same matter. And even though in extraordinary circumstances new matters not previously adjudicated may arise in habeas corpus proceedings, this is no adequate reason for subjecting an alien to the great burden of having to go with his witnesses to the District of Columbia, which may be far distant from his home, in order to contest his deportation.
8 8 CFR §§ 243.1, 243.2.
54
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
Our former cases have established a policy under which indispensability of parties is determined on practical considerations. See, e. g., Williams v. Fanning, 332 U. S. 490. That policy followed here causes us to conclude that the Commissioner of Immigration and Naturalization is not an indispensable party.
Affirmed.
Mr. Justice Minton, with whom Mr. Justice Reed and Mr. Justice Burton join, dissenting.
In Heikkila v. Barber, 345 U. S. 229, this Court held that § 19 (a) of the Immigration Act of 1917, making decisions of the Attorney General “final,” was a statute which precluded judicial review within the meaning of the first exception to § 10 of the Administrative Procedure Act. Now, slightly more than two years later, the Court holds that judicial review of deportation orders is available under § 10 even though § 242 (b) of the 1952 Act is a re-enactment, almost verbatim, of the “final” clause of the 1917 Act. The decision is based on three considerations. First, § 12 of the Administrative Procedure Act provides that, “No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly,” and, in the opinion of the majority, there is no language in the 1952 Act which “expressly” establishes a more limited review. Second, it is believed more consistent with the liberal review provisions of the Administrative Procedure Act to construe “final” as referring to finality in the administrative process. And third, isolated statements in the congressional debates indicate that Congress actually intended to permit review under the Administrative Procedure Act.
Section 12 of the Administrative Procedure Act, however, as I read it, applies only where subsequently enacted legislation, in the words of the Court, “supersedes or
SHAUGHNESSY v. PEDREIRO.
Minton, J., dissenting.
55
48
modifies the expanded right of review granted by § 10 of the Administrative Procedure Act,” and this Court held in the Heikkila case that the rights of aliens subject to deportation were not enlarged by the Administrative Procedure Act. Moreover, notwithstanding significant substantive changes in the immigration laws in the 1952 Act, I hesitate to consider the re-enactment of a provision, with minor changes in language, “subsequently enacted legislation.” The issue then is much like the one the Court faced in Heikkila: whether, in the context of the liberal review provisions of the Administrative Procedure Act, Congress intended, by § 242 (b), to preclude application of § 10 of the Administrative Procedure Act. As this Court pointed out in Heikkila, the word “final,” though ambiguous in other contexts, as used in immigration legislation since the Immigration Act of 1891, has precluded judicial review except by habeas corpus. In view of this long history and the re-enactment of § 242 with only minor textual changes, I hesitate to impute to Congress an intention to change the method of review absent a clear showing. The Court found in examining the legislative history that Representative Walter, one of the sponsors of the 1952 Act as well as of the Administrative Procedure Act, believed that § 10 of the Administrative Procedure Act applied to deportation orders. The statement by Senator McCarran, however, that “the Administrative Procedure Act is made applicable to the bill,” in context, may merely refer to the administrative procedures aspect of an amendment proposed by Senator Moody. 98 Cong. Rec. 5778, 5779. In any event, the statements of Congressman Walter and Senator McCarran, in the course of debate on the floor, are less persuasive than the more carefully prepared and authoritative committee report, and the report of the Senate Committee in charge of the bill would seem to indicate that no change in the law was intended.
56
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
The Immigration and Nationality Act of 1952 was preceded by extensive studies of the structure and operation of the immigration law. These studies culminated in a report by the Senate Committee on the Judiciary entitled, The Immigration and Naturalization Systems of the United States, S. Rep. No. 1515, 81st Cong., 2d Sess. It contains the following statement, at page 629:
“Judicial review
“Once the order and warrant of deportation are issued, the administrative process is complete. Under the fifth amendment to the Constitution, the ‘due process’ provision, the alien may, however, petition for a writ of habeas corpus. In a habeas corpus proceeding, based on a deportation case, the court determines whether or not there has been a fair hearing, whether or not the law has been interpreted correctly, and whether or not there is substantial evidence to support the order of deportation. Habeas corpus is the proper remedy to determine the legality of the detention of an alien in the custody of the Immigration and Naturalization Service. The dismissal of an application for a writ of habeas corpus is not a bar to the filing of another application before another judge.”
Although this report was dated April 1950, it serves to clarify any ambiguity in the statement in the Senate report accompanying the bill in final form that judicial review in immigration cases was not expanded “beyond that under existing law.” S. Rep. No. 1137, 82d Cong., 2d Sess. 28. The Committee, in using the phrase “existing law,” particularly in light of the long history of exclusive habeas corpus review, was necessarily referring to the law as understood and expressed in its prior report. Moreover, the report also states, at page 30, that “The bill
SHAUGHNESSY v. PEDREIRO. 57
48	Minton, J., dissenting.
declares that the prescribed deportation proceedings shall be the sole and exclusive procedure for determining the deportability of any alien, notwithstanding the provisions of any other law.” The legislative history, therefore, would seem to make it unmistakably clear that Congress, aware that the word “final” as used in immigration legislation was not ambiguous, intended to preserve habeas corpus as the only escape from a deportation order. It was error to give relief under the Administrative Procedure Act.
58
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
REGAN v. NEW YORK.
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
No. 54. Argued November 18, 1954.—Decided April 25, 1955.
A New York statute confers immunity from prosecution for any criminal activity disclosed before a grand jury in testimony relating to bribery. The New York City Charter provides that any city employee who refuses to sign a waiver of his immunity against subsequent prosecution upon any matter of an official nature about which he is asked to testify shall lose his job and be disqualified from future employment with the city. A member of the New York City police department was called to testify before a grand jury and he signed a waiver of immunity against prosecution. Twenty-one months after his separation from the police department he was again before the grand jury and was asked whether he had accepted any bribes from bookmakers or gamblers while he was in the police department. He refused to answer on the ground that his answer might tend to incriminate him. He was thereupon convicted of contempt and sentenced to imprisonment. Held: He was not deprived of any rights under the Federal Constitution. Pp. 59-64.
(a)	The immunity statute removed any justification that he may have had for not testifying. The validity or invalidity of the waiver is a matter of no consequence. P. 62.
(b)	If the waiver is valid, his situation is simply that of one who voluntarily chooses to waive an immunity provided by statute. Pp. 62-63.
(c)	If the waiver is invalid, the statutory immunity from prosecution persists and his testimony could not possibly be self-incriminatory. Pp. 63-64.
(d)	His refusal to testify was not justified by the uncertainty as to whether or not he could be prosecuted for criminal activity which might be revealed in his testimony. P. 64.
306 N. Y. 747, 117 N. E. 2d 921, affirmed.
Emanuel Redfield argued the cause and filed a brief for petitioner.
Aaron E. Koota argued the cause for respondent. With him on the brief were Edward S. Silver, Julius Helf and and Jerome C. Ditore.
REGAN v. NEW YORK.
59
58	Opinion of the Court.
Seymour B. Quel, Daniel T. Scannell and Helen R. Cassidy filed a brief for the City of New York, as amicus curiae, urging affirmance.
Mr. Justice Reed delivered the opinion of the Court.
Petitioner refused to testify before a New York grand jury which was investigating the alleged association of city policemen with criminals, racketeers, and gamblers in Kings County. He was convicted of criminal contempt and sentenced to one year’s imprisonment. We granted certiorari, 347 U. S. 1010, to determine whether, under the circumstances here presented, petitioner was deprived of his liberty without due process of law in being punished for his refusal to testify. Cf. Adamson v. California, 332 U. S. 46,54.
The following New York constitutional and statutory provisions are essential to an understanding of the case. Article I, § 6, of the Constitution of the State of New York provides, in part, that no person shall “be compelled in any criminal case to be a witness against himself.” 1 Section 381 of the New York Penal Law, as it existed at the time of this case, provided that testimony relating to bribery could not be withheld on the ground of self-incrimination, but conferred immunity from prosecution for any criminal activity revealed in such testimony.2 Section 903 of the Charter of the City of New York provides that any city employee who refuses to sign a waiver of his immunity against subsequent prosecution upon any matter of an official nature about which he is asked to testify shall lose his job and be disqualified from future employment with the city. Article I, § 6, of
1 See also New York Code of Criminal Procedure, § 10.
2 To the same effect were §§ 584 and 996 of the Penal Law which dealt with the crimes of conspiracy and gambling. These statutes have since been amended. New York Laws 1953, c. 891.
60
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
the Constitution of the State of New York contains a provision much to the same effect.3
Petitioner was first called to testify before the grand jury on March 7, 1951. He was then a member of the Police Department of the City of New York. Prior to being sworn, he signed a waiver of immunity against prosecution.4 After being sworn, he testified that the waiver had been executed voluntarily and with full understanding as to its meaning. He was given a financial questionnaire and directed to return with it completely
3 It states that: “. . . any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years, and shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.”
4	“Waiver of Immunity
“I, Michael J. Regan, of No. 3819 Harper Avenue, Bronx, ... of The City of New York pursuant to the provisions of Section 2446 of the Penal Law of the State of New York, do hereby waive all immunity which I would otherwise obtain from indictment, prosecution, punishment, penalty or forfeiture for or on account of or relating to any transaction, matter or thing concerning which I may testify or produce evidence, documentary or otherwise, before the Grand Jury of the County of Kings, in its investigation above entitled or in any other investigation or other proceeding, before any judge or justice, court or other tribunal, conducting an inquiry for legal proceeding relating to the acts of said John Doe, Michael J. Regan, or of any other person.
“I do hereby further waive any and all privileges which I would otherwise obtain against the use against me of the testimony so given or the evidence so produced upon any criminal investigation, prosecution or proceeding.	,a.	T „
&	(Signed) Michael J. Regan.”
[Witnessed and notarized.]
61
58
REGAN v. NEW YORK.
Opinion of the Court.
filled out on March 28, 1951. On March 27, 1951, his connection with the police department was severed. His next appearance before the grand jury was on October 22, 1952, when he was given another questionnaire and instructed to return it in completed form by November 12, 1952. On November 12 he asked for an extension of time and his request was granted.5 On December 21, 1952, he was once again before the grand jury. On that occasion, he was asked the following question:
“While you were a plainclothesman in the Police Department of the City of New York did you ever accept or receive any bribes from bookmakers or other gamblers?”
Petitioner refused to answer the question on the ground that his answer might tend to incriminate him. He made a statement in which he claimed that his waiver of immunity was invalid since he had not understood its significance when he signed it, and no one had explained it to him. He expressed doubt as to his status as a witness and his privileges and duties as such.
Petitioner was taken before the County Court of Kings County to clarify his status. It was there held, after a hearing, that the waiver was valid because petitioner had fully understood its significance when he signed it. Petitioner was directed to answer the question which he had been asked. He returned to the grand jury, but persisted in his refusal to testify. He was thereupon indicted for criminal contempt, tried by a jury, and convicted. His conviction was affirmed by the Appellate Division in a short memorandum opinion, 282 App. Div. 775, 122 N. Y. S. 2d 478, and by the New York Court of Appeals without opinion, 306 N. Y. 747, 117 N. E. 2d 921. The Court of Appeals did amend its remittitur to show that
5 The questionnaires never were completed.
62
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
the question of whether petitioner had been deprived of liberty without due process of law had been raised and passed upon. 306 N. Y. 875, 119 N. E. 2d 45.
Petitioner contends that this Court must here determine whether the Fourteenth Amendment prevents a State from imprisoning an individual for refusing to give self-incriminatory testimony. In so doing he ignores the crucial significance of the immunity statute in this case. We simply hold that under the circumstances here presented petitioner was not deprived of any constitutional rights in being punished for his refusal to testify.
The immunity statute is crucial in this case because it removed any possible justification which petitioner had for not testifying. If petitioner had not executed a waiver of immunity, it is clear beyond dispute that he would have had to testify;6 the statute would have provided him with immunity from prosecution on the matters on which his testimony was sought, and thus his testimony could not possibly have been self-incriminatory.7 The waiver of immunity, although it does affect the possibility of subsequent prosecution, does not alter petitioner’s underlying obligation to testify. Much of the argument before this Court has been directed at the question of whether the waiver of immunity was valid or invalid, voluntary or coerced, effectual or ineffectual. That question is irrelevant to the disposition of this case for on either assumption the requirement to testify, imposed by the grant of immunity, remains unimpaired.
First, assume that the waiver was valid. Any testimony which the petitioner gave could then have formed the basis for a subsequent prosecution, and the State would here be punishing the petitioner for his refusal to
6 See Brown v. Walker, 161 U. S. 591; cf. Counselman v. Hitchcock 142 U. S. 547.
7 Petitioner does not challenge the sufficiency of the immunity provided.
REGAN v. NEW YORK.
63
58	Opinion of the Court.
provide such self-incriminatory testimony. But, since we are assuming the validity of the waiver, such a situation would be simply the result of a voluntary choice to waive an immunity provided by the State.
The waiver of immunity from prosecution may, on the other hand, be regarded as invalid. Petitioner argues at some length that the waiver was obtained by a “pattern of duress and lack of understanding.” He points to the circumstances attending the signing of the waiver: the size of the room, the number of policemen who simultaneously executed waivers, the speed with which the waivers were obtained, the lack of counsel, etc.8 He also points to the provisions of the New York Constitution and the City Charter requiring him to sign the waiver or lose his job.9 In addition he claims that the waiver was stale and thus ineffective since over 21 months had elapsed from the date of its execution to his refusal to testify.
8 There was testimony that the waiver was obtained in a room which measured “10 x 10, or 12 x 12, approximately,” containing a desk “about 60 x 2” [sic] and a bench upon which “about five people could sit.” About 35 waivers were obtained in a period of 25 minutes. An assistant district attorney made a single speech explaining the nature of the immunity. Immediately after executing the waiver, petitioner testified that he had signed the waiver voluntarily, that it had been explained to him, and that he understood its meaning. Twenty months thereafter petitioner reaffirmed its execution without raising any objection to its validity. It was some twenty-one months after its execution that petitioner challenged the validity of the waiver for the first time. The trial court left the question of the validity of the waiver to the jury. Its verdict of guilty indicates its finding on this matter. The conviction was affirmed by both appellate courts, but we cannot be sure that the affirmance sustained the finding on this matter for the appellate courts may have viewed the question of the validity of the waiver as irrelevant to their decision as we do to ours.
9 It might be pointed out that, as far as the record shows, this objection was at no point raised below. It appears for the first time in the Petition for Certiorari.
64
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
We fail to see where petitioner’s arguments lead. If the waiver is invalid, the immunity from prosecution persists, and in the presence of such immunity petitioner’s testimony could not possibly be self-incriminatory. It must be remembered that this conviction is for refusing to testify. The invalidity of the waiver may be made a defense to subsequent prosecution, where it would be a proper matter for disposition; it is no defense to a refusal to testify.
Petitioner suggests that his refusal to testify may have been justified by the uncertainty existing at the time he was directed to testify. That uncertainty was only as to whether or not he could be prosecuted for criminal activity which might be revealed in his testimony. As a matter of state law, a defense to the crime of criminal contempt may be provided when such uncertainty reaches a sufficiently high point.10 But the Constitution does not require the definitive resolution of collateral questions as a condition precedent to a valid contempt conviction. Cf. Cobbledick v. United States, 309 U. S. 323, 327. The petitioner knew that however the question of the validity of the waiver might be resolved, he was obliged to testify. In persisting in his refusal after being directed to testify he could be punished for contempt. The law strives to provide predictability so that knowing men may wisely order their affairs; it cannot, however, remove all doubts as to the consequence of a course of action.
The judgment below is accordingly
Affirmed.
Mr. Justice Frankfurter concurs in the result.
Mr. Justice Harlan took no part in the consideration or decision of this case.
10 People ex rei. Hofsaes v. Warden, 302 N. Y. 403, 98 N. E. 2d 579.
65
58
REGAN v. NEW YORK.
Warren, C. J., concurring.
Mr. Chief Justice Warren, with whom Mr. Justice Clark joins, concurring.
I concur in the opinion and judgment of the Court, but would add that substantial federal questions may arise if the petitioner is again called upon to testify concerning bribery on the police force while he was an officer and if he is thereafter denied immunity as to any offenses related to the investigation.
This Court has never held that a State, in the absence of an adequate immunity statute, can punish a witness for contempt for refusing to answer self-incriminatory questions. A case involving such facts has never been presented here.1 Nor is this such a case, since New York, by § 381 of the Penal Law, has granted immunity. Petitioner was obliged to answer the questions as would be any witness in the State of New York. If he had signed no waiver, he concededly would have been compelled to testify, since under § 381 of the New York Penal Law he would be entitled to immunity. The fact that he signed a waiver, even assuming it to be invalid as he claims, certainly cannot relieve him from the duty of every citizen to testify. His failure to so testify, therefore, placed him in contempt of court and subject to the punishment accorded him in this case.
However, because it appears from the record to be the intention of the authorities to punish him both for con-
1 Compare Twining v. New Jersey, 211 U. S. 78 (jury instruction authorizing the jury in a criminal case to draw an unfavorable inference from the accused’s failure to take the stand); Adamson v. California, 332 U. S. 46 (state law permitting prosecutor and trial judge to comment on the accused’s failure to take the stand); Snyder v. Massachusetts, 291 U. S. 97, 105 (denial of permission to the accused to accompany jury on visit to scene of crime); Palko v. Connecticut, 302 U. S. 319, 325-326 (state statute allowing appeal by State in criminal cases).
66
349 U. S.
OCTOBER TERM, 1954.
Black, J., dissenting.
tempt for refusal to testify and for bribery if he admits such misconduct, we might eventually be faced with the question of what his rights would be if on a subsequent hearing he should incriminate himself after claiming a privilege against self-incrimination. Petitioner might defend against a prosecution stemming from such involuntary testimony by challenging the validity of the waiver, basing his objection on an asserted federal right against self-incrimination. Such a challenge might well embrace the contention made here of coercion in the procurement of the waiver, as well as the claim that its use well beyond the term of petitioner’s public employment would be an unreasonable interference with petitioner’s claimed federal right.2
Moreover, a state immunity statute—like any other state statute—must be applied uniformly unless there is some reasonable ground for classification; otherwise, the Equal Protection Clause of the Fourteenth Amendment is violated.3 After a city employee suffers the primary sanction of the constitutional and charter sections— namely, loss of his position—it may well be that the waiver cannot be used to send him to the penitentiary for bribery when the same sanction would not be imposed on other witnesses giving like testimony.
However, as already noted, we do not reach these questions here.
Mr. Justice Black, with whom Mr. Justice Douglas concurs, dissenting.
In order to keep his job as a New York City policeman petitioner signed a paper waiving immunity he would otherwise have had from prosecution under state law as
2 Cf. Terral v. Burke Construction Co., 257 U. S. 529.
3 See, e. g., Dowd n. United States ex rel. Cook, 340 U. S. 206, and Cochran v. Kansas, 316 U. S. 255.
REGAN v. NEW YORK.
67
58	Black, J., dissenting.
to matters he might testify about before a grand jury. Twenty-two months later, long after he had resigned as a policeman, he was brought before a county grand jury. He was asked whether he had ever accepted bribes while he was a policeman. Acceptance of bribes is a New York felony punishable by ten years’ imprisonment. Petitioner refused to answer the questions claiming a federal constitutional and state privilege against self-incrimination. For refusal to answer he was sentenced to twelve months in prison. The Court holds that New York can thus imprison petitioner “for his refusal to provide such self-incriminatory testimony.” I do not agree that New York can do this consistently with the Federal Constitution.
For reasons stated on other occasions I believe the Fourteenth Amendment makes the Fifth Amendment applicable to the States. See, e. g., Adamson v. California, 332 U. S. 46, 68. And the Fifth Amendment accords an unqualified privilege to persons to be silent when asked questions answers to which would make those persons witnesses against themselves. See, e. g., Blau v. United States, 340 U. S. 159, 161. Even under the other view of the Fourteenth Amendment, that it does not make the Fifth Amendment applicable to the States and that under some circumstances States may compel persons to testify against themselves, this Court has held many times that a State may not convict a person on testimony it coerced from him. E. g., Leyra v. Denno, 347 U. S. 556, 558; Ashcraft v. Tennessee, 322 U. S. 143, 155; cf. Rochin v. California, 342 U. S. 165. Coercing testimony for that purpose is equally obnoxious to the Fourteenth Amendment. However its action is described, the State is seeking to coerce this petitioner to give testimony to help bring about his conviction for crime. For it is certainly coercion to throw a man into jail unless he agrees to testify against himself.
340907 0-55-11
68
349 U.S.
OCTOBER TERM, 1954.
Black, J., dissenting.
The Court approves the dilemma in which New York places petitioner. He must give evidence which might convict him of a felony or go to jail for refusing to give that evidence. The Court says, however, that petitioner’s dilemma is “simply the result of a voluntary choice to waive an immunity provided by the State.” There of course may be some doubt as to how “voluntary” this “choice” was. In any event it is a completely novel idea that a waiver device of this kind can destroy constitutional protections. It is nothing more nor less than a wholesale blanket agreement that a person will not claim a constitutional privilege with reference to anything he has ever done in the past or that he may do in the future in connection with his job. So far as I know it has never been held before that the privilege against self-incrimina-tion or any other Bill of Rights safeguard can be bargained away far in advance of the day when needed as protection against the overreaching power of government.
The Court’s holding appears to approve a dangerous technique whereby both State and Federal Governments can compel people to convict themselves out of their own mouths. Are we to infer that the Federal Government is now free to compel its millions of employees permanently to waive their privilege against self-incrimination or lose their jobs? Surely private employers are not now free to compel their employees to waive this and other constitutional privileges. This might be highly satisfactory to those who believe that the privilege against compulsory self-incrimination has no proper place in our Bill of Rights. But that provision was designed as a continuing rigid safeguard against ruthless exercise of governmental power.* That it sometimes permits people
* “I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized. As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition
REGAN v. NEW YORK.
69
58	Black, J., dissenting.
to escape conviction for offenses is no sufficient reason for reading it out of the Constitution. Those who wrote the provision are bound to have known that it would have the effect of making it harder for the Government to convict people accused of crime. Exactly that effect results from all of the procedural provisions of the Bill of Rights, including the right to be heard, to have a lawyer, to be confronted by witnesses, to be informed of the nature of the offense charged, and to be tried by jury. This holding weakens these and other ancient safeguards which to me represent great landmarks in the never-ceasing struggle of men to be free from despotic governmental powers. See dissent in Feldman v. United States, 322 U. S. 487, 494-503.
I would reverse this case.
of torture. Now we look upon torture with abhorrence. But torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed. We want none of that today, I am sure. . . .
“If a man has done wrong, he should be punished. But the evidence against him should be produced, and evaluated by a proper court in a fair trial. Neither torture nor an oath nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself.” Griswold, The Fifth Amendment Today, 7-8.
70
OCTOBER TERM, 1954.
Syllabus. -
349 U. S.
RICE v. SIOUX CITY MEMORIAL PARK CEMETERY, INC. et al.
ON PETITION FOR REHEARING.
No. 28. Decided May 9, 1955.
In a case involving questions arising under the Constitution of the United States which had been decided adversely to petitioner by the Supreme Court of Iowa and which apparently were of public importance, this Court granted a writ of certiorari. After argument, the decision of the Supreme Court of Iowa was affirmed by an equally divided Court. Upon consideration of a petition for rehearing before a full Court, it appeared that an Iowa statute enacted since the commencement of this litigation bars the ultimate question presented in this case from again arising in that State, though the statute is inapplicable to petitioner’s case. Held: The petition for rehearing is granted, the judgment of affirmance is vacated and the writ of certiorari is dismissed as improvidently granted, since this case is not one in which “there are special and important reasons” for granting a writ of certiorari, as required by Rule 19 of the Rules of this Court. Pp. 71-80.
(a)	This Court does not sit for the benefit of the particular litigants. P. 74.
(b)	“Special and important reasons” imply a reach to a problem beyond the academic or the episodic. P. 74.
(c)	This is especially true in cases involving constitutional questions. P. 74.
(d)	It is very important that this Court be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties. P. 79.
Rehearing granted; judgment, 348 U. S. 880, vacated; and certiorari dismissed.
Neil R. McCluhan and Lowell C. Kindig for petitioner.
RICE v. SIOUX CITY CEMETERY.
71
70	Opinion of the Court.
Mr. Justice Frankfurter delivered the opinion of the Court.
This is an action for damages brought by plaintiff, petitioner here, in the District Court of Woodbury County, Iowa, to compensate her for mental suffering claimed to flow from defendant cemetery’s refusal to bury her husband, a Winnebago Indian, after services had been conducted at the grave site and the burial party had disbanded. Plaintiff founded her action, so far as here relevant, on breach of a contract whereby defendant had undertaken to afford plaintiff “Right of Sepulture” in a specified lot of its cemetery. The contract of sale of the burial lot also provided that
“burial privileges accrue only to members of the Caucasian race.”
Plaintiff asserted that this provision was void under both the Iowa and the United States Constitutions and that recognition of its validity would violate the Fourteenth Amendment. By an amendment to the complaint, plaintiff also claimed a violation of the United Nations Charter. The defense was anchored in the validity of the clause as a bar to this action.
After an abortive attempt to remove the case to the federal courts, 102 F. Supp. 658, defendants moved to dismiss the amended petition in the state court. This motion was denied, except that insofar as the amendment to the petition had relied on the United Nations Charter, the amendment was dismissed. Following Iowa procedure, the trial court entertained motions by both parties requesting it to adjudicate prior to trial points of law relating to the effect of the restrictive covenant. The Iowa court ruled that the clause was not void but was unenforceable as a violation of the Constitutions and public policy of Iowa and the United States. Neverthe-
72
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
less, it held that the clause “may be relied upon as a defense” and that “the action of a State or Federal court in permitting a defendant to stand upon the terms of its contract and to defend this action in court would not constitute state or federal action” contrary to the Fifth and Fourteenth Amendments. It again ruled that the United Nations Charter was irrelevant, and the case was finally dismissed.
The Supreme Court of Iowa affirmed, reasoning that the decision of this Court in Shelley v. Kraemer, 334 U. S. 1, when considered in conjunction with the Civil Rights Cases, 109 U. S. 3, did not require a state court to ignore such a provision in a contract when raised as a defense and in effect to reform the contract by enforcing it without regard to the clause. The court further ruled that the provisions of the United Nations Charter “have no bearing on the case” and that none of the grounds based on local law sustained the action. 245 Iowa 147, 60 N. W. 2d 110. We granted certiorari, 347 U. S. 942.
The basis for petitioner’s resort to this Court was primarily the Fourteenth Amendment, through the Due Process and Equal Protection Clauses. Only if a State deprives any person or denies him enforcement of a right guaranteed by the Fourteenth Amendment can its protection be invoked. Such a claim involves the threshold problem whether, in the circumstances of this case, what Iowa, through its courts, did amounted to “state action.” This is a complicated problem which for long has divided opinion in this Court. See, e. g., Raymond v. Chicago Traction Co., 207 U. S. 20; Snowden n. Hughes, 321 U. S. 1; Terry v. Adams, 345 U. S. 461. See also, Barrows v. Jackson, 346 U. S. 249. Were this hurdle cleared, the ultimate substantive question, whether in the circumstances of this case the action complained of was condemned by the Fourteenth Amendment, would in turn present no easy constitutional problem.
RICE v. SIOUX CITY CEMETERY.
73
70	Opinion of the Court.
The case was argued here and the stark fact is that the Court was evenly divided. 348 U. S. 880. In accordance with undeviating practice, no indication was given regarding the grounds of this division.
In addition to the familiar though vexing problems of constitutional law, there was reference in the opinions of the Iowa courts and in the briefs of counsel to the United Nations Charter. The Iowa courts dismissed summarily the claim that some of the general and hortatory language of this Treaty, which so far as the United States is concerned is itself an exercise of the treaty-making power under the Constitution, constituted a limitation on the rights of the States and of persons otherwise reserved to them under the Constitution. It is a redundancy to add that there is, of course, no basis for any inference that the division of this Court reflected any diversity of opinion on this question.
Following our affirmance by necessity of the decision of the Iowa Supreme Court, a petition was filed for a rehearing before a full Court. In our consideration of this petition our attention has now been focused upon an Iowa statute enacted since the commencement of this litigation. Though it was in existence at the time the case first came here, it was then not seen in proper focus because blanketed by the issues of “state action” and constitutional power for which our interest was enlisted. This Iowa statute bars the ultimate question presented in this case from again arising in that State. In light of this fact and the standards governing the exercise of our discretionary power of review upon writ of certiorari, we have considered anew whether this case is one in which “there are special and important reasons” for granting the writ of certiorari, as required by Supreme Court Rule 19.
This Rule, formulated thirty years ago, embodies the criteria, developed ever since the Evarts Act of 1891, by which the Court determines whether a particular case
74
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
merits consideration, with due regard to the proper functioning of the limited reviewing power to which this Court is confined, decisively restricted through the creation of the intermediate Courts of Appeals and more largely confined by the Judiciary Act of 1925. In illustrating the character of reasons which may be deemed “special and important,” the Rule refers to cases
“Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.”
A federal question raised by a petitioner may be “of substance” in the sense that, abstractly considered, it may present an intellectually interesting and solid problem. But this Court does not sit to satisfy a scholarly interest in such issues. Nor does it sit for the benefit of the particular litigants. (Magnum Import Co. v. Coty, 262 U. S. 159, 163; see also Address of Mr. Chief Justice Vinson, before the American Bar Association, Sept. 7, 1949, 69 Sup. Ct. v, vi; Address of Mr. Chief Justice Hughes, before the American Law Institute, May 10, 1934, XI Proc. Am. Law Inst. 313.) “Special and important reasons” imply a reach to a problem beyond the academic or the episodic. This is especially true where the issues involved reach constitutional dimensions, for then there comes into play regard for the Court’s duty to avoid decision of constitutional issues unless avoidance becomes evasion. Cf. the classic rules for such avoidance stated by Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341.
In the present case, certiorari was granted, according to our practice, because at least four members of the Court deemed that despite the rather unique circumstances of this case Iowa’s willingness to enforce this restrictive covenant rendered it “special and important.”
RICE V. SIOUX CITY CEMETERY.
75
70	Opinion of the Court.
We were unmindful at the time of Iowa’s corrective legislation and of its implications. While that statute had been cited in the opinion of the Iowa Supreme Court, without quotation, in tangential support of a substantive argument, and while similar passing references appear in respondent’s briefs in opposition to the petition and on the merits, it was not even suggested as a ground for opposing the grant. Its importance was not put in identifying perspective, and it did not emerge to significance in the sifting process through which the annual hundreds of petitions for certiorari pass. Argument at the Bar was concerned with other issues and the even division of the Court forestalled that intensive study attendant upon opinion-writing which might well have revealed the crucial relevance of the statute.
These oversights should not now be compounded by further disregard of the impact of this enactment when viewed in the light of settled Iowa law, not previously brought to our attention, concerning its effect upon private litigation. The statute provides:
“Section 1. Any corporation or other form of organization organized or engaging in the business under the laws of the state of Iowa, or wheresoever organized and engaging in the business in the state of Iowa, of the ownership, maintenance or operation of a cemetery . . . except . . . churches or religious or established fraternal societies, or incorporated cities or towns or other political subdivisions of the state of Iowa . . . shall be subject to the provisions of this chapter.
“Sec. 8. It shall be unlawful for any organization subject to the provisions of this chapter to deny the privilege of interment of the remains of any deceased person in any cemetery . . . solely because
76
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
of the race or color of such deceased person. Any contract, agreement, deed, covenant, restriction or charter provision at any time entered into, or by-law, rule or regulation adopted or put in force, either subsequent or prior to the effective date of this chapter, authorizing, permitting or requiring any organization subject to the provisions of this chapter to deny such privilege of interment because of race or color of such deceased person is hereby declared to be null and void and in conflict with the public policy of this state. . . .
“Sec. 9. Any person, firm or corporation violating any of the provisions of this chapter, shall, upon conviction, be punishable by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00).
“Sec. 12. Nothing in this Act contained shall affect the rights of any parties to any pending litigation.
“Approved April 21, 1953.” Iowa Laws 1953, c. 84; Iowa Code Ann. (1954 Cum. Supp.) § 566A. 1-11.
As a result of this Act, in any other case arising under similar circumstances not only would the statutory penalties be applicable, but also, under Iowa law, one in petitioner’s position would be entitled to recover damages in a civil action based on a violation of the statute. See Humburd v. Crawford, 128 Iowa 743, 105 N. W. 330; Brown v. J. H. Bell Co., 146 Iowa 89, 123 N. W. 231, 124 N. W. 901; Amos v. Prom, Inc., 117 F. Supp. 615 (D. C. N. D. Iowa).
Had the statute been properly brought to our attention and the case thereby put into proper focus, the case would have assumed such an isolated significance that it would
RICE v. SIOUX CITY CEMETERY.
77
70	Opinion of the Court.
hardly have been brought here in the first instance.1 Any adjudication of the constitutional claims pressed by petitioner would now be an adjudication under circumstances not promotive of the very social considerations which evidently inspired the Iowa Legislature to provide against the kind of discrimination of which complaint is here made. On the one hand, we should hesitate to pass judgment on Iowa for unconstitutional action, were such to be found, when it has already rectified any possible error. On the other hand, we should not unnecessarily discourage such remedial action by possible condonation of this isolated incident. Moreover, the evident difficulties of the case suggest that, in the absence of compelling reason, we should not risk inconclusive and divisive disposition of a case when time may further illumine or completely outmode the issues in dispute.
Such factors are among the many which must be weighed in the exercise of that “sound judicial discretion” which Rule 19 requires. We have taken this opportunity to explain their relevance, when normally, for obvious reasons in view of our volume of business, no opinion accompanies dismissal of a writ as improvidently granted, because of the apt illustration here provided of the kinds of considerations, beyond those listed by Rule 19 as illustrative but not exhaustive, which preclude adjudication on the merits of cases which may have the surface appearance of public importance.
We are therefore of the opinion that this Court’s order of November 15, 1954, affirming by an equally divided Court the decision of the Iowa Supreme Court, must be vacated and the writ of certiorari dismissed as improvidently granted. There is nothing unique about such
1 Cf. District of Columbia v. Sweeney, 310 U. S. 631, where certiorari was denied “in view of the fact that the tax is laid under a statute which has been repealed and the question is therefore not of public importance.”
78
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
dismissal even after full argument. There have been more than sixty such cases and on occasion full opinions have accompanied the dismissal.2 The circumstances of this case may be different and more unusual. But this
2 United States v. Rimer, 220 U. S. 547 ; Furness, Withy & Co. n. Yang-Tsze Ins. Assn., 242 U. S. 430; Tyrrell v. District of Columbia, 243 U. S. 1; Houston Oil Co. v. Goodrich, 245 U. S. 440; Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387; Southern Power Co. v. North Carolina Pub. Serv. Co., 263 U. S. 508; Keller v. Adams-Campbell Co., 264 U. S. 314; Davis n. Currie, 266 U. S. 182; Erie R. Co. v. Kirkendall, 266 U. S. 185; Southern California Edison Co. v. Herminghaus, 275 U. S. 486; Mellon n. McKinley, 275 U. S. 492; Missouri-K.-T. R. Co. n. Texas, 275 U. S. 494; Ellison v. Koswig, 276 U. S. 598; Johnson v. Thornburgh, 276 U. S. 601; Carter Oil Co. v. Eli, 277 U. S. 573; Standard Pipe Line Co. v. Commissioners, 278 U. S. 558; Seaboard Air Line R. Co. v. Johnson, 278 U. S. 576; New York, Chicago & St. L. R. Co. v. Granfell, ibid.; Empire Gas & Fuel Co. v. Saunders, 278 U. S. 581; Virginian R. Co. v. Kirk, 278 U. S. 582; Wallace v. Motor Products Corp., 279 U. S. 859; Sutter v. Midland Valley R. Co., 280 U. S. 521; Anglo & London-Paris Nat. Bank v. Consolidated Nat. Bank, 280 U. S. 526; Gulf, Mobile & N. R. Co. v. Williams, ibid.; Wisconsin Electric Co. v. Dumore Co., 282 U. S. 813; Adam v. New York Trust Co., 282 U. S. 814; Director of Lands v. Villa-Ab rille, 283 U. S. 785; Sanchez v. Borras, 283 U. S. 798; Elgin, Joliet & E. R. Co. v. Churchill, 284 U. S. 589; Snowden v. Red River Drainage Dist., 284 U. S. 592; Lang v. United States, 286 U. S. 523; Franklin-American Trust Co. n. St. Louis Union Trust Co., 286 U. S. 533; Louisville & Nashville R. Co. n. Parker, 287 U. S. 569; Sevier Commission Co. n. Wallowa Nat. Bank, 287 U. S. 575; Fort Smith Sub. R. Co. v. Kansas City So. R. Co., 288 U. S. 587; Boynton v. Hutchinson Gas Co., 292 U. S. 601 ; Lynch v. New York, 293 U. S. 52; Hunt v. Western Casualty Co., 293 U. S. 530; Fox Film Corp. v. Muller, 294 U. S. 696; State Automobile Ins. Assn. v. Glick, 294 U. S. 697 ; Moor v. Texas & N. O. R. Co., 297 U. S. 101 ; Texas & N. O. R. Co. v. Neill, 302 U. S. 645 ; Aetna Ins. Co. v. Illinois Central R. Co., 302 U. S. 652; Tax Commission v. Wilbur, 304 U. S. 544; Goodman v. United States, 305 U. S. 578; Goins v. United States, 306 U. S. 622; McGoldrick v. Gulf Oil Corp., 309 U. S. 2; Utilities Ins. Co. v. Potter, 312 U. S. 662; Harris v. Zion’s Savings Bank, 313 U. S. 541; Jones v. Opelika, 315 U. S. 782;
RICE v. SIOUX CITY CEMETERY.
79
70	Opinion of the Court.
impressive practice proves that the Court has not hesitated to dismiss a writ even at this advanced stage where it appears on further deliberation, induced by new considerations, that the case is not appropriate for adjudication. In the words of Mr. Chief Justice Taft, speaking for a unanimous Court:
“If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal.” Layne & Bowler Corp. n. Western Well Works, Inc., 261 U. S. 387, 393.
The petition for rehearing is granted. The order of this Court of November 15, 1954, affirming by necessity the
Gorman v. Washington University, 316 U. S. 98; McCullough n. Kammerer Corp., 323 U. S. 327; McCarthy v. Bruner, 323 U. S. 673; White v. Ragen, 324 U. S. 760; Woods v. Nierstheimer, 328 U. S. 211; Phyle v. Duffy, 334 U. S. 431; Hedgebeth n. North Carolina, 334 U. S. 806; Superior Court v. Lillefloren, 335 U. S. 906; Loftus v. Illinois, 337 U. S. 935; Parker v. Los Angeles, 338 U. S. 327; Hammerstein v. Superior Court, 341 U. S. 491; Stembridge v. Georgia, 343 U. S. 541; Edelman v. California, 344 U. S. 357; Bentsen v. Black-well, 347 U. S. 925; California ex rel. Brown v. St. Louis Union Trust Co., 348 U. S. 932. This list is not to be deemed comprehensive.
Only in the light of argument on the merits did it become clear in these numerous cases that the petitions for certiorari should not have been granted. In some instances an asserted conflict turned out to be illusory; in others, a federal question was wanting or decision could be rested on a non-federal ground; in a number, it became manifest that the question was of importance merely to the litigants and did not present an issue of immediate public significance.
80
349 U.S.
OCTOBER TERM, 1954.
Black, J., dissenting.
judgment of the Supreme Court of Iowa is vacated and the writ of certiorari is dismissed as improvidently granted.
It is so ordered.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas join, dissenting.
We think that only very unusual circumstances can justify dismissal of cases on the ground that certiorari was improvidently granted. Our objections to such dismissals are stronger when, as here, a case has already been argued and decided by the Court. We do not agree that the circumstances relied on by the Court justify this dismissal. We granted certiorari because serious questions were raised concerning a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. Those questions remain undecided. The Court dismisses the case because the Iowa Legislature has provided that every person in Iowa except one who has already filed a suit can prosecute claims like this. Apparently this law leaves everyone in Iowa free to vindicate this kind of right except the petitioner. This raises a new question of denial of equal protection of the laws equally as grave as those which prompted us to take this case originally. We cannot agree that this dismissal is justified merely because this petitioner is the only one whose rights may have been unconstitutionally denied.
BELL v. UNITED STATES.
81
Opinion of the Court.
BELL v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 468. Argued April 21, 1955.—Decided May 9, 1955.
Petitioner was indicted and pleaded guilty on two counts for violation of the Mann Act, each count referring to a different woman. Petitioner had transported the two women on the same trip and in the same vehicle. Held: Petitioner committed but a single offense, and was not subject to cumulative punishment under the two counts. Pp. 81-84.
(a)	Congress has not made the simultaneous transportation of more than one woman in violation of the Mann Act clearly liable to cumulative punishment for each woman so transported. Pp. 82-83.
(b)	Where Congress has not fixed the punishment for a federal offense clearly, doubt will be resolved against turning a single transaction into multiple offenses. Pp. 83-84.
213 F. 2d 629, reversed.
James R. Browning, acting under appointment by the Court, 348 U. S. 924, argued the cause and filed a brief for petitioner.
Charles F. Barber argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Carl H. Imlay.
Mr. Justice Frankfurter delivered the opinion of the Court.
Once more it becomes necessary to determine “What Congress has made the allowable unit of prosecution,” United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221, under a statute which does not explicitly give the answer. This recurring problem now arises under
82
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
what is familiarly known as the Mann Act. The relevant provisions of the Act in its present form are:
“Whoever knowingly transports in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose ....
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” § 2 of the Act of June 25, 1910, 36 Stat. 825, now 18 U. S. C. § 2421.
The facts need not detain us long. Petitioner pleaded guilty to violations laid in two counts, each referring to a different woman. Concededly, the petitioner transported the two women on the same trip and in the same vehicle. This was the basis of his claim that he committed only a single offense and could not be subjected to cumulative punishment under the two counts. The District Court rejected this conception of the statute and sentenced the petitioner to consecutive terms of two years and six months on each of the two counts. On appeal from denial of a motion to correct the sentence, the Court of Appeals affirmed the District Court. “While the act of transportation was a single one,” it ruled, “the unlawful purpose must of necessity have been selective and personal as to each of the women involved. ... We therefore believe that two separate offenses were committed in this case.” 213 F. 2d 629, 630. This decision was in accord with decisions of other lower federal courts, but a contrary holding by the Court of Appeals for the Tenth Circuit, in Robinson n. United States, 143 F. 2d 276, raised a square conflict for settlement by this Court. This led us to bring the case here. 348 U. S. 895.
The punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment. Congress could no doubt make the simultaneous transportation of more than one woman in
BELL v. UNITED STATES.
83
81	Opinion of the Court.
violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so? It has not done so in words in the provisions defining the crime and fixing its punishment. Nor is guiding light afforded by the statute in its entirety or by any controlling gloss. The constitutional basis of the statute is the withdrawal of “the facility of interstate transportation,” Hoke v. United States, 221 U. S. 308, 322, though, to be sure, the power was exercised in aid of social morality. Again, it will not promote guiding analysis to indulge in what might be called the colormatching of prior decisions concerned with “the unit of prosecution” in order to determine how near to, or how far from, the problem under this statute the answers are that have been given under other statutes.
It is not to be denied that argumentative skill, as was shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions. About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it—when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal
340907 0 - 55 - 12
84
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.
Reversed.
Mr. Justice Minton, with whom The Chief Justice and Mr. Justice Reed join, dissenting.
The statute does not seem ambiguous to me. Congress made it clear enough for me to understand that it was trying to help the States as far as it could to stamp out the degradation and debauchery of women by punishing those who engaged in using them for prostitution. The only way Congress could do that was to make it unlawful to use the channels of commerce to transport them. The statute provides that,
“Whoever knowingly transports in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution ....
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 36 Stat. 825, 18 U. S. C. § 2421.
To me the statute means that to transport one or more women or girls in commerce constitutes a separate offense as to each one. Congress had as its purpose the protection of the individual woman or girl from exploitation, and the transportation of each female was to be punished. It was not concerned with protection of the means of transportation. Surely it did not intend to make it easier if one transported females by the bus load. A construction of the statute that reaches that result does violence to its plain wording. That is what the District Court thought, that is what the Court of Appeals thought, and with that I agree, and would affirm.
BISSO v. INLAND WATERWAYS CORP. 85
Opinion of the Court.
BISSO, RECEIVER, v. INLAND WATERWAYS CORPORATION.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 50. Argued February 28, 1955.—Decided May 16, 1955.
1.	A towboat owner may not validly contract against all liability for his own negligent towage. Pp. 85-95.
(a)	This Court now accepts as controlling a judicial rule, based on public policy, which invalidates contracts releasing towers from all liability for their negligence. P. 90.
(b)	The Steamer Syracuse, 12 Wall. 167, and The Wash Gray, 277 U. S. 66, followed. Pp. 86-92.
(c)	Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291, distinguished. Pp. 92-94.
2.	The rule against contractual exemption of a towboat owner from responsibility for his own negligence cannot be defeated by providing in a contract that all employees of a towboat shall be employees of the towed vessel, when the latter “employment” is purely a fiction. Pp. 94-95.
211 F. 2d 401, reversed.
Eberhard P. Deutsch argued the cause for petitioner. With him on the brief was René H. Himel, Jr.
Ralph S. Spritzer argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Burger and Samuel D. Slade.
Selim B. Lemle filed a brief for the American Barge Line, Inc. et al., as amici curiae, urging affirmance.
Mr. Justice Black delivered the opinion of the Court.
The question presented is whether a towboat may validly contract against all liability for its own negligent towage. Since there is no controlling statute the question must be decided as a part of the judicially created admiralty law. Federal courts have disagreed as to whether
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there is or should be a judicial rule invalidating such contracts. Calling attention to this uncertainty, the District Court, sitting in admiralty, sustained a contractual provision exempting respondent towboat owner from liability for negligence and entered judgment accordingly. 114 F. Supp. 713. The Court of Appeals affirmed. 211 F. 2d 401. We granted certiorari to settle the question. 348 U. S. 811.
The record including the findings of fact shows: Petitioner’s oil barge Bisso while being towed up the Mississippi River by the respondent’s steam towboat Cairo collided with a bridge pier and sank. At the time, the barge had no motive power, steering apparatus, officers or crew, its movements being completely controlled by the Cairo. Negligent towage by those operating the Cairo caused the collision. Consequently, respondent, owner of the Cairo, would have been required to pay petitioner damages unless relieved of liability by certain clauses in the towage contract. One provides that the towing movement should be at the “sole risk” of the barge, and a second provides that masters, crews and employees of the towboat Cairo should “in the performance of said service, become and be the servants” of the barge Bisso. The Court of Appeals construed both these clauses as relieving respondent from liability for its negligence and held both valid.
A release-from-liability clause in a towage contract was first considered by this Court in 1871 in The Steamer Syracuse, 12 Wall. 167. There negligent towage by the Syracuse damaged a canalboat being towed. To escape liability owners of the towboat relied on a contractual agreement that “the canal-boat was being towed at her own risk.” Notwithstanding the agreement, this Court held that the towboat “must be visited with the consequences” of its negligence.1 For many years The Syra-
1 “It is unnecessary to consider the evidence relating to the alleged contract of towage, because, if it be true, as the appellant says, that,
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cuse seems to have been generally accepted as either (1) construing a contract to “tow at own risk” as not including an exemption from negligence, or (2) holding invalid as against public policy a contract which exempts a tower from his negligence.2
In 1909 The Syracuse was repudiated by the Second Circuit in The Oceanica, 170 F. 893. That court construed a contract requiring a towed vessel to “assume all risks” as exempting the tower from responsibility for its negligence; it also held, over strong dissent, that the contract was not invalid as against public policy. And on rehearing the court conceded that “the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions.” The court went on to express hope that the question would “be set at rest in this case by the Supreme Court.” Certiorari was denied,3 however, and courts in the Second Circuit continued to follow the newly announced Oceanica doctrine.4 But other circuits continued
by special agreement, the canal-boat was being towed at her own risk, nevertheless, the steamer is liable, if, through the negligence of those in charge of her, the canal-boat has suffered loss. Although the policy of the law has not imposed on the towing boat the obligation resting on a common carrier, it does require on the part of the persons engaged in her management, the exercise of reasonable care, caution, and maritime skill, and if these are neglected, and disaster occurs, the towing boat must be visited with the consequences. It is admitted in the argument, and proved by the evidence, that the canal-boat was not to blame, and the inquiry, therefore, is, was the steamer equally without fault?” The Steamer Syracuse, 12 Wall. 167, 171.
2 See, e. g., Alaska Commercial Co. n. Williams, 128 F. 362, 366 (1904); The Edmund L. Levy, 128 F. 683, 684 (1904); The M. J. Cummings, 18 F. 178 (1883); The Jonty Jenks, 54 F. 1021, 1023 (1893); The Oceanica, 144 F. 301 (D. C. W. D. N. Y. 1906). See also cases collected in 54 A. L. R. 104, 243-257.
8 215 U.S.599.
4 See, e. g., Ten Eyck v. Director General of Railroads, 267 F. 974 (1920) ; The Mercer, 14 F. 2d 488 (1926).
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to refuse to allow towboats by contract to escape liability for their negligent towage.5
It was in that state of intercircuit conflict that this Court again, in 1928, considered the effect of a contract claimed to exempt a towboat from its negligence. The Wash Gray, 277 U. S. 66.® The contract involved provided that the towboat should not be “responsible in any way for loss or damage” to the Wash Gray, the vessel being towed. This Court was urged to follow The Oceánica. But counsel for the Wash Gray, relying on The Syracuse, insisted that recovery for “actionable negligence is not barred by release in contract for towage.” 7 Without mention of The Oceánica this Court said: “We do not think that the towing contract has the effect claimed for it by the companies. It did not release the [towboat] . . . from any loss or damage to the ‘Wash Gray’ due to the negligence of the master or crew of the towing vessel .... The rule laid down by this Court in The Steamer Syracuse . . . covers the point.” 277 U. S., at 73. The contracts in The Syracuse and The Wash Gray were worded quite differently, and there is little indication that the “rule” the Court had in mind was one of mere contractual interpretation. Rather a public policy objection to such contracts was indicated by the Court’s quoting from that part of The Syracuse
5 See Mylroie v. British Columbia Mills Tug & Barge Co., 268 F. 449 (C. A. 9th Cir.); Great Lakes Towing Co. v. American S. S. Co., 165 F. 2d 368 (C. A. 6th Cir.); The Somers N. Smith, 120 F. 569 (D. C. Me.); The Monarch, 235 F. 795, 799 (D. C. N. D. Fla.); The Sea Lion, 12 F. 2d 124 (D. C. N. D. Calif.); The Vim, 40 F. 2d 638 (D. C. R. I.). See also Walter G. Hougland, Inc. n. Muscovalley, 184 F. 2d 530 (C. A. 6th Cir.). Compare The Pacific Maru, 8 F. 2d 166 (D. C. S. D. Ga.).
6 Officially reported as Compañía de Navegación Interior, S. A. v. Fireman's Fund Ins. Co., 277 U. S. 66.
7 Supplemental Brief for Petitioner, p. 10, The Wash Gray, 277 U. S. 66.
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85	Opinion of the Court.
opinion which pointed out that despite the contract there the towboat had to bear the consequences of its negligence even though the law had not imposed on it the obligations resting on a common carrier.8
It is nevertheless argued that The Syracuse and The Wash Gray did not announce a rule of public policy against release-from-negligence contracts but decided no more than what the towage contracts in those cases meant. Strong arguments can be made in support of this contention but we think stronger arguments can be made against it. The Syracuse was decided in an era of manifest judicial hostility toward release-from-negligence contracts, particularly those made by businesses dealing widely with the public and having potential monopolistic powers.9 That hostility caused this Court two years later to declare that public policy forbade common carriers to make such contracts.10 The next year telegraph company contracts were brought under the same ban although the Court stated they were not common carriers.11 Largely because of this general judicial attitude and the influence of The Syracuse no towage release-from-negligence clause appears to have been enforced by any court for 38 years. During that period and later enforcement was refused in two ways—either by giving
8 See note 1, supra.
9 The same attitude was manifested by the rulings of those courts which imposed the strict liability of common carriers on tugs. See Smith v. Pierce, 1 La. 350 (1830); Vanderslice v. The Superior, 28 Fed. Cas. 970 (D. C. E. D. Pa. 1850); White v. The Mary Ann, 6 Cal. 462 (1856); Ashmore v. Penn. Steam Towing & Transp. Co., 4 Dutcher 180 (N. J. 1860); Wooden v. Austin, 51 Barb. 9 (N. Y. 1866). As to liability of steamships generally see Butler v. Pennsylvania, 10 How. 402, 416.
10 Railroad Co. v. Lockwood, 17 Wall. 357. See also Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397.
11 Express Co. v. Caldwell, 21 Wall. 264, 269-270; see also Brown v. Postal Tel. Co., Ill N. C. 187, 16 S. E. 179.
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such contracts a very narrow construction or by holding them to be against public policy. One court even expressly declared it to be “contrary to public policy to so construe” a contract that a tower could be allowed to go clear of all liability for his own negligence.12 When the Second Circuit belatedly departed from The Syracuse other courts still refused to enforce towers’ stipulations against their negligence. And when this Court was urged in The Wash Gray to repudiate The Syracuse by following The Oceanica the answer was an emphatic reiteration and approval of the language and holding of The Syracuse. Viewed in light of this history, we think The Syracuse, The Wash Gray and intervening lower court cases together strongly point to the existence of a judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence.13 Because of this judicial history and cogent reasons in support of a rule outlawing such contracts we now, despite past uncertainty and difference among the circuits, accept this as the controlling rule.
This rule is merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negli-gence contracts in many relationships such as bailors and
12 “Such a bargain doubtless means something; but it is contrary to public policy to so construe a contract of that nature that the tower is allowed to go clear of all liability when it is shown that he has relaxed his faithfulness and duty ‘in performing the service.” Ulrich v. The Sunbeam, 24 Fed. Cas. 515 (1878). See Note, 175 A. L. R. 8, 18.
13 Writers have differed as to the validity of such towage clauses. Of two leading authors on admiralty one regards the clauses as valid, 1 Benedict, Admiralty (6th ed. 1940), § 100, and the other regards them as invalid, saying “Thus obliquely it seems to be settled that the contract exempting the tug from its negligence is not valid.” Robinson, Admiralty (1939), 672.
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bailees,14 employers and employees,15 public service companies and their customers.16 The two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.17 These two reasons are no less applicable today than when The Syracuse and The Wash Gray were decided. And both reasons apply with equal force whether tugs operate as common carriers or contract carriers.18 The dangers of modern machines make it all the more necessary that negligence be discouraged. And increased maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.
The practical result of leaving towers wholly free to contract against all liability for their negligence is strikingly illustrated in an English case. The Port of London
14 See cases collected in 175 A. L. R. 110-141; Willis, The Right of Bailees to Contract Against Liability for Negligence, 20 Harv. L. Rev. 297.
15 Duncan n. Thompson, 315 U. S. 1; Boyd n. Grand Trunk Western R. Co., 338 U. S. 263, 266; see Beers, Contracts Exempting Employers from Liability for Negligence, 7 Yale L. J. 352.
16 See cases collected in 175 A. L. R. 38-74.
17 Id., at 8-157. On the question of towage contracts exempting towers from negligence see note 2, supra, and cases collected in 54 A. L. R. 104.
18 Part III of the Interstate Commerce Act regulates tugs as common carriers under some circumstances and as contract carriers under others. 54 Stat. 929-952, 49 U. S. C. §§901-923. See Cornell Steamboat Co. v. United States, 321 U. S. 634. Apart from statutes towboats sometimes operate in such way that they are held to be common carriers. See note 9, supra. And it is a long settled policy that common carriers cannot by contract escape all liability for their own negligence. See, e. g., Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438-443. An examination of the cases, however, discloses the difficulty of determining when a tug is or is not operating as a common carrier.
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controlled and operated all tugs in the harbor and by law no ship could enter without the aid of Port Authority tugs. But no shipowner could get a Port tug unless he first signed a contract agreeing to be liable for all damages caused by the negligence of the tug’s employees. Under such a contract the court allowed the Port Authority to recover damages from a ship towed for injuries to the Port’s tug caused by negligence of the Port’s employees running the tug.19 Such a result would be impossible under the rule we accept as controlling.
It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291.20 We disagree. Unlike The Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should
19 The President Van Buren, 16 Aspinall’s Maritime Cases (N. S.) 444. A further illustration of the monopoly potential of the tug business is suggested in Boston Metals Co. v. The Winding Gulf, decided today, post, p. 122. Petitioner in that case insisted before the Court of Appeals that if given an opportunity it could present evidence showing that when it executed the contract containing the proscribed clause with the Foundation Maritime of Canada that company had a virtual monopoly in all eastern Canadian seaports and that the petitioner’s boat could not have been moved at all unless it agreed to the conditions forced on it in that contract.
20 The Second Circuit has taken this position. North River Barge Line v. Chile S. S. Co., 213 F. 2d 882, 884 (1954). The Oceanica was adhered to, but apparently on slightly different grounds from those originally relied on. Holding a towage agreement for exemption from negligence valid, the court said, “A contrary dictum in The Syracuse . . . was approved in [The Wash Gray], But we think that Sun Oil ... is to be taken as, in effect, accepting the doctrine of The Oceanica.”
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not be liable for his negligent pilotage.21 Sun Oil construed this contract as relieving the tugboat owners from all liability for negligence of the tug captain while piloting Sun Oil’s vessel and held the contract valid as thus construed. But both the Court of Appeals 22 and this Court recognized that holding the pilotage contract valid did not conflict with The Syracuse or The Wash Gray. Indeed, this Court expressly stated that the Sun Oil decree was “not in conflict with the decisions” in The Syracuse and The Wash Gray. It is of course possible that the Court found an absence of conflict in the cases because of a different construction given the different contracts involved. We doubt this, but however this may be there are more basic differences upon which we prefer to rest this Court’s statement that Sun Oil did not conflict with the two prior cases.
There are distinctions between a pilotage and a towage exemption clause which make it entirely reasonable to hold one valid and the other invalid. A pilotage clause exempts for the negligence of pilots only; a towage clause exempts from all negligence of all towage employees. Pilots hold a unique position in the maritime world and have been regulated extensively both by the States and Federal Government.23 Some state laws make them pub-
21 “When the captain of any tug engaged in the services of towing a vessel which is making use of her own propelling power goes on board said vessel, it is understood and agreed that said tugboat captain becomes the servant of the owners in respect to the giving of orders to any of the tugs engaged in the towage service and in respect to the handling of such vessel, and neither the tugs nor their owners or agents shall be liable for any damage resulting therefrom.” 287 U. S., at 292-293.
22 55 F. 2d 63.
23 See, e. g., R. S. §§ 4235-4237, 4442, 4444, 46 U. S. C. §§ 211-215; 40 Stat. 549, 46 U. S. C. § 223; R. S. § 4439, 46 U. S. C. § 228; R. S. §§4449, 4450, as amended, 46 U. S. C. §§239, 240; McKinney’s N. Y. Laws, Navigation Law, §§41, 64, 87-98, Penal Law, §§ 1501,
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lie officers, chiefly responsible to the State, not to any private employer. Under law and custom they have an independence wholly incompatible with the general obligations of obedience normally owed by an employee to his employer.24 Their fees are fixed by law and their charges must not be discriminatory. As a rule no employer, no person, can tell them how to perform their pilotage duties. When the law does not prescribe their duties, pilots are usually free to act on their own best judgment while engaged in piloting a vessel. Because of these differences between pilots and towage employees generally, contracts stipulating against a pilot’s negligence cannot be likened to contracts stipulating against towers’ negligence. It is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company’s vessel on that vessel’s own power. That was the Sun Oil case. It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees’ negligent towage of a vessel. Thus, holding the pilotage contract valid in the Sun Oil case in no way conflicts with the rule against permitting towers by contract wholly to escape liability for their own negligent towing. That rule renders invalid the first provision of the contract in this case that the towing had to be done at the sole risk of the towed vessel.
The second clause in the contract—that the employees of the towboat Cairo should be servants of the barge Bisso—likewise cannot be enforced. For if valid, the only effect of that clause would be to shift all liability for negligent towage from the towboat to the vessel being towed, precisely what the first clause attempted to do.
1913, 1961, Lien Law, §80; Kotch n. Board of River Port Pilot Comm’rs, 330 U. S. 552, 557-564; Cooley v. Board of Wardens, 12 How. 299.
24 Ibid. See also The China, 7 Wall. 53; The Eugene F. Moran, 212 U. S. 466; Smith v. Pierce, 1 La. 350, 357-358 (1830).
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85	Douglas, J., concurring.
This is true because employees of a towboat do not become employees of a vessel being towed just because a contract says so, when as here the workers are in truth and in fact solely employees of the towboat.25 This towboat belonged to respondent. It was manned by workers hired and paid by respondent. They remained at all times subject to respondent’s complete control. In contrast, the owners of the barge being towed never had any relationship of any kind or character with those who controlled and operated the towboat. The rule against contractual exemption of a towboat from responsibility for its own negligence cannot be defeated by the simple expedient of providing in a contract that all employees of a towboat shall be employees of the towed vessel when the latter “employment” is purely a fiction.	Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Douglas, concurring.*
I join in the opinion of the Court. I do not think we know enough about the economics and organization of this business 1 to change the established rule of The Steamer
25 See The Adriatic, 30 T. L. R. 699; compare The President Van Buren, 16 Aspinall’s Maritime Cases (N. S.) 444.
*[This opinion applies also to Boston Metals Co. v. The Winding Gulf, post, p. 122.]
1 Aspects of the economics of the tugboat industry in New York Harbor are shown in Harbor Fleet, 27 Fortune 99 (May, 1943); Docking Leviathans in the World’s Busiest Harbor, 75 Travel 4 (June, 1940); Friendly Ushers of New York Harbor, Christian Science Monitor Magazine Section, July 14, 1937, p. 8; Tugging in the Big Time, Saturday Evening Post, Mar. 24, 1945, p. 26; Admiral Moran’s Private Navy, Collier’s, Jan. 15, 1949, p. 9; Earnings on Tugboats and Barges in New York Harbor, Jan. 1945, 61 Monthly Labor Review 1192.
For an English historical account see Bowen, A Hundred Years of Towage (1933).
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Syracuse, 12 Wall. 167, 171, and The Wash Gray, 211 U. S. 66, 73, that a tug may not contract against her own negligence.
I agree with the Court that Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291, was not a departure from that rule. In that case the vessel which was being assisted by the tugs was under her own power and was manned by her own crew. The negligence was that of a tug captain on board the vessel under tow. The Court enforced the contract, which made his negligence the negligence of the vessel, under the familiar rule that “when one puts his employee at the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly for and is to be deemed the employee of the latter and not of the former.” Id., at 295.
In the Sun Oil case, the tug was not a common carrier or a contract carrier. It was merely assisting a vessel under her own power. Here we are dealing with dead tows, where the tug and the tug alone is in control, where the tows are without power and without crews.
In that situation, the tugboats are common carriers2 when they so hold themselves out (Stimson Lumber Co. v. Kuykendall, 275 U. S. 207; Cornell Steamboat Co. v. United States, 321 U. S. 634) or contract carriers.
So far as we know, the tugboats in the present cases are as much common carriers as the tugboats in the Cornell Steamboat case and the Stimson Lumber Co. case.
Common carriers may not “by any form of agreement secure exemption from liability for loss or damage caused
2 If they are common carriers, they may be subject to pervasive regulation by the Interstate Commerce Commission under Part III of the Interstate Commerce Act, 54 Stat. 898, 929, 49 U. S. C. §§ 901, 905 et seq., as Cornell Steamboat Co. v. United States, supra, held. If they are contract carriers, certain of their activities may likewise be subject to regulation under that Act. See, for example, 49 U. S. C. §§ 906(e), 907 (i), 913-917.
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by their own negligence.” Sun Oil Co. v. Dalzell Towing Co., supra, at 294. See Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool Steam Co. n. Phenix Ins. Co., 129 U. S. 397. The reasons are as germane to a tugboat that is a contract carrier as they are to a tugboat that is a common carrier. They were well stated by Judge Coxe, dissenting in The Oceanica, 170 F. 893, 896:
“It ought to be against public policy to permit a vessel to contract against her own fault. To allow her to do so begets recklessness, carelessness and neglect. The same reasons for prohibiting such a contract in the case of common carriers apply, though not, perhaps, to the same extent, in the case of a towage contract. In both cases the design is to prevent those who have the absolute control of another’s property from extorting an agreement that they may neglect all reasonable precautions to preserve it.”
If the tug is only a contract carrier, it is not liable for injury to the tow in the absence of negligence. See Stevens v. The White City, 285 U. S. 195. But though a contract carrier, the tug may as effectively command the market and have as complete control of the tow and cargo as any common carrier. The reasons stated by Judge Coxe seem, therefore, as germane to the contract carrier as to the common carrier.
It may be that the rule of The Syracuse is outmoded and should be changed. It may be that the tugboat industry is less able to carry the risks of those losses than its customers. It may be fairer in the long run to let the tugboat operator free himself from his own negligence and transfer the liability to the shippers who employ his services. But the very statement of the problem raises large questions of policy on which the present records throw no light. We would have to know much more about the economics and organization of the tugboat
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industry than we are offered here to fashion a new rule.3 Accordingly, I would continue to enforce the established rule of The Syracuse that has its roots deep in history and experience, until and unless Congress adopts another one.
Mr. Justice Frankfurter, whom Mr. Justice Reed and Mr. Justice Burton join, dissenting.
Drawing on its constitutional powers in matters maritime (Art. Ill, § 2), this Court has probably made as much substantive admiralty law through adjudication as has Congress by legislation. Indeed, not a little of legislation has displaced or modified the Court’s decisions. This creative judicial function of making admiralty law remains unimpaired, so that it is within the Court’s jurisdiction now to announce, as new doctrine, that tow and tug may not by agreement relieve the tug of liability for damage to the tow caused by the tug’s negligence. Of course, the Court should not restrict the area of full bargaining between tow and tug unless an overriding public interest calls for such restriction.
But the Court does not now profess to originate a doctrine of invalidity of such an agreement. Pervading the Court’s opinion is the assumption that it is merely making explicit what has been the presupposition and direction, if not the unequivocal pronouncement, of the controlling body of decisions. These decisions, we are told, “strongly point to the existence of a judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence.” On this
3 Available statistics of the tugboat industry do not show the breakdown, port by port, between common carriers and contract carriers. Nor do they show how many of the contract carriers are “captive” carriers, servicing one company. Nor do they give a picture of the competitive or monopolistic conditions prevailing in the various ports. We would need an economic brief to enlighten us, if we were to undertake to reformulate the established rule.
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assumption, one easily slides to the Court’s conclusion. Such an assumption almost implies the conclusion, for a long-established rule, not remotely related to any constitutional question and readily amenable to legislative change, should be adhered to. Especially in the domain of commercial affairs, stare decisis has a strong social justification. In conducting their affairs, men naturally assume that courts will not unsettle a settled rule for the conduct of business, certainly not unless experience has made manifest the need for overturning the law.
To assert that a rule has been established by courts necessarily implies authoritative pronouncement of a doctrine, its application to litigation, and its continuing vitality. Such a rule ought to be found in adjudications in this Court or at the very least—in the case of maritime matters—in the weight of authority in lower courts, particularly in the Southern District of New York where admiralty law has to such a large extent developed. The claimed rule cannot avouch the decisions in this Court nor the body of lower court decisions. In their entirety, the decisions reflect the opposite. A critical examination of them yields these conclusions:
(1)	In The Steamer Syracuse, 12 Wall. 167, this Court did not have before it any claim of exemption from all negligence such as is presented here. The Steamer Syracuse therefore could not have decided, and it did not purport to decide, the validity of such an exemption. The Wash Gray, 277 U. S. 66, purports to be no more than a decision on a question of construction, in which The Steamer Syracuse was cited as precedent for placing a narrow construction on exculpatory clauses.
(2)	The Circuits other than the Ninth do not disclose decisions that towboats cannot by contract
340907 0 - 55 - 13
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escape liability for negligent towage. In the Ninth there is talk, not decision.
(3)	In respecting an agreement for exemption in the case of a private carrier, we do not disregard any decision of this Court or any persuasive body of authority in the Courts of Appeals. On the other hand, to recognize the validity of such a provision accords with the decisions and pronouncements of the two Circuits having the most active admiralty business, and with the underlying considerations of policy upon which this Court very recently and unanimously enforced a similar provision for exemption in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291.
The materials on which these conclusions are based are not esoteric. They are to be assessed, of course, according to time-honored rules for reading cases—that cases hold only what they decide, not what slipshod or ignorant headnote writers state them to decide; that decisions are one thing, gratuitous remarks another. A stew may be a delicious dish. But a stew is not to be made in law by throwing together indiscriminately decision and dicta, cases involving common carriers and private carriers, cases involving monopolistic or otherwise patently unequal bargaining power and cases arising under contracts between parties bargaining at arm’s length.
It is essential in examining these cases to differentiate sharply between construction and validity. Since negligence is the ordinary basis for liability, relief from it should be clearly agreed upon between the parties and ambiguity should not leave the extent of such relief in doubt. Accordingly, provisions for exemption are closely scrutinized by courts and doubts either as to the existence of the provision of exemption or its scope are resolved against relief from responsibility. It is fair to say that a number of the cases relied upon for support against the
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85	Frankfurter, J., dissenting.
validity of an exemption are cases in which the existence of such a provision was not established or its meaning was appropriately given limited scope.
These conclusions require documentation.
DECISIONS OF THIS COURT.
1.	In The Steamer Syracuse, 12 Wall. 167, the crucial issue in the District Court, on appeal in the Circuit Court, and on appeal here, was whether or not on the particular facts of that case the steamer Syracuse had been “navigated with ordinary care and skill.”
The Syracuse had been engaged in towing canalboats through New York harbor. The tug’s owners had given the owners of the tow a receipt stating that the service was to be performed “at the risk of her owners.” In a libel based on the tug’s negligence in permitting the tow to strike an anchored vessel and be sunk, the District Court held that, while the parties were free to vary their responsibilities by contract, the words of the receipt1 “did not operate to relieve or discharge the steamboat and her owners from the exercise of all reasonable skill.” Langley v. The Syracuse, 14 Fed. Cas. 1115, No. 8,068. This decision was affirmed both by the Circuit Court, The Syracuse, 23 Fed. Cas. 593, No. 13,717, and this Court with no suggestion that the controlling issue was other than that on which the District Court had based its decision. Neither in the answer to the libel, nor in the pro-
1 It is significant that the only contractual dispute in the case related to whether or not this receipt formed a part of the contract between the parties. See 12 Wall., at 169. It is to this dispute that the Court directed itself in its opening statement that it was “unnecessary to consider the evidence relating to the alleged contract of towage.” Apparently this clause was designed to prevent a tug from being held to a standard stricter than that of ordinary care, which libellant argued should be imposed if the receipt was not a part of the contract. Cf. note 3, infra.
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ceedings in the District Court, nor in those in the Circuit Court, including the opinion of Mr. Justice Nelson, sitting as Circuit Justice, nor in the briefs in this Court, nor in the opinion here, was there ever tendered the issue which is tendered in this case—namely, the enforceability of an agreement whereby a private carrier is relieved from liability for negligence. Nor was there any pronouncement on such an issue. Throughout the litigation there is not the faintest suggestion that the receipt raised any issue other than whether the Syracuse was or was not “navigated with ordinary care and skill” in the very special circumstances of the particular seamanship. It would seem indeed strange that the brief of E. C. Benedict, probably the leading admiralty lawyer of his day, should not give a hint of reliance on a clause exempting from liability for negligence, but instead bring all its argumentation to bear to prove that the duty to navigate “with ordinary care and skill” was satisfied. He thus framed his only contention regarding the effect of the contract:
“The boat was towed under a contract on the part of the libellant that he would bear the risks of the navigation, provided, the steamboat which furnished the propulsive power, was navigated with ordinary care and skill.
“This we submit is the fair intent of the contract to tow the boat ‘at the risk of her masters and owners.’ ” Brief for Appellant, p. 3; see 12 Wall., at 170 (summary of argument).
The language of both Mr. Justice Nelson, in the Circuit Court, and Mr. Justice Davis, for this Court, must be read in the light of the issues that were framed in the District Court, the course of evidence in that court, the contentions of the parties and the explicitness of the briefs
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in this Court. The claim was not relief from liability for negligence but that the admitted duty of “ordinary care and skill” in navigation had not been satisfied. There is no suggestion, either in this Court’s opiriion or that of Mr. Justice Nelson on circuit, that a rule of public policy was being announced barring agreements, fairly entered into, relieving private carriers from liability. The Steamer Syracuse was decided here in 1871. It was not until 1873 that such agreements were invalidated in the case of common carriers. Railroad Co. v. Lockwood, 17 Wall. 357. And not until 18 years later was this rule applied to common carriers by water. Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397. Surely this Court did not impliedly, in a moment of absent-mindedness, declare such a rule in the case of a private carrier and two years later require 25 pages to justify it in the case of common carriers.
Reliance upon any climate of “manifest judicial hostility toward release-from-negligence contracts” existing at this time is singularly misplaced. In this period American legal thought placed entirely too high a value upon liberty of contract. See Pound, Liberty of Contract, 18 Yale L. J. 454. Had there been such an attitude, it could not have been a factor in a case in which both parties agreed that no such contract was involved. Moreover, this hostility, insofar as it was more than a mode of narrowly construing contracts designed to cut down common-law liability, was limited to situations where inequality of bargaining power in relation to essential services called for judicial intervention. Compare Railroad Co. n. Lockwood, supra, with Baltimore & Ohio S. R. Co. v. Voigt, 176 U. S. 498; Santa Fe, P. & P. R. Co. v. Grant Bros. Const. Co., 228 U. S. 177.
2.	The superficial ambiguity of the language of the Court’s opinion in The Steamer Syracuse, when read
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without reference to the issues before it, led some lower courts to speculate as to its meaning. But Compania de Navigation La Flecha v. Brauer, 168 U. S. 104, left no ground for such confusion. The Brauer case involved a contract for carriage of cattle on the deck of a steamer “at owner’s risk, steamer not to be held accountable for accident to, or mortality of, the animals, from whatever cause arising.” The contract specified that it was to be interpreted according to English law. A libel against the shipowner was brought for the loss of the cattle which, during a storm at sea, had been unnecessarily driven overboard by the crew. The Court, noting a conflict between American and English decisions regarding the right of a common carrier to relieve itself of the consequences of negligence, found it unnecessary to determine which of these rules was applicable, stating:
“By the laws of both countries, ... an exception, in the bill of lading, of perils of the sea, or other specified perils, does not . . . exempt him from liability for loss or damage from one of those perils, to which the negligence of himself or his servants has contributed.
“This rule of construction was fully established in this court before it had occasion to decide the question whether it was within the power of the carrier by express stipulation to exempt himself from all responsibility for the negligence of himself or his servants.
“In the leading case of New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344 .... [the Court stated] ‘But we think it would be going farther than the intent of the parties . . . were we to regard it as stipulating for . . . want of ordinary care . . . .’ Tf it is competent at all for the carrier to stipulate ... it should be required to be done, at least,
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in terms that would leave no doubt as to the meaning of the parties.’ 6 How. 383, 384. See also . . . The Syracuse, 12 Wall. 167.” 168 U. S., at 118-120.
This citation of The Steamer Syracuse as an example of instances in which a rule of narrow construction of exculpatory clauses had been invoked should have set to rest any misunderstanding concerning the scope of its ruling.
3.	Campania de Navegacion Interior, S. A. v. Fireman’s Fund Ins. Co., 277 U. S. 66 {The Wash Gray), was a consolidation of libels by the owner of the Wash Gray, lost while in tow on the Gulf of Mexico, against eleven insurance companies which had underwritten the voyage. One of the defenses of the insurers was that the contract of towage had contained, unknown to them, the following provision which they alleged to have been material to the risk:
“Freeport Sulphur No. 1 [the tug] will furnish hawser. All other risk and expense to be borne by [the Wash Gray]. It is understood you will keep sufficient men on board to keep up steam and man the tug’s pumps. S. S. Freeport No. 1 is not responsible in any way for loss or damage to the Wash Gray.”
The District Court had held that the towage clause “does not pretend to release liability for loss or damage growing out of the tower’s negligence. Such an intention would be defeated by the very obscurity of its terms.” 14 F. 2d 196, 200. The Court of Appeals reversal rested on grounds not here relevant. 19 F. 2d 493.
On writ of certiorari, this Court, reversing the Court of Appeals, dismissed the contention of the insurers in the following terms:
“We do not think that the towing contract has the effect claimed for it by the companies. It did not release the ‘Freeport’ from any loss or damage to the
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‘Wash Gray’ due to the negligence of the master or crew of the towing vessel; and for a loss thus caused the companies would be subrogated to the claim of the owner of the ‘Wash Gray.’
“The rule laid down by this Court in The Steamer Syracuse, 12 Wall. 167, 171, covers the point. . . .
“In view of this state of the law, the towing contract here shown was not a fact material to the risk, a concealment of which from the underwriters would injure them or avoid the policy.” 277 U. S., at 73-74.
The wording of the clause differed, to be sure, from that involved in The Steamer Syracuse. But the language relied upon by the insurers, , in the context of the rest of the clause and the undertaking involved, was no more suggestive of an attempt to avoid liability for negligence than that construed in The Steamer Syracuse. It is hardly surprising that the Court applied, at the instance of the party to the contract, the narrower meaning which the parties in The Steamer Syracuse had conceded to be proper, and rejected the insurer’s attempt to escape liability by attributing the broadest meaning to the clause.
4.	Any support for the present decision drawn from the language of The Steamer Syracuse and The Wash Gray is decisively repelled by the decision in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291. That case involved the following clause of a contract for assistance of a tanker to its berth at Bergen, New Jersey:
“When the captain of any tug engaged in the services of towing a vessel . . . goes on board said vessel, it is understood and agreed that said tugboat captain becomes the servant of the owners in respect to the giving of orders to any of the tugs engaged in the towage service and in respect to the handling of such vessel, and neither the tugs nor their owners or agents shall be liable for any damage resulting therefrom.”
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While the captain of one of respondent’s tugs was acting as pilot on board the tanker, it went aground and was damaged. In the resulting action against the tug, this Court upheld the validity of the clause, stating:
“The validity of its applicable provision cannot reasonably be doubted. So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment, and the services covered by the contract were less than towage. . . . There is no foundation in this case for the application of the doctrine that common carriers and others under like duty to serve the public according to their capacity and the terms of their undertaking cannot by any form of agreement secure exemption from liability for loss or damage caused by their own negligence. . . . Respondent had no exclusive privilege or monopoly in respect of the services that petitioner desired to have performed for its tanker. And petitioner was under no compulsion to accept the terms of respondent’s pilotage clause. There is nothing to suggest that the parties were not on equal footing or that they did not deal at arm’s length. ‘There is no rule of public policy which denies effect to their expressed intention, but on the contrary, as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the contract which was actually made.’ . . .
“Respondent’s responsibility is not to be extended beyond the service that it undertook to perform. It did not furnish pilotage. . . .
“The decree under consideration is not in conflict with the decisions of this court cited by petitioner, The Steamer Syracuse, 12 Wall. 167, and Compañía de Navegación v. Ins. Co., 277 U. S. 66. Neither
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involved an agreement similar to the provisions of the pilotage clause on which this case turns.” 287 U. S., at 294-295.2
The opinion distinguishes The Steamer Syracuse and The Wash Gray not on the ground that there is an essential difference between considerations of policy applicable to towage and pilotage, but expressly and only on the ground that the provisions of the contracts differed, thus viewing the earlier cases as involving no more than matters of construction. Of course there are differences between the situation before the Court in Sun Oil and the one now before us. But the analysis which led the Court to its conclusion there is equally applicable here and calls for upholding the validity of this agreement.
DECISIONS IN THE LOWER COURTS.
1.	Concededly, the Second Circuit has, ever since the decision in The Oceanica, 170 F. 893 (1909),3 upheld the
2 See also New York Central R. Co. v. The Talisman, 288 U. S. 239, 242, stating the determinative facts of the Sun Oil case to be that “the towage company was not bound to render the service there involved and was not a common carrier or liable as such. That case, and the cases cited which arose under contracts for towage, plainly have no application . . . .”
3 The Court of Appeals did not there purport to differ with any decision of this Court on the question of validity of exculpatory towage clauses. It said of The Steamer Syracuse: “The learned judge must have meant that an agreement by the tow to tow at her own risk should not be construed to cover the tug’s negligence.” 170 F., at 895. The Court of Appeals felt justified in reaching a different construction of a similar agreement because it had become clear that a tug is not in relation to the tow a common carrier and thus, the court reasoned, no risk could now be referred to by such clauses except the tug’s negligence. The discussion of the majority related entirely to construction, not to validity. The later statement on rehearing—“We do appreciate keenly that the decision of the majority of the court as to the right of a tug to contract against
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validity of agreements whereby towers avoid liability for their own negligence. Its most recent reiteration of this position is found in Nielson v. United States, 209 F. 2d 958, today reversed on other grounds, post, p. 129. To the Second Circuit there must now be added the Courts of Appeals for the Fourth and Fifth Circuits by virtue of their decisions in this case and in Boston Metals Co. v. The Winding Gulf.4 It is not without significance that the Second and Fifth Circuits are first and second in volume of admiralty litigation.
2.	In a series of three cases, the Sixth Circuit has assiduously avoided the issue of validity of exculpatory clauses, resting instead upon construction of the clause in issue as not reaching the negligence involved. Great Lakes Towing Co. n. Bethlehem Transp. Corp., 65 F. 2d 543; 5
her own negligence is a departure from previous decisions. The question should, and we hope will, be set at rest in this case by the Supreme Court,” 170 F., at 900—must either inaccurately express the meaning of the court or refer to the fact that at that time the cautious constructional approach of the lower federal courts had produced no affirmance of the validity of such clauses and one decision which, upon an analogy since discredited, had declared them invalid. See n. 11, infra.
4 209 F. 2d 410, rev’d, post, p. 122. In the course of its opinion, the Court of Appeals stated:
“We are not called upon to decide whether the owner of a tug or the tug itself, which is operating under a contract containing the standard towing conditions, may ever escape liability to a third party for injuries caused by its negligence.” 209 F. 2d, at 414.
In context, however, it is clear that this merely amounts to a reservation of the question whether the third party’s right to sue the tug was affected by the pilotage clause. In permitting the third party to recover directly from the tow owner by virtue of the clause, the Fourth Circuit necessarily affirmed the right of the tug to shift the burden of liability to the tow.
5 The clause involved stated:
“When a vessel is towed or pushed stern first by one tug, the service will be under the control and direction of the master of the vessel so
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Great Lakes Towing Co. n. American S. S. Co., 165 F. 2d 368;8 Walter G. Hougland, Inc. v. Muscovalley, 184 F. 2d 530.7
3.	The Ninth Circuit is the only Circuit which has indicated—but not decided—that it might differ with the Second, Fourth and Fifth Circuit Courts of Appeals were it forced to pass squarely on the issue of validity. The statement in the syllabus to the first of the relevant cases in the Ninth Circuit, Alaska Commercial Co. n. Williams, 128 F. 362, is inaccurate. While it says that a tug “cannot relieve itself by contract from liability for the failure to exercise reasonable care and skill,” the
assisted, and the tug will not be liable for any damages that may be sustained or caused . . . .”
The tug in this case had been engaged in pushing a steamer stern first away from its pier when the bow of the steamer struck the dock. The Court of Appeals held the quoted clause inapplicable because in fact the tug had not been operating under the control and direction of the master of the steamer. No question of the validity of an exculpatory clause was involved.
6 A clause substantially similar to that involved in the earlier Great Lakes case, supra, n. 5, was likewise construed to be inapplicable on the ground that the tug had been operating independently of any direction from the tow at the time of the accident. In the course of the opinion the court stated:
“Were we therefore compelled to decide the case upon the validity of paragraph 17, it might seem to us that decision must be controlled by the doctrine of The Syracuse, whatever might be our own views of the principle or its applicability to the present case. A narrower ground for decision, however, appears.” 165 F. 2d, at 371.
7 This case involved, apparently, towage under a clause similar to that considered in The Steamer Syracuse, stating that the service was to be performed “at the owner’s risk.” It was contended that this clause relieved the tug from liability for loss of one of the towed vessels which sank in the wake of a larger vessel. The court merely stated: “This contention cannot be sustained under the authorities,” 184 F. 2d, at 531, citing The Steamer Syracuse and The Wash Gray without indicating that they involved more than construction of similar clauses.
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court concluded that the lower court had properly-excluded an amendment to the pleadings and testimony which, it was alleged, was designed to show the existence of an exculpatory clause. It then merely added:
“But we are of the opinion that if the plaintiff in error had proved the contract to be as in the proposed amendment it was alleged to be, it would not have afforded it exemption from liability in the present case,” citing The Steamer Syracuse. 128 F., at 366.
Mylroie v. British Columbia Tug Co., 268 F. 449, involved a contract of towage which stated:
“That the Tug will render to the said Barge ‘Bangor’ reasonable assistance from time to time in any emergency which might arise. . . . The Tug Company is not to be held liable for any damage which might happen to the said barge ‘Bangor’ or its cargo while in tow or at anchor.”
The barge had been lost after a sudden change of course by the tug, made without warning to the barge, caused the towline to snap. The Court of Appeals was ready to hold, and appeared to view the Alaska Commercial case as holding, that the tower could not, for reasons of public policy, avoid liability for negligence. Such a holding also was attributed to The Steamer Syracuse. But, in a rather confused opinion, the court appears to adopt the viewT that the exculpatory clause presupposed the tug’s seaworthiness which in fact was negatived by the absence of a sufficient crew. Thus the clause was inapplicable. 268 F., at 453. The decision was affirmed in this Court on the ground that, as a matter of construction and in accordance with English decisions, the clause meant only that the tug should not be liable if it had rendered reasonable assistance to the barge. Holding that the tug had not done so, the Court stated: “This makes it unnecessary for us to consider the contention on behalf of the
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barge that the exemption clause is void.” British Columbia Mills Tug A Barge Co. v. Mylroie, 259 U. S. 1, 12.
Subsequent developments have not made the Ninth Circuit’s position any clearer. In Sacramento Navigation Co. v. Saiz, 3 F. 2d 759, reversed here on other grounds, 273 U. S. 326, that Circuit considered a contract between the owner of a barge and a shipper of merchandise which excused the former from liability for “dangers of fire and navigation.” The tug, also owned by the bargeowner, negligently caused loss of the barge and its cargo. The court dismissed the contention that the bargeowner might avoid liability under the quoted provision of the contract expressly as a matter of construction, and, in so doing, indicated that The Steamer Syracuse, The Oceanica, and Mylroie merely reflected differing constructions of exculpatory clauses.8 This opinion thus chose to ignore the dicta of Mylroie. But subsequent dicta in Hall-Scott Motor Car Co. n. Universal Ins. Co., 122 F. 2d 531, indicate that, at least as of 1941, the Ninth Circuit felt that
8“. . . The exceptions therein expressed extend only to dangers of fire and navigation . . . and they apply only to the barge, and not to the tug .... No tug was referred to in connection with the contract of transportation. The exemption clause, therefore, does not excuse negligent towage. The Steamer Syracuse, 12 Wall. 167 . . . Alaska Commercial Co. v. Williams . . . Mylroie v. British Columbia Mills Tug & Barge Co. . . .
“The appellant cites The Oceanica . . . [there the Second Circuit], while accepting the rule that a contract will not be construed to cover the carrier’s negligence, unless the intention to do so is expressly stated, held, one judge dissenting, that a tug, being only liable for negligence, if the tow agrees to assume all risks, no risks can be meant, except . . . the consequences of her own negligence. . . . We think that it is a departure from the principles announced in the decisions of the Supreme Court which we have cited. It may be said, by way of distinguishing . . . The Oceanica . . . that the court found in the terms thereof an intention of the contracting parties to absolve the tug from the consequences of its own negligence, whereas, in the case at bar, the contract is wholly between a shipper of cargo and the owner of the barge . . . .” 3 F. 2d, at 761.
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precedent in this Court and that Circuit’s own decisions had established the invalidity of towage release-from-negligence clauses. In that case, the court reviewed the towage cases in considering analogies to the case before it, one in which a pleasure cruiser being repaired in dry dock was lost through fire and the principal defense was based on a clause in the repair contract stating that the repairer “will not be held responsible for any damage to cruiser ‘Pacifica’ . . . while the engine installation is being made.” The court stated:
“This court has held that a contract relieving a towing vessel from the results of its negligence is void and has based its decisions upon the decision of the Supreme Court in 1870, in the case of The Steamer Syracuse . . . ,” citing Alaska Commercial and Mylroie. 122 F. 2d, at 535.
After reviewing contra decisions in other circuits:
“The Supreme Court has unquestionably settled this difference in Compañía de Navegación v. Phoenix [sic] Ins. Co., 277 U. S. 66 . . . .
“If these decisions of the Supreme Court and of this court are applicable to a maritime contract to repair a ship it is clear that such a contract to exculpate the contractor for his negligence is invalid.” 122 F. 2d, at 535-536.
The court decided, however, that the principles of the Sun Oil case were instead to be applied, holding the exculpatory clause valid.
4.	It is safe to say that, aside from temporary intracircuit conflicts within the Second Circuit,9 never since
9 Compare Petterson Lighterage & Towing Corp. v. The J. Raymond Russell, 87 F. Supp. 467 (viewing The Oceánica as having been overruled by The Wash Gray), with The Primrose, 3 F. Supp. 267, and The John J. Feeney, 3 F. Supp. 270 (viewing exculpatory clauses as valid). The Court of Appeals has, however, consistently held to the
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ordinary towage has been recognized as not amounting to common carriage 10 has there been a decision in any district court holding invalid clauses which were clearly designed to relieve a tug from liability in the course of its service as a private carrier. Every decision is either limited to a construction of the clause or, if expressions concerning validity appear, they are the merest dicta.11
views enunciated in The Oceanica and has resolved all such conflicts in favor of the validity of exculpatory towage clauses. That decision was a departure from its earlier narrow construction of exculpatory towage clauses, see The Edmund L. Levy, 128 F. 683; The Syracuse, 23 Fed. Cas. 593, No. 13,717; aff’d 12 Wall. 167, but not from any decision turning upon validity.
10 Of course there may be instances where, because of the mode and circumstances of operation, or for purposes of regulatory statutes, towage may be held to involve common carriage. See Cornell Steamboat Co. v. United States, 321 U. S. 634.
11 Among the cases cited for the proposition that such clauses are invalid, one, The Rescue, 24 F. 190 (D. C. W. D. Pa.), may so hold, but if so on the theory that towage is equivalent to common carriage, a view not now tenable. Two others, The Monarch, 235 F. 795, 799 (D. C. N. D. Fla.), and The Sea Lion, 12 F. 2d 124, 126 (D. C. N. D. Calif.), contain dicta to the effect that such clauses are invalid. In both cases, however, it was held that the tug was not negligent and the libels were dismissed. Contrary dicta are found in four other cases. The Pacific Maru, 8 F. 2d 166, 170-173 (D. C. S. D. Ga.); Compania de Navegacion, Interior, S. A. v. Fireman’s Fund Ins. Co., 14 F. 2d 196, 200, aff’d 277 U. S. 66; Mengel Co. v. Inland Waterways Corp., 34 F. Supp. 685, 690-692; Compania de Navegacion Cristobal, S. A., v. The Lisa R., 116 F. Supp. 560, 561 (all D. C. E. D. La.). All other cases do not expressly go further than to determine that the clause involved did not, as a matter of construction, operate to relieve the tug from liability for the particular negligence involved. These include The Somers N. Smith, 120 F. 569 (D. C. Me.); The Vim, 40 F. 2d 638 (D. C. R. I.); The M. J. Cummings, 18 F. 178 (D. C. N. D. N. Y.); The Jonty Jenks, 54 F. 1021 (D. C. N. D. N. Y.); The Oceanica, 144 F. 301 (D. C. W. D. N. Y.), rev’d, 170 F. 893; Ulrich n. The Sunbeam, 24 Fed. Cas. 515, No. 14,329 (D. C. N. J.); Vanderslice v. The Superior, 28 Fed. Cas. 970, No. 16,843 (D. C. E. D. Pa.); The Skagway, 1925 Am. Mar. Cas. 1133 (D. C. W. D. Wash.).
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INTERPRETATION AND VALIDITY OF THE EXCULPATORY TOWAGE CLAUSE.
We are not presented with a longstanding admiralty rule based on public policy invalidating contracts releasing towers from all liability for their negligence. In fact, we are presented with no rule other than that of the Second Circuit and those following it. Private parties have been free for over a century and a half to contract with reference to the rights and liabilities incident to towage. We cannot assume that they have been misled into a contrary belief. Critical analysis of the authorities, both in this country and in England,12 would not indicate that this freedom had been circumscribed by judicial decision.13
12 English law recognizes the validity of tug-tow contracts releasing the tug from liability for its own negligence. E. g., The Albion, [1953] 2 All Eng. 679 (C. A.); The Ramsden, [1943] P. D. 46; The Tasmania, 13 P. D. 110; The United Service, 9 P. D. 3 (C. A.); The President Van Buren, 16 Aspinall’s Rep. (N. S.) 444; see Marsden, Collisions at Sea (10th ed. 1953), p. 216.
Just as has been true of decisions in this country, however, specific language directed at liability for negligence must be used. Thus, where the contract merely stated “all transporting to be at owners’ risk,” the tower was held liable. The phrase was interpreted merely to mean that if the tug exercised reasonable care and skill the tow would incur the risks incidental to navigation. The Forfarshire, [1908] P. D. 339; see also, The West Cock, [1911] P. D. 208 (C. A.). The parallel to The Steamer Syracuse and The Wash Gray requires no elaboration.
13 1 Benedict on Admiralty (5th ed. 1925), p. 167, asserts that a “towage contractor . . . may by contract limit or disclaim liability for negligence.” Griffin, American Law of Collision (1949), pp. 462-466, after detailed examination of the cases, concludes that the apparent conflict is over construction rather than validity. Robinson on Admiralty (1939), pp. 670-673, suggests that The Wash Gray seems “obliquely” to indicate a contrary rule, but juxtaposes the Sun Oil case without resolution of its inconsistency with such a view of The Wash Gray.
The leading encyclopedias of American case law note an apparent
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If deference to Congress as the arbiter of public policy is called for, see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310; Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, certainly it should lead us not to upset a practice of the shipping industry sanctioned by the courts most concerned with it. And if inferences are to be drawn from existing legislation, it may be significant that Congress’ careful regulation of freedom to limit liability in the case of public carriers of passengers or cargo (46 U. S. C. §§ 183c, 190-192, 1300-1308) is, either expressly or by virtue of the judicial “gloss” placed upon these sections, inapplicable to the usual tug-tow relationship. This suggests that, in the view of Congress, there is no overriding public policy requiring similar limitations in the field of private towage.
This Court has not, to be sure, in every instance awaited congressional action before imposing views of public policy upon contracting parties. But it has limited its interference in the field of transportation to relationships between common carriers and their customers, concededly not the relationship before us. We have held that the towage relationship is even less than one of marine bailment, Stevens n. The White City, 285 U. S. 195, as to which, under the rulings of the lower fed-
conflict among the circuits on the question of validity of the tug-tow exculpatory contracts. They do not suggest that there is controlling authority in this Court, and tend to support the validity of such exemption. 86 Corpus Juris Secundum (1954) 1038 (“It has been judicially noted that the apparent conflict in authority may arise from failure to use sufficiently unequivocal language in the release clause.”); 63 Corpus Juris (1933) 60, § 136 (“it has been said that such question has not yet been authoritatively determined.”); 48 American Jurisprudence (1943) 346, § 508 (“Although there are some holdings to the contrary, the weight of judicial opinion seems to favor the view that it is competent for a tower, by a stipulation assented to by the tow, to exempt itself from liability for loss or injury caused by its own negligence.”).
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eral courts, public policy does not invalidate exculpatory clauses. Newport News Shipbuilding & Dry Dock Co.n. United States, 34 F. 2d 100 (C. A. 4th Cir.); Hall-Scott Motor Car Co. v. Universal Ins. Co., 122 F. 2d 531 (C. A. 9th Cir.); see International Mer cantile Marine S. S. Co. v. W. & A. Fletcher Co., 296 F. 855, 860 (C. A. 2d Cir.); Restatement, Contracts, §§ 574, 575.
The considerations which have governed this Court’s role as arbiter of the public interest in exculpatory contracts were recently enunciated by the unanimous Court in the Sun Oil case. They bear repetition:
“So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment .... There is no foundation in this case for the application of the doctrine that common carriers and others under like duty to serve the public . . . cannot by any form of agreement secure exemption from liability for loss or damage caused by their own negligence. . . . Respondent had no exclusive privilege or monopoly .... There is nothing to suggest that the parties were not on equal footing or that they did not deal at arm’s length.” 287 U. S., at 294.
These considerations of policy are equally present here and call for the result reached in Sun Oil.
Nothing in the record hints at any inequality of bargaining power between the parties to this contract, nor is there any basis for taking judicial notice that the tug industry as an industry is in concentrated ownership.14
14 There exists no comprehensive study of the towing industry directed to the considerations important in determining whether or not it is characterized by monopolistic tendencies or inequalities of bargaining power. However, a study of transportation lines in the United States prepared by the Corps of Engineers, United States
118
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
The towing service was here undertaken by a Government corporation. Certainly we cannot assume that the Government is exploiting the maritime services it is rendering in an unreasonable or coercive manner. Nor was it suggested that no tug company available for the services involved would consent to deletion of the exculpatory clause upon payment of a reasonable consideration. Nor are we informed as to whether such clauses were uniformly found in the standard contracts offered by tug companies in the locality. Had such uniformity of practice been shown, it would not necessarily reflect more than universal satisfaction with such an arrangement; it would hardly demonstrate need for judicial wardship.
The argument is made that permitting the parties to grant immunity to the tug will stimulate irresponsibility, or, at least, that it is necessary to force the tug to bear losses resulting from its negligence in order to provide an
Army, lists more than 950 concerns which are described as engaging in towing operations of general or specialized character throughout the United States. See Transportation Lines on the Great Lakes System, 1955 (Transportation Series 3); Transportation Lines on the Mississippi River System and the Gulf Intracoastal Waterway, 1954 (Transportation Series 4); Transportation Lines on the Atlantic, Gulf, and Pacific Coasts, 1954 (Transportation Series 5). In addition, there are numerous towing concerns which operate within a single port not listed in these studies but shown in individual studies of specific ports. Port Series Reports, prepared by the Board of Engineers for Rivers and Harbors. These sources reveal that more than 140 concerns were engaged in towing petroleum products on the Mississippi and Illinois Rivers, or general towage operations on these rivers, which is the service involved in this case. It is impossible to tell how many of these concerns would have been available to petitioner for the services which the Federal Barge Lines rendered. But these rough figures carry no suggestion of the factors which have in the past led us to invalidate clauses relieving from liability for negligence, for they certainly do not warrant an assumption that towage enjoys a monopolistic or comparable economically coercive position.
BISSO v. INLAND WATERWAYS CORP. 119
85	Frankfurter, J., dissenting.
incentive to reasonable care. In the commercial setting of the towage industry this argument has little force, unless we are prepared also to forbid the tug to insure against such losses or liabilities. If not, then the question ultimately is whether public policy requires that the tug, rather than the tow, shall bear the cost of insurance. Indeed, in all likelihood, the economic burden will fall upon the tow in either case. In the absence of anything in the record, or any facts of which this Court may take judicial notice, that the tug has exploited an unfair bargaining position, there is no reason why the parties should not be free to distribute this cost as they see fit.
It is suggested that a distinction should be drawn between exemption of pilots from liability and exemption of towers. Reliance is placed on the unique position of pilots in the maritime world and the extensive regulation to which they are subjected: they are assimilated to public officers. If the pilotage involved in Sun Oil took place in the detailed regulatory context thus suggested, decision in this case should follow a fortiori from Sun Oil in allowing the agreement of the parties to stand. For quasipublic status and detailed regulation of the qualifications for, and manner of, doing business, with the limited competition which such regulation constrains, are characteristic of the public carrier. If the result in Sun Oil was reached despite similarities that brought the situation in proximity to decisions denying common carriers the right to contract against liability for negligence, the absence of these factors here emphasizes the applicability of the analysis of that case to the problem before us.
There is in each of these cases decided today a question of construction of the exculpatory clause. We have noted that the courts have wisely insisted on clear language to avoid the incidents which the law, apart from the voluntary arrangements of the parties, applies to the towage relationship. In the present case, the clause used seems
120
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
proof against a construction which would exclude from its operation negligence of the tug. The clause provides that the service is to be done “at the sole risk” of the tow, that the tug is not to be “liable for any loss or damage . . . however occurring” and finally that the master and crew of the tug “shall become and be the servants” of the tow whether or not the tow “assists in the service in any way and irrespective of whether they be aboard ... or in command” of the tow.15
The District Court held that, while the “sole risk” clause did not sufficiently spell out an exemption from liability
15 The clause states in full:
“(4) The movement contemplated will be done at the sole risk of the 'craft to be towed’ and its cargo and neither the boats and/or any other equipment used in said service nor the owner, charterer, or hirer thereof shall be liable for any loss or damage to the 'craft to be towed’ or its cargo nor for any damage done by the ‘craft to be towed,’ however occurring. The masters and crews and employees of all boats and/or other equipment assisting the 'craft to be towed’ shall, in the performance of said service, become and be the servants of the 'craft to be towed,’ regardless of whether the 'craft to be towed’ assists in the service in any way and irrespective of whether they be aboard the 'craft to be towed’ or in command thereof. Nothing herein contained, however, shall be construed as making the 'craft to be towed,’ its owners, charterers or operators liable or responsible for loss of or damage to the property of Federal Barge Lines or third parties or for loss of life or personal injury for which the 'craft to be towed’ its owners, charterers or operators would not otherwise be liable or responsible.
“(5) 'Owner’ agrees to indemnify and hold harmless Federal Barge Lines from any liability to or for account of the crew of the ‘craft to be towed’ because of any accident, damage, injury or loss of life to the said crew, or any loss of personal property or effects of the said crew, however arising, and the ‘owner’ agrees to defend any and all suits or other actions which may be brought against Federal Barge Lines by or for account of the members of such crews for the reasons aforesaid, and to pay, satisfy, or discharge any and all judgments that may be rendered therein, to the full acquittance and discharge of Federal Barge Lines.”
BISSO v. INLAND WATERWAYS CORP. 121
85	Frankfurter, J., dissenting.
for negligence resulting in injury to the tow, the other clause, termed the “pilotage clause,” did so. The Court of Appeals held that both reached the liability involved, citing the decision of the Second Circuit in The Oceanica. Whether or not the “sole risk” phraseology is sufficiently different from that involved in The Steamer Syracuse (“risk”) to justify construing it to avoid liability here, the declaration that the tug’s personnel are to be considered the servants of the tow, read in context, does manifest an intention that the tug shall not be held liable for injury to the tow. Here the clause makes it clear that the tug’s crew are to be regarded as the servants of the tow whether or not there is in fact any direction or control exercised by the tow.
I would affirm.
122
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
BOSTON METALS CO. v. THE WINDING GULF ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 70. Argued March 1, 1955.—Decided May 16, 1955.
In the circumstances of this case, whatever the towage contract provided, the owner of a tow was not liable to a third party for the negligence of employees of a towing company, where such employees were in fact acting as employees of the towing company and not as employees of the owner of the tow. Bisso v. Inland Waterways Corp., ante, p. 85. Pp. 122-123.
209 F. 2d 410, reversed.
John H. Skeen, Jr. argued the cause for petitioner. With him on the brief was Eugene M. Feinblatt.
Charles S. Bolster argued the cause for respondents. With him on the brief were Seymour P. Edgerton, Robert Haydock, Jr. and Theodore R. Dankmeyer.
Mr. Justice Black delivered the opinion of the Court.
The petitioner, Boston Metals Company, brought this suit in admiralty against the steam vessel Winding Gulf and her owners to recover for loss of its obsolete destroyer which sank after colliding with the Winding Gulf. The collision occurred while the destroyer was being towed by the tug Peter Moran; the destroyer itself was without power or crew. The owners of the Winding Gulf filed a cross-libel against petitioner, charging that the collision was due to unseaworthiness of the destroyer. After hearings, the District Court found that the collision was due to negligent navigation by the Winding Gulf, to inadequate lights on the destroyer and absence of a crew on the destroyer to keep its lights brightly burning. This absence of lights and crew the District Court found was
BOSTON METALS CO. v. WINDING GULF. 123
122	Frankfurter, J., concurring.
the fault of the master of the tug Peter Moran. The tug master’s negligence, however, was imputed to the petitioner because of provisions in the towage contract that the master and crew of the tug would become the servants of the petitioner and that the towing company would not be responsible for their negligent towage. On this basis, the District Court entered a decree in favor of the crosslibellant against petitioner which resulted in dividing the damages equally between petitioner and respondents. 72 F. Supp. 50. The Court of Appeals affirmed on the same grounds. 209 F. 2d 410. We granted certiorari. 348 U. S. 811.
In Bisso v. Inland Waterways Corp., decided today, ante, p. 85, we held invalid a contract designed to shift responsibility for a towboat’s negligence from the towboat to its innocent tow. That holding controls this case. For whatever this contract said, here as in the Bisso case, the persons who conducted these towing operations were in fact acting as employees of the towing company, not as employees of the owner of the tow. Under these circumstances it was error to hold petitioner liable for negligence of the towing company’s employees. Cf. The Adriatic, 30 T. L. R. 699.
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
[For opinion of Mr. Justice Douglas, concurring, see ante, p. 95.]
Mr. Justice Frankfurter, concurring.
Release-from-liability clauses generally, and specifically with regard to towage contracts, are not to be applied to alter familiar rules visiting liability upon a tortfeasor for
124
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., concurring.
the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties. Even when such a clause undeniably alters the normal relationship between tug and tow as to some aspects of liability for negligence, it is not to be construed to impose every consequence of the tug’s negligence upon the tow unless the clause decisively requires this result. See The Devonshire and St. Winifred, [1913] P. 13; The Richmond, 19 T. L. R. 29 (P. D.).
The issue before us in this case is not the bare question whether the tow has contracted away its right to recover damages caused by the negligence of the tug. It is whether in addition the tow has undertaken to become directly liable to all third parties injured as a consequence of the negligence of the tug.
These are the relevant clauses governing the towage here:
“2. Tug services will be supplied upon the condition that all towing ... of a vessel or craft of any character by a tug or tugs owned or employed by the Tug Company is done at the sole risk of such vessel or craft and of the owners, charterers or operators thereof, and that the Master and crew of such tug or tugs used in the said services become the servants of and identified with such vessel or craft and their owners, and that the Tug Company only undertakes to provide motive power.
“3. The Tug Company will not be responsible for the acts or defaults of the Master, or crew of such tug or tugs, or any of their servants or agents or else whosoever, nor for any damages, injuries, losses or delays from whatsoever cause arising that may occur either to such vessel or craft, or property or persons on board thereof, or to any other ship or vessel or property of any kind whether fixed or movable and
BOSTON METALS CO. v. WINDING GULF. 125
122
Frankfurter, J., concurring.
the Company shall be held harmless and indemnified by the Hirer against all such damages, injuries, losses and delays, and against all claims in respect thereof.
“4. Such exemption from liability shall apply regardless of whether such vessel or craft assists in the services with its own steam or power or in any other way, and irrespective of whether any employee of the Tug Company or the Master, or any of the crew of such tug or tugs is at the time of said services on board of such vessel or craft, or in command thereof.
“5. The foregoing conditions shall apply to any damages, injuries or loss from whatsoever cause arising that may occur to the vessel or craft requiring the tug or tugs or to any other vessel or craft, or to any person or property on board thereof, or to any other property whether fixed or movable, while such tug or tugs is or are in attendance upon . . . the vessel or craft . . . provided however that the said conditions shall not apply to loss or damage to the tug or tugs or to property on board the tug or tugs or to damages for personal injuries to or loss of life of members of the crews of the tug or tugs or persons on board thereof, unless such loss or damage or such damages for personal injuries or loss of life shall have been caused or contributed to by the fault or negligence of the vessel or craft requiring the tug or tugs.”
Is the significance of these clauses to permit a third party injured by collision with the tow due to the negligence of the crew of the tug, to proceed directly against the owner of the tow by virtue of this clause?
The District Court refused to allow the third party to invoke the indemnity clause, but apparently held that the contract made the faults of the tug attributable to
126
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., concurring.
the tow, imposing a vicarious liability upon its owner.1 The Court of Appeals reasoned that since the tow had agreed to indemnify the tug against claims of third parties, the third party could proceed directly against the tow because “The libel was filed by the owner of the tow who had agreed to take the risk of the enterprise and pay any damages that might be incurred, and as was said by Judge Learned Hand in the Kookaburra, 2 Cir., 69 F. 2d 71, 73, ‘the admiralty, whose procedure is especially plastic, can skip the by-ways and head direct for the goal.’ ” 209 F. 2d 410, 414.
In the absence of the contractual provisions quoted, the owner of the tow would not be liable to the third party. Sturgis v. Boyer, 24 How. 110; The Eugene F. Moran, 212 U. S. 466, 473. On the other hand, the tow did agree to indemnify the tug against liability in the circumstances here involved. But a promise to indemnify is a promise running to the indemnitee, here the tug, and is not ordinarily construed as a contract for the benefit of third parties. Nor does an agreement to hold another harmless against claims of third parties, if it conveys anything more than the term “indemnify,” suggest that the contract was intended for the benefit of third parties.
It is true that the clause states that the members of the crew are to “become the servants of and identified with such vessel or craft” and that the tug will “not be responsible” for their acts. If in fact this were the relationship, the tow would be liable directly to third parties.
172 F. Supp. 50. Respondent contends that in fact the District Court held that the owners of the tow were personally negligent in entering into the arrangement without taking steps to insure that the towage would be properly performed. There are some phrases in the opinion which tend to support this view, but on the whole it is not consistent with the course of reasoning of the District Judge. It was not the view taken by the Court of Appeals, and we would not be justified in adopting it.
BOSTON METALS CO. v. WINDING GULF. 127
122	Frankfurter, J., concurring.
This was not the fact, however, and any liability of the tow to the Winding Gulf can only be based upon the contractual language.2 But the history of towage and pilotage release-from-negligence clauses suggests that this terminology is merely an attempt to phrase a disclaimer of liability applicable to a towage service in the terms of the pilotage clause successfully invoked in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291. Like all attempts to describe desired legal consequences through use of inapposite concepts, the momentum of the symbolic concept may induce consequences beyond those which the true nature of the problem justifies.3 Placed in its commercial and judicial context, the phraseology does not sufficiently indicate an agreement to undertake direct liability to third parties.4 There are good reasons why this should not be undertaken, among them the fact that in a suit to which the tug is not a party it may be difficult to obtain the full assistance of the tug in establishing non-liability or avoiding an unfairly larger recovery than might have been or subsequently is had against the tug.
The only remaining question then is whether the fact that the tow owner instituted this libel against the third
2 Cf. The Adriatic and The Wellington, 30 T. L. R. 699 (P. D.), in which the third party sued tug and tow, relying on a similar clause of the towage contract declaring the tug’s crew to be servants of the tow. The tow was held not liable. In view of the English doctrine regarding contracts for the benefit of third parties, our problem of construction of the contract did not arise.
3 See Guy v. Donald, 203 U. S. 399, 406: “As long as the matter to be considered is debated in artificial terms there is danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied.”
4 Note that the clause involved in Bisso v. Inland Waterways Corp., ante, p. 85, similar to the present one in most respects, expressly states that it is not to be construed to make the owner of the tow liable to third parties.
128
349 U. S.
OCTOBER TERM, 1954.
Burton, J., dissenting.
party should permit the third party to assert as a defense, or affirmatively as a cross-libel in this case, the claim against the tug. The quotation cited by the Court of Appeals from The Kookaburra is not in point, for there all parties were before the court, and the question was one of contribution. In such a situation circuity of action may be avoided without the danger of injury to any of the parties. But it is no defense to an action for negligence that a claim over against an absent third party exists, and the situation is not different because the absent third party in turn would, if held liable, be entitled to indemnity from the libellant.
Mr. Justice Burton, whom Mr. Justice Reed joins, dissenting.
Recognizing the validity of the agreement that “the Master and crew of such tug or tugs used in the said [towing] services become the servants of and identified with such [towed] vessel or craft and their owners,” I would give that agreement full effect. To me, the agreement is sufficient to make the tow owners directly liable to third parties for the acts of the Master and crew who thus become their servants. Accordingly, I would affirm the judgment of the Court of Appeals.
UNITED STATES v. NIELSON.
Opinion of the Court.
129
UNITED STATES, AS OWNER OF THE CHRISTOPHER GALE, v. NIELSON et al, TRADING AS DAUNTLESS
TOWING LINE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 210. Argued March 1, 1955.—Decided May 16, 1955.
A contract between a tugboat company and a shipowner, for rendering assistance in moving a steamship under its own power, provided that a tugboat captain going aboard the ship to direct the moving operation would become the servant of the shipowner and that the tugboat company would not be “liable for any damage” resulting therefrom. Held: The contract did not authorize recovery by the tugboat company for damage to its own tugboat resulting from negligent pilotage by a tugboat captain who had gone aboard the ship to direct the moving operation. Pp. 129-132.
209 F. 2d 958, reversed.
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Burger and Samuel D. Slade.
Anthony V. Lynch, Jr. argued the cause and filed a brief for respondents.
Mr. Justice Black delivered the opinion of the Court.
The respondent, Dauntless Towing Line, contracted to use two of its tugs in assisting the United States, petitioner here, move its steamship Christopher Gale from Hoboken to a Brooklyn pier. The Gale was to move under its own propelling power under guidance of one of respondent’s tugboat captains or some other licensed
130
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
pilot. The contract further provided that a tugboat captain or pilot going on board would become the “servant of the owners of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service and in respect to the handling of such vessel, and neither those furnishing the tugs and/or pilot nor the tugs, their owners, agents, or charterers shall be liable for any damage resulting therefrom.” One of the respondent’s tug captains went aboard the government vessel to pilot it in connection with the moving operation. The two tugs of respondent were at the time fastened to the Gale by lines to help guide its movements. One of the tugs was crushed between the Gale and a pier while attempting to carry out a maneuver under orders of the tug captain piloting the Gale.
The respondent brought this suit in admiralty to recover damages from the United States alleging that damages to the tug were caused by negligent pilotage orders of the tug captain while temporarily acting as “servant” of the Gale. After hearings the District Court found that the damages were caused by the pilot’s negligence “in persisting in his attempt to enter the slip after he knew or should have known that he could not overcome the force of the wind and tide and keep the Christopher Gale from sagging down on Pier 1.” On this finding the District Court entered a decree requiring the United States to pay respondent for damages brought about by this negligence. This decree was entered over the Government’s contention that the contract was invalid if construed as exempting respondent from liability for its own servant’s negligence. 112 F. Supp. 730. Agreeing with the District Court’s reasoning and decree, the Court of Appeals affirmed. 209 F. 2d 958. We granted certiorari to consider the meaning and validity of the pilotage
UNITED STATES v. NIELSON.
131
129	Opinion of the Court.
clause, 348 U. S. 811, and at the same time granted certiorari in two other cases, today decided, which involve validity of contracts exempting towers from liability for negligent towage. Bisso v. Inland Waterways Corp., ante, p. 85; Boston Metals Co. v. The Winding Gulf, ante, p. 122.
Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell’s tug captains negligently piloted Sun Oil’s vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being ‘‘liable for any damage” caused by the negligence of one of its captains in piloting Sun Oil’s vessel and construed the contract there as having that effect. The question in this case, however, is whether the agreement of the ship being piloted to release the tug company from being “liable for any damage resulting” from negligent pilotage not only relieves the tug company from liability for damage, but allows it affirmatively to collect damages for injury to its own tug due to negligent pilotage by one of its tug captains.
An agreement that one shall not be liable for negligence of a third person cannot easily be read as an agreement that one is entitled to collect damages for negligence of that third person. And there is no reason to stretch contractual language to force payment of damages under circumstances like these. A person supplying his own employees for use by another in a common undertaking cannot usually collect damages because of negligent work by the employee supplied. Clear contractual language might justify imposition of such liability. But the con-
340907 0 - 55 - 15
132
349 U.S.
OCTOBER TERM, 1954.
Burton, J., dissenting.
tractual language here does not meet such a test and we do not construe it as authorizing respondent to recover damages from petitioner.
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Burton, whom Mr. Justice Reed joins, dissenting.
The pilotage clause agreed to by the parties herein states that—
“When the captain of any tug furnished to or engaged in the service of assisting a vessel which is making use of her own propelling power goes on board said vessel, or any other licensed pilot goes on board said vessel, it is understood and agreed that said tugboat captain or licensed pilot becomes the servant of the owners of the vessel assisted . . . .” (Italics supplied.)
According to the above agreement, petitioner contracted to make the tug captain, while serving in this capacity, its servant. Recognizing the validity of this agreement, I would give full effect to its expressed purpose. Accordingly, I would affirm the judgment of the Court of Appeals.
IN RE MURCHISON.
133
Opinion of the Court.
IN RE MURCHISON et al.
CERTIORARI TO THE SUPREME COURT OF MICHIGAN.
No. 405. Argued April 20, 1955.—Decided May 16, 1955.
A Michigan state judge served as a “one-man grand jury” under Michigan law in investigating crime. Later, the same judge, after a hearing in open court, adjudged two of the witnesses guilty of contempt and sentenced them to punishment for events which took place before him in the grand jury proceedings. Held: Their trial and conviction for contempt before the same judge violated the Due Process Clause of the Fourteenth Amendment. Pp. 133-139.
The power of a trial judge to punish for a contempt committed in his immediate presence in open court is not applicable to the contempt proceeding here. P. 137.
340 Mich. 140, 65 N. W. 2d 296, and 340 Mich. 151, 65 N. W. 2d 301, reversed.
William L. Colden argued the cause for petitioners. With him on the brief were James A. Cobb, George E. C. Hayes and Charles W. Jones.
Edmund E. Shepherd, Solicitor General, argued the cause for the State of Michigan, respondent. With him on the brief were Thomas M. Kavanagh, Attorney General, and Daniel J. O’Hara, Assistant Attorney General.
Mr. Justice Black delivered the opinion of the Court.
Michigan law authorizes any judge of its courts of record to act as a so-called “one-man grand jury.” 1 He can compel witnesses to appear before him in secret to testify about suspected crimes. We have previously held that such a Michigan “judge-grand jury” cannot consistently with the Due Process Clause of the Fourteenth Amendment summarily convict a witness of contempt for
1 Mich. Stat. Ann., 1954, §§ 28.943, 28.944.
134
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
conduct in the secret hearings. In re Oliver, 333 U. S. 257. We held that before such a conviction could stand, due process requires as a minimum that an accused be given a public trial after reasonable notice of the charges, have a right to examine witnesses against him, call witnesses on his own behalf, and be represented by counsel. The question now before us is whether a contempt proceeding conducted in accordance with these standards complies with the due process requirement of an impartial tribunal where the same judge presiding at the contempt hearing had also served as the “one-man grand jury” out of which the contempt charges arose. This does not involve, of course, the long-exercised power of courts summarily to punish certain conduct occurring in open court.2
The petitioners, Murchison and White, were called as witnesses before a “one-man judge-grand jury.” Murchison, a Detroit policeman, was interrogated at length in the judge’s secret hearings where questions were asked him about suspected gambling in Detroit and bribery of policemen. His answers left the judge persuaded that he had committed perjury, particularly in view of other evidence before the “judge-grand jury.” The judge then charged Murchison with perjury and ordered him to appear and show cause why he should not be punished for criminal contempt.3 White, the other petitioner, was
2 Sacher v. United States, 343 U. S. 1; Cooke n. United States, 267 U. S. 517, 539; Ex parte Savin, 131 U. S. 267. See also In re Oliver, 333 U. S.257, 273-278.
3 The contempt charge signed by the judge reads in part as follows: “It therefore appearing . . . that the said Patrolman Lee Roy Murchinson [sic] has been guilty of wilfull and corrupt perjury, which perjury has an obstructive effect upon the judicial inquiry being conducted by this court and the said Patrolman Lee Roy Murchinson [sic] obstructed the judicial function of the court by wilfully giving false answers as aforesaid, and did also tend to impair the respect for the authority of the court, all of which perjury and
IN RE MURCHISON.	135
133	Opinion of the Court.
also summoned to appear as a witness in the same “one-man grand jury” hearing. Asked numerous questions about gambling and bribery, he refused to answer on the ground that he was entitled under Michigan law to have counsel present with him. The “judge-grand jury” charged White with contempt and ordered him to appear and show cause. The judge who had been the “grand jury” then tried both petitioners in open court, convicted and sentenced them for contempt. Petitioners objected to being tried for contempt by this particular judge for a number of reasons including: (1) Michigan law expressly provides that a judge conducting a “one-man grand jury” inquiry will be disqualified from hearing or trying any case arising from his inquiry or from hearing any motion to dismiss or quash any complaint or indictment growing out of it, or from hearing any charge of contempt “except alleged contempt for neglect or refusal to appear in response to a summons or subpoena”; (2) trial before the judge who was at the same time the complainant, indicter and prosecutor, constituted a denial of the fair and impartial trial required by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The trial judge answered the first challenge by holding that the state statute barring him from trying the contempt cases violated the Michigan Constitution on the ground that it would deprive a judge of inherent power to punish contempt. This interpretation of the Michigan Constitution is binding here. As to the second challenge
false answers given by the said witness aforesaid was committed during the sitting of, in the presence and view of this court and constitutes criminal contempt;
“It is therefore ordered that the said Patrolman Lee Roy Murchin-son [sic] appear before this court on the tenth day of May, 1954, at 10:00 o’clock in the forenoon and show cause why he should not be punished for criminal contempt of this court because of his aforesaid acts.”
136
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
the trial judge held that due process did not forbid him to try the contempt charges. He also rejected other constitutional contentions made by petitioners. The State Supreme Court sustained all the trial judge’s holdings and affirmed.4 Importance of the federal constitutional questions raised caused us to grant certiorari.5 The view we take makes it unnecessary for us to consider or decide any of those questions except the due process challenge to trial by the judge who had conducted the secret “one-man grand jury” proceedings.6
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that “every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U. S. 510, 532. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11,14.
4 In re White, 340 Mich. 140, 65 N. W. 2d 296; In re Murchison, 340 Mich. 151, 65 N. W. 2d 301.
5 348 U. S. 894.
6 That we lay aside certain other federal constitutional challenges by petitioners is not to be taken as any intimation that we have passed on them one way or another.
IN RE MURCHISON.
137
133	Opinion of the Court.
It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings.7 A single “judge-grand jury” is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal.8 Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.9 It is true that contempt committed in a trial courtroom can under some circumstances be punished summarily by the trial judge. See Cooke v. United States, 267 U. S. 517, 539. But adjudication by a trial judge of a contempt committed in his immediate presence in open court cannot be likened to the proceedings here. For we held in the Oliver case that a person charged with contempt before a “one-man grand jury” could not be summarily tried.
7 See, e. g., Note, 50 L. R. A. (N. S.) 933, 953-954, 970-971.
8 Apparently the trial judge here did consider himself a part of the prosecution. In passing on a request by Murchison’s counsel for a two-day postponement of the contempt trial the judge said, “There are two points that suggest themselves to me.
“One is that if the respondent is going to claim that he was in Shrewsberry, Ontario, Canada, on March 9, 1954, that we ought to be furnished with information so that we could between now and two days from now, which I am going to give you, we could do some checking and investigating ourselves.” (Emphasis supplied.)
Because of the judge’s dual position the view he took of his function is not at all surprising.
9 See, e. g., Queen v. London County Council, [1892] 1 Q. B. 190; Wisconsin ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172.
138	OCTOBER TERM, 1954.
Opinion of the Court.	349 U.S.
As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his “grand-jury” secret session. His recollection of that is likely to weigh far more heavily with him than any testimony given in the open hearings. That it sometimes does is illustrated by an incident which occurred in White’s case. In finding White guilty of contempt the trial judge said, “there is one thing the record does not show, and that was Mr. White’s attitude, and I must say that his attitude was almost insolent in the manner in which he answered questions and his attitude upon the witness stand. . . . Not only was the personal attitude insolent, but it was defiant, and I want to put that on the record.” In answer to defense counsel’s motion to strike these statements because they were not part of the original record the judge said, “That is something . . . that wouldn’t appear on the record, but it would be very evident to the court.” Thus the judge whom due process requires to be impartial in weighing the evidence presented before him, called on his own personal knowledge and impression of what had occurred in the grand jury room and his judgment was based in part on this impression, the accuracy of which could not be tested by adequate cross-examination.
This incident also shows that the judge was doubtless more familiar with the facts and circumstances in which the charges were rooted than was any other witness. There were no public witnesses upon whom petitioners could call to give disinterested testimony concerning what took place in the secret chambers of the judge. If there had been they might have been able to refute the judge’s statement about White’s insolence. Moreover, as shown by the judge’s statement here, a “judge-grand jury” might himself many times be a very material witness in a later trial for contempt. If the charge should be heard before
IN RE MURCHISON.
139
133	Reed and Minton, JJ., dissenting.
that judge, the result would be either that the defendant must be deprived of examining or cross-examining him or else there would be the spectacle of the trial judge presenting testimony upon which he must finally pass in determining the guilt or innocence of the defendant.10 In either event the State would have the benefit of the judge’s personal knowledge while the accused would be denied an effective opportunity to cross-examine. The right of a defendant to examine and cross-examine witnesses is too essential to a fair trial to have that right jeopardized in such way.
We hold that it was a violation of due process for the “judge-grand jury” to try these petitioners, and it was therefore error for the Supreme Court of Michigan to uphold the convictions. The judgments are reversed and the causes are remanded for proceedings not inconsistent with this opinion.	D ,
Reversed.
Mr. Justice Reed and Mr. Justice Minton, dissenting, with whom Mr. Justice Burton joins.
The Court holds that it is unconstitutional for a state judge to punish a contempt, previously committed before him while acting as a so-called one-man grand jury, after a full hearing in open court. It holds that White, in being so punished for his blanket refusal to answer any questions before the grand jury, and Murchison, in being so punished for perjury before the same body, were deprived of their liberty without due process of law.
This conclusion is not rested on any irregularity in the proceedings before either the grand jury or the court. Under Michigan procedure a single state judge makes the
10 See Hale n. Wyatt, 78 N. H. 214, 98 A. 379. See also, Witnesses— Competency—Competency of a Presiding Judge as Witness, 28 Harv. L. Rev. 115.
140
349 U. S.
OCTOBER TERM, 1954.
Reed and Minton, JJ., dissenting.
grand jury investigation, not in secret, but with other public officials to aid him, and a transcript is made of the testimony. There is certainly nothing unconstitutional about this. A State may reduce the customary number of grand jurors to one, and impart the investigatory duty to a member of its judiciary if it so desires. Further, the accused is afforded a full hearing in open court, with a statement of charges, benefit of counsel, and a full opportunity to explain his conduct before the grand jury, before being held in contempt. Thus all the requirements set down in In re Oliver, 333 U. S. 257, are met.
The Court’s determination is rested on the sole fact that the same judge first cited petitioners for contempt committed in his presence, and then presided over the proceedings leading to the final adjudication. It is neither shown nor alleged that the state judge was in any way biased. Nor is this required by the Court, for it holds, as a matter of law, that the judge’s “interest” in a conviction makes the proceedings inherently prejudicial and thus constitutionally invalid. The fact that the “interest” of the state judge in this procedure is no different from that of other judges who have traditionally punished for contempt leads us to dissent.
In Sacher v. United States, 343 U. S. 1, we upheld the power of a federal district judge to summarily punish a contempt previously committed in his presence. In that case, after a trial which had extended for some nine months, the trial judge issued a certificate summarily holding defense counsel in contempt for their actions during the trial. There were no formalities, no hearings, no taking of evidence, no arguments and no briefs. We held that such a procedure was permitted by Rule 42 of the Federal Rules of Criminal Procedure which codified the “prevailing usages at law.” The Court specifically rejected the contention that the judge who heard the contempt was disqualified from punishing it and should be required
IN RE MURCHISON.
141
133	Reed and Minton, JJ., dissenting.
to assume the role of accuser or complaining witness before another judge. In Offutt v. United States, 348 U. S. 11, the Court simply stated an exception: when the trial judge becomes personally embroiled with the contemnor, he must step aside in favor of another judge. That decision was rested upon our supervisory authority over the administration of criminal justice in the federal courts. The Court now holds, even though there is no showing or contention that the state judge became embroiled or personally exercised, or was in any way biased, that as a matter of constitutional law—of procedural due process—a state judge may not punish a contempt previously committed in his presence. This seems inconsistent with all that has gone before.
The Court, presumably referring to the situation in the federal courts, states that the “adjudication by a trial judge of a contempt committed in his immediate presence in open court cannot be likened to the proceedings here.” The reason that it cannot, we are told, is because “we held in the Oliver case that a person charged with contempt before a ‘one-man grand jury’ could not be summarily tried.” This is hardly explanatory, for the question of whether the hearing is to be summary or plenary has no bearing on the attitude or “interest” of the judges in the two situations, which is indistinguishable. The simple fact is that in the federal courts we allow the same judge who hears the contempt and issues the certificate to punish it subsequently and summarily, but in this case we do not allow such punishment even after a full court trial. The only factual difference between Sacher and this case is that the contempt in Sacher was committed at a public trial. When the contempt is not committed in open court, we require that the criminal conviction be in public and that the individual be given a full hearing, with an opportunity to defend himself against the charges proffered and to make a record from which to appeal. In re
142
349 U. S.
OCTOBER TERM, 1954.
Reed and Minton, J J., dissenting.
Oliver, 333 U. S. 257. Petitioners had all this. They are not entitled to more.
We do not see how it can be held that it violates fundamental concepts of fair play and justice for a state judge after a full court trial to punish a contempt previously observed when acting as a grand jury, when it has been held that it is perfectly proper for a federal judge to summarily punish a contempt previously observed in open court. It seems to us that the Court has imposed a more stringent requirement on state judges as a matter of due process than we have imposed on federal judges over whom we exercise supervisory power.
The Court relies heavily on Tumey v. Ohio, 273 U. S. 510. There we held that it deprives a defendant of due process to “subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Id., at 523. It is one thing to hold that a judge has too great an interest in a case to permit the rendition of a fair verdict when his compensation is determined by the result he reaches. It is quite another thing to disqualify a state judge as having too great an interest to render a due process judgment when his sole interest, as shown by this record, is the maintenance of order and decorum in the investigation of crime—an interest which he shares in common with all judges who punish for contempt.
The State of Michigan has decided that in the administration of its criminal law it is wise to have the investigating power in the hands of a judge. It has also decided that the judge who observes the contempt is to preside at the trial of the contemnor. It does not seem that there is here such a violation of accepted judicial standards as to justify this Court’s determination of unconstitutionality.
We would affirm.
SOCIETY FOR SAVINGS v. BOWERS. 143
Syllabus.
SOCIETY FOR SAVINGS IN THE CITY OF CLEVELAND v. BOWERS, TAX COMMISSIONER OF OHIO.
NO. 2 04. APPEAL FROM THE SUPREME COURT OF OHIO.*
Argued March 28, 1955.—Decided May 16, 1955.
Ohio assessed a property tax against a mutual savings bank and a federal savings and loan association in their own names. The tax was measured by the amount of each bank’s capital, surplus or reserve and undivided profits, without deduction of the value of obligations of the Federal Government owned by it. Neither bank had any capital stock or shareholders, each was owned by its depositors, and there was no provision for reimbursement of the bank by its depositors for the tax. Held: The tax is void as a tax upon obligations of the Federal Government. Pp. 144-155.
(a)	In determining the validity of the tax under federal law, this Court is not bound by the conclusion of the Supreme Court of Ohio that the tax is imposed on the depositors, rather than on the banks. P. 151.
(b)	In the circumstances of this case, the tax must be regarded for federal purposes as one imposed on the banks, rather than on the depositors. Pp. 151-154.
(c)	Without provisions protecting the banks against the burdens of the tax, it cannot be assumed that the operation of the tax statute will not infringe on the immunity of the federal obligations held by them. P. 154.
161 Ohio St. 122, 118 N. E. 2d 651, and 161 Ohio St. 149, 118 N. E. 2d 667, reversed.
Robert F. Maskey argued the cause for appellant in No. 204. With him on the brief were David A. Gaskill and Edgar P. Stocker.
Robert G. Day argued the cause and filed a brief for appellant in No. 220.
*Together with No. 220, First Federal Savings and Loan Association of Warren v. Bowers, Tax Commissioner of Ohio, on appeal from the same court.
144
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
Joseph S. Gill, First Assistant Attorney General of Ohio, argued the cause for appellee. With him on the brief was C. William O’Neill, Attorney General.
Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack and Hilbert P. Zarky filed briefs for the United States, as amicus curiae, urging reversal.
Mr. Justice Harlan delivered the opinion of the Court.
In 1829 this Court decided in Weston v. City Council of Charleston, 2 Pet. 449, that obligations of the Federal Government are immune from state taxation. This rule, aimed at protecting the borrowing power of the United States from state encroachment, was derived from the “Borrowing” and “Supremacy” Clauses of the Constitution,1 and the constitutional doctrines announced in McCulloch v. Maryland, 4 Wheat. 316 (1819). It was subsequently embodied in a succession of federal statutes, the existing statute being R. S. § 3701, 31 U. S. C. § 742.2 The rule has been carried forward to embrace indirect taxation of such obligations through their inclusion in a tax imposed on all the property of a taxpayer. It is quite immaterial that the state tax does not discriminate against the federal obligations. New York ex rel. Bank of Commerce v. Commissioners of Taxes, 2 Black 620 (1863); Bank Tax Case, 2 Wall. 200 (1865); Farmers & Mechanics Savings Bank v. Minnesota, 232 U. S. 516 (1914); New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U. S. 665 (1950).
The two cases now before us involve the application of that rule, in a somewhat novel situation. Society for Savings in the City of Cleveland and First Federal Sav-
1 Art. I, §8, cl. 2; Art. VI, cl. 2.
2 “Except as otherwise provided by law, all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority.”
SOCIETY FOR SAVINGS v. BOWERS. 145
143	Opinion of the Court.
ings and Loan Association of Warren,3 two mutual savings banks having no capital stock or shareholders, and located in Ohio, attack the validity of an Ohio property tax, as assessed against them, on the ground that they were required to include in the property values upon which the tax was computed United States bonds held in their security portfolios. Had these bonds been excluded, the entire tax would have been wiped out in both instances.4 The Ohio Tax Commissioner thought these government bonds were not excludible. The Ohio Board of Tax Appeals reversed. The Supreme Court of Ohio sustained the Commissioner in each instance. The two banks are here by appeal from the judgment of the Ohio Supreme Court in each case.5 The cases were argued together, and are so treated in this opinion.
The tax in question was assessed in the names of these banks under §§ 5408, 5412 and 5638-1 of the Ohio General Code,6 upon the book value of their “capital em-
3 Society for Savings was incorporated under Ohio law, and First Federal under the Home Owners’ Loan Act of 1933, as amended, 48 Stat. 128, 12 U. S. C. § 1461 et seq. Nothing turns here on the difference in their origins.
4 In the view we take of this case, it is unnecessary to consider the taxable status of certain Federal Home Loan Bank stock owned by First Federal, which is also claimed to be exempt.
5161 Ohio St. 122, 118 N. E. 2d 651 (1954); 161 Ohio St. 149, 118 N. E. 2d 667. We noted probable jurisdiction, 348 U. S. 807.
6 “Sec. 5408. ... All the shares of the stockholders in a financial institution, located in this state, incorporated or organized under the laws of the state or of the United States, the capital stock of which is divided into shares, excepting such as are defined as 'deposits’ in section 5324 of the General Code, and all the shares of the stockholders in an unincorporated financial institution, located in this state, the capital stock of which is divided into shares held by the owners of such financial institution, and the capital employed, or the property representing it, in a financial institution the capital of which is not divided into shares, or which has no capital stock, located in
146
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
ployed, or the property representing it” (§ 5408) “at the aggregate amount of the capital, the surplus or reserve fund and the undivided profits” (§ 5412). The tax was at the rate of two mills on the dollar (§ 5638-1). No claim is made that the taxes constituted a franchise tax or some other kind of privilege tax. Cf. Educational Films Corp. v. Ward, 282 U. S. 379 (1931).
The Supreme Court of Ohio recognized that this tax, based as it was upon the inclusion of federal obligations, would have to fall if directed against the banks. New York ex rel. Bank of Commerce v. Commissioners of this state, shall be listed and assessed at the book value thereof, and taxed in the manner provided in this chapter.”
“Sec. 5412. . . . Upon receiving such report the tax commissioner shall ascertain and assess all the taxable shares of such financial institution, or the value of the property representing the capital employed by such financial institution, not divided into shares, at the aggregate amount of the capital, the surplus or reserve fund and the undivided profits as shown in such report, and the amount of taxable deposits of such institution in each county in which the institution maintained an office or offices for the receipt of deposits. Such amounts shall be assessed in the name of such financial institution excepting that the amounts of the taxable deposits wholly withdrawn from each such institution within the times mentioned in section 5411-2 of the General Code and separately set forth in such report shall be subtracted from the amount of taxable deposits so assessed and separately assessed in the names of such respective depositors. In the case of an incorporated financial institution all of whose shares constitute deposits as defined in section 5324 of the General Code such assessment of shares shall exclude the capital stock thereof as so shown but shall include the surplus or reserve and undivided profits so shown.”
“Sec. 5638-1. . . . Annual taxes are hereby levied on the kinds and classes of intangible property, hereinafter enumerated, on the intangible property tax list in the office of the auditor of state and duplicate thereof in the office of treasurer of state at the following rates, to wit: . . . deposits, two mills on the dollar; shares in and capital employed by financial institutions, two mills on the dollar; . . . .”
SOCIETY FOR SAVINGS v. BOWERS. 147
143	Opinion of the Court.
Taxes, supra; Bank Tax Case, supra. This tax, though, was not considered to be against the banks. Holding that the depositors of a mutual savings bank have an interest similar to that of shareholders of other banks, the Ohio court found instead that the tax was imposed upon the “intangible property interests” of the depositors as the owners of each bank. The banks’ capital, surplus fund and undivided profits, which we will refer to as their surplus, were regarded as not themselves the subject matter of the tax, but as simply the measure of the tax against the depositors, and the banks were treated as tax-collecting agents rather than as taxpayers.
In so deciding the Ohio court relied upon a gloss on the rule of immunity stated above. It has been held that a state may impose a tax upon the stockholders’ interests in a corporation, measured by corporate asset values, without making any deduction on account of United States securities held by the corporation. This doctrine had its origin in cases involving national bank stock. There, congressional consent to state taxation of the stock of national banks, upon certain conditions, was held, over strong dissent, to permit such taxes to be assessed without the exclusion of federal obligations owned by the banks. Van Alien v. Assessors, 3 Wall. 573 (1866); National Bank v. Commonwealth, 9 Wall. 353 (1870); Des Moines National Bank v. Fairweather, 263 U. S. 103 (1923). This result was reached in part on the theory that the stockholders’ interests in a corporation represent a separate property interest from the corporation’s ownership of its assets, so that a tax on the stockholders’ interests is not a tax on the federal obligations which are included in the corporate property. This rationale has been carried over to cases involving stock of state-created banks, and thus a tax on their shareholders, though measured by corporate assets which include federal obligations, is held
340907 0 - 55 - 16
148
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
not to offend the rule immunizing such obligations from state taxation. Cleveland Trust Co. N. Lander, 184 U. S. Ill (1902). Further, in levying a tax on shareholders, a state may require its payment by the corporation, as a collecting agent. Corry v. Baltimore, 196 U. S. 466 (1905). The result is that when, as is usually the case, the shareholder tax is measured solely by corporate asset values, such a tax is difficult to distinguish from a tax imposed upon the corporation itself, so far as the practical impact of the two types of taxes upon corporate-owned federal obligations is concerned. Nevertheless, this exception to the general rule of immunity is firmly embedded in the law.
The focal point of these appeals is thus whether we are to regard this tax as imposed on the banks or, as the Ohio court held the legislature intended, on their depositors. Were we free to construe Ohio’s statute de novo we might have difficulty in reaching the conclusion which the Ohio court did. Suffice it to say at this point: The statute is barren of any language expressly imposing this tax on the depositors, and contains no provision giving the bank any right to recover the tax from the depositors, as might be expected if the bank had been regarded as a mere taxcollecting agent. By contrast, the taxes laid by the Ohio General Code on (a) the shares of incorporated financial institutions whose capital is divided into shares, (b) the shares of unincorporated institutions whose capital is divided into shares, and (c) deposits, are imposed on the shares “of the stockholders” (§ 5408) and on the deposits “as taxable property of its depositors” (§ 5673-2).7 In the case of those taxes, not here involved, the bank is given full rights of reimbursement from the stockholders or depositors, as the case may be, and it is clear
See note 8, pp. 149-150, infra.
SOCIETY FOR SAVINGS v. BOWERS. 149
143	Opinion of the Court.
that the institution in paying such taxes is acting only as a collection agent. Ohio Gen. Code §§ 5672, 5673, 5673-1, 5673-2.8
And beyond these considerations, one might not have expected the legislature to tax the ownership interests of the depositors of these banks on the same basis as stock-
8 “Sec. 5672. . . . Taxes assessed on non-withdrawable shares of stock, of a financial institution, shall be a lien on such shares from the first day of January in each year until they are paid.
“It shall be the duty of every financial institution to collect the taxes due upon its shares of stock from the several owners of such shares, and to pay the same to the treasurer of state and any financial institution failing to pay the said taxes as herein provided, shall be liable by way of penalty for the gross amount of the taxes due from all the owners of the shares of stock, and for an additional amount of one hundred dollars for every day of delay in the payment of said taxes.
“Sec. 5673. . . . Such financial institution paying to the treasurer of state the taxes assessed upon its shares, in the hands of its shareholders respectively, as provided in the next preceding section, may deduct the amount thereof from dividends that are due or thereafter become due on such shares, and shall have a lien upon the shares of stock and on all funds in its possession belonging to such shareholders, or which may at any time come into its possession, for reimbursement of the taxes so paid on account of the several shareholders, with legal interest; and such lien may be enforced in any appropriate manner.
“Sec. 5673-1. . . . Taxes assessed on deposits in a financial institution in this state shall be a lien on the deposit of each person as of the day fixed by the tax commission of Ohio for the listing of such deposits. Taxes assessed on the shares of stock of such an institution, all of whose shares are withdrawable and defined as deposits in chapter four of this title, shall be a lien on such shares so defined as deposits as of the day so fixed. It shall be the duty of every financial institution to pay the taxes on the amount of such deposits and/or withdrawable shares assessed in its name to the treasurer of state and any such institution failing to pay such taxes as herein provided shall be liable by way of penalty for the gross amount of the taxes due on and with respect to all its deposits and withdrawable shares assessed
150
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
holders are taxed. The asserted interest of the depositors is in the surplus of the bank, which is primarily a reserve against losses and secondarily a repository of undivided earnings. So long as the bank remains solvent, depositors receive a return on this fund only as an element of the interest paid on their deposits. To maintain their intangible ownership interest, they must maintain their deposits. If a depositor withdraws from the bank, he receives only his deposits and interest. If he continues, his only chance of getting anything more would be in the unlikely event of a solvent liquidation, a possibility that hardly rises to the level of an expectancy. It stretches the imagination very far to attribute any real value to such a remote contingency, and when coupled with the fact that it represents nothing which the depositor can readily transfer, any theoretical value reduces almost to the vanishing point. Cf. Collett v. Springfield Savings Society, 13 Ohio Cir. Ct. Repts. 131, aff’d 56 Ohio St. 776, 49 N. E. 1109 (1897).
in its name and for an additional amount of one hundred dollars for every day of delay in the payment of such taxes.
“Sec. 5673-2. ... A financial institution so required to pay to the treasurer of state the taxes assessed upon its deposit accounts, as taxable property of its depositors, and/or upon its withdrawable shares as taxable property of its shareholders respectively, as provided in the next preceding section, may, upon receipt of notice of the day fixed for the listing of such deposits, charge the amount thereof to and deduct the same from the deposit of each depositor, or from the interest that is due or thereafter becomes due thereon, or from the dividends that are due or thereafter become due thereon, as the case may be, and shall have a lien upon such deposit, interest and/or dividends and on all funds in its possession belonging to such depositor or shareholder, or which may at any time come into its possession, for reimbursement of the taxes so payable, with legal interest. Such lien may be enforced in any appropriate manner at any time within six months after the payment of the taxes to the treasurer.”
SOCIETY FOR SAVINGS v. BOWERS. 151
143	Opinion of the Court.
The Ohio court, however, has held that this tax is imposed on the depositors.9 But that does not end the matter for us. We must judge the true nature of this tax in terms of the rights and liabilities which the statute, as construed, creates. In assessing the validity of the tax under federal law, we are not bound by the state’s conclusion that the tax is imposed on the depositors, even though we would be bound by the state court’s decision as to what rights and liabilities this statute establishes under state law. The court’s mere conclusion that the tax is imposed on the depositors is no more than a characterization of the tax. “Where a federal right is concerned we are not bound by the characterization given to a state tax by state courts or legislatures, or relieved by it from the duty of considering the real nature of the tax and its effect upon the federal right asserted.” Carpenter n. Shaw, 280 U. S. 363, 367 (1930). See also New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, supra, at 674; Educational Films Corp. n. Ward, supra, at 387. “Neither ingenuity in calculation nor form of words in state enactments can deprive the owner of the tax exemption established for the benefit of the United States.” Missouri ex rel. Missouri Ins. Co. n. Gehner, 281 U. S. 313, 321 (1930). Therefore, we proceed to examine what rights and liabilities the statute creates.
We note, first, that should the bank be unable to pay the tax, after it has been assessed, there is no provision entitling the State of Ohio to collect it from the depositors. A tax against the depositors which is recoverable only from the bank looks like a tax against the bank. And if the tax is in fact against the bank, it does not matter
9 As construed by the state court, the “intangible property tax” on depositors applied to different property than did the “deposit” tax also imposed on them, involving, as we see it, no question of duplication or overlapping between the two taxes.
152
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
whether the ultimate economic impact is passed on to the depositors. Home Savings Bank n. Des Moines, 205 U. S. 503, 519 (1907).
Next, it appears that the statute does not relieve the bank from having to pay the tax on the “intangible property interest” of a depositor who had an account with the bank on the assessment date of the tax, but has withdrawn his account before the collection date. And if the bank is required to pay on the former depositor’s account, there is no provision entitling the bank to reimbursement from him. It should be observed that in the case of the deposit tax the statute does contain provisions protecting the bank in such a situation. §§ 5412, 5673-1, 5673-2.10
Finally, and perhaps most important, if this tax is on the depositors, we must find somewhere a right in the bank to make itself whole from the depositors for the taxes paid on their account. In all the cases upholding state taxes against shareholders, without the exclusion of federal obligations owned by the corporation, an express or implied right of reimbursement was presupposed. See Van Allen and other cases at p. 147, supra. As already observed, in the case of the Ohio taxes on shares and deposits the statute contains such a right (§§ 5673,
10 Section 5412 provides in part: “Upon receiving such report the tax commissioner shall ascertain and assess . . . the amount of taxable deposits of such institution in each county in which the institution maintained an office or offices for the receipt of deposits. Such amounts shall be assessed in the name of such financial institution excepting that the amounts of the taxable deposits wholly withdrawn from each such institution within the times mentioned in section 5411-2 of the General Code [that is, between the date of assessment and the bank’s receipt of the notice of such date, or if no notice is received, the next January 1] and separately set forth in such report shall be subtracted from the amount of taxable deposits so assessed and separately assessed in the names of such respective depositors.”
For §§ 5673-1 and 5673-2, see note 8, pp. 149-150, supra.
SOCIETY FOR SAVINGS v. BOWERS. 153
143	Opinion of the Court.
5673-2).11 In the present cases we can find no such right. It may be true that where the tax paid by the bank is less than the interest which the bank contemplates paying the depositors, no such right of reimbursement is necessary. If, for example, a bank has 8100,000 of undivided profits, intends to pay its depositors $75,000 interest on their deposits, and has an obligation for this tax of $10,000, it perhaps makes no difference whether the bank pays $65,000 to its depositors, without recovering anything back from them, or pays them $75,000, but later recovers back the $10,000 tax paid for their account. Under either method the bank comes out whole, and the depositors receive the same net interest payment.12 But if the bank has declared the $75,000 interest payment before the tax is due, we can find nothing in the statute which would give the bank the right either to deduct the $10,000 tax from the interest payment, or to recover it back from the depositors. And conceivably the tax might exceed the interest payable to the depositors, in which event the bank would be left short, absent a right to recover the excess from the depositors.
The Ohio court thought that in charging the tax to surplus, the bank in reality would be reducing the depositors’ interest in the surplus, which it described as being “owned” by them, and that therefore in no circumstance was a right of reimbursement necessary. But there are difficulties with this proposition. If this means that the corporate fiction should be disregarded, the result would be that the government bonds would have to be excluded, since on this hypothesis such securities should then be treated as the property of the depositors. On the other
11 See note 8, pp. 149-150, supra.
12 Even so, if a comparable situation arose in connection with the tax on shareholders, the bank would have a right of reimbursement under the provisions of the Ohio statute. See note 8, pp. 149-150, supra.
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Opinion of the Court.	349 U.S.
•
hand, if the Ohio court was referring to the depositors’ equitable interest in the surplus, as seems more likely, then without a right of recoupment the bank as well as the depositors bears the impact of the tax.
Without provisions protecting the bank against the burdens of the tax, we cannot assume that the statute’s operation will not infringe on the immunity of the federal obligations held by the banks. It is not adequate merely to suggest that a bank may be entitled to make itself whole from the depositors under Ohio common law. For no such common-law right has been called to our attention. Rather, the Ohio court’s opinion indicates that the bank may be left without any right of reimbursement.13
We conclude that this tax is on the depositors in name only, and that for federal purposes it must be held to be on the banks themselves. Accordingly, the judgments in both cases are
Reversed.
Mr. Justice Burton took no part in the consideration or decision of these cases.
13The Ohio court stated: “In our opinion, such a provision [an express right of reimbursement] is not necessary to enable such a financial institution to secure such reimbursement.” 161 Ohio St., at 136, 118 N. E. 2d, at 659. It is clear that by this statement the court did not mean that an implied right of reimbursement existed under Ohio law, for it then went on to hold that “the financial institution, which pays the tax on [the depositors’] property interests in the corporation, will always be able to reimburse itself by reducing the ultimate value of the property interests of those who are the only ones who can have any claim to benefit from the ownership interests taxed.” 161 Ohio St., at 137, 118 N. E. 2d, at 659-660. This is of course not reimbursement in any proper sense of the term.
QUINN v. UNITED STATES.
155
Syllabus.
QUINN v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 8. Argued April 4-5, 1955.—Decided May 23, 1955.
Petitioner and two others were summoned to testify before a congressional investigating committee. One of them refused to say whether he was or had been a member of the Communist Party, basing his refusal on “the first and fifth amendments,” as well as “the first amendment to the Constitution, supplemented by the fifth amendment.” Petitioner adopted the other’s statement as his own and refused to answer the same question. The committee did not ask him to state more specifically the ground for his refusal to answer and did not specifically overrule his objection or direct him to answer. Held: In his trial for contempt of Congress under 2 U. S. C. § 192, the District Court should have entered a judgment of acquittal. Pp. 156-170.
1.	Petitioner’s references to the Fifth Amendment sufficiently invoked his constitutional privilege against self-incrimination. Pp. 160-165.
(a)	The constitutional guaranty against self-incrimination must be construed liberally in favor of the right it was intended to secure—especially in criminal trials for refusal to answer. Pp. 161-162.
(b)	An answer to the question whether he was a member of the Communist Party might have tended to incriminate petitioner. Blau v. United States, 340 U. S. 159. P. 162.
(c)	If an objection to a question is made in any language that a committee may reasonably be expected to understand as an attempt to invoke the privilege, it must be respected both by the committee and by a court in a prosecution under § 192. Pp. 162— 163.
(d)	The mere fact that petitioner also relied on the First Amendment did not preclude his reliance on the Fifth Amendment as well. P. 163.
(e)	Petitioner’s references to the Fifth Amendment were sufficient to put the committee on notice of an apparent claim of the privilege; and it then became incumbent on the committee either to accept the claim or to ask petitioner whether he was in fact invoking the privilege. Pp. 163-165.
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2.	On the record in this case, there was not adequate proof of a deliberate intentional refusal to answer, which is an essential element of a violation of 2 U. S. C. § 192. Pp. 165-170.
(a)	This element of the offense, like any other, must be proved beyond a reasonable doubt. P. 165.
(b)	Unless the witness is clearly apprised that the committee demands his answer notwithstanding his objection, there can be no conviction under § 192 for his refusal to answer. Pp. 165-166.
(c)	There is nothing in the record of the committee hearing from which petitioner could have determined with a reasonable degree of certainty that the committee demanded his answer despite his objection. Pp. 166-167.
(d)	By the enactment of 2 U. S. C. § 192, Congress did not intend to dispense with the traditional requirement that the witness must be clearly apprised that an answer is demanded notwithstanding his objection. Pp. 167-170.
91 U. S. App. D. C. 344, 203 F. 2d 20, reversed.
David Scribner and Frank J. Donner argued the cause for petitioner. With them on the brief were Arthur Kinoy and Allan R. Rosenberg.
Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and John R. Wilkins.
Mr. Chief Justice Warren delivered the opinion of the Court.
Petitioner was convicted of contempt of Congress under 2 U. S. C. § 192 in the District Court for the District of Columbia. Section 192 provides for the punishment of any witness before a congressional committee “who . . . refuses to answer any question pertinent to the question under inquiry . ...” 1 On appeal, the Court of Appeals
1 The section provides in full:
"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any
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for the District of Columbia Circuit reversed the conviction and remanded the case for a new trial.2 Claiming that the Court of Appeals should have directed an acquittal, petitioner applied to this Court for certiorari. We granted the writ because of the fundamental and recurrent character of the questions presented.3
Pursuant to subpoena, petitioner appeared on August 10, 1949, before a subcommittee of the Committee on Un-American Activities of the House of Representatives. Petitioner was then a member and field representative of the United Electrical, Radio and Machine Workers of America. Also subpoenaed to appear on that day were Thomas J. Fitzpatrick and Frank Panzino, two officers of the same union. At the outset of the hearings, counsel for the committee announced that the purpose of the investigation was to inquire into “the question of Communist affiliation or association of certain members” of the union and “the advisability of tightening present security requirements in industrial plants working on certain Government contracts.”4 All three witnesses were asked questions concerning alleged membership in the Communist Party. All three declined to answer.
Fitzpatrick was the first to be called to testify. He based his refusal to answer on “the first and fifth amendments” as well as “the first amendment to the
joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
2 91 U. S. App. D. C. 344,203 F. 2d 20.
3 347 U. S. 1008.
4 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, 81st Cong., 1st Sess., Part 1,541-542.
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Constitution, supplemented by the fifth amendment.” 5 Immediately following Fitzpatrick’s testimony, Panzino was called to the stand. In response to the identical questions put to Fitzpatrick, Panzino specifically adopted as his own the grounds relied upon by Fitzpatrick.6 In addition, at one point in his testimony, Panzino stated that “I think again, Mr. Chairman, under the fifth amendment, that is my own personal belief.” 7 On the following day, petitioner, unaccompanied by counsel, was called to the stand and was also asked whether he had ever been a member of the Communist Party. Like Panzino before him, he declined to answer, specifically adopting as his own the grounds relied upon by Fitzpatrick.8
5 Id., at 602,604.
6 Id., at 608.
7 Id., at 609.
8 Id., at 634-635:
“Mr. Quinn. I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire.
“Mr. Wood. And for those reasons do you decline to answer that question ?
“Mr. Quinn. I didn’t say I was declining to answer the question. Before I do answer the question I should like to say that I support the position taken by Brother Fitzpatrick yesterday.
“Mr. Wood. Did you hear his statement yesterday?
“Mr. Quinn. Yes; I did.
“Mr. Wood. Do you support it in its entirety?
“Mr. Quinn. In its entirety.
“Mr. Wood. Is there anything else you want to add to it?
“Mr. Quinn. No; I don’t.
“Mr. Wood. Will you accept it as the expression of your views, then?
“Mr. Quinn. You may. I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don’t feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as small as I am.
“Mr. Wood. Having made that statement and subscribed to the sentiments expressed by the witness yesterday to whom you referred,
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On November 20, 1950, all three witnesses were indicted under § 192 for their refusals to answer.9 The three cases were tried before different judges, each sitting without a jury. Fitzpatrick and Panzino were acquitted. In Fitzpatrick’s case, it was held that his references to “the first and fifth amendments” and “the first amendment to the Constitution, supplemented by the fifth amendment” constituted an adequate means of invoking the Self-Incrimination Clause of the Fifth Amendment.10 Similarly, in Panzino’s case, it was held that his reference to “the fifth amendment” was sufficient to plead the privilege.11 In petitioner’s case, however, the District Court held that a witness may not incorporate the position of another witness and rejected petitioner’s defense based on the Self-Incrimination Clause.12 Petitioner was accordingly convicted and sentenced to a term of six months in jail and a fine of S500.
will you now answer the question whether you are now or have ever been a member of the Communist Party ?
“Mr. Quinn. I hold that the Constitution holds sacred the rights of people---
“Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?
“Mr. Quinn. I decline to discuss with the committee questions of that nature.
“Mr. Wood. Proceed, Mr. Tavenner.
“Mr. Tavenner. I believe in the light of that answer it is not necessary to ask you any further questions relating to those matters, so I will ask you this: Do you know Mr. James J. Matles?
“Mr. Quinn. Yes.”
9 Petitioner’s motions to dismiss the indictment were denied sub nom. United States v. Emspak, 95 F. Supp. 1010, 1012 (D. D. C.).
10 United States v. Fitzpatrick, 96 F. Supp. 491 (D. D. C.).
11 United States v. Panzino, unreported, Criminal No. 1747-50 (D.D.C.).
12 United States v. Quinn, unreported, Criminal No. 1744-50 (D. D. C.).
160	OCTOBER TERM, 1954.
Opinion of the Court.	349 U. S.
In reversing this conviction, the Court of Appeals, sitting en banc, held that “No formula or specific term or expression is required” in order to plead the privilege and that a witness may adopt as his own a plea made by a previous witness.13 Thus the Court of Appeals viewed the principal issue in the case as “whether Fitzpatrick did or did not claim the privilege.” 14 On this issue, a majority of the Court of Appeals expressed no view. They agreed that a reversal without more would be in order if they “were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege.” But they were “not of that clear opinion.” 15 The Court of Appeals therefore ordered a new trial for determination of the issue by the District Court.16 The Court of Appeals also directed the District Court on retrial to determine whether petitioner “was aware of the intention of his inquirer that answers were required despite his objections.” 17 In that regard, however, it rejected petitioner’s contention that a witness cannot be convicted under § 192 for a refusal to answer unless the committee overruled his objections and specifically directed him to answer.18
It is from that decision that this Court granted certiorari.
I.
There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate—including of course the
13 91 U. S. App. D. C. 344, 347, 203 F. 2d 20, 23.
14 Id., at 347, 203 F. 2d, at 23.
15 Id., at 348,203 F. 2d, at 24.
16 Ibid.
17 Id., at 349,203 F. 2d, at 25.
18 Ibid.
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authority to compel testimony, either through its own processes 19 or through judicial trial20—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.21
But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose.22 Nor does it extend to an area in which Congress is forbidden to legislate.23 Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.24 Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination which is in issue here.25
The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion in the Constitution—and the necessities for its preservation—are to be found in the lessons of history.26 As early as 1650, remembrance of the horror of Star Chamber proceedings a decade before had firmly established the privilege in the common law of England. Transplanted to this country as part of our legal heritage, it soon made its way into various state constitutions and ultimately in 1791 into the federal Bill of Rights. The privilege, this Court has stated, “was generally regarded then, as now,
19 Cf. Anderson v. Dunn, 6 Wheat. 204.
20 In re Chapman, 166 U. S. 661.
21 See McGrain v. Daugherty, 273 U. S. 135,175.
22 Id., at 173-174; Kilbourn v. Thompson, 103 U. S. 168, 190.
23 Compare United States v. Rumely, 345 U. S. 41, 46.
24 Kilbourn v. Thompson, 103 U. S. 168,192-193.
25 The Amendment provides in pertinent part that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”
26 See Griswold, The Fifth Amendment Today, 2-7.
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as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions.” 27 Co-equally with our other constitutional guarantees, the SelfIncrimination Clause “must be accorded liberal construction in favor of the right it was intended to secure.” 28 Such liberal construction is particularly warranted in a prosecution of a witness for a refusal to answer, since the respect normally accorded the privilege is then buttressed by the presumption of innocence accorded a defendant in a criminal trial. To apply the privilege narrowly or begrudgingly—to treat it as an historical relic, at most merely to be tolerated—is to ignore its development and purpose.
In the instant case petitioner was convicted for refusing to answer the committee’s question as to his alleged membership in the Communist Party. Clearly an answer to the question might have tended to incriminate him.29 As a consequence, petitioner was entitled to claim the privilege. The principal issue here is whether or not he did.
It is agreed by all that a claim of the privilege does not require any special combination of words.30 Plainly a witness need not have the skill of a lawyer to invoke the protection of the Self-Incrimination Clause. If an ob-
27 Twining v. New Jersey, 211 U. S. 78, 91. See also Boyd v. United States, 116 U. S. 616, 631-632.
28 Hoffman v. United States, 341 U. S. 479, 486. Cf. Counselman v. Hitchcock, 142 U. S. 547, 562.
29 Blau v. United States, 340 U. S. 159, specifically holding that such a question is protected by the privilege; Brunner n. United States, 343 U. S. 918, reversing 190 F. 2d 167 (C. A. 9th Cir.). See also Hoffman n. United States, 341 U. S. 479.
30 Compare Smith v. United States, 337 U. S. 137, where the Court characterized a witness’ statement “I want to claim privilege as to anything that I say” (p. 142) as a “definite claim of general privilege against self-incrimination” (p. 151).
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j ection to a question is made in any language that a committee may reasonably be expected to understand as an attempt to invoke the privilege, it must be respected both by the committee and by a court in a prosecution under § 192.
Here petitioner, by adopting the grounds relied upon by Fitzpatrick, based his refusal to answer on “the first and fifth amendments” and “the first amendment to the Constitution, supplemented by the fifth amendment.” The Government concedes—as we think it must—that a witness may invoke the privilege by stating “I refuse to testify on the ground of the Fifth Amendment.” Surely, in popular parlance and even in legal literature, the term “Fifth Amendment” in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination. The Government argues, however, that the references to the Fifth Amendment in the instant case were inadequate to invoke the privilege because Fitzpatrick’s statements are more reasonably understood as invoking rights under the First Amendment. We find the Government’s argument untenable. The mere fact that Fitzpatrick and petitioner also relied on the First Amendment does not preclude their reliance on the Fifth Amendment as well.31 If a witness urges two constitutional objections to a committee’s line of questioning, he is not bound at his peril to choose between them. By pressing both objections, he does not lose a privilege which would have been valid if he had only relied on one.
The Government, moreover, apparently concedes that petitioner intended to invoke the privilege. In its brief the Government points out “the probability that petitioner’s ambiguous references to the Fifth Amend-
31 As to the close relationship between the First Amendment and the privilege against self-incrimination, see Griswold, supra, note 26, at 8—9.
340907 0 - 55 - 17
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ment . . . were phrased deliberately in such vague terms so as to enable petitioner ... to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.” 32 But the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently definite to apprise the committee of his intention. As everyone agrees, no ritualistic formula is necessary in order to invoke the privilege. In the instant case, Quinn’s references to the Fifth Amendment were clearly sufficient to put the committee on notice of an apparent claim of the privilege. It then became incumbent on the committee either to accept the claim or to ask petitioner whether he was in fact invoking the privilege. Particularly is this so if it is true, as the Government contends, that petitioner feared the stigma that might result from a forthright claim of his constitutional right to refuse to testify. It is precisely at such times—when the privilege is under attack by those who wrongly conceive of it as merely a shield for the guilty—that governmental bodies must be most scrupulous in protecting its exercise.
This ruling by no means leaves a congressional committee defenseless at the hands of a scheming witness intent on deception. When a witness declines to answer a question because of constitutional objections and the language used is not free from doubt, the way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness unequivocally and intelligently waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the SelfIncrimination Clause, he cannot later invoke its protec-
32 Brief for United States, p. 33. The Government makes the same contention as to the petitioner in No. 9, Emspak v. United States, post, p. 190.
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tion in a prosecution for contempt for refusing to answer that question. Here the committee made no attempt to have petitioner particularize his objection. Under these circumstances, we must hold that petitioner’s references to the Fifth Amendment were sufficient to invoke the privilege and that the court below erred in failing to direct a judgment of acquittal.
II.
There is yet a second ground for our decision.
Section 192, like the ordinary federal criminal statute, requires a criminal intent—in this instance, a deliberate, intentional refusal to answer.33 This element of the offense, like any other, must be proved beyond a reasonable doubt. Petitioner contends that such proof was not, and cannot be, made in this case.
Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to prosecution under § 192. Thus if he raises an objection to a certain question—for example, lack of pertinency or the privilege against self-incrimination—the committee may sustain the objection and abandon the question, even though the objection might actually be without merit. In such an instance, the witness’ refusal to answer is not contumacious, for there is lacking the requisite criminal intent. Or the committee may disallow the objection and thus give the witness the choice of answering or not. Given such a choice, the witness may recede from his position and answer the question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal
33 Sinclair v. United States, 279 U. S. 263, 299. See also In re Chapman, 166 U. S. 661, 672, in which the Court, while upholding the constitutionality of the statute, recognized deliberateness as an element of the offense.
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intent to violate § 192. In short, unless the witness is clearly apprised that the committee demands his answer notwithstanding his objections, there can be no conviction under § 192 for refusal to answer that question.34
Was petitioner so apprised here? At no time did the committee specifically overrule his objection based on the Fifth Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. At best he was left to guess whether or not the committee had accepted his objection.
This ambiguity in the committee’s position is apparent from the transcript of the hearing.35 Immediately after petitioner stated that he was adopting Fitzpatrick’s objection, the committee chairman asked petitioner:
. will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?” In response to this, petitioner stated for the first time that he would not answer.
34 See United States v. Kamp, 102 F. Supp. 757, 759 (D. D. C.): “Committees of Congress must conduct examinations in such a manner that it is clear to the witness that the Committee recognizes him as being in default, and anything short of a clear cut default on the part of the witness will not sustain a conviction for contempt of Congress. The transcript of the defendant Kamp’s testimony fails to disclose such a clear cut default. The witness is not required to enter into a guessing game when called upon to appear before a committee. The burden is upon the presiding member to make clear the directions of the committee, to consider any reasonable explanations given by the witness, and then to rule on the witness’ response.” The defendant was accordingly acquitted.
On similar grounds, an acquittal was directed in United States v. Browder, unreported, Criminal No. 1784-50 (D. D. C.).
35 See note 8, supra.
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He said: “I decline to discuss with the committee questions of that nature.” Committee counsel thereupon stated that further questioning “relating to those matters” was “not necessary” and proceeded upon a new line of inquiry. There is nothing in this colloquy from which petitioner could have determined with a reasonable degree of certainty that the committee demanded his answer despite his objection. Rather, the colloquy is wholly consistent with the hypothesis that the committee had in fact acquiesced in his objection.
Our view that a clear disposition of the witness’ objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations.36 In this country the tradition
36 While of course not binding on Congress or its committees, the practice in the States and other English-speaking jurisdictions is at least worthy of note.
For examples relating to recalcitrant witnesses before state legislative committees, see Ex parte McCarthy, 29 Cal. 395, 398; People n. Keeler, 99 N. Y. 463, 471, 2 N. E. 615, 617; Lowe v. Summers, 69 Mo. App. 637, 645.
Recalcitrant witnesses before investigating committees of the British House of Commons have traditionally been apprised of the disposition of their objections and given subsequent opportunity to respond before being subjected to the contempt power of the legislature. The practice has been as follows: The committee reports the failure to answer to the House. The witness is questioned about the cause of the refusal to answer before the Bar of the House. The House then votes on the validity of the objection. If the claim is rejected, the witness is specifically directed to answer. Only after a subsequent refusal is punishment imposed. See 88 Journals of the House of Commons 212, 218 (Case of Elizabeth Robinson before Select Committee on Liverpool Bribery, 1833) ; 90 Journals of the House of Commons 501, 504, and 29 Hans. Deb., 3d Ser., 1249, 1279-1288 (Case of William Prentice before Select Committee on Great Yarmouth Bribery, 1835) ; 90 Journals of the House of Commons, 564, 571, 575 (Case of Lieutenant Colonel Fairman before Select Committee on the Orange Lodges, 1835) ; 152 Journals of the House of Commons 361,
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has been uniformly recognized in the procedure of both state and federal courts.37 It is further reflected in the practice of congressional committees prior to the enactment of § 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection.38 Against this background § 192 became
365 (Case of John Kirkwood before Select Committee on Money Lending, 1897).
For Canadian practice, see the case of W. T. R. Preston before the Committee on Public Accounts, the Committee on Agriculture and Colonization, and the House of Commons. 41 Journals of the House of Commons, Canada, 298, 316, 323; 41 id., Appendix No. 2, 324-327; 41 id., Appendix No. 3, 250-251; 76 Debates, House of Commons, Canada, Session 1906, Vol. Ill, 4451-4535.
37 See Hoffman v. United States, 341 U. S. 479, 486: “It is for the court to say whether his silence is justified . . . and to require him to answer if fit clearly appears to the court that he is mistaken.’ ” See also Chief Justice Marshall in United States v. Burr, 25 Fed. Cas. 38, at 40, No. 14,692e: “When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness.” The cases, both federal and state, are collected in Wigmore, Evidence, § 2271. See, e. g., Carlson v. United States, 209 F. 2d 209, 214 (C. A. 1st Cir.), and Gendron v. Burnham, 146 Me. 387, 405-406, 82 A. 2d 773, 784-785.
38 See, e. g., the resolution introduced by Congressman Orr proposing that one J. W. Simonton be haled before the bar of the House of Representatives for refusing to answer a question put to him by a duly-authorized committee of that body. Cong. Globe, 34th Cong., 3d Sess. 403-404 (1857). The resolution states in part:
“The committee were impressed with the materiality of the testimony withheld by the witness, as it embraced the letter and spirit of the inquiry directed by the House to be made, but were anxious to avoid any controversy with the witness. They consequently waived the interrogatory that day, to give the witness time for reflection on the consequences of his refusal, and to afford him an opportunity to look into the law and the practice of the House in such cases, notifying him that he would, on some subsequent day, be recalled. This was the 15th of January instant. On Tuesday, the 20th instant, the said J. W. Simonton was recalled, and the identical
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law.39 No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness, and that a “mere substitution” of a judicial proceeding for punishment at the bar of Congress was intended.40 The reason for enacting § 192 went to the punishment and not the offense. It was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the life of any session.41 By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session.42 But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of § 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail.43 In fact, the very committee involved here, the
question first referred to was again propounded, after due notice to him that if he declined the committee would feel constrained to report his declination to the House, and ask that body to enforce all its powers in the premises to compel a full and complete response.” Id., at 403. See also id., 31st Cong., 1st Sess. 1716 (1850).
39 Act of Jan. 24,1857, c. 19, § 1,11 Stat. 155.
40 Cong. Globe, 34th Cong., 3d Sess. 427.
41 Anderson v. Dunn, 6 Wheat. 204, 230-231.
42 Cong. Globe, supra, note 40, at 405 et seq.
43 See, e. g., Cong. Globe, 40th Cong., 3d Sess. 771-772 (1869); id., 42d Cong., 3d Sess. 952 (1873); 4 Cong. Rec. 1705 et seq. (1876) (citation of Hallet Kilbourn, involved in Kilbourn v. Thompson, supra, note 22); 26 Cong. Rec. 6143 et seq. (1894) (citation of Elverton R. Chapman, involved in In re Chapman, supra, note 20); 65 Cong. Rec. 4785 et seq. (1924) (citation of Harry F. Sinclair, involved in Sinclair v. United States, supra, note 33); 69 Cong. Rec. 2439, 5286,
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Opinion of the Court.
House Un-American Activities Committee, originally followed this practice44 and recently resumed it.45
Giving a witness a fair apprisal of the committee’s ruling on an objection recognizes the legitimate interests of both the witness and the committee. Just as the witness need not use any particular form of words to present his objection, so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee’s ruling, he has no cause to complain. And adherence to this traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation.
III.
Petitioner also attacks his conviction on grounds involving novel constitutional issues. He contends that the House Resolution authorizing the committee’s operations is invalid under the First Amendment. In addition, petitioner contends that the trial court erred in denying a hearing on the alleged bias of the indicting grand jury. Our disposition of the case makes it unnecessary to pass on these issues.
The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.
Reversed.
5353, 7239 (1928); 78 Cong. Rec. 1902, 1911-1914 (1934); 86 Cong. Rec. 3856 (1940); 90 Cong. Rec. 8163 (1944); 97 Cong. Rec. 499 et seq. (1951).
44 See, e. g., the contempt citation of George Powers at 86 Cong. Rec. 3856-3857. See also the citation of James H. Dolsen, id., at 3694-3695.
45 See contempt citation of Saul Grossman, 98 Cong. Rec. 8634-8637.
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Mr. Justice Harlan, concurring.
I agree with the result reached by the Court in this case. But I must dissent from the holding made in part II of the majority opinion. The reasons for my position are stated in part II of my dissenting opinion in the Emspak case, decided herewith, post, p. 203, at p. 213. I consider those reasons equally applicable to what is shown by the record in this case.
Mr. Justice Reed, dissenting.*
The Court in these two cases refuses to punish petitioners, witnesses before the Committee on Un-American Activities of the House of Representatives, for refusal to answer certain pertinent questions. Such refusal is declared to be a misdemeanor by 2 U. S. C. § 192.
The separate opinions are based on the conclusion that the petitioners each properly claimed for himself the privilege against self-incrimination guaranteed by the Fifth Amendment. The Court holds that questions concerning association with known communists or membership in the Party asked witnesses holding prominent positions in a local union, under investigation for communist infiltration directed at national security, might reasonably be feared as incriminatory by the witnesses.1 For these cases I make that assumption, too. In both the cases, the Court directs remand to the trial court with directions to acquit. This disposition of the charges excludes any factual issues for decision by the trial court as to whether the witnesses did or did not claim their
*|"This dissenting opinion applies also to Emspak v. United States, post, p. 190.]
1 Blau n. United States, 340 U. S. 159; Emspak n. United States, post, p. 190, at p. 199; see the Court’s opinion in Quinn v. United States, supra, at p. 162.
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privilege. It decides that, as a matter of law, the petitioners claimed their privilege by the words used by them in answer to the questions propounded by the Committee. Since the indictments contained numerous counts covering many questions asked and the evidence showed varying reasons for not answering, the conclusion that privilege was claimed blankets all questions. Since the sentences were less than the maximum penalty for one count, if the Court’s determination is wrong as to any one question, its present judgments are wrong.2 Normally the issue as to whether a claim of privilege was made would be a matter of fact for the trial court if reasonable men might reach either conclusion. See the discussion below in the opinion of Judge Prettyman in Quinn v. United States, 91 U. S. App. D. C. 344, 348, 203 F. 2d 20, 24, and of Judge Bazelon, id., at 350 and 361-362, 203 F. 2d, at 26 and 38. None of the judges of the Court of Appeals suggested approval of such action as this Court now takes in directing acquittal. See also Emspak n. United States, 91 U. S. App. D. C. 378, 203 F. 2d 54, dissent, id., at 384, 203 F. 2d, at 60. This Court at least should have followed that course here.
These sweeping decisions affect the conduct of all congressional inquiries and all courts, for from the opinions there emerges a legally enforceable rule for handling hearings or prosecutions when questions raise for the witness a problem of self-incrimination. The Court, Quinn opinion, p. 164, requires the interrogator, once the witness’ claim though “vague ... is sufficiently definite to apprise the committee of his intention” to claim his privilege, “either to accept the claim or to ask petitioner whether he was in fact invoking the privilege.” Although this phrasing, particularly the last clause, carries for me probabilities of uncertainties in future applications that former decisions
2 Sinclair v. United States, 279 U. S. 263, 299 (7).
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avoided,3 it is accepted for this case as the governing rule. My conclusion is that neither petitioner here apprised the Committee that he was claiming his privilege. As shown by the cases just cited, the privilege is personal to the witness. The reach of questions into matters that might lead to his prosecution for crime may be known only to him. Therefore the witness has the burden of doing something more than suggesting a question might incriminate him. At least, in the words of the Court, he must “apprise the committee of his intention” to claim his privilege.
The purpose of having witnesses is to furnish to proper interrogators, subject to objections for materiality or the use of coercion, the actual facts they seek. Legislation can best be drafted and cases tried most fairly only when all pertinent facts are made available to those charged with legislation or maintenance of the peace. However, the Congress in the first series of Amendments to the Constitution wrote an exception to this duty in the instance where an answer would compel a person to be a witness against himself in a criminal case. In that situation, on a valid claim of privilege against self-incrimination, the witness may be excused from answering.4 That exception should neither be shriveled nor bloated. It is designed to excuse the guilty and the innocent alike from testifying when prosecution may reasonably be feared from compelled disclosures. The importance of preserving the right to require evidence, except when a witness definitely apprises the interrogating body of a valid claim of privilege, leads us to dissent.
3 Vajtauer v. Commissioner, 273 U. S. 103, 113; United States v. Monia, 317 U. S. 424, 427, dissent 439; Rogers v. United States, 340 U. S. 367, 371; cf. Adams n. Maryland, 347 U. S. 179.
4 See McCarthy n. Arndstein, 266 U. S. 34; Counselman v. Hitchcock, 142 U. S.547.
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I.	Claim of Privilege.
The Court finds from the record before the Committee an apprisal by petitioners which the Committee should have understood as a claim of privilege against selfincrimination. In examining the record for this purpose, all the pertinent testimony must be considered and evaluated in the light of the purpose and abilities of the petitioners.
During an active period of national rearmament this Committee was investigating subversive and security situations in the sensitive electronic industry with a view to possible legislation.5 The recalcitrant witnesses held important positions in the field. Mr. Quinn was a field organizer of the International Union of the United Electrical, Radio and Machine Workers. Mr. Emspak was its General Secretary. The third witness, who is not a petitioner but whose testimony is hereafter referred to, was Mr. Fitzpatrick, chief steward of the Westinghouse Corporation local. There is nothing to indicate that the witnesses had mentalities of a quality less than one would expect from experienced officials holding such responsible positions.
It will be observed from their testimony, however, that in avoiding direct answers to specific questions each one engaged in exercises in dialectics that always fell short of advising the Committee of any intention to claim his privilege. In view of the ease with which a claim can be made by any layman, the availability of personal lawyers for these witnesses and the careful avoidance of any such statement as, “I decline to answer on the ground of possible self-incrimination,” I cannot hold that these
5 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, Part 1, 81st Cong., 1st Sess. 541.
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witnesses evidenced by their testimony an intention to claim privilege. The fact that a claim of privilege would subject the witnesses to criticism in some quarters, of course, has no bearing upon the necessity to assert one’s rights. This is emphasized by the fact that long ago this Court declared that no moral turpitude is involved in refusing to answer under the protection of the privilege.6
While the trial and appellate courts each had only a printed record of the testimony, one group, the subcommittees themselves, had the best opportunity to appraise disinterestedly the fact of whether Messrs. Quinn and Emspak claimed the privilege. The questions and answers were both asked by the counsel and answered by the witnesses in the hearing of the Committee. In citations of Quinn and Emspak to the House for contempt, the Committee certified that the refusal of each “to answer the aforesaid questions deprived your committee of necessary and pertinent testimony . ...”7 It can hardly be contended that the Committee did not know a claim of privilege against answering incriminating questions would have excused the witnesses from answering.
In view of the basis of the Court’s decision made on its own examination and appraisal of the record, I must necessarily set out for discussion much of the testimony to determine whether the witnesses claimed the privilege.8 The pertinent evidence follows.
After testifying at some length, the petitioner was asked: “Mr. Emspak, are you acquainted with Joseph
6 Sinclair v. United States, 279 U. S. 263,299.
7 Proceedings against Julius Emspak, H. R. Rep. No. 2847, 81st Cong., 2d Sess., p. 10; same against Thomas Quinn, H. R. Rep. No. 2857, p. 3.
8 Any person who desires to see the complete essential testimony may consult the Proceedings, cited in the preceding note. See also H. R. Rep. No. 2856.
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Persily?” Petitioner did not answer the question but made the following statement:
“Mr. Emspak. Mr. Chairman, I would like to say something at this point.
“Mr, Moulder. You mean in response to the question?
“Mr. Emspak. I will answer the question; yes, in response to the question and as a statement of position.
“What I say revolves around two points, one organizationally and another as an individual. Organizationally, my job as an officer of this union is to represent the interest of the membership as they determine it at the annual conventions and at other means they have of getting together and expressing themselves. My job is to administer that aspect to the best of my ability, using one very simple measuring stick, and that is: Does a given policy or action contribute to the well-being of the membership, individually and collectively?
“As an individual I would like to say one thing, and that is this: The line of questioning that counsel is developing now is a line that has been used on numerous occasions by this committee and other congressional committees in an attempt to harass the union, its leadership, and its members. It is a line of questioning that goes against my grain as an American. I was born in this country. Everything I am—
“Mr. Moulder. How long will this statement take, Mr. Emspak?
“Mr. Emspak. About two or three more minutes.
“Mr. Moulder. Proceed.
4
“Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do not
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believe that a committee of this kind, especially in view of the recent record of this committee where it stooped to interfere in the partisan affairs of a local union, or any congressional committee, because of the rich tradition of this country which, if not perverted, will lead to a greater and better country—I don’t think a committee like this or any subcommittee has a right to go into any question of my beliefs, my associations, or anything else. I have a couple of kids. They have a stake in this country, too.
“Mr. Moulder. I want to give you full opportunity to express yourself in answer to the question, but you are making an oration now.
“Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling.
“Mr. Moulder. What is the question?
“Mr. Tavenner. The question is: Are you acquainted with Joseph Persily.
“Mr. Moulder. How do you spell that?
“Mr. Tavenner. P-e-r-s-i-l-y.
“Mr. Emspak. Because I have a stake in this country—
“Mr. Moulder. You are not answering the question. He asked you if you are acquainted with this
man.
“Mr. Emspak.
“Mr. Moulder.
“Mr. Emspak.
“Mr. Moulder.
I will answer it.
Are you or not?
I was on the verge of answering it.
If you have any explanation to
make you will be permitted to do so after you answer the question.
“Mr. Emspak. Because of my interest in what is going on these days, because of the activities of this committee—
“Mr. Moulder. Are you going to answer the question?
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“Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights.
“Mr. Moulder. Do you think it corrupts you to answer the question?
“Mr. Emspak. I certainly do.
“Mr. Moulder. Why does it corrupt you?
“Mr. Emspak. Your activities are designed to harm the working people of this country. Every action this committee has ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. You know that. You dragged down the prestige of this country.
“Mr. Moulder. You are not going to take over this committee.
“Mr. Emspak. I don’t want to.
“Mr. Moulder. And your statements are preposterous. The purpose of this committee is to expose communism as it exists in this country. What is the question?
“Mr. Tavenner. Are you acquainted with Joseph Persily?
“Mr. Emspak. For the reasons I stated before, I answered it.
“Mr. Moulder. Then you refuse to answer the question?
“Mr. Emspak. No. I answered it.
“Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?
“Mr. Emspak. I answered the question.
“Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?
“(Witness confers with his counsel.)
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“Mr. Moulder. The record will reveal that you have not answered the question.
“Mr. Emspak. I have answered it to the best of my ability under the circumstances.”
In answer to subsequent questions, the petitioner simply referred to his prior answer. Later on, the following statements were made:
“Mr. Emspak. Mr. Chairman, on these questions, which are all essentially the same, of course, when this hearing was announced according to the press reports, at least, it was announced because this committee presumably was interested in finding out things with reference to individuals in our organization by using whatever means it has at its disposal, and for the purpose of trying to perhaps frame people for possible criminal prosecution.
“I don’t see how or why any individual should be subjected to that kind of questioning here if he is going to maintain, you know, his feelings on these questions, and I tried to express the feeling before when you interrupted me. I just don’t intend, as I said then, to be a party to any kangaroo court proceedings of this committee or any other congressional committee. I think I have the right to reserve whatever rights I have in that respect to whatever appropriate bodies may be set up to deal with questions that come up.
“Mr. Moulder. Do you mean to say you have people in your organization who have information that would subject you to criminal prosecution?
“Mr. Emspak. No; I don’t, Mr. Chairman. As a basic proposition—and it has worked over the years and over the last few months as far as this committee is concerned—a slick job—
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“Mr. Moulder. Do you know them or not?
“Mr. Emspak. That does not concern this committee at all.
“Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution?
“Mr. Emspak. No. I don’t think this committee has a right to pry into my associations. That is my own position.”
No more of the record is printed, as the excerpt shows the exchange between the Committee and petitioner upon which Count I of the indictment and the constitutional issues arising thereunder are based. This related to his acquaintanceship with Joseph Persily, a man who had been listed, according to a stipulation, as a person named as an official “of the UERMWA with Communist or Communist Front Affiliations.” Nothing more favorable to petitioner’s position appears on the questions examined or any other question.
As the Emspak case offers for me a clear example of failure to claim his privilege, I think it better not to encumber this opinion unnecessarily with quotations from the Quinn case.
In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr. Thomas J. Fitzpatrick, chief steward of Local No. 601, United Electrical, Radio and Machine Workers of America. Mr. Quinn’s testimony establishing his reliance on Mr. Fitzpatrick’s evidence will be found in this Court’s opinion in the Quinn case, n. 8, ante, p. 158. The hearing opened with a declaration by Mr. Fitzpatrick of minority rights to secrecy as follows:
“The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak and think as they feel that they
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should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the first amendment to the Constitution, supplemented by the fifth amendment.
“Mr. Wood. What is?
“Mr. Fitzpatrick. The right of the people guaranteed by the Constitution.”
This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick was then asked: “Are you now or have you ever been a member of the Communist Party?” After fencing with the Committee about prying into his mind, he said :
“Mr. Fitzpatrick. I will answer the question. The Constitution guarantees the right to me and every other citizen to have beliefs, whether they are popular or unpopular, and to keep them to themselves if they see fit, and I have no intention of being a party to weakening or destroying that protection in the Constitution. I feel when I take this position that I am one of the real Americans, and not like some of the phonies who appear here.”
Later on he was asked whether he had asked a Mr. Copeland to sign an application for membership in a Communist organization. In answer to that question this occurred :
“Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again?
“Mr. Wood. I just want to know whether you did that one thing.
“Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this committee to pry into this kind of action.
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“Mr. Wood. And for that reason do you decline to answer the question?
“Mr. Fitzpatrick. I stand on the protection of the Constitution, the first and fifth amendments.
“Mr. Wood. And for those reasons decline to answer the question further?
“Mr. Fitzpatrick. I have answered the question.
“Mr. Wood. I say, do you decline to answer it further?
“Mr. Fitzpatrick. I have no further comment on it.”
The two references to the First and Fifth Amendments are the only phrases in the whole examination that could be thought to refer to a claim of immunity against selfincrimination.
From these vague statements of Messrs. Quinn and Emspak the Court draws the conclusion that they were sufficient to apprise the Committee of the witnesses’ intention to claim the privilege against self-incrimination. The Court finds support for its theory of “intention” to claim privilege from a statement in the Government’s brief in the Quinn case set out below.9 With all respect,
9 “Under these circumstances, we contend that petitioner did not adequately inform the Committee that he was claiming the protection of the privilege.
“Moreover, we feel bound to point out the probability that petitioner’s ambiguous references to the Fifth Amendment (and those of the petitioner Emspak in No. 9), which he now contends constituted a claim of privilege, were phrased deliberately in such vague terms so as to enable petitioner (and Emspak) to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise. This suggestion is not based merely upon the obvious fact that it would have been extremely easy for petitioner to have informed the Committee that answers to its questions might incriminate or endanger him. It is also based upon facts of record, and matters appropriate for judicial notice, which reveal that petitioner (and Fitzpatrick and Emspak) had compelling
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I fail to see any concession by the Government of evidence that should apprise the Committee of a claim of privilege against self-incrimination. The first sentence of the quotation from the brief emphatically denies the Court’s assumption.
What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick to hinder and delay a congressional committee in its effort to bring out facts in order to determine whether or not to undertake legislation. Such quibbling evades the basis for an understanding of the attitude of the witness as to privilege. It does not apprise the Committee of the claim of privilege and should not be held permissible. Factual testimony is the means for the ascertainment of truth in legally organized inquiries. Silence brings the proceedings to a dead end. The burden is on the witness to advise his interrogators of a claim to privilege in understandable terms.10 In the context of this testimony, the adoption by Mr. Quinn of Mr. Fitzpatrick’s reference to the First and Fifth Amendments smacks strongly of a “due process” Fifth Amendment claim. Mr. Fitzpatrick had been speaking of his right of privacy, speech and association, not of the privilege against self-incrimination. He then added:
“Mr. Chairman, if you want to ask me questions about my actions of loyalty, question my loyalty, you have a right to do so and I will answer them. So far as my political opinions, I have stated my position on that. You are asking the same question in a different way. But if my memory is right, there was no such thing as a Communist Party when that affidavit is supposed to have been.”
and immediate reasons to refrain from making any public statements from which it might be inferred, properly or not, that they were Communists or Communist sympathizers.” Govt, br., 33-34.
10 See note 3, supra.
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The same attitude shows through Mr. Emspak’s testimony. In addition there was a direct refusal by Mr. Emspak to claim privilege. See pp. 179-180, supra.
The Court suggests that this should not be construed as a waiver of the claim and cites Smith n. United States, 337 U. S. 137, 151. I do not think the Smith case apposite. In that case there had been a clear claim of privilege for immunity. We held that required a definite, unambiguous waiver. Here there was, in my view, no claim of privilege.
The opinion of the trial court, printed only in the record, pp. 224-227, holds “The defendant failed to assert [the privilege].” Six of the nine members of the Court of Appeals held that Emspak had not claimed. Three did not reach that issue.
I concur with the Court in its assertions of the value of the self-incrimination clause—that it may be used as a shield by guilty and innocent alike—and that it should be construed liberally as it has been to cover more than the literal reading of the phrase “No person . . . shall be compelled in any criminal case to be a witness against himself” would suggest.11 This sympathetic attitude toward the clause should not lead us to intrude our ideas of propriety into the conduct of congressional hearings.
11 See, for example, Counselman v. Hitchcock, 142 U. S. 547, 562; Blau n. United States (two cases), 340 U. S. 159 and 332 (privilege available at grand jury proceedings); McCarthy n. Arndstein, 266 U. S. 34, 40, “The privilege is not ordinarily dependent upon the nature of the proceedings in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant” (proceedings in bankruptcy) ; Brown v. Walker, 161 U. S. 591, and see also Graham v. United States, 99 F. 2d 746 (administrative proceedings); see also Wood v. United States, 75 U. S. App. D. C. 274, 128 F. 2d 265 (preliminary hearings).
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The rule laid down by the Court today merely adds another means for interference and delay in investigations and trials, without adding to the protection of the constitutional right of freedom from self-incrimination. This is contrary to the policy of Congress to get information from witnesses even with a claim of immunity, through the Compulsory Testimony Act of August 20, 1954, 68 Stat. 745.
II.	Direction to Answer.
The Court advances a second ground in the Quinn and Emspak cases for its direction that the District Court enter a judgment of acquittal. This is that a deliberate intent to refuse to answer the Committee’s questions is required for the judgment of contempt. The Court explains, Quinn case, p. 166, that intent may be implied only when the witness is “clearly apprised that the committee demands his answer notwithstanding his objections,” and, Emspak case, p. 202, “without such apprisal there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer.” The Court concludes that the witness was not “specifically” directed to answer, or otherwise informed as to the disposition of his objections.
The Court must admit, as it does, Quinn opinion, p. 162, that no particular form of words is required. On the other hand, I must admit that a witness must be clearly apprised that his claim of the freedom from an obligation to answer is not accepted by the interrogator.12 I agree that the offense punishable under the statute is a deliberate, intentional refusal—not an inadvertence, accident or
12 Fields v. United States, 82 U. S. App. D. C. 354, 164 F. 2d 97, 100; Bart v. United States, 91 U. S. App. D. C. 370, 372-373, 203 F. 2d 45, 48; Emspak v. United States, 91 U. S. App. D. C. 378, 380-381, 203 F. 2d 54, 56.
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misunderstanding.13 Good faith in refusing to answer, however, is no defense so long as the refusal is intentional, deliberate. Sinclair v. United States, 279 U. S. 263, 299, points out that:
“The gist of the offense is refusal to answer pertinent questions. . . . Intentional violation is sufficient to constitute guilt.”
United States v. Murdock, 284 U. S. 141, involved a statute very similar to the one here involved. In that case, Murdock had been called to testify before an Internal Revenue Agent and refused to answer certain questions on the ground that he might be incriminated under state law. We said in that case:
“While undoubtedly the right of a witness to refuse to answer lest he incriminate himself may be tested in proceedings to compel answer, there is no support for the contention that there must be such a determination of that question before prosecution for the willful failure so denounced. By the very terms of the definition the offense is complete at the time of such failure.” 284 U. S., at 148.
There was no direction to answer in either case. While the point was not raised, their holding as to what establishes the offense does not include a specific direction to answer as one of the elements.
While the Court held in Sinclair that deliberate refusal was all that was required to consummate the offense under 2 U. S. C. §192, at the same time we were at pains to point out “There was no misapprehension” on the part of the witness “as to what was called for.” P. 299. It is because the refusal must be intentional, that the witness
13 Townsend v. United States, 68 App. D. C. 223, 229, 95 F. 2d 352, 358; Fields v. United States, 82 U. S. App. D. C. 354, 357, 164 F. 2d 97,100.

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must know that his excuses for not answering have not been accepted by the Committee. When a witness interposes objections to testifying which are not frivolous, it is difficult to say he intentionally refused to answer when the interrogation continues without pause to some other question. I agree that the Committee cannot, in fairness to the witness, lull him into thinking that his refusal to answer is acceptable and then cite him for contempt. Refusal under such circumstances would not be deliberate. However, specific direction to answer is not necessary; only intentional refusal is.
The Court suggests, n. 36, Quinn case, that congressional committees follow the practice of other legislative bodies and determine first the validity of the witness’ reason for failure to answer and then direct him to answer. The defect in that analogy is that the Court seems to assume in its note a formal vote and a specific direction to answer. I think such a specific direction is inconsistent with its page 170 admission that no ritualistic formula is required. No provision of the statute, nor of any rule of Congress is cited by the Court to support a requirement of specific direction. The Court of Appeals held direction to answer unnecessary so long as the witness knew that the Committee had not acceded to his refusal.14 As I stated above, in my view it is sufficient if the witness knows his excuses are not acceptable to the Committee and that he is required to answer. Whether or not the witnesses knew this in these two cases is the question on this second point.
The Court holds that the witnesses did plead the privilege and were not advised that the Committee refused to accept their pleas. I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick’s words as his own method of
14 The instant case and the Emspak and Bart cases all deal at length with this question. 91 U. S. App. D. C., at 349, 380-381, 374-375, 203 F. 2d, at 25, 56, 50. See also, comments, 40 Geo. L. J. 137; 41 Geo. L. J. 433.
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refusing to answer the question as heretofore discussed, it will be seen that Mr. Wood, a Committee member, said to Mr. Quinn:
“Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?
“Mr. Quinn. I decline to discuss with the committee questions of that nature.”
This, I think, advised Mr. Quinn that the Committee refused to accept his reply as a satisfactory excuse and required him to proceed.
I think, too, that Mr. Emspak was advised his answer was not accepted and that he was required to proceed. When he was asked repeatedly as to whether he was acquainted with Joseph Persily, he said again:
“Mr. Emspak. For the reasons I stated before, I answered it.
“Mr. Moulder. Then you refuse to answer the question?
“Mr. Emspak. No. I answered it.
“Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?
“Mr. Emspak. I answered the question.
“Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?
“(Witness confers with his counsel.)
“Mr. Moulder. The record will reveal that you have not answered the question.
“Mr. Emspak. I have answered it to the best of my ability under the circumstances.”
On continued questioning as to Mr. Persily, he continued, “I will give the same answer.” I cannot but conclude, as did the lower courts, that the witness Emspak was ade-
QUINN v. UNITED STATES. 189
155	Reed, J., dissenting.
quately informed that his objections were refused and that he must answer.
The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure to specifically overrule their objections or direct them to answer. I disagree with both grounds. Confining expression of my views to those issues, I dissent.
Mr. Justice Minton joins in so much of this opinion as applies to Emspak v. United States, post, p. 190.
190
OCTOBER TERM, 1954.
Syllabus.
349 U.S.
EMSPAK v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 9. Argued January 12-13, 1954.—Reargued April 4-5, 1955.— Decided May 23, 1955.
Petitioner, an officer of a labor union, was summoned to testify before a congressional committee investigating alleged Communist infiltration of labor unions in defense plants. He refused to answer eight questions concerning his alleged membership and activities in the Communist Party, two questions concerning his alleged membership in two other organizations which had been cited by the committee as Communist-front organizations, and 58 questions as to whether he knew certain individuals who had been charged with having Communist affiliations and whether they had ever held official positions in the union. He based his refusal to answer on “primarily the first amendment, supplemented by the fifth.” The committee did not ask him to state more specifically the ground for his refusal to answer, and it did not specifically overrule his objection or direct him to answer. Held: In his trial for a violation of 2 U. S. C. § 192, the District Court should have entered a judgment of acquittal. Pp. 191-202.
(a)	Petitioner’s reference to “primarily the first amendment, supplemented by the fifth” was sufficient to invoke his constitutional privilege against self-incrimination. Quinn v. United States, ante, p. 155. Pp. 194-195.
(b)	Petitioner’s equivocal answer of “No” to a question as to whether he felt that revealing his knowledge would subject him to criminal prosecution did not constitute an effective waiver or disclaimer of his privilege against self-incrimination. Smith v. United States, 337 U. S. 137. Pp. 195-198.
(c)	The eight questions concerning petitioner’s alleged membership in the Communist Party fell within the scope of the privilege against self-incrimination. Blau v. United States, 340 U. S. 159. Pp. 198-199.
(d)	So did the two questions concerning his alleged membership in two other organizations which had previously been cited by the committee as Communist-front organizations. P. 199.
EMSPAK v. UNITED STATES.
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190	Opinion of the Court.
(e)	Since the record reveals that they were asked in a setting of possible incrimination, the 58 questions concerning petitioner’s associations were also within the scope of the privilege against selfincrimination. Pp. 199-201.
(f)	The committee did not adequately apprise petitioner that an answer was required notwithstanding his objection; and, without such an apprisal, there is lacking the element of deliberateness necessary for conviction under § 192 for a refusal to answer. Quinn v. United States, ante, p. 155. P. 202.
91 U. S. App. D. C. 378, 203 F. 2d 54, reversed.
David Scribner argued the cause for petitioner on the original argument. With him on the reargument was Frank J. Donner. With them on the brief were Arthur Kinoy and Allan R. Rosenberg.
Robert L. Stern, then Acting Solicitor General, argued the cause for the United States on the original argument. With him on the brief were Assistant Attorney General Olney and John R. Wilkins. Robert W. Ginnane argued the cause for the United States on the reargument.
Ernest Angell, Osmond K. Fraenkel, Arthur Garfield Hays and Herbert Monte Levy filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Chief Justice Warren delivered the opinion of the Court.
This is a companion case to Quinn v. United States, ante, p. 155. Challenged in each proceeding is a conviction under 2 U. S. C. § 192 in the District Court for the District of Columbia.1 The two cases arose out of the
1 Section 192 provides:
“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of
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same investigation by the Committee on Un-American Activities of the House of Representatives. Because of the similarity of the legal issues presented, the cases were consolidated for argument in this Court.
Pursuant to subpoena, petitioner appeared on December 5, 1949, before a subcommittee of the Committee on Un-American Activities. The subcommittee consisted of a single member, Rep. Morgan M. Moulder. Petitioner was then the General Secretary-Treasurer of the United Electrical, Radio & Machine Workers of America as well as Editor of the UE News, the union’s official publication. The subcommittee’s hearings had previously been announced as concerning “the question of Communist affiliation or association of certain members” of the union and “the advisability of tightening present security requirements in industrial plants working on certain Government contracts.” 2
Petitioner was asked a total of 239 questions. Most dealt with the structure of the union, the duties of its officers, the scope of its membership and bargaining commitments, the alleged similarity in policies of the UE News and the Communist Party, the non-Communist affidavit that petitioner had filed with the National Labor Relations Board, and related matters. Petitioner answered all of these questions. He declined, however, to answer 68 of the 239 questions. These 68 questions dealt exclusively with petitioner’s associations and affiliations. He
the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
2 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, 81st Cong., 1st Sess., Part I, 541-542.
EMSPAK v. UNITED STATES.
193
190	Opinion of the Court.
based his refusal on “primarily the first amendment, supplemented by the fifth.” 3 Of the 68 questions, 58 asked in substance that he state whether or not he was acquainted with certain named individuals and whether or not those individuals had ever held official positions in the union. Two of the questions concerned petitioner’s alleged membership in the National Federation for Constitutional Liberties and the Civil Rights Congress. Eight questions concerned petitioner’s alleged membership and activity in the Communist Party.
On November 20, 1950, petitioner was indicted under §192 for his refusal to answer the 68 questions.4 Sitting without a jury, the District Court held that petitioner’s references to “primarily the first amendment, supplemented by the fifth” were insufficient to invoke the Fifth Amendment’s privilege against self-incrimination.5 The District Court accordingly found petitioner guilty on all 68 counts and sentenced him to a term of six months and
3 At the very outset of this line of questioning, the following colloquy took place:
“Mr. Moulder. Are you going to answer the question?
“Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights.” (Italics added.) Hearings, supra, note 2, Part II, at 839.
4 Petitioner’s motions to dismiss the indictment were denied. United States v. Emspak, 95 F. Supp. 1010, 1012.
5 United States v. Emspak, unreported, Criminal No. 1742-50 (D. D. C.). In a companion case under §192, United States v. Matles, unreported, Criminal No. 1745-50 (D. D. C.), the same district judge directed an acquittal of James J. Matles, a UE official who testified before the committee on the same day as Emspak and who similarly relied on “the First and Fifth Amendments.” Hearings, supra, note 2, Part II, at 856. The court held that Matles’ plea was sufficient to invoke the Self-Incrimination Clause because it appeared that Rep. Moulder so understood it.
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OCTOBER TERM, 1954.
Opinion of the Court.
a fine of $500. The Court of Appeals for the District of Columbia Circuit, three judges dissenting, affirmed en banc.6 From that decision this Court granted certiorari.7
I.
As pointed out in Quinn v. United States, supra, no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege. In the Quinn case we hold that Quinn’s references to “the First and Fifth Amendments” and “the First Amendment to the Constitution, supplemented by the Fifth Amendment” were sufficient to meet this standard. It would be unwarranted, we think, to reach a different conclusion here as to petitioner’s plea based on “primarily the first amendment, supplemented by the fifth.”
The Government does not even attempt to distinguish between the two cases in this respect. Apparently conceding that petitioner as well as Quinn intended to invoke the privilege, the Government points out “the probability” that his references to the Fifth Amendment were likewise deliberately phrased in muffled terms “to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.” 8 On this basis the Government contends that petitioner’s plea was not adequate. The answer to this contention is threefold. First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not
6 91 U. S. App. D. C. 378, 203 F. 2d 54.
7 346 U. S. 809. After argument, the case was restored to the docket for reargument. 347 U. S. 1006.
8 Brief for United States, p. 33, in Quinn v. United States, ante, p. 155.
EMSPAK v. UNITED STATES.
195
190	Opinion of the Court.
phrased in an orthodox manner. Second, if it is true that in these times a stigma may somehow result from a witness’ reliance on the Self-Incrimination Clause, a committee should be all the more ready to recognize a veiled claim of the privilege. Otherwise, the great right which the Clause was intended to secure might be effectively frustrated by private pressures. Third, it should be noted that a committee is not obliged to either accept or reject an ambiguous constitutional claim the very moment it is first presented. The way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness intelligently and unequivocally waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question.
The Government argues that petitioner did in fact waive the privilege, at least as to one count of the indictment, and that the conviction can be sustained on that count alone.9 In response to a question concerning his associations, petitioner expressed apprehension that the committee was “trying to perhaps frame people for possible criminal prosecution” and added that “I think I have the right to reserve whatever rights I have . . . .” 10 The following colloquy then took place: 11
“Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution?
9 Petitioner’s general sentence on all 68 counts was less than the maximum permissible on any count. See Sinclair v. United States, 279 U. S. 263,299.
10 Hearings, supra, note 2, Part II, at 840.
11 Id., at 841.
340907 0 - 55 - 19
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Opinion of the Court.	349 U.S.
“Mr. Emspak. No. I don’t think this committee has a right to pry into my associations. That is my own position.”
Petitioner’s reply, it is contended, constituted an effective disclaimer of the privilege. We find this contention without merit. As this Court declared in Smith v. United States, 337 U. S. 137, 150: “Although the privilege against self-incrimination must be claimed, when claimed it is guaranteed by the Constitution. . . . Waiver of constitutional rights ... is not lightly to be inferred. A witness cannot properly be held after claim to have waived his privilege . . . upon vague and uncertain evidence.”
The Smith case, we believe, is controlling here. The witness in that case, at the outset of questioning by an OPA examiner, stated “I want to claim privilege as to anything I say.” The examiner accepted this statement as a plea of possible self-incrimination and a request for the immunity afforded to involuntary witnesses by the Price Control Act of 1942. The questioning proceeded on that basis. In response to one question, however, the witness made a statement that appeared to the examiner to be voluntary. This colloquy then ensued:
“Question: This is a voluntary statement. You do not claim immunity with respect to that statement?
“Answer: No.”
In a subsequent prosecution of the witness for violation of the Price Control Act, it was held that his “No” answer waived his immunity at least as to the one statement.12 This Court unanimously reversed, stating (337 U. S., at 151): “"Without any effort to clarify the ‘No,’ the examiner went ahead and had the witness restate the
12 United States v. Daisart Sportswear, Inc., 169 F. 2d 856, 862-863 (C. A. 2d Cir.).
EMSPAK v. UNITED STATES.
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190	Opinion of the Court.
substance of the long answer . . . without any further intimation that the subsequent answers were considered by the examiner to be voluntary. We do not think under these circumstances this equivocal ‘No’ is a waiver of the previous definite claim of general privilege against self-incrimination.” Similarly, in the instant case, we do not think that petitioner’s “No” answer can be treated as a waiver of his previous express claim under the Fifth Amendment. At most, as in the Smith case, petitioner’s “No” is equivocal.13 It may have merely represented a justifiable refusal to discuss the reasons underlying petitioner’s assertion of the privilege; the privilege would be of little avail if a witness invoking it were required to disclose the precise hazard which he fears.14 And even if petitioner’s “No” answer were taken as responsive to the question, the answer would still be consistent with a claim of the privilege. The protection of the Self-Incrimination Clause is not limited to admissions that “would subject [a witness] to criminal prosecution”; for this Court has repeatedly held that “Whether such admissions by themselves would support a conviction under a criminal statute is immaterial” 15 and that the privilege also extends to admissions that may only tend to incriminate.16 In any event, we cannot say that the colloquy between the
13 See also United States v. St. Pierre, 128 F. 2d 979, 980 (C. A. 2d Cir.), from which this Court’s Smith opinion approvingly quotes the following: “Nor is it material that appellant stated at several points that he had committed no federal crime; such a contradiction, especially by a nervous or excitable witness would not overcome a clear claim of privilege if he was otherwise entitled to the privilege.”
Cf. United States v. Weisman, 111 F. 2d 260, 261 (C. A. 2d Cir.).
14 See Hoffman v. United States, 341 U. S. 479, 486; United States v. Burr, 25 Fed. Cas. 38, at 40, No. 14,692e.
15 Blau v. United States, 340 U. S. 159,161.
16 See Hoffman v. United States, 341 U. S. 479, at 486-487; United States v. Burr, 25 Fed. Cas. 38, at 40-41, No. 14,692e. And see note 18, infra.
198
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Opinion of the Court.
committee and petitioner was sufficiently unambiguous to warrant finding a waiver here. To conclude otherwise would be to violate this Court’s own oft-repeated admonition that the courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights.” 17
Throughout this entire proceeding—in the trial in the District Court, on appeal in the Court of Appeals, and here on certiorari—the Government has never denied that petitioner would be entitled to the protection of the privilege if he did in fact invoke it. And during argument in this Court the Government expressly conceded that all 68 questions were of an incriminatory character. In addition, neither the District Court nor the Court of Appeals saw fit to introduce the issue into the case. We are therefore reluctant to do so now. But doubts on the issue by some members of the Court make its consideration necessary.
“To sustain the privilege,” this Court has recently held, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” 18 And nearly 150 years ago Chief
17 Johnson v. Zerbst, 304 U. S. 458, 464. See also, e. g., Glasser v. United States, 315 U. S. 60, 70, and Smith v. United States, 337 U. S. 137,150.
18 Hoffman v. United States, 341 U. S. 479, 486-487. Compare the test laid down in Arndstein n. McCarthy, 254 U. S. 71, 72: “It is impossible to say from mere consideration of the questions propounded, in the light of the circumstances disclosed, that they could have been answered with entire impunity.” And see United States v. Coffey, 198 F. 2d 438, 440 (C. A. 3d Cir.): “It is enough (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime against the United States,
EMSPAK v. UNITED STATES.
199
190	Opinion of the Court.
Justice Marshall enunciated a similar test: “Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself.” 19 Applying this test to the instant case, we have no doubt that the eight questions concerning petitioner’s alleged membership in the Communist Party fell within the scope of the privilege.20 The same is true of the two questions concerning petitioner’s alleged membership in the National Federation for Constitutional Liberties and the Civil Rights Congress; both organizations had previously been cited by the committee as Communist-front organizations. There remains for consideration the 58 questions concerning petitioner’s associations. This Court has already made abundantly clear that such questions, when asked in a setting of possible incrimination, may fall within the scope of the privilege.21
and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case. It is in this latter connection, the credibility of the suggested connecting chain, that the reputation and known history of the witness may be significant.
“Finally, in determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.”
19 United States v. Burr, 25 Fed. Cas. 38, at 40, No. 14,692e.
20 Blau v. United States, 340 U. S. 159. See also Brunner v. United States, 343 U. S. 918, reversing 190 F. 2d 167 (C. A. 9th Cir.).
21 In United States v. Singleton, 193 F. 2d 464 (C. A. 3d Cir.), the defendant was convicted of contempt for refusing to answer the question “What business is he in?” with respect to three named individuals. This Court summarily reversed, 343 U. S. 944, citing Hoffman v. United States, 341 U. S. 479, and Greenberg v. United States, 343
200
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
What was the setting—as revealed by the record—in which these questions were asked? Each of the named individuals had previously been charged with having Communist affiliations. On October 14, 1949, less than two months prior to petitioner’s appearance before the committee, eleven principal leaders of the Communist Party in this country had been convicted under the Smith Act for conspiring to teach and advocate the violent overthrow of the United States.22 Petitioner was identified at their trial as a Communist and an associate of the defendants. It was reported that Smith Act indictments against other Communist leaders were being prepared. On November 23, 1949, two weeks prior to petitioner’s appearance, newspapers carried the story that the Department of Justice “within thirty days” would take “an important step” toward the criminal prosecution of petitioner in connection with his non-Communist affidavit filed with the National Labor Relations Board.23
Under these circumstances, it seems clear that answers to the 58 questions concerning petitioner’s associations “might be dangerous because injurious disclosure could result.” To reveal knowledge about the named individuals—all of them having been previously charged with Communist affiliations—could well have furnished “a link in the chain” of evidence needed to prosecute petitioner for a federal crime, ranging from conspiracy to violate the
U. S. 918. The Hoffman decision, in reversing 185 F. 2d 617 (C. A. 3d Cir.), upheld an assertion of the privilege in response to questions concerning the whereabouts of an acquaintance of the defendant. The Greenberg decision, in reversing 192 F. 2d 201 (C. A. 3d Cir.), upheld an assertion of the privilege in response to a question, among others, asking the defendant to identify certain “men who are in the numbers business.” See note 24, infra.
2218	U. S. C. § 2385; 18 U. S. C. § 371.
23	29 U. S. C. § 159 (h); 18 U. S. C. § 1001.
EMSPAK v. UNITED STATES.
201
190	Opinion of the Court.
Smith Act to the filing of a false non-Communist affidavit under the Taft-Hartley Act. That being so, it is immaterial that some of the questions sought information about associations that petitioner might have been able to explain away on some innocent basis unrelated to Communism. If an answer to a question may tend to be incriminatory, a witness is not deprived of the protection of the privilege merely because the witness if subsequently prosecuted could perhaps refute any inference of guilt arising from the answer.24
24 At the present time the Courts of Appeals are apparently uniform in holding that the privilege may extend to questions of the sort involved here. See, e. g., Judge Learned Hand in United States v. Weisman, 111 F. 2d 260, 261 (C. A. 2d Cir.), upholding privilege in response to question of whether the witness knew anyone who visited, lived in, or stayed at, Shanghai in the years 1934 to 1939; Judge Augustus Hand in United States v. Zwillman, 108 F. 2d 802 (C. A. 2d Cir.), upholding privilege in response to question of who the witness’ business associates were in the years 1928 to 1932; Chief Judge Denman in Kasinowitz v. United States, 181 F. 2d 632 (C. A. 9th Cir.), upholding privilege in response to questions of whether the witness knew Dorothy Healy and whether the witness knew Dorothy Healy’s occupation; Chief Judge Magruder in Maffie n. United States, 209 F. 2d 225, 231 (C. A. 1st Cir.), upholding privilege in response to question, among others, whether witness knew “Specs” O’Keefe and Stanley Gusciora; Judge Holmes in Estes v. Potter, 183 F. 2d 865 (C. A. 5th Cir.), upholding privilege in response to question whether the witness personally knew a certain alien; Judge Rives in Marcello n. United States, 196 F. 2d 437, 442 (C. A. 5th Cir.), upholding privilege in response to question “Do you know Salvatore Vittali?”; Judge Martin in Aiuppa v. United States, 201 F. 2d 287 (C. A. 6th Cir.), upholding privilege in response to questions whether the witness knew R. L. O’Donnell and Anthony Accardo; Judge Maris in In re Nefj, 206 F. 2d 149 (C. A. 3d Cir.), upholding privilege in response to questions whether the witness knew Julius Zinman and Lou Malinow. See also Alexander v. United States, 181 F. 2d 480 (C. A. 9th Cir.); Doran n. United States, 181 F. 2d 489 (C. A. 9th Cir.); Healey v. United States, 186 F. 2d 164
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OCTOBER TERM, 1954.
Opinion of the Court.
II.
There is here, as in the Quinn case, a second ground for our decision. At no time did the committee specifically overrule petitioner’s objection based on the Fifth Amendment, nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. For the reasons set out in the Quinn opinion, we believe the committee—by failing to meet these minimal procedural standards, originally recognized by the committee and recently re-adopted—did not adequately apprise petitioner that an answer was required notwithstanding his objections. And without such apprisal, there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer.
III.
Our disposition of the case makes it unnecessary to pass on petitioner’s other contentions as to the First Amendment and the grand jury. The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.
Reversed.
[For dissenting opinion of Mr. Justice Reed, joined by Mr. Justice Minton, insofar as it applies to this case, see ante, p. 171.]
(C. A. 9th Cir.); Poretto v. United States, 196 F. 2d 392, 396 (C. A. 5th Cir.); United States v. Girgenti, 197 F. 2d 218 (C. A. 3d Cir.); United States v. Coffey, 198 F. 2d 438 (C. A. 3d Cir.); Daly n. United States, 209 F. 2d 232, 233 (C. A. 1st Cir.). Cf. Kiewel v. United States, 204 F. 2d 1 (C. A. 8th Cir.); United States v. Doto, 205 F. 2d 416 (C. A. 2d Cir.).
EMSPAK v. UNITED STATES.
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190	Harlan, J., dissenting.
Mr. Justice Harlan, dissenting.
A valid claim of privilege against self-incrimination under the Fifth Amendment has two requisites: (1) the privilege must be adequately invoked, and (2) a possible answer to the question against which the privilege is asserted must have some tendency to incriminate the person to whom the question is addressed. Although Em-spak’s invocation of the privilege left much to be desired, I agree with the majority’s view that it was adequate, and that Emspak at no time abandoned his claim. But I must dissent from the Court’s holding that all of the questions involved in the indictment called for possibly incriminatory answers.
The Court also holds, as an alternative ground for reversing Emspak’s conviction for contempt of the House Subcommittee, that Emspak was not sufficiently apprised of the fact that the Subcommittee, notwithstanding the claim of privilege, was insisting upon answers to the questions put to him. From this holding I must also dissent.
My disagreement with the Court on both scores goes to the first 58 counts of the indictment.1 As the Court’s opinion recognizes, the upholding of Emspak’s conviction on any one count of the indictment would require affirmance of the judgment below, because the general sentence imposed on all counts was less than the maximum allowable on any single count. See Sinclair v. United States, 279 U. S. 263, 299 (1929).
1 However, I do agree with the Court that the privilege was available as to the questions involved in Counts 59 through 68 of the indictment, since, under the circumstances shown by the record, each of those questions did call for a possibly incriminatory answer. Because this would in any event require reversal of the conviction on those counts, as to them I need not reach the issue of whether Emspak was adequately apprised that the Subcommittee was insisting upon his answers, despite the claim of privilege.
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OCTOBER TERM, 1954.
Harlan, J., dissenting.
I.
As to the Incriminatory Character of the 58 Questions.
It is quite true, as the majority observes, that this issue was not dealt with by either of the courts below. The District Court and the Court of Appeals did not have to reach the problem because of their conclusion that Em-spak’s claim of privilege was inadequate. And for some reason the Government has not pressed the point. This, however, does not foreclose this Court from considering it. See Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289 (1917). And perhaps it is due that I should explain why I think we should deal with it. My reason is twofold: first, because to hold, as the Court does, that the questions involved in Counts 1 to 58 of the indictment were of an incriminatory character seems to me to verge on an abandonment of the rule that a valid claim of privilege exists only as to incriminatory questions; and second, because the more recent decisions of this Court appear to me to leave the standard for determining whether a question is incriminatory in great confusion. For example, the Court of Appeals for the Third Circuit had occasion not so long ago to manifest its bewilderment as to where this aspect of the privilege against self-incrim-ination now stands in light of recent decisions of this Court. See United States v. Coffey, 198 F. 2d 438 (1952). In short, I think the standard for judging the character of a question against which the Fifth Amendment privilege is asserted needs both rehabilitation and restatement.
(1)	The standard.
The concept of an incriminating answer includes not only those answers which constitute an admission of guilt, but also those which may furnish evidence of guilt or
EMSPAK v. UNITED STATES.
205
190	Harlan, J., dissenting.
merely supply a lead to obtaining such evidence. Counselman v. Hitchcock, 142 U. S. 547 (1892).
The answer to almost any question a witness is asked could be regarded as being useful as evidence, or as furnishing a lead to evidence, in support of some conceivable criminal charge against the person to whom the question is addressed. But unlike a defendant in a criminal case, a witness in a grand jury or other judicial or legislative proceeding has never been allowed, by claiming his privilege, to refuse to answer any questions at all. That would completely subordinate the public interest in the conduct of such proceedings. Accordingly, lest claims of the Fifth Amendment privilege be used as a cover for a person refusing to perform his duty to co-operate in such proceedings, reasonable bounds have been put upon the exercise of the privilege. Those bounds were stated as long ago as 1861 by the English Court of Queen’s Bench in The Queen v. Boyes, 1 B. & S. 311, 330-331, in language which this Court has adopted as the basis for the rule in this country. See Brown n. Walker, 161 U. S. 591, 599-600 (1896); Mason v. United States, 244 U. S. 362, 365-366 (1917). In the Boyes case, Cockburn, C. J., said:
“Further than this, we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice.
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OCTOBER TERM, 1954.
Harlan, J., dissenting.
The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.”
Throughout the course of its decisions this Court has consistently stated that the “real danger v. imaginary possibility” test is the proper standard to be applied in deciding whether particular questions are subject to a valid Fifth Amendment claim. See Brown v. Walker, supra; Heike N. United States, 227 U. S. 131, 144 (1913); Mason v. United States, supra; Rogers v. United States, 340 U. S. 367 (1951); Blau v. United States, 340 U. S. 159, 161 (1950); Hoffman v. United States, 341 U. S. 479, 486 (1951). But in recent per curiam reversals of contempt convictions this Court seems to have indicated a tendency to stray from the application of this traditional standard.2 And I shall presently show that it has departed from that standard in this case.
(2)	Application of the standard to questions innocent on their face.
The next question requiring consideration is: How should this standard be applied in a case where the questions appear on their face to call only for innocent answers? In United States v. Weisman, 111 F. 2d 260 (1940), the Court of Appeals for the Second Circuit had before it a claim of the Fifth Amendment privilege to
2 See Greenberg v. United States, 341 U. S. 944 (1951), 343 U. S. 918 (1952); Singleton v. United States, 343 U. S. 944 (1952), and the discussion of the Court of Appeals for the Third Circuit in United States v. Coffey, supra.
EMSPAK v. UNITED STATES.
207
190	Harlan, J., dissenting.
a question in substantially the following form: “Did you know anyone who visited or lived in Shanghai between 1934 and 1939?” On the surface of things—had nothing more appeared—the possible answers to this question— “Yes,” “No” or “I don’t know”—would all appear innocent. A situation could be imagined in which one of these answers would have tended to incriminate, but this possibility by itself would not be enough to justify the claim of privilege. Additional facts appeared, however, which showed the question to be part of an incriminatory pattern: the witness was a New York night club proprietor, unlikely to be acquainted with Shanghai residents or visitors, and he had engaged in transactions looking suspiciously like importations of narcotics from China. Because of these and other facts, a real danger of incrimination from answering the question was held to exist by the court, through Judge Learned Hand. It may be argued that the admission sought was not sufficiently implicating to justify the invocation of the privilege, see Wigmore, Evidence, §§ 2260-2261; but for present purposes we may assume that the result is a correct one.
Of course, in some cases the background facts making an apparently innocent question dangerous may not be known to the court. Then the choice must be made between requiring the court to accept the witness’ word that facts exist which would make his answer incriminating, and requiring the witness to explain the circumstances which justify his claim of privilege. To be sure, the second alternative involves the danger that the witness will have to reveal some incriminatory evidence in order to show why he should not be required to answer. Nevertheless, traditionally the witness has not been allowed to be sole judge of the character of the questions objected to; he is required to open the door wide enough for the court to see that there is substance to his claim. United
208
349 U. S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
States v. Weisman, supra. If the background facts are known or suspected to exist, this problem disappears, for all the witness has to do is point to such facts or suspicions.
(3)	Application of the standard to dangerous questions.
It seems to me that the “real danger v. imaginary possibility” standard ought to be applied in the same fashion to dangerous questions. Such questions include those which call for an admission of a crime or a necessary element of a crime, or a fact which, while innocent on its face, is dangerous in the light of other facts already developed.
In all such cases other facts may appear which serve to cast an innocent aspect upon the question. Suppose two men are suspected of having conspired to steal cash from a bank one day during business hours. Each is asked whether he saw the other on the day of the theft, and each pleads his privilege. But facts already developed in the investigation show that both men are tellers in this bank and have worked in the same cage for ten years. Certainly, in these circumstances, the fact of each having seen the other cannot rationally be said to have any tendency to establish their guilt, or, in any realistic sense, to aid the prosecution in discovering evidence against them, since the prosecution already would be expected to have independent evidence of their presence in the bank on that day. In other words, if background facts can make an innocent question dangerous, they can also make a dangerous question innocent. And in deciding whether the privilege is available, we must take into account all the facts—not just those tending to make the question dangerous.
I do not suggest that in a trial for contempt a Fifth Amendment defense should be set at naught whenever the prosecution is able to offer an exculpatory explana-
EMSPAK v. UNITED STATES.
209
190	Harlan, J., dissenting.
tion for an otherwise incriminating answer. What I do submit is that the privilege should not be available when the facts have been sufficiently developed at the time the claim of privilege is made so that it is plain that no possible answer to the question put to the witness could rationally tend to prove his guilt or supply the prosecution with leads to evidence against him. In such circumstances there is no real danger of harm to the witness to be apprehended from his answering the question.
(4)	Application of the standard to this case.
I come finally to the issue as to how the “real danger v. imaginary possibility” standard should be applied to the questions involved in the first 58 counts of the indictment.3 Typical of these questions were the following: “Are you acquainted with Joseph Persily?”; “Is Max Helford at the present time a field organizer for the UE?”
On their face, and without more, these questions were certainly innocent enough. And therefore the first issue confronting us is whether other existing background facts and circumstances made the questions incriminatory. We start from these premises: From the announced purposes of the Subcommittee and the pattern of its questioning of witnesses, it is a fair inference that one of the Subcommittee’s objectives was to show that communists held positions of responsibility in this Union. This in turn might be the starting point for prosecutions for filing false noncommunist affidavits under the Taft-Hartley Act4 or for violations of the Smith Act.5 The conclusion also seems justified that most, if not all, of the persons
31 consider that the 10 questions involved in Counts 59-68 of the indictment qualified, in the circumstances of this case, as incriminatory questions under the “real danger v. imaginary possibility” standard.
4 61 Stat. 146, 29 U. S. C. § 159 (h).
518 U. S. C. § 2385.
210
349 U.S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
referred to in the 58 questions put to Emspak, and Em-spak himself, were suspected of being communists or of having communist affiliations. Indeed, the Government on the oral argument conceded as much. Had Emspak admitted knowing any of these people, this might tend to show association with communists. While the decisions of this Court do not establish that these factors would have sufficed to make those questions incriminatory, lower courts have gone far in this direction. See Kasinowitz v. United States, 181 F. 2d 632 (1950); United States v. Raley, 96 F. Supp. 495 (1951); see also Falknor, Self-Crimination Privilege: “Links in the Chain,” 5 Vand. L. Rev. 479, 485-489 (1952).
But there were also other background facts and circumstances. Emspak had told the Subcommittee that he was Secretary of the Union. He was asked if other named individuals held positions in the same Union, and with respect to some of them, whether he knew them personally. These things being so, it is difficult to see how the fact that Emspak knew some of these people or what position each held in the Union can rationally be said to support even an inference that he knew of their alleged communist affiliations, much less tend to prove that he himself had taken part in a conspiracy to advocate the forcible overthrow of the Government or had falsely sworn that he was not a communist. Nor could the answers to the questions have been of material assistance in providing leads to evidence to be used against him. Investigators presumably would already know that the Secretary of the Union knew other Union officials. Thus, in light of Emspak’s admitted position, the questions appear proper.
This conclusion is not affected by the additional possibility that Emspak’s answers might have been admissible against him in a later criminal trial. If the answers were admissible, this fact should not of itself make the ques-
EMSPAK v. UNITED STATES.
211
190	Harlan, J., dissenting.
tions incriminatory, even though the answers might have been utilized by the prosecutor to show Emspak’s acquaintance with these other persons as a first step in proving conspiracy, and the prosecutor would thus have been spared the necessity of proving this acquaintance by independent evidence. But in fact Emspak’s answers would not have been admissible against him in such a trial. For at the time Emspak testified before the Subcommittee, a federal statute prevented the use of any of his testimony before that body as evidence against him in any later criminal proceedings, except a prosecution for perjury in the giving of the testimony.6 Thus, to the extent that the incriminatory character of these questions depends solely upon the admissibility of Emspak’s answers in evidence against him in a later criminal trial, there could hardly be a valid objection to them on this score.
6 R. S. §859, 18 U. S. C. (1952 ed.) § 3486: “No testimony given by a witness before either House, or before any committee of either House, or before any joint committee established by a joint or concurrent resolution of the two Houses of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege.” This statute, falling short of a complete grant of immunity to the witness from prosecution on account of testimony given by him, would not have been effective to compel testimony over a valid claim of privilege, but it was effective to prevent the use of such testimony against the witness in a subsequent criminal prosecution. See Adams v. Maryland, 347 U. S. 179, 182-183 (1954). This statute was in effect until August 20, 1954, when it was superseded by 68 Stat. 745. The supersession would not affect the inadmissibility of testimony given while the old statute was in effect. See Cameron v. United States, 231 U. S. 710 (1914).
The possibility that a witness might commit perjury in answering a question has never been regarded as justification for invoking the privilege to the question. See Noonan, Inferences from the Invocation of the Privilege Against Self-Incrimination, 41 Va. L. Rev. 311, 321-322 (1955).
340907 0-55-20
212
349 U. S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
In the last analysis, the Court’s holding seems to rest on the premise that the questions put to Emspak became automatically incriminatory once it was shown that he and those about whom he was interrogated were under suspicion of communism. This is painting with too broad a brush.
It is true that under the rule as it exists a witness may sometimes have to walk a tightrope between waiver of his privilege, if he answers a question later held to be incriminatory, and contempt, if he refuses to answer a question later held to be nonincriminatory. And it may be that in some circumstances the privilege should be held to extend to questions which are not in themselves incriminatory, but which seem likely to lead to other questions which are. But in my view any such doctrine should be regarded as an exception to the general rule and should be confined to cases where special circumstances exist which make it unfair to apply the ordinary rule, such as where the witness is without counsel, is ignorant or confused, and the like. Some of the decisions of lower courts seem to suggest that in proceedings obviously designed to develop a case against a particular witness, the witness may be allowed to invoke the privilege as to all questions, as may a defendant in a criminal case. See Marcello v. United States, 196 F. 2d 437 (1952); Maffie v. United States, 209 F. 2d 225 (1954). I think, however, that such a view is too sweeping, and also that where there is room for the application of an exception to the ordinary rule, it should be done openly, and not under the guise of holding nonincriminatory questions incriminatory. No circumstances are shown here which would call for the application of any such exception. Emspak was represented by counsel and was obviously an intelligent and shrewd witness. The inference most readily drawn from the record is that Emspak did not want to “stool pigeon” against his associates. While such a motive would not,
EMSPAK v. UNITED STATES.
213
190	Harlan, J., dissenting.
in my opinion, vitiate an otherwise valid claim of the privilege, it certainly furnishes no legal excuse for refusing to answer nonincriminatory questions.
II.
As to Emspak’s Knowledge That the Subcommittee Wanted Its Questions Answered.
The majority holds that whenever a witness objects to a question there is no violation of 2 U. S. C. § 192 until he is clearly apprised that the Committee demands his answer, notwithstanding his objection. Until then, so the Court holds, the witness has not evidenced the requisite criminal intent, that is, a deliberate refusal to answer. The Court elaborates this thesis in the Quinn case, ante, p. 155, decided today, and applies it in this case and in the Bart case, post, p. 219, also decided today.
I am unable to accept the Court’s holding on this score, and agree with Mr. Justice Reed’s criticism of it in his two dissenting opinions in these three cases. I consider it desirable, however, to elaborate somewhat upon what Mr. Justice Reed has said.
Section 192 speaks only of refusal to answer. “Refusal” implies simply recognition of what the Committee is after and failure either to supply it or to explain an inability to supply it. It only confuses the matter to say that the “refusal” must be “intentional” or “deliberate” or that it must manifest a “criminal intent.” Indeed, Sinclair v. United States, 279 U. S. 263, 299 (1929), upon which the Court relies, was later discussed in United States v. Murdock, 290 U. S. 389, 396, 397 (1933), and the Court there pointed out that § 192 does not make a bad purpose or evil intent an ingredient of the crime of refusing to answer a question pertinent to the matter under inquiry.
Beyond this, I see no reason for thinking that when a witness couples an objection with a refusal to answer,
214	OCTOBER TERM, 1954.
Harlan, J., dissenting.	349 U. S.
his refusal becomes any the less “deliberate” or “intentional.” The Court holds that if the objection were accepted by the Committee, the requirement of “deliberateness” would not have been met. For my part, the proper analysis of such a situation is rather that there has been a “refusal to answer,” and thus at least a prima facie violation of the statute, but the Committee has chosen not to press the matter further. What the Committee does after the witness makes his objection should not be held to have any bearing on the question whether there was a refusal, or on the question whether it was “deliberate,” if that connotes anything more. Those questions must be determined as of the time the witness speaks.
Thus I do not see how the Court’s result can be hinged to any language in the statute. Perhaps a privilege to object could be derived, however, from what must be taken to be the statute’s over-all purpose: to enable committees to obtain the information they wish without at the same time treating witnesses unfairly. Thus, a witness might be held privileged to refuse to answer a question, for the purpose of presenting, at reasonable length, a colorable objection to the propriety of the question. But this privilege would terminate when it became reasonably apparent to the witness that the objection was not acceptable to the Committee. Then the witness would have to choose between answering and standing on the validity of his objection.
If this is the standard which the Court’s construction establishes, I would quarrel only with its application here. But in requiring that a witness who objects be “clearly apprised” that his objection is unsatisfactory and that the Committee wishes his answer, the Court may have meant to go further. If that is so, then I would question the standard itself. Moreover, I think that even this more lenient standard would have been met in this case. For surely the record shows that Emspak was clearly apprised
EMSPAK v. UNITED STATES.
215
190	Harlan, J., dissenting.
that, despite his objections, the Committee wanted answers to the 58 questions, so that there is a violation of the statute under either standard. After Emspak had answered a number of preliminary questions concerning the organization of his Union, the following discussion took place between him, Congressman Moulder, and Mr. Tavenner, the Committee Counsel:
“Mr. Tavenner. Mr. Emspak, are you acquainted with Joseph Persily?
“Mr. Emspak. Mr. Chairman, I would like to say something at this point.
“Mr. Moulder. You mean in response to the question?
“Mr. Emspak. I will answer the question; yes, in response to the question and as a statement of position.
“What I say revolves around two points, one organizationally and another as an individual. Organizationally, my job as an officer of this union is to represent the interest of the membership as they determine it at the annual conventions and at other means they have of getting together and expressing themselves. My job is to administer that aspect to the best of my ability, using one very simple measuring stick, and that is: Does a given policy or action contribute to the well-being of the membership, individually and collectively?
“As an individual I would like to say one thing, and that is this: The line of questioning that counsel is developing now is a line that has been used on numerous occasions by this committee and other congressional committees in an attempt to harass the union, its leadership, and its members. It is a line of questioning that goes against my grain as an American. I was born in this country. Everything I am—
216
349 U. S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
“Mr. Moulder. How long will this statement take, Mr. Emspak?
“Mr. Emspak. About two or three more minutes.
“Mr. Moulder. Proceed.
“Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do not believe that a committee of this kind, especially in view of the recent record of this committee where it stooped to interfere in the partisan affairs of a local union, or any congressional committee, because of the rich tradition of this country which, if not perverted, will lead to a greater and better country—I don’t think a committee like this or any subcommittee has a right to go into any question of my beliefs, my associations, or anything else. I have a couple of kids. They have a stake in this country, too.
“Mr. Moulder. I want to give you full opportunity to express yourself in answer to the question, but you are making an oration now.
“Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling.
“Mr. Moulder. What is the question?
“Mr. Tavenner. The question is: Are you acquainted with Joseph Persily.
“Mr. Moulder. How do you spell that?
“Mr. Tavenner. P-e-r-s-i-l-y.
“Mr. Emspak. Because I have a stake in this country—
“Mr. Moulder. You are not answering the question. He asked you if you are acquainted with this man.
“Mr. Emspak. I will answer it.
“Mr. Moulder. Are you or not?
“Mr. Emspak. I was on the verge of answering it.
“Mr. Moulder. If you have any explanation to make you will be permitted to do so after you answer the question.
EMSPAK v. UNITED STATES.
Harlan, J., dissenting.
217
190
“Mr. Emspak. Because of my interest in what is going on these days, because of the activities of this committee—
“Mr. Moulder. Are you going to answer the question?
“Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights.
“Mr. Moulder. Do you think it corrupts you to answer the question?
“Mr. Emspak. I certainly do.
“Mr. Moulder. Why does it corrupt you?
“Mr. Emspak. Your activities are designed to harm the working people of this country. Every action this committee has ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. You know that. You dragged down the prestige of this country.
“Mr. Moulder. You are not going to take over this committee.
“Mr. Emspak. I don’t want to.
“Mr. Moulder. And your statements are preposterous. The purpose of this committee is to expose communism as it exists in this country. What is the question?
“Mr. Tavenner. Are you acquainted with Joseph Persily?
“Mr. Emspak. For the reasons I stated before, I answered it.
“Mr. Moulder. Then you refuse to answer the question?
“Mr. Emspak. No. I answered it.
“Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?
218
349 U. S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
“Mr. Emspak. I answered the question.
“Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?
“(Witness confers with his counsel.)
“Mr. Moulder. The record will reveal that you have not answered the question.
“Mr. Emspak. I have answered it to the best of my ability under the circumstances.
“Mr. Moulder. Any further questions?
“Mr. Tavenner. Yes. In what capacity is Joseph Persily associated with the UE at this time?
“Mr. Emspak. It is the same question over again.
I will give the same answer.
“Mr. Tavenner. Is he an organizer in the UE?
“Mr. Emspak. Mr. Chairman, it is the same question.
“Mr. Tavenner. You refuse to answer that?
“Mr. Emspak. I answered it.”
Following this, Emspak was asked 55 questions of exactly the same character as those relating to Persily, to each of which he reiterated, with minor variations: “Same answer.” This was obviously, on this record, nothing other than a formula for refusing to answer without appearing to do so. In the face of such a record, I find it impossible to understand how the Court can conclude that Emspak was not clearly apprised of the fact that the Subcommittee wanted his answers.
Were this opinion being written for the Court, it would be necessary, before affirming this conviction, to deal with the other points Emspak urges for reversal. Since the Court, under its view of the case, did not reach any of them, I think it would not be appropriate for me to discuss them. I am therefore content to say that I find none of those points tenable on this record.
I would affirm the judgment of conviction.
BART v. UNITED STATES.
219
Opinion of the Court.
BART v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 117. Argued April 5, 1955.—Decided May 23, 1955.
1.	Summoned to testify before a congressional investigating committee, petitioner refused to answer certain questions, on the ground of his constitutional privilege against self-incrimination. The committee did not specifically overrule his objection or direct him to answer. Held: In his trial for a violation of 2 U. S. C. § 192, the District Court should have entered a judgment of acquittal, because the committee had failed to lay the necessary foundation for a prosecution under § 192. Quinn v. United States, ante, p. 155. Pp. 219-223.
2.	The requirement of criminal intent not having been satisfied at the time of the hearing, it could not be satisfied nunc pro tunc by abandonment of petitioner’s objection two and a half years later on an appeal from his conviction for a violation of 2 U. S. C. § 192. Pp. 221-222.
91 U. S. App. D. C. 370, 203 F. 2d 45, reversed.
James T. Wright and A. L. Wirin argued the cause for petitioner. With them on the brief was Frank J. Donner.
Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and John R. Wilkins.
Mr. Chief Justice Warren delivered the opinion of the Court.
On November 20, 1950, the petitioner was indicted under 2 U. S. C. § 192 for refusing to answer thirty-two questions put to him by a subcommittee of the Committee on Un-American Activities of the House of Repre-
220
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
sentatives. During the trial in the District Court for the District of Columbia, the Government abandoned twenty-four of these counts. The District Judge, sitting without a jury, found Bart guilty of the remaining eight charges? On appeal, the Court of Appeals for the District of Columbia Circuit reversed the judgment upon three of the counts and, one judge dissenting, affirmed as to the others.2 From that decision, we granted certiorari3 and set the case down for argument along with the two companion cases. Quinn v. United States, ante, p. 155, and Emspak n. United States, ante, p. 190.
In response to a subpoena, petitioner appeared before the subcommittee on June 21, 1950. He was then general manager both of Freedom of the Press Co., Inc., which publishes the Daily Worker, and of the Daily Worker itself. During the course of the interrogation, members of the committee and the committee counsel posed various questions dealing with Bart’s background, his activities, and alleged associates. Among these were the five questions which, because of petitioner’s refusal to answer, led to the convictions now under scrutiny. The particular inquiries involve petitioner’s name when he came to this country as a child, his name before it was changed years ago to Philip Bart pursuant to a New York court order,4 his father’s name, and the identity of officials of the Ohio section of the Communist Party in
1 United States v. Bart, unreported, Criminal No. 1746-50 (D. D. C.). The opinions of the District Court, denying petitioner’s motions to dismiss the indictment, appear sub nom. United States v. Emspak, 95 F. Supp. 1010, 1012.
2 91 U. S. App. D. C. 370, 203 F. 2d 45.
3347 U. S. 1011.
4 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration in Labor Unions, 81st Cong., 2d Sess., Part HI, 2636.
BART v. UNITED STATES. 221
219	Opinion of the Court.
1	936.5 To the questions concerning name or family background, he raised objections of pertinency; to the other, he unequivocally pleaded the privilege against selfincrimination.
In finding petitioner guilty, the trial court rejected these defenses as without merit. Before the Court of Appeals, petitioner abandoned his defense as to lack of pertinency. The majority thought that this abandonment in effect erased petitioner’s objections from the committee record and that they were thus faced with “naked refusals to answer” 6 which did not require affirmative rulings from the committee. We cannot agree. The objections were in fact made before the committee and the witness was entitled to a clear-cut ruling at that time, even though the claims were later abandoned or found to be invalid. Quinn v. United States, supra. Without such a ruling, evidence of the requisite criminal intent to
6 As phrased in the indictment, these questions were as follows:
“Count Three
“What was the name of the defendant when he came to the United
States.
“Count Four
“What was the defendant’s father’s name.
“Count Five
“Under what name did the defendant’s father become a citizen of
the United States.
“Count Six
“What name did the defendant change his name from.
“Count Eight
“Who were the other officials of the Ohio section of the Communist Party during the period when the defendant was organizer there [sometime in 1936].” Transcript of Record, p. 109, Bart v. United States, 91 U. S. App. D. C. 370, 203 F. 2d 45.
6	91 U. S. App. D. C., at 372,203 F. 2d, at 47.
222
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
violate § 192 is lacking. An abandonment made two and one-half years after the objections were raised cannot serve retroactively to eliminate the need for a ruling. If the requirement of criminal intent is not satisfied at the time of the hearing, it cannot be satisfied nunc pro tunc by a later abandonment of petitioner’s objection.7 Therefore, the issue before us is, upon the record as it stood at the completion of the hearing, whether petitioner was apprised of the committee’s disposition of his objections.
At no time did the committee directly overrule petitioner’s claims of self-incrimination or lack of pertinency. Nor was petitioner indirectly informed of the committee’s position through a specific direction to answer. At one juncture, Congressman Case made the suggestion to the chairman that the witness “be advised of the possibilities of contempt” 8 for failure to respond, but the suggestion was rejected. The chairman stated:
“No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.” 9
A few moments later, when committee counsel inquired as to certain details of petitioner’s marriage, the following colloquy took place:
“Mr. Unger [Counsel for petitioner]. Mr. Chairman, what concern is it of anybody here--------
“Mr. Walter. We permit you to appear with your client for the purpose of advising your client. You apparently are old enough to have had some experience in court.
“Mr. Unger. Yes, indeed.
“Mr. Walter. Of course, you know there are many preliminary questions asked witnesses, leading up to
7 Cf. United States v. Rumely, 345 U. S. 41, 48: “In any event, Rumely’s duty to answer must be judged as of the time of his refusal.”
8 Hearings, supra, note 4, at p. 2636.
9 Ibid.
BART v. UNITED STATES.
223
219	Reed, J., dissenting.
some point. As they are propounded you will readily learn what the purpose is. Just advise your client and don’t argue with the committee, because we don’t rule on objections.” 10
The questioning proceeded on this basis.
Because of the consistent failure to advise the witness of the committee’s position as to his objections, petitioner was left to speculate about the risk of possible prosecution for contempt; he was not given a clear choice between standing on his objection and compliance with a committee ruling.11 Because of this defect in laying the necessary foundation for a prosecution under § 192, petitioner’s conviction cannot stand under the criteria set forth more fully in Quinn v. United States, supra.
Our disposition of the case makes it unnecessary to consider petitioner’s other contentions. The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.
Reversed.
Mr. Justice Reed, with whom Mr. Justice Minton joins, dissenting.
This case is controlled entirely by the rule enunciated by the majority in the second ground for the decision in Quinn v. United States, ante, p. 155. We shall not here repeat our comments made regarding that rule and its application which are set out in our dissent in the Quinn and Emspak cases. But we cannot agree that under the
10 Id., at 2637 (italics added).
11 In one instance, committee counsel observed that in his opinion the question asked was not incriminating, but this was disputed by counsel for petitioner and not ruled upon by the chair. When petitioner repeated the objection, stating that he felt the question to be of an incriminating nature and that he therefore refused to answer, the question was immediately abandoned. See id., at 2638-2639.
224
349 U.S.
OCTOBER TERM, 1954.
Reed, J., dissenting.
Quinn rule the petitioner here was not sufficiently apprised of the disposition of his Fifth Amendment and pertinency objections for him to be held guilty of violating § 192. For us the record establishes, as it did for the two courts below, that the petitioner knew that the grounds for his objections were not accepted by the committee ; that the committee required him to answer ; that he willfully refused to answer. As the majority stated the rule in Quinn, p. 170, “the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee’s ruling, he has no cause to complain.” Under this rule we think that the extract from the record set out below places this petitioner in the status of one who “has no cause to complain.”
“Mr. Walter: Did you ever hold any positions other than positions with newspapers?
“Mr. Bart: I did.
“Mr. Walter: What were they?
“Mr. Bart : I was organizer and head of the Communist Party at different times, in different years.
“Mr. Walter: Where?
“Mr. Bart: In Illinois and Pennsylvania, among many.
“Mr. Tavenner: The Daily Worker of March 28, 1936, shows you to have been a section organizer for the Communist Party in Ohio. That is correct, is it not?
“Mr. Bart: Most likely.
“Mr. Tavenner: Well, you know whether you were a section organizer for the Communist Party in Ohio, do you not?
“Mr. Bart: I do not know the exact period of time you mentioned. It is 14 years ago.
“Mr. Tavenner: Who were the other officials of the Ohio section of the Communist Party during the
BART v. UNITED STATES.
225
219
Reed, J., dissenting.
period of time you were organizer there? [Count 8, emphasis supplied.]
“Mr. Bart: I object to this question. I will not answer it, standing on my rights in accordance with Article V of the Constitution, and furthermore I protest because this committee has asked this question of numerous people and has infringed upon their rights as American citizens.
“Mr. Tavenner: I think, Mr. Bart, I should point out that your testimony relating to other people who were associated with you at that time could not in any way incriminate you under the Fifth Amendment.
“Mr. Unger: I should like to correct you, Mr. Tavenner.
“Mr. Walter: You advise your client.
“Mr. Tavenner: You have told us you were a section organizer for the Communist Party in Ohio, and my question now is, who were the officials who worked with you in that work, that is, officials of the Ohio section of the Communist Party?
“Mr. Unger: Permit me to advise my client that Mr. Tavenner, counsel, is in error in his interpretation of the Constitution so far as the Fifth Amendment is concerned, and that Mr. Bart, the witness, is entirely correct in his interpretation of the Constitution, and has a right to assert that this committee has no right—no right, let me make it plain—
“Mr. Walter: Under our procedure the attorney is permitted to advise his client and then the client, the witness, answers the question. You may advise your client.
“Mr. Unger: As he has stated in his previous answer, he is not required to testify against himself.
226
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Reed, J., dissenting.
“Mr. Bart : I stand on the advice of my counsel. I am not required to testify against myself, and in accordance with Article V of the Constitution I will not answer the question.
“Mr. Tavenner: I was not asking you to testify against yourself. I was asking you to state the names of other persons associated with you.
“Mr. Bart : I consider this an attempt on the part of the committee to use this against myself as well as against others, as it has on many previous occasions.
“Mr. Walter: And therefore you refuse to answer? “Mr. Bart: I refuse to answer.”
The colloquy set out above pertains only to count 8.* We think the record also shows that the committee rejected the pertinency objections on the other four questions which constitute the other four counts and therefore petitioner willfully refused to answer these as well. However, since conviction on any one count is sufficient to sustain the judgment, enough of the record is set out above to show what we consider to be the error of the majority. Since in our view the committee apprised the petitioner that his Fifth Amendment objection was rejected, it is necessary to state our agreement with the courts below that, as the record shows, petitioner had waived the privilege by his answers to prior questions concerning his Communist Party affiliation and activities. We agree with the Court of Appeals that this is controlled by Rogers v. United States, 340 U. S. 367. Bart n. United States, 91 U. S. App. D. C. 370, 376, 203 F. 2d 45, 51.
It might be better practice for congressional committees to follow a procedure of specifically overruling
* “Count Eight—Who were the other officials of the Ohio section of the Communist Party during the period when the defendant was organizer there [sometime in 1936].” R. 109, Bart v. United States, 91 U. S. App. D. C. 370, 203 F. 2d 45.
BART v. UNITED STATES.
227
219	Harlan, J., dissenting.
objections of witnesses and directing the witnesses to answer in the manner commonly followed in the courts. We feel, however, that in this case, where the petitioner was apprised that his objection was rejected and he still refused to answer, it should be held that he is guilty of a violation of § 192. We would affirm the judgment below.
Mr. Justice Harlan, dissenting.
I would affirm the judgment of conviction in this case, on the reasoning stated in part II of my dissenting opinion in the Emspak case, ante, p. 203, at p. 213, decided this day. To what is said there I should add what follows.
Even under the Court’s standard of “apprisal,” the record in this case is convincing that Bart must have understood that the Subcommittee was insisting on his answers to the questions involved in the indictment. I need only refer to the fact that four of the counts of the indictment charge Bart with refusing to answer what was in substance the same question, namely, what Bart’s name had been before he changed it. As to these questions the record shows the following:
“Mr. Case [Committee Member]. What was your name at the time you came to the United States?
“Mr. Bart. I have already answered this question.
“Mr. Walter [Committee Chairman]. What was it?
“Mr. Unger [Bart’s Counsel]. Mr. Chairman, I think we are spending a good deal of time, with all due respect to the Chair, on a point that has absolutely no bearing on any issue here.
“Mr. Walter. That is only your opinion.
“Mr. Unger. I said that was my opinion.
“Mr. Case. Mr. Chairman, I don’t know what the question will lead up to, but it certainly has been customary, when we have been interrogating wit-
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349 U. S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
nesses who have come to the United States from other countries, to know when they came to the United States, and to know under what name they came, and to know the name shown on the passport. There is nothing improper or out of the way in asking such a question. I think we should have an answer to the question of the name he had when he came to the United States.
“Mr. Unger. Are you suggesting the inquiry has to do with what this man did when he was 10 years old? You are talking about a 10-year-old boy.
“Mr. Walter. Just a moment. I think Mr. Tav-enner should be able to proceed, and after his questions, Mr. Case, you may ask such questions as you may desire. May I suggest, Mr. Tavenner, that you refresh the witness’ recollection by telling him what his name was before he assumed his present name? Proceed.
“Mr. Tavenner [Committee Counsel]. You are a naturalized American citizen?
“Mr. Bart. Yes.
“Mr. Tavenner. How did you become naturalized ?
“Mr. Bart. Through process of my father.
“Mr. Tavenner. What was your father’s name?
“Mr. Bart. I have already dealt with this question.
“Mr. Tavenner. When was your father naturalized?
“Mr. Bart. I do not remember.
“Mr. Unger. Just a minute.
“(Witness confers with his counsel.)
“Mr. Bart. About 30 years ago.
“Mr. Tavenner. Do you refuse to tell the committee your father’s name?
“Mr. Unger. Mr. Tavenner, he doesn’t refuse to tell the committee. He is trying to tell the com-
BART v. UNITED STATES.
229
219	Harlan, J., dissenting.
mittee that this line of inquiry is a highly improper one.
“Mr. Walter. That is not within his province. The committee determines what is proper and what is not proper, and it is not up to you to determine that.
“Mr. Unger. That is true.
“Mr. Case. Mr. Chairman, it seems to me the counsel should advise his client and not the committee.
“Mr. Unger. I am not trying to advise the committee. I tried to respectfully point out why it is an improper question. He is not ashamed of his father’s name or his mother’s name. What difference can it possibly make what his name was when he came here?
“Mr. Walter. We are not going to have you arguing with the committee or giving us your legal opinion, which may or may not be worth anything.
“Mr. Unger. I have no further comment on the question.
“Mr. Walter. All right.
“Mr. Bart, you claim citizenship by virtue of your father’s citizenship; is that right?
“Mr. Bart. That is right.
“Mr. Walter. Under what name did your father become a citizen of the United States?
“Mr. Bart. Under his own name.
“Mr. Walter. What was that name?
“Mr. Bart. I have already stated my reply to this question as far as I am concerned.
“Mr. Walter. How can you claim citizenship by virtue of your father’s citizenship if you don’t know what name your father used when he became a citizen ?
“Mr. Unger. Mr. Chairman—
230
349 U. S.
OCTOBER TERM, 1954.
Harlan, J., dissenting.
“Mr. Walter. Let the witness answer the question. You may advise your client.
“Mr. Bart. I have answered I am a citizen by virtue of that fact, and that this is my legal name by which I vote and am registered and am known.
“Mr. Walter. When did you legally change your name?
“Mr. Bart. Many years ago.
“Mr. Walter. Where?
“Mr. Bart. In the city of New York.
“Mr. Walter. Did you have your name changed in court?
“Mr. Bart. Yes; about 15 years ago.
“Mr. Unger. His answer is about 15 years ago.
“Mr. Walter. I understand. What name did you change your name from?
“Mr. Bart. I have already stated my reply to this question.
“Mr. Harrison [Committee Member]. I understand you refuse to answer the chairman’s question?
“Mr. Bart. My answer is that I have answered what my name is here, which is the only question pertaining to the inquiry, it seems to me.
“Mr. Walter. Of course all of this is a matter of public record?
“Mr. Bart. Correct.
“Mr. Walter. And then I suppose you know that under the law a question innocent on its face can’t be arbitrarily ignored. You can’t refuse to answer such a question without running the risk of the consequences.
“Mr. Unger. I think, again, Mr. Chairman, Mr. Bart has indicated very plainly he has not been contumacious in any regard. He states his name has been Philip Bart for a large number of years.
BART v. UNITED STATES.
231
219	Harlan, J., dissenting.
“Mr. Walter. Don’t argue with the committee. You advise your client as you see fit.
“Mr. Case. Mr. Chairman, it seems to me the witness should be advised of the possibilities of contempt when he fails to answer a question as simple and as proper as your question as to what his name was before it was changed.
“Mr. Walter. No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.” * The very fact that the same answer was sought in four different ways must have impressed upon a man of Bart’s intelligence that the Committee considered his objections unfounded, and wished him to answer.
For the reasons stated in my Emspak dissent, I do not deal with any of the petitioner’s other contentions, save to say that on this record I consider them all untenable.
I would affirm the judgment of conviction.
*The Court attaches importance to the colloquy between Mr. Case and Mr. Walter shown in the last two paragraphs quoted above, and to Mr. Walter’s later rejoinder to Mr. Unger: “Of course, you know there are many preliminary questions asked witnesses, leading up to some point. As they are propounded you will readily learn what the purpose is. Just advise your client and don’t argue with the committee, because we don’t rule on objections.” (Italics supplied by the Court.) Read in context, these excerpts indicate to me nothing more than that the committee was expressing its impatience with interruptions by counsel. I am unable to read the record, as the Court seems to have done, as indicating that the Subcommittee was avoiding taking a position on Bart’s objections.
232
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
UNITED STATES v. OLYMPIC RADIO & TELEVISION, INC.
CERTIORARI TO THE UNITED STATES COURT OF CLAIMS.
No. 10. Argued April 18-19, 1955.—Decided May 23, 1955.
Under §122 (d)(6) of the Internal Revenue Code, a taxpayer on the accrual basis cannot, in computing its net operating loss for one year, deduct the amount of excess profits taxes which were paid in that year but which had accrued in an earlier year. Pp. 233-236.
(a)	Section 122(d)(6) does not grant the taxpayer an option to take deductions on a basis that is inconsistent with the method of accounting which it employs. Pp. 234-235.
(b)	The question of what deductions are permissible under the Internal Revenue Code is not controlled by general equitable considerations. P. 236.
(c)	The phrase “paid or accrued” is not to be given a different meaning for the purposes of § 122 (d)(6) than it has in other parts of the same chapter of the Code. P. 236.
(d)	The construction here given §122 (d)(6) is in harmony with the general rule that a taxpayer on the accrual basis must take deductions in the year of accrual. P. 236.
(e)	If the fact that a provision of the tax law favors the taxpayer on the cash basis and discriminates against the taxpayer on the accrual basis suggests that changes in the law are desirable, it is for Congress, not the courts, to make them. P. 236.
124 Ct. Cl. 33, 39, 108 F. Supp. 109, 110 F. Supp. 600, reversed.
Assistant Attorney General Holland argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Ellis N. Slack, Ralph S. Spritzer, Lee A. Jackson and I. Henry Kutz.
Fred R. Tansill argued the cause for respondent. With him on the brief was Eugene Meacham. William H. Krieg entered an appearance for respondent.
U. S. v. OLYMPIC RADIO & TELEVISION. 233
232	Opinion of the Court.
Mr. Justice Douglas delivered the opinion of the Court.
This suit was brought in the Court of Claims for a tax refund. The taxpayer, a New York corporation, kept its books and accounts on the accrual basis and filed its federal income tax returns on the same basis, using the calendar year. The taxpayer had a net operating loss of $310,872.60 for 1946. This loss was carried back and set off against the taxpayer’s excess profits net income for 1944, and its excess profits tax for 1944 was adjusted accordingly. That carry-back was authorized by the Internal Revenue Code of 1939, § 122; and it is not in controversy here.
The taxpayer reported an excess profits tax liability of $346,643.22 for 1945. In 1946 the taxpayer paid $263,272.80 in excess profits taxes for 1945. It contends that that amount, paid in 1946, should have been added to the net operating loss of $310,872.60 for that year and that the sum of those figures, instead of $310,872.60, should have been carried back to 1944 as a net operating loss. If that should have been done, the United States would now owe the taxpayer the refund claimed.
The Court of Claims, by a divided vote, sustained the taxpayer’s contention and held that, in computing its net operating loss for 1946, the taxpayer was entitled to include the amount of excess profits tax paid in 1946 on account of its 1945 return. Judgment was accordingly entered for the taxpayer. 124 Ct. Cl. 33, 39, 108 F. Supp. 109, 110 F. Supp. 600. The case is here on a petition for a writ of certiorari which we granted (348 U. S. 808) because of a conflict between the decision below and Lewyt Corp. v. Commissioner, 215 F. 2d 518, decided by the Court of Appeals for the Second Circuit.
Section 23 (s) of the Internal Revenue Code provides that, in computing net income, “the net operating loss
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Opinion of the Court.
deduction computed under section 122” shall be allowed as a deduction. Section 122, as applicable here, provides a complicated formula for carrying net operating losses back for two preceding taxable years and over into the two succeeding taxable years, thus taking for the limited purpose of § 122 a five-year period as the accounting unit. The part of § 122 of which the taxpayer seeks to take advantage is (b)(1) relating to the carry-back.* By the express terms of § 122 (b)(1) the carry-back provisions are subject to the limitations contained in § 122 (d)(6), which provides in part, “There shall be allowed as a deduction the amount of tax imposed by Subchapter E of Chapter 2 paid or accrued within the taxable year . . .
Subchapter E of Chapter 2 identifies the tax which may be used as a deduction as the Excess Profits Tax. But if it is to be used as a deduction, the tax must have been “paid or accrued” within the taxable year.
The controversy here revolves around the meaning of “paid or accrued.” The years 1944 and 1945 were years of profit for the taxpayer. The years 1946 and 1947 were years of loss. The taxpayer kept its books and filed its returns on the accrual basis of accounting. Its 1945 excess profits tax therefore accrued in 1945, though it was paid in 1946. Yet the argument which prevailed below
*Section 122(b)(1) is entitled “Net operating loss carry-back” and reads as follows:
“If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed (A) with the exceptions, additions, and limitations provided in subsection (d)(1), (2), (4), and (6), and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.”
U. S. v. OLYMPIC RADIO & TELEVISION. 235
232	Opinion of the Court.
is that the tax paid in 1946 on account of the liability for 1945 could be used under § 122 (d) (6) as a net operating loss for 1946. We take the other view and conclude that § 122 (d)(6) does not grant a taxpayer an option to take deductions on a basis that is inconsistent with the method of accounting which it employs.
Section 41 states the general rule that net income shall be computed “in accordance with the method of accounting regularly employed in keeping the books” of the taxpayer.
Section 43 provides that deductions and credits may be taken “for the taxable year in which ‘paid or accrued’ or ‘paid or incurred,’ dependent upon the method of accounting upon the basis of which the net income is computed, unless in order to clearly reflect the income the deductions or credits should be taken as of a different period.”
Section 48 provides, “When used in this chapter . . . (c) The terms . . . ‘paid or accrued’ shall be construed according to the method of accounting upon the basis of which the net income is computed under this Part.” This provision of § 48 would itself seem to be conclusive of the question, since § 122 is “in this chapter,” to use the language of § 48. And § 48, together with § 41 and § 43, seem to indicate that the words “paid or accrued” have only one meaning throughout the chapter, not the changeable meaning which the taxpayer seeks to give them.
We deal here with a deduction which one obtains not as of right, but as of grace. Deputy n. du Pont, 308 U. S. 488, 493. The taxpayer has the burden to show that it is within the provision allowing the deduction. But the effort here made, if successful, would cause “paid or accrued,” as used in § 122 (d)(6), to mean something different than it does in other sections of the same chapter; and that would fly in the face of the express command of §48.
236
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
The Court of Claims recognized the force of this analysis, but concluded that Congress could not have meant what it said because, if so, this particular carry-back provision would have little application. First, most corporations are on the accrual not the cash basis. Second, if an accrual taxpayer is limited in its deductions to excess profits taxes accrued within the taxable year, the provision has little value since there is "rarely a case when a taxpayer would be liable for any excess profits tax in a year in which it had sustained a net operating loss . . . .” 124 Ct. Cl., at 37, 108 F. Supp., at 111. This taxpayer argues the inequity of the results which would follow from our construction of the Code. But as we have said before, "general equitable considerations” do not control the question of what deductions are permissible. Deputy v. du Pont, supra, at 493. It may be that Congress granted less than some thought or less than was originally intended. We can only take the Code as we find it and give it as great an internal symmetry and consistency as its words permit. We would not be faithful to the statutory scheme, as revealed by the words employed, if we gave "paid or accrued” a different meaning for the purposes of § 122 (d) (6) than it has in the other parts of the same chapter.
Our construction is in harmony with the general rule that a taxpayer on an accrual basis must take deductions in the year of accrual. See Security Mills Co. v. Commissioner, 321 U. S. 281.
The fact that the construction we feel compelled to make favors the taxpayer on the cash basis and discriminates against the taxpayer on the accrual basis may suggest that changes in the law are desirable. But if they are to be made, Congress must make them.
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
LEWYT CORP. v. COMMISSIONER. 237
Opinion of the Court.
LEWYT CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 417. Argued April 19, 1955.—Decided May 23, 1955.
1.	Under § 122 (d)(6) of the Internal Revenue Code, a taxpayer on the accrual basis cannot, in computing its net operating loss for one year, deduct the amount of excess profits taxes which were paid in that year but which had accrued in an earlier year. United States v. Olympic Radio & Television, Inc., ante, p. 232. Pp. 237-238.
2.	Under §122 (b)(1) and §122 (d)(6) of the Internal Revenue Code, the amount of 1944 net income to be offset against the carryback from 1946 is to be determined in accord with normal principles of accrual accounting. Pp. 238-243.
(a)	The rule that general equitable considerations do not control the measure of deductions or tax benefits applies as well to the Government as to the taxpayer. P. 240.
(b)	In § 122 (d)(6), the word “imposed” was used to identify the tax that “accrued,” not to define the amount of the tax that is to be levied and collected. Pp. 240-242.
215 F. 2d 518, affirmed in part and reversed in part.
Seymour Sheriff argued the cause and filed a brief for petitioner.
Assistant Attorney General Holland argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Ralph S. Spritzer, Ellis N. Slack, Lee A. Jackson and I. Henry Kutz.
Mr. Justice Douglas delivered the opinion of the Court.
This case is a companion case to United States v. Olympic Radio & Television, Inc., ante, p. 232. The main point in the two cases is the same—whether a taxpayer on the accrual basis can, in computing its net operating loss for one year, deduct the amount of excess profits
238	OCTOBER TERM, 1954.
Opinion of the Court.	349 U.S.
taxes which were paid in that year but had accrued in an earlier year.
The years 1944 and 1945 were years of profit for the taxpayer. For the years 1946 and 1947, the taxpayer incurred net operating losses which were allowed by the Commissioner as carry-back deductions to the years 1944 and 1945. The taxpayer sought to augment its net operating loss for 1946 by the amount of excess profits taxes which it paid in 1946 on account of its 1945 excess profits tax liability. The Commissioner disallowed the deduction and the Tax Court sustained the Commissioner. 18 T. C. 1245. The Court of Appeals affirmed. 215 F. 2d 518. The case is here on a petition for certiorari which we granted (348 U. S. 895) to resolve the conflict with the Olympic Radio case. Our views, as expressed in the latter case, coincide with those of the Court of Appeals. Accordingly, we affirm that part of the judgment.
There is present in this case a point not involved in the Olympic Radio case. The question is whether the excess profits tax that may be offset against 1944 net income is the amount of excess profits tax reported for the year in question or the amount ultimately found to be due. The taxpayer claims it is the former; the Commissioner, the latter.
The question centers on § 122 (b)(1) and § 122 (d) (6). As we have seen in the Olympic Radio case, § 122 (b) (1) directs that the net operating loss for a given year be carried back to the two preceding taxable years.* And § 122 (d) (6) allows as a deduction “the amount of tax
♦Section 122 (b)(1) provides:
“If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed (A) with the exceptions, additions, and limitations
LEWYT CORP. v. COMMISSIONER. 239
237	Opinion of the Court.
imposed by Subchapter E of Chapter 2 [i e., the excess profits tax] paid or accrued within the taxable year . . . .” (Italics added.)
The taxpayer’s net income for 1944, as shown by its return, was $827,852.99; and, as finally determined, was $584,866.81. The excess profits tax due according to its 1944 return was $625,561.59. The Commissioner, after allowing as a deduction a net operating loss carry-back of $164,326.38 arising in 1946, and making other adjustments, ultimately determined the taxpayer’s excess profits tax liability for 1944 to be $280,540.33. The Commissioner computed the net income for 1944 at $304,326.48, that is, $584,866.81 minus $280,540.33. Since the net operating loss of $164,326.38 was less than $304,326.48, there was no loss to be carried back to 1945, as § 122 (b)(1) provides . that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year . . . .”
The taxpayer, however, contends that the excess profits tax “accrued” in 1944 is the tax shown on its return for that year, viz., $625,561.59. If this larger amount is the correct figure, then the deduction allowed against 1944 income will be so great as to leave a carry-back which can be deducted against 1945 income.
The controversy turns on the meaning of the clause in §122 (d)(6) which reads, “the amount of tax imposed by Subchapter E of Chapter 2 . . . accrued within the taxable year . . . The Commissioner contends that the tax “imposed” is the tax ultimately determined to be due. The argument is that the taxpayer having once got back, through credit or refund, the difference between the amount of the tax “accrued” in 1944 provided in subsection (d)(1), (2), (4), and (6), and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.”
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OCTOBER TERM, 1954.
Opinion of the Court.
and the amount finally determined to be due, no double benefit should be inferred. The double benefit, it is argued, should certainly be denied when the figure upon which it is based has no economic reality.
But the rule that general equitable considerations do not control the measure of deductions or tax benefits cuts both ways. It is as applicable to the Government as to the taxpayer. Congress may be strict or lavish in its allowance of deductions or tax benefits. The formula it writes may be arbitrary and harsh in its applications. But where the benefit claimed by the taxpayer is fairly within the statutory language and the construction sought is in harmony with the statute as an organic whole, the benefits will not be withheld from the taxpayer though they represent an unexpected windfall. See Bullen v. Wisconsin, 240 U. S. 625, 630.
When Congress wrote the word “imposed” into § 122 (d)(6), it might have used it in one of two different senses—either to identify the tax or to define the amount of the tax that is to be levied and collected. We think that Congress used “imposed” in the former sense.
In the first place, the deduction allowed by§ 122 (d)(6) is not the tax “imposed” by Subchapter E of Chapter 2. It is “the amount of tax imposed by Subchapter E of Chapter 2 . . . accrued within the taxable year.” The word “imposed” when used in conjunction with “accrued” makes tolerably clear that “imposed” merely identifies or describes the tax that “accrued.” That is to say, the sentence as a whole indicates that “imposed” is used merely by way of reference. It seems clear that Congress had that understanding. The Senate Finance Committee reported:
“Section 122 of the Code, relating to computation of the net operating loss deduction allowed by section 23 (s) of the Code, is amended so as to allow the excess profits tax paid or accrued within taxable
LEWYT CORP. v. COMMISSIONER. 241
237	Opinion of the Court.
years (subject to certain rules) as a deduction in computing net operating loss for, and net operating loss carry-over and carry-back from, such taxable years.” S. Rep. No. 1631, 77th Cong., 2d Sess., p. 67. And see H. R. Rep. No. 2333, 77th Cong., 2d Sess., p. 65.
That indicates that the test of deductibility under § 122 (d)(6) is whether the tax “accrued” within the taxable year.
Secondly, the general section dealing with deductions, § 23, allows deductions for taxes paid or accrued during the taxable year, with certain specified exceptions. § 23 (c). Some of the excepted taxes are identified by well-known names, e. g., federal income taxes, estate, inheritance, legacy, succession, and gift taxes. See § 23 (c) (1) (A), (D). Other taxes excepted are identified by reference to the taxes “imposed” by certain provisions of the law. Thus § 23 (c) (1) (B) excepts “war-profits and excess-profits taxes imposed by . . . Subchapter E of Chapter 2.” The applicable Treasury Regulation indicates that the word “imposed” identifies the tax. It provides: “Subject to the exception stated in this section . . . taxes imposed by the United States . . . are deductible from gross income for the year in which paid or accrued.” 26 CFR § 39.23 (c)-l.
Section 23 is especially relevant here, since the language of § 122 (d)(6) was taken almost verbatim from § 23. That section as amended by the Revenue Act of 1941 had provided that, in computing net income, a deduction for taxes “paid or accrued within the taxable year” should be allowed.
As respects the excess profits tax, § 23 (c) (2) provided:
“For the purposes of this subsection, in the case of the excess-profits tax imposed by Subchapter E of Chapter 2—
“(A) The deduction shall be limited to the tax imposed for the taxable year .. . .” (Italics added.)
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Opinion of the Court.
It would seem that (A) would have limited the § 122 (d)(6) adjustment to the tax finally paid. But (A) was omitted from §122 (d)(6). The word “imposed” as used in the quantitative sense was dropped, while the word “imposed” as used to identify the tax was retained.
Finally, the tax that “accrued” within a given year is not the tax finally determined to be due but the tax before ultimate adjustments are made. That is elementary in tax law. See Security Flour Mills Co. v. Commissioner, 321 U. S. 281, 284. It would seem therefore that the concept “accrued” embodies the annual accounting principle. If, in case of a taxpayer on the accrual basis, events after the taxable year are taken into account, the word “accrued” would be effectively read out of § 122 (d)(6) or given a varied meaning, contrary to our ruling in the Olympic Radio case.
It is true that the computations under § 122 are designed to spread losses over a five-year period. But we are concerned with a technical concept that is being used as the basis of the formula for that reallocation. We find no justification for taking “accrued” as used in § 122 (d)(6) to mean one thing in the setting of the Olympic Radio case and another in this situation.
Our conclusion is in accord with a line of related decisions. The whole tax scheme has been posited on the basis that the duty to pay is without regard to the deduction made available by the carry-back. See Manning n. Seeley Tube & Box Co., 338 U. S. 561, 567. Only recently we applied that principle to the excess profits tax. In United States v. Koppers Co., 348 U. S. 254, we held that these taxes were payable in full the year when they were due and that interest was payable on the amounts so due, even though ultimately portions of the taxes were abated.
In short, the amount of tax accrued within the taxable year under § 122(d)(6) is to be determined in accord
LEWYT CORP. v. COMMISSIONER. 243
237	Frankfurter, J., dissenting.
with the normal accounting concepts relevant to the accrual basis. That amount is not, of course, to be ascertained solely by reference to the figure set forth in the taxpayer’s return, for that figure may be erroneously computed on the accrual basis. But when an amount is arrived at by proper application of recognized accounting principles on the accrual basis, the test of § 122 (d)(6) has been met. Events and transactions of later years, irrelevant to a determination of income on the accrual basis, do not warrant alteration of the figure computed under § 122 (d)(6) for the year in question.
Affirmed in part and reversed in part.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Frankfurter, whom Mr. Justice Reed and Mr. Justice Burton join, dissenting.
This case involves construction of a rather opaquely worded provision of the Internal Revenue Code of 1939, § 122. But the problem to which this section is directed, its objectives and the general plan by which they are pursued, ought not to elude clarity.
Our system of income taxation operates on an annual basis. Each taxpayer is required to determine, on the basis of knowledge available to him at the end of the taxable year, the amount of income or loss for that year. In its original strict form, this system did not permit readjustment of the annual income figure to reflect unanticipated events occurring in subsequent years— for instance, repayment in a later year of money received from sale of goods or services and reported as income in the earlier year—even though logically and practically these facts operated to reduce the income as originally reported. More important, the system required that a taxpayer with profit in one year and an equal loss
340907 0-55-22
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OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
in the next year pay taxes in the year of profit without regard to the loss in the next year, even though from a business and human point of view the taxpayer, over the broader period of two years, had no income.
Here we are dealing with certain ameliorations of the unduly drastic consequences of such a system in its rigid form. Primarily we have to consider § 122 of the Internal Revenue Code, which, to a limited degree, permits reflection of the fact that income in one year may, in the not uncommon fluctuation of business affairs, have been offset by losses incurred in subsequent or preceding years. At the time here relevant, § 122 provided that if a “net operating loss” in business operations occurred in one year, and net income had been or was later received in any of the two preceding or succeeding years, this net income could be cancelled against the loss by “carryback” or “carry-over” of the loss to the year in which income was received. If the loss were carried back, reducing the income already reported, taxes already paid on the amount of income cancelled were to be refunded.
Stripped of details, the scheme appears simple. However, with a view to dealing comprehensively with the multifarious manifestations of business activities, the scheme as embodied in intricate statutory form raises difficulties. They are accentuated in this case because of the relevance of other peculiarities of tax accounting.
Thus, the first question raised in this case, one already dealt with in United States v. Olympic Radio & Television, Inc., ante, p. 232, brings into focus the differences between two tax accounting systems, one in which the year’s transactions are recorded on a cash receipts and disbursements basis, and the other utilizing the accrual system. We agree that this taxpayer, whose taxes for all other purposes are calculated on the accrual system, must determine the amount of the loss which may be carried forward or back on the same basis.
LEWYT CORP. v. COMMISSIONER. 245
237	Frankfurter, J., dissenting.
The other question, however, brings into play the more complex provisions of § 122 as well as a second statutory modification of the strict annual concept. This modification grows out of the “renegotiation” system devised by Congress to deal with potentialities of unconscionable profits to war contractors providing supplies to the Government. Under it, the contract price originally agreed upon between the contractor and the Government is subject to “renegotiation” at a later date to determine whether what originally had been thought to have been a fair price in fact proved overly generous. If so, the Government was entitled to a reduction in the price or, if payment had already been made, a refund of the disallowed profit. Naturally enough, the taxpayer was permitted to reflect the fact that he had been required to repay amounts on the basis of which he originally paid income taxes by reopening the earlier tax return, reducing the income reported and the tax due. 26 U. S. C. § 3806 (b).
We are concerned here with a taxpayer on the accrual basis which in 1946 suffered a net operating loss ($164,-326.38), but in 1944 and 1945 had a considerable net income ($827,852.991 and $1,215,320.25 respectively).
1 For convenience of reference and because in most instances it makes no difference in the ultimate result, the figures here used for petitioner’s 1944 net income and excess profits tax are those which have been used throughout this litigation in the briefs, arguments and opinions. The fact of the matter is that there are in the record three conflicting sets of figures which purport to represent petitioner’s net income and excess profits tax in 1944. In one contingency, to be noted below, it becomes important to distinguish between these figures.
Petitioner filed two returns for 1944, an original return and an amended return. The Commissioner objected to several deductions which were claimed on the amended return and also permitted several deductions not claimed by petitioner on the amended return, thus arriving at a corrected return for 1944 substantially different from either the original or amended return. Throughout the litigation the figure cited for petitioner’s 1944 net income, unadjusted to
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In 1944 and 1945 petitioner was therefore required to pay both corporate income and excess profits taxes. Much of the income accrued by petitioner in the year 1944 was derived from war contracts. Renegotiation in subsequent years reduced the amounts actually received or retained by petitioner below the figures reported for 1944 by $397,970.00. Petitioner, therefore, received a refund of excess profits taxes reflecting this fact.
On the basis of petitioner’s operating loss in 1946, it is entitled to carry back this loss under § 122. Where, as here, the taxpayer has had net income in both of the two years preceding the loss year, that section directs that the carry-back be first applied to the earlier taxable year, 1944, and the remainder, if any, be applied to reduce income for 1945. It is not in dispute that petitioner could
reflect subsequent events, has been $827,852.99. This is in fact the figure which petitioner reported on its original return as its excess profits net income. The net income figure on the original return was $817,680.90. Petitioner’s amended return showed a net income for 1944 of $747,236.60, while correction of petitioner’s amended return to reflect errors found by the Commissioner resulted in a figure of $982,836.81.
Similarly the accrued excess profits tax for 1944, unadjusted to reflect subsequent events, has been given as $625,561.59. This is the raw figure which petitioner’s original return showed as his tax before certain credits and adjustments which he claimed. That return showed as the excess profits tax due for 1944, $605,561.59. The amended return showed $549,206.15 as the tax due. Because of the fact that at the time the Commissioner corrected the errors in petitioner’s amended return he was aware of and took cognizance of the later renegotiation and 1946 carry-back, he did not arrive at what would have been the correct figure for the tax which petitioner should have originally reported as due for 1944 on the basis of facts known at the time the 1944 return was filed. The figure would, however, approximate $770,000.00.
When, however, the figures for either the 1944 net income adjusted to reflect renegotiation, or the 1944 excess profits tax after adjustment to reflect renegotiation and loss carry-back, have been given, they are the figures arrived at by the Commissioner ($584,866.81 and
LEWYT CORP. v. COMMISSIONER. 247
Frankfurter, J., dissenting.
237
carry back to 1944 the full amount of the net operating loss which incurred in 1946, and petitioner’s income and excess profits taxes for that year have been reduced to the full extent of this loss. Does anything remain to be applied in reduction of 1945 income?
Congress has provided a detailed formula for determining how much loss remains for application in 1945. The difficulty arises in applying the formula, because Congress has not made explicit, and so left in doubt, what set of figures may fairly be used in translating the generality of the formula into amounts. The difficulty is enhanced because the relevance of some of the factors used in the formula to any discernible congressional purpose is unclear. Logically one would expect that the statutory formula would be designed merely to permit application
$280,540.33 respectively). Since these figures are based not only upon a different return by petitioner, but reflect substantial corrections by the Commissioner of the taxpayer’s errors, they are not comparable to the figures which are quoted for unadjusted 1944 net income or excess profits tax. Fortunately for most purposes use of these figures does not affect the conclusion reached on the only question involved here—whether any loss is left to carry back to 1945.
There is one point at which use of comparable figures does become important. If the figures which have been in general use were comparable, then in our disagreement it would be necessary only to conclude that the unadjusted excess profits tax figure for 1944 ($625,561.59) should be reduced by the amount of tax refunded because of the renegotiation ($318,577.67). Upon application of the formula, subtraction of the resultant excess profits tax figure ($306,983.92) from 1944 net income adjusted to reflect renegotiation ($584,866.81) would give a figure in excess of the 1946 loss carryback and thus preclude any carry-back to 1945. But if comparable figures are used in applying the formula—it does not matter which of the three sets of figures is used—the reduction in 1944 excess profits tax due merely to renegotiation does not preclude a carry-back to 1945 and thus it is necessary to conclude that the excess profits tax figure for 1944 must also be reduced to reflect the refund resulting from the carry-back to 1944 (approximately $150,000). So reduced, there is no carry-back to 1945.
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to 1945 of so much of the 1946 loss as was not used to cancel 1944 taxes. But Congress, for its own good reasons, felt that certain other factors should be reflected in this calculation. One factor, which it is not for us to explain, was the amount of the taxpayer’s excess profits tax for 1944.
To vivify this problem, one must reduce to technical concreteness the statutory formula. It states, insofar as here relevant, that the amount of carry-back left for application in 1945 is the amount of the 1946 loss, less the figure arrived at by subtracting from “the net income for the second preceding taxable year [ 1944],” “the amount of tax imposed by Subchapter E of Chapter 2 paid or accrued within the taxable year [1944].” The latter is a dry statutory description of the excess profits tax.
Thus in addition to petitioner’s 1944 net income, the formula makes the 1944 excess profits tax figure crucial. The question here is: what 1944 excess profits tax figure? The amount of the tax due on the basis of the taxpayer’s knowledge at the close of the 1944 taxable year, that is, what its truthful balance sheet for that year indicated to be the tax ($625,561.59)? Or the amount of the tax which petitioner eventually and definitively had to pay after subsequent events had resulted in a downward revision of the originally reported 1944 tax ($318,577.67 tax reduction due to renegotiation, plus approximately $150,000.00 due to the carry-back of the 1946 loss)?
If it is the former figure, petitioner’s excess profits tax reported in 1944 ($625,561.59) was larger (because it did not take into account the then unknown reduction due to renegotiation and carry-back) than the figure for 1944 net income ($584,866.81), which, for reasons later to be explained, all parties concede should be the figure used in the formula, one reflecting the fact of later renegotiation, but not reflecting the 1946 loss carry-back. Applying the formula on the basis of the larger excess profits
LEWYT CORP. v. COMMISSIONER. 249
Frankfurter, J., dissenting.
237
figure, there is nothing to subtract from the 1946 loss, and the full amount of this loss is therefore available to offset 1945 net income and bring about a further refund of taxes for that year. But the full amount of the 1946 loss has already been applied in 1944 to offset the 1944 income and to bring about a refund for that year. Thus the Court’s decision permits the loss in 1946 to offset twice as much income in 1944 and 1945.
If, on the other hand, the 1944 excess profits tax figure is adjusted to reflect the reduction in the tax occasioned by renegotiation and the 1946 carry-back to 1944, the formula will not permit such double use of the 1946 loss; the difference between the 1944 net income figure (8584,866.81) and the adjusted 1944 excess profits tax (8280,540.33) is greater than the amount of the 1946 loss (8164,326.38).
Either of these positions can be supported by arguments based solely upon the literal language of the statute. Here we are not compelled in our choice by austere regard for what Congress has written, undistorted or unmitigated by judicial rewriting, no matter what the consequences in a specific case. Where the taxing measure is clear, of course, there is no place for loose conceptions about the “equity of the statute.” Revenue laws are notoriously not expressions of an ordered system of reason and fairness. There has probably never been a revenue statute which, by design or oversight, has not favored some groups and laid the basis for a claim of unfairness to others similarly situated. But while one should sail close to the shore of literalness in dealing with the technical problems which are the subject matter of revenue laws, literalness of meaning affixed merely to a particular word or phrase may itself distort what the provision as an entirety and in context conveys and therefore commands. And where ambiguous language is used, the mode of construction applied in Olympic Radio, supra,
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should not be ignored—that deductions and credits are matters of legislative grace and the taxpayer must bring himself clearly within the relief he claims.
Nor does the decision in Olympic Radio shed any light on our present problem. In that case we merely decided that an accrual taxpayer must be consistent in his choice of tax accounting systems—that in calculating his loss for a given year he must use figures relevant to that year’s operations, accrued figures, rather than figures based on cash payments related to transactions in a different year. We had no occasion to determine in that case whether the accrued figure to be used was to be the figure originally reported or the figure reflecting later adjustments to the original figure. That is the issue here.
The crucial phrases in determining whether the original or the adjusted figure for 1944 excess profits tax is to be used are: (1) “tax imposed by Subchapter E of Chapter 2,” and (2) “paid or accrued within the taxable year.” We agree that the first phrase serves merely to identify the nature of the tax referred to and vouchsafes nothing on the question in issue. We need not add to what the Court has said on this. We do not agree, however, that the second phrase compels the reading which the Court gives it.
For purposes of payment of current annual taxes, the phrase “accrued within the taxable year” has come to mean the figure arrived at by taking into account only knowledge available at the end of the taxable year. This reflects the fact that our tax system is operated on an annual basis and that it would be difficult to permit continual reopening and readjustment of old returns in light of later developments. See Burnet n. Sanford & Brooks Co., 282 U. S. 359; Security Flour Mills Co. v. Commissioner, 321 U. S. 281, 286; Dixie Pine Products Co. n. Commissioner, 320 U. S. 516, 519. Were we presented with a question whether the taxpayer owed the Govern-
LEWYT CORP. v. COMMISSIONER. 251
237	Frankfurter, J., dissenting.
ment interest on a deficiency, existing at the time his return was filed, in payment of “accrued” taxes, we would agree that the tax “accrued” was the tax calculated on the basis of the situation at the end of the taxable year without regard to any later adjustment in the amount of tax due which eliminated the deficiency. Cf. Manning v. Seeley Tube & Box Co., 338 U. S. 561; United States v. Koppers Co., 348 U. S. 254.
But if “accrued” has this meaning generally in our taxing system, it has acquired this sense not because it inevitably, lexicographically speaking, has this meaning, but because of the inferences which have grown up about it through use in the context of annual payment of taxes. In short, usage, the ultimate glossator, has made it a term of art in this context.
In the present case, we deal with sections of the Code which express exactly the opposite philosophy from that which gave rise to this use of “accrued” as a technical term looking only to events occurring within a single year. We deal with sections which direct re-examination of returns for past years in an effort to ameliorate the shortsightedness of the annual system which fostered a restrictive, closed meaning of “accrued.” The very purpose and direction of these sections require adjustments to earlier returns on the basis of subsequent facts. Surely in this context there is no rational reason for refusing to recognize the state of affairs as unfolded in the years which § 122 directs you to re-examine—the current year and two preceding years. Where the subsequent events are recognized by the Code as proper occasions for adjusting old returns, the arguments of administrative convenience which underlie closing the tax affairs of the year within the taxing year are empty because they have nothing to which they can apply.
Section 122 was designed to relieve the taxpayer from an unrealistic concept which taxed income which really
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was not there. Surely we should not conclude that Congress intended to go to the other extreme and refund taxes on the basis of losses which are really not there. There is confirmation within § 122 itself which should preclude such result. It lies in subsection 122 (b)(1)(B),2 which alone justifies the assumption, made by the Court and both parties, that the figure for 1944 net income to be used in the formula is the lower figure reflecting the adjustment for renegotiation ($584,866.81) rather than the one originally reported ($827,852.99). All the argument used to demonstrate that the 1944 excess profits figure should be the unadjusted figure proves with equal force that the 1944 net income figure should be the unadjusted figure. For “net income” for any given year is, generally speaking, arrived at by an accrual taxpayer by determining accrued gross income and accrued deductions for that year. §§ 21 (a), 22, 23, 41, 42 (a), 43, 48 (c). Inherent, therefore, in § 122’s phrase “net income” is the same concept of “accrued” as is explicitly used in that section’s reference to the excess profits tax. If “accrued” does not permit taking into account later adjustments to the tax, it does not permit reflection of adjustments to net income.
But subsection 122 (b)(1)(B) shows clearly that Congress assumed that the formula we have been discussing would reflect subsequent adjustments to 1944 net income. That subsection states in effect that the figure for net income of 1944 used in the formula is not to reflect the fact that the 1946 net operating loss has already been carried back and applied to reduce 1944 net income. If Congress thought it necessary specifically to direct that a certain adjustment to 1944 net income arising from facts developed in later years should not be made, this can only be
2 This subsection provides that in applying the formula, the figure for net income of 1944 is to be “computed . . . (B) by determining the net operating loss deduction for such second preceding taxable year [1944] without regard to such [the 1946] net operating loss.”
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237	Frankfurter, J., dissenting.
because Congress assumed that in applying the formula the figures used would reflect such adjustments. We recognize this assumption by taking as the 1944 net income figure the originally reported figure less the amount by which it was reduced as a consequence of renegotiation. There is no basis for differentiation, in recognizing this assumption, between net income and excess profits tax.
I would affirm.
254	OCTOBER TERM, 1954.
Syllabus.	349 U. S.
MANEJA et al. v. WAIALUA AGRICULTURAL CO., LTD.
NO. 3 57. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.*
Argued March 30, 1955.—Decided May 23, 1955.
The Waialua Agricultural Company is a corporation engaged in the growing, harvesting and processing of sugar cane at its plantation in the Territory of Hawaii. In the Federal District Court, it sought a declaratory judgment that its operations are exempt from the overtime provisions of the Fair Labor Standards Act of 1938. By a counterclaim under § 16 (b) of the Act, certain of its employees sought to recover unpaid overtime compensation. The action related only to work performed between Nov. 20, 1946, and Sept. 14, 1947. Held:
1.	Since Waialua exports virtually its entire output for sale throughout the United States, its operations are subject to regulation by Congress through exercise of the commerce power. Wickard v. Filburn, 317 U. S. 111. Pp. 258-259.
2.	The provision of the Fair Labor Standards Act exempting agriculture is coterminous with the sum of those activities necessary in the cultivation of crops, their harvesting, and their “preparation for market, delivery to storage or to market or to carriers for transportation to market.” Pp. 259-260.
3.	Waialua’s railroad workers, who not only haul cane from the fields to the processing plant but also transport farming implements and field laborers on a narrow-gauge railway extending throughout the plantation, are within the agriculture exemption of the Act. Pp. 260-263.
(a)	The Act draws no distinction between large and small farms or between mechanized and nonmechanized agriculture. P. 261.
(b)	The agriculture exemption is not forfeited merely because Waialua uses a method ordinarily not associated with agriculture— a railroad—to transport the cane from the fields to the mill. P. 261.
*Together with No. 358, Waialua Agricultural Co., Ltd. v. Maneja et al., also on certiorari to the same court.
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254	Syllabus.
(c)	Congress did not intend to deprive farmers having their own mills of the exemption it afforded farmers who do not. P. 261.
(d)	The transportation of farm implements, supplies and field workers to and from the fields is a necessary part of the agricultural enterprise and clearly within the exemption. P. 262.
(e)	Upon the facts here presented, the administrative practice also requires that the railroad employees be classified as within the agriculture exemption. Pp. 262-263.
4.	Employees who repair the mechanical implements used in farming—tractors, cane loaders, cane cars, etc.—are within the agriculture exemption. Pp. 263-264.
5.	Employees working in Waialua’s sugar-processing plant are not within the agriculture exemption of the Act. Pp. 264-270.
6.	The exemption prescribed by § 7 (c) from the overtime provisions of the Act for employers “engaged in the . . . processing of . . . sugarcane . . . into sugar” applies to employees of Waialua during the processing season while making emergency repairs in the mill, cleaning the equipment during the week-end shutdown, and performing other tasks closely and intimately connected with the processing operation; it also applies to employees doing repair work on the mill equipment in Waialua’s shops in the mill area; but it does not apply to employees doing permanent repairs, overhaul and reconditioning during the three-month off-season. Pp. 270-271.
7.	Employees engaged in the maintenance of Waialua Village and in the repair of the company’s dwelling houses rented to employees are not within the coverage of the Act. Pp. 271-272.
8.	In view of the insufficiency of relevant data in the record, the rights of the remaining employees involved in this litigation (employees in the laboratory, the cement products plant and the power plant) are not here decided but may be decided by the trial court on remand; and that court may also make any necessary reassessment in overtime compensation due employees. P. 272.
216 F. 2d 466, reversed.
Richard Gladstein argued the cause for Maneja et al. With him on the brief was Norman Leonard.
By invitation of the Court, 348 U. S. 870, Bessie Margolin argued the cause for the Secretary of Labor, as
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Opinion of the Court.
amicus curiae, urging reversal. With her on the brief were Solicitor General Sobeloff, Stuart Rothman and Harold S. Saxe.
Rufus G. Poole argued the cause for the Waialua Agricultural Co., Ltd. With him on the brief were Livingston Jenks, Milton C. Denbo and Philip Levy.
Paul E. Mathias filed a brief for the American Farm Bureau Federation, as amicus curiae, supporting the Waialua Agricultural Co., Ltd.
Mr. Justice Clark delivered the opinion of the Court.
This case involves, primarily, the coverage of the agriculture exemption 1 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. The petitioners are 31 employees of respondent corporation,2 which is engaged in the growing, harvesting and processing of sugar cane at its plantation in the Territory of Hawaii. Respondent seeks a declaratory judgment that its operations are exempt from the overtime provisions of the Act, while the petitioners, through a counterclaim under § 16 (b) of the Act, seek to recover unpaid overtime compensation. The action pertains only to work performed between November 20, 1946, and September 14, 1947.
Waialua owns and operates what might be called the agricultural analogue of the modern industrial assembly line. On its plantation, consisting of some ten thousand acres of land, it cultivates sugar cane which it processes into raw sugar and molasses. It utilizes the year-round growing season to produce a steady supply of cane and employs in its operations over a thousand persons,
1 “Sec. 13 (a). The provisions . . . shall not apply with respect to . . . (6) any employee employed in agriculture.”
2 Forty-two employees were originally involved, but 11 sustained adverse decisions in the District Court and did not appeal.
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254	Opinion of the Court.
many at specialized tasks. Some move from field to field preparing the soil, fertilizing, planting seed or cultivating. Others attend to the irrigation of the fields. As the cane crop matures, crews of employees move in with mechanical cane harvesters that cut and throw the cane into railroad cars. The cane is then taken over portable tracks laid into the growing fields to Waialua’s mainline railroad, which runs throughout the plantation, and from there skilled railroad workers transport the cane to the processing plant. Freshly cut sugar cane is extremely perishable and must be processed within a few days of harvesting or serious spoilage will result. The processing plant is typical of such modern industrial facilities and is manned by employees specially trained in its operation. It has all of the equipment needed to receive the freshly cut cane from the railroad cars and process it into raw sugar and molasses. Adjacent to the processing plant are warehouses where the raw sugar and molasses are stored preparatory to shipment to the United States.
A tremendous variety of work must be done to keep this enterprise going, and Waialua employs persons versed in each operation. In addition to those employed as indicated above, about a hundred more work in repair shops as mechanics, electricians, welders, carpenters, plumbers and painters. They keep Waialua’s highly mechanized enterprise operating, making not only emergency repairs but complete overhauls of the railroad, milling, harvesting and other equipment. Waialua also maintains a plant for the manufacture of concrete products (paving blocks and flumes for irrigation ditches), an electric generating plant in the same building as the mill, and a laboratory for the testing of its soil, water, cane and raw sugar.
In addition to all this, Waialua owns a village where the great majority of its employees live. Known as Waia-
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Opinion of the Court.
lua Village, it was originally built when housing for the employees was inadequate, and is located on plantation property within the limits of the City of Honolulu. Within the town are several hundred houses and business establishments, all occupied on a rental basis, together with recreational areas and other town facilities. The respondent furnishes all the maintenance work for its village, employing street cleaners, road graders and janitors.
Proceedings Below.
The trial judge found that all the employees were outside of the agriculture exemption save those engaged directly in agricultural work in the fields, in loading the freshly cut cane into cane cars, and in hauling the loaded cars to the mainline railroad. Those employees working in the sugar mill were found to be under the special processing provisions of § 7 (c) of the Act. As to the other employees, the court entered judgment for overtime as well as liquidated damages and attorney’s fees. 97 F. Supp. 198. The Court of Appeals reversed, believing that “the entire cause was tainted by apparent collusion” because stipulations covered the commerce features of the case. It thought that “agriculture is not commerce, interstate or foreign,” and that “[f]ederal regulation of agriculture invades the reserved rights of the states. United States v. Butler, 297 U. S. 1 . . . . But cf., Wickard v. Filburn, 317 U. S. 111.” It indicated, further, that even if the suit were not collusive, the workers would not be entitled to the relief claimed because all of them came within the agriculture exemption of the Act. 216 F. 2d 466 (1954). Despite this reasoning, the Court of Appeals refused to dismiss petitioners’ counterclaim but remanded it to the trial court “for proceedings in accordance with this opinion.” We granted certiorari, believing
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254	Opinion of the Court.
that the proper administration of the Act requires a resolution of the questions presented. 348 U. S. 870.
We are in full agreement with the parties that the first ground relied upon by the Court of Appeals is incorrect. It is not necessary now to consider the vitality of United States v. Butler, supra, for that decision expressly reserved the question of whether the regulation of agriculture was within the commerce power,3 and Wickard v. Filburn, supra, decided the question in favor of the congressional power. In view of the fact that Waialua exports virtually its entire output for sale throughout the United States, we find ourselves unable to say that the stipulation with respect to the power of Congress was collusive.
The Scope of the Agriculture Exemption.
Congress exempted agriculture from the terms of the FLSA in broad, inclusive terms:
Sec. 3. “(f) ‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15 (g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”
3 “. . . the Government does not attempt to uphold the validity of the act on the basis of the commerce clause, which, for the purpose of the present case, may be put aside as irrelevant.” 297 U. S., at 64.
340907 0 - 55 - 23
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Opinion of the Court.
The exemption was meant to embrace the whole field of agriculture, and sponsors of the legislation so stated, 81 Cong. Rec. 7648, 7658. This Court also has had occasion to comment on its broad coverage. See Addison n. Holly Hill Co., 322 U. S. 607, 612 (1944). Nevertheless, no matter how broad the exemption, it was meant to apply only to agriculture and we are left with the problem of what is and what is not properly included within that term.
From the very beginning of the legislative consideration of the Act, a comprehensive exemption of agricultural labor was a primary consideration of the Congress. Nevertheless, before its final language developed, the agriculture exemption ran the gamut of extensive debates and amendments, each of the latter invariably broadening its scope. Exempting “any person employed in agriculture,” its first comprehensive definition declared “farming in all its branches” to be exempt, including “any practices ordinarily performed by a farmer as an incident to such farming operations.” S. 2475, Calendar No. 905, 75th Cong., 1st Sess. 51. Although this language was described by those in charge of the bill in the Senate as “perhaps, the most comprehensive definition of agriculture which has been included in any one legislative proposal,” 81 Cong. Rec. 7648, its coverage was broadened until it became coterminous with the sum of those activities necessary in the cultivation of crops, their harvesting, and their “preparation for market, delivery to storage or to market or to carriers for transportation to market.” Our main problem is to determine which activities of Waialua come within this definition, thus exempting the persons so employed from the provisions of the Act.
The Railroad Workers.
Waialua’s railroad workers not only haul cane from the fields to the processing plant but also transport farming
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254	Opinion of the Court.
implements and field laborers on the narrow-gauge railway extending throughout the plantation. For numerous reasons, we feel that these employees fall within the comprehensive wording of the agriculture exemption. Nowhere in the Act was any attempt made to draw a distinction between large and small farms or between mechanized and nonmechanized agriculture. In fact, the very opposite appears, since Congress in 1949 specifically refused to draw a distinction between large and small farms similar to the distinctions drawn in the size of newspapers or telephone companies. See H. R. Rep. No. 267, 81st Cong., 1st Sess., p. 24. Compare FLSA, as amended, §§ 13 (a)(8), 13 (a)(11), 13 (a)(15).
In view of this, we cannot hold that merely because Waialua uses a method ordinarily not associated with agriculture—a railroad—to transport the cane from the fields to the mill, it has forfeited its agriculture exemption. Where a farmer thus uses extraordinary methods, we must look to the function performed. Certainly no one would argue that the agriculture exemption did not apply to farm laborers who took the cane to the plant in wheelbarrows. There is no reason to construe the FLSA so as to discourage modernization in performing this same function.
Furthermore, had Waialua not owned a mill, its transportation activities from field to mill would come squarely within the agriculture exemptions covering “delivery to storage or to market or to carriers for transportation to market.” We do not believe the Congress intended to deprive farmers having their own mills of the exemption it afforded farmers who do not. In the debate on the amendment extending exemption to “delivery to market,” its sponsor made clear that auxiliary activity of the kind here involved would be included within that term. 81 Cong. Rec. 7888.
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Opinion of the Court.
Similarly, the exemption clearly covers the transportation of farm implements, supplies and field workers to and from the fields. Being performed “on a farm as an incident to or in conjunction with such farming operations,” this activity is a necessary part of the agricultural enterprise.
Although the original administrative interpretation squarely supports our conclusion in regard to such hauling activity,4 it is insisted that the administrative practice has been to the contrary since Bowie v. Gonzalez, 117 F. 2d 11 (1941). We have examined the press release relied on and find that it stated only that the exemption “does not apply to sugar mill employees, even if the only cane ground in such a mill is cane grown by the sugar mill owner in his own fields,” and made no reference to employees engaged in transporting the cane to the mill.5 Subsequent statements by the Administrator merely make the coverage of this activity a question of fact to be determined on an ad hoc basis.6 We see no basis for the assertion, therefore, that the administrative practice since 1941 has been to exclude from the exemption the transportation of cane from field to mill. Moreover, Bowie itself established no such rule, save with regard to the transportation of sugar cane of independent growers. The judgment left all employees transporting sugar cane grown by the mill company in the exempt status. In the subsequent case of Calaf v. Gonzalez, 127
4 “If a company has sugar cane fields and also a mill, the transportation of its own sugar cane to the mill seems an incidental practice which is included [within the exemption].” U. S. Dept, of Labor, Wage and Hour Division, Interpretative Bulletin No. 14, p. 9, 35 WHM 351, 356.
5 Press Release, Wage and Hour Division, Sept. 15, 1941, reported at 35 WHM 355.
6 Findings and Opinion of Administrator, May 20, 1943, Waialua’s brief, pp. 51-52, in proceedings incident to Wage Order, Part 635, for the Sugar and Related Products Industry, 8 Fed. Reg. 7098.
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F. 2d 934 (1942), the same Court of Appeals warned that a different problem would be present if the heart of the transportation system and the situs of the employment of workers were located at the plantation. We do not believe that either Bowie or Calaf is apposite. The factual situation here is that Waialua’s transportation system is all either in or contiguous to its fields, save the necessary trackage at the mill to accommodate cane cars arriving from various sections of the plantation. The railroad is used exclusively for the effectuation of the agricultural function of transporting exempt agricultural workers to the fields, together with their equipment and supplies, and hauling freshly cut cane to the processing plant. Without it or some other “haul,” the land could not be cultivated and the cane, after harvest, would spoil in the fields and be lost. We believe that under the facts here presented the administrative practice also requires that the railroad employees be classified as within the agriculture exemption.
The Workers Employed in the Repair Shops.
By a parity of reasoning, those employees who repair the mechanical implements used in farming are also included within the agriculture exemption. Every farmer, big or little, must keep his farming equipment in proper repair, and the fact that Waialua’s size has permitted it to achieve an extraordinary degree of specialization should not deprive it of this exemption. Here, the relatively small number of employees assigned to the repair activities—working only on Waialua’s machinery and equipment—indicates that, far from being a farmer who conducts a repair business on the side, Waialua is merely performing a subordinate and necessary task incident to its agricultural operations. Indeed, the very necessity of integrating these tasks with Waialua’s main operation— without which the entire farming operation would soon
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become hopelessly stalled—is strong reason to consider the repairmen within the exemption. This reasoning, of course, applies only to those employees engaged in the repair of equipment used in performing agricultural functions: tractors, cane loaders, cane cars, and so forth. The repair work on mill equipment is considered under the processing exemption, infra.
The Employees in Waialua’s Sugar Processing Plant.
The legislative history of the ELSA indicates that the mill employees present a borderline case. Indeed, this very question, i. e., whether the grinding of one’s own sugar cane comes within the exemption, was posed and left unresolved in the debates, 81 Cong. Rec. 7657-7658. The sponsors of the Act made clear, however, that “a farmer erecting on his farm a factory and manufacturing anything you please, whether something he grows or not, who employs many people to manufacture it, and then ships it in interstate commerce . . . would not make the manufacturing ... a farming operation.” 81 Cong. Rec. 7658. From this and from discussions of other borderline cases, it is clear that we must look to all the facts surrounding a given process or operation to determine whether it is incident to or in conjunction with farming.
In making such a particularized determination, we may consider first the criteria set forth by the Wage-Hour Administrator in 1949, 35 WHM 371, 373. He proposed the following as relevant factors:
(a)	The size of the ordinary farming operations. There can be no question here that such operations are substantial, and that Waialua’s sugar-raising activities are no mere façade for an otherwise industrial venture.
(b)	The type of product resulting from the operation in question. Here the products are raw sugar and molasses. There is some ground for considering these as
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strictly agricultural commodities, since the unmilled sugar cane is highly perishable and unmarketable as such. On the other hand, the milling operation transforms sugar cane from its raw and natural state, and there is support in the Senate debates for the view that a process resulting in such a change is more akin to manufacturing than to agriculture. See 81 Cong. Rec. 7659—7660, 7877—7878.
(c)	The investment in the processing operation as opposed to the ordinary farming activities. Here the mill accounts for 29% of Waialua’s total investment in the plantation.
(d)	The time spent in processing and in ordinary farming. Waialua’s mill operations account for 23% of the man-hours worked during the year.
(e)	The extent to which ordinary farmworkers do processing. There is but slight interchange of workmen. The over-all picture discloses essentially separate working forces for mill operations and for farming.
(f)	The degree of separation by the employer between the various operations. The plantation organization calls for separate departments to handle the processing activities and field work.
(g)	The degree of industrialization. The mill workers here, as observed in the Bowie case, are typical factory workers, and from its external characteristics the milling operation is certainly an industrial venture.
But in making the factual determination, we must keep in mind that the question here presented is a limited one: is the milling operation part of the agricultural venture? If it is agriculture, albeit industrialized and involving highly specialized mechanical tasks, we must hold it to be within the agriculture exemption. Thus we must add to the factors above some consideration of what is ordinarily done by farmers with regard to this type of operation. It is true that the word “ordinarily” appeared in an earlier version of the exemption and was subsequently
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stricken, but the inquiry is nonetheless a pertinent one. It has a very direct bearing in determining whether the milling operation is really incident to farming.
Our major domestic sugar-producing areas are in Louisiana, Puerto Rico and Hawaii. Statistics for 1948 reveal that the 5,957 sugar farms in Louisiana have their sugar processed in 47 independent mills and in 12 co-operatives. Marketing Sugarcane in Louisiana (U. S. Dept. Agric. 1949) 1, 23; Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas (U. S. Dept. Agric. 1954) 84. While the independent mills own 40% of the cane-producing acreage, there is no indication that these customarily process only the sugar cane grown on their own lands. For the same year, Puerto Rican sugar from 14,772 farms was processed in 35 “centrals.” The Marketing of Sugarcane in Puerto Rico (U. S. Dept. Agric. 1950) 2; Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas, supra, at 121. Again the practice is not for the individual farmer to grind his own sugar. The statistics for Hawaii disclose only 34 and 30 farms for 1947 and 1948 respectively. But these low figures resulted from a classification which counted only the “plantations.” When smaller independent farms were included in the 1951 figures, the number of Hawaiian sugar farms jumped to 786. Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas, supra, at 137. In addition, there are some 1,500 or 1,800 small “adherent planters” producing sugar cane in Hawaii. See Hearings before the House Committee on Education and Labor on H. R. 2033, 81st Cong., 1st Sess., p. 1173. According to information furnished by the Sugar Division of the United States Department of Agriculture, there are about twenty-six sugar mills in Hawaii processing cane produced by all these farmers. Ten of these, like Waialua, are engaged exclusively in the processing of their own cane; the re-
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maining sixteen process cane grown by others as well as their own.7 The pertinent ratio, however, is not the proportion of millers who grow their own cane but the percentage of farmers who engage in milling. Thus, while sugar milling by farmers is more prevalent in Hawaii than in the other sugar-producing areas, it is very doubtful that these milling operations can be considered a normal incident to the cultivation of sugar cane, even in the context of the Hawaiian sugar industry.
From a consideration of all the relevant factors, the question would be an extremely close one in gauging whether this milling operation is farming or manufacturing. But we do not stop here. The status under the FLSA of farmers milling their own sugar is influenced by a number of extraneous legislative factors—their position vis-à-vis the agriculture exemption may well be sui generis. Some time after the inconclusive floor debate on sugar processing, there was included in § 7 (c) a total exemption of this activity from the overtime provisions of the Act. This may well have been considered a satisfactory answer to the difficult problems posed in determining whether sugar processing came within the agriculture exemption. But we cannot be sure of this, because § 7 (c) includes similar exemptions for operations like cotton ginning, which also come within the agriculture exemption if performed by the farmer on his own crops. More significant is the omission of sugar milling from the exemption provided by §13 (a) (10) for various processing operations performed within the area of production.
7 See letter of April 28, 1955, to Stuart Rothman, Solicitor, Department of Labor, from Lawrence Myers, Director, Sugar Division of the Department of Agriculture, as corrected by letter of May 13, 1955, to Stuart Rothman, Solicitor, Department of Labor, from Thomas H. Allen, Acting Director, Sugar Division of the Department of Agriculture. See also Supplemental Brief of the Secretary of Labor, p. 11, n. 4.
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This exemption was designed to meet the protests of many legislators who argued that the broad agriculture exemption permitted large farming units to process their own products without subjecting themselves to the terms of the Act, while the small farmer, who did not have the equipment necessary for such processing, had to bear the cost of operations covered by the Act. Section 13 (a) (10) exempted employees “within the area of production . . . engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market.” Thus, for example, the cotton farmer without a gin was placed on an equal footing with farmers who ginned their own cotton, since each could have their cotton ginned by employees who were covered by neither the wage nor the hour provisions of the Act. But sugar milling is not included within the “area of production” exemption, since in the course of this processing the sugar cane is changed from its “raw or natural state.” See 35 WHM 365. Senator Schwellenbach, one of the most ardent advocates of equalization in the status of large and small farmers, considered this change in the product as marking the dividing line between processing as an agricultural function and processing as a manufacturing operation. See 81 Cong. Rec. 7659-7660, 7877-7879. The “area of production” exemption reflects this dichotomy. Thus all other forms of quasi-industrial processing—ginning, canning, packing, etc.—which might be used as analogies for including sugar milling within the agriculture exemption are repeated in § 13 (a) (10). Congress would not have omitted sugar milling from the “area of production” exemption if it had not concluded that it also fell outside the agriculture exemption. We think that adherence to the congressional scheme requires us to hold that sugar milling is outside the agriculture exemption and that its
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exemption from the hours provision by virtue of § 7 (c) marks the outer limit of congressional concession to this type of processing. By so holding, we not only equalize the status of all sugar farmers with regard to FLSA coverage of milling operations on their product, but we equalize the impact of the Act on all sugar mills, those which grind their own cane and those grinding their neighbors’ as well.
We note, further, that such an interpretation closes a gap that would otherwise exist in the federal wage regulation of persons engaged in producing sugar for interstate commerce. The FLSA clearly reaches those engaged in refining sugar, cf. FLSA § 7 (c), and the Sugar Act provides for reasonable wages for those engaged in the “production, cultivation, or harvesting” of sugar cane. 50 Stat. 909, 61 Stat. 930, 7 U. S. C. § 1131. The latter terminology has been construed to extend to the mainline railroad workers, e. g., 7 CFR, 1941 Supp., § 802.34d, leaving unregulated only the wages of sugar-mill employees—unless, as we hold here, these factory workers are beyond the terms of the agriculture exemption.
Waialua makes much of the fact that the Administrator originally construed the agriculture exemption as covering the grinding of the farmer’s own sugar cane. Interpretative Bulletin No. 14, supra. The Administrator revised his construction in 1941 to accord with his interpretation of several cases in the First Circuit dealing with the Puerto Rican sugar industry, and from that time he has maintained that sugar milling is not exempt, even if the farmer is engaged exclusively in the milling of his own cane. See Press Release, supra, at note 5. The revised construction of the Administrator—and the fact that farmers milling their own sugar cane were covered only by § 7 (c)—were reported to the congressional committees considering amendments to the FLSA. See Hearings before a Subcommittee of the Senate Committee on
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Education and Labor on S. 1349, 79th Cong., 1st Sess., pp. 1049-1050; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S. 49 et al., 80th Cong., 2d Sess., p. 318; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S. 58 et al., 81st Cong., 1st Sess., pp. 973-974; Hearings before the House Committee on Education and Labor on H. R. 2033, 81st Cong., 1st Sess., p. 1166. But when the Act was amended in 1949 Congress did not overrule this interpretation. It provided instead that any “order, regulation, or interpretation of the Administrator” in effect on the effective date of the 1949 amendments “shall remain in effect . . . except to the extent that any such order, regulation, interpretation . . . may be inconsistent with the provisions of this Act . . . .” 63 Stat. 920. We relied on this section in Alstate Construction Co. v. Durkin, 345 U. S. 13, in upholding a regulation of the Administrator which similarly had been changed, reported to Congress in its revised form, and left unaltered by the 1949 Act. We come to the same conclusion in this case, and hold the Administrator’s interpretation unimpaired by the 1949 Amendments. It therefore follows that the employees working in the processing plant are not within the agriculture exemption.
The Processing Exemption.
Although the mill workers are not within the agriculture exemption, they are nevertheless exempt from the overtime provisions of the Act. Section 7 (c) specifically provides that the overtime provisions of the Act shall not apply to “an employer engaged in the . . . processing of . . . sugarcane . . . into sugar (but not refined sugar),” and this exemption extends to “employees in any place of employment [where the processing is carried on].” This, we feel, covers the workmen during the proc-
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essing season while making emergency repairs in the mill, cleaning the equipment during the week-end shutdown, and performing other tasks closely and intimately connected with the processing operation. Repair work on the mill equipment in Waialua’s shops in the mill area is also within the exemption. See 35 WHM 360-361. During the three-month off-season, however, a complete overhaul and reconditioning is given the entire mill equipment and no processing work is performed. Since § 7 (c) on its face covers only those employees who work in the place of employment where the processor is so engaged, we cannot extend its coverage to include within the overtime exemption permanent repairs, overhaul and reconditioning during this three-month off-season. See Heaburg v. Independent Oil Mill, 46 F. Supp. 751; Abram v. San Joaquin Cotton Oil Co., 49 F. Supp. 393. Cf. Mitchell v. Stinson, 217 F. 2d 210, 217 (C. A. 1st Cir.).
The Waialua Village Workers. .
We now come to those workers employed in the maintenance of Waialua Village. This village seems to be an ordinary town, except for the fact that Waialua performs the usual civic functions. It rents its dwelling houses to employees and others on a purely voluntary basis. In fact, the adjacent Haleiwa Village, not owned by Waialua, houses some of the employees. Under the 1949 Amendments to the Act, the work of the employees in maintaining the town clearly is not covered. 63 Stat. 911, 29 U. S. C. § 203 (j). The question presented in this case, therefore, is of small import in itself. Even so, to come within the coverage of the Act prior to this amendment, the activity of such employees must have a “close and immediate tie with the process of production.” Kirsch-baum Co. v. Walling, 316 U. S. 517, 525. We do not
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believe such a tenuous relation as here established is sufficient. This activity is sufficiently regulated by the requirements of Hawaiian law. Revised Laws of Hawaii, 1945, Title 9, Ch. 75, §§ 4351-4366. Congress made it clear that it intended to “leave local business to the protection of the states,” Walling v. Jacksonville Paper Co., 317 U. S. 564, 570, and “did not see fit . . . to exhaust its constitutional power over commerce,” 10 East 40th St. Bldg. v. Callus, 325 U. S. 578, 579. For these reasons, we believe that the employees working in the maintenance of the village and the repair of the respondent’s dwelling houses are not covered by the provisions of the Act.
In view of the state of the record, we are unable to determine the rights of the remaining employees involved in this litigation. We do not have sufficient data to decide whether the employees in the laboratory, the cement products plant and the power plant are within the agriculture or sugar-processing exemption. On remand, the problems arising in those operations—small though they be in the over-all picture—may be decided in the light of the considerations set down in this opinion. Likewise, the trial court may make any necessary reassessment in overtime compensation due employees. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to the District Court for proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Burton, whom Mr. Justice Frankfurter and Mr. Justice Harlan join, concurring in part and dissenting in part.
The Waialua Agricultural Company performs the closely integrated function not merely of growing, harvesting and gathering sugar cane from its fields, but of promptly processing that cumbersome, perishable crop
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into transportable, marketable raw sugar and molasses. If not so processed, the cane spoils. The processing, therefore, is as essential to the success of the sugar cane plantation as the growing and harvesting of the cane itself. The question before us is the extent to which the employees of Waialua are exempt from the Fair Labor Standards Act of 1938.
Congress, in so many words, has excluded from the coverage of the Act “any employee employed in agriculture.” 1 (Italics supplied.) It has clarified this exemption by adding that—
“ ‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil ... the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” 2 (Italics supplied.)
In my view, the above definition includes all of the operations of the Waialua Agricultural Company.3 It is difficult to conceive of terms covering them more adequately. Concededly, the company is a “farmer,” and each of the practices involved here readily can be conceived of as being performed by it on its farm as an incident to or in conjunction with growing, harvesting and preparing its sugar cane for market or for delivery to carriers for transportation to market.
1 § 13 (a)(6), 52 Stat. 1067, 29 U. S. C. §213 (a)(6).
2 § 3 (f), 52 Stat. 1060, 29 U. S. C. §203 (f).
3 Except the maintenance of Waialua Village, which, for other reasons, as the Court explains, does not come under the coverage of the Act.
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The Court goes far toward adopting the above view. By applying the agricultural exemption to Waialua’s employees who grow or harvest the sugar cane, and to those who deliver the cane to the processing mill, the Court completely relieves Waialua of the wage and hour requirements of the Act in relation to those employees. On the other hand, the Court declines to apply the agricultural exemption to Waialua’s processing employees. The consequence of this is minimized by two factors. First, the resulting subjection of Waialua to the minimum wage requirements of the Act adds no burden because Waialua, of its own accord, pays its processing employees more than the required minimum. Secondly, any burden due to the resulting subjection of Waialua to the statutory 40-hour week, with increased pay for overtime, is not great, because § 7 (c)4 specifically grants exemption from such regulation to “employees in any place of employment where” the employer is engaged in processing sugar cane into raw sugar or syrup.
However, the processing exemption, under § 7 (c), is not the full equivalent of the agricultural exemption under §§13 (a)(6) and 3(f). The exemption under § 7 (c) is limited to the overtime provisions of the Act and does not extend to the minimum wage provisions. It is construed to cover only tasks that are “closely and intimately connected” with the actual processing of sugar cane in a mill, whereas the agricultural exemption is not so restricted. The Court makes this clear. Section 7 (c) is held by it not to reach services performed by Waialua’s processing employees in the mill during the “off season” when no cane is actually being processed there. Still other areas of uncertainty appear where the Court requires further findings as to the work done in the laboratory, the concrete products plant and the power plant
4 52 Stat. 1063, 29 U. S. C. §207 (c).
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before determining the status of employees engaged in those operations.5
If the agricultural exemption be given the broad application to which I believe it entitled, no line need be drawn between processing and other agricultural activities. Each of the above activities would be exempt because each is “incident to or [is performed] in conjunction with” the agricultural operation of growing, harvesting, preparing and delivering the cane to market.
The Court recognizes that the large size of Waialua’s plantation makes necessary the specialization of labor incidental to its sugar cane production and marketing. Mere size and mechanization of Waialua’s farming operations are not, in themselves, grounds for excluding any of its employees from the agricultural exemption. As I see it, the statutory definition of agriculture describes a major activity which lies beyond the outer limits of the Fair Labor Standards Act. “Agriculture” is not an exception carved out of the jurisdiction of the Act. Congress never proposed to apply the Act to agriculture. To any extent that the Act impinges upon agricultural
5 In the laboratory, Waialua employs, in a separate building, 14 chemists, testers and samplers who analyze cane leaf, juice, fiber and ash, raw sugar and molasses, water used in all operations, etc., so as to have all operations controlled by scientific methods. In the concrete products plant, it employs, in a separate building, four to ten men primarily making irrigation flumes and water supply pipe. Other products include concrete blocks, footings and sidewalk slabs required on the plantation. Cement and other materials used in making these products are purchased off the plantation. For the power plant, the “bagasse,” or cane fiber remaining after the extraction of its juice, supplies fuel. Waialua burns it to produce steam which drives mill machinery, heats sugar juice and generates electric power. The electric power, in turn, serves various operations on the plantation. The integrated nature of these operations emphasizes the propriety and practicality of the blanket agricultural exemption in relation to them. It demonstrates also the difficulty of drawing lines between such naturally related operations.
340907 0-55-24
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The legislative history supports an all-inclusive, rather than a restrictive, interpretation of the word “agriculture” as used here. When Senate Bill 2475, which became the Fair Labor Standards Act, was reported favorably by the Senate Committee on Education and Labor, it exempted “any person employed in agriculture.” It provided that as “used in this Act, the term ‘agriculture’ includes farming in all its branches and . . . any practices ordinarily performed by a farmer as an incident to such farming operations.” (Italics supplied.) Id., Calendar No. 905, 75th Cong., 1st Sess. 51. Congress proposed thereby to exempt “persons engaged in agriculture and such processing of agricultural commodities as is ordinarily performed by farmers as an incident of farm operations.” (Italics supplied.) S. Rep. No. 884, 75th Cong., 1st Sess. 6. The exemption was thus expressly made applicable at least to the ordinary processing of agricultural commodities while converting them from their natural state to a marketable form.
In the ensuing debate, attention was directed specifically to sugar cane. In answer to whether syrup mills, operated on sugar cane plantations, would be exempt, the Chairman of the Senate Committee on Education and Labor stated that “If ... it is a practice not ordinarily performed by a farmer as incident to his farming operations . . . [it] would not come under the definition.” (Italics supplied.) 81 Cong. Rec. 7657. However, this restriction of the agricultural exemption significantly disappeared when the word “ordinarily” was intentionally stricken out of the definition of agriculture. H. R. Rep. No. 1452, 75th Cong., 1st Sess. 11. In its final stage, “agriculture” became substantially all-inclusive. It covered “any practices performed by a farmer or on a farm
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as an incident to such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” S. 2475, Union Calendar No. 804, 75th Cong., 3d Sess. 50.
Emphasis thus was shifted from ordinary practices incident to farming operations to all practices incident to farming operations, including those incident to the preparation or delivery of agricultural products to storage or to market. Operations, such as those of a shirt factory on a cotton farm, are said to be excluded from the agricultural exemption, not because they are not ordinarily operated by farmers, but because they are neither incident to farming operations nor appropriate to the preparation of a farm product for its initial market. Accordingly, the essential inquiry in the instant case is whether Waialua’s processing of sugar cane is incident to farming operations, including those necessary or appropriate to prepare the cane product for storage or for its market. The answer should be that harvested sugar cane is so highly perishable that it must be processed promptly in order to be either stored or marketed. It naturally follows, therefore, that such processing, done by a farmer on a farm, should be recognized as “agriculture” equally with the growing and harvesting of the crop.
Emphasizing this view, in 1939, the Department of Labor issued Interpretative Bulletin No. 14. It then said unequivocally that the words “preparation for market” included the processing of sugar cane into raw sugar and molasses. It classified that operation with cotton ginning and the packing or canning of other agricultural commodities. Id., § 10 (b), 35 Wage and Hour Man. 351, 355.6 Being substantially contemporaneous with the
6 It appears that the Administrator of the Wage and Hour Division later withdrew from that position in deference to a decision in 1941 by the Court of Appeals for the First Circuit in Bowie v. Gonzalez, 117 F. 2d 11. That court there held that certain processors who
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Fair Labor Standards Act of 1938, such an initial interpretation of the statute is entitled to special weight. United States n. American Trucking Assns., 310 U. S. 534, 549.
While the Court suggests that § 7 (c) lends support to its conclusion that the agricultural exemption does not apply to processing operations, I believe that the presence of § 7 (c) supports the opposite conclusion. Section 7 (c) was inserted in the bill largely in answer to the argument that the agricultural exemption (in §§ 13 (a)(6) and 3 (f)) would relieve the large processing farmers from the restrictions of the Fair Labor Standards Act and thus help them market their raw sugar or molasses more cheaply than the smaller farmers who would be compelled to employ nonexempt independent processors. Section 7 (c), accordingly, was added to relieve such independent processed sugar cane, other than their own, did not come within the agricultural exemption. The Administrator, in concluding that the processing of sugar cane by a farmer on his own farm, in his own plant, also was to be excluded from the agricultural exemption, extended the decision beyond the point at issue. See Farmers Irrigation Co. n. McComb, 337 U. S. 755, 766-767, n. 15.
I do not attach significance to the failure of Congress to make specific reference to this point in its 1949 amendments. By its savings clause, Congress reserved the issue of the validity of the Adminis-trator’s interpretation of the Act. It did this by providing generally that existing interpretations of the Administrator remain in effect but expressly excepting “the extent that any such . . . interpretation . . . may be inconsistent with the provisions of this Act . . . 63 Stat. 920. The pendency of the instant litigation at that time was called to the attention of the appropriate Committee of Congress and it was shown that the Administrator had not instituted that suit, or any other, in reliance upon the interpretation now claimed. Hearings before House Committee on Education and Labor on H. R. 2033, 81st Cong., 1st Sess. 1165-1169. To use the 1949 savings clause as confirming the consistency, with the statute, of the Adminis-trator’s interpretation is to assume that very consistency in order to establish it.
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processors from the overtime requirements of the Fair Labor Standards Act in tacit recognition of the existing exemption of the processing farmers under the agricultural exemption.
In § 13 (a) (10),7 Congress similarly exempted from the wage and hour provisions of the Act all employees “within the area of production . . . engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market . . . .” (Italics supplied.) It is argued that, by failing to list sugar cane processing specifically in § 13 (a) (10), Congress implies that the general agricultural exemption is not applicable to sugar cane processing. No such conclusion is justified. Section 13 (a) (10) was added late in the legislative development of the bill, not to restrict existing exemptions, but to create further exemptions. It was added in order to exempt the activities of packers, ginners and others providing service anywhere “within the area of production.” If §13 (a) (10) had listed sugar cane processing, it would have extended the minimum wage exemption to independent processors throughout surrounding areas of production. To do so was entirely optional with Congress and its mere failure to do so implies no purpose, sub silentio, to reduce the scope of the agricultural exemption already extended, in positive and sweeping terms, in response to an insistent demand for the exemption of all farming operations.
Accordingly, while I concur in reversing the judgment of the Court of Appeals and in the application of the agricultural exemption to the extent that it is applied by this Court, I would remand the entire cause to the District Court with a direction to enter judgment in favor of the Waialua Agricultural Company in accordance with this opinion.
7 52 Stat. 1067, 29 U. S. C. §213 (a) (10).
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Syllabus.
349 U. S.
SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, v. UNITED STATES EX REL. ACCARDI.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 616. Argued April 22, 1955.—Decided May 23, 1955.
In a hearing granted pursuant to this Court’s judgment in 347 U. S. 260, Accardi sought to prove that denial of his application for suspension of deportation under § 19 (c) of the Immigration Act of 1917 was prejudged through issuance by the Attorney General of a confidential list of “unsavory characters,” including Accardi, and that, therefore, the Board of Immigration Appeals had not exercised its own discretion, as required by applicable regulations. After a full hearing, the District Court found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion,” and dismissed the writ of habeas corpus. Held: The judgment of the District Court is sustained. Pp. 281-284.
(a)	This Court’s opinion in 347 U. S. 260 meant no more than that Accardi’s allegations sufficiently charged “dictation” by the Attorney General and that Accardi was entitled to a hearing on the question whether the Board’s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General. P. 282.
(b)	The record fully supports the District Court’s conclusion that the Board’s decision represented the free and undictated decision of each member. Pp. 282-283.
(c)	In the face of the evidence, speculation on the effect of subconscious psychological pressures provides insufficient justification for rejecting the District Court’s finding as “clearly erroneous.” P. 283.
219 F. 2d 77, reversed.
Marvin E. Frankel argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff,
SHAUGHNESSY v. ACCARDI.
281
280	Opinion of the Court.
Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.
Jack Wasserman argued the cause and filed a brief for respondent.
Mr. Justice Clark delivered the opinion of the Court.
We are called upon in this case to remove ambiguities from a previous opinion which, while clear enough to the trial court, appears to have conveyed a triplicity of meaning to the Court of Appeals. A year ago Accardi was here contesting the dismissal of his habeas corpus petition in which he attacked the refusal of the Board of Immigration Appeals to grant his application for suspension of deportation. Accardi v. Shaughnessy, 347 U. S. 260 (1954). The sole foundation of his claim was that “the Attorney General [is doing] precisely what the regulations forbid him to do: dictating the Board’s decision.” * 347 U. S. 260, at 267. We remanded the petition to the trial court for a hearing on the question of “the Board’s alleged failure to exercise its own discretion, contrary to existing valid regulations.” It was alleged on information and belief that the Attorney General had prepared prior to the Board’s decision “a list of one hundred individuals whose deportation he sought . . .” as “unsavory characters”; that Accardi’s name was among the group; and that the “list . . . was circulated by the Department of Justice among all of its employees connected with the Immigration Service and the Board of Immigration Appeals” with the result that “since that time it has been impossible for [Accardi] to secure fair consideration of his
*Mr. Justice Jackson, dissenting, joined issue thus:
"We do not think that [the] validity [of the Board’s order] can be impeached by showing that [the Attorney General] overinfluenced members of his own staff whose opinion in any event would be only advisory.” 347 U. S., at 270.
282	OCTOBER TERM, 1954.
Opinion of the Court.	349 U. S.
case.” We concluded that, if Accardi could prove that the Board had not exercised its own discretion in the matter, he should receive “a new hearing before the Board without the burden of previous proscription by the list.”
On the remand, the District Court, after a full hearing, found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion . . .” and again dismissed the writ. The Court of Appeals reversed, one judge dissenting, 219 F. 2d 77. The opinion of the court based its conclusion on the ground that the “Attorney General’s statements [had] unconsciously influence[d] the Board members so that they felt obliged not to exercise their discretion and, without doing so, to decide against Accardi.” The chief judge, concurring in the result, thought that our prior opinion merely required Accardi to prove “that there was a list as alleged, that he was on it, and that this fact was known to the Board.” The dissenting judge, on the other hand, read our opinion as meaning “no more . . . than that [Accardi’s] allegations sufficiently charged ‘dictation’ by the Attorney General,” entitling Accardi to a hearing on the question of “whether the Board’s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General.” P. 90. He concluded that the finding of the trial judge was not clearly erroneous. We agree with the dissenting judge both as to the interpretation of our prior opinion and its application to the facts of this case.
The opinion of the court recognized that, before Accardi was entitled to another Board hearing, he had to prove that a majority of the Board not only knew of the “list” but were affected by it. However, the opinion concluded that the Board’s position that its judgment had not been affected by “the list” was incredible. We find nothing
SHAUGHNESSY v. ACCARDI.
283
280	Opinion of the Court.
incredible in the uncontradicted testimony produced before the trial judge through a number of witnesses including the Board members. The record shows that in fact there was no list, as such, and hence that one could not have been circulated among the members of the Board; that the fanfare of publicity complained of was in connection with the Attorney General’s “deportation program”; that this program was never publicly related to Accardi until after the Board’s decision; that only one Board member knew Accardi was covered by the program, while two others and the Chairman never had such knowledge until after their decision; that the fifth member asserted that he “may have known [of Accardi’s inclusion in the program] but . . . couldn’t say”; and that no person in the Department of Justice ever directly or indirectly approached any Board member as to the matter. It seems to us that the record fully supports the District Court’s conclusion that the Board’s decision represented the free and undictated decision of each member. Among the eight witnesses who gave testimony concerning the matter, was the Attorney General. He testified that there was no list; that his investigation “indicated that [Accardi] was a racketeer and that is the reason [he] moved to deport him”; that he “never at any time discussed this matter with any member of the [Board].” In the face of such evidence, we do not believe that speculation on the effect of subconscious psychological pressures provides sufficient justification for rejecting the District Court’s finding as clearly erroneous.
Accardi emphasizes the trial court’s finding that the Board had notice of the program and of his inclusion therein. This “notice,” at most, was given only to the calendar clerk of the Board so that the hearing of certain cases might be expedited. The testimony that it was not furnished to members of the Board or the Chairman is undisputed.
284
349 U. S.
OCTOBER TERM, 1954.
Black, J., dissenting.
We believe that Accardi has had the hearing required by our previous opinion and that he has failed to prove his case.
Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed.
Reversed and remanded.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Black, with whom Mr. Justice Frankfurter joins, dissenting.
There is disagreement here as there was in the Court of Appeals as to precisely what was meant by our former opinion and holding in this case. Accardi v. Shaughnessy, 347 U. S. 260. This is not surprising in view of ambiguity of language at its best. The Court gives our former opinion a different and in some respects a narrower meaning than I would. I think the Court’s interpretation deprives Accardi of a right which I thought our first opinion guaranteed him as far as possible under existing law—an opportunity to have his rights determined by a tribunal which had not already made up its mind based on anonymous information. Consideration of this basic issue requires a more extensive reference to the record in this and the prior case than the Court has found it necessary to give. Accardi’s rights cannot be fairly determined on broad legal generalizations or by merely interpreting our former opinion. If that opinion means no more than the Court indicates then Accardi’s right to have suspension of his deportation determined without pre judgment by the Attorney General has never been passed on.
Accardi, born in Italy, came to this country in 1932, when he was 21 years old. He entered the United States
SHAUGHNESSY v. ACCARDI.
285
280	Black, J., dissenting.
from Canada, intending to remain here permanently. But he had no immigration visa. Under the law this made him a deportable alien. Proceedings to deport him were begun in 1947. He married in 1949 and has one child. His wife and child depend on him for support. Because of his original illegal entry, Accardi was ordered deported.
The basis of this controversy is not the original order of deportation but is Accardi’s application for suspension of that order under § 19 (c) of the Immigration Act of 1917.1 That section provides that under certain circumstances the Attorney General “may” suspend deportation of an alien upon proof that he has had good moral character for the preceding five years. The Act does not require the Attorney General to hold hearings or make findings in suspension cases. But regulations properly promulgated by the Attorney General do provide for hearings, and as we held in the prior Accardi case those regulations have the effect of law. In other words, our holding was that the Attorney General can no more deny the suspension without hearings prescribed by the regulations than he could if such hearings had been prescribed by Congress itself. And as we explained in our prior opinion, the law through the regulations now provides for aliens like Accardi to obtain “decisions at three separate administrative levels below the Attorney General—hearing officer, Commissioner, and the Board of Immigration Appeals.” 347 U. S., at 266. The Board is appointed by the Attorney General and can be removed by him whenever he pleases.
The habeas corpus petition considered in this case and the prior one alleged that the deportation order and the order denying favorable discretionary relief were both null and void, violated due process and should be set
1 62 Stat. 1206, 8 U. S. C. § 155 (c).
286
349 U. S.
OCTOBER TERM, 1954.
Black, J., dissenting.
aside. The two chief grounds alleged were: (1) The decision to deny favorable discretionary relief to Accardi “was pre-judged by the Attorney General on October 2, 1952,” which was six months before the Board of Immigration Appeals finally acted on Accardi’s application for suspension; (2) The Attorney General had so widely publicized and circulated statements about his plan to deport Accardi that it was impossible for the Attorney General’s subordinates to grant fair consideration to Accardi’s application for suspension of deportation. An exhibit attached to the petition showed that the Attorney General on October 2, 1952, publicized that “the Justice Department hopes to strip citizenship rights from 100 foreign-born racketeers and deport them” and that Accardi was one of these alleged racketeers. Other exhibits showed that after the Board of Immigration Appeals decision against Accardi in April, 1953, it was announced by the Department of Justice that the Board’s action was taken “under the current denaturalization and deportation program of Attorney General Brownell against top racketeers and subversives.” The District Court in the original proceedings refused to permit Accardi to offer evidence to prove that the Attorney General had prejudged his case and that the circumstances were such that the Attorney General’s subordinates could not give a fair trial. The District Court then summarily dismissed the case and the Court of Appeals, one judge dissenting, affirmed. 206 F. 2d 897. It was that case we reversed in our prior opinion the meaning of which is now in controversy.
When the case reached us we said in part as follows: “The petition alleges that the Attorney General included the name of petitioner in a confidential list of ‘unsavory characters’ whom he wanted deported; public announcements clearly revealed that the Attorney General did not regard the listing as a mere
SHAUGHNESSY v. ACCARDI.
287
280	Black, J., dissenting.
preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General ‘planned to deport.’ And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. In fact, the Assistant District Attorney characterized it as the ‘Attorney General’s proscribed list of alien deportees.’ To be sure, the petition does not allege that the ‘Attorney General ordered the Board to deny discretionary relief to the listed aliens.’ It would be naive to expect such a heavy-handed way of doing things.” 347 U. S., at 267.
Pointing out that “the allegations are quite sufficient” we went on to say that
“If petitioner can prove the allegation, he should receive a new hearing before the Board without the burden of previous proscription by the list. After the recall or cancellation of the list, the Board must rule out any consideration thereof and in arriving at its decision exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right. Of course, he may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try.” Id., at 268.
I think that petitioner proved beyond all peradventure that the Attorney General did “prejudge” Accardi’s case as alleged. Under our former opinion this was enough to justify relief. But this crucial question was not passed on at all by the District Court in this case. It went on the theory that we held that petitioner was entitled to relief only if he could establish that the Board of Immigration Appeals felt itself “dictated to” by the Attorney General so that it could not give a recommendation based on its own discretion. In my view this was an unwar-
288
349 U. S.
OCTOBER TERM, 1954.
Black, J., dissenting.
ranted narrowing of the issues raised. But the Court today seems to accept this as the full scope of our prior holding. Given that narrow scope, our holding fell far short of deciding the issues which were actually presented and were due to be decided if, as we said, Accardi was entitled to “a fair hearing, which is nothing more than what the regulation accords petitioner as a right.”
In the final analysis under both statute and regulations the discretion to be exercised is that of the Attorney General. Due to the regulations, however, that discretion can no longer be exercised arbitrarily or without hearings. A fair hearing by an impartial board has been established as a prerequisite to final exercise of discretion by the Attorney General. Failure to await these required hearings and findings before deciding to deport is therefore a violation of the very regulations the Attorney General has prescribed under authority of law. That the suspension of deportation of Accardi was prejudged long before the Board of Immigration Appeals made its decision is established by the undisputed testimony of Hon. James P. McGranery who was the Attorney General on October 2, 1952. He testified that he did have a planned program at that time for the deportation of selected aliens. Shortly thereafter he gave out a statement that the arrest of a certain named alien “was another step in his denaturalization and deportation program aimed at ridding the Nation of undesirable aliens engaged in racketeering and other criminal activities.” The Attorney General testified that this statement accurately reflected his program. He also testified that “Joseph Accardi’s case was one of the earliest cases submitted, and his case was already on appeal at the time .... But my investigation and the record of Accardi proved him, to my satisfaction, to be a racketeer. That is why I put him on there.” In testifying about the beginning of his deportation program, the Attorney General said, “I had a conference very early in my adminis-
SHAUGHNESSY v. ACC ARDI.
289
280	Black, J., dissenting.
tration with John Edgar Hoover. I asked him to prepare for me, after combing his records, names of persons who were engaged in subversive activities and subject to deportation, . . . racketeers and undesirables who were here in the country and subject to deportation . . . .” To carry out his program the Attorney General required a “progress report” to be submitted to him every day concerning the activities of the previous day. Accardi, he said, had been defined by him as a racketeer because of information received from the FBI, and that was the reason he “moved to deport him.” The record shows that Attorney General Brownell continued to carry out the particular deportation program Attorney General Mc-Granery had begun. On April 3, the day the Board of Immigration Appeals decided against Accardi, Attorney General Brownell issued a press release announcing that “Accardi, known as a New Jersey racketeer, is a native of Sicily, Italy, and brother of Samuel Accardi against whom denaturalization proceedings are pending in the Federal court at Newark.” Later the Attorney General in a speech referred to Accardi as an “undesirable,” and an Assistant Attorney General in a speech listed Accardi among a number of so-called “nationally known hoodlums who are the objects of the program.”
It is significant that on the very day Attorney General Brownell referred to Accardi as a “racketeer,” the Board of Immigration Appeals found as a fact from evidence that he was “considered a person of good moral character.” Moreover, there was no evidence before the Board to show that Accardi was or ever had been a “racketeer.” The record therefore establishes that the Attorney General not only prejudged Accardi’s case against him but evidently did so on the basis of anonymous information that he was a racketeer. It may be as Judge Frank suggested that in so characterizing Accardi the Attorney General confused him with someone else. However this
290
349 U.S.
OCTOBER TERM, 1954.
Black, J., dissenting.
may be, the record leaves no doubt that the Attorney General’s office decided to deport Accardi on the ground that he was a “racketeer” and that this characterization was continued by the Attorney General long after the Board had refused to suspend Accardi’s deportation although finding that he had a good moral character. The Attorney General’s pre judgment deprived Accardi of the benefit of the Attorney General’s discretion fairly exercised after a hearing as the law prescribes. For this reason the case should be affirmed.
There are also other reasons why I think this judgment should be affirmed and the case sent back to the Board of Immigration Appeals to carry out the directions of the Court of Appeals. Whatever this Court’s prior opinion may have meant, the case should not go off on the District Court’s finding of fact that the Board of Immigration Appeals actually exercised its own untrammeled discretion despite what the Attorney General said or did. That finding rests almost entirely on testimony given by the Board members themselves denying that they were influenced by the Attorney General’s planned program to deport certain named aliens. I deem it bad practice to subject administrative officers, acting in a quasi-judicial capacity, to a probe of the mental processes which led them to decide as they did. That is what the Court sanctions here. We have already decided that this practice is no more desirable than that of probing the minds of judges to try to fathom the reasons which prompt their decisions. United States v. Morgan, 313 U. S. 409, 421-422.
Whatever the Board members’ state of mind may have been, I think the Attorney General’s publications placed the Board of Immigration Appeals, the members of which hold office completely at his will, in a position that no judicial agency should be. Copies of newspaper interviews and speeches made by two Attorneys General and
SHAUGHNESSY v. ACCARDI.
291
280	Black, J., dissenting.
an assistant, which appear in the record, proclaim a strong desire and purpose to carry out a program under which Accardi and a large group of others named from time to time were to be stripped of citizenship and deported from this country. The District Court found that notice of this program was given to the Board. This Court, however, distinguishes between information given to the Secretary of the Board and to the Board itself. But a program of this kind, so well-publicized that it went to every part of the United States and to various political gatherings, could hardly be expected not to permeate the Board of Immigration Appeals working in the Department of Justice in Washington. Orders and proclamations of the Attorney General, head of that Department, cannot be thought to have so little influence or effect in his Department. It is true that the statements and program of the Attorney General are now referred to as intended to do no more than “expedite” action by the Attorney General’s subordinates, including the Board of Immigration Appeals. But this program according to the evidence occupied the most prominent place in the Department’s activities. Daily reports had to be made to the Department by those men who carried on the program. They were selected because of their outstanding ability and aggressiveness. So what we have is not merely a finding by the District Court that the Attorney General’s program was sent to the Board. We have in addition a showing of departmental emphasis on that program which makes it impossible to believe that the subordinates were oblivious to the Attorney General’s great interest in deporting the particular men whose names appeared on his “proscribed list” or “program” or “statistical data” as it was variously termed by government witnesses. The requirement for fair administration of justice is not satisfied by a mere finding based on Board members’ testimony that this particular Board at this particular time was strong enough
340907 0 - 55 - 25
292
349 U. S.
OCTOBER TERM, 1954.
Black, J., dissenting.
to resist the plain implications of the Attorney General’s strong program for deportation.
The inevitability of what was to happen to Accardi after his name was put on the “Attorney General’s proscribed list of alien deportees” is rather strongly indicated by the fact that not one of these aliens has ever been granted final discretionary relief allowing him to remain in this country. In an effort to show that aliens on the list are not barred from discretionary relief, the Government refers to four specific cases. In two of those cases, however, the aliens were not deportable under existing law and thus the Board did not reach the question of discretionary relief. In the third case the alien was allowed to leave voluntarily instead of being forcibly deported as he otherwise would have been. In the fourth case the Board did actually recommend that deportation be suspended. But that is not the full picture. The hearing officer who had recommended the alien’s immediate deportation was investigated after the Board’s recommendation of suspension. The Department of Justice concluded that he had been derelict in not fully developing “important derogatory information” concerning the alien and announced that he had been relieved of duty and that disciplinary action would be taken against him.2 At the instance of the Department, as the Government’s brief points out, the Board granted a rehearing on the alien’s right to suspension which appears to be still pending. Thus the Attorney General cannot point to a single case in which one of the proscribed aliens has been finally granted a discretionary suspension.
It is my opinion that petitioner proved that the Attorney General’s publicized program made it impossible to expect his subordinates to give Accardi’s application
2 This information is contained in a Department of Justice press release dated April 6, 1955, which appears in Accardi’s supplemental brief. The Department has not denied this press release.
SHAUGHNESSY v. ACCARDI.
293
280	Black, J., dissenting.
that fair consideration which the law requires. The use of administrative bodies as agencies of justice under law is seriously weakened by proceedings such as these. We should adhere to the spirit of our first opinion and require that the Board hold a fair hearing in Accardi’s case after “the recall or cancellation” of this “list” as the Court of Appeals ordered.3 The implications of the Attorney General’s program and statements must be repudiated before this Board can be considered the kind of free and impartial tribunal which our system of justice demands.
3 The Court of Appeals said:
“10. The Attorney General, on April 23, 1954, a few days after the Supreme Court’s decision came down, issued instructions that the Board should not be influenced in its decisions by his 'program’ but, in each case, should exercise independent judgment.
“11. Accardi must be released from custody unless, within a reasonable time, the Board, under those new instructions, holds a new hearing and renders a new decision on his application for discretionary relief. Although the Board has already found that he has a good moral character, he should have the opportunity at the new hearing to offer evidence that he is not and never has been a racketeer. For it may be that, in so characterizing Accardi, the Attorney General has confused him with someone else of the same name.” 219 F. 2d 77, 83.
294
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA et al.
NO 1. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS.*
Reargued on the question of relief April 11-14, 1955—Opinion and judgments announced May 31, 1955.
1.	Racial discrimination in public education is unconstitutional, 347 U. S. 483, 497, and all provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle. P. 298.
2.	The judgments below (except that in the Delaware case) are reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit the parties to these cases to public schools on a racially nondisc riminatory basis with all deliberate speed. P. 301.
(a)	School authorities have the primary responsibility for elucidating, assessing and solving the varied local school problems which may require solution in fully implementing the governing constitutional principles. P. 299.
(b)	Courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. P. 299.
(c)	Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. P. 299.
(d)	In fashioning and effectuating the decrees, the courts will be guided by equitable principles—characterized by a practical flexibility in shaping remedies and a facility for adjusting and reconciling public and private needs. P. 300.
*Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United States District Court for the Eastern District of South Carolina; No. 3, Davis et al. v. County School Board of Prince Edward County, Virginia, et al., on appeal from the United States District Court for the Eastern District of Virginia; No. 4, Bolling et al. v. Sharpe et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit; and No. 5, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of Delaware.
BROWN v. BOARD OF EDUCATION. 295
294	Syllabus.
(e)	At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. P. 300.
(f)	Courts of equity may properly take into account the public interest in the elimination in a systematic and effective manner of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles enunciated in 347 U. S. 483, 497; but the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. P. 300.
(g)	While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with the ruling of this Court. P. 300.
(h)	Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. P. 300.
(i)	The burden rests on the defendants to establish that additional time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. P. 300.
(j)	The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. Pp. 300-301.
(k)	The courts will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. P. 301.
(1)	During the period of transition, the courts will retain jurisdiction of these cases. P. 301.
3.	The judgment in the Delaware case, ordering the immediate admission of the plaintiffs to schools previously attended only by white children, is affirmed on the basis of the principles stated by this Court in its opinion, 347 U. S. 483; but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in the light of this opinion. P. 301.
98 F. Supp. 797, 103 F. Supp. 920, 103 F. Supp. 337 and judgment in No. 4, reversed and remanded.
91 A. 2d 137, affirmed and remanded.
296
349 U.S.
OCTOBER TERM, 1954.
Counsel for Parties.
Robert L. Carter argued the cause for appellants in No. 1. Spottswood W. Robinson, III, argued the causes for appellants in Nos. 2 and 3. George E. C. Hayes and James M. Nabrit, Jr. argued the cause for petitioners in No. 4. Louis L. Redding argued the cause for respondents in No. 5. Thurgood Marshall argued the causes for appellants in Nos. 1, 2 and 3, petitioners in No. 4 and respondents in No. 5.
On the briefs were Harold Boulware, Robert L. Carter, Jack Greenberg, Oliver W. Hill, Thurgood Marshall, Louis L. Redding, Spottswood W. Robinson, III, Charles S. Scott, William T. Coleman, Jr., Charles T. Duncan, George E. C. Hayes, Loren Miller, William R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Louis H. Pollak and Frank D. Reeves for appellants in Nos. 1, 2 and 3, and respondents in No: 5; and George E. C. Hayes, James M. Nabrit, Jr., George M. Johnson, Charles W. Quick, Herbert 0. Reid, Thurgood Marshall and Robert L. Carter for petitioners in No. 4.
Harold R. Fatzer, Attorney General of Kansas, argued the cause for appellees in No. 1. With him on the brief was Paul E. Wilson, Assistant Attorney General. Peter F. Caldwell filed a brief for the Board of Education of Topeka, Kansas, appellee.
S. E. Rogers and Robert McC. Figg, Jr. argued the cause and filed a brief for appellees in No. 2.
J. Lindsay Almond, Jr., Attorney General of Virginia, and Archibald G. Robertson argued the cause for appellees in No. 3. With them on the brief were Henry T. Wickham, Special Assistant to the Attorney General, T. Justin Moore, John W. Riely and T. Justin Moore, Jr.
Milton D. Korman argued the cause for respondents in No. 4. With him on the brief were Vernon E. West, Chester H. Gray and Lyman J. Umstead.
BROWN v. BOARD OF EDUCATION. 297
294	Counsel for Parties.
Joseph Donald Craven, Attorney General of Delaware, argued the cause for petitioners in No. 5. On the brief were H. Albert Young, then Attorney General, Clarence W. Taylor, Deputy Attorney General, and Andrew D. Christie, Special Deputy to the Attorney General.
In response to the Court’s invitation, 347 U. S. 483, 495-496, Solicitor General Sobeloff participated in the oral argument for the United States. With him on the brief were Attorney General Brownell, Assistant Attorney General Rankin, Philip Elman, Ralph S. Spritzer and Alan S. Rosenthal.
By invitation of the Court, 347 U. S. 483, 496, the following State officials presented their views orally as amici curiae: Thomas J. Gentry, Attorney General of Arkansas, with whom on the brief were James L. Sloan, Assistant Attorney General, and Richard B. McCulloch, Special Assistant Attorney General. Richard W. Ervin, Attorney General of Florida, and Ralph E. Odum, Assistant Attorney General, both of whom were also on a brief. C. Ferdinand Sybert, Attorney General of Maryland, with whom on the brief were Edward D. E. Rollins, then Attorney General, W. Giles Parker, Assistant Attorney General, and James H. Norris, Jr., Special Assistant Attorney General. I. Beverly Lake, Assistant Attorney General of North Carolina, with whom on the brief were Harry McMullan, Attorney General, and T. Wade Bruton, Ralph Moody and Claude L. Love, Assistant Attorneys General. Mac Q. Williamson, Attorney General of Oklahoma, who also filed a brief. John Ben Shepperd, Attorney General of Texas, and Burnell Waldrep, Assistant Attorney General, with whom on the brief were Billy E. Lee, J. A. Amis, Jr., L. P. Lollar, J. Fred Jones, John Davenport, John Reeves and Will Davis.
Phineas Indritz filed a brief for the American Veterans Committee, Inc., as amicus curiae.
298	OCTOBER TERM, 1954.
Opinion of the Court.	349 U.S.
Mr. Chief Justice Warren delivered the opinion of the Court.
These cases were decided on May 17, 1954. The opinions of that date,1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.
Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.2 In view of the nationwide importance of the decision, we invited the Attorney General of the United
1 347 U. S. 483; 347 U. S. 497.
2 Further argument was requested on the following questions, 347 U. S. 483, 495-496, n. 13, previously propounded by the Court:
“4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment
“(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or
“(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?
“5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(6),
“(a) should this Court formulate detailed decrees in these cases;
“(b) if so, what specific issues should the decrees reach;
“ (c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;
“(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”
BROWN v. BOARD OF EDUCATION. 299
294	Opinion of the Court.
States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.
These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief.
Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.3
3 The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U. S. C. §§ 2281 and 2284. These cases will accordingly be remanded to those three-judge courts. See Briggs v. Elliott, 342 U. S. 350.
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In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies 4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools
4 See Alexander v. Hillman, 296 U. S. 222, 239.
5 See Hecht Co. v. Bowles, 321 U. S. 321, 329-330.
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on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.
The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.
It is so ordered.
302
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Syllabus.
349 U. S.
MARCELLO v. BONDS, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION
SERVICE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 145. Argued April 21-22, 1955.—Decided May 31, 1955.
After a hearing pursuant to § 242 (b) of the Immigration and Nationality Act of 1952, petitioner, an alien who had been convicted in 1938 of violation of the Marihuana Tax Act, was ordered deported. Section 241 (a) (11) of the 1952 Act makes such conviction at any time ground for deportation, and § 241 (d) provides that the deportation provisions of § 241 (a) shall apply even though the facts giving rise to the alien’s deportability occurred prior to the date of enactment of the 1952 Act. The validity of the deportation order was challenged by petitioner in a habeas corpus proceeding. Held:
1.	The Immigration and Nationality Act of 1952 expressly supersedes the hearing provisions of the Administrative Procedure Act. Pp. 305-310.
2.	The fact that the special inquiry officer was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions did not so strip the hearing of fairness and impartiality as to make the procedure violative of the Due Process Clause of the Fifth Amendment. P.311.
3.	Petitioner failed to support his claim that, within the meaning of this Court’s decisions in the Accardi cases, his case was prejudged by the Board of Immigration Appeals and by the special inquiry officer. Pp. 311-314.
4.	The prohibition of the ex post facto clause of the Constitution does not apply to deportation of aliens. Galvan v. Press, 347 U. S. 522; Harisiades v. Shaughnessy, 342 U. S. 580. P. 314.
212 F. 2d 830, affirmed.
Jack Wasserman and David Carliner argued the cause and filed a brief for petitioner.
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Robert W. Ginnane argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Maurice A. Roberts and L. Paul Winings.
Mr. Justice Clark delivered the opinion of the Court.
Petitioner, a native of Tunis, Africa, was ordered deported after a hearing pursuant to § 242 (b) of the Immigration and Nationality Act of 1952, 66 Stat. 209, 8 U. S. C. § 1252 (b). It was found that he had been convicted in 1938 of violation of the Marihuana Tax Act, 26 U. S. C. § 2591, and sentenced to imprisonment for one year. Section 241 (a) (11) of the 1952 immigration law 1 makes such conviction at any time ground for deportation, and § 241 (d) 2 provides that the deportation provisions of § 241 (a) shall apply even though the facts giving rise to the alien’s deportability occurred prior to the date of enactment of the 1952 Act.
At the hearing before a special inquiry officer of the Immigration and Naturalization Service, petitioner did not dispute the fact of his conviction. He did, however, object to the proceedings on the ground that they violated due process and the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq. The hearing officer overruled these objections. Petitioner also contended that the ex post facto clause of the Constitution precluded the retroactive application of the 1952 law to his case. This contention too was rejected by the hearing officer. Petitioner and his counsel were advised of their right to apply to the Attorney General for the discretionary relief of suspension of deportation under § 244 (a)(5) of the Act.3 At first they declined to do so, but' subsequently
^6 Stat. 204, 8 U. S. C. § 1251 (a) (11).
2 66 Stat. 208, 8 U. S. C. § 1251 (d).
3 66 Stat. 214, 8 U. S. C. § 1254 (a)(5).
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they moved to reopen the hearing to apply for such relief. The special inquiry officer denied the motion. On appeal, the Board of Immigration Appeals affirmed the order of deportation. Though no formal application for suspension of deportation under § 244 (a) (5) had been filed, the Board considered whether such relief was merited but exercised its discretion against the remission.
Petitioner then brought this action for a writ of habeas corpus, challenging the validity of the deportation order on the grounds, inter alia: (1) that the hearing under § 242 (b) of the Act failed to comply with the requirements of the Administrative Procedure Act in that the special inquiry officer was under the supervision and control of officials in the Immigration Service who performed investigative and prosecuting functions; (2) that § 242 (b) violated the Due Process Clause of the Fifth Amendment because it failed to provide for a fair and impartial hearing; (3) that on the date of petitioner’s arrest the Attorney General made a public statement, which “was bound to have great effect upon the special inquiry officer,” to the effect that petitioner was an undesirable citizen for whose deportation the proceedings were “specially designed,” and, further, that in 1952 the Attorney General “prepared a list of 152 persons [including petitioner] whom he desired to deport”; and (4) that the retroactive application of § 241 (a) (11) was unconstitutional as an ex post facto law.
The Government’s return to the writ alleged that petitioner’s deportation had been conducted in accordance with the Constitution, laws and regulations of the United States. No evidence was introduced by either side save the official Immigration Service record of petitioner’s deportation proceedings. The District Court held the deportation order valid and discharged the writ. 113 F. Supp. 22. The Court of Appeals affirmed. 212 F. 2d 830. Petitioner pursues his four basic objections in this
MARCELLO v. BONDS.
305
302	Opinion of the Court.
Court, certiorari having been granted to resolve issues having a significant bearing on the administration of our immigration laws. 348 U. S. 805.
Applicability of the Administrative Procedure Act.
Petitioner concedes that § 242 (b) of the Immigration Act, authorizing the appointment of a “special inquiry officer” to preside at the deportation proceedings, does not conflict with the Administrative Procedure Act, since § 7 (a) of that Act excepts from its terms officers specially provided for or designated pursuant to other statutes.4 He insists, however, that there are several significant discrepancies between the Acts, and claims that in cases of variance the provisions of the Administrative Procedure Act must govern unless those of the Immigration Act “shall . . . expressly” negate their application. Administrative Procedure Act, § 12. The discrepancies relied on stem from the “separation of functions” provision of § 5 (c) of the Administrative Procedure Act. To the extent here material, this section separates investigative and prosecuting functions from those of adjudication, expressly providing that hearing officers shall not be responsible to or under the supervision of those engaged in investigation and prosecution. The section also prohibits the hearing officer from participating or advising in the decision of a case, or one factually related thereto, in which he has performed investigative or prosecuting functions. Section 242 (b) of the Immigration Act, on the other hand, permits the “special inquiry officer” to take the dual role of prosecutor and hearing officer—presenting evidence and interrogating witnesses—and prohibits him only from hearing cases which he has taken some part in inves-
4 Section 7 (a) of the Administrative Procedure Act directs that, in general, administrative hearings shall be held before hearing officers appointed pursuant to § 11 of the Act.
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tigating or prosecuting (other than in the permitted dual capacity). An alternative method is permitted by § 242 (b), however, under which an additional immigration officer presents the evidence while the special inquiry officer presides. See 8 CFR § 242.53. Special inquiry officers are subject to such supervision as the Attorney General prescribes, 66 Stat. 171, 8 U. S. C. § 1101 (b)(4), and at present they are subject to the supervision of district directors of the immigration districts to which they are assigned, as well as higher Service officials, all with enforcement responsibilities of the type proscribed by § 5 (c) of the Administrative Procedure Act.
Under the allegations here made, the single attack of the petitioner pertains to the supervision of the special inquiry officer by the investigative and prosecuting officials of the Immigration Service. The alternative procedure of § 242 (b) was employed in this case, so the presiding officer did not undertake the functions of prosecutor; and there is no allegation that he engaged in investigative or prosecuting functions in this or any factually related case. For the sake of clarity, however, we shall consider all of the differences in the hearing provisions of the two Acts in determining whether the Administrative Procedure Act is to govern.
The applicability of the Administrative Procedure Act to deportation proceedings under the Immigration Act of 1917 was considered by this Court in Wong Yang Sung v. McGrath, 339 U. S. 33 (1950). We there held, contrary to the prevailing interpretation and practice of the Department of Justice, that deportation hearings were subject to the Act. Six months later, Congress provided in the Supplemental Appropriation Act of 1951, 64 Stat. 1048, that proceedings directed toward the exclusion or expulsion of aliens should not be governed by § § 5, 7 and 8 of the Administrative Procedure Act. The issue here presented is whether the Congress reversed itself in the
MARCELLO v. BONDS.
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1952 Immigration Act and in effect reinstated the Sung case by making the hearing provisions of the Administrative Procedure Act directly applicable to deportation proceedings. A comparison of the pertinent provisions of the two statutes is perhaps the strongest indication that the Congress had no such intention.
1.	Section 242 (b) of the Immigration Act begins by enumerating the functions of the special inquiry officer, that he shall administer oaths, receive evidence, etc. A similar though more extensive and detailed provision appears in § 7 (b) of the Administrative Procedure Act, but of course this section makes no mention of functions stemming from the special inquiry officer’s dual role as prosecutor and judge.
2.	Section 242 (b) then directs that a determination of deportability be made only upon the record of a proceeding at which the alien had a reasonable opportunity to be present. A similar direction as to the record appears in § 7 (d) of the Administrative Procedure Act, and as to the party’s personal appearance in § 6 (a).
3.	Section 242 (b) then deals with matters peculiar to deportation proceedings, which have no direct analogues in the Administrative Procedure Act: safeguards to be established to protect mentally incompetent aliens; the right of the inquiry officer to proceed if the alien deliberately absents himself; the option to pursue the alternative procedure, described above, in which one official prosecutes and another decides.
4.	Next in § 242 (b) is the limitation already noted on the special inquiry officer’s sitting in the same case in which he has also engaged in investigative or prosecuting functions. The more restrictive analogue in § 5 (c) of the Administrative Procedure Act has also been presented.
5.	Section 242 (b) then sets forth various requirements which are to be included in regulations governing deportation proceedings before the special inquiry officer. The
340907 0-55-26
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OCTOBER TERM, 1954.
Opinion of the Court.
first of these gives the alien the right to reasonable notice of the charges against him and of the time and place at which the proceedings shall be held. A similar requirement appears in § 5 (a) of the Administrative Procedure Act.
6.	The second provision which § 242 (b) requires to be included in the regulations is the privilege of the alien to be represented by counsel of his own choosing. Section 6 (a) of the Administrative Procedure Act bestows a similar privilege on any person compelled to appear in person before the agency.
7.	The regulations under § 242 (b) must also provide that the alien be given a reasonable opportunity to present and examine evidence and to cross-examine witnesses. The same ground is covered in § 7 (c) of the Administrative Procedure Act.
8.	The regulations promulgated under § 242 (b) must require that decisions of deportability be based upon reasonable, substantial and probative evidence. To the same effect is § 7 (c) of the Administrative Procedure Act.
9.	Finally, in addition to the requirements of § 242 (b), there is the direction of § 101 (b) (4) of the Immigration Act that the special inquiry officer shall be subject to such supervision as the Attorney General shall prescribe. This covers the same question as the portion of § 5 (c) of the Administrative Procedure Act dealing with the supervision and control of hearing officers.
From the Immigration Act’s detailed coverage of the same subject matter dealt with in the hearing provisions of the Administrative Procedure Act, it is clear that Congress was setting up a specialized administrative procedure applicable to deportation hearings, drawing liberally on the analogous provisions of the Administrative Procedure Act and adapting them to the particular needs of the deportation process. The same legislators, Senator McCarran and Congressman Walter, sponsored both the
MARCELLO v. BONDS.
309
302	Opinion of the Court.
Administrative Procedure Act and the Immigration Act, and the framework of the latter indicates clearly that the Administrative Procedure Act was being used as a model. But it was intended only as a model, and when in this very particularized adaptation there was a departure from the Administrative Procedure Act—based on novel features in the deportation process—surely it was the intention of the Congress to have the deviation apply and not the general model. Were the courts to ignore these provisions and look only to the Administrative Procedure Act, the painstaking efforts detailed above would be completely meaningless. Congress could have accomplished as much simply by stating that there should be a hearing to determine the question of deportability.
Section 242 (b) expressly states: “The procedure [herein prescribed] shall be the sole and exclusive procedure for determining the deportability of an alien under this section.” That this clear and categorical direction was meant to exclude the application of the Administrative Procedure Act is amply demonstrated by the legislative history of the Immigration Act. The original bills included statements to the effect that the § 242 (b) procedures were to be exclusive, “[notwithstanding any other law, including the [Administrative Procedure Act].” S. 3455, 81st Cong., 2d Sess.; S. 716, 82d Cong., 1st Sess.; H. R. 2379, 82d Cong., 1st Sess. The “notwithstanding” clause was dropped in later versions of the Act and did not appear in the bills reported out of committee or in the statute as finally enacted. S. 2055, 82d Cong. ; H. R. 5678, 82d Cong.; S. 2550, 82d Cong. The deletion is nowhere explained, but it is possible that the phrase was considered unnecessary—and perhaps inappropriate as a description—as § 242 (b) became more detailed, encompassing in its particularization the greater part of the Administrative Procedure Act’s hearing provisions. In the Senate Report accompanying the revised bill, it is
310
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Opinion of the Court.
stated that § 242 (b) sets up special procedures for deportation proceedings, that these are made exclusive, and that the exemption from the Administrative Procedure Act in the Supplemental Appropriation Act of 1951 is repealed because it is “no longer necessary.” S. Rep. No. 1137, 82d Cong., 2d Sess., p. 28. The House Report is to the same effect, stating that the prescribed deportation proceedings shall be the sole and exclusive procedure, “notwithstanding the provisions of any other law.” H. R. Rep. No. 1365, 82d Cong., 2d Sess., p. 58. Throughout the debates it is made clear that the Administrative Procedure Act does not apply directly, but that its provisions have been specially adapted to meet the needs of the deportation process. See particularly the detailed statement of Senator McCarran, 98 Cong. Rec. 5625-5626, wherein he recognizes a departure from the “dualexaminer provisions” of the Administrative Procedure Act, the very section here in issue.
Exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed in view of the statement in § 12 of the Act that modifications must be express, cf. Shaughnessy n. Pedreiro, 349 U. S. 48. But we cannot ignore the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act.
MARCELLO v. BONDS.
311
302	Opinion of the Court.
The Hearing Procedures and Due Process.
As noted above, the only complaint which petitioner can urge concerning the hearing procedures in this case is the objection that the special inquiry officer was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions. Petitioner would have us hold that the presence of this relationship so strips the hearing of fairness and impartiality as to make the procedure violative of due process. The contention is without substance when considered against the long-standing practice in deportation proceedings, judicially approved in numerous decisions in the federal courts, and against the special considerations applicable to deportation which the Congress may take into account in exercising its particularly broad discretion in immigration matters.
The Claim of Prejudgment.
Our opinions in the Accardi cases stand for the proposition that the Attorney General cannot, under present regulations, dictate the actions of the Board of Immigration Appeals. Accardi v. Shaughnessy, 347 U. S. 260; Shaughnessy v. Accardi, 349 U. S. 280. Petitioner alleges that his case was prejudged within the meaning of these decisions because on the day of his arrest for deportation the Attorney General “announced in a public statement5 both in Washington and in New Orleans that
5 Petitioner introduced clippings appearing in New Orleans newspapers relating to the statement. While the press release of the Attorney General was not put in evidence, it read as follows:
“Attorney General James P. McGranery announced today that Carlos Marcello of Miami, Florida, and Jefferson Parish, Louisiana, has been arrested on a deportation warrant by the Immigration and Naturalization Service.
“The arrest in New Orleans was the first major deportation move undertaken since the new Immigration and Nationality Act became
312
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Opinion of the Court.
[petitioner] was an undesirable citizen and had been guilty of many crimes, and that the proceedings were specially designed to deport petitioner,” and that “such publicity was bound to have great effect upon the special inquiry officer.” He alleged, further, that “the Attorney General some time in 1952 prepared a list of 152 persons whom he desired to deport, and that [his] name was included on this list.”
Considering first the alleged list, it is clear that petitioner has not made out a case of pre judgment. He did not allege that either the inquiry officer or the Board of Immigration Appeals had seen the list, had known of its existence, or had been influenced in their decisions by the inclusion of petitioner’s name thereon. In argument before the Board, petitioner stated through counsel that he had “the feeling—and it’s a feeling that’s based upon
effective December 24, 1952. The action was another step in the Attorney General’s program of denaturalization and/or deportation of undesirable persons of foreign birth who are engaged in racketeering or other criminal activities.
“Marcello, born February 6, 1910, in Tunis, Africa, entered the United States for permanent residence October 7, 1910, at New Orleans.
“He allegedly is engaged in large-scale slot machine operations and other gambling activities in Louisiana.
“The deportation warrant was based on his conviction in 1938 for violation of the Marijuana Act. Such a conviction is a deportable offense under the new Immigration and Nationality Act.
“The action follows lengthy investigations by both the Federal Bureau of Investigation and the Immigration and Naturalization Service. His conviction under the Marijuana Act was one of only two in his checkered career. The other case in which he was convicted was under Louisiana State law, the conviction being for assault and robbery, and on May 13, 1930, he was sentenced to serve a term of 9 to 14 years in the Louisiana State Penitentiary. The Governor of Louisiana gave him a full pardon for this crime July 16, 1935.
“Marcello served a year and a day after his conviction under the Marijuana Act.”
MARCELLO v. BONDS.
313
302	Opinion of the Court.
evidence which we will supply—that the real basis for the denial of suspension here was the fact that Marcello was one of these hundred whom the Attorney General had named . . . .” No evidence of this was forthcoming. As to petitioner’s charges concerning the Attorney General’s “list,” the record is completely barren.
Nor does petitioner fare better in seeking to base prejudgment on the unfavorable publicity accompanying his arrest. He introduced newspaper clippings into evidence to show the adverse local publicity and alleged that this publicity must have had a “great effect” upon the special inquiry officer. But the record indicates clearly that petitioner’s case could not possibly have been prejudiced in the hearing before the inquiry officer. On the question of petitioner’s deportability, the sole issue decided by him, the hearing officer merely applied the statute to the undisputed facts. Petitioner admitted that he was deportable under the Immigration Act of 1952 if the Act could constitutionally base deportation on his 1938 marihuana conviction. And the hearing officer could be expected in any event to take the law as Congress enacted it. In view of this Court’s decisions on the ex post facto objection, the only ground of attack, he could do nothing else. Petitioner waived the only issue on which prejudgment was possible when he declined to apply for discretionary relief at the proper time. See 8 CFR § 242.54 (d).
The Board of Immigration Appeals considered the availability of discretionary relief, but as to these officials there was not even an allegation by petitioner that they had known of the unfavorable publicity or had been influenced by it. Indeed, there is every indication that the Board had not prejudged the case, since it considered the question of suspending deportation on the merits although not bound to do so in view of petitioner’s waiver below. The Board denied the requested relief, giving reasons. It is not for us in this proceeding to pass on the
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factors relied on by the Board in reaching its conclusion. It is sufficient to observe that all had basis in the record and that none stemmed from any sort of dictation by the Attorney General.
Finally, we note that, even as to his claim relating to adverse publicity, petitioner introduced no evidence other than the newspaper clippings. Surely on this meager showing the district judge was warranted in finding—as he did—that the special inquiry officer, the only official mentioned in petitioner’s pleadings, was not controlled in his decision by superiors in the Department of Justice. The decision of the district judge cannot be set aside as clearly erroneous. Accordingly, we hold that under our Accardi decisions petitioner has failed to make out a case for a new hearing.
Ex Post Facto.
Petitioner’s last objection stems from the fact that his conviction under the Marihuana Tax Act was not ground for deportation at the time he committed the offense, and that he was not forewarned of all the consequences of his criminal conduct. It is urged that we depart from our recent decisions holding that the prohibition of the ex post facto clause does not apply to deportation, and strike down as unconstitutional the retroactive application of the new grounds for deportation in § 241 (a) (11) of the Immigration and Nationality Act of 1952. We perceive no special reasons, however, for overturning our precedents on this matter, and adhere to our decisions in Galvan v. Press, 347 U. S. 522, and Harisiades v. Shaughnessy, 342 U. S. 580.
Affirmed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
MARCELLO v. BONDS.
315
302	Black, J., dissenting.
Mr. Justice Black, with whom Mr. Justice Frankfurter joins, dissenting.
Petitioner was lawfully brought to this country forty-four years ago when he was eight months old and has resided here ever since. He is married and has four children. His wife and children are American citizens. It is settled that he cannot be deported without being accorded a fair hearing in accordance with the Due Process Clause of the Fifth Amendment.1
A fair hearing necessarily includes an impartial tribunal. Petitioner claims that the circumstances here deprived him of that kind of tribunal. The officer who conducted the hearings, decided the case and made recommendations for deportation was connected with the Immigration and Naturalization Service. This hearing officer was subject to the supervision, direction and control of the Attorney General and his subordinate supervisory officers of the Immigration Service who perform investigative and prosecutorial functions. Thus the hearing officer adjudicated the very case against petitioner which the hearing officer’s superiors initiated and prosecuted. Petitioner’s argument is that requiring him to have his cause adjudicated by such a subordinate of the prosecutors deprives him of due process. This due process challenge cannot be lightly dismissed, but I find it unnecessary to rest my dissent on a determination of that question. For Congress in the Administrative Procedure Act2 has barred hearing officers from adjudicating cases under the circumstances here, and I think that Act is applicable to this case.
Section 5 (c) of the Administrative Procedure Act forbids hearing officers covered by the Act to conduct hearings if they are “responsible to or subject to the super-
x Japanese Immigrant Case, 189 U. S. 86, 100-101; Wong Yang Sung v. McGrath, 339 U. S. 33, 49-51.
2 60 Stat. 237, 5 U. S. C. §§ 1001-1011.
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Black, J., dissenting.
vision or direction of any officer, employee or agent engaged in the performance of investigative or prosecuting functions for any agency.” In 1950 we held in Wong Yang Sung v. McGrath, 339 U. S. 33, that deportation proceedings must be conducted as required by § 5. Congress, however, later in 1950, put a rider on an appropriation bill providing that “Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act.”3 Were this express modification of the Procedure Act still in effect, we would have to reach the constitutional question raised by petitioner. But this appropriation rider was repealed in the 1952 Immigration and Nationality Act.4 The result of this repeal was to leave § 5 (c) of the Administrative Procedure Act applicable to immigration cases unless, as the Government contends, other provisions of the 1952 Immigration Act made the Procedure Act inapplicable. I think this contention of the Government should not be sustained.
Section 12 of the Procedure Act provides that “No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.” The 1950 appropriation rider was an express modification of the prior Procedure Act, but unlike the Court I find no such express modification in the 1952 Immigration Act. Indeed that Act’s legislative sponsors disclaimed any purpose to bring about even an implied modification.
Both the Procedure Act and the 1952 Immigration Act were sponsored by Senator McCarran and Representative Walter. Their original proposals which finally evolved into the 1952 Act did expressly provide that the Procedure Act should not control proceedings under the Immigration
3 64 Stat. 1048, 8 U. S. C. (1946 ed.) § 155a.
4 66 Stat. 166,8 U.S.C. § 1101 et seq.
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Act. The provision was that “Notwithstanding any other law, including the Act of June 11,19^6 [the Administrative Procedure Act], the proceedings so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien who is in the United States.” 5 Hearings on these proposals brought strong protests from some organizations, including the American Bar Association, against the provision making the Administrative Procedure Act inapplicable to deportation proceedings.6 Afterwards the sponsors of the immigration measures introduced new bills which significantly omitted from that provision the words “Notwithstanding any other law, including the Act of June 11, 1946 [the Administrative Procedure Act].” Consequently when the bill finally passed there was no language which “expressly” superseded or modified the binding requirement of § 5 (c) of the Administrative Procedure Act.
Senators who voted for the new version which became the 1952 Immigration Act were assured by the senatorial sponsor :
“The Administrative Procedure Act is made applicable to the bill. The Administrative Procedure Act prevails now. . . . The bill provides for administrative procedures and makes the Administrative Procedure Act applicable insofar as the administration of the bill is concerned.” 7
And House members voting for the 1952 Immigration Act were assured by its House sponsor:
“Instead of destroying the Administrative Procedures Act, we undo what the Congress did in a deficiency
5 Emphasis supplied.
6 Joint hearings before the Subcommittees of the Committees on the Judiciary on S. 716, H. R. 2379, H. R. 2816, 82d Cong., 1st Sess. 526-537, 591, 691-692, 739.
7 98 Cong. Rec. 5778, 5779.
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Black, J., dissenting.	349 U. S.
appropriation bill several years ago when it legislated to overturn a decision of the Supreme Court, which ruled that the Administrative Procedures Act is applicable in deportation proceedings. We undo that. So here, instead of our destroying the Administrative Procedures Act, we actually see that it is reinstated in every instance.” 8
Reassuring the House again the next day, Representative Walter said:
“We have been very zealous to see that the philosophy underlying that act [Administrative Procedure] is embodied in this measure. I am sure that if the gentleman will look at page 163, paragraph 46, he will find that the law as it was before the House adopted this amendment to an appropriation bill, has been reinstated and that the decision of the Supreme Court in the Sung case will be the law of the land when this code is adopted.” 9
As previously pointed out the Sung case held that § 5 (c) of the Administrative Procedure Act did apply to deportation cases.
Other statements in the discussions of the 1952 Act may look in a different direction from the statements just quoted. But whatever was said, no language in the 1952 Immigration Act expressly authorizes deportation cases to be heard, contrary to the Administrative Procedure Act, by hearing officers who are the dependent subordinates of the immigration agency’s prosecutorial staff. The idea of letting a prosecutor judge the very case he prosecutes or supervise and control the job of the judge before whom his case is presented is wholly inconsistent with our concepts of justice. It was this principle on which Congress presumably acted in passing the Procedure Act. Only
8 98 Cong. Rec. 4302.
9 98 Cong. Rec. 4416.
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319
302	Douglas, J., dissenting.
the other day we had pointed out to us an instance in which the immigration authorities had relieved an immigration hearing officer from his duties because they believed that the hearing officer had failed adequately to present available derogatory information against an alien.10 It is hard to defend the fairness of a practice that subjects judges to the power and control of prosecutors. Human nature has not put an impassable barrier between subjection and subserviency, particularly when job security is at stake. That Congress was aware of this is shown by the Procedure Act, and we should not construe the Immigration Act on a contrary assumption.
I would reverse this case.
Mr. Justice Douglas, dissenting.
The Constitution places a ban on all ex post facto laws. There are no qualifications or exceptions. Article I, § 9, applicable to the Federal Government, speaks in absolute terms: “No ... ex post facto Law shall be passed.” 1 The prohibition is the same whether a citizen or an alien is the victim. So far as ex post facto laws are concerned, the prohibition is all-inclusive and complete.
There is a school of thought that the Ex Post Facto Clause includes all retroactive legislation, civil as well as criminal. See Crosskey, Politics and the Constitution, Vol. I, c. XI; Vol. II, p. 1053. Mr. Justice Johnson took that view, maintaining that a restriction of the Clause to criminal acts was unwarranted. See Ogden v. Saunders, 12 Wheat. 213, 271, 286; Satterlee N. Matthewson, 2 Pet. 380, 416, 681 (Appendix). The Court, however, has stated over and again since Calder v. Bull, 3 Dall.
10	Shaughnessy v. Accardi, 349 U. S. 280, 292 (dissenting opinion).
1 The ban against ex post facto state legislation is also absolute: “No State shall . . . pass any . . . ex post facto Law . . . .”
Art. I, § 10.
320
349 U. S.
OCTOBER TERM, 1954.
Douglas, J., dissenting.
386,	that the Ex Post Facto Clause applies only in criminal cases. See Carpenter v. Commonwealth, 17 How. 456, 463; Johannessen n. United States, 225 U. S. 227, 242; Bugajewitz v. Adams, 228 U. S. 585, 591; Mahler v. Eby, 264 U. S. 32, 39.
At the same time, there was a parallel development in the field of ex post facto legislation. Chief Justice Marshall in Fletcher n. Peck, 6 Cranch 87, 138-139, refused to construe the Ex Post Facto Clause narrowly and restrict it to criminal prosecutions. The Fletcher case held that property rights that had vested could not be displaced by legislative fiat. That liberal view persisted. It was given dramatic application in post-Civil War days. The leading cases are Cummings n. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, where the right to practice a person’s profession was sought to be taken away, in the first case by a State, in the second by the Federal Government, for acts which carried no such penalty when they were committed. The essence of those proceedings was the revocation of a license. Yet the Court held them to be violative of the Ex Post Facto Clauses because they were “punishment” for acts carrying no such sanctions when done.
Deportation may be as severe a punishment as loss of livelihood. See Bridges v. Wixon, 326 U. S. 135, 154; Delgadillo n. Carmichael, 332 U. S. 388, 391. As Mr. Justice Brandeis stated in Ng Fung Ho v. White, 259 U. S. 276, 284, deportation may result “in loss of both property and life; or of all that makes life worth living.”
I find nothing in the Constitution exempting aliens from the operation of ex post facto laws. I would think, therefore, that, if Congress today passed a law making any alien who had ever violated any traffic law in this country deportable, the law would be ex post facto. Congress, of course, has broad powers over the deporta-
MARCELLO v. BONDS.
321
302	Douglas, J., dissenting.
tion of aliens. See Harisiades v. Shaughnessy, 342 U. S. 580. But the bare fact of a traffic violation would not reasonably be regarded as demonstrating that such a person was presently an undesirable resident. It would relate solely to an historic incident that carried no such punishment when committed. The present Act has the same vice. The alien is not deported after a hearing and on a finding by the authorities that he is undesirable for continued residence here. It is the bare past violation of the narcotic laws that is sufficient and conclusive, however isolated or insignificant such violation may have been. 8 U. S. C. § 1251. The case is, therefore, different from the earlier deportation cases where the past acts were mere counters in weighing present fitness.2
In the absence of a rational connection between the imposition of the penalty of deportation and the present desirability of the alien as a resident in this country, the conclusion is inescapable that the Act merely adds a new punishment for a past offense. That is the very injustice that the Ex Post Facto Clause was designed to prevent.
2 In Mahler v. Eby, 264 U. S. 32, the Act in question provided that aliens in certain classes (including those convicted under specified statutes) should be deported if the Secretary of Labor found those aliens to be undesirable residents of the United States. Thus the primary basis for deportation was a finding by the appropriate administrative official that an alien was presently an undesirable resident. In Bugajewitz v. Adams, 228 U. S. 585, the Court stated with regard to the alien to be deported, “. . . we must take it, at least, that she is a prostitute now,” and concluded that, with regard to her, it was “not necessary to construe the statute as having any retrospective effect.” Id., at 590, 591.
Johannessen v. United States, 225 U. S. 227, involved an attempt to cancel a certificate of citizenship on the ground it had been fraudulently and illegally procured. The Court pointed out that the Act did not impose a new penalty on the wrongdoer but merely provided a method for depriving him of a privilege “that was never rightfully his.” Id., at 242-243.
322
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
LAWLOR et al., TRADING AS INDEPENDENT POSTER EXCHANGE, v. NATIONAL SCREEN SERVICE CORP, et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 163. Argued February 9-10, 1955.—Decided June 6, 1955.
In 1942, alleging that the defendants had conspired to establish a monopoly in the distribution of motion picture advertising material, petitioners and others brought an antitrust action for treble damages and injunctive relief against National Screen and three motion picture producers who had granted exclusive licenses to National Screen to manufacture and lease such material. In 1943, pursuant to a settlement made before trial and without any findings of fact or law having been made, that action was dismissed “with prejudice” and sublicenses were granted by National Screen to the plaintiffs. In 1949, petitioners brought a similar action against the same defendants, plus five additional motion picture producers, alleging that settlement of the 1942 suit was merely a device used to perpetuate the conspiracy and monopoly, that the five additional producers had since joined the conspiracy, and that National Screen had deliberately made slow and erratic deliveries under the sublicense in an effort to destroy petitioners’ business and had used tie-in sales and other means of exploiting its monopoly power. Petitioners sought damages for only those injuries sustained after the 1943 judgment. Held: The 1949 action was not barred by the 1943 judgment under the doctrine of res judicata. Pp. 323-330.
(a)	Since the 1943 judgment was not accompanied by findings, it did not bind the parties on any issue—such as the legality of the exclusive license agreements or their effect on petitioners’ business—which might arise in connection with another cause of action. Pp. 326-327.
(b)	Whether the defendants’ conduct be regarded as a series of individual torts or as one continuing tort, the two suits were not based on the same cause of action, and the 1943 judgment does not bar the 1949 suit. Pp. 327-328.
(c)	A different result is not required by the fact that the 1942 complaint sought, in addition to treble damages, injunctive relief
LAWLOR v. NATIONAL SCREEN SERVICE. 323
322	Opinion of the Court.
which, if granted, would have prevented the illegal acts now complained of. Pp. 328-329.
(d)	With respect to the five defendants who were not parties to the 1942 suit, moreover, their relationship to the other defendants was not close enough to bring them within the scope of the doctrine of res judicata. Pp. 329-330.
211 F. 2d 934, reversed.
Francis Anderson argued the cause and filed a brief for petitioners.
Louis Nizer argued the cause and filed a brief for the National Screen Service Corporation, respondent.
Earl G. Harrison argued the cause for the Columbia Pictures Corporation et al., respondents. With him on the brief were Wm. A. Schnader and Edward W. Mullinix for Loew’s Incorporated et al., and Louis J. Goffman for Warner Bros. Pictures Distributing Corporation, respondents.
Mr. Chief Justice Warren delivered the opinion of the Court.
This is an action to recover treble damages for alleged violation of the federal antitrust laws. The only question presented is whether the action is barred, in the circumstances of the case, under the doctrine of res judicata.
Petitioners are engaged in the business of leasing advertising posters to motion picture exhibitors in the Philadelphia area. Such posters, known in the trade as standard accessories, embody copyrighted matter from the motion pictures being advertised. Until recent years, standard accessories could be purchased directly from the motion picture companies themselves. Beginning with Paramount in 1939, however, the eight major producers granted to National Screen Service Corporation the exclusive right to manufacture and distribute various advertis-
340907 0 - 55 - 27
324
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
ing materials, including standard accessories as well as specialty accessories and film trailers, for their motion pictures. RKO followed in 1940, Loew’s in 1942, Universal in 1944, Columbia in 1945, United Artists and Warner Brothers in 1946, and 20th Century Fox in 1947.
In 1942, together with a number of others in similar businesses, petitioners commenced a treble-damage antitrust action against National Screen and the three producers who had already granted exclusive licenses to National Screen. The complaint alleged that the defendants had conspired to establish a monopoly in the distribution of standard accessories by means of the exclusive licenses and that the plaintiffs’ businesses had been injured as a consequence. The complaint also alleged that National Screen was then negotiating with the other major producers to procure similar licenses. In addition to damages, an injunction was sought against the defendants’ “illegal acts and practices.”
In 1943, prior to any trial, the suit was settled. The basis of the settlement was an agreement by National Screen to furnish the plaintiffs with all standard accessories distributed by National Screen pursuant to its exclusive license agreements with producers, including exclusive license agreements which might be executed in the future. In exchange, the plaintiffs agreed that they would withdraw the suit and that they would pay National Screen for the materials at specified prices. Pursuant to the settlement, the suit was dismissed “with prejudice” by court order. No findings of fact or law were made.
The sublicense was to run three years. In 1946 it was renewed for another five-year term. In 1949, while the sublicense was still in force, petitioners brought the instant action, again seeking treble damages and injunctive relief. Named as defendants—respondents here—were
LAWLOR v. NATIONAL SCREEN SERVICE. 325
322	Opinion of the Court.
National Screen, the three producers who were parties to the 1942 suit, and the five producers who licensed National Screen subsequent to the dismissal of the 1942 suit.
In their present complaint, petitioners allege that the settlement of the 1942 suit was merely a device used by the defendants in that case to perpetuate their conspiracy and monopoly. They also allege: that five other producers have joined the conspiracy since 1943; that National Screen has deliberately made slow and erratic deliveries of advertising materials under the sublicense in an effort to destroy petitioners’ business; and that for the same purpose National Screen has used tie-in sales and other means of exploiting its monopoly power.1 Petitioners seek damages for resulting injuries suffered from August 16, 1943—in other words, for a period beginning several months after the dismissal of the 1942 complaint.
In 1951, on petitioners’ motion for summary judgment, the District Court held that petitioners were entitled to injunctive relief against National Screen because the undisputed facts supported petitioners’ claim of unlawful monopoly.2 As to the producers, however, the District Court held that conflicting evidence on the issue of conspiracy made a trial necessary.3 But in 1953, before any trial was held and before a decree against National Screen could be framed, the defendants moved to dismiss the action on the ground that the 1943 judgment was res judicata. The District Court, another judge then sitting, granted the motion and the Court of Appeals
1 “Defendant NATIONAL, illegally and with intent to destroy plaintiff’s business, deliberately reduces the rental price of said motion picture talking trailers to exhibitors if said exhibitors, including plaintiff’s customers, agree beforehand to purchase or lease for the exploitation of all of their films exhibited, standard accessories and advertising materials directly from the defendant NATIONAL.”
2 99 F. Supp. 180, 188.
3 Ibid.
326
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
for the Third Circuit affirmed.4 We granted certiorari because of the importance of the question thus presented in the enforcement of the federal antitrust laws.5
The basic distinction between the doctrines of res judicata and collateral estoppel, as those terms are used in this case, has frequently been emphasized.6 Thus, under the doctrine of res judicata, a judgment “on the merits” in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit. Recognizing this distinction, the court below concluded that “No question of collateral estoppel by the former judgment is involved because the case was never tried and there was not, therefore, such finding of fact which will preclude the parties to that litigation from questioning the finding thereafter.”7 Turning then to the doctrine of res judicata, the court correctly stated the question before it as “whether the plaintiffs in the present suit are suing upon the ‘same cause of action’ as that upon which they sued in 1942 and lost.” 8 The court answered the question in the affirmative on the ground that the two suits were based on “essentially the same course of wrongful conduct.” 9 The court
4 211 F.2d 934.
5348 U.S.810.
6 E. g., Cromwell n. County of Sac, 94 U. S. 351, 352-353; United States v. Moser, 266 U. S. 236, 241. See also Restatement, Judgments, §§ 47, 48, 68. The term res judicata is used broadly in the Restatement to cover merger, bar, collateral estoppel, and direct estoppel. Id., c. 3, Introductory Note.
7 211 F. 2d 934, 935.
8 Ibid.
9 Id., at 936.
LAWLOR v. NATIONAL SCREEN SERVICE. 327
322	Opinion of the Court.
acknowledged that “there are some additional allegations, some new acts which the plaintiffs say the defendants have done since the earlier suit” and that “Additional defendants were joined in the 1949 suit,” but concluded that “in substance the complaint is the same. . . .” 10
It is of course true that the 1943 judgment dismissing the previous suit “with prejudice” bars a later suit on the same cause of action.11 It is likewise true that the judgment was unaccompanied by findings and hence did not bind the parties on any issue—such as the legality of the exclusive license agreements or their effect on petitioners’ business—which might arise in connection with another cause of action.12 To this extent we are in accord with the decision below. We believe, however, that the court erred in concluding that the 1942 and 1949 suits were based on the same cause of action.
That both suits involved “essentially the same course of wrongful conduct” is not decisive. Such a course of conduct—for example, an abatable nuisance—may fre-
10 Id., at 936-937.
11 United States v. Parker, 120 U. S. 89, 95; United States v. International Building Co., 345 U. S. 502, 506.
12 See United States v. International Building Co., supra, at 505:
“We conclude that the decisions entered by the Tax Court for the years 1933, 1938, and 1939 were only a pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed. There is no showing either in the record or by extrinsic evidence (see Russell v. Place, 94 U. S. 606, 608) that the issues raised by the pleadings were submitted to the Tax Court for determination or determined by that court. They may or may not have been agreed upon by the parties. Perhaps, as the Court of Appeals inferred, the parties did agree on the basis for depreciation. Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration.”
328
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
quently give rise to more than a single cause of action.13 And so it is here. The conduct presently complained of was all subsequent to the 1943 judgment.14 In addition, there are new antitrust violations alleged here—deliberately slow deliveries and tie-in sales, among others—not present in the former action. While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case. In the interim, moreover, there was a substantial change in the scope of the defendants’ alleged monopoly; five other producers had granted exclusive licenses to National Screen, with the result that the defendants’ control over the market for standard accessories had increased to nearly 100%.15 Under these circumstances, whether the defendants’ conduct be regarded as a series of individual torts or as one continuing tort, the 1943 judgment does not constitute a bar to the instant suit.
This conclusion is unaffected by the circumstance that the 1942 complaint sought, in addition to treble damages, injunctive relief which, if granted, would have prevented the illegal acts now complained of. A combination of
13 Restatement, Judgments, § 62, Comment g. Antitrust violations are expressly made abatable. 15 U. S. C. § 26.
14 Restatement, Judgments, § 62, Comment g. Compare Federal Trade Commission v. Raladam Co., 316 U. S. 149, 150-151.
15 99 F. Supp. 180,183-184. The complaint in the 1942 suit alleged that 40% of National Screen’s business in standard accessories consisted of standard accessories for the motion pictures of two (Paramount and RKO) of the three defendant producers. The complaint also alleged that 20% to 33% of the plaintiffs’ business consisted of standard accessories for the motion pictures of the third defendant producer (Loew’s). As to the pertinence of “the percentage of business controlled,” see United States v. Columbia Steel Co., 334 U. S. 495, 527-528.
LAWLOR v. NATIONAL SCREEN SERVICE. 329
322	Opinion of the Court.
facts constituting two or more causes of action on the law side of a court does not congeal into a single cause of action merely because equitable relief is also sought. And, as already noted, a prior judgment is res judicata only as to suits involving the same cause of action.16 There is no merit, therefore, in the respondents’ contention that petitioners are precluded by their failure in the 1942 suit to press their demand for injunctive relief. Particularly is this so in view of the public interest in vigilant enforcement of the antitrust laws through the instrumentality of the private treble-damage action. Acceptance of the respondents’ novel contention would in effect confer on them a partial immunity from civil liability for future violations. Such a result is consistent with neither the antitrust laws nor the doctrine of res judicata.
With respect to the five defendants who were not parties to the 1942 suit, there is yet a second ground for our decision. The court below held that their relationship to the other defendants was “close enough to bring them all within the scope of the doctrine of res judicata.” 17 With this conclusion, we cannot agree. We need not stop to consider the outer bounds of the rule of privity and allied concepts.18 It is sufficient here to point out that the five defendants do not fall within the orthodox categories of privies; 19 that they could not have been joined in the 1942 case since they did not even enter the alleged conspiracy until after the judgment on which they now
16 That the same rule is applicable in equity, see Restatement, Judgments, §46, Comment b; id., §53, Comment c.
17 211 F. 2d 934, 937.
18 See Restatement, Judgments, c. 4.
19 Restatement, Judgments, § 83, Comment a:
“those who control an action although not parties to it . . . ; those whose interests are represented by a party to the action . . . ; successors in interest . . .
330
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OCTOBER TERM, 1954.
Opinion of the Court.
rely; 20 that in any event there was no obligation to join them in the 1942 case since as joint tortfeasors they were not indispensable parties;21 and that their liability was not “altogether dependent upon the culpability” of the defendants in the 1942 suit.22
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion.
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
20 Compare Bruszewski v. United States, 181 F. 2d 419 (C. A. 3d Cir.), on which both courts below relied. It should also be noted that the Bruszewski decision was an application of collateral estoppel and not res judicata as that term is used here.
21 Restatement, Judgments, § 94. See Bigelow v. Old Dominion Copper Co., 225 U. S. Ill, 132.
22 Id., at 127.
PETERS v. HOBBY.
331
Syllabus.
PETERS v. HOBBY et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 376. Argued April 19, 1955.—Decided June 6, 1955.
During his employment as a special consultant in a federal agency, petitioner had been twice cleared by the agency’s loyalty board. Subsequently, acting solely on its own motion, the Civil Service Commission’s Loyalty Review Board (established under Executive Order 9835) determined that there was a reasonable doubt as to petitioner’s loyalty and notified him that he wras barred from federal service for a period of three years. Thereafter petitioner was removed from his position. By an action in a Federal District Court, petitioner challenged the validity of his removal and debarment from federal employment. Held:
1.	This case can be decided without reaching certain constitutional issues raised by petitioner, stemming chiefly from the denial to petitioner of any opportunity to confront and cross-examine his secret accusers. Pp. 337-338.
2.	The Loyalty Review Board’s action was invalid as beyond the Board’s jurisdiction under Executive Order 9835 and was an unwarranted assumption of power. Pp. 338-348.
(a)	Under the provisions of the Executive Order, the Loyalty Review Board’s jurisdiction to review individual cases was limited to appeals from rulings adverse to employees which were referred to the Board by the employees or their departments or agencies. The Board had no authority to review rulings favorable to employees or to adjudicate individual cases on its own motion. Pp. 339-340, 342-344.
(b)	Regulation 14 of the Loyalty Review Board, to the extent that it purports to authorize the Board to adjudicate individual cases on its own motion and despite a favorable determination below, is invalid as inconsistent with the provisions of Executive Order 9835. Pp. 340-345.
(c)	While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board’s review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a verdict of guilty is appealable while a verdict of acquittal is not. Pp. 344—345.
332
OCTOBER TERM, 1954.
Syllabus.
349 U.S.
(d)	The President’s failure to express disapproval of Regulation 14 cannot be deemed to constitute acquiescence in it. Pp. 345-347.
(e)	The order of debarment, moreover, did not comply with Civil Service Rule V, §5.101 (a), which bars an employee from “the competitive service” within three years after “a final determination” that he is disqualified for federal employment on loyalty grounds, because (i) the order was not limited to the “competitive service” but extended to all federal employment, and (ii) it purported to become effective before the employing agency had made any “final determination.” Pp. 347-348.
3.	Petitioner is entitled to a declaratory judgment that his removal and debarment were invalid and to an order directing the respondent members of the Civil Service Commission to expunge from its records (a) the Loyalty Review Board’s finding that there is a reasonable doubt as to petitioner’s loyalty, and (b) any ruling that petitioner is barred from federal employment by reason of that finding. Pp. 348-349.
4.	Since it appears that the term of petitioner’s appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds, his prayer for reinstatement cannot be granted. P. 349.
Reversed.
Thurman Arnold and Paul A. Porter argued the cause for petitioner. With them on the brief were Abe F ortas and Milton V. Freeman.
Assistant Attorney General Burger argued the cause for respondents. With him on the brief were Attorney General Brownell, Assistant Attorney General Tompkins, Assistant Attorney General Rankin, Samuel D. Slade and Benjamin Forman.
Briefs of amici curiae urging reversal were filed by Joseph A. Fanelli and Leo F. Lightner for the Engineers and Scientists of America; Herbert Monte Levy and Morris L. Ernst for the American Civil Liberties Union; and Arthur J. Goldberg, Thomas E. Harris and Joseph L. Rauh, Jr. for the Congress of Industrial Organizations.
PETERS v. HOBBY.
333
331	Opinion of the Court.
Mr. Chief Justice Warren delivered the opinion of the Court.
This action was instituted by petitioner in the District Court for the District of Columbia. The principal relief sought is a declaration that petitioner’s removal and debarment from federal employment were invalid. Prior to trial, the District Court granted the respondents’ motion for judgment on the pleadings. The judgment was affirmed, one judge dissenting, by the Court of Appeals for the District of Columbia Circuit, relying on its decision in Bailey v. Richardson, 86 U. S. App. D. C. 248, 182 F. 2d 46, sustained here by an equally divided vote, 341 U. S. 918. We granted certiorari, 348 U. S. 882, because the case appeared to present the same constitutional question left unresolved by this Court’s action in Bailey v. Richardson, supra.
I.
The basic facts are undisputed. Petitioner is a professor of medicine, specializing in the study of metabolism, at Yale University. For several years prior to 1953, because of his eminence in the field of medical science, he was employed as a Special Consultant in the United States Public Health Service of the Federal Security Agency. On April 10, 1953, the functions of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare, headed by respondent Hobby. Petitioner’s duties required his presence in Washington from four to ten days each year, when called upon by the Surgeon General, to render advice concerning proposals to grant federal assistance to various medical research institutions. This work was not of a confidential or sensitive character and did not entail access to classified material. Petitioner was compensated at a specified per diem rate for days actually worked.
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349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
At the time of his removal, petitioner was employed under an appointment expiring on December 31, 1953.
On March 21, 1947, Executive Order 9835 was issued by the President.1 It provided that the head of each department and agency in the Executive Branch of the Government “shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency.” Toward that end, the Order directed the establishment within each department or agency of one or more loyalty boards “for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee ... on grounds relating to loyalty . . . .” The order also provided for the establishment of a central Loyalty Review Board in the Civil Service Commission. The Board, in addition to various supervisory functions, was authorized “to review cases involving persons recommended for dismissal ... by the loyalty board of any department or agency . . . .” The standard for removal prescribed by the Order was whether, “on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.” This standard was amended on April 28, 1951.2 As amended, the standard to be applied was whether, “on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.”
In January 1949, Joseph E. McElvain, Chairman of the Board of Inquiry on Employee Loyalty of the Federal Security Agency, notified petitioner that derogatory information relating to his loyalty had been received. Accompanying McElvain’s letter was a detailed inter
112 Fed. Reg. 1935.
2 Executive Order 10241,16 Fed. Reg. 3690.
PETERS v. HOBBY.
335
331	Opinion of the Court.
rogatory relating to petitioner’s associations and affiliations. Petitioner promptly completed the form and returned it. Shortly thereafter, McElvain advised petitioner that the Agency Board had determined that no reasonable grounds existed for belief that petitioner was disloyal.
In May 1951, following the amendment of the removal standard prescribed by Executive Order 9835, the Executive Secretary of the Loyalty Review Board advised McElvain that petitioner’s case should be reopened and readjudicated pursuant to the amended standard. Three months later, the Acting Chairman of the Loyalty Review Board informed McElvain that a panel of the Loyalty Review Board had considered petitioner’s case and had recommended that it be remanded to the Agency Board for a hearing. Acting on the Loyalty Review Board’s recommendation, McElvain sent petitioner a letter of charges. Sixteen charges were specified, relating to alleged membership in the Communist Party, sponsorship of certain petitions, affiliation with various organizations, and alleged association with Communists and Communist sympathizers. In his reply, made under oath, petitioner denied that he had ever been a member of the Communist Party and set forth information concerning the other charges.
On April 1 and 2, 1952, the Agency Board conducted a hearing on petitioner’s case in New Haven, Connecticut. The sources of the information as to the facts bearing on the charges were not identified or made available to petitioner’s counsel for cross-examination. The identity of one or more of the informants furnishing such information, but not of all the informants, was known to the Board. The only evidence adduced at the hearing was presented by petitioner. He testified under oath that he had never been a member of the Communist Party and also testified concerning the other charges against him. He did not
336
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
refuse to answer any question directed to him. Petitioner’s testimony was supported by the testimony of eighteen other witnesses and the affidavits and statements of some forty additional persons. On May 23, 1952, McElvain notified petitioner that the Agency Board had determined that, on all the evidence, there was no reasonable doubt as to petitioner’s loyalty.
Thereafter, on April 6, 1953, petitioner was advised by the Loyalty Review Board that it had determined to conduct a “post-audit” of the Agency Board’s determination and, to this end, “hold a hearing and reach its own decision.” 3 The hearing was held on May 12, 1953, in New Haven, before a panel of the Board consisting of respondents Hessey, Amen, and King. Once again, as at the previous hearing, the only evidence adduced was presented by petitioner. In his own testimony, petitioner denied membership in the Communist Party, discussed his political beliefs and his motives for engaging in the activities and associations which were the subject of the charges, and answered all questions put to him by the Board. In support of petitioner’s testimony, five witnesses stated their long acquaintance with petitioner and their firm conviction of petitioner’s loyalty.4 In addition to this evidence, the record before the Board contained information supplied by informants whose identity was not disclosed to petitioner. The identity of one or more, but not all, of these informants was known to the Board. The information given by such informants had not been given under oath. The record also contained the evidence adduced by petitioner at the previous hearing. On this record, the Board determined that “on all the
3 Authority for such action was purportedly based on Regulation 14 of the regulations of the Loyalty Review Board. 17 Fed. Reg. 631.
4 Three of the five—a former President of Yale University, a former dean of the Yale Medical School, and a federal circuit judge—had given similar testimony at the previous hearing.
PETERS v. HOBBY.
337
331	Opinion of the Court.
evidence, there is a reasonable doubt as to Dr. Peters’ loyalty to the Government of the United States.”
By letter of May 22, 1953, the Chairman of the Board advised petitioner of the Board’s finding. The letter further stated that respondent Hobby had been notified of the decision and that petitioner had “been barred from the Federal service for a period of three years from May 18, 1953, and any and all pending applications or existing eligibilities are cancelled.” The order of debarment was made by the Board on behalf of the Civil Service Commission, composed of respondents Young, Moore, and Lawton.5 Following his removal and after an unsuccessful attempt to obtain a rehearing, petitioner brought the instant suit, naming each of the respondents as a defendant.
II.
In his complaint, petitioner contends that the action taken against him was “in violation of Executive Order 9835 and the Constitution of the United States . . . .” In support of his contention that the action violated the Executive Order, he makes the allegation, among others, that the Loyalty Review Board “exercised power beyond its power ‘to make advisory recommendations ... to the head of the . . . agency’, as defined by Executive Order 9835, Part III, § la ... .” On the constitutional level, petitioner complains chiefly of the denial of any opportunity to confront and cross-examine his secret accusers. He alleges that his removal and debarment deprived him “of liberty and property without due process of law in that they branded him as a person disloyal to his country, arbitrarily, without basis in fact, and without a fair procedure and hearing.” In addition, he alleges that “The imposition of the penalty of ineligibility for government service
5 Authority for the order of debarment was purportedly based on Civil Service Rule V, § 5.101 (a), 5 CFR (1954 Supp.) § 5.101 (a).
338
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
constituted a violation of the prohibition against bills of attainder and ex post facto laws by punishing the plaintiff by declaring him ineligible to serve the Government without a judicial trial or a fair administrative hearing . . . Finally, petitioner alleges that his removal and debarment, solely on the basis of his political opinions, violated his right to freedom of speech.
In this Court, petitioner urges us to decide the case on the constitutional issues. These issues, if reached by the Court, would obviously present serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel. Compare Wieman v. Updegraff, 344 U. S. 183; United States n. Lovett, 328 U. S. 303; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123. And note this Court’s division in Bailey v. Richardson, supra. We find, however, that the case can be decided without reaching the constitutional issues.
From a very early date, this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 136. Applying this rule to the instant case, we must at the outset determine whether petitioner’s removal and debarment were effected in accord with Executive Order 9835. On consideration of this question, we conclude that the Loyalty Review Board’s action was so patently in violation of the Executive Order—in fact, beyond the Board’s delegated jurisdiction under the Order—that the constitutionality of the Order itself does not come into issue.6
6 The question of the Board’s jurisdiction was, on request of the Court, argued and briefed. Compare Alma Motor Co. n. Timken-Detroit Axle Co., 329 U. S. 129,132.
PETERS v. HOBBY.
339
331	Opinion of the Court.
III.
The power of the Loyalty Review Board to adjudicate individual cases is set forth specifically in § la of Part III of the Order:
“The Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. Such cases may be referred to the Board either by the employing department or agency, or by the officer or employee concerned.”
Similarly, § 3 of Part II, which prescribes the procedures to be followed in loyalty cases under the Order, provides:
“A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency . . . and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission’s Loyalty Review Board, hereinafter provided for, for an advisory recommendation.”
The authority thus conferred on the Loyalty Review Board was limited to “cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency . . . .” And, even as to these cases, the Loyalty Review Board was denied any power to undertake review on its own motion; only the employee recommended for dismissal, or his department or agency, could refer such a case to the Loyalty Review Board.
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340	OCTOBER TERM, 1954.
Opinion of the Court.	349 U. S.
In petitioner’s case, the Board failed to respect either of these limitations. Petitioner had been twice cleared by the Agency Board and hence did not fall in the category of “persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency.” Moreover, petitioner’s case was never referred to the Loyalty Review Board by petitioner or the Agency. Instead, the Loyalty Review Board, acting solely on its own motion, undertook to “hold a hearing and reach its own decision.” On both grounds, the Board’s action was plainly beyond its jurisdiction unless such action was authorized by some other provision in the Order.
Section 1 of Part III also provides:
“b. The Board shall make rules and regulations, not inconsistent with the provisions of this order, deemed necessary to implement statutes and Executive orders relating to employee loyalty.
“c. The Loyalty Review Board shall also:
“(1) Advise all departments and agencies on all problems relating to employee loyalty.
“(2) Disseminate information pertinent to employee loyalty programs.
“(3) Coordinate the employee loyalty policies and procedures of the several departments and agencies.
“(4) Make reports and submit recommendations to the Civil Service Commission for transmission to the President from time to time as may be necessary to the maintenance of the employee loyalty program.”
Acting under subsection (b), the Board promulgated detailed regulations, effective December 14, 1947, elaborating its powers under the Order.7 The regulations
713 Fed. Reg. 253 et seq.
PETERS v. HOBBY.
341
331	Opinion of the Court.
distinguished between two types of proceedings in individual cases. The first dealt with appeals from adverse decisions.8 The second, described in Regulation 14, claimed for the Board a very different function.9 As amended on January 22, 1952, Regulation 14 provided:10
“Post-audit and review of files, (a) The Board, or an executive committee of the Board, shall, as deemed necessary from time to time, cause post-audits to be made of the files on loyalty cases decided by the employing department or agency, or by a regional loyalty board.
“(b) The Board or an executive committee of the Board, or a duly constituted panel of the Board, shall have the right, in its discretion to call up for review any case decided by any department or agency loyalty board or regional loyalty board, or by any head of an employing department or agency, even though no appeal has been taken. Any such review shall be made by a panel of the Board, and the panel, whether or not a hearing has been held in the case, may affirm the procedural method followed and the action taken, or remand the case with appropriate instructions to the agency or regional loyalty board concerned for hearing or for such further action or procedure as the panel may determine.
“(c) If a panel reviews a record on post-audit and reaches the conclusion that the determination made below does not fully recognize that it is of ‘vital importance’ as set forth in Executive Order 9835 ‘that persons employed in the Federal service be
8 Id., at 255, 5 CFR § 210.9.
913 Fed. Reg. 255.
1017 Fed. Reg. 631. Regulation 14 had previously been amended on December 17, 1948. 13 Fed. Reg. 9366, 5 CFR § 210.14.
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Opinion of the Court.	349 U. S.
of complete and unswerving loyalty to the United States,’ then the panel may call up the case for a hearing, and after such hearing may affirm or reverse the original determination or decision. Nevertheless, it must always be remembered that while it is important that maximum protection be afforded the United States against infiltration of disloyal persons into the ranks of its employees, equal protection must be afforded loyal employees from unfounded accusations of disloyalty.”
In undertaking to “hold a hearing and reach its own decision” in petitioner’s case, the Board relied on Regulation 14 as the source of its authority.
This regulation, however, is valid only if it is “not inconsistent with the provisions of this order.” The Board’s “post-audit” function, when used to survey the operation of the loyalty program and to insure a uniformity of procedures in the various loyalty boards, might well be justified under the Board’s powers to “Advise all departments and agencies on all problems relating to employee loyalty” and “Coordinate the employee loyalty policies and procedures of the several departments and agencies.” But the regulation did not restrict the “postaudit” function to advice and coordination. Rather, it purported to allow the Board “to call up for review any case . . . even though no appeal has been taken” and to hold a new hearing and “after such hearing [to] affirm or reverse the original determination or decision.” The Board thus sought to do by regulation precisely what it was not permitted to do under the Order. Although the Order limited the Board’s jurisdiction to appeals from adverse rulings, the regulation asserted authority over appeals from favorable rulings as well; and although the Order limited the Board’s jurisdiction to appeals referred
PETERS v. HOBBY.
343
331	Opinion of the Court.
to the Board by the employee or his department or agency, the regulation asserted authority in the Board to adjudicate individual cases on its own motion. To this extent the regulation must fall. See, e. g., Addison v. Holly Hill Fruit Products, 322 U. S. 607, 616-618, and Federal Communications Commission v. American Broadcasting Co., 347U.S. 284,296-297.
Our interpretation of the language of the Order is confirmed by The Report of the President’s Temporary Commission on Employee Loyalty, released by the President on March 22, 1947, simultaneously with the Order. Four months before, the Commission had been established “to inquire into the standards, procedures, and organizational provisions for (a) the investigation of persons who are employed by the United States Government or are applicants for such employment, and (b) the removal or disqualification from employment of any disloyal or subversive person.” 11 In conducting its investigation, the Commission sought suggestions from 50 selected government agencies. The replies revealed general agreement “that the employing agency be responsible for the removal of its own employees.”12 But a substantial number of the replies indicated: 13
“ ( 1 ) that there should be established an independent over-all centralized authority acting solely for and on behalf of the President in the matter of the removal of disloyal employees; or (2) that the original hearing in loyalty cases should be within the employing agency, subject to a right of appeal to a central
11 Executive Order 9806, 11 Fed. Reg. 13863. The Commission was composed of officials of the Civil Service Commission and the Departments of Justice, State, Treasury, War, and Navy.
12 The Report of the President’s Temporary Commission on Employee Loyalty (1947) 14.
13 Id., at 15.
344
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
ized agency established with a power to review de novo; or (3) that the overall agency be established with advisory powers only.”
Of these three proposals, the first was flatly rejected by the Commission, which instead urged the establishment of a centralized agency combining elements of the second and third. The Commission thought it “imperative that the head of each department or agency be solely responsible for his own loyalty program.”14 On the other hand, “so that the loyalty procedures operative in each of the departments and agencies may be properly coordinated . . . ,” the Commission recognized “that a central review board should be created with definite advisory responsibilities in connection with the loyalty program.”15 These “advisory responsibilities” were envisaged as “similar to those of a clearing house.”16 But, in addition, the board was to be authorized to review decisions adverse to employees, when referred to the board by the employee or the employing agency.17 Nowhere in the report was it even remotely suggested that the board was to have general jurisdiction to adjudicate individual cases; on the contrary, as already noted, the Commission expressly disapproved such a proposal. The Commission’s recommendations, with only slight changes in language, were adopted in the provisions of the Order designating the functions of the Loyalty Review Board.18
While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board’s review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a
14 Id., at 26.
15 Id., at 27.
10 Id., at 26.
17 Id., at 35-36.
18 See Bontecou, The Federal Loyalty-Security Program (1953), 29.
PETERS v. HOBBY.
345
331	Opinion of the Court.
verdict of guilty is appealable while a verdict of acquittal is not.19 This safeguard was one of the few, and perhaps one of the most important, afforded an accused employee under the Order. Its effect was to leave the initial determination of his loyalty to his co-workers in the department—to his peers, as it were—who knew most about his character and his actions and his duties. He was thus assured that his fate would not be decided by political appointees who perhaps might be more vulnerable to the pressures of heated public opinion. To sanction the abrogation of this safeguard through Regulation 14, in the face of the Order’s language and the Commission’s report, would be to sanction administrative lawlessness. Agencies, whether created by statute or Executive Order, must of course be free to give reasonable scope to the terms conferring their authority. But they are not free to ignore plain limitations on that authority. Compare United States v. Wickersham, 201 U. S. 390, 398.
It is urged, however, that the President’s failure to express his disapproval of Regulation 14 must be deemed to constitute acquiescence in it. From this, it is contended that the President thus impliedly expanded the Loyalty Review Board’s powers under the Order. We cannot indulge in such fanciful speculation. Nothing short of explicit Presidential action could justify a conclusion that the limitations on the Board’s powers had been eliminated. No such action by the President has been brought to our attention. There is, in fact, no evidence that the President even knew of the Board’s
19 See the Commission’s report, supra, note 12, at 30:
“The standards must be specific enough to assure that innocent employees will not fall within the purview of the disloyalty criteria. Every mature consideration was invoked by the Commission to afford maximum protection to the government from disloyal employees while safeguarding the individual employee with a maximum protection from ill-advised accusations of disloyalty.”
346
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
practice prior to April 27, 1953, three weeks after the Board had notified petitioner of its intention to “hold a hearing and reach its own decision.” And knowledge of the practice can hardly be imputed to him in view of the relatively small number of cases—only 20—in which the Board reversed favorable determinations over its 6-year life.20 On April 27, 1953, the President issued Executive Order 10450, revoking Executive Order 9835 and establishing a new loyalty program.21 Executive Order 10450 by its own terms did not take effect until 30 days later on May 27, 1953. Although petitioner’s case was heard and determined by the Loyalty Review Board during this 30-day period and hence was not subject to Executive Order 10450, the Government contends that § 11 evidences knowledge and approval of Regulation 14.22
20 As of June 30, 1953, the Board had undertaken in only 58 cases to “hold a hearing and reach its own decision” despite a favorable determination below. Annual Reports of the Civil Service Commission: 1948 (p. 18), 1949 (p. 37), 1950 (pp. 33-34), 1951 (p. 36), 1952 (p. 56), 1953 (p. 31). Of these 58 cases, 20 resulted in reversal of the favorable determination. 1953 Report, p. 31, n. 1. Of these 20 cases, 12—including petitioner’s—arose in the fiscal year immediately preceding June 30, 1953. Id., at 31. In the remaining 38 cases—those in which the Board did not reverse the favorable determination—either the Board affirmed the favorable determination or the employee resigned prior to the scheduled hearing. Thus in the 1953 fiscal year, of the 22 hearings scheduled, 8 resulted in affirmance and 2 were cancelled because of resignation. Ibid.
2118 Fed. Reg. 2489.
22 Section 11 provides in pertinent part:
“On and after the effective date of this order the Loyalty Review Board established by Executive Order No. 9835 of March 21, 1947, shall not accept agency findings for review, upon appeal or otherwise. Appeals pending before the Loyalty Review Board on such date shall be heard to final determination in accordance with the provisions of the said Executive Order No. 9835, as amended. Agency determinations favorable to the officer or employee concerned pending before the Loyalty Review Board on such date shall be acted upon by such
PETERS v. HOBBY.
347
331	Opinion of the Court.
Section 11, however, did no more than recognize that cases under Regulation 14 might be pending on the effective date and authorize their determination thereafter. And, even as to these cases, § 11 did not authorize the Board to recommend dismissal; at most the Board could remand the cases to the departments or agencies for reconsideration. With respect to cases determined prior to the effective date—such as petitioner’s—§ 11 surely affords no basis for divining a Presidential intention to authorize the Board to disregard its previously defined jurisdictional boundaries. Particularly is this so where, as here, substantial rights affecting the lives and property of citizens are at stake. This Court has recognized that “a badge of infamy” attaches to a public employee found disloyal. Wieman v. Updegraff, 344 U. S. 183, 191. The power asserted by the Board to impose such a badge on petitioner cannot be supported on so tenuous a theory as that pressed upon us.
Nor was the adjudication of petitioner’s case, on its own motion and despite a favorable determination by the Agency Board, the only unwarranted assumption of power by the Loyalty Review Board. In cancelling petitioner’s eligibility from “the Federal service” for a period of three years, the Board purported to act under Civil Service Rule V, § 5.101 (a), which bars an employee from “the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty . . . .” 23 The Board’s order of debarment, however, was not limited to “the competitive service” but extended to all federal employ
Board, and whenever the Board is not in agreement with such favorable determination the case shall be remanded to the department or agency concerned for determination in accordance with the standards and procedures established pursuant to this order.”
23 Italics added. 5 CFR (1954 Supp.) §5.101 (a).
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Opinion of the Court.	349 U. S.
ment.24 And although such a “final determination” could be made only by the employing agency, the Board did not wait for respondent Hobby to act on its recommendation. Petitioner’s debarment was made effective on May 18, 1953, four days before the Chairman of the Board wrote petitioner of the Board’s determination and nearly four weeks before the Department took action to remove petitioner from his position. The Board’s haste can be understood only in terms of its announced intention to deprive agencies of all discretion to determine whether the Board’s recommendations should be accepted.25
IV.
There only remains for consideration the question of relief. Initially petitioner is entitled to a declaratory judgment that his removal and debarment were invalid.
24 Approximately 15% of all federal employees are excepted from “the competitive service.” 1954 Annual Report, United States Civil Service Commission, p. 10. Petitioner himself was not employed in “the competitive service.” His position was classified in “Schedule A,” an exempt category. 5 CFR §6.101 (n); 5 CFR §6.1 (d).
25 On December 17, 1948, the Board issued the following directive, entitled “Legal effect of advisory recommendations,” to the departments and agencies covered by the Order:
“The President expects that loyalty policies, procedures, and standards will be uniformly applied in the adjudication of loyalty cases by the several agencies, and the responsibility for coordinating the program and assuring uniformity has been placed in the Loyalty Review Board. The recommendations of the Civil Service Commission in cases of employees covered by section 14 of the Veterans’ Preference Act of 1944 are mandatory, and the loyalty of persons not covered by section 14 should be judged by the same standards. Therefore, if uniformity is to be attained it is necessary that the head of an agency follow the recommendation of the Loyalty Review Board in all cases.” (Italics added.)
13 Fed. Reg. 9372, 5 CFR § 220.4 (d). See Bontecou, The Federal Loyalty-Security Program (1953), 54-55. Compare Kutcher v. Gray, 91 U. S. App. D. C. 266,199 F. 2d 783.
PETERS v. HOBBY.
349
331	Black, J., concurring.
He is further entitled to an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board’s finding that there is a reasonable doubt as to petitioner’s loyalty and to expunge from its records any ruling that petitioner is barred from federal employment by reason of that finding. His prayer for reinstatement, however, cannot be granted, since it appears that the term of petitioner’s appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds.
The judgment below is reversed and the cause is remanded to the District Court for entry of a decree in conformity with this opinion.
Reversed.
Mr. Justice Black, concurring.
I would prefer to decide this case on the constitutional questions discussed by Mr. Justice Douglas or on some of the other constitutional questions necessarily involved. See United States v. Lovett, 328 U. S. 303. See my dissents in Dennis n. United States, 341 U. S. 494, 579-581; Communications Assn. n. Douds, 339 U. S. 382, 445-453. See also my concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 142-149. I agree that it is generally better for this Court not to decide constitutional questions in cases which can be adequately disposed of on non-consti-tutional grounds. See Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. But this generally accepted practice should not be treated as though it were an inflexible rule to be inexorably followed under all circumstances. See Y oungstown Co. v. Sawyer, 343 U. S. 579, 584-585. Here, as in the Youngstown case, I think it would be better judicial practice to reach and decide the constitutional issues, although I agree with the Court that the Presidential Order can justifiably be construed
350
349 U. S.
OCTOBER TERM, 1954.
Douglas, J., concurring.
as denying the Loyalty Review Board the power exercised in this case. For this reason I join the opinion of the Court. But I wish it distinctly understood that I have grave doubt as to whether the Presidential Order has been authorized by any Act of Congress. That order and others associated with it embody a broad, far-reaching espionage program over government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer lawmaking power on the President. Youngstown Co. v. Sawyer, 343 U. S. 579.
I have thought it necessary to add these statements to the Court’s opinion in order that the President’s power to issue the order might not be considered as having been decided sub silentio.
Mr. Justice Douglas, concurring.
With all deference, I do not think we can avoid the constitutional issue in this case.
The most that can be said is that the terms of the Executive Order are ambiguous. The construction urged by the Attorney General is buttressed by a history of administrative practice, with case after case being reviewed by the Board in the precise manner of this one. The question of construction of the Executive Order was so well settled that neither the Government nor Dr. Peters suggested the absence of authority in the Review Board to take jurisdiction of this case on its own motion. I agree that it had such authority. It, therefore, becomes necessary for me to reach the constitutional issue.
Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that con
PETERS v. HOBBY.
351
331	Douglas, J., concurring.
demned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory.
Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work—things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government.1 It
1 Berle, The 20th Century Capitalist Revolution (1954), pp. 92-93, traces the impact of the loyalty program on employees of corporations having contracts with the Government:
“To begin, let us deal with a situation in which a powerful corporation is under a contract duty to the United States government, or some agency of it, to fire or decline to hire individuals designated to them as possible security risks. In practice they mean that a man who may have been employed for years, being suspect for some reason, is designated to the appropriate authorities [of the corporation]. Things then happen to him rapidly. All he knows is that he is called into the office one day and told that he is discharged—or at best transferred to some far less desirable job. If the ban is complete, and he lives in any of the cities in which the corporation is a preponderant employer, the consequences are extreme. The main avenue of employment is closed to him. He must move into some
352
349 U.S.
OCTOBER TERM, 1954.
Douglas, J., concurring.
has touched countless hundreds of men and women and ruined many. It is an un-American practice which we should condemn. It deprives men of “liberty” within the meaning of the Fifth Amendment, for one of man’s most precious liberties is his right to work. When a man is deprived of that “liberty” without a fair trial, he is denied due process. If he were condemned by Congress and made ineligible for government employment, he would suffer a bill of attainder, outlawed by the Constitution. See United States v. Lovett, 328 U. S. 303. An administrative agency—the creature of Congress—certainly cannot exercise powers that Congress itself is barred from asserting. See the opinion of Mr. Justice Black in Anti-Fascist Committee v. McGrath, 341 U. S. 123, 144-146.2
Those who see the force of this position counter by saying that the Government’s sources of information must be protected, if the campaign against subversives is to be successful. The answer is plain. If the sources of information need protection, they should be kept secret. But once they are used to destroy a man’s reputation and deprive him of his “liberty,” they must be put to the test of due process of law. The use of faceless informers is wholly at war with that concept. When we relax our standards to accommodate the faceless informer, we violate our basic constitutional guarantees and ape the tactics of those whom we despise.
other city and find some other job if he can. Since the same ban will probably follow him into any other plant engaged in defense orders, the going is rough. If he is a young man, he winds up in some recognizably marginal job, such as dishwashing or unskilled labor. If he is a man in middle life, he may end on the industrial scrap heap. Probably he never discovers exactly what hit him. The personnel people of the corporations do not confide to him their reasons for action.”
2 See Berle, op. cit. supra, p. 98.
PETERS v. HOBBY.
353
331	Reed, J., dissenting.
Mr. Justice Reed, with whom Mr. Justice Burton joins, dissenting.
I agree with Mr. Justice Douglas that the Court’s reason for annulling Dr. Peters’ discharge is not sound. In addition to the reasons stated by him, I find other factors that, to me, strengthen the view that the action of the Loyalty Review Board was not invalid. However, I do not express any opinion on the constitutional problems which might ultimately be faced if the Court had found that the Review Board’s action and all other nonconstitutional aspects of the case were proper.
Executive Order No. 9835 was issued by the President on March 21, 1947. By this order he established the Loyalty Review Board and granted to it certain rulemaking powers. Part III, § 1 b, Exec. Order No. 9835. The Review Board’s first promulgation of regulations pursuant to this power included the original of Regulation 14, which provided that the Board had the right “on its own motion” to review the decisions of the department or agency loyalty boards “even though no appeal has been taken.” 13 Fed. Reg. 255 (adopted December 17, 1947). Thus, from the very outset, the procedure followed by the Review Board in reviewing these cases was part of the loyalty program. Furthermore, from 1948 through 1952, in each of the Annual Reports of the Civil Service Commission, the results of the Review Board’s post-audit actions under Regulation 14 were unmistakably recorded.1 These reports were submitted to the President pursuant to statutory requirement.2 In addition to stating annual data on general post-audit reviews (more than 5,000 in 1952), the reports clearly indicated that the Board was rehearing cases on its own motion, such as the present,
1 Annual Reports of the Civil Service Commission: 1948 (p. 18); 1949 (pp. 37-38); 1950 (pp. 33-34); 1951 (p. 36); 1952 (p. 56).
25U.S.C. §633 (5).
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OCTOBER TERM, 1954.
Reed, J., dissenting.	349 U. S.
where the decision of the agency loyalty board had been favorable to the employee.3 The Court places emphasis on the number of cases so handled, but this hardly seems relevant in view of the fact that the reports indisputably conveyed to any reader the fact of what the Board was doing, whether in 1 case or 100.
The Court in this case is reviewing a Presidential Order and rules made thereunder. I do not find it as easy as does the majority to analogize such review to judicial review of congressional Acts and administrative interpretation of such Acts. Certain differences are immediately apparent. The Executive Branch is traditionally free to handle its internal problems of administration in its own way. The legality of judicial review of such intra-execu-tive operations as this is, for me, not completely free from doubt. However, construing the Loyalty Order as the Court does, like a statute, the contemporaneous construction of the Order by the Review Board in promulgating Regulation 14, and the action of the President in allowing the regulation and practices thereunder to continue after having notice from the Civil Service Commission reports, lead me to conclude that the Board by Regulation 14
3 “During the fiscal year 1952, the Loyalty Review Board postaudited 5,335 cases which had been decided favorably by agencies and regional loyalty boards. The Board authorized the closing of 5,259 of these cases upon finding that proper procedures had been followed. In 66 other cases, however, further processing was necessary to ensure compliance with standard procedures, and so the cases were remanded to boards in the agencies or in civil-service regions.
“The Board scheduled review of the other 10 cases on their merits and offered to hear the individuals concerned before rendering its decision on their cases. One case was closed as incomplete when the individual resigned. Action on the other 9 cases was completed; since this type of review of a case under Regulation 14 is similar to the consideration given an appeal, the cases of these individuals are included in the following section, which shows action on appeals received by the Loyalty Review Board.” 69th Annual Report (1952), Civil Service Commission, p. 56.
355
331
PETERS v. HOBBY.
Reed, J., dissenting.
correctly interpreted the Presidential intention conveyed by Executive Order 9835. Such reasonable interpretation promptly adopted and long-continued by the President and the Board should be respected by the courts. That has been judicial practice heretofore.4
Nor does comparison of Regulation 14 with the Order show, in my opinion, that the Regulation is “inconsistent with” any of the provisions of the Order. Rather the power of the Review Board to review under Regulation 14 appears to be supplemental to the other procedures which the Order itself prescribes. Therefore Regulation 14 constituted merely an implementation of the Order which the Review Board is specifically authorized to make under Part III, § lb, set out in the Court’s opinion, p. 340. Neither of the parties has contended otherwise before this Court. They also agree that the Board’s action was valid.
Undoubtedly the President had knowledge and approved of the Regulation. This is shown by his specific recognition of such cases in his own 1953 Order.5 That Order, while not controlling Dr. Peters’ case directly, since it did not become effective until after the Review Board had heard his case, recognized that the Review Board had been and could review decisions which had been favorable to an employee. This action by the President amounts to approval of the practice of the Review Board under Regulation 14. I am therefore compelled to conclude that the action of the Review Board in rendering its advisory recommendation in this case was not invalid.
4 Cf. United States v. American Trucking Assns., 310 U. S. 534, 549; Bowles v. Seminole Rock Co., 325 U. S. 410, 413-414; Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380; Norwegian Nitrogen Products Co. n. United States, 288 U. S. 294, 313, 315; Helvering n. Winmill, 305 U. S. 79,83.
5 Exec. Order No. 10450, §11, promulgated April 27, 1953, to become effective May 27, 1953. Set out in the Court’s opinion, n.22.
340907 0 - 55 - 29
356
349 U. S.
OCTOBER TERM, 1954.
Reed, J., dissenting.
The Court seems to imply, however, that the Review Board’s decision was more than merely a recommendation to the head of the department employing Dr. Peters and that the Board, in another “unwarranted assumption of power,” by its letter of May 22, 1953, erroneously separated Dr. Peters from the government service. Nowhere in the majority opinion does it appear that Secretary Hobby or the Department she heads, and for whom Dr. Peters worked, ever took any action in regard to the Review Board’s recommendation. The reference to this May 22 letter is apt to mislead, as it has nothing to do with the Department’s discharge of Dr. Peters, the validity of which is the issue in this case.
I agree that the Review Board’s letter of May 22, 1953, may have been erroneous. Under Civil Service Rule V, § 5.101 (a),6 federal employees found disqualified for federal employment because of a reasonable doubt as to their loyalty are barred from the federal competitive service for three years. This “final determination” as to loyalty is and can be made only by the head of a department or agency on recommendation of a loyalty board.7
6 “Persons disqualified for appointment. . . . Provided, That no person shall be admitted to competitive examination, nor shall he be employed in any position in the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty to the Government of the United States.” 5 CFR, 1949 ed. (1954 Cum. Supp.), §5.101 (a).
7 Exec. Order No. 9835, Part II:
“1. The head of each department and agency in the executive branch of the Government shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency.
“2. The head of each department and agency shall appoint one or more loyalty boards, ... for the purpose of hearing loyalty cases arising within such department or agency and making recommenda-
PETERS v. HOBBY.
357
331	Reed, J., dissenting.
When the head of a department acts on the Review Board’s recommendation, § 5.101 (a) becomes effective. The Review Board, acting as an agency of the Civil Service Commission, then notifies the employee of his disqualification. Assuming that the Review Board was not notified of any “final determination” prior to the letter of May 22, it was sent erroneously. However, it amounted to no more than a nullity and Dr. Peters lost nothing. It is undisputed that on June 12, 1953, the Surgeon General of the Public Health Service, a subordinate of Secretary Hobby, “notified plaintiff of his separation from his position as Special Consultant.” 8 This was the notification which effectively separated him from government service and which is the basis for his complaint for wrongful discharge.
Limiting myself to issues decided by the majority, I dissent.
tions with respect to the removal of any officer or employee of such department or agency on grounds relating to loyalty, and he shall prescribe regulations for the conduct of the proceedings before such boards.
“3. A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency or to such person or persons as may be designated by such head, under such regulations as may be prescribed by him, and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission’s Loyalty Review Board, hereinafter provided for, for an advisory recommendation.”
Id., Part III, 1:
“a. The [Review] Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. . . .”
8 Petitioner’s complaint, T 27.
358
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
FEDERAL COMMUNICATIONS COMMISSION v. ALLENTOWN BROADCASTING CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 451. Argued April 20-21, 1955.—Decided June 6, 1955.
1.	The Federal Communications Commission, in considering two mutually exclusive applications for radio broadcasting stations in different communities, under § 307 (b) of the Communications Act, may properly decide in favor of one applicant over the other on the basis of community need without first finding that the applicants are approximately equal in their ability to serve their respective communities. Pp. 360-362.
2.	When mutually exclusive applicants seek authority to serve different communities, it is proper for the Commission to determine first which community has the greater need for additional services and then to determine which applicant can best serve that community’s need. Pp. 361-362.
3.	The distribution of a second license to a community in order to secure local competition for originating programs of local interest and provide an additional organ for local self-expression is within the allowable area of the Commission’s discretion. P. 362.
4.	There was substantial evidence to support the Commission’s decision in this case. Pp. 363-364.
5.	An administrative agency’s overruling of an examiner’s findings based on the demeanor of a witness is not required to be supported by a “very substantial preponderance” in the evidence. P. 364.
6.	The decision of the Court of Appeals reversing the order of the Federal Communications Commission in this case was erroneous in matters of law, and the case is remanded to that court for reconsideration of the record but freed from rulings here declared erroneous. Pp. 364-365.
94 U. S. App. D. C. —,--F. 2d----, reversed.
Warren E. Baker argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Marvin E. Frankel, J. Smith Henley and Richard A. Solomon.
F. C. C. v. ALLENTOWN BROADCASTING CO. 359
358	Opinion of the Court.
Donald C. Beelar argued the cause and filed a brief for respondent.
Mr. Justice Reed delivered the opinion of the Court.
This case involves the disposition of two applications for construction permits for standard broadcast stations. One application was filed by the Easton Publishing Co. for Easton, Pennsylvania, and the other by the Allentown Broadcasting Corp, for Allentown, Pennsylvania. Both were for the same frequency, and, despite the fact that neither station would render service to the other community, simultaneous operation of the two stations would cause mutually destructive interference.
Hearings were first held in 1946 and resulted in the grant of the Allentown application. The Court of Appeals for the District of Columbia Circuit reversed the Commission and remanded the case for “findings upon the comparative needs of the two communities for new radio service and the relative abilities of the applicants to serve the greater need.” 85 U. S. App. D. C. 33, 40, 175 F. 2d 344, 351.
New hearings were held in 1951 by an examiner whose initial decision recommended that the Allentown application be granted. Easton filed exceptions to that decision with the Commission, and after oral argument the Commission issued its final decision, disagreeing with its examiner and granting the station to Easton. The Commission made detailed findings of fact as to the qualifications of the applicants and the nature of the communities to be served. Most factors provided no basis for choosing between the applicants. Both were found legally, technically and otherwise qualified to become the licensee; both communities were equally in need of the programs proposed to be broadcast by each applicant. One factor, however, was crucial in determining, under § 307 (b) of
360
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
the Communications Act,1 which applicant should receive the license. Allentown had three local stations; Easton only one. The Commission recognized that Allentown was a city almost triple the size of Easton and growing at a greater pace, but held that Easton’s need for a choice between locally originated programs was decisive.
The Court of Appeals reversed.2 Its examination of the record in detail demonstrated to it that findings of fact of the Commission that overruled findings of the Hearing Examiner were erroneous. Since these Commission findings, it thought, were the basis for that body’s ultimate finding of Easton’s ability to serve, it directed the Commission to revaluate the “issue of the relative abilities of the two applicants to serve in the public interest.” It held that there was no substantial evidence in the record to support the determination that “the ability of the applicants to serve their respective communities was about equal.” It concluded that, without support for this underlying finding, it was improper to apply the “choice of local service” principle. In view of the importance to the administration of the Act, certiorari was granted to review this decision. 348 U. S. 910.
The more important question presented by this certiorari, as stated by petitioner, is whether the Federal Communications Commission, in awarding AM licenses between mutually exclusive applicants for different communities, can select one community over another on the basis of the former’s need only if it has first found that the applicants are approximately equal in their ability to serve their respective communities.
1 “In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.” 47 U. S. C. § 307 (b).
2 94 U. S. App. D. C.-,---F. 2d----, as yet unpublished.
F. C. C. v. ALLENTOWN BROADCASTING CO. 361
358
Opinion of the Court.
The judgment of the Court of Appeals that such a preliminary finding was necessary was predicated upon the requirement of its earlier decision in this same controversy, which was not appealed, that there must be, as stated above, findings not only on comparative needs of the communities but also as to the “relative abilities of the applicants to serve the greater need.” 85 U. S. App. D. C., at 40, 175 F. 2d, at 351. The Court of Appeals, as we understand its opinion in the present case, thought that the “choice of local service” principle applied only where community need and applicant ability to serve such need were both approximately equal.3
The Commission challenges this position. It asserts that, when mutually exclusive applicants seek authority to serve different communities, the Commission first determines which community has the greater need for additional services and then determines which applicant can best serve that community’s need. Otherwise, argues the Commission, the needs of the community would be
3 The court said:
“This ‘choice of local service’ principle is a gloss on § 307 (b) of the Communications Act of 1934, supra. It was first applied by the Commission in Northwestern Ohio Broadcasting Corp., upon the crucial findings that the choice between the two communities was ‘indeed a difficult one,’ and that both applicants ‘propose[d] to render meritorious program services designed to meet the needs of the respective communities . . . .’ Since we affirmed on appeal because there was ‘no error in the record,’ our approval of the ‘choice of local service’ principle was limited to its application in circumstances of otherwise approximately equivalent community need and applicant ability to serve such need. Although in the present case the Commission purported to find such equivalence, we think there is no substantial evidence in the record as a whole—including the Hearing Examiner’s Initial Decision—to support the essential underlying finding that the ability of the applicants to serve their respective communities was about equal. Hence, we hold the Commission’s error is fatal to the order under review and requires that the case be remanded for reconsideration by the Commission.”
362
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
subordinated to the ability of an applicant for another locality. The position of the Commission was made quite clear in its judgment on Allentown’s petition for rehearing.4
We agree with the contention of the Commission. Section 307 (b), note 1, supra, empowers the Commission to allow licenses so as to provide a fair distribution among communities. Fairness to communities is furthered by a recognition of local needs for a community radio mouthpiece. The distribution of a second license to a community in order to secure local competition for originating and broadcasting programs of local interest appears to us to be likewise within the allowable area of discretion. There are other instances of Commission use of community allocation of licenses to secure local means of expression.5
4 “This is not a case in which the Commission is called upon to consider the comparative qualifications of two or more applicants proposing to serve the same community; instead, it is a case in which one of the applicants proposes to serve Easton, Pennsylvania, and the other Allentown, Pennsylvania and neither would provide service to the other community. Under such circumstances, the primary determination to be made is that required by Section 307 (b) of the Communications Act; namely, how best to distribute licenses among the several states and communities as ‘to provide a fair, efficient and equitable distribution of radio service to each of the same.’ In the present case, having determined that Easton, Pennsylvania with only one standard broadcast station was in substantially greater need of a second local facility than the Allentown community which already has four standard broadcast stations, we went on to consider, in accordance with the mandate of the Court of Appeals in the first Easton decision, which of the two applicants would best serve the needs of Easton, Pennsylvania and found that the Easton Publishing Company was such applicant.” 9 Pike & Fischer Radio Regulation 889. Not yet officially reported.
5 Newark Broadcasting Corp., 11 F. C. C. 1269,1271; Northwestern Ohio Broadcasting Corp., 3 Pike & Fischer Radio Regulation 1945, aff’d, Sky Way Broadcasting Corp. n. Federal Communications Commission, 85 U. S. App. D. C. 425, 176 F. 2d 951; Newnan Broad
F. C. C. v. ALLENTOWN BROADCASTING CO. 363
358	Opinion of the Court.
The record of the second hearing shows that the Commission had before it substantial evidence to support its conclusion as to Easton’s need and its applicant’s superior capacity to serve that need. In appraising the evidence as to the day and night existing radio service of the two communities, their proposed local programs and their staffs, the Commission concluded that there was little room for choice between communities except for the decisive factor of Easton’s need for a competitive standard broadcast service that Allentown already had. Since only the Easton applicant proposed to originate programs in and for Easton, the Commission awarded the license to that applicant.
In reaching its conclusion to set aside the Commission’s order awarding the license to Easton, the Court of Appeals found that the Commission’s reversal of its Hearing Examiner was erroneous. That court analyzed the evidence before the Commission as to Easton’s uncertainty on affiliating with radio networks to secure their programs for its listeners, the reluctance, evasiveness and lack of candor of Easton’s principal witnesses and the concentration of local communications media in the hands of the Easton applicant who was the publisher of the only local newspaper, the licensee of one of two FM radio stations and of the only television station. The court agreed with the Examiner and overruled the Commission. None of the above circumstances are in themselves a bar to the Commission’s grant of license. Each involves appraisals of testimony that put into a record facts derived from various witnesses by interrogation. There was substan-
casting Co., 11 F. C. C. 1369; Lee-Smith Broadcasting Co., 12 F. C. C. 589; Finger Lakes Broadcasting System, 11 F. C. C. 528; WMAK, Inc., 11 F. C. C. 850; Southern Media Corp., 11 F. C. C. 688; Lake Huron Broadcasting Corp., 6 Pike & Fischer Radio Regulation 1185; and see Vermilion Broadcasting Corp., 7 Pike & Fischer Radio Regulation 602 (b).
364
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
tial evidence considering the whole record that had to be weighed, pro and con, as to types of programs, evasiveness of witnesses, and the desirability of allocating an additional license to an applicant who already controlled other means of communication.
The Court of Appeals’ conclusion of error as to evasiveness relies largely on its understanding that the Examiner’s findings based on demeanor of a witness are not to be overruled by a Board without a “very substantial preponderance in the testimony as recorded,” citing Labor Board v. Universal Camera Corp., 190 F. 2d 429, 430. We think this attitude goes too far. It seems to adopt for examiners of administrative agencies the “clearly erroneous” rule of the Fed. Rules Civ. Proc., 52 (a), applicable to courts. In Universal Camera Corp. n. Labor Board, 340 U. S. 474, 492, we said, as to the Labor Management Relations Act hearings:
“Section 10 (c) of the Labor Management Relations Act provides that Tf upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact . . .
61 Stat. 147, 29 U. S. C. (Supp. Ill) § 160 (c). The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner’s findings only when they are ‘clearly erroneous.’ Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required.”
That comment is here applicable. See also § 8 of the Administrative Procedure Act, 60 Stat. 242.
The Federal Communications Act gives the Commission the power of ruling on facts and policies in the first instance. But its rulings are subject to review by the
F. C. C. v. ALLENTOWN BROADCASTING CO. 365
358	Opinion of the Court.
Courts of Appeals within the scope defined by Universal Camera Corp. v. Labor Board, 340 U. S. 474, and Labor Board n. Pittsburgh Steamship Co., 340 U. S. 498. The correction of errors of law by a Court of Appeals on review of administrative agencies is committed to this Court through its certiorari jurisdiction. We have found such errors of law in the decision of the Court of Appeals. Therefore, the decision below cannot stand. But it is not our function to reinstate the determination of the Commission. That would make this Court the reviewing body of the ultimate determination of the Commission. The proper disposition is to remand the case to the Court of Appeals for reconsideration of the record but freed from rulings declared erroneous in this opinion.
Reversed.
Mr. Justice Douglas dissents.
Mr. Justice Black took no part in the consideration or decision of this case.
366
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
WHITEHOUSE et al. v. ILLINOIS CENTRAL RAILROAD CO. et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 131. Argued February 10-11, 1955.—Decided June 6, 1955.
There was submitted to the National Railroad Adjustment Board a dispute between a telegraphers’ union and a railroad regarding the latter’s employment of a member of a clerks’ union in a position which the telegraphers’ union claimed should be assigned to one of its members. Notice of the proceeding was served by the Board on the railroad and the telegraphers’ union but not on the clerks’ union, which notified the railroad that it would prosecute a claim if its rights were adversely affected by disposition of the claim of the telegraphers’ union. The railroad urged the Board to give the clerks’ union and its affected member notice and an opportunity to be heard; but this request was denied. Prior to any decision by the Board on the merits of the dispute, the railroad sued in a federal district court to require the Board to serve notice on the clerks’ union and its affected member and to enjoin the Board from deciding the dispute until this had been done. The railroad urged that it might be confronted with conflicting claims and might suffer irreparable injury if the dispute were decided without participation of the clerks’ union and its affected member. Held: The injuries anticipated by the railroad are too speculative to warrant resort to extraordinary remedies, such as injunction or mandamus. Pp. 367-374.
212 F. 2d 22, reversed.
Milton Kramer argued the cause for petitioners. With him on the brief was Lester P. Schoene.
Walter J. Cummings, Jr. argued the cause for respondents. With him on a brief was Kenneth F. Burgess for the Carrier Members, National Railroad Adjustment Board, Third Division, respondents.
John W. Foster, Herbert J. Deany and Joseph H. Wright filed a brief for the Illinois Central Railroad Co., respondent.
WHITEHOUSE v. ILLINOIS CENTRAL R. CO. 367
366	Opinion of the Court.
Clarence M. Mulholland, Edward J. Hickey, Jr. and Richard R. Lyman filed a brief for the American Train Dispatchers’ Association et al., as amici curiae.
Mr. Justice Frankfurter delivered the opinion of the Court.
This suit arose out of a proceeding before the National Railroad Adjustment Board. A dispute had arisen between the Order of Railroad Telegraphers (Telegraphers) and the Illinois Central Railroad Co. (Railroad) regarding the latter’s employment of a member of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (Clerks) in a position which Telegraphers claimed should, under its collective bargaining agreement with Railroad, be assigned to a member of Telegraphers. After attempted settlement by negotiation had failed, Telegraphers submitted the dispute, in accordance with the Railway Labor Act, 44 Stat. 577, as amended, 48 Stat. 926, 45 U. S. C. § 151 et seq., to the Third Division of the National Railroad Adjustment Board. Notice of the proceeding was served by the Board on Telegraphers and Railroad. Railroad was then advised by letter that Clerks would prosecute a claim in the event that the rights of Clerks under their agreement with Railroad were adversely affected by the disposition of Telegraphers’ claim. Railroad filed a “submission” with the Board asserting that the disputed position involved clerical work of the type customarily performed by clerical forces in the industry and was in fact occupied by a member of Clerks, one Shears. Accordingly, Railroad contended, Telegraphers’ claim should be denied, but in any event notice and opportunity to be heard should be afforded Clerks and Shears.
The ten members of the Board, five representing labor and five representing the carriers, deadlocked on the merits and a Referee was appointed as a member of the
368
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
Board, agreeably to § 3 First (1) of the Railway Labor Act. When Telegraphers’ claim came on for hearing on May 13, 1953, a carrier member of the Board objected that no notice had been served on Clerks pursuant to the requirement of § 3 First (j) of the Act:
“Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.”
This objection was considered in camera by the regular members of the Board, the Referee having been excluded, as the District Court found, “in accordance with the custom and practice of the Third Division.” An even division resulted and the objection did not carry. After the Board reconvened in public, and in the presence of the Referee, who was not requested to and did not vote on this issue, the carrier member recited that the motion had lost and reiterated his objection, but the hearing resumed.
On May 22, apparently after the hearing had ended but prior to any announcement of a decision, Railroad filed the present action against the Board as such, its individual members, and the Referee. Railroad alleged that the failure to give notice violated the Act and that an award to Telegraphers would not prevent Clerks from prosecuting a similar claim successfully. The complaint sought temporary and permanent injunctions directing the Board to issue notice to Clerks and Shears, and restraining it from proceeding with any disposition of the claim until such notice had been given. Telegraphers, on intervention, contended, inter alia, that the means of review prescribed by the Railway Labor Act was exclusive and deprived the District Court of jurisdiction, that Railroad had failed to exhaust its administrative remedies, that
WHITEHOUSE v. ILLINOIS CENTRAL R. CO. 369
366	Opinion of the Court.
Railroad showed no injury, and that, in any event, under the Act the Board was not required to notify Shears and Clerks. The Board moved to dismiss on the ground that the action was premature, that other adequate administrative and judicial remedies existed and that Railroad was not threatened with irreparable injury.1
The District Court held that Shears and Clerks were “employees involved” within §3 First (j), that it was the “custom and practice” of the Third Division of the Board to deny notice and right to be heard to others than the parties to the specific claim before the Board, and that failure to do so was a denial of due process to the other interested persons and deprived the Board of jurisdiction. It issued a preliminary injunction restraining the Board from proceeding further in the matter unless formal notice was given to Shears and Clerks. On appeal by Telegraphers and the labor members of the Board, the Court of Appeals for the Seventh Circuit held that there could be “hardly any doubt” that Clerks and Shears were “involved” and that any award rendered without notice to them would be void and unenforceable. It rejected the contention that this action was premature because the award might be in favor of Railroad or the proceeding might be dismissed upon the deciding vote of the Referee based on failure to give notice. The court found that the Board had already refused to give notice and held that the Referee had no authority to cast a vote on a “procedural” matter. Since no administrative channel was found available for review of the failure to give notice, the court held that there was no need to await the conclusion of proceedings before the Board. Irreparable
1 The individual members of the Board also filed two diametrically opposite answers to the complaint. The five labor members objected to the grant of a preliminary injunction on grounds similar to those put forth by Telegraphers; the five carrier members generally agreed with the position of Railroad and supported the request for relief.
370
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
injury was found in the fact that Railroad would be required to devote time and money to what it deemed an invalid proceeding and was faced with the threat of a conflicting proceeding by Clerks. Emphasizing that this judicial proceeding did not constitute review of an award, but was “in the nature of mandamus” to compel the Board to perform its duty, the Court of Appeals affirmed, one judge dissenting. 212 F. 2d 22. We granted certiorari because serious questions concerning the administration of the Railway Labor Act are in issue. 348 U. S. 809.
We have been urged to resolve the present dispute regarding the requirement of notice to persons not formal parties to a submission to the Board, a dispute which has resulted in numerous conflicting decisions by the Board.2 This remains a perplexing problem despite the substantial agreement among Courts of Appeals which have considered the question in holding that notice is required to other persons in varying situations.3 The wording of the notice provision of § 3 First (j) does not give a clear answer. In the context of other related provisions it is certainly not obvious that in a situation like that now before us notice need be given beyond the parties to the submission. See § 3 First (i), (1), (m). Analogy to the law of parties as developed for judicial proceedings is not compelling and in any event does not approach consti-
2 E. g., compare Award No. 2253 (3d Div., Aug. 10,1943, H. Nathan Swaim, Referee) with Award No. 5432 (3d Div., Sept. 6, 1951, Jay S. Parker, Referee).
3 See, e. g., Nord v. Griffin, 86 F. 2d 481 (C. A. 7th Cir. 1936); Estes v. Union Terminal Co., 89 F. 2d 768 (C. A. 5th Cir. 1937); Brotherhood of Railroad Trainmen v. Templeton, 181 F. 2d 527 (C. A. 8th Cir. 1950); Kirby v. Pennsylvania R. Co., 188 F. 2d 793 (C. A. 3d Cir. 1951); but cf. Order of Railroad Telegraphers v. New Orleans, T. & M. R. Co., 156 F. 2d 1 (C. A. 8th Cir. 1946).
WHITEHOUSE v. ILLINOIS CENTRAL R. CO. 371
366	Opinion of the Court.
tutional magnitude. Both its history and the interests it governs show the Railway Labor Act to be unique. “The railroad world is like a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making.” Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L. J. 567, 568-569.
We have also been urged to reverse the holding of the lower court that a Referee may neither be appointed to resolve a deadlock on the question of notice nor, having been appointed to break a deadlock on the merits, vote to dismiss the proceeding because of failure to give the required notice. Again, we have been asked to judge Railroad’s present claim to relief on the basis of irreparable injuries which are alleged to flow from the dilemma in which Railroad will find itself if confronted either by an invalid award or a situation in which no valid award may be obtained. Railroad asserts that this dilemma is inevitable and will entail continuing industrial friction, the possibility of conflicting awards to both unions, and accumulating claims to back pay or damages which might have been avoided had notice been given and a valid award been rendered. If the award is against it, Railroad claims that it is at a loss to know whether to comply and be subjected both to suits to enjoin compliance and further Board proceedings by the third party, or to refuse to comply and attempt to defend an enforcement proceeding brought under §3 First (p).
At the lowest it is doubtful whether these hypothetical injuries are fairly to be deemed irreparable and without other adequate administrative or judicial remedy. Assuming that the Act permits the Board to consider the claim of one union in the light of competing agreements between
340907 0 - 55 - 30
372
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
Railroad and other unions, see Order of Railway Conductors v. Pitney, 326 U. S. 561, does it permit “final and binding” awards to be rendered interpreting both contracts and resolving the independent claims of both unions in a single proceeding? See §3 First (m). What, beyond proceedings under the Act, may third parties do to challenge an award in which they were improperly not permitted to participate? Compare Elgin, Joliet & Eastern R. Co. v. Burley, 325 U. S. 711, with General Committee v. Missouri-K.-T. R. Co., 320 U. S. 323. To what extent may defects in an award be cured in an enforcement action under § 3 First (p), and are the detriments which are asserted to flow from refusal to comply and reliance upon an enforcement action sufficient to justify judicial intervention? Cf. Federal Trade Commission v. Claire Furnace Co., 274 U. S. 160. One thing is unquestioned. Were notice given to Clerks they could be indifferent to it; they would be within their legal rights to refuse to participate in the present proceeding. Clerks here have not attempted to intervene. They have merely stated an intention to bring a separate proceeding in case they are affected by an award in this case. Indeed Railroad refers to an understanding between Clerks and Telegraphers whereby the one will not intervene in proceedings initiated before the Board by the other, but will press its claims independently. And Clerks have joined in a brief of amicus curiae which asserts that third parties are not entitled to notice. We would thus have to consider whether those potential injuries alleged to flow solely from failure of Clerks to participate may be the basis for judicial intervention where there is neither a legal right of the complaining party to be free from such injuries nor any assurance that judicial action will afford relief.
These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our
WHITEHOUSE v. ILLINOIS CENTRAL R. CO. 373
366	Opinion of the Court.
function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case. Here relief is sought prior to any decision on the merits by the Board. Apart from some lower court’s dicta, there is no reason for holding, in the abstract, that any possible award would be rendered void by failure to give notice to an outside even if related interest that cannot be compulsorily joined as a party to the proceeding. The Board has jurisdiction over the only necessary parties to the proceeding and over the subject matter. If failure to give notice be treated as an error, in an award in favor of Railroad it would constitute at best harmless error which could not be made the basis of challenge by Railroad, Telegraphers or Clerks. Railroad’s resort to the courts has preceded any award, and one may be rendered which could occasion no possible injury to it. The inevitable result is to disrupt the proceedings of the Board. Its decision has already been delayed for more than two years.
It may be true, as the Court of Appeals observed, that this action must be viewed as “in the nature of mandamus” because mere injunctive relief would not prevent most of the injuries which Railroad seeks to avoid. But mandamus is itself governed by equitable considerations and is to be granted only in the exercise of sound discretion. We hold, in conformity with past decisions, that the injuries are too speculative to warrant resort to extraordinary remedies. See Eccles v. People’s Bank, 333 U. S. 426; Public Service Comm’n v. Wycoff Co., 344 U. S. 237; United States ex rel. Chicago G.W.R. Co. N. Interstate Commerce Commission, 294 U. S. 50. Moreover, among the injuries asserted by Railroad, only the possibility that it is being put to needless expense incident to the pending Board proceeding will necessarily be involved if judicial relief is denied at this stage of the administrative process.
374	OCTOBER TERM, 1954.
349 U. S.
Opinion of the Court.
Such expense is inadequate basis for intervention whether by mandamus or injunction. Myers n. Bethlehem Shipbuilding Corp., 303 U. S. 41; Utah Fuel Co. v. Coal Comm’n, 306 U. S. 56.
Reversed.
Mr. Justice Reed, Mr. Justice Douglas and Mr. Justice Minton dissent.
Mr. Justice Harlan took no part in the consideration or decision of this case.
WILLIAMS v. GEORGIA.
375
Syllabus.
WILLIAMS v. GEORGIA.
CERTIORARI TO THE SUPREME COURT OF GEORGIA.
No. 412. Argued April 18, 1955—Decided June 6, 1955.
Petitioner is a Negro who was convicted by an all-white jury in a Georgia state court for murdering a white man and was sentenced to death. After his conviction had been affirmed by the State Supreme Court, he filed in the trial court an extraordinary motion for a new trial, claiming for the first time that his conviction was invalid because of unconstitutional discrimination against Negroes in the selection of the jury panel from which the jury which convicted him had been drawn. He alleged that the method of selecting the jury panel was the same as that which was condemned in Avery v. Georgia, 345 U. S. 559; but dismissal of his motion was sustained by the State Supreme Court on the ground that, under Georgia law, objection to a jury panel can be made only at the time when the panel is “put upon” the defendant and before trial begins and that petitioner had not shown sufficient excuse for his failure to object at that time. In oral argument before this Court, the State conceded that, as a matter of substantive law, petitioner had been deprived of his constitutional rights. Held:
1.	Where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, this Court is not precluded from assuming jurisdiction and deciding whether the state court’s action in the particular circumstances is, in effect, an avoidance of the federal right. P. 383.
2.	A review of the Georgia decisions leads to the conclusion that the trial court and the State Supreme Court in this case declined to grant petitioner’s motion though possessed of the power to do so under state law. Pp. 383-389.
3.	In view of the extraordinary facts of this case, orderly procedure requires a remand to the State Supreme Court for reconsideration, and it is so remanded. Pp. 389-391.
210 Ga. 665, 82 S. E. 2d 217, remanded for reconsideration.
By invitation of the Court, 348 U. S. 957, Eugene Gressman argued the cause and filed a brief, as amicus curiae, in support of petitioner. Carter Goode submitted on brief for petitioner.
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E. Freeman Leverett and Robert H. Hall, Assistant Attorneys General of Georgia, argued the cause for respondent. With them on the brief was Eugene Cook, Attorney General.
Mr. Justice Frankfurter delivered the opinion of the Court.
The Court has here under review the decision of a state court rejecting a claim of infirmity in a conviction for murder based on a constitutional ground raised for the first time in an extraordinary proceeding after the conviction had been affirmed on appeal. Respect for the State’s administration of criminal justice requires a detailed narrative of the procedural course of this litigation and an adequate consideration of the legal factors relevant to our disposition.
Petitioner, a Negro, was convicted in Fulton County, Georgia, of the murder of a white man and sentenced to death. According to the allegations before us, the petit jury which convicted him was selected in the following manner:
On February 18, 1953, a judge of the Fulton County Superior Court selected from a box the names of prospective jurors. The names of white persons were on white tickets and the names of Negroes were on yellow tickets. The tickets were handed to a deputy sheriff, who in turn gave them to a deputy clerk for listing. The named jurors were subsequently summoned, some were excused, and the remaining 120 were available for the ten panels of twelve jurors each to serve in the trial of civil and criminal cases in the Fulton County Superior Court for the week of March 9, 1953. Of the 120 jurors, four were Negroes, and all four were assigned to the criminal docket.
On March 10, 1953, a panel of 48 of the 120 jurors was “put upon” Williams at his trial. Thirteen jurors, includ-
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ing three of the four Negroes, were excused for cause. The State peremptorily challenged the fourth Negro, so that no Negroes served on the jury of twelve which was finally selected to try Williams.
The trial, which immediately followed the selection of the jury, lasted one day. Twenty-three witnesses appeared against Williams. His only defense was a short unsworn statement to the effect that he had not committed the crime and that he had been “afraid” when he signed the written confession introduced against him.
Williams’ court-appointed attorney filed a formal motion for new trial on March 27, 1953, and a more detailed amendment to the motion on June 29, 1953. The motion was overruled, and an appeal to the Georgia Supreme Court followed. On October 14,1953, that court affirmed the judgment. 210 Ga. 207, 78 S. E. 2d 521.
On December 1, 1953, Williams’ counsel filed in the trial court an extraordinary motion for new trial under Ga. Code Ann., § 70-303.1 In this motion he alleged for the first time that Williams had been denied equal protection of the laws under the Fourteenth Amendment to the United States Constitution by the manner in which the petit jury had been selected, organized, impaneled and challenged. An affidavit by Williams accompanied the motion, stating that at the time of trial he had no knowledge of the methods used to select the jury. A similar affidavit by his counsel stated further that “the same
1 “In case of a motion for a new trial made after the adjournment of the court, some good reason must be shown why the motion was not made during the term, which shall be judged of by the court. In all such cases, 20 days’ notice shall be given to the opposite party. Whenever a motion for a new trial shall have been made at the term of trial in any criminal case and overruled, or when a motion for a new trial has not been made at such term, no motion for a new trial from the same verdict shall be made or received, unless the same is an extraordinary motion or case, and but one such extraordinary motion shall be made or allowed.”
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could not have been discovered by him [the counsel] in the exercise of ordinary diligence.” The law partner of Williams’ counsel submitted a third affidavit to the effect that he had taken no part in the trial or in its preparation.
On January 18, 1954, the trial court dismissed the extraordinary motion for new trial. An appeal was taken to the Georgia Supreme Court. In the appeal, reliance was placed almost exclusively upon the case of Avery v. Georgia, 345 U. S. 559, for the claim that Williams had been denied equal protection of the laws. The pertinence of that case to this turns on the time sequence in the two cases 2 as well as on the relevant substantive facts.
Avery was convicted of rape on September 20, 1951, in Fulton County, Georgia—the same county in which Williams was tried a year and a half later. Avery’s petit jury was drawn with yellow and white tickets, precisely in the manner used later in the case of Williams. In Avery’s case, no Negroes appeared on the list of 60 jurors put upon him at the trial, whereas here, four Negroes appeared on the list of 120 jurors from which Williams’ jury was selected. Avery, however, challenged the array when the jury was put upon him; Williams did not. Avery’s challenge was overruled, and after trial he appealed on the ground of discrimination in the selection of the jury. The Georgia Supreme Court disapproved of the use of yellow and white tickets but affirmed the judgment on the ground that no discrimination was actually shown.3
2 See Appendix, post, p. 392, for table comparing the dates in the two cases.
3 The court said: “And while the statute does not say so, its manifest intention is that the tickets shall be of uniform size and color, so as to make discrimination impossible in the drawing of jurors; and, where not so done, this is prima facie evidence of discrimination, and, if nothing else appeared, would require a reversal. In this case, however, it is not charged or contended that any discrimination was practiced in drawing the challenged jurors; and the judge who drew them, as a witness for the accused, testified there was in fact
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Certiorari in the Avery case was filed in this Court on July 28, 1952, nine weeks before the alleged murder in the Williams case. The ground, as here, was that the use of different-colored tickets for whites and Negroes deprived the defendant of equal protection of the laws. Avery’s petition for certiorari was granted March 9, 1953, the day before the petit jury was put upon Williams. This Court reversed the Avery case on May 25, 1953, holding that Avery had made out a prima facie case of an unconstitutional discrimination by showing the use of different-colored tickets which the State had not rebutted.
While this Court’s decision in the Avery case was thus rendered over two months after Williams’ trial, it came a month before the amendment to his formal motion for new trial. Yet Williams’ counsel did not rely upon the ground raised by the Avery decision until some six months later in his extraordinary motion for new trial.
As already stated, the extraordinary motion was dismissed by the trial court, and Williams again appealed to the Georgia Supreme Court. That court affirmed the dismissal of the extraordinary motion. The court concluded that Williams, having failed to challenge the array when put upon him, had waived any objections to the jury’s selection. The affidavits of Williams, his counsel, and his counsel’s partner were deemed insufficient to excuse Williams’ failure to challenge the array at the outset of the trial.
The court did not rest on this consideration. It urged that the facts inherent in the case contradicted the affidavits. The court said that its own decision in the Avery
none. Therefore, the practice of placing the names of white and colored jurors in the jury box on tickets of different colors did no harm in this instance, and consequently furnished no sufficient objection to the jurors challenged by the accused.” 209 Ga. 116, 124, 70 S.E. 2d 716,722.
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case, prior to the Williams trial, had fully set out the practice of using different-colored tickets in the selection of juries. “Due diligence would certainly have required the defendant and his attorney to make themselves familiar with the opinions of this court on the question now raised. It follows that, for this reason, the motion for new trial was not sufficient as an extraordinary motion for new trial.” 210 Ga. 665, 668, 82 S. E. 2d 217, 219.
In view of the entanglement of this case with our decision in Avery, we granted certiorari. 348 U. S. 854. Since the attorney appointed by the Georgia court advised the Clerk of this Court that he would not be in a position to present oral argument before this Court,4 we appointed
4 Counsel were informed that this case would be argued in this Court on March 3, 1955. On February 14, 1955, the Assistant Attorney General of Georgia wrote the Clerk of this Court that his office had been informed by Williams’ counsel that “in all probability he would not participate in the oral argument of this case.” The Clerk requested the attorney on February 18 to inform the Court of his plans. Under date of February 22, the attorney wrote to the Clerk as follows:
“Dear Sir:
“At the present time, it does not appear that I will be able to come to Washington to present oral argument in the above case. I have little or nothing to add to the brief.
“It is entirely agreeable, insofar as my agreement has any bearing, that the Attorney General’s request in letter of February 14, 1955, [for permission to have two counsel present the State’s case] be granted.
“I am assuming that if events take such a turn that I am able to come to Washington, I will be permitted to make a short oral argument.	“Yours very truly,”
Under date of February 26, 1955, the Clerk sent the attorney the following letter:
“Dear Sir:
I have spoken to the Chief Justice about the oral argument in this case and of the probability that you would not be present.
He asked me to inform you that the Court would appreciate
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amicus curiae to present argument on Williams’ behalf. 348 U. S. 957.
In his brief on behalf of the State before the State Supreme Court, the Solicitor General of Fulton County had urged, inter alia, that there was no showing of a denial of equal protection in this case.5 On oral argu-
your presenting oral argument if at all possible, particularly in view of the fact that this a capital case.	“Yours truly,”
The attorney replied under date of February 28:
“Dear Sir:
“I am in this position about this case: I originally entered the case by appointment, before our General Assembly enacted legislation authorizing the payment of appointed counsel from the Treasury of Fulton County. This petitioner has no money. His family have made contributions which have in part paid actual expenses. At the present time, they have only paid one-half the cost of printing the brief, and in this situation, it appears that any expense connected with a trip to Washington will be out-of-pocket to me.
“In addition, I am sole counsel in a suit in the Superior Court of Polk County, Georgia, on the calendar of that court for trial during the present week where my absence for any cause will have the result that payment of temporary alimony to my client will not be continued, which in turn, will have the result that I will lose the client.
“I have appeared in the Supreme Court of Georgia twice in this case and have pursued it thus far in the Supreme Court of the United States at a considerable sacrifice. It has been my intention to present oral argument if at all possible. In view of the foregoing, however, it simply does not seem that I will be able to. If I can try the case in Polk Superior Court tomorrow (March 1st), there remains a possibility that I will be able to appear before the Supreme Court. I do not, however, believe such will be the case and for that reason, I cannot plan on going to Washington.	“Very truly yours,”
Oral argument was subsequently reset for April 18, 1955.
5 The Solicitor General said at the end of his brief: . .In the Avery Case no negro jurors were drawn and impanelled. In this case 4 negro jurors were actually impanelled and sworn for the trial
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ment here, however, the State, with commendable regard for its responsibility, agreed that the use of yellow and white tickets in this case was, in light of this Court’s decision in Avery, a denial of equal protection, so that a new trial would be required but for the failure to challenge the array. We need only add that it was the system of selection and the resulting danger of abuse which was struck down in Avery and not an actual showing of discrimination on the basis of comparative numbers of Negroes and whites on the jury lists. The question now before us, in view of the State’s concession, is whether the ruling of the Georgia Supreme Court rests upon an adequate nonfederal ground, so that this Court is without jurisdiction to review the Georgia court.
A state procedural rule which forbids the raising of federal questions at late stages in the case, or by any
of this case. The mere fact that 3 were disqualified for cause and one was stricken peremptorily by the State would not suffice to show a course of systematic exclusion of negroes from the jury such as would amount to discrimination against the defendant in the trial of his case.
“We respectfully submit that the facts alleged in the extraordinary motion for a new trial do not make out a case showing denial of equal protection of the law or due process of law under the 14th Amendment to the Constitution of the United States, and that under the authorities cited above the judgment of the trial judge in dismissing the extraordinary motion should be affirmed.”
The Attorney General of the State, who also filed a brief on behalf of the State, did not discuss the constitutional question except in his concluding paragraph:
“If, under the decision in the Avery case, there was in fact a discrimination against the movant in his trial, we do not say that he does not have some remedy at law but we do contend that the question is not ground for extraordinary motion for new trial and that the Court did not err in dismissing the same.”
No other remedy was mentioned by the Georgia Supreme Court, and none has been called to our attention by the parties.
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other than a prescribed method, has been recognized as a valid exercise of state power.6 The principle is clear enough. But the unique aspects of the never-ending new cases that arise require its individual application to particular circumstances. Thus, we would have a different question from that before us if the trial court had no power to consider Williams’ constitutional objection at the belated time he raised it. But, where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right.7 A state court may not, in the exercise of its discretion, decline to entertain a constitutional claim while passing upon kindred issues raised in the same manner.
The Georgia courts have indicated many times that motions for new trial after verdict are not favored, and that extraordinary motions for new trial after final judgment are favored even less.8 But the Georgia statute provides for such motion,9 and it has been granted in “exceptional” or “extraordinary” cases. The general rule is that the granting or denying of an extraordinary motion
6 See, e. g., Parker v. Illinois, 333 U. S. 571; Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 128; Pennsylvania R. Co. v. Illinois Brick Co., 297 U. S. 447, 462-463; Central Union Telephone Co. v. City of Edwardsville, 269 U. S. 190.
7 Cf. Rogers n. Alabama, 192 U. S. 226; Abie State Bank v. Bryan, 282 U. S. 765, 772-773; Pierre v. Louisiana, 306 U. S. 354, 358; Urie v. Thompson, 337 U. S. 163, 172—173; Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U. S. 359, 367.
8 E. g., Parks v. Georgia, 204 Ga. 41, 48 S. E. 2d 837 (1948); Brown v. Georgia, 141 Ga. 783, 82 S. E. 238 (1914); Tyre v. Georgia, 38 Ga. App. 206, 143 S. E. 778 (1928).
9 Ga. Code Ann., § 70-303. See note 1, supra.
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for new trial rests primarily in the discretion of the trial court, and the appellate court will not reverse except for a clear abuse of discretion.10 In practice, however, the Georgia appellate courts have not hesitated to reverse and grant a new trial in exceptional cases. For example:
In Wright v. Davis, 184 Ga. 846, 193 S. E. 757 (1937), the defendant was sentenced to death, his motion for new trial was overruled, and the judgment was affirmed on appeal by the Georgia Supreme Court. Three months after the affirmance the defendant made an extraordinary motion for new trial on the ground that an ex-convict had obtained a seat on the jury by impersonating his father, whose name was properly on the jury list. The trial court denied the extraordinary motion. The Georgia Supreme Court granted mandamus and made it absolute. It said:
“In the instant case we are of the opinion that the extraordinary motion for a new trial and the proffered amendment presented a state of facts which, standing without dispute, required as a matter of law that a new trial should be granted. . . .
. The verdict itself shows that the defendant was not benefited, as he received the extreme penalty, and it is clear that he was deprived of his right to have a jury composed entirely of upright men. Code, §§ 2-4502, 59-106. It will not do to speculate on whether the accused suffered actual injury, when so vital a right has been violated. There are some conditions from which injury will be presumed. . . (184 Ga., at 851, 853, 193 S. E., at 760.)
10 E. g., Patterson v. Georgia, 208 Ga. 689, 69 S. E. 2d 84 (1952); Pulliam v. Georgia, 199 Ga. 709, 35 S. E. 2d 250 (1945); Rogers v. Georgia, 129 Ga. 589, 59 8. E. 288 (1907); Echols v. Georgia, 87 Ga. App. 565, 74 S. E. 2d 474 (1953); Bivins v. McDonald, 50 Ga. App. 299, 177 S. E. 829 (1934).
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The court rejected the State’s contention that the defendant had not shown due diligence in discovering the juror’s disqualification.11
Smith v. Georgia, 2 Ga. App. 574, 59 S. E. 311 (1907), involved a conviction for arson. A motion for new trial was denied, the judgment was affirmed on appeal, and five months later the defendant filed an extraordinary motion for new trial on the ground that one of the jurors was related to the deceased wife of the prosecutor within the ninth degree, and several of the prosecutor’s children continued the kinship by affinity. The trial court denied the motion, but the appellate court granted a new trial. It said:
. . There is no higher purpose to be subserved in the administration of the criminal law than that every defendant shall be accorded a trial by jury, and jury trial is a mockery unless the jury be not only impartial but also beyond just suspicion of partiality. . . .” (2 Ga. App., at 578, 59 S. E., at 313.) In answer to the State’s contention that the defendant and his attorney had not shown due diligence in discovering the prohibited relationship, the court said that the trial judge had inquired into the question of relationship when the jury was impaneled, and then the court added this quotation from a Georgia Supreme Court opinion:
11. . . ‘Parties are not required to make searching investigation out of court to determine whether the jurors who are summoned are disqualified in their cases. Not only is such a duty not placed by the
11 Cf. Williams v. Georgia, 12 Ga. App. 337, 77 S. E. 189 (1913), in which the presence on the jury of a juror previously convicted of an offense involving moral turpitude was deemed to warrant a new trial on a motion after verdict, as compared with an extraordinary motion after final judgment.
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law upon parties and their counsel, but the contrary practice is to be encouraged, for obvious reasons.’ ” (2 Ga. App., at 582, 59 S. E., at 315.)
In Crawley v. Georgia, 151 Ga. 818, 108 S. E. 238 (1921), four defendants were convicted of murder. Two were sentenced to death and two to life imprisonment. A motion for new trial was overruled, the judgment was affirmed on appeal, a motion for rehearing was denied, and a week later the defendants filed an extraordinary motion for new trial, which the trial court overruled. The Georgia Supreme Court reversed. The extraordinary motion showed that the wife of one juror was within the ninth degree of relationship to the wife of the murdered man. A new trial was granted even though the State submitted an affidavit by the juror that he did not know of the relationship at the time of the trial and therefore could not have been prejudiced.12
In Doyal v. Georgia, 73 Ga. 72 (1884), the defendant was convicted of murder. His motion for new trial was denied, and the judgment was affirmed on appeal. He filed an extraordinary motion for new trial on the ground that five witnesses were ready to testify that one of the jurors had said in effect before the trial that the defendant ought to be hung and that the juror would see to it if he got on the jury. The defendant and his attorney filed affidavits to the effect that they had been ignorant of the facts at the time of trial. Despite affidavits submitted
12 Cf. the following cases in which new trials were granted on motion after verdict, as compared with an extraordinary motion after final judgment, because of a juror’s disqualification. Harris v. Georgia, 188 Ga. 745, 4 S. E. 2d 651 (1939); Ethridge n. Georgia, 164 Ga. 53, 137 S. E. 784 (1927); Currie v. Georgia, 156 Ga. 85, 118 S. E. 724 (1923); O’Berry v. Georgia, 153 Ga. 644, 113 S. E. 2 (1922); Merritt v. Georgia, 152 Ga. 405, 110 S. E. 160 (1921) ; Hubbard n. Georgia, 5 Ga. App. 599, 63 S. E. 588 (1909); Perrett v. Georgia, 16 Ga. App. 587, 85 S. E. 820 (1915); Cray v. Georgia, 37 Ga. App. 371, 140 S. E. 402 (1927).
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by the State showing the availability of three of the five witnesses at the time of trial, the Georgia Supreme Court granted a new trial.13
There are other cases of like tenor.14
All these cases (barring Harris n. Georgia, n. 14) involved objections to individual jurors, as contrasted with the objection to the whole panel in this case. But the two situations cannot be distinguished on this ground.
13 Under Georgia practice, the headnotes to cases are written by the court. The headnote in this case said: “Held, that conviction for murder and sentence of death on the verdict of a juror so utterly destitute of truth and uprightness of character, would shock the conscience of civilization, and soil the purity of jury trial; and no matter how heinous the crime committed, the preservation of that purity is of more consequence than the speedy punishment of any one man for any one offense, and public policy, as well as individual right, demand a new trial.”
In Wallace v. Georgia, 205 Ga. 751, 55 S. E. 2d 145 (1949), affidavits similar to those in the Doyal case were presented by the defendant, but the State introduced positive affidavits to the effect that no such statements by the juror had been made. The headnote written by the Georgia Supreme Court stated: “There was no manifest abuse of discretion by the trial judge in overruling [this] ground of the extraordinary motion for a new trial, based upon conflicting evidence as to the alleged disqualification of the juror therein referred to.” (205 Ga., at 752, 55 S. E. 2d, at 146.)
14 In Bloodworth v. Georgia, 161 Ga. 332, 334, 131 S. E. 80, 81 (1925), it was stated that in a prior trial defendant was granted a new trial on an extraordinary motion after final judgment because a juror was disqualified.
In Harris v. Georgia, 150 Ga. 680, 104 S. E. 902 (1920), the defendant was sentenced to death for murder, a motion for a new trial was denied, and the judgment was affirmed on appeal. An extraordinary motion for new trial was overruled by the trial court, but the State Supreme Court reversed. The ground of the reversal was that after the jury had informed the judge that they could not agree, a deputy sheriff gave them the judge’s message that he could not help them further, and then the deputy added, “the judge would keep them locked up until they did make a verdict,” after which a verdict was brought in.
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Georgia has a rule, as the State Supreme Court noted in this case, that an objection to the whole panel must be made by way of a challenge to the array at the time the panel is put upon the defendant. Cornelious v. Georgia, 193 Ga. 25, 17 S. E. 2d 156 (1941); Wilcoxon v. Al-dredge, 192 Ga. 634, 15 S. E. 2d 873 (1941); Cumming v. Georgia, 155 Ga. 346, 117 S. E. 378 (1923); Lumpkin v. Georgia, 152 Ga. 229, 109 S. E. 664 (1921).15 But none of these cases declare that an extraordinary motion is not available in a proper case for granting a new trial when the objection is to the panel. On the contrary, several factors indicate that the trial judge and the appellate court have the same degree of discretion in the “array” cases as in cases involving individual jurors. First: There is also a rule in Georgia that an objection to an individual juror must be made at the trial by a challenge to the poll.16
15 Some of these cases are not entirely clear. For example, Lumpkin stated that all objections to the impaneling of the grand jury should be made by challenge to the array before the indictment is found, where the illegality is known, or, if not known, by plea in abatement to the indictment; objections to "certain jurors” on the trial jury should be raised by a challenge to the juror when put upon the defendant. This rule is cited in Cornelious for the proposition that an objection to both grand and petit juries must be made by a challenge to the array before indictment or by plea in abatement before trial. In Kato v. Georgia, 33 Ga. App. 342, 126 S. E. 266 (1925), the grand jury rule was applied to individual grand jurors rather than to the panel, and the challenge was said to be one to the array. And in Moon v. Georgia, 68 Ga. 687 (1882), it was said that an objection to a single juror should be made by a challenge to the array. Cf. note 16, infra.
16 E. g., Fudge n. Georgia, 190 Ga. 340, 9 S. E. 2d 259 (1940); Bryan v. Georgia, 124 Ga. 79, 52 S. E. 298 (1905); Taylor v. Georgia, 121 Ga. 348, 49 S. E. 303 (1904). In Georgia, challenges to the array go to the form and manner of making up the entire panel, whereas challenges to the poll are directed solely to the individual juror. See Humphries v. Georgia, 100 Ga. 260, 262, 28 S. E. 25, 26 (1897); Mitchell v. Georgia, 69 Ga. App. 771, 776, 26 S. E. 2d 663, 667 (1943).
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But as the cases above demonstrate, this rule gives way-in an exceptional case to the need for a new trial shown by extraordinary motion. It does not appear rational to deny that the rule as to challenges to the array is likewise not inflexible. Second: The opinion of the Georgia Supreme Court in this case supports this conclusion. If the trial court had no power to entertain the motion, it was immaterial whether the affidavits were faulty. Yet the Supreme Court felt called upon to question the reliability of the affidavits, concluding that Williams’ counsel must have failed to use due diligence and “for this reason” the motion was “not sufficient.” 17
We conclude that the trial court and the State Supreme Court declined to grant Williams’ motion though possessed of power to do so under state law. Since his motion was based upon a constitutional objection, and one the validity of which has in principle been sustained here, the discretionary decision to deny the motion does not deprive this Court of jurisdiction to find that the substantive issue is properly before us.
But the fact that we have jurisdiction does not compel us to exercise it. In Patterson v. Alabama, 294 U. S. 600, we remanded a case to the highest court of the State, even though that court had affirmed on state procedural grounds, because after that affirmance we had reversed on constitutional grounds a case having identical substantive facts. We said there:
“While we must have proper regard to this ruling of the state court in relation to its appellate procedure, we cannot ignore the exceptional features of the present case. An important question under the Federal Constitution was involved, and, from that standpoint, the case did not stand alone. . . .
17 210 Ga. 665, 668, 82 S. E. 2d 217, 219.
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. We are not satisfied that the court would have dealt with the case in the same way if it had determined the constitutional question as we have determined it. . . .
“We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. We have said that to do this is not to review, in any proper sense of the term, the decision of the state court upon a non-federal question, but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case. . . (294 U. S., at 605, 606, 607.)
In the instant case, there is an important factor which has intervened since the affirmance by the Georgia Supreme Court which impels us to remand for that court’s further consideration. This is the acknowledgment by the State before this Court that, as a matter of substantive law, Williams has been deprived of his constitutional rights. The Solicitor General of Fulton County, it should be recalled, had urged before the Georgia Supreme Court that no denial of equal protection was involved, and that court may well have been influenced by the contention. Moreover, if there is another remedy open to Williams, as the Attorney General of the State intimated in his brief to the Georgia Supreme Court,
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that court should have an opportunity to designate the appropriate remedy.18
The facts of this case are extraordinary, particularly in view of the use of yellow and white tickets by a judge of the Fulton County Superior Court almost a year after the State’s own Supreme Court had condemned the practice in the Avery case. That life is at stake is of course another important factor in creating the extraordinary situation. The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant.19 We think that orderly procedure requires a remand to the State Supreme Court for reconsideration of the case. Fair regard for the principles which the Georgia courts have enforced in numerous cases and for the constitutional commands binding on all courts compels us to reject the assumption that the courts of Georgia would allow’ this man to go to his death as the result of a conviction secured from a jury which the State admits was unconstitutionally impaneled. Cf. Mooney v. Holohan, 294 U. S. 103.
Remanded.
[For dissenting opinion of Mr. Justice Clark, see post, p. 393.]
[For dissenting opinion of Mr. Justice Minton, see post, p. 403.]
18 Even if extraordinary motion is the appropriate remedy, local practice may require Williams to be put to his proof. The State, for purposes of presenting its legal arguments, has not disputed the facts alleged in the extraordinary motion, but there has not been a hearing on those facts or an admission of their truth.
19 Cf. Patterson n. Alabama, supra, with Betts v. Brady, 316 U. S. 455.
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OCTOBER TERM, 1954.
Appendix to Opinion of the Court.
APPENDIX TO OPINION OF THE COURT.
WILLIAMS CASE
Oct. 4, 1952 — alleged murder occurs.
Oct. 17, 1952—Williams arrested, placed in a line-up, confesses.
Oct. 21, 1952—Williams indicted.
Feb. 18, 1953 — jury panels chosen for trials during week of March 9th.
March 10, 1953—jury put upon Williams, trial held, and verdict of guilty.
March 11, 1953—sentenced.
March 27, 1953—formal motion for new trial filed.
June 29, 1953—amendment to motion for new trial filed; motion overruled.
July 16, 1953—bill of exceptions filed.
Oct. 14, 1953—Georgia Supreme Court affirms.
Nov. 23, 1953—Williams again sentenced to death.
Dec. 1, 1953—extraordinary motion for new trial filed.
Jan. 18, 1954—trial court dismisses extraordinary motion.
May 19, 1954—Georgia Supreme Court affirms.
Oct. 18, 1954—this Court grants certiorari.
AVERY CASE
Sept. 20, 1951—Avery convicted.
April 14, 1952—Georgia Supreme Court affirms.
July 28, 1952—certiorari filed in this Court.
March 9,1953—this Court grants certiorari.
April 30, 1953—case argued in this Court.
May 25, 1953—this Court reverses, holding jury selection unconstitutional.
WILLIAMS V. GEORGIA.
393
375	Clark, J., dissenting.
Mr. Justice Clark, with whom Mr. Justice Reed and Mr. Justice Minton join, dissenting.
To borrow a phrase from Mr. Justice Holmes, the opinion of the Court “just won’t wash.” While I, too, am not deaf to the pleas of the condemned, I cannot ignore the long-established precedents of this Court. The proper course, as has always been followed here, is to recognize and honor reasonable state procedures as valid exercises of sovereign power. We have done so in hundreds of capital cases since I have been on the Court, and I do not think that even the sympathetic facts of this case should make us lose sight of the limitations on this Court’s powers.
To see just how far the Court has “stretched” here, it is only necessary to compare today’s majority opinion with Patterson v. Alabama, 294 U. S. 600, the decision relied on to support the Court’s remand. In that case, Patterson and one Norris had been charged in a common indictment. Prior to trial, both interposed constitutional claims of systematic exclusion of Negroes from the jury. Patterson, however, failed to file his bill of exceptions within the time prescribed by state law. The Alabama Supreme Court decided the separate appeals on the same day, denying Norris’ claim on the merits, Norris n. State, 229 Ala. 226, 156 So. 556, while dismissing Patterson’s case as out of time. 229 Ala. 270, 156 So. 567. This Court thereafter reversed Norris’ conviction. 294 U. S. 587. In Patterson, however, the Court was confronted with an independent and adequate state ground which presented an insuperable obstacle to reversal. Nevertheless, it was quite possible that had the Alabama court realized the validity of the objection it had overruled on the merits in Norris, it might have regarded the whole complexion of the case as different and chosen not to rest on a narrow procedural ground in Patterson. This Court,
394
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
therefore, remanded the case to the Alabama Supreme Court for reconsideration of its decision in the light of the important intervening factor.
Note the magnitude of the “important intervening factor” here and just how it changes the complexion of the case. The majority relies on the fact that the State “[o]n oral argument here . . . agreed that the use of yellow and white tickets in this case was, in light of this Court’s decision in Avery, a denial of equal protection, so that a new trial would be required but for the failure to challenge the array.” The Solicitor General of Fulton County, the Court reasons, “had urged [by brief] before the Georgia Supreme Court that no denial of equal protection was involved, and that court may well have been influenced by the contention.”
The Solicitor General of Fulton County presented no oral argument here. Only the State Attorney General, whose sole contention before the Georgia court was that the “question [was] not ground for extraordinary motion for new trial,” was represented before this Court. The majority’s “important intervening factor,” therefore, is that an Assistant Attorney General of Georgia has now expressed an opinion on a question his superior did not reach in his brief before the Georgia Supreme Court. Since good advocacy would dictate that the Attorney General argue this point before the Georgia court had he thought it substantial, I do not think his office underwent any great change of mind in the interim between that argument and this. On argument, after questioning on the point—which we note was not one of the questions he raised—the Assistant Attorney General stated only what the Attorney General’s brief below had intimated. In any event, I am completely at a loss to understand what difference it makes what was argued in the Georgia Supreme Court or conceded here, since the Georgia
WILLIAMS v. GEORGIA.
395
375	Clark, J., dissenting.
Supreme Court clearly stated that, but for the procedural objection, Avery would govern:
“Defendant in his motion sets forth a practice which has been condemned by this court and the Supreme Court of the United States. However, any question to be considered by this court must be raised at the time and in the manner required under the rules of law and practice and procedure in effect in this State.” 210 Ga. 665, 669, 82 S. E. 2d 217, 219.
The majority’s other ground for remand is even weaker, relying on a phrase from the Attorney General’s brief before the Georgia court—“we do not say that he [Williams] does not have some remedy at law.” The ground asserted is that in the light of this “intimat[ion]” of the Attorney General, Georgia’s court “should have an opportunity to designate the appropriate remedy.” If Williams has a remedy, he can certainly pursue it as well without this remand; and if he has no other state remedy, it is even clearer that nothing is to be gained by the Court’s disposition of the case.
Another difference between this case and Patterson is at once evident. In Patterson, the Court, through Chief Justice Hughes, said:
“We are not convinced that the court, in the presence of such a determination of constitutional right, confronting the anomalous and grave situation which would be created by a reversal of the judgment against Norris, and an affirmance of the judgment of death in the companion case of Patterson, who had asserted the same right, . . . would have considered itself powerless to entertain the bill of exceptions or otherwise to provide appropriate relief. ... At least the state court should have an opportunity to examine its powers in the light of the situation which
396
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
has now developed. We should not foreclose that opportunity.” 1 (Italics supplied.) 294 U. S., at 606-607.
In this case, unlike Patterson, the Court determines the state law itself. We have always insisted that, if possible, state courts be permitted to decide difficult and uncertain questions of state law before the federal courts do so, even to the point of having the federal courts decline jurisdiction to await the State’s ruling. Cf. Burford v. Sun Oil Co., 319 U. S. 315. To me nothing could be clearer than that a state question arising in a case which is to be remanded to the state court should be left open for resolution by the State without the pressure of a decision by this Court.
Furthermore, I agree with Mr. Justice Minton that the majority has misconstrued Georgia’s law. As I read the state law, the decisions indicate that the Georgia courts have no power to hear and determine petitioner’s extraordinary motion on the merits. Ever since Jordan v. State, 22 Ga. 545 (1857), the Georgia law has been that the defendant must challenge the array when the panel is “put upon” him and not thereafter. And since it is too late to raise such a challenge in a motion for new trial, Moon n. State, 68 Ga. 687 (1882), certainly the objection cannot be made in an extraordinary motion coming, as here, seven months after verdict. See also Cumming v.
1 The Court in Patterson was more scrupulous about keeping its opinions on state procedure to itself. Here, the Court says: “Fair regard ... for the constitutional commands binding on all courts compels us to reject the assumption that the courts of Georgia would allow this man to go to his death as the result of a conviction secured from a jury which the State admits was unconstitutionally impaneled.”
This characterization is especially unfortunate in view of the fact that the state court, with full knowledge of all the facts, has already refused to order a new trial. See page 403, infra.
WILLIAMS v. GEORGIA.
397
375	Clark, J., dissenting.
State, 155 Ga. 346, 117 S. E. 2d 378 (1923). In fact, as late as 1941, Georgia’s highest court rejected a claim of discrimination in the selection of jurors “for the reason that an objection of this kind should have been presented in a proper way at the trial, and upon failure to do so it is to be considered waived.” Wilcoxon v. Aldredge, 192 Ga. 634, 637, 15 S. E. 2d 873, 876. This was a capital case, and it was conceded that the prisoner’s claim had substantive validity. But even in those extreme circumstances the Georgia Supreme Court did not consider the objection available after trial.
The Georgia Court of Appeals has consistently taken the same position. In Ivey n. State, 4 Ga. App. 828, 831, 62 S. E. 565 (1908), and Williams v. State, 31 Ga. App. 173, 174, 120 S. E. 131, 132 (1923), it was held that “If he [defendant] does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him.”
In reaching the opposite conclusion, i. e., that the Georgia courts have discretionary authority to consider the petitioner’s untimely objection in the circumstances of this case, the majority relies on two factors. First, the Georgia court in the instant case, after holding that petitioner had waived his objection by failing to raise it at the proper time, went on to find that the proffered justification was inadequate as a matter of pleading and as a matter of fact. But it is difficult to see how this separately numbered alternative ground can impair the court’s other decision that, excuse or no excuse, petitioner had waived his claim “once and for all.” Second, it is urged that the Georgia courts frequently exercise their discretion in favor of untimely objections directed at individual jurors—“challenges to the poll” as they are called in Georgia. The majority cites no case, however, where such discretion was exercised on a challenge to the array, and not one of the majority’s individual juror cases is men-
398
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
tioned, much less distinguished, in the Georgia court’s opinion in this case. Since courts usually distinguish apparent conflicts, it is fair to assume that the Georgia court considered the two types of challenge to be governed by entirely different rules. This conclusion is buttressed both by the distinction drawn between these types under Georgia law and by the differing considerations controlling their allowance.
Challenges to the array are “directed to the whole group collectively for causes in the nature of irregularities in the form, manner and making up of the panel.” Davis and Shulman, Georgia Practice and Procedure, p. 454. Challenges to the poll are “directed solely for objections which are inherent in the individual jurors,” Georgia Practice and Procedure, supra, at 455. Circumstances require that challenges to the array be made before trial. If permitted thereafter—and upheld—the judgments in many, if not all, other cases tried before juries obtained from the same panel would be subject to like attack. For example, illegality in the array summoned for March 9, 1953, from which the Williams jury was selected, might result in the overturning of all verdicts returned in the county during their tenure. This would be both expensive and time-wasting, as well as disruptive of the proper administration of justice. Hence Georgia requires a challenge to be made before trial in order to give the judge an opportunity to correct the irregularity. On the other hand, a challenge to a petit juror or to the poll merely affects the one verdict of that jury of twelve rather than all the verdicts of the panel of one hundred and twenty.
The majority dwells on the extreme circumstances of this case, discusses in great detail the Georgia cases affording discretionary relief in less strong cases involving individual jurors, and warns that “we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in
WILLIAMS v. GEORGIA.
399
375	Clark, J., dissenting.
effect, an avoidance of the federal right.” Although I find it difficult to ascertain exactly what ground the majority could give for striking down the Georgia result, it is clear to me that no theory ever before accepted by this Court could lead to reversal.
It is elementary that this Court has no jurisdiction over a case here from a state court where there is an independent and adequate state ground supporting the conclusion reached below.2 A purported state ground is not independent and adequate in two instances. First, where the circumstances give rise to an inference that the state court is guilty of an evasion—an interpretation of state law with the specific intent to deprive a litigant of a federal right.3 Second, where the state law, honestly applied though it may be, and even dictated by the precedents, throws such obstacles in the way of enforcement of federal rights that it must be struck down as unreasonably interfering with the vindication of such rights.4
It is obvious that the Georgia court has not been guilty of “evasion.” Although the Georgia court’s interpretation of state law may not be free from doubt, it is not possible to say that the Georgia decision is without “fair support” in the previous cases.5 I regard it also as note-
2 Cf. the statement of the majority: “But the fact that we have jurisdiction does not compel us to exercise it.”
3 This charge upon the integrity of a State Supreme Court is so serious that this Court has restricted such findings to cases where the state court decision lacked “fair support” in the state law. See Rogers n. Alabama, 192 U. S. 226. Cf. Fox Film Corp. v. Muller, 296 U. S. 207, 209.
4 See Davis v. Wechsler, 263 U. S. 22; lowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247. Cf. Missouri v. Gehner, 281 U.S. 313 (1930).
5 The cases cited by the majority are not helpful here. In Rogers v. Alabama, 192 U. S. 226, the Alabama court struck a federal claim of discrimination on the ground that the pleading was prolix. The pleading was two pages in length. It goes without saying that the
400
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
worthy that Presiding Justice Wyatt wrote this opinion for the Georgia Supreme Court. It was he who, in the Georgia court’s decision in Avery, said in dissent:
“I cannot agree with the ruling [as to discrimination] for the reason, in my opinion, that this practice is conclusive evidence of discrimination, and for that reason the case should be reversed.” 209 Ga. 116, 131, 70 S. E. 2d 716, 726.
In this ruling he went further in protecting the integrity of the jury system than we ourselves thought necessary. Compare Avery v. Georgia, 345 U. S. 559, 562-563 (petitioner established “a prima facie case of discrimination” which the State failed to rebut). One who had so acted would hardly be attempting to evade the very federal right he had previously upheld so strongly.
State was evading the issue. In Abie State Bank v. Bryan, 282 U. S. 765, the bank’s constitutional plea that conditions had so changed as to make a state statute confiscatory was stricken on grounds of estoppel, the bank having acquiesced in the regulation for several years. Chief Justice Hughes held that “earlier compliance . . . does not forfeit the right of protest . . . .” 282 U. S., at 776. In view of the changed circumstances, the state ground unreasonably interfered with the vindication of a federal right. In Pierre v. Louisiana, 306 U. S. 354, there was a timely objection, on federal grounds, to the systematic exclusion of Negroes from the grand jury list. This Court first rejected the State’s claim that the illegal composition was harmless error, and then affirmed the power of this Court to make an independent investigation of the facts. In Urie v. Thompson, 337 U. S. 163, 172, Mr. Justice Rutledge in an FELA case held that, since the final judgment rule had prevented any earlier consideration by this Court, local practice rules could not bar this Court’s consideration of “all substantial federal questions actually determined in earlier stages of the litigation.” And in Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U. S. 359, 367, Mr. Justice Brewer said, “Even if it be conceded that the conclusion of the Supreme Court of the State is not free from doubt, there is nothing to justify a suspicion that there was any intent to avoid the Federal questions. . . .” We agree that this is the test here.
WILLIAMS v. GEORGIA.
401
375	Clark, J., dissenting.
Similarly, the Georgia procedure is not unduly burdensome. The majority concedes that “[a] state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power.” Even if the majority could somehow strike down the Georgia court’s holding that it lacked discretion, it is not enough to show that Georgia has the power and refuses to exercise it. There is no case to support the implication that the exercise of discretion against a federal right is, without more, an evasion. See Brown v. Allen, 344 U. S. 443, 484-486. Indeed, it would seem that there would have to be a withholding of discretion for the purpose of depriving Williams of a federal right. There is nothing even approaching that here.
A state court’s decision cannot be overturned if any one of the grounds supporting it is independent and adequate. There is one ground here which appears so unassailable that the majority does not even attack it. Georgia law makes a showing of due diligence on the part of the movant a prerequisite to granting extraordinary motions for new trial. The state court in this case found that due diligence had not been properly pleaded, and that the facts of which the Georgia court could take notice conclusively demonstrated that diligence was indeed completely lacking.
On the first ground, there is clearly substantial support in the prior state decisions. Petitioner’s attorney stated that “he did not know of the facts [establishing the constitutional claim] before the trial and before the verdict in said case, and that the same could not have been discovered by him in the exercise of ordinary diligence.” It had been held in at least four prior Georgia decisions that such conclusory pleading of diligence was inadequate to support a motion for a new trial or an extraordinary action for the same. Taylor v. State, 132 Ga. 235, 63 S. E. 1116;
402
349 U. S.
OCTOBER TERM, 1954.
Clark, J., dissenting.
King n. State, 174 Ga. 432, 163 S. E. 168; Redding n. State, 183 Ga. 704, 189 S. E. 514; Edge n. State, 200 Ga. 257, 36 S. E. 2d 673.6
On the second ground, the Georgia opinion speaks for itself:
“Furthermore, the facts and circumstances contradict the statements made in the affidavits. When the instant case came on for trial in Fulton Superior Court on March 10, 1953, the case of Avery v. State had been tried in the same county, and that case had been affirmed by this court on April 14, 1952, and was pending in the United States Supreme Court. . . . The opinion of this court affirming the lower court in the Avery case sets out fully the methods and practices employed in the selection and empaneling of juries in Fulton County, including the practice of putting the names of white jurors on white slips of paper and the names of colored jurors on yellow slips of paper. Due diligence would certainly have required the defendant and his attorney to make themselves familiar with the opinions of this court on the question now raised.” 7 210 Ga. 665, 668, 82 S. E. 2d 217, 219.
6 Smith v. Georgia, 2 Ga. App. 574, 59 S. E. 311, cited by the majority, is not to the contrary. There the court recognized that due diligence is required in making an extraordinary motion for new trial, and held, consistent with the Georgia practice of treating the various objections on an individual basis, that the requirement of ordinary diligence had been satisfied where counsel had interrogated the subsequently disqualified juror concerning his relation with the prosecutor and had obtained a negative answer.
7 On May 26, 1953, on its front page, the Atlanta Constitution ran a complete story of the reversal of Avery’s case here. It is interesting to note that an article in the same paper pointed out “that old cases in which convictions were obtained under the two-color jury selection system could not be reopened because objections must have been made at the time of the trial.” The same day, the Atlanta
WILLIAMS v. GEORGIA.
403
375	Minton, J., dissenting.
It is evident on this record that, even if the Georgia court is deemed to have discretion in this matter, it could adhere to its present decision and not be reversed in this Court without a major departure from our doctrines requiring respect for state procedural rules affording a “reasonable opportunity” to present federal questions. Cf. Parker v. Illinois, 333 U. S. 571.
Had the state court possessed the power, it might have been desirable to have permitted petitioner to adjudicate his substantial constitutional claim instead of sending him to his death because his attorney failed to take advantage of the usual opportunity afforded by the state law. On the other hand, had the jury acquitted petitioner, he would not have complained about any unconstitutionality in its selection. A State may be influenced by the unfairness of allowing the litigant who remains silent two chances for acquittal while giving the diligent litigant only one. And orderly administration of the laws often imposes hardships upon those who have not properly preserved their rights. In any event, the resolution of these conflicting interests should be a matter wholly for the Georgia courts. See Herndon v. Georgia, 295 U. S. 441.
Mr. Justice Minton, with whom Mr. Justice Reed and Mr. Justice Clark join, dissenting.
Georgia has a rule of law that the jury panel must be challenged at the threshold, that is, as Georgia expresses it, before the panel is “put upon the defendant.” If the
Journal carried a story that Fulton County was “moving to ban different colored jury slips.” The subhead on the article said, “Court ruling against practice draws prediction of action.” This article concluded with a paragraph:
“The change to all-white slips will have no effect on cases already adjudicated but will affect cases now in progress where the point of different colored jury slips has been raised.”
340907 0-55-32
404
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
panel is not thus challenged, the issue cannot later be raised and is considered as waived “once and for all.” Williams v. State, 210 Ga. 665, 669, 82 S. E. 2d 217, 220. Ga. Code Ann., § 59-803. See Jordan n. State, 22 Ga. 545.
This is a reasonable rule. It gives the State an opportunity to meet the challenge and to justify the array, or, if it is improperly constituted, an opportunity to correct it.
In the instant case, the challenge to the array was not presented at the time the panel was put upon the petitioner-defendant. If the defendant thus fails to challenge the array before it is put upon him, he may not raise the question as to its legality for the first time in a motion for a new trial. Lumpkin v. State, 152 Ga. 229, 231, 109 S. E. 664, 665. Such a requirement complies with the Federal Constitution. Brown n. Allen, 344 U. S. 443, 480.
Since petitioner did not and could not raise the question on a motion for new trial for the first time, it would seem that he could not raise it on an extraordinary motion for a new trial. The trial court dismissed the motion, and the State Supreme Court affirmed. First, the court held that the petitioner could not challenge the array for the first time by motion for a new trial or extraordinary motion for a new trial. The Georgia Supreme Court on that said:
“It is settled law in this State that, when a panel of jurors is put upon the prisoner, he should challenge the array for any cause which would go to show that it was not fairly and properly put upon him, and that if he fails to do so, the objection is waived and can not thereafter be made a ground of a motion for new trial. See Lumpkin v. State, 152 Ga. 229 (109 S. E. 664); Cornelious v. State, 193 Ga. 25 (17 S. E. 2d 156); Cumming v. State, 155 Ga. 346 (117
WILLIAMS v. GEORGIA.
405
375	Minton, J., dissenting.
S. E. 378); Moon v. State, 68 Ga. 687; and Williams v. State, 31 Ga. App. 173 (120 S. E. 131). In the instant case, the defendant made no objection to the jury when the panel was put upon him, and made no objection until he filed this extraordinary motion for new trial after a new trial had been denied and that judgment affirmed by this court. See Williams v. State, ante. It follows, therefore, that the judgment of the court below dismissing the extraordinary motion for new trial was not error.
“The defendant and his attorney state that they did not know of the facts set out in grounds one and two of the motion for new trial, and ‘that the same could not have been discovered by him in the exercise of ordinary diligence.’ This is not sufficient to excuse the defendant from the necessity of presenting his written challenge to the array of traverse jurors when the panel was put upon him. See, in this connection, Lumpkin v. State, supra; Cornelious n. State, supra; Redding v. State, 183 Ga. 704 (189 S. E. 514); Edge v. State, 200 Ga. 257 (36 S. E. 2d 673). It follows, under the decisions of this court above cited, it was not error to dismiss the extraordinary motion for new trial.” 210 Ga. 665, 667-668, 82 S. E. 2d 217, 218-219.
After deciding this matter of state law, the Supreme Court of Georgia further held that the extraordinary motion was insufficient. The defendant, in his affidavit supporting the motion, deposed: “‘The defendant did not at the time of his trial . . . have any information concerning the selection, drawing, organizing, and impaneling of the jury panel put upon him on his trial, but assumed that the jury was a legal jury.’ ” Id., at 668, 82 S. E. 2d, at 219. Also defendant’s attorney deposed in his supporting affidavit that he “ ‘did not know of the
406
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
facts set out in the first and second grounds of the extraordinary motion for new trial . . . before the trial and before the verdict in said case, and that the same could not have been discovered by him in the exercise of ordinary diligence.’ ” Ibid.
Such allegations, the court held, were “merely opinion, without sufficient facts being shown by which the court could judge whether due diligence had been exercised, and are not sufficient to support an extraordinary motion for new trial. Edge v. State, supra; Redding v. State, supra.” Ibid.
Thus the Georgia Supreme Court held, first, that the challenge to the array must be made when the array is put upon the defendant and cannot be made later by motion for a new trial or extraordinary motion for new trial; and, second, that the grounds for the latter motion were insufficient.
This first holding is a well-established rule of law of Georgia and does not seem to have been applied discrim-inatorily so as to deny petitioner the equal protection of the law. He had the same right and opportunity to raise the question as anyone else.
The promulgation of such a rule of law is, as we have pointed out, fair and reasonable and cannot be said to deny due process of law. Georgia has provided a reasonable time and manner in which the question could be raised. Petitioner did not take advantage of it, probably because, as his attorney alleged in his affidavit, he “devoted his time and efforts to ascertaining the nature of the evidence to be presented by the State of Georgia upon the trial.”
This Court cites a number of Georgia cases in which extraordinary motions were granted by the Georgia Supreme Court where an individual juror without knowledge of the facts was permitted to sit even though disqualified. But, in each of these cases, proper motions
WILLIAMS v. GEORGIA.
407
375	Minton, J., dissenting.
in due form and sufficient were presented and the question raised at the first opportunity.
This Court now says that the Georgia Supreme Court has the power to grant the petitioner’s motion. I suppose that it has, but I would not think that it had denied a federal constitutional right if it did not change its rule. In fact, I think it would lead to absurd results if it changed its rule that the challenge to the array must be made at the threshold. The defendant, knowing of an error in the constitution of the array, could lay low and always have a built-in error on which he could rely if he did not like the results at the trial. Georgia is not bound to change its rule on penalty of a violation of the Federal Constitution. Avery v. Georgia, 345 U. S. 559, does not decide this case because in that proceeding the challenge was timely made.
We do not sit as a legal critic to indicate how we think courts should act. If a federal constitutional right is not presented, we have no duty to perform. There was no denial of equal protection of the law or of due process. This case was disposed of by the Georgia Supreme Court altogether on state grounds. In such circumstances our duty is clear. As we stated in Edelman v. California, 344 U. S. 357, 358-359:
“It is clear that this Court is without power to decide whether constitutional rights have been violated when the federal questions are not seasonably raised in accordance with the requirements of state law. Hulbert v. City of Chicago, 202 U. S. 275 (1906); Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 308 (1903). Noncompliance with such local law can thus be an adequate state ground for a decision below. . . .”
Therefore, I would dismiss the writ of certiorari as improvidently granted.
408
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
CARROLL et al. v. LANZA, DOING BUSINESS AS LAKE CHARLES ELECTRIC CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
No. 375. Argued March 31, 1955.—Decided June 6, 1955.
An employee of a subcontractor doing work for a general contractor was injured as a result of the latter’s negligence. The employee and the subcontractor were residents of Missouri and the contract of employment was made in Missouri; but the work was done and the injury occurred in Arkansas. Unaware that he had a remedy under Arkansas law, the employee automatically received 34 weekly payments for the injury under the Missouri Compensation Act, which provides exclusive remedies for injuries received inside or outside the State under employment contracts made in Missouri, even as against the general contractor; but there was no final award under that Act. The Arkansas Workmen’s Compensation Act provides an exclusive remedy of the employee against his employer but not against the general contractor. The employee sued the general contractor in Arkansas and obtained a judgment for common-law damages. Held: The Arkansas judgment did not deny full faith and credit to the Missouri law, and the judgment is sustained. Pp. 409-414.
(a)	Magnolia Petroleum Co. N. Hunt, 320 U. S. 430, distinguished. Pp. 410-411.
(b)	The Full Faith and Credit Clause does not make Missouri’s Workmen’s Compensation Statute a bar to Arkansas’ common-law remedy. Pp. 411-414.
(c)	In personal injury cases, the state where the injury occurs is not required by the Full Faith and Credit Clause to allow only that remedy which is marked as the exclusive one by the state where the contract of employment was made. Pacific Employers Ins. Co. v. Commission, 306 U. S. 493. Pp. 412-413.
(d)	Hughes v. Fetter, 341 U. S. 609, distinguished. P. 413.
216 F. 2d 808, reversed.
Shields M. Goodwin argued the cause and filed a brief for petitioners.
Alston Jennings argued the cause for respondent. With him on the brief was Edward L. Wright.
CARROLL v. LANZA.
409
408	Opinion of the Court.
Mr. Justice Douglas delivered the opinion of the Court.
Carroll, the petitioner, was an employee of Hogan, an intervenor, who in turn was a subcontractor doing work for the respondent Lanza, the general contractor. Carroll and Hogan were residents of Missouri ; and Carroll’s employment contract with Hogan was made in Missouri. The work, however, was done in Arkansas; and it was there that the injury occurred.
Carroll, not aware that he had remedies under the Arkansas law, received 34 weekly payments for the injury under the Missouri Compensation Act. The Missouri Act is applicable to injuries received inside or outside the State where the employment contract, as here, is made in the State. Mo. Rev. Stat., 1949, § 287.110. The Missouri Act also provides that every employer and employee shall be “conclusively presumed to have elected to accept” its provisions unless “prior to the accident” he shall have filed with the compensation commission a written notice that he “elects” to reject the compensation provision. Id., § 287.060. No such notice, however, was filed in this case. Moreover, the Missouri Act provides that the rights and remedies granted by it “shall exclude all other rights and remedies ... at common law or otherwise,” on account of the injury or death.1 Id., § 287.120.
1 The Missouri Supreme Court has construed the Missouri Compensation Act as providing the exclusive remedy, even when, as here, the employee of the subcontractor sues the general contractor for common-law damages. Bunner v. Patti, 343 Mo. 274, 283, 121 S. W. 2d 153, 156-157. The touchstone seems to be the existence of a Missouri employment contract, such as exists in the present case, wherever the injury may have occurred. We can find no suggestion in the Missouri cases that the Missouri Compensation Act is not the exclusive remedy against the prime contractor when his contract with the subcontractor is made outside Missouri. No such suggestion is made by any of the parties to this litigation.
410
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
Arkansas also has provisions for workmen’s compensation. Ark. Stat., 1947, § 81-1301 et seq. It provides the exclusive remedy of the employee against the employer (id., § 81-1304) but not against a third party. Id., § 81-1340. And the court below, on review of Arkansas authorities, concluded that a general contractor, such as Lanza, the respondent, was a third party within the meaning of the Arkansas Act. And see Baldwin Co. v. Manor, ----- Ark.-----, 273 S. W. 2d 28.
While Carroll was receiving weekly payments under the Missouri Act, he decided to sue Lanza for common-law damages in the Arkansas courts. Lanza had the case removed to the Federal District Court where judgment was rendered for Carroll.2 116 F. Supp. 491. The Court of Appeals, while agreeing with the District Court that the judgment was sustainable as a matter of Arkansas law, reversed on the ground that the Full Faith and Credit Clause of the Constitution 3 (Art. IV, § 1) barred recovery. 216 F. 2d 808. The case is here by petition for certiorari which we granted (348 U. S. 870) because of doubts as to the correctness of the decision raised by Pacific Employers Insurance Co. v. Commission, 306 U. S. 493.
The Court of Appeals thought Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, to be controlling. There the employee having received a final award for compensation
2 Hogan and his Indemnity Company, intervenors, were granted a lien on the judgment in favor of Carroll for the amounts paid to Carroll as compensation.
3 Article IV, § 1 of the Constitution provides :
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
CARROLL v. LANZA.
411
408	Opinion of the Court.
in the forum of the injury returned to his home State and sued to recover under its Compensation Act. We held that the latter suit was precluded by the Full Faith and Credit Clause. But here there was no final award under the Missouri Act. Under that Act the statutory payments apparently start automatically on receipt of notice of the injury. Mo. Rev. Stat., 1949, §§ 287.380, 287.400. While provision is made for an adjudication of disputes between an employee and his employer (id., §§ 287.400, 287.450), no adjudication was sought or obtained here.
Nor do we have a case where an employee, knowing of two remedies which purport to be mutually exclusive, chooses one as against the other and therefore is precluded a second choice by the law of the forum. Rather we have the naked question whether the Full Faith and Credit Clause makes Missouri’s statute a bar to Arkansas’ common-law remedy.
A statute is a “public act” within the meaning of the Full Faith and Credit Clause. See Bradford Electric Co. v. Clapper, 286 U. S. 145, 154-155, and cases cited; Alaska Packers Assn. v. Commission, 294 U. S. 532. It was indeed held in the Clapper case that a Vermont Compensation Act, which purported to give an exclusive remedy, barred a common-law action on the same claim in the New Hampshire courts by a Vermont employee against a Vermont employer, even though the injury occurred in New Hampshire. The Clapper case allowed a State to fix one exclusive remedy for personal injuries involving its residents, and required the other States to refuse to enforce any inconsistent remedy. Thus, as respects persons residing or businesses located in a State, a remedy was provided employees that was “both expeditious and independent of proof of fault,” and a liability was imposed on employers that was “limited and determinate.” 286 U. S., at 159.
412
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
Pacific Employers Insurance Co. n. Commission, 306 U. S. 493, departed, however, from the Clapper decision. There a resident of Massachusetts regularly employed in Massachusetts by a Massachusetts corporation was injured while doing temporary duty in California. The Massachusetts Compensation Act purported to give an exclusive remedy, even for injuries incurred beyond its borders. But California also had a Compensation Act which undertook to fix liability on employers, irrespective of any contract, rule, or regulation, a provision which the California courts strictly enforced. The Court, therefore, held that the exclusive nature of the Massachusetts Act was “obnoxious” to the policy of California. The Court proceeded on the premise, repeated over and again in the cases, that the Full Faith and Credit Clause does not require a State to substitute for its own statute, applicable to persons and events within it, the statute of another State reflecting a conflicting and opposed policy. Id., at 502.
The Pacific Employers Insurance Co. case allowed the Compensation Act of the place of the injury to override the Compensation Act of the home State. Here it is a common-law action that is asserted against the exclusiveness of the remedy of the home State; and that is seized on as marking a difference. That is not in our judgment a material difference. Whatever deprives the remedy of the home State of its exclusive character qualifies or contravenes the policy of that State and denies it full faith and credit, if full faith and credit is due. But the Pacific Employers Insurance Co. case teaches that in these personal injury cases the State where the injury occurs need not be a vassal to the home State and allow only that remedy which the home State has marked as the exclusive one. The State of the forum also has interests to serve and to protect. Here Arkansas has opened its courts to negligence suits against prime con
CARROLL v. LANZA.
413
408	Opinion of the Court.
tractors, refusing to make relief by way of workmen’s compensation the exclusive remedy. Baldwin Co. v. Maner, supra. Her interests are large and considerable and are to be weighed not only in the light of the facts of this case but by the kind of situation presented. For we write not only for this case and this day alone, but for this type of case. The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these, as Pacific Employers Insurance Co. v. Commission, supra, emphasizes. Id., at 501. A State that legislates concerning them is exercising traditional powers of sovereignty. Cf. Watson v. Employers Liability Corp., 348 U. S. 66, 73. Arkansas therefore has a legitimate interest in opening her courts to suits of this nature, even though in this case Carroll’s injury may have cast no burden on her or on her institutions.
This is not a case like Hughes v. Fetter, 341 U. S. 609, where the State of the forum seeks to exclude from its courts actions arising under a foreign statute. In that case, we held that Wisconsin could not refuse to entertain a wrongful death action under an Illinois statute for an injury occurring in Illinois, since we found no sufficient policy considerations to warrant such refusal. And see Broderick n. Rosner, 294 U. S. 629. The present case is a much weaker one for application of the Full Faith and Credit Clause. Arkansas, the State of the forum, is not adopting any policy of hostility to the public Acts of Missouri. It is choosing to apply its own rule of law to give affirmative relief for an action arising within its borders.
Missouri can make her Compensation Act exclusive, if she chooses, and enforce it as she pleases within her borders. Once that policy is extended into other States, different considerations come into play. Arkansas can adopt Missouri’s policy if she likes. Or, as the Pacific
414
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
Employers Insurance Co. case teaches, she may supplement it or displace it with another, insofar as remedies for acts occurring within her boundaries are concerned. Were it otherwise, the State where the injury occurred would be powerless to provide any remedies or safeguards to nonresident employees working within its borders. We do not think the Full Faith and Credit Clause demands that subserviency from the State of the injury.
Reversed.
Mr. Justice Frankfurter, whom Mr. Justice Burton and Mr. Justice Harlan join, dissenting.
In order to place the problems presented by this case in the proper context for adjudication, it has seemed to me desirable to examine the course of the Court’s decisions touching the constitutional requirement for giving full faith and credit to statutes of a sister State.
The cases fall into three main groups: 1
(1)	Those in which the forum was called upon to give effect to a sister-state statute and declined to do so.
Hancock National Bank v. Farnum, 176 U. S. 640; Atchison, Topeka & Santa Fe R. Co. v. Sowers, 213 U. S. 55; Tennessee Coal, Iron & R. Co. v. George, 233 U. S. 354; Clark v. Williard, 292 U. S. 112; Broderick v. Rosner, 294 U. S. 629; Hughes v. Fetter, 341 U. S. 609; First National Bank of Chicago v. United Air Lines, Inc., 342 U. S. 396; Wells v. Simonds Abrasive Co., 345 U. S. 514.
1 Two other groups of cases do not here concern us: those holding that a full faith and credit contention must be properly raised in the lower courts, see Chicago & Alton Railroad n. Wiggins Ferry Co., 119 U. S. 615, and those holding that a mere misconstruction by the forum of the laws of a sister State is not a violation of the Full Faith and Credit Clause, see, e. g., Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93.
CARROLL v. LANZA.
415
408	Frankfurter, J., dissenting.
From these cases it appears that the forum cannot, by statute or otherwise, refuse to enforce a sister-state statute giving a transitory cause of action, whether in contract or tort. E. g., Broderick v. Rosner, supra; Hughes v. Fetter, supra. Indeed, the forum may permissibly go a step in the other direction and disregard the venue provisions of an out-of-state statute which would have prevented the forum from enforcing the right. Tennessee Coal, Iron & R. Co. v. George, supra. The forum may, however, apply its own more restrictive statute of limitations to an outside wrongful death action, Wells v. Simonds Abrasive Co., supra, and dicta indicate that it may refuse to enforce a penal law, a law found antagonistic to the forum’s public policy, or a law which requires specialized proceedings or remedies not available in the forum, see Broderick n. Rosner, 294 U. S., at 642-643; Hughes v. Fetter, 341 U. S., at 612.
(2)	Those in which the forum applied its own statute rather than that of a sister State because the latter was not of limiting exclusiveness, or in which the forum applied the sister-state statute because the forum’s was not exclusive.
Bond N. Hume, 243 U. S. 15; Ohio v. Chattanooga Boiler & Tank Co., 289 U. S. 439; Industrial Commission v. McCartin, 330 U. S. 622. See also Bonaparte v. Tax Court, 104 U. S. 592; American Fire Insurance Co. n. King Lumber & Mjg. Co., 250 U. S. 2.
These cases prove that, where the statute of either the forum or the outside State is not found to be exclusive regarding remedies or rights elsewhere, the statute need not be accorded exclusive effect. Further, the Court has stated that, in the area of workmen’s compensation, “unmistakable language” is required before exclusiveness will be attributed. See Industrial Commission v. McCartin, 330 U. S., at 628.
416
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
(3)	Those in which the forum applied its own substantive law, statutory or judicial, when clearly in conflict with the out-of-state statute.
National Mutual Building & Loan Association v. Brahan, 193 U. S. 635; Olmsted v. Olmsted, 216 U. S. 386; Converse v. Hamilton, 224 U. S. 243; New York Life Insurance Co. v. Head, 234 U. S. 149; Supreme Council of the Royal Arcanum v. Green, 237 U. S. 531; Hood v. McGehee, 237 U. S. 611; Marin n. Augedahl, 247 U. S. 142; Aetna Life Insurance Co. v. Dunken, 266 U. S. 389; Modern Woodmen of America v. Mixer, 267 U. S. 544; Bradford Electric Light Co. v. Clapper, 286 U. S. 145; Alaska Packers Association v. Industrial Accident Comm’n, 294 U. S. 532; Chandler v. Peketz, 297 U. S. 609; John Hancock Mutual Life Insurance Co. n. Yates, 299 U. S. 178; Sovereign Camp of the Woodmen of the World v. Bolin, 305 U. S. 66; Pacific Employers Insurance Co. v. Industrial Accident Comm’n, 306 U. S. 493; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498; Pink n. A. A. A. Highway Express, Inc., 314 U. S. 201; State Farm Mutual Automobile Insurance Co. v. Duel, 324 U. S. 154; Cardillo v. Liberty Mut. Ins. Co., 330 U. S. 469; Order of United Commercial Travelers v. Wolfe, 331 U. S. 586.
These cases have arisen in three principal fields: (a) commercial law; (b) insurance; and (c) workmen’s compensation. As a statistical matter, in 21 cases of direct conflict the Court held for the forum 10 times and for the sister State 11 times.
(a)	In commercial law a number of cases have involved statutory assessment against out-of-state shareholders under the laws of the State of incorporation of an insolvent corporation. The Court’s consistent position has
CARROLL v. LANZA.
417
408	Frankfurter, J., dissenting.
been that the law of the incorporating State must be given effect by the forum. E. g., Converse v. Hamilton, supra. That law is deemed to create a transitory cause of action based on the contractual relation between the corporation and the shareholder by which the shareholder is held to have consented to reasonable state regulation. The Court has relied on the fact that in each case a judicial proceeding in the incorporating State had previously passed upon the necessity and amount of the assessment, and that, although shareholders in the forum were not parties to such a proceeding, their interest was adequately represented by other shareholders. Personal defenses, such as the nonexistence of the shareholder relation, may still be asserted. Cf. Pink v. A. A. A. Highway Express, Inc., 314 U. S., at 208.
When the commercial context is not that of shareholder-corporation but simple contract, the Court has found less need for uniformity and accordingly has given greater leeway to the forum on a showing of substantial interest in the contract, e. g., that one of the parties is a resident of the forum or that the contract is to be performed within its borders. The Court has spoken of the presumed acceptance of the forum’s laws by a corporation doing business in the forum. National Mutual Building & Loan Association v. Brahan, supra. In other cases the argument has been narrower, for instance that the forum can control an incidental item of damages such as interest. Klaxon Co. v. Stentar Elec. Mfg. Co., supra. Occasionally reliance has rested on ordinary conflict of laws doctrine. See Olmsted n. Olmsted, supra (holding that the forum can exclusively control disposition of land within its borders).
(b)	The insurance cases reflect considerations similar to those in the commercial cases. The Court has found in fraternal benefit societies an “indivisible unity” among the members and a resultant need for uniform construe-
418
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
tion of rights and duties in the common fund. E. g., Order of United Commercial Travelers v. Wolfe, supra. Hence the law of the society’s home State (and bylaws adopted under it) has prevailed. The Court has been able to draw support from decisions of the home State validating either the practice under question or one similar to it. (The cases have involved increase of dues, presumption of death from long absence, ultra vires certificates, and time limitation on bringing suit.) In an analogous situation, the forum has prevailed on the question whether an individual is in fact an assessable member of a mutual insurance company (rather than a mere policyholder), on the ground that the interpretation and legal effect of the contract is peculiarly within the competence and sphere of interest of the forum. Pink v. A. A. A. Highway Express, Inc., supra.
As to ordinary insurance contracts, the forum has had a much wider scope. The Court has balanced the interests of the competing jurisdictions, including factors such as the residence of the insured, where premiums were paid or payable, where the policy was applied for and delivered, where the insured died, what law the policy itself provided should govern, and whether loan agreements and new policies were ancillary to the initial policy. The forum has been permitted to protect its residents against insurance companies, but the Court has required the forum to have more than a casual interest. It has not been sufficient, for example, that the forum was the State of initial issue of the policy on which a defaulted loan was obtained, New York Life Insurance Co. N. Head, supra, or the place of issue of a converted policy and the residence at death of the insured, Aetna Life Insurance Co. n. Dunken, supra, or the place where suit has been brought, John Hancock Mutual Life Insurance Co. v. Yates, supra. On the other hand, the forum would succeed if it asserted a strong local policy requiring an insur
CARROLL v. LANZA.
419
408	Frankfurter, J., dissenting.
able interest, see Griffin v. McCoach, supra, or a reserve requirement more stringent than that of the State of incorporation, State Farm Mutual Automobile Insurance Co. v. Duel, supra.
(c)	In workmen’s compensation cases the Court has likewise adopted an interests-weighing approach. The relevant considerations have been: the place of the employment contract; the residence of the parties; the place of injury; the possibility of the workman becoming a public charge in the State seeking to award compensation, see Alaska Packers Association n. Industrial Accident Comm’n, supra; the interest of a State in securing prompt payment of medical fees to its residents, see Pacific Employers Insurance Co. n. Industrial Accident Comm’n, supra; the aspect of exclusiveness of the foreign statute, see Industrial Commission v. McCartin, supra; the State’s interest in the bodily safety and economic protection of workers within it; the difference between a defense (which if rejected results in irremediable liability) and a cause of action (which if not allowed in one State can be pursued in another), see Bradford Electric Light Co. v. Clapper, supra; the amount of work to be performed in a State, see Cardillo v. Liberty Mut. Ins. Co., supra; and the policy of determinate liability and prompt remedy underlying workmen’s compensation acts. The Court first enunciated the rule that the forum must permit a defense based on the exclusiveness of the sisterstate statute where the only contact of the forum was that it was the place of injury. Bradford Electric Light Co. v. Clapper, supra. Conversely, the Court held that the place of contract could award compensation though the injury occurred elsewhere. Alaska Packers Association v. Industrial Accident Comm’n, supra. Subsequently, the Court held that the forum could prevail, even though the parties resided and the contract was entered in another State whose statute was exclusive, if 340907 0-55-33
420
349 U.S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
the injury occurred in the forum and enforcement of the defense of the outside statute was deemed “obnoxious” to the forum’s policy. Pacific Employers Insurance Co. v. Industrial Accident Comm’n, supra.
In applying to the immediate situation the fair guidance offered by the past decisions of the Court regarding full faith and credit, a number of considerations become apparent: 2 (1) Unlike the other workmen’s compensation cases—or, for that matter, any of the cases in which the forum has prevailed in a conflict between the forum and the outside law—the interest of the forum here is solely dependent on the occurrence of the injury within its borders. No rights of Arkansas residents are involved, since none of the parties is an Arkansan; the workman was removed immediately to a Missouri hospital and has, so far as appears, remained in Missouri. What
2 Stated shortly, the facts of this case are: Carroll, a Missourian, entered into a Missouri employment contract with Hogan, who operated a Missouri painting company. Hogan in turn contracted with Lanza, a Louisiana electrical contractor, to do painting on a federal project in Arkansas for which Lanza had a government contract. While on the job in Arkansas, Carroll was injured. Hogan’s insurer voluntarily began to pay workmen’s compensation to Carroll pursuant to Missouri law, though no formal proceedings or award were had. Thereafter, Carroll brought suit against Lanza in an Arkansas state court, alleging that his injury was caused by the negligence of Lanza’s employees. Since there was diversity of citizenship, Lanza removed the case to federal court. He then moved for summary judgment, claiming that the Missouri workmen’s compensation law, to which Carroll was subject, afforded an exclusive remedy. The court rejected this contention and rendered an $18,000 judgment for Carroll. 116 F. Supp. 491. The Court of Appeals for the Eighth Circuit, relying on Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, reversed on the ground that full faith and credit required Arkansas to give effect to what the court treated as a final and exclusive award in the payments received under the Missouri statute. 216 F. 2d 808.
This dissent agrees with the Court that the Court of Appeals misapplied Magnolia to the facts of this case.
CARROLL v. LANZA.
421
408	Frankfurter, J., dissenting.
might be regarded as the societal interest of Arkansas in the protection of the bodily safety of workers within its borders is an interest equally true of any jurisdiction where a workman is injured and exactly the sort of interest which New Hampshire had in Clapper. (2) Thus, the Court is squarely faced with the Clapper problem.3 To make the interest of Arkansas prevail over the interest of Missouri on the basis of the Full Faith and Credit Clause would require that Clapper be explicitly overruled and that, in the area of workmen’s compensation law, the place of injury be decisive. And if Clapper is to be overruled, on which I and those who join me express no opinion, it should be done with reasons making manifest why Mr. Justice Brandeis’ long-matured, weighty opinion in that
3 Concededly the Pacific Employers case narrowed what was said in Clapper. The Court there found the conjunction of four factors decisive in upholding the California Supreme Court’s determination that the Massachusetts statute was “obnoxious” to the public policy of California: (1) medical services were rendered in California and directly reimbursable from the California award; if California could not make an award, its residents would be remitted to Massachusetts and Massachusetts remedies to recover for their services; (2) bodily safety and economic protection of workers within its boundaries is a relevant interest of the forum; (3) the California statute provided: “No contract, rule, or regulation shall exempt the employer from liability . . . .”; (4) Congress had not yet passed legislation prescribing the full faith and credit effect to be given to statutes.
The distinctions between that case and the one now at bar are to be noted. Of course we are not deciding this case as an isolated instance. But we are passing on the elements of this situation and not of some other situation. The decision here will govern other cases of the same type. The circumstances of this case define the content of the type. That is the essence of the theory of balancing the societal interests of the forum State against those of a sister State. It is that which lies behind the statement that “the full faith and credit clause is not an inexorable and unqualified command,” Pink v. A. A. A. Highway Express, Inc., 314 U. S. 201, 210. But this does not mean that it is no command—that each State is at large to apply its own laws in disregard of greater interests of a sister State.
422
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
case was ill-founded. It should not be cast aside on the presupposition that full faith and credit need not be given to a sister-state workmen’s compensation statute if the law of the forum happens to be more favorable to the claimant. (3) Furthermore, the new provision of 28 U. S. C. § 1738 cannot be disregarded. In 1948 Congress for the first time dealt with the full faith and credit effect to be given statutes.4 The absence of such a provision was used by Mr. Justice Stone to buttress the Court’s opinions both in Alaska Packers, 294 U. S., at 547, and Pacific Employers, 306 U. S., at 502. Hence, if § 1738 has any effect, it would seem to tend toward respecting Missouri’s legislation. See Reese, Full Faith and Credit to Statutes: The Defense of Public Policy, 19 U. of Chi. L. Rev. 339, 343 et seq.
There is, however, a readily available alternative short of overruling Clapper which dispenses with the difficulties inherent in applying the Full Faith and Credit Clause. This alternative proceeds along the following lines:
Missouri’s workmen’s compensation statute is in terms applicable and exclusive as to workmen injured outside the State under Missouri employment contracts.5 Hogan
4 The first two paragraphs of the section deal with the problem of authentication. The third paragraph provides: “Such Acts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State . . . from which they are taken.” (Italics supplied.)
Prior to 1948 the quoted sentence did not include “Such Acts.” Instead, it began: “And the said records and judicial proceedings,” etc. (Italics supplied.)
5 “Every employer and every employee, except as in this chapter otherwise provided, shall be conclusively presumed to have elected to accept the provisions of this chapter . . . unless prior to the accident he shall have filed with the commission a written notice that he elects to reject this chapter.” Mo. Laws 1953, p. 535, § 1.
“This chapter shall apply to . . . all injuries received outside of this state under contract of employment made in this state, unless
CARROLL v. LANZA.
423
408	Frankfurter, J., dissenting.
(the subcontractor here) was a Missouri employer and had a Missouri employment contract with Carroll (the injured workman). Thus when Carroll sought workmen’s compensation in Arkansas (where he was hurt), Hogan and his insurer could have relied on the Missouri statute and the Clapper case as a defense. They did not, presumably since Arkansas workmen’s compensation cost them no more than Missouri’s and they had an opportunity to recoup from the prime contractor as a third party under Arkansas law.6
But Lanza (the prime contractor) was not a Missouri employer, nor does the record disclose that he had a Missouri employment contract either with Hogan or Carroll. The basic contract between Lanza and Hogan was on a Louisiana letterhead and is a contract for work apparently to be performed exclusively in Arkansas. Hogan promised to furnish workmen and “It is further understood that . . . Hogan . . . will carry the necessary insurance on his men in according [sic] with the rules of the state of Arkansas.” The supplemental contract for the par-the contract of employment in any case shall otherwise provide.” Mo. Rev. Stat., 1949, § 287.110.
“The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.” Mo. Rev. Stat., 1949, § 287.120.
6 Hogan was covered by his insurer both in Missouri and Arkansas. The insurer initially paid Carroll $30 a week, the maximum under the Missouri workmen’s compensation law. When Carroll sought to transfer to Arkansas compensation, the insurer began to pay him $25 a week, the maximum under the Arkansas statute. Arkansas law allows an injured workman to sue a prime contractor for negligence, see Baldwin Co. v. Maner,-Ark. —, 273 S. W. 2d 28; Anderson v. Sanderson & Porter, 146 F. 2d 58 (C. A. 8th Cir.), and his immediate employer and the insurer of his immediate employer have a statutory lien on two-thirds of any recovery, Ark. Stat. Ann., § 81-1340.
424
349 U. S.
OCTOBER TERM, 1954.
Frankfurter, J., dissenting.
ticular work on which Carroll was injured consisted of a letter bid by Hogan to Lanza and a letter reply authorizing Hogan to proceed. From the point of view of choice of law, the various aspects of the contract combine to make it governed either by Arkansas or Louisiana—but not Missouri—law. Cf. Johnson v. Great Lakes Pipe Line Co., 358 Mo. 445, 215 S. W. 2d 460.
The Missouri workmen’s compensation statute provides that “Where a third person is liable to the employee . . . for the injury or death, the employer shall be subrogated . . . and the recovery by such employer shall not be limited to the amount payable as compensation to such employee . . . .” Mo. Rev. Stat, 1949, § 287.150. The Missouri Supreme Court has read this provision as allowing a common-law action by a worker against a negligent third party, e. g., Schumacher v. Leslie, 360 Mo. 1238, 232 S. W. 2d 913, on the theory that the worker may secure common-law recovery against anyone “ ‘upon whom no liability could be entailed under the Act,’ ” 360 Mo, at 1246, 232 S. W. 2d, at 918.
But the Missouri Supreme Court has held that a prime contractor is not liable as a third party for his negligence to an employee of a subcontractor. Bunner v. Patti, 343 Mo. 274,121 S. W. 2d 153; see also New Amsterdam Casualty Co. v. Boaz-Kiel Construction Co., 115 F. 2d 950 (C. A. 8th Cir.). And this because prime contractors are subject to liability under the workmen’s compensation statute, which states: “Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer .... [T] he immediate contractor . . . shall be liable as an employer of the employees of his subcontractors. . . . No such employer shall be liable ... if
CARROLL v. LANZA.
425
408	Frankfurter, J., dissenting.
the employee was insured by his immediate or any intermediate employer.” Mo. Rev. Stat., 1949, § 287.040.
The rationale of the Missouri decisions prohibiting a negligence action against a prime contractor is this: a person clearly subject to statutory liability cannot be sued as a third party. Cf. Schumacher n. Leslie, 360 Mo. 1238, 1247, 232 S. W. 2d 913, 918. But the Missouri rule has only been applied in cases where three preconditions were present: (a) all parties were subject to the Missouri workmen’s compensation act; (b) the prime and subcontractor were doing business in Missouri; and (c) the injury took place on a project in Missouri.
Under the circumstances of the case before us, there is no basis for finding that Missouri would deem Lanza to be a Missouri employer and as such subject to liability for Missouri workmen’s compensation. His contract had no Missouri ties other than the bare fact that the subcontractor was a Missouri resident.7 And there is no indication that Lanza has ever done business in Missouri. Furthermore, Missouri requires that a defendant in a negligence suit who relies on the exclusiveness of the workmen’s compensation statute must plead and prove as an affirmative defense that the parties are subject to it, Kemper n. Gluck, 327 Mo. 733, 39 S. W. 2d 330, a burden which Lanza certainly has not met. See State ex rel. St. Louis Car Co. n. Hostetter, 345 Mo. 102, 131 S. W. 2d 558. Thus there is no warrant for believing that the Missouri courts would refuse to allow suit against him as an ordinary third party. Presumably, then, Carroll could sue Lanza under either Missouri or Arkansas law for his negli-
7 Nor is there any hint that Lanza was attempting to evade statutory responsibility to Carroll by setting up a financially irresponsible subcontractor, an evasion which has been called the “prime purpose” of the statutory provision as to prime contractors. Wors v. Tarlton, 234 Mo. App. 1173, 1186, 95 S. W. 2d 1199, 1205-1206, writ of certiorari quashed, 343 Mo. 945, 124 S. W. 2d 1072.
426	OCTOBER TERM, 1954.
Frankfurter, J., dissenting.	349 U. S.
gence. Accordingly, the constitutional question presented should not be passed on.
But we ought not to rest on the initial determination of Missouri law here. In a number of the full faith and credit cases this Court has remanded for further consideration of state law. E. g., Klaxon Co. v. Stentor Elec. Mfg. Co., supra; Griffin v. McCoach, supra; Clark v. Williard, supra. Hence, I would remand this case to the Court of Appeals with instructions to determine whether our reading of Missouri law is wrong.
MITCHELL v. VOLLMER & CO.
427
Syllabus.
MITCHELL, SECRETARY OF LABOR, v.
C. W. VOLLMER & CO., INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 387. Argued March 3, 1955.—Decided June 6, 1955.
Employees engaged in the construction of the Algiers Lock and Canal, in Orleans Parish, Louisiana, which will form part of the Gulf Intracoastal Waterway (extending from Florida to the Mexican border), and which was designed as an alternate route to an inadequate existing lock and canal, are “engaged in commerce” within the meaning of §7 of the Fair Labor Standards Act; and the 40-hour week and overtime provisions of the Act are applicable to them. Pp. 428-430.
(a)	Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, distinguished. Pp. 429-430.
(b)	Whether an employee is “engaged in commerce” within the meaning of § 7 of the Fair Labor Standards Act is determined by practical considerations, not by technical conceptions. P. 429.
(c)	The test of whether an employee is “engaged in commerce” within the meaning of the Act is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity. P. 429.
(d)	The work of improving existing facilities of interstate commerce, involved here, is activity “in commerce” within the meaning of the Act. P. 430.
214 F. 2d 132, reversed.
Stuart Rothman argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Ralph S. Spritzer, Bessie Margolin and Sylvia S. Ellison.
Eberhard P. Deutsch argued the cause for respondent. With him on the brief was René H. Himel, Jr.
428	OCTOBER TERM, 1954.
Opinion of the Court.	349 U. S.
Mr. Justice Douglas delivered the opinion of the Court.
Petitioner brought this suit under § 17 of the Fair Labor Standards Act (52 Stat. 1060, as amended, 63 Stat. 910, 29 U. S. C. § 201 et seq.) to enjoin respondent from violating § 15 (a)(2) and § 15 (a)(5) of the Act. Those sections make unlawful violation of § 7 and § 11 (c) of the Act. Section 7 requires one and a half times the regular rate of pay for work in excess of 40 hours a week; and § 11 (c) requires the keeping of the records that are prescribed by regulations. 29 CFR, 1954 Cum. Supp., § 516.1 et seq. The contention is that respondent’s violations of § 7 and § 11 (c) relate to work performed in the construction of an earthwork embankment and concrete platform for the Algiers Lock in Orleans Parish, Louisiana, a unit in the Gulf Intracoastal Waterway, extending from Florida to the Mexican border. The Algiers Lock is designed to furnish better passage into and across the Mississippi than is provided by the present Harvey Lock and Canal.
Respondent concedes that some of its employees on the Algiers Lock were employed for more than 40 hours per week without payment for overtime. Its defense is that its employees working on the Algiers Lock were not engaged in interstate commerce, and thus were not covered by the Act.1
The evidence at the trial was primarily directed to the question whether those working on the Algiers Lock were engaged in commerce within the meaning of § 7 of the Act. As already noted, the Algiers Lock will form part of the Gulf Intracoastal Waterway. It is designed to serve as an alternate route to the Harvey Lock and Canal. Relying on our decision in Raymond v. Chicago, M. de St. P. R.
1 The only question presented and argued here concerns § 7 of the Act.
MITCHELL v. VOLLMER & CO.
429
427	Opinion of the Court.
Co., 243 U. S. 43, the District Court held that respondent’s employees were not engaged in commerce and denied injunctive relief. 113 F. Supp. 235. The Court of Appeals for the Fifth Circuit affirmed per curiam. 214 F. 2d 132. To resolve an apparent conflict with Tobin v. Pennington-W inter Const. Co., 198 F. 2d 334, we granted certiorari. 348 U. S. 886.
Section 7 of the Act makes the 40-hour week and the overtime provisions applicable to the Algiers Lock and Canal project if the respondent’s employees at work on it are “engaged in commerce.” It is argued that they are not engaged “in commerce,” since the Algiers Lock is new construction and therefore in the category of the new tunnel that was being constructed in Raymond n. Chicago, M. & St. P. R. Co., supra. In the latter case, the Court held that an employee at work on a new tunnel for an interstate carrier was not subject to the Federal Employers’ Liability Act, even though the tunnel, when completed, would be an interstate facility.
We do not think that case should control this one. We are dealing with a different Act of another vintage—one that has been given a liberal construction from Kirsch-baum Co. v. Walling, 316 U. S. 517, to Alstate Construction Co. v. Durkin, 345 U. S. 13. The question whether an employee is engaged “in commerce” within the meaning of the present Act is determined by practical considerations, not by technical conceptions. See Walling v. Jacksonville Paper Co., 317 U. S. 564, 570; Overstreet n. North Shore Corp., 318 U. S. 125, 128, 130. The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity. See McLeod v. Threl-keld, 319 U. S. 491, 497. Repair of facilities of interstate commerce is activity “in commerce” within the meaning of the Act, as we held in Fitzgerald Co. n. Pedersen, 324
430
349 U.S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
U. S. 720. And we think the work of improving existing facilities of interstate commerce, involved in the present case, falls in the same category.2
The Gulf Intracoastal Waterway is an existing instrumentality of commerce. Without Algiers Lock, it has proved inadequate where it crosses the Mississippi. Harvey Lock cannot handle the traffic. Use of Harvey Lock entails travel through some five miles of the New Orleans harbor, already heavy with traffic. It is impractical to widen Harvey Lock because it is located in a highly developed industrial section of New Orleans. Algiers Lock is conceived as the practical alternative for relieving the congestion of the Waterway at this point. See S. Doc. No. 188, 78th Cong., 2d Sess., pp. 1-4. The work on Algiers Lock seems to us to have as intimate a relation to improvement of navigation on the Waterway as the dredging of Harvey Lock would have. It is part of the redesigning of an existing facility of interstate commerce. Those working on the Algiers Lock are therefore “engaged in commerce” within the meaning of § 7 of the Act.
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Minton, with whom Mr. Justice Frankfurter joins, dissenting.
Only injunctive relief is sought here by the Secretary of Labor to prevent the violation of §§ 7 and 15 (a)(2) and §§ 11 (c) and 15 (a)(5) of the Fair Labor Standards Act, 29 U. S. C. § 201 et seq., which require the payment
2 The construction work held in Murphey v. Reed, 335 U. S. 865, not to be under the Act was the building of a Navy base, not the improvement of a facility or instrumentality of interstate commerce.
MITCHELL v. VOLLMER & CO.
431
427	Minton, J., dissenting.
by employers of extra pay for overtime work and the keeping of records by them. 29 U. S. C. § 207 (a) provides:
. . [N]o 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.”
It is contended that the respondent and its employees who were constructing this cutoff canal were “engaged in commerce.” If they were not so engaged, an injunction will not lie. This presents a question of statutory construction in light of legislative, administrative, and judicial considerations.
The Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq., provides that every railway common carrier while engaged in interstate commerce shall be liable in damages to any employee engaged in such commerce who suffers injury resulting from the negligence of the carrier. If the employee was not himself engaged in commerce, there can be no recovery under the Act.
In Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, the company was engaged in the operation of a railroad between Chicago and Seattle. Its existing route went around the mountains, and the railroad sought to tunnel through the mountains. While constructing this tunnel, Raymond was injured and sued the railroad under the Federal Employers’ Liability Act, claiming he was engaged in commerce when injured by the railroad’s negligence. This Court held that Raymond was not engaged in commerce while working on the construction of this cutoff tunnel because its use in commerce was only
432
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
contemplated after completion. That is the exact situation here with reference to this canal.
In New York Central R. Co. v. White, 243 U. S. 188, a railroad was constructing a new station alongside its interstate line. White was a night watchman employed at the site of this new construction and was killed. His representative sued under the Federal Employers’ Liability Act, claiming that he was engaged in commerce, but this Court held that he was not engaged in commerce as he went about his duties at the site of this new construction.
In the interpretation and application of the Fair Labor Standards Act, the federal courts have adopted the rule of the Raymond and White cases, which arose under the Federal Employers’ Liability Act. A prerequisite to the application of either Act was that the employee be engaged in commerce. This rule came to be known as the “new construction rule” and was applied by this Court in Murphey v. Reed, 335 U. S. 865. It was also applied by the First Circuit in Nieves v. Standard Dredging Corp., 152 F. 2d 719, where the employer was dredging a channel for navigation in a previously nonnavigable stream. The Second Circuit in Scholl v. McWilliams Dredging Co., 169 F. 2d 729, applied the rule where the employer was engaged in the construction of a new air base in Greenland that had not yet been used in foreign commerce. The Third Circuit applied the rule in Kelly v. Ford, Bacon & Davis, Inc., 162 F. 2d 555, where the employer was engaged in building a new plant for the construction of aircraft engines later to be used in commerce, but which plant was only an additional facility for such work. It was held in this case that the employer was not only not engaged in commerce, but it was not engaged in the production of goods for commerce. The Fifth Circuit, in another case beside the one under consideration, applied
MITCHELL v. VOLLMER & CO.
433
427	Minton, J., dissenting.
the rule of new construction to the building of an expressway which, when completed, would have routed over it several interstate highways. Van Klaveren n. Killian-House Co., 210 F. 2d 510. The Sixth Circuit in Koepke v. Garavaglia, 200 F. 2d 191, applied the rule to another case of new construction of an expressway to be later integrated into a highway system. The Eighth Circuit in Crabb v. Welden Bros., 164 F. 2d 797, applied the rule in the construction of the Alcan Highway. The Tenth Circuit in Moss n. Gillioz Const. Co., 206 F. 2d 819, similarly applied the rule in the construction of a new bridge at 51st Street, south of Tulsa, Oklahoma, over which interstate traffic then using the 11th Street Bridge could be routed.
The agencies responsible for the administration of the Act had interpreted it as not applying to new construction not yet used in interstate commerce. Wage and Hour Interpretative Bulletin No. 5, lfl2, Dec. 2, 1938; BNA, 1944-1945 WH Man. 23:
“The question arises whether the employees of builders and contractors are entitled to the benefits of the Act. The employees of local construction contractors generally are not engaged in interstate commerce and do not produce any goods which are shipped or sold across State lines. Thus, it is our opinion that employees engaged in the original construction of buildings are not generally within the scope of the Act, even if the buildings when completed will be used to produce goods for commerce. . .
In the Wage Hour Manual, Bureau of National Affairs Labor Relations Reporter, Vol. 6, 10:237, the rule is interpreted as follows:
“In interpreting the Act’s application to employers in the building and construction industry, the Wage
434
349 U. S.
OCTOBER TERM, 1954.
Minton, J., dissenting.
and Hour Division and the courts have drawn a distinction between the original construction of buildings or facilities and their repair or reconstruction.” We are not dealing here with improving or repairing existing facilities which are already in commerce, but with new construction that has never been used in commerce. It seems, therefore, that the Secretary of Labor has quite recently changed his mind about the application of the Act to new construction not yet used or not an integral part of interstate commerce. His change of mind should not change the law. This Court, which may change the law, seems to have changed its mind about the same time and without saying why it does so, except that the foregoing cases are of a different vintage. I am unable to distinguish the cases on the vintage test. Without overruling the Raymond, White and Murphey decisions and the number of cases decided by the Circuit Courts, this Court brushes them off as of another vintage.
Reliance upon this Court’s opinions becomes a hazardous business for lawyers and judges, not to mention contractors, who are not familiar with the vintage test.
FEDERAL POWER COMM’N v. OREGON. 435
Syllabus.
FEDERAL POWER COMMISSION v. OREGON et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 367. Argued March 2-3, 1955—Decided June 6, 1955.
The Federal Power Commission issued to a power company a license to construct, operate and maintain a hydroelectric plant, constituting Pelton Project No. 2030, on reserved lands of the United States on the Deschutes River in Oregon. The State of Oregon challenged the authority of the Commission to issue the license and the adequacy of the provisions approved by the Commission for the conservation of anadromous fish. Held: The Federal Power Act is applicable in accordance with its terms, and the Commission acted within its powers and its discretion in granting the license. Pp. 437-452.
1.	The Federal Power Act is applicable to this license. Pp. 441-446.
(a)	The federal jurisdiction here derives from the ownership or control by the United States of the reserved lands on which the licensed project is to be located. P. 442.
(b)	The authority to issue licenses in relation to public lands and reservations of the United States stems from the Property Clause, Art. IV, § 3, of the Constitution. Pp. 442-444.
(c)	Authorization of this project is within the exclusive jurisdiction of the Commission and does not require the consent of the State. Pp. 445-446.
2.	The Acts of July 26, 1866, July 9, 1870, and the Desert Land Act of 1877 do not apply to this license, which relates only to the use of waters on reservations of the United States. Pp. 446-448.
(a)	The lands involved here are not “public lands” but “reservations”; and these Acts do not apply to reserved lands and waters. Pp. 446-448.
(b)	Statutes providing generally for disposal of the public domain are inapplicable to lands which are not unqualifiedly subject to sale and disposition because they have been appropriated to some other purpose. P. 448.
3.	There was no abuse of discretion by the Commission in granting the license. Pp. 448-452.
(a)	In the reregulation of the flow of the stream, the Commission acts on behalf of the people of the State, as well as all others,
340907 0 - 55 - 34
436
349 U.S.
OCTOBER TERM, 1954.
Counsel for Parties.
in seeing to it that the interests of all concerned are adequately protected. P. 449.
(b)	The provision for the operation and maintenance of fish conservation facilities was reasonable and within the Commission’s discretion. Pp. 449-452.
(c)	The contention that the project will preclude the carrying out of certain plans for the Columbia River Basin may properly be directed to the Commission or to Congress, but is not for this Court to answer upon the basis of existing legal rights. P. 452.
211 F. 2d 347, reversed.
Willard W. Gatchell argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Rankin, Oscar H. Davis, William H. Veeder, John C. Mason and Louis C. Kaplan.
Arthur G. Higgs, Assistant Attorney General of Oregon, argued the cause for respondents. With him on the brief were Robert Y. Thornton, Attorney General, and E. G. Foxley, Deputy Attorney General.
Rollin E. Bowles argued the cause for the Oregon Division of the Izaak Walton League of America, Inc., as amicus curiae, supporting respondents. With him on the brief was L. C. Binford.
Motions to appear as amici curiae and adopt the brief of respondents were filed by the States of Indiana, by Edwin K. Steers, Attorney General; Louisiana, by Fred S. LeBlanc, Attorney General; Michigan, by Thomas M. Kavanagh, Attorney General, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General; Minnesota, by Miles Lord, Attorney General, and Perry G. Voidness, Special Assistant Attorney General; Montana, by Arnold H. Olsen, Attorney General, and Charles W. Leaphart, Assistant Attorney General; Nebraska, by Clarence S. Beck, Attorney General, and Robert V. Hoagland, Assistant Attorney General; Nevada, by Harvey Dickerson, Attorney General,
FEDERAL POWER COMM’N v. OREGON. 437
435	Opinion of the Court.
and. W. T. Mathews, Special Assistant Attorney General; North Dakota, by Leslie R. Burgum, Attorney General; Pennsylvania, by Herbert B. Cohen, Attorney General, and Lois G. Forer, Deputy Attorney General; Texas, by John Ben Shepperd, Attorney General; Utah, by E. R. Callister, Attorney General, and Robert B. Porter, Assistant Attorney General; and Washington, by Don Eastvoid, Attorney General, and Joseph T. Mijich and Richard F. Broz, Assistant Attorneys General.
Mr. Justice Burton delivered the opinion of the Court.
As in First Iowa Coop. v. Federal Power Commission, 328 U. S. 152, this case illustrates the integration of the federal and state jurisdictions in licensing water power projects under the Federal Power Act.1 In the First Iowa case we sustained the authority of the Commission to license a power project to use navigable waters of the United States located in Iowa. Here, without finding that the waters are navigable, the Commission has issued a comparable license for a power project to use waters on lands constituting reservations of the United States located in Oregon. The State of Oregon questions the authority of the Commission to do this and the adequacy of the provisions approved by the Commission for the conservation of anadromous fish.2 For the reasons hereafter stated, we sustain the Commission.
In 1949, the Northwest Power Supply Company of Portland, Oregon, applied to the Federal Power Commission for a license to construct, operate and maintain a hydroelectric plant, constituting Pelton Project No. 2030,
141 Stat. 1063, as amended, 49 Stat. 838, 16 U. S. C. §§ 791a-825r.
2 Fish ascending rivers from the sea for breeding purposes. In this instance, especially salmon and steelhead trout. For an outline of the general problem presented, see Schwartz, Federalism and Anadromous Fish, 23 Geo. Wash. L. Rev. 535.
438
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
on reserved lands of the United States on the Deschutes River in Oregon,3 and, in 1951, the Portland General Electric Company of Portland, Oregon, succeeded to a supplementary application for that license.
The Pelton Project is designed to include a concrete dam 205 feet high and a powerhouse containing three 36,000-kilowatt generators. It is to be built across the Deschutes River on reserved lands of the United States located below the junction of its Metolius and Crooked River tributaries.4 The western terminus of the dam is to occupy lands, within the Warm Springs Indian Reservation, which have been reserved by the United States for power purposes since 1910 and 1913.5 The eastern terminus
3 In 1924, the Columbia Valley Power Company, Inc., had applied to the Federal Power Commission for a license to develop Pelton Project No. 57 at substantially the same site. That license was issued but, due to the licensee’s failure to proceed with construction as required by the Commission, it was canceled in 1936.
4 The Deschutes River is entirely within the State of Oregon. It drains the eastern slope of the Cascade Range and flows northward, across the lands of the United States here involved, to the Columbia River, which it meets about 15 miles above The Dalles. The Commission has made no findings as to its navigability or as to the relation between its flow and the navigability of other streams. Throughout its lower 130 miles, which include the project site, it flows in a narrow canyon with an average fall of 17.6 feet per mile and, apparently, it is generally recognized as incapable of sustaining navigation. Accordingly, throughout this litigation, the river has been treated by all concerned as not constituting “navigable waters” of the United States as defined in § 3 (8) of the Federal Power Act, 49 Stat. 838, 16U. S. C. §796 (8). We do not pass either upon that question or upon the relationship to interstate commerce of the proposed use of the waters of the river.
5 The Warm Springs Indian Reservation was established by the Treaty of June 25, 1855, with the Indians in Middle Oregon. Ratified by the Senate March 8, 1859, and proclaimed by the President April 18, 1859, it secured to the Indians “the exclusive right of taking fish in the streams running through and bordering said reservation . . .	12 Stat. 963, 964. Oregon has recognized that it is
FEDERAL POWER COMM’N v. OREGON. 439
435	Opinion of the Court.
of the dam is to be on lands of the United States which, at least since 1909, have been withdrawn from entry under the public land laws and reserved for power purposes.6 The project calls for no permanent diversion of water as the entire flow of the river will run through or over the dam into the natural bed of the stream. This dam will make available the head and volume of water required for the project and the water impounded by it will create a narrow reservoir, submerging lands the title to which is or will be in the United States. Variations and interruptions in the flow of the stream, caused by temporary storage or use of water for power purposes, are to be controlled by a “reregulating dam” approved by the Commission and located on private property, to be acquired, about three miles below the power dam. No objection is made to the reregulating dam. To the extent that access to existing spawning grounds for anadromous fish is cut off by the power dam, other facilities on private property, to be acquired, are to be constructed and maintained on terms approved by the Commission and designed to develop an equal or greater fish population. Opportunities for recreational uses of the area are to be enhanced and no issue as to water pollution is before us.
bound by this Treaty. Anthony v. Veatch, 189 Ore. 462, 483-485, 220 P. 2d 493, 502-503. See also, United States v. Winans, 198 U. S. 371.
Indian Power Site Reserve No. 2 was created November 1, 1910, and Indian Power Site Reserve No. 294 was created October 8, 1913, both by the Secretary of the Interior under an Act of June 25, 1910, 36 Stat. 855,858.
6 Power Site Reserve No. 66 was created December 30, 1909, by the Secretary of the Interior and made permanent by an Executive Order of July 2, 1910, under an Act of June 25, 1910, 36 Stat. 847. In addition, a reservation occurred in connection with the application made to the Federal Power Commission, in 1924, for a license for Pelton Project No. 57. Comparable withdrawals were made in 1949 and 1951 in connection with the present application. See § 24 of the Federal Power Act, 41 Stat. 1075-1076, and amendments, 16 U. S. C. §818.
440
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
The State of Oregon, the Fish Commission of Oregon, the Oregon State Game Commission and the Oregon Division of the Izaak Walton League intervened before the Commission and each filed objections to the granting of the license. Some of their objections related to the authority of the Commission to grant the license and others to the suitability of the proposed fish conservation facilities.
Following extended hearings, the Commission’s presiding examiner recommended the license. After exceptions to that recommendation the Commission issued its opinion and an order granting the license. 10 F. P. C. 445, 450, 92 P. U. R. (N. S.) 247. The Commission found that a public need exists for the early completion of the project to meet a severe power shortage in the Pacific Northwest. It found also that the project is in the public interest, will provide for comprehensive development of the affected stretch of the Deschutes River, and will be consistent with further comprehensive development of that stream and of the Columbia Basin. It held that the improvements will contribute valuable public benefits which will not be available if the river is maintained in its present natural condition.7 The Commission stated that
7 “(44) Under present circumstances and conditions, and upon the terms and conditions hereinafter provided in the license, the project is best adapted to a comprehensive plan for the improvement and utilization of water-power development, for the conservation and preservation of the fish and wildlife resources, and for other beneficial public uses including recreational purposes.
“(45) The Portland General Electric Co. is a corporation organized under the laws of the State of Oregon and has submitted satisfactory evidence of compliance with the requirements of all applicable state laws insofar as necessary to effect the purposes of a license for the project.” 10 F. P. C., at 456. And see §§ 9 (b) and 10 (a) of the Federal Power Act, 41 Stat. 1068, 16 U. S. C. § 802 (b), and 49 Stat 842,16 U. S. C. § 803 (a).
FEDERAL POWER COMM’N v. OREGON. 441
435	Opinion of the Court.
the project will be subject to all existing rights to the use of the waters of the river, whether perfected or not. It prescribed temporary measures to be taken to meet the needs of the anadromous fish during the construction of the project and approved certain permanent facilities, practices and expenditures in relation to such fish. The opinion stated “that no substantial evidence has been brought forward to show that the facilities proposed for conserving the fish will not maintain existing runs. Moreover, there are indications that the runs can be increased.” 10 F. P. C., at 450, 92 P. U. R. (N. S.), at 252.
A rehearing being denied, the State and its agencies sought a review by the Court of Appeals for the Ninth Circuit and the Portland General Electric Company intervened. That court, with one judge dissenting, set aside the Commission’s order. 211 F. 2d 347. It recognized the necessity of a license from the Federal Power Commission but held that Congress, by its public lands legislation, long ago had transferred to the State of Oregon such control over the use of nonnavigable waters that the sponsor of the Pelton Project must secure also the permission prescribed by the State. We granted certiorari because of the public significance of the issues but denied leave to the Portland General Electric Company to intervene here. 348 U. S. 868. 28 U. S. C. § 1254 (1); 49 Stat. 860-861, 16 U. S. C. § 825Z (b). Several States filed briefs as amici curiae, usually adopting as their own the brief filed by respondents.
We divide our consideration of the issues into three parts.
I.	Applicability of the Federal Power Act.
On its face, the Federal Power Act applies to this license as specifically as it did to the license in the First Iowa case. There the jurisdiction of the Commission turned
442
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
almost entirely upon the navigability of the waters of the United States to which the license applied. Here the jurisdiction turns upon the ownership or control by the United States of the reserved lands on which the licensed project is to be located.8 The authority to issue licenses
8 “Sec. 4. The Commission is hereby authorized and empowered—
“(e) To issue licenses ... to any corporation organized under the laws of the United States or any State thereof ... for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States . . . : Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation: ....
“Sec. 23. . . .
“(b) It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920, or a license granted pursuant to this Act. Any person, association, corporation, State, or municipality intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those
FEDERAL POWER COMM’N v. OREGON. 443
435	Opinion of the Court.
in relation to navigable waters of the United States springs from the Commerce Clause of the Constitution. The authority to do so in relation to public lands and reservations of the United States springs from the Property Clause—“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .” Art. IV, § 3.9
In the instant case the project is to occupy lands which come within the term “reservations,” as distinguished from “public lands.” In the Federal Power Act, each has its established meaning. “Public lands” are lands subject to private appropriation and disposal under public
defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this Act. If the Commission shall not so find, and if no public lands or reservations are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws.” (Italics supplied except for the initial word of the proviso.) 49 Stat. 839, 840, 846, 16 U. S. C. §§ 797 (e), 817.
9 In what is somewhat of a companion case to the one before us, the Court of Appeals for the Ninth Circuit has recognized that, despite contentions as to state control of the use of water and the conservancy of fish within the Columbia River Basin, the Federal Power Commission has the authority to make effective a license and to provide facilities for anadromous fish much as is here proposed, when the waters involved are navigable waters of the United States. Washington Department of Game v. Federal Power Commission, 207 F. 2d 391. We denied certiorari April 5, 1954. 347 U. S. 936.
444
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
land laws. “Reservations” are not so subject.10 The title to the lands upon which the eastern terminus of the dam is to rest has been in the United States since the cession by Great Britain of the area now comprising the State of Oregon. Even if formerly they may have been open to private appropriation as “public lands,” they were withdrawn from such availability before any vested interests conflicting with the Pelton Project were acquired.11 Title to the bed of the Deschutes River is also in the United States.12 Since the Indian Treaty of 1855, the lands within the Indian reservation, upon which the western end of the dam will rest, have been reserved for the use of the Indians. More recently they were reserved for power purposes 13 and the Indians have given their consent to the project before us. Accordingly, there is no issue here as to whether or not the title to the tribal lands is in the United States.14
There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission
10 “Sec. 3. The words defined in this section shall have the following meanings for purposes of this Act, to wit:
“(1) ‘public lands’ means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include ‘reservations’, as hereinafter defined;
“(2) ‘reservations’ means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks; . . . .” 49 Stat. 838, 16 U. S. C. § 796 (1) and (2).
11 See note 6, supra.
12 See United States v. Utah, 283 U. S. 64, 75.
13 See note 5, supra.
14 See Hynes v. Grimes Packing Co., 337 U. S. 86, 103-104; Minnesota v. United States, 305 U. S. 382, 386.
FEDERAL POWER COMM’N v. OREGON. 445
435	Opinion of the Court.
to grant a valid license for a power project on reserved lands of the United States, provided that, as required by the Act, the use of the water does not conflict with vested rights of others.15 To allow Oregon to veto such use, by requiring the State’s additional permission, would result in the very duplication of regulatory control precluded by the First Iowa decision. 328 U. S. 152, 177-179. No such duplication of authority is called for by the Act.16 The Court of Appeals in the instant case
15 “Sec. 27. That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.” 41 Stat. 1077, 16 U.S.C.§821.
16 “To require the petitioner to secure the actual grant to it of a state permit ... as a condition precedent to securing a federal license for the same project under the Federal Power Act would vest in the Executive Council of Iowa a veto power over the federal project. Such a veto power easily could destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the ‘comprehensive’ planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.
“In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue. Where the Federal Government supersedes the state government there is no suggestion that the two agencies both shall have final authority. . . .
“The Act leaves to the States their traditional jurisdiction subject to the admittedly superior right of the Federal Government, through
446
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
agrees. 211 F. 2d, at 351. And see Washington Department of Game v. Federal Power Commission, 207 F. 2d 391, 395-396. Authorization of this project, therefore, is within the exclusive jurisdiction of the Federal Power Commission, unless that jurisdiction is modified by other federal legislation. See United States v. Rio Grande Irrigation Co., 174 U. S. 690, 703; Gutierres v. Albuquerque Land Co., 188 U. S. 545, 554.
II.	Inapplicability of the Desert Land Act of 1877 and Related Acts.
The State of Oregon argues that the Acts of July 26, 1866,17 July 9, 1870,18 and the Desert Land Act of
Congress, to regulate interstate and foreign commerce, administer the public lands and reservations of the United States and, in certain cases, exercise authority under the treaties of the United States.” First Iowa Coop. v. Federal Power Commission, 328 U. S. 152, 164, 167-168,171.
17 ‘‘Sec. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” (Italics supplied except for the initial words of the enacting clause and the proviso.) 14 Stat. 253, see 43 U. S. C. §661.
18 “Sec. 17. . . . all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act [14 Stat. 253, supra] of which this act is amendatory. . . .” (Italics supplied.) 16 Stat. 218, see 43 U. S. C. §661.
FEDERAL POWER COMM’N v. OREGON. 447
435	Opinion of the Court.
1877 19 constitute an express congressional delegation or conveyance to the State of the power to regulate the use of these waters. The argument is that these Acts preclude or restrict the scope of the jurisdiction, otherwise apparent on the face of the Federal Power Act, and require the consent of the State to a project such as the one before us.
The nature and effect of these Acts have been discussed previously by this Court. The purpose of the Acts of 1866 and 1870 was governmental recognition and sanction
19	. .it shall be lawful for any citizen of the United States, or
any person of requisite age ‘who may be entitled to become a citizen, and who has filed his declaration to become such’ and upon payment of twenty five cents per acre—to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter, Provided however that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him. Provided, that no person shall be permitted to enter more than one tract of land and not to exceed six hundred and forty acres which shall be in compact form.” (Italics supplied except for the initial words of the provisos.) 19 Stat. 377, 43 U. S. C. § 321.
448
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
of possessory rights on public lands asserted under local laws and customs. Jennison v. Kirk, 98 U. S. 453. The Desert Land Act severed, for purposes of private acquisition, soil and water rights on public lands, and provided that such water rights were to be acquired in the manner provided by the law of the State of location. California Oregon Power Co. N. Beaver Portland Cement Co., 295 U. S. 142. See also, Nebraska n. Wyoming, 325 U. S. 589, 611-616.
It is not necessary for us, in the instant case, to pass upon the question whether this legislation constitutes the express delegation or conveyance of power that is claimed by the State, because these Acts are not applicable to the reserved lands and waters here involved. The Desert Land Act covers “sources of water supply upon the public lands . . . .” The lands before us in this case are not “public lands” but “reservations.” Even without that express restriction of the Desert Land Act to sources of water supply on public lands, these Acts would not apply to reserved lands. “It is a familiar principle of public land law that statutes providing generally for disposal of the public domain are inapplicable to lands which are not unqualifiedly subject to sale and disposition because they have been appropriated to some other purpose.” United States v. O’Donnell, 303 U. S. 501, 510. See also, United States v. Minnesota, 270 U. S. 181, 206. The instant lands certainly “are not unqualifiedly subject to sale and disposition . . . .” Accordingly, it is enough, for the instant case, to recognize that these Acts do not apply to this license, which relates only to the use of waters on reservations of the United States.
III.	Application of the Federal Power Act to This Project.
Finally, respondents question the discretion used by the Commission in granting the license. They point to
FEDERAL POWER COMM’N v. OREGON. 449
435	Opinion of the Court.
the consequences which the project will have beyond the limits of the reserved lands on which it will be located.
The first consequence is the inevitable variation in, or the temporary interruption of, the flow of the stream. The Commission is satisfied that it has overcome this objection by its provision for a reregulating dam. It has approved the technical features involved and the site for that dam will be acquired in accordance with the property laws of Oregon.20 In this reregulation of the flow of the stream, the Commission acts on behalf of the people of Oregon, as well as all others, in seeing to it that the interests of all concerned are adequately protected.
There remains the effect of the project upon anadromous fish which use these waters as spawning grounds. All agree that the 205-foot dam will cut off access of some fish to their natural spawning grounds above the dam and that such interruption cannot be overcome by fish ladders.21 However, the State does not flatly prohibit the construction of dams that cut off anadromous fish from their spawning or breeding grounds.22 One alternative,
20 While the final approval of the engineering requirements of this feature rests with the Commission, there is no reason why the Commission and the State of Oregon, which also desires appropriate reregulation of the flow of the stream, should not seek a mutually satisfactory solution. In fact, the applicant for the federal license did submit its proposals for reregulation to the state authorities.
21 The Oregon Fish Commission made a rough estimate of the annual runs of spring chinook and salmon passing the Pelton site, en route upstream, at 2,500 and of summer steelhead trout at 5,000. On the basis of this escapement past the project, the Fish Commission estimated the annual value of the Deschutes salmon and steelhead fishery attributable to the river above the Pelton site to be $177,375. 10 F. P. C., at 449, 92 P. U. R. (N. S.), at 252.
22	. . In the event that any person desires to construct a dam
in any of the streams of this state to a height that will make a fish ladder or fishway thereover impracticable, in the opinion of the [Fish] commission, then such person may make an application to the commission for a permit to construct such dam, and the commission is
450
349 U. S.
OCTOBER TERM, 1954.
Opinion of the Court.
thus recognized, is the supplying of new breeding pools to which the fish can be removed at appropriate times.23 The Fish Commission of Oregon has denied a permit to the Portland General Electric Company to carry out its present proposal but there appears to be no disagreement as to the underlying principle involved.24
hereby authorized to grant such permit in its discretion, upon the condition that the person so applying for such permit shall convey to the state of Oregon a site of the size and dimensions satisfactory to the commission, at such place as may be selected by the commission, and erect thereon a hatchery and hatchery residence, according to plans and specifications to be furnished by the commission, and enter into an agreement with the commission, secured by a good and sufficient bond, to furnish all water and' light, without expense, to operate said proposed hatchery; and no permit for the construction of any such dam shall be given by the commission until the person applying for such permit shall have actually conveyed said land to the state and erected said hatchery and hatchery residence in accordance with the said plans and specifications. . . .” (Italics supplied.) Ore. Comp. Laws, 1940, § 83-316.
23 The Federal Power Commission here found that:
“(29) There is nothing novel, unusual or out of the ordinary with respect to the fishery conservation facilities proposed by applicant.
“(30) The applicant proposes to operate or arrange for the operation of the fish conservation facilities in accordance with approved methods.
“(31) Construction, or operation and maintenance of the Pelton project will not be detrimental to the fishery resources below the re regulating dam.
“(32) There is no substantial evidence in the record to show that the fishery facilities proposed by the applicant in accordance with the plans prepared by the Fish Commission of Oregon will not maintain existing runs, and there is a possibility that the run can be increased.” 10 F. P. C., at 455.
24 In addition to its application to the Federal Power Commission, the Portland General Electric Company also sought approval of the Pelton Project by the Oregon Hydroelectric Commission. While we hold that such approval is not necessary, there is no reason why the company should not thus seek state as well as federal approval of the project. In its application for the Federal Power Commission
FEDERAL POWER COMM’N v. OREGON. 451
435	Opinion of the Court.
The applicant has agreed to provide facilities for conserving the runs of anadromous fish in accordance with plans approved by the Federal Power Commission. The capital cost of these facilities and of the reregulating dam, to be borne by the applicant, is estimated at $4,430,000. The total annual cost due to these facilities is estimated at $795,000. The Commission has found each of these estimates to be reasonable. Of the $795,000 annual cost, the applicant will bear $410,000 (cost of borrowed money, depreciation and taxes on the capital investment), and the $10,000 maintenance cost of the reregulating dam. In addition, it has offered to contribute $100,000 annually
license, the company referred to these simultaneous state proceedings, which did not reach a conclusion until shortly before the granting of the federal license. The license from the Hydroelectric Commission was denied because of the applicant’s failure to secure the permit from the Fish Commission of Oregon which it had sought.
The pertinent Oregon provisions are as follows:
“From and after the taking effect of this act, no water-power project involving the use of the waters of any of the lakes, rivers, streams or other bodies of water within the state of Oregon, including waters over which this state has concurrent jurisdiction, for the generation of electricity, shall be begun or constructed except in conformity with the provisions hereof.
“The [Oregon Hydroelectric] commission shall have power: . . . .
“(b) To issue licenses, as hereinafter provided, to citizens of the United States, associations of citizens, private corporations organized under the laws of the United States or any state thereof, to appropriate, initiate, perfect, acquire and hold the right to the use of the waters within the state, including the waters over which the state has concurrent jurisdiction, and to construct, operate and maintain dams, reservoirs, power houses, conduits, transmission lines, and all other works and structures necessary or convenient for the use of such waters in the generation and utilization of electricity.” Ore. Comp. Laws, 1940, §§ 119-103,119-106.
See also, “The provisions of this act shall not apply to any waterpower project or development constructed by the government of the United States.” Id., § 119-101.
340907 0-55-35
452
349 U. S.
OCTOBER TERM, 1954.
Douglas, J., dissenting.
toward the estimated $375,000 cost of operation and maintenance of the fish conservation facilities, and the Commission has retained the power to fix the amount of the applicant’s contribution if a sum is not agreed upon.
The care given to the preparation of this conservation program and the large investment to be made in it are impressive. It also is of interest that the Fish Commission of Oregon already is operating somewhat comparable but smaller facilities of this kind on the Metolius River.
One argument against the project goes beyond the need to conserve the existing fish population. It is argued that the project will preclude the carrying out of certain plans for the Columbia River Basin which contemplate greatly enlarging the fish population in the Deschutes River area, by concentrating there other runs of fish not now using that river. While such an argument may properly be directed to the Federal Power Commission or to Congress, it is not one for us to answer upon the basis of existing legal rights.
We conclude, therefore, that, on the facts here presented, the Federal Power Act is applicable in accordance with its terms, and that the Federal Power Commission has acted within its powers and its discretion in granting the license now before us.
The judgment of the Court of Appeals, accordingly, is
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Douglas, dissenting.
I would not suppose the United States could erect a dam on this nonnavigable river without obtaining its water rights in accordance with state law. If I am right in that assumption, then this dam cannot be built with-
FEDERAL POWER COMM’N v. OREGON. 453
435	Douglas, J., dissenting.
out satisfying Oregon’s water-rights law. For the federal licensee who will build this dam acquires all its rights from the United States. And the United States cannot give what it does not have.1
The argument pressed on us by the United States is akin to the one urged in Nebraska n. Wyoming, 325 U. S. 589, 611 et seq. In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavigable streams of the West dependent on state law. It claimed that it owned all the unappropriated water in the basin of the North Platte River. The argument was made not only under the Reclamation Act of 1902, 32 Stat. 388, but also under the Desert Land Act of 1877, 19 Stat. 377, the Act involved here. We reserved decision as to whether under some circumstances the United States might be the owner of unappropriated water rights. But we held that under those Acts the United States took its water rights like other landowners, viz., pursuant to state law governing appropriation.
Unless we are to depart from that ruling, we must accept Oregon’s claim here.
1 The Deschutes River is nonnavigable and part of the Columbia River Basin. It is, indeed, a direct tributary of the Columbia. Control of this tributary might be important to an effective flood-control program for the Columbia. If so, this dam could find constitutional sanction under the Commerce Clause. See Oklahoma n. Atkinson Co., 313 U. S. 508, 525. That constitutional power over the Deschutes would not be lost through nonuse or through intervening legislation. In case the constitutional power were exercised, private rights would give way. Oregon could demand compensation for the loss of any water-power rights it possessed. See Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, 254-255. But Oregon could not assert its regulatory powers to defeat the federal program, for the Supremacy Clause would prevent her.
No effort has been made to bring this case under the Commerce Clause. The findings are inadequate for that purpose. The case turns on the authority of the United States as a proprietor.
454
349 U. S.
OCTOBER TERM, 1954.
Douglas, J., dissenting.
Oregon’s position has for its support two other decisions of this Court, both construing the Desert Land Act. The first of these is California Oregon Power Co. v. Cement Co., 295 U. S. 142, which construed the provision of the Desert Land Act, crucial here, which reads:
“all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.”
The Court interpreted that provision as follows:
“The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all non-navigable waters thereon should be reserved for the use of the public under the laws of the states and territories named.” 295 U. S. 142,162.
That case, to be sure, involved a contest between private owners. But the principle announced was shortly applied to the United States as a property owner on a nonnavigable stream.2 In Ickes v. Fox, 300 U. S. 82, the
2 If this were a navigable stream, the authority of the United States in the water power would be complete without reference to state law. United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592; United States v. Commodore Park, Inc., 324 U. S. 386. In that case, the Act authorizes the Commission to proceed, irrespective of the approval of the State where the dam is located. First Iowa Coop. v. Power Commission, 328 U. S. 152. But the present project, dealing as it does with nonnavigable waters, is dependent on the state law of water rights for its execution. In the First Iowa Coop, case, we recognized the room left for that degree of control by the States in this situation:
“In the Federal Power Act there is a separation of those subjects
FEDERAL POWER COMM’N v. OREGON. 455
435	Douglas, J., dissenting.
Court held that by the Desert Land Act, “if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the government title to a parcel of land was not to carry with it a water-right; but all non-navigable waters were reserved for the use of the public under the laws of the various arid-land states.” Id., at 95.
The Fox case involved water rights of farmers under a federal irrigation project, the claim being that the United States, owner of the irrigation system, owned the water rights. The Court rejected that claim and looked to state law to determine who had the water rights; and finding that the farmers owned them, the Court held that the United States was not an indispensable party in litigation concerning them.
Those cases should control here. The Desert Land Act applies to “public lands”; and the Federal Power Act, 41 Stat. 1063, as amended, 16 U. S. C. § 791a et seq., grants the Commission authority to issue licenses for power development “upon any part of the public lands and reservations of the United States.” § 4 (e). The definition of those terms in the Act says nothing about water rights.3
which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue.” Id., at 167-168.
3 Those terms are defined as follows in § 3:
“(1) 'public lands’ means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include 'reservations’, as hereinafter defined;
“(2) ‘reservations’ means national forests, tribal lands embraced
456
349 U.S.
OCTOBER TERM, 1954.
Douglas, J., dissenting.
And, as I have pointed out, it has been the long-term policy of Congress to separate western land from water rights.
The final resort of the Commission is to the Act of June 25, 1910, 36 Stat. 847, providing:
“That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.”
It was under this Act that some of the lands here involved were reserved for a power site. But the Act of June 25, 1910, by its very terms, did no more than withdraw these public lands “from settlement, location, sale, or entry.” The Act did not purport to touch or change in any way the provision of the Desert Land Act that pertains to water rights. If the words of the 1910 Act are to control, water rights remained undisturbed. The lands remained “public lands,” save only that settlers could not locate on them. I assume that the United States could have recalled its grant of jurisdiction over water rights, saving, of course, all vested rights. But the United States has not expressly done so; and we should not construe any law as achieving that result unless the purpose of Congress is clear.
within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks; . . . ”
FEDERAL POWER COMM’N v. OREGON. 457
435	Douglas, J., dissenting.
The reason is that the rule adopted by the Court profoundly affects the economy of many States, ten of whom are here in protest. In the West, the United States owns a vast amount of land—in some States, over 50 percent of all the land. If by mere Executive action the federal lands may be reserved and all the water rights appurtenant to them returned to the United States, vast dislocations in the economies of the Western States may follow. For the right of withdrawal of public lands granted by the 1910 Act is not only for “water-power sites” but for a host of public projects—“irrigation, classifications of lands, or other public purposes.” Federal officials have long sought that authority. It has been consistently denied them. We should deny it again. Certainly the United States could not appropriate the water rights in defiance of Oregon law, if it built the dam. It should have no greater authority when it makes a grant to a private power group.
458
OCTOBER TERM, 1954.
Syllabus.
349 U. S.
ELLIS v. DIXON et al., MEMBERS OF THE BOARD OF EDUCATION OF THE CITY OF YONKERS.
CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK, SECOND DEPARTMENT.
No. 20. Argued October 18, 1954.—Reargued April 20, 1955.— Decided June 6, 1955.
This Court granted certiorari to consider petitioner’s claim that his organization had been denied federal constitutional rights and that the New York State courts had ruled adversely on this claim in sustaining dismissal of his suit. Upon reargument, it appeared that petitioner’s pleadings had failed to lay a sufficient foundation for a decision on a claim of denial of federal constitutional rights and that dismissal of his suit by the New York courts might have rested upon this adequate nonfederal ground. Held: The writ of certiorari is dismissed as improvidently granted. Pp. 459-464.
(a)	It will not be assumed on this record that, in denying, without opinion, petitioner’s application for leave to appeal, the New York Court of Appeals desired to thwart a review of petitioner’s claim of denial of federal constitutional rights. Pp. 462-463.
(b)	If the insufficiency of petitioner’s pleading to assert a federal right was the reason for the Court of Appeals’ denial of leave to appeal, that determination would not conclude this Court. P. 463.
(c)	The record in this case is inadequate as a basis for a decision by this Court on the constitutional issues sought to be presented. Pp. 462, 464.
(d)	In the circumstances of this case, dismissal of the writ of certiorari is based on lack of jurisdiction, since the Court of Appeals’ denial of leave to appeal might have rested on an adequate nonfederal ground. P. 464.
Writ of certiorari dismissed.
Emanuel Redfield argued the cause and filed the briefs for petitioner.
J. Raymond Hannon argued the cause for respondents. With him on the brief was John Preston Phillips.
ELLIS v. DIXON.
459
458	Opinion of the Court.
Daniel T. Scannell argued the cause for the City of New York, as amicus curiae, urging affirmance. With him on the briefs were Peter Campbell Brown, Seymour B. Quel and Helen R. Cassidy.
Mr. Justice Harlan delivered the opinion of the Court.
Upon reargument the Court has come to the conclusion that the writ of certiorari1 should be dismissed as im-providently granted.
The New York Court of Appeals denied petitioner’s motion for leave to appeal without stating any ground for its decision. 306 N. Y. 981. In these circumstances we must ascertain whether that court’s decision “might” have rested on a nonfederal ground, for if it did we must decline to take jurisdiction. Stembridge v. Georgia, 343 U. S. 541, 547 (1952); see also Lynch v. New York ex rel. Pierson, 293 U. S. 52, 54 (1934). We approach the matter first by considering what the petitioner has alleged as a basis for the constitutional issues which he asks us to review on the merits.
The constitutional questions involved are whether respondents, members of the Yonkers Board of Education, in refusing the use of any of the Yonkers public school buildings to the Yonkers Committee for Peace for a forum on “peace and war,” discriminated against the Committee, so as to deprive the Committee’s members of their rights of freedom of speech, assembly, and equal protection of the laws, under the First and Fourteenth Amendments.
Petitioner concedes that a State may withhold its school facilities altogether from use by nonscholastic groups. It is implicit in this concession that petitioner also recognizes that a State may make reasonable clas-
1 Certiorari was granted. 347 U. S. 926. The case was set for reargument both on the merits and as to the jurisdiction of this Court. 348 U.S.881.
460
OCTOBER TERM, 1954.
Opinion of the Court.	349 U.S.
silications in determining the extent to which its schools shall be available for nonscholastic uses, and petitioner has not attacked on this score the classifications made by the applicable New York statute and respondents’ regulations.2 The question of whether the regulations are unconstitutionally vague was not raised below, and hence is not open here. Therefore the burden of petitioner’s grievance would seem to be that respondents have applied the statute and regulations to similar groups differently than they have to the Committee for Peace. And yet petitioner has failed to allege in his pleading, which upon respondents’ motion was dismissed prior to answer, that other organizations of a similar character to the Committee for Peace have been allowed use of the Yonkers schools. The allegations of that pleading simply are that unnamed and undescribed “organizations” have been allowed to use Yonkers school buildings in the past “for the purpose of public assembly and discussion.” 3
2 The state statute, insofar as applicable here, allows each board of education to adopt reasonable regulations for the use of school property, when not in use for school purposes, for any of the following purposes: “For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community . . . ,” “For meetings, entertainments and occasions where admission fees are charged, when the proceeds thereof are to be expended for an educational or charitable purpose . . .” and “For civic forums and community centers. ...” N. Y. Education Law, § 414 (3), (4), (6). It is not clear whether this last use is restricted by subsequent language in the section so as to permit only such forums as are established by the board of education.
The regulations adopted by respondents do not enlarge upon these classifications in the statute.
3 After reciting the respondents’ refusal to permit the Committee for Peace to use any of the Yonkers school buildings on two occasions in 1952, the petition goes on to allege:
“14. That pursuant to Section 414 of the Education Law of the State of New York, the respondents, and/or their predecessors, as members of the Board of Education of the City of Yonkers, adopted
ELLIS v. DIXON.
461
458	Opinion of the Court.
Whether such organizations are in any way comparable to the Committee for Peace nowhere appears in the pleading.4 And what the practice of the Board of Education has been in permitting the nonscholastic use of school buildings is not shown.
regulations for the use of the schoolhouses, grounds or other property when not in use for school purposes in Yonkers, New York, whereby organizations at all times herein mentioned were and are permitted the use of the school buildings when not in use.
“15. That at all times herein mentioned and at all times since the adoption of the aforesaid regulations, the school buildings, grounds and property of and in the City of Yonkers have on numerous occasions (whose number are best known to respondents and at such numerous times and occasions that the practice is an accepted practice) been permitted to be used pursuant to Section 414 of the Education Law by organizations for the purpose of public assembly and discussion.
“16. That at no time herein mentioned did the respondents inform petitioner of the reason for the denial of his application, nor did they ask petitioner or his organization to fulfill any further requirements or conditions for permission to use by them of a school building in Yonkers, New York, for purposes of public assembly or discussion.
“17. That by reason of the action of the respondents in failing to give a reason for its action whereas permission is freely granted to others applying, it is evident that the respondents are concealing a design to discriminate against petitioner and his said organization, for which discrimination there is no foundation in law or fact, and that the acts of respondents are arbitrary and unreasonable.
“18. The action of respondents violates the right of petitioner and the constituent members of his organization of freedom of speech and assembly guaranteed by the Constitution of the United States and denies them the equal protection of the laws in violation of the Constitution of the United States.”
4 It may be noted that in an affidavit in support of the motion for leave to appeal to the Court of Appeals, petitioner’s attorney sought to remedy this vital defect by including the assertion, “that other organizations similar to petitioner’s have obtained similar use” of the schools from the Yonkers Board of Education. But it does not appear that petitioner ever sought to amend his pleading in these respects.
462
349 U.S.
OCTOBER TERM, 1954.
Opinion of the Court.
What has been alleged is entirely too amorphous to permit adjudication of the constitutional issues asserted. And we think the most reasonable inference from this record is that the Court of Appeals’ denial of petitioner’s motion for leave to appeal went on that ground, rather than on the ground, suggested on behalf of respondents, that in proceeding by way of leave to appeal rather than by an appeal as of right the petitioner had followed the wrong appellate route.5 This conclusion is fortified by two additional circumstances. If the Court of Appeals had considered the constitutional issues adequately presented, it presumably would have saved petitioner’s right to appeal as of right by putting its denial of leave to appeal on the ground that an appeal lay as of right. See N. Y. Civ. Prac. Act, § 592 (5) (a).6 Otherwise we would
5 New York has two methods of appeal to the Court of Appeals— an appeal as of right and by leave to appeal. An appeal as of right lies, inter alia, where there is “directly involved the construction of the constitution of the state or of the United States . . . .” N. Y. Const., Art. VI, §7 (1); N. Y. Civ. Prac. Act, §588 (l)(a). In all cases in which an appeal does not lie as of right, appeal is by leave of the Appellate Division or the Court of Appeals. N. Y. Const., Art. VI, § 7 (6); N. Y. Civ. Prac. Act, § 589. Had wrong appellate procedure been the reason for the Court of Appeals’ denial of leave to appeal, its decision would have rested on an adequate nonfederal ground, depriving this Court of jurisdiction. Cf. Parker v. Illinois, 333 U. S. 571 (1948); Central Union Telephone Co. v. City of Edwardsville, 269 U. S. 190 (1925).
6 This section provides that when leave to appeal is denied “upon the ground that the appeal would lie as of right,” the appellant is automatically entitled to an additional 30 days after the denial to file an appeal as of right. The Court of Appeals has thus stated its ground of denial in many instances where leave to appeal was denied because an appeal lay as of right. See, e. g., In re Arbitration between E. Milius & Co. and Regal Shirt Corp., 305 N. Y. 562, 111 N. E. 2d 438 (1953); In re Brinn, 305 N. Y. 626, 111 N. E. 2d 738 (1953) ; In re Wuttke, 305 N. Y. 694, 112 N. E. 2d 777 (1953); In re Hecht, 305 N. Y. 800, 113 N. E. 2d 553 (1953); Auten v. Auten, 306 N. Y. 752,118 N.E. 2d 110 (1954).
ELLIS v. DIXON.
463
458	Opinion of the Court.
have to assume that the Court of Appeals desired to thwart review of the constitutional questions, an assumption wholly unjustified by this record. Furthermore, the decision of New York’s intermediate appellate court against the petitioner was because of the insufficiency of his pleading.7
If the insufficiency of petitioner’s pleading was the reason for the Court of Appeals’ denial of leave to appeal, the past decisions of this Court still leave room for argument as to whether we should dismiss for lack of jurisdiction because the state court’s decision rested on an adequate nonfederal ground. It is established law that this Court is not finally concluded by the state court’s determination as to the sufficiency of pleadings asserting a federal right. Some of the cases seem to suggest that the scope of our review is limited to determining whether the state court has by-passed the federal right under forms of local procedure, from which it would seem to follow that if we find that such is not the case we should dismiss for want of jurisdiction. Cf. American Railway Express Co. v. Levee, 263 U. S. 19, 21 (1923); Davis n. Wechsler, 263 U. S. 22, 24 (1923). There can be no suggestion of by-passing in this instance. Other cases, however, indicate that we should accept jurisdiction and decide the sufficiency of the pleadings de novo for ourselves. See Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 180 (1892); Carter n. Texas, 177 U. S. 442, 447 (1900); First National Bank v. Anderson, 269 U. S. 341, 346 (1926); Brown v. Western Railway of Alabama, 338 U. S. 294, 296 (1949). In the present case, the route which we travel would make
7 In affirming the judgment of the court of first instance, the Appellate Division of the Supreme Court, Second Department, stated: “The proceeding was properly before the court. However, the petition does not allege facts which establish a clear legal right to the relief sought nor which establish that respondents failed to perform a duty enjoined by law.” 281 App. Div. 987, 120 N. Y. S. 2d 854.
464	OCTOBER TERM, 1954.
Opinion of the Court.	349 U. S.
no difference in the result. Even if we were to look at the matter ourselves de novo, we could not on this vague and empty record decide the constitutional issues sought to be presented. This Court has often refused to decide constitutional questions on an inadequate record. See, e. g., International Brotherhood of Teamsters n. Denver Milk Producers, Inc., 334 U. S. 809 (1948); Rescue Army v. Municipal Court, 331 U. S. 549, 575-585 (1947); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 762-763 (1947); Alabama State Federation of Labor v. McAdory, 325 U. S. 450 (1945). In the circumstances of this case, we prefer to rest our decision on the ground that we lack jurisdiction. For if we could not ourselves decide on this record the constitutional issues tendered, we consider that by the same token the New York Court of Appeals was entirely justified in refusing to pass on them, and that we should therefore regard its denial of leave to appeal as resting on an adequate nonfederal ground. See Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U. S. 359 (1907); Brinkmeier v. Missouri P. R. Co., 224 U. S. 268 (1912).
We conclude that the writ of certiorari must be dismissed as improvidently granted.
Dismissed.
The Chief Justice, Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Clark dissent, believing that the allegations of the petition are sufficient to state a case of discrimination under the Equal Protection Clause.
Reporter’s Note.
The next page is purposely numbered 901. The numbers between 464 and 901 were purposely omitted, in order to make it possible to publish the per curiam decisions and orders in the current advance sheets or “preliminary prints” of the United States Reports with permanent page numbers, thus making the official citations available immediately.
DECISIONS PER CURIAM AND ORDERS FROM APRIL 11 THROUGH JUNE 6, 1955.
April 11, 1955.
Decisions Per Curiam.
No. 333. Pino v. Landon, District Director, Immigration and Naturalization Service. Certiorari, 348 U. S. 870, to the United States Court of Appeals for the First Circuit. Argued March 30, 1955. Decided April 11, 1955. Per Curiam: On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of § 241 of the Immigration and Nationality Act. The judgment is reversed. Reuben Goodman argued the cause for petitioner. With him on the brief were Paul T. Smith and Jacob Spiegel. John F. Davis argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Richard J. Blanchard. Reported below: 215 F. 2d 237.
No. 157. Ryan Stevedoring Co., Inc. v. PanAtlantic Steamship Corp. Certiorari, 348 U. S. 813, to the United States Court of Appeals for the Second Circuit. Argued March 3-4, 1955. Decided April 11, 1955. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Harlan took no part in the consideration or decision of this case. Sidney A. Schwartz argued the cause for petitioner. With him on the brief was Edward Ash. Edward J. Behrens argued the cause for respondent. With him on the brief was Charles H. Lawson. By special leave of Court, 348 U. S. 948, Leavenworth Colby argued the cause for the United States, as amicus curiae, urging affirmance. With him on
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901
902
OCTOBER TERM, 1954.
April 11, 1955.
349 U. S.
the brief were Solicitor General Sobeloff, Assistant Attorney General Burger, Paul A. Sweeney and Herman Marcuse. Reported below: 211 F. 2d 277.
No. 213. Indian Towing Co., Inc. et al. v. United States. Certiorari, 348 U. S. 810, to the United States Court of Appeals for the Fifth Circuit. Argued February 10, 1955. Decided April 11, 1955. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Harlan took no part in the consideration or decision of this case. Richard B. Montgomery argued the cause for petitioners. With him on the brief was Cicero C. Sessions. Lester S. Jayson argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Burger and Paul A. Sweeney. Reported below: 211 F. 2d 886.
No. 584. Seaboard Air Line Railroad Co. v. United States et al. Appeal from the United States District Court for the Eastern District of Virginia. Per Curiam: The motions to affirm are granted and the judgment is affirmed. James B. McDonough, Jr. and Charles T. Abeles for appellant. Solicitor General Sobeloff, Charles H. Weston and Edward M. Reidy for the United States and the Interstate Commerce Commission; and R. B. Gwathmey for the Atlantic Coast Line Railroad Co., appellees. Reported below: 131 F. Supp. 129.
No. 611. Lazar v. Oklahoma. Appeal from the Criminal Court of Appeals of Oklahoma. Per Curiam: The appeal is dismissed for want of a substantial federal question. John B. Dudley for appellant. Reported below: 275 P. 2d 1003.
DECISIONS PER CURIAM ETC.
903
349 U.S.	April 11, 1955.
No. 600. W. J. Dillner Transfer Co. v. Pennsylvania Public Utility Commission et al. Appeal from the Supreme Court of Pennsylvania, Western District; and
No. 601. W. J. Dillner Transfer Co. v. Pennsylvania Public Utility Commission et al. Appeal from the Supreme Court of Pennsylvania, Middle District. Per Curiam: The motions to dismiss are granted and the appeals are dismissed for want of a substantial federal question. J. Paul Rupp and Ernie Adamson for appellant. Thomas M. Kerrigan for the Pennsylvania Public Utility Commission; and Harold S. Shertz for Highway Express Lines, Inc. et al., appellees. Reported below: See 175 Pa. Super. 461, 472, 107 A. 2d 159, 164.
Miscellaneous Orders.
No. 376. Peters v. Hobby et al. Certiorari, 348 U. S. 882, to the United States Court of Appeals for the District of Columbia Circuit. Motion of the Congress of Industrial Organizations for leave to appear and present oral argument, as amicus curiae, denied.
No.-------. In re Anastaplo. Motion for leave to file application for admission to the Bar of the Supreme Court of the United States denied.
No. 608. Oklahoma ex rel. Grimes et al. v. Board of Education of Oklahoma City et al. Petition for writ of certiorari to the Supreme Court of Oklahoma and for other relief denied. Harlan Grimes pro se. Ned Looney and Alexander M. Heron for the National Surety Corporation; and Maurice M. Thomas for the New Amsterdam Casualty Co., respondents. Reported below: 186 Okla. 665, 99 P. 2d 876.
904
OCTOBER TERM, 1954.
April 11, 1955.
349 U.S.
Certiorari Granted.
No. 625. United States v. Minker. C. A. 3d Cir. Certiorari granted. Solicitor General Sobeloff for the United States. Jacob Kossman for respondent. Reported below: 217 F. 2d 350.
No. 399, Mise. Pennsylvania ex rel. Herman v. Claudy, Warden. Supreme Court of Pennsylvania, Western District. Certiorari granted. Marjorie H. Mat-son and Herbert Monte Levy for petitioner. Reported below: See 176 Pa. Super. 387, 107 A. 2d 595.
Certiorari Denied. (See also No. 608, supra.)
No. 587. G. & P. Amusement Co. v. Regent Theater Co. et al. C. A. 6th Cir. Certiorari denied. Samuel T. Gaines for petitioner. Jerome N. Curtis for the Regent Theater Co. et al.; and Luther Day for Warner Bros. Pictures Distributing Corporation et al., respondents. Reported below: 216 F. 2d 749.
No. 602. Jamouneau v. Harner et al. Supreme Court of New Jersey. Certiorari denied. Petitioner pro se. Grover C. Richman, Jr., Attorney General of New Jersey, Harold Kolovsky, Assistant Attorney General, and David M. Satz, Jr., Deputy Attorney General, for Richman, respondent. Reported below: 16 N. J. 500, 109 A. 2d 640.
No. 607. Grimes v. Maynard et al. Court of Civil Appeals of Texas, Tenth Supreme Judicial District. Certiorari denied. Harlan Grimes pro se. Tom M. Miller for respondents. Reported below: 270 S. W. 2d 282.
No. 610. Stockton Harbor Industrial Co. v. Commissioner of Internal Revenue. C. A. 9th Cir. Certiorari denied. Valentine Brookes and Arthur H. Kent
DECISIONS PER CURIAM ETC.
905
349 U.S.	April 11, 1955.
for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, Lee A. Jackson and Melva M. Graney for respondent. Reported below: 216 F. 2d 638.
No. 618. Edwards et al. v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. Chester H. Ferguson and George W. Ericksen for petitioners. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack and Robert B. Ross for respondent. Reported below: 217 F. 2d 952.
No. 619. Chicago, Rock Island & Pacific Railroad Co. v. Wright. Supreme Court of Oklahoma. Certiorari denied. Robert E. Shelton for petitioner. Irving H. Green and Walter D. Hanson for respondent. Reported below: 278 P. 2d 830.
No. 621. Davis v. California. Supreme Court of California. Certiorari denied. Max Solomon for petitioner. Reported below: 43 Cal. 2d 661, 276 P. 2d 801.
No. 622. Alpha Silk Co. et al. v. United States. Court of Claims. Certiorari denied. William A. Roberts, Irene Kennedy and Roger H. Muzzall for petitioners. Solicitor General Sobeloff, Assistant Attorney General Burger and Melvin Richter for the United States. Reported below: 130 Ct. Cl. 43, 125 F. Supp. 941.
No. 631. Consolidated Freightways, Inc. v. United Truck Lines, Inc. C. A. 9th Cir. Certiorari denied. Donald A. Schafer for petitioner. James A. Williams for respondent. Reported below: 216 F. 2d 543.
No. 641. Whitin Machine Works v. National Labor Relations Board. C. A. 4th Cir. Certiorari denied. Whiteford S. Blakeney for petitioner. Solicitor
906
OCTOBER TERM, 1954.
April 11, 1955.
349 U. S.
General Sobeloff, David P. Findling, Dominick L. Manoli and Frederick U. Reel for respondent. Reported below: 217 F. 2d 593.
No. 669. Finn et al. v. United States. C. A. 9th Cir. Certiorari denied. Petitioners pro se. Solicitor General Sobeloff for the United States. Reported below: 219 F. 2d 894.
No. 627. Shanks Village Residents Association, Inc. et al. v. Cole, Administrator, Housing and Home Finance Agency. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Milton M. Carrow and Henry J. Fox for petitioners. Solicitor General Sobeloff and Assistant Attorney General Morton for respondent. Reported below: 95 U. S. App. D. C.-----, 219 F. 2d 28.
No. 630. Bard-Parker Co., Inc. v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. Stanley Worth for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack and Harry Baum for respondent. Reported below: 218 F. 2d 52.
No. 242, Mise. Robinson v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States. Reported below: 214 F. 2d 677, 684.
No. 308, Mise. Winston v. Heinze, Warden. Supreme Court of California. Certiorari denied. Petitioner pro se. Edmund G. Brown, Attorney General of California, and Doris H. Maier, Deputy Attorney General, for respondent.
DECISIONS PER CURIAM ETC.
907
349 U.S.	April 11, 1955.
No. 402, Mise. Beasley v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Richard W. Tompkins for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 94 U. S. App. D. C.-----, 218 F. 2d 366.
No. 414, Mise. Pruitt v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States. Reported below: 217 F. 2d 648.
No. 435, Mise. Lewis v. Mississippi. Supreme Court of Mississippi. Certiorari denied. W. Arlington Jones for petitioner. J. P. Coleman, Attorney General of Mississippi, for respondent. Reported below: 222 Miss. ---, 75 So. 2d 448.
No. 504, Mise. Tune v. New Jersey. Supreme Court of New Jersey. Certiorari denied. Edward J. Gilhooly and Charles Danzig for petitioner. Charles V. Webb, Jr. and C. William Caruso for respondent. Reported below: 17 N. J. 100, 110 A. 2d 99.
Rehearing Denied.
No. 7. Wilburn Boat Co. et al. v. Fireman's Fund Insurance Co., 348 U. S. 310;
No. 518. Aircooled Motors, Inc. v. Williams, 348 U. S. 946; and
No. 530. Smalls et al. v. Atlantic Coast Line Railroad Co., 348 U. S. 946. Petitions for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of these applications.
908
OCTOBER TERM, 1954.
April 11, 18, 1955.
349 U. S.
No. 532. In re Anastaplo, 348 U. S. 946;
No. 571. Sawyer v. Stevens, Secretary of the Army, et al., 348 U. S. 959;
No. 132, Mise. Faubert v. Michigan et al., 348 U. S. 962; and
No. 332, Mise. Bradley v. Howard University et al., 348 U. S. 954. Petitions for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of these applications.
April 18, 1955.
Decisions Per Curiam.
No. 320. Michigan-Wisconsin Pipe Line Co. v. Corporation Commission of Oklahoma et al.; and
No. 322. Panhandle Eastern Pipe Line Co. v. Corporation Commission of Oklahoma et al. Appeals from the Supreme Court of Oklahoma. Per Curiam: Judgments reversed. Natural Gas Pipeline Co. v. Panoma Corp., 349 U. S. 44. Mr. Justice Harlan took no part in the consideration or decision of these cases. Jack T. Conn, D. H. Culton, Coleman Hayes and Arthur R. Seder, Jr. for appellant in No. 320. Edward H. Lange and Mark H. Adams for appellant in No. 322. Mac Q. Williamson, Attorney General of Oklahoma, for the Corporation Commission of Oklahoma; T. Murray Robinson and Leon Shipp for certain mineral owners in Texas County, Oklahoma; and Rayburn L. Foster, Harry D. Turner, R. M. Williams, Kenneth Heady and Cecil C. Hamilton for the Phillips Petroleum Co., appellees. Reported below: 272 P. 2d 425.
No. 588. Illinois Central Railroad Co. et al. v. Mississippi Public Service Commission et al.; and
No. 589. Interstate Commerce Commission v. Mississippi Public Service Commission et al. Appeals from the United States District Court for the Southern District of Mississippi. Per Curiam: The motions to
DECISIONS PER CURIAM ETC.
909
349 U. S.	April 18, 1955.
affirm are granted and the judgment is affirmed. Mr. Justice Reed dissents. Harold E. Spencer, A. J. Baumann, Robert Burns, J. L. Byrd, A. J. Dixon, Y. D. Lott, Jr. and Prime F. Osborn for appellants in No. 588. Edward M. Reidy and Leo H. Pou for appellant in No. 589. J. P. Coleman, Attorney General of Mississippi, and Dugas Shands, Assistant Attorney General, for the Mississippi Public Service Commission; and Jim C. Floyd and Charles A. H or sky for the American Sand & Gravel Co. et al., appellees. Reported below: 124 F. Supp. 809.
No. 604. McKay, Secretary of the Interior, et al. v. Clackamas County, Oregon. On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Per Curiam: The petition for writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court with instructions to dismiss the proceeding upon the ground that the cause is moot. Mr. Justice Burton and Mr. Justice Harlan dissent. Solicitor General Sobeloff for petitioners. A. W. Lafferty and Richard L. Merrick for respondent. Reported below: ----U. S. App. D. C. ------, ----, 219 F. 2d 479, 497.
No. 605. West Edmond Hunton Lime Unit v. Young et al. Appeal from the Supreme Court of Oklahoma. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. T. Murray Robinson and Rufus S. Day, Jr. for appellant. John Barry for appellees. Reported below: 275 P. 2d 304.
Miscellaneous Orders.
No. 695. National Union of Marine Cooks and Stewards et al. v. National Labor Relations Board et al. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. The
910
OCTOBER TERM, 1954.
April 18, 1955.
349 U. S.
application for a stay is denied. Norman Leonard for petitioners. Solicitor General Sobeloff for the National Labor Relations Board, respondent.
No. 153. Securities and Exchange Commission v. Drexel & Co., 348 U. S. 341. Opinion amended by adding the following footnote at the end of the eighth paragraph [reported as amended, 348 U. S. 341, 344] :
A petition for rehearing states that Electric is not a “public utility company” within the meaning of the Act and therefore § 12 (d) is inapplicable. We do not prejudice that position by this opinion, for whether or not Electric is a “public utility company,” § 12 of the Act is concededly applicable. Section 12 (c) provides:
“It shall be unlawful for any registered holding company or any subsidiary company thereof, by use of the mails or any means or instrumentality of interstate commerce, or otherwise, to declare or pay any dividend on any security of such company or to acquire, retire, or redeem any security of such company, in contravention of such rules and regulations or orders as the Commission deems necessary or appropriate to protect the financial integrity of companies in holding-company systems, to safeguard the working capital of public-utility companies, to prevent the payment of dividends out of capital or unearned surplus, or to prevent the circumvention of the provisions of this title or the rules, regulations, or orders thereunder.”
Section 12 (f) provides:
“It shall be unlawful for any registered holding company or subsidiary company thereof, by use of the mails or any means or instrumentality of interstate commerce, or otherwise, to negotiate, enter into, or take any step in the performance of any transaction not otherwise unlawful under this title, with any company in the same holding-company system or with any affiliate of a company in such holding-company system in contravention of such rules and regulations or orders regarding reports, accounts, costs, maintenance of competitive conditions, disclosure of interest, duration of contracts, and similar matters as the Commission deems necessary or appropriate in the public interest or for the protection of investors or consumers or to prevent the circumvention of the provisions of this title or the rules and regulations thereunder.”
The broad powers granted the Commission under these provisions are plainly adequate to give it the control it reserved in this case over the fees incident to the exchange of the old securities.
Mr. Justice Harlan did not participate.
DECISIONS PER CURIAM ETC.
911
349 U.S.	April 18, 1955.
No. 320, Mise. Norris v. Smyth, Superintendent, Virginia State Penitentiary. Motion for leave to file petition for writ of habeas corpus denied. Petitioner pro se. J. Lindsay Almond, Jr., Attorney General of Virginia, and Thomas M. Miller, Assistant Attorney General, for respondent.
Certiorari Granted. (See No. 60^, supra.)
Certiorari Denied.
No. 593. Perpetual Building & Loan Assn. v. Series Directors of Equitable Building & Loan Assn, et al. C. A. 4th Cir. Certiorari denied. Edward W. Mullins for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger and Samuel D. Slade for the Federal National Mortgage Association; and Edgar L. Morris for C. W. Haynes & Co., Inc. et al., respondents. Reported below: 217 F. 2d 1.
No. 626. Kormuth v. United States Steel Co. et al. Supreme Court of Pennsylvania, Western District. Certiorari denied. W. Bertram Waychoff, Joseph F. McVeigh, Francis J. Myers and Cornelius C. O’Brien for petitioner. Charles E. Kenworthey for the United States Steel Co.; and Charles M. Thorp, Jr. and W. C. Montgomery for the Hillman Coal & Coke Co. et al., respondents. Reported below: 379 Pa. 365, 108 A. 2d 907.
No. 632. Lloyd v. Campbell, Executor, et al. Supreme Court of Ohio. Certiorari denied. Paul Thomas Key for petitioner. Ralph Stickle and George Q. Keeley for Lloyd, respondent. Reported below: 162 Ohio St. 203, 122 N. E. 2d 695.
No. 633. Desmond v. United States. C. A. 2d Cir. Certiorari denied. Jacob Rassner for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger,
912
OCTOBER TERM, 1954.
April 18, 1955.
349 U. S.
Paul A. Sweeney and Morton Hollander for the United States. Reported below: 217 F. 2d 948.
No. 637. Pellicer v. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express & Station Employees et al. C. A. 5th Cir. Certiorari denied. Martin J. Pearl for petitioner. Clarence M. Mulholland, Edward J. Hickey, Jr., Richard R. Lyman and James L. Crawford for the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees et al.; and Wm. Hart Sibley for the Railway Express Agency, Inc., respondents. Reported below: 217 F. 2d 205.
No. 638. Benton County, Oregon, et al. v. Clackamas County, Oregon. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Paul R. Connolly for petitioners. Richard L. Merrick for respondent. Reported below: 94 U. S. App. D. C. ----,---, 219 F. 2d 479,497.
No. 639. Matson Navigation Co. v. Lawler. C. A. 9th Cir. Certiorari denied. Moses Lasky for petitioner. Richard Gladstein for respondent. John Hays filed a brief for the Pacific American Steamship Association, as amicus curiae, urging reversal. Reported below: 217 F. 2d 645.
No. 642. Doto, alias Adonis, v. New Jersey. Supreme Court of New Jersey. Certiorari denied. Abraham J. Slurzberg and William H. Collins for petitioner. Ralph L. Fusco, Deputy Attorney General of New Jersey, for respondent. Reported below: 16 N. J. 397, 109 A. 2d 9.
No. 666. Record Publishing Co. v. Hertz et al. C. A. 3d Cir. Certiorari denied. William W. Knox for petitioner. Charles E. Kenworthey for respondents. Reported below: 219 F. 2d 397.
DECISIONS PER CURIAM ETC.
913
349 U. S.	April 18, 25, 1955.
No. 636. Bruswitz et al. v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. Bruno Schachner for Koenke, and Frederick H. Block for Bruswitz, petitioners. Solicitor General Sobelofl, Assistant Attorney General Holland, Ellis N. Slack, John H. Mitchell, Joseph M. Howard and Harold S. Larsen for the United States. Reported below: 219 F. 2d 59.
Rehearing Denied.
No. 30. National City Bank of New York v. Republic of China et al., 348 U. S. 356. Rehearing denied. Mr. Justice Douglas and Mr. Justice Harlan took no part in the consideration or decision of this application.
No. 153. Securities and Exchange Commission v. Drexel & Co., 348 U. S. 341. Rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of this application.
April 25, 1955.
Decisions Per Curiam.
No. 575. Donaducy v. Pennsylvania. Appeal from the Supreme Court of Pennsylvania, Western District. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Black dissents. Herbert Monte Levy for appellant. Wayne A. Gleeten for appellee. Reported below: See 176 Pa. Super. 27, 107 A. 2d 139.
No. 614. Wisconsin ex rel. Wisconsin Lutheran High School Conference v. Sinar, Inspector of Buildings, et al. Appeal from the Supreme Court of Wisconsin. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a sub-
914
OCTOBER TERM, 1954.
April 25, 1955.
349 U.S.
stantial federal question. Ernst J. von Briesen and Ralph M. Hoyt for appellant. Herbert L. Mount for appellees. Reported below: 267 Wis. 91, 65 N. W. 2d 43.
Miscellaneous Orders.
No.-------. Bompensiero v. Superior Court of California, County of San Diego, et al. Application for stay denied. Jack Wasserman for petitioner. Edmund G. Brown, Attorney General of California, Frank J. Mackin, Assistant Attorney General, and William E. James, Deputy Attorney General, for respondents. Reported below: See 44 Cal. 2d----, 281 P. 2d 250.
No. 2. Briggs et al. v. Elliott et al., 347 U. S. 483. Appeal from the United States District Court for the Eastern District of South Carolina. Motion for leave to file brief of Louis L. Brown and Robert W. Wesley, as amici curiae, denied.
Certiorari Granted.
No. 465. Steiner et al., doing business as Cumberland Battery Manufacturing Co., et al. v. Mitchell, Secretary of Labor. C. A. 6th Cir. Certiorari granted. Cecil Sims for petitioners. Solicitor General Sobeloff, Stuart Rothman, Bessie Margolin and Sylvia S. Ellison for respondent. Reported below: 215 F. 2d 171.
No. 647. Mitchell, Secretary of Labor, v. King Packing Co. C. A. 9th Cir. Certiorari granted. Solicitor General Sobeloff and Stuart Rothman for petitioner. Reported below: 216 F. 2d 618.
No. 629. Dillon v. United States. C. A. 8th Cir. Certiorari granted. Morris A. Shenker and Sidney M. Glazer for petitioner. Solicitor General Sobeloff, Assist-
DECISIONS PER CURIAM ETC.
915
349 U. S.	April 25, 1955.
ant Attorney General Holland, Ellis N. Slack, John H. Mitchell and Joseph M. Howard for the United States. Reported below: 218 F. 2d 97.
No. 645. Armstrong v. Armstrong et al. Supreme Court of Ohio. Certiorari granted. Robert N. Gorman, Stanley A. Silversteen, James W. Hengelbrok and Julius R. Samuels for petitioner. Walter K. Sibbald for Armstrong, respondent. Reported below: 162 Ohio St. 406, 123 N. E. 2d 267.
Certiorari Denied.
No. 640. Rock Drilling, Etc., Building and Common Laborers’ Local Union No. 17 v. Mason & Hanger Co., Inc. et al. C. A. 2d Cir. Certiorari denied. Hyman N. Glickstein for petitioner. Franklin Nevius for Mason & Hanger Co., Inc., Mark F. Hughes for Walsh Construction Co., Inc. et al., and William H. Wurts for George M. Brewster & Son, Inc., respondents. Reported below: 217 F. 2d 687.
No. 643. Mahoney v. Sailors’ Union of the Pacific et al. Supreme Court of Washington. Certiorari denied. Melville Monheimer for petitioner. Reported below: 45 Wash. 2d 453, 275 P. 2d 440.
No. 646. Bianchi et al. v. United States. C. A. 8th Cir. Certiorari denied. Morris A. Shenker, Sidney M. Glazer and Harry H. Craig for petitioners. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Richard J. Blanchard for the United States. Reported below: 219 F. 2d 182.
No. 648. Holbrook v. United States. C. A. 5th Cir. Certiorari denied. A. C. Wheeler for petitioner. Solid-
916
OCTOBER TERM, 1954.
April 25, 1955.
349 U. S.
tor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, John H. Mitchell and Joseph M. Howard for the United States. Reported below: 216 F. 2d 238.
No. 649. Rosaire v. Baroid Sales Division, National Lead Co. C. A. 5th Cir. Certiorari denied. Earl Babcock for petitioner. Harry R. Pugh, Jr. and Henry R. Ashton for respondent. Reported below: 218 F. 2d 72.
No. 650. Oklahoma ex rel. Commissioners of the Land Office v. Magnolia Petroleum Co. C. A. 10th Cir. Certiorari denied. Mac Q. Williamson, Attorney General of Oklahoma, Fred Hansen, First Assistant Attorney General, and R. H. Dunn for petitioner. Earl A. Brown, Chas. B. Wallace and James E. Horigan for respondent. Reported below: 218 F. 2d 1.
No. 651. Seay et al. v. United States. C. A. 5th Cir. Certiorari denied. Frank B. Stow and Robert E. Andrews for petitioners. Solicitor General Sobeloff, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 217 F. 2d 572.
No. 652. Wilson v. Homestead Valve Manufacturing Co. C. A. 3d Cir. Certiorari denied. Artemas C. Leslie and Henry A. Craig for petitioner. Charles M. Thorp, Jr. for respondent. Reported below: 217 F. 2d 792.
No. 662. Atlantic Coast Line Railroad Co. v. Chancey. Supreme Court of Florida. Certiorari denied. Charles Cook Howell, Charles Cook Howell, Jr. and William M. Howell for petitioner. Chester Bedell for respondent. Reported below: 76 So. 2d 871.
DECISIONS PER CURIAM ETC.
917
349 U. S.	April 25, 1955.
No. 668. Local 175, International Brotherhood of Electrical Workers, et al. v. United States. C. A. 6th Cir. Certiorari denied. H. G. B. King for petitioners. Solicitor General Sobeloff, Assistant Attorney General Barnes, Charles H. Weston and Fred D. Turnage for the United States. Reported below: 219 F. 2d 431.
No. 670. Green et ux. v. Green et al. C. A. 7th Cir. Certiorari denied. G. W. Horsley for petitioners. August F. Brandt for respondents. Reported below: 218 F. 2d 130.
No. 672. New York Life Insurance Co. et al. v. Lake, Trustee in Bankruptcy. C. A. 4th Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. G. C. A. Anderson and Hilary W. Gans for petitioners. Frank B. Ober for respondent. John V. Bloys and Noel T. Dowling filed a brief for the Life Insurance Association of America, as amicus curiae, in support of the petition for writ of certiorari. Reported below: 218 F. 2d 394.
Rehearing Denied.
No. 203. Lewis v. United States, 348 U. S. 419; and
No. 417, Mise. Hilderbrand v. United States, 348 U. S. 975. Petitions for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of these applications.
No. 390, Mise.. Lester, Administrator, v. National Broadcasting Co., Inc. et al., 348 U. S. 954. Motion for leave to file petition for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of this application.
340907 0 - 55 - 37
918
OCTOBER TERM, 1954.
May 9, 1955.
349 U. S.
May 9, 1955.
Decisions Per Curiam.
No. 595. De Moss v. United States. On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Per Curiam: The petition for writ of certiorari is granted and the judgment is reversed on confession of error by the Government and on the authority of Bates v. United States, 348 U. S. 966. Hayden C. Covington for petitioner. Solicitor General Sobeloff for the United States. Reported below: 218 F. 2d 119.
No. 644. Davidson v. United States. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Per Curiam: The petition for writ of certiorari is granted and the judgment of the Court of Appeals is vacated. The cause is remanded to the Court of Appeals for consideration of whether petitioner’s conscientious objector claim comes within the provisions of § 6 (j) of the Universal Military Training and Service Act, in which event this case would be governed by Gonzales v. United States, 348 U. S. 407. J. B. Tietz for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 218 F. 2d 609.
No. 517, Mise. Hiller v. United States. Appeal from the United States Court of Appeals for the Ninth Circuit. Per Curiam: The appeal is dismissed for want of jurisdiction. Reported below: 218 F. 2d 641.
Miscellaneous Orders.
No. 387. Mitchell, Secretary of Labor, v. C. W. Vollmer & Co., Inc. Certiorari, 348 U. S. 886, to the United States Court of Appeals for the Fifth Circuit.
DECISIONS PER CURIAM ETC.
919
349 U.S.
May 9, 1955.
Argued March 3, 1955. Examination of the record raises a question in the Court’s mind as to whether this case is moot in view of respondent’s completion of his contract. Counsel are invited to submit memoranda upon this point on or before May 14, 1955. See Commercial Cable Co. v. Burleson, 250 U. S. 360; United States v. W. T. Grant Co., 345 U. S. 629. The Chief Justice and Mr. Justice Black object to this order. Stuart Rothman argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Ralph S. Spritzer, Bessie Margolin and Sylvia S. Ellison. Eberhard P. Deutsch argued the cause for respondent. With him on the brief was René H. Himel, Jr. Reported below: 214 F. 2d 132.
No. 323, Mise. Hill v. Looney, Warden;
No. 480, Mise. In re Weinberg;
No. 482, Mise. Dubin v. Worthing;
No. 489, Mise. Meek v. California;
No. 497, Mise. Newton v. Michigan; and
No. 512, Mise. Cagle v. Hardwick, Warden, et al.
Motions for leave to file petitions for writs of habeas corpus denied. Petitioners pro se. Solicitor General Sobeloff for respondent in No. 323, Mise.
No. 438, Mise. Wright v. United States; and
No. 503, Mise. Binkley v. Federal District Court, Columbus, Ohio, et al. Motions for leave to file petitions for writs of certiorari denied.
Certiorari Granted. (See Nos. 595 and 6^, supra.)
Certiorari Denied. (See also Mise. Nos. 438 and 503, supra.)
No. 624. Barnes v. Texas. Court of Criminal Appeals of Texas. Certiorari denied. Angelo Piranio for petitioner. John Ben Shepperd, Attorney General of
920
OCTOBER TERM, 1954.
May 9, 1955.
349 U. S.
Texas, and Robert O. Fagg, Assistant Attorney General, for respondent. Reported below: -------- Tex. Cr. R. -----,
278 S. W. 2d 305.
No. 654. Papalardo et al. v. United States. C. A. 6th Cir. Certiorari denied. Petitioners pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States. Reported below: 218 F. 2d 694.
No. 655. Vaughan v. Miller, Clerk, U. S. District Court. C. A. 8th Cir. Certiorari denied. Reported below: 216 F. 2d 958.
No. 656. City of Hastings, Nebraska, v. Federal Power Commission et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Sherman E. Burt, Lloyd J. Marti and Chauncey C. Sheldon for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger, Melvin Richter, Willard W. Gatchell and William J. Grove for the Federal Power Commission; and Oscar Cox for the Kansas-Nebraska Natural Gas Co., Inc., respondents. Reported below: 95 U. S. App. D. C.--------, 221 F. 2d 31.
No. 657. Henderson v. United States. C. A. 6th Cir. Certiorari denied. L. E. Gwinn for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 218 F. 2d 14.
No. 658. Bender v. United States. C. A. 7th Cir. Certiorari denied. Maurice J. Walsh and Ezra F. Ress-man for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, John H. Mitchell and Joseph M. Howard for the United States. Reported below: 218 F. 2d 869.
DECISIONS PER CURIAM ETC.
921
349 U. S.	May 9, 1955.
No. 660. DeRosier v. United States. C. A. 5th Cir. Certiorari denied. Henry G. Simmonite for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 218 F. 2d 420.
No. 661. Union Manufacturing Co. v. National Labor Relations Board. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. John R. Fitzpatrick, Edward J. Lynch and Harry J. Maginnis for petitioner. Solicitor General Sobeloff, David P. Findling, Dominick L. Manoli and Frederick U. Reel for respondent. Reported below: 95 U. S. App. D. C.---, 221 F. 2d 532.
No. 664. Darsyn Laboratories, Inc. v. Lenox Laboratories, Inc. et al. C. A. 3d Cir. Certiorari denied. H. C. Bierman for petitioner. George F. Hetfield for the Gamma Chemical Corporation et al.; and Max Mehler for Biber, respondents. Reported below: 217 F. 2d 648.
No. 665. Summerfield, Postmaster General, v. Sunshine Book Co. et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Solicitor General Sobeloff for petitioner. O. John Rogge and Murray A. Gordon for respondents. Reported below: 95 U. S. App. D. C.----, 221 F. 2d 42.
No. 671. Shurman et al. v. United States. C. A. 5th Cir. Certiorari denied. Julius Lucius Echeles for petitioners. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop for the United States. Reported below: 219 F. 2d 282.
No. 676. Standridge et al. v. California Dolomite Co. et al. District Court of Appeal of California, Fourth
922
OCTOBER TERM, 1954.
May 9, 1955.
349 U. S.
Appellate District. Certiorari denied. John W. Howard for petitioners. Reported below: 128 Cal. App. 2d 635, 275 P. 2d 823.
No. 680. Isthmus Development Co. v. Burt. C. A. 5th Cir. Certiorari denied. Wm. Q. Boyce for petitioner. D. H. Cult on, B. M. Britain and L. A. White for respondent. Reported below: 218 F. 2d 353.
No. 681. Gusick v. Arizona. Supreme Court of Arizona. Certiorari denied. Wm. Scott Stewart for petitioner. Robert Morrison, Attorney General of Arizona, and R. G. Langmade, Special Assistant Attorney General, for respondent. Reported below: 78 Ariz. 367, 280 P. 2d 691.
No. 683. Kammerer v. Atlantic Coast Line Railroad Co. C. A. 5th Cir. Certiorari denied. Thurman Arnold and Milton V. Freeman for petitioner. Charles L. Gowen for respondent. Reported below: 218 F. 2d 149.
No. 710. Winslow v. United States. C. A. 9th Cir. Certiorari denied. John R. Golden for petitioner. Solicitor General Sobeloff for the United States. Reported below: 216 F. 2d 912.
No. 150, Mise. Meehan v. California. District Court of Appeal of California, First Appellate District. Certiorari denied. Petitioner pro se. Edmund G. Brown, Attorney General of California, Clarence A. Linn, Chief Assistant Attorney General, and Arlo E. Smith, Deputy Attorney General, for respondent. Reported below: 124 Cal. App. 2d 589, 269 P. 2d 70.
No. 374, Mise. Herzic v. Illinois. Supreme Court of Illinois. Certiorari denied.
DECISIONS PER CURIAM ETC.
923
349 U. S.	May 9, 1955.
No. 387, Mise. Smart v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 442, Mise. Hentschel et ux. v. Baby Bath-inette Corp, et al. C. A. 2d Cir. Certiorari denied. Vine H. Smith for petitioners. William C. Combs for the Baby Bathinette Corporation et al.; and George Berkowitz for the White Metal Rolling & Stamping Corporation, respondents. Reported below: 215 F. 2d 102.
No. 444, Mise. Kostal v. California. District Court of Appeal of California, Second Appellate District. Certiorari denied. Reported below: 128 Cal. App. 2d 1, 274 P. 2d 908
No. 455, Mise. Johnson v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia H. Dubrovsky for the United States. Reported below: 218 F. 2d 288.
No. 481, Mise. Janowicz v. Michigan. Supreme Court of Michigan. Certiorari denied.
No. 484, Mise. Zieman v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied.
No. 485, Mise. Koss v. Randolph, Warden. Circuit Court of Randolph County, Illinois. Certiorari denied.
No. 488, Mise. Obery v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Reported below: 95 U. S. App. D. C.------, 217 F. 2d 860.
No. 491, Mise. Dolan v. United States. C. A. 8th Cir. Certiorari denied. Stanley M. Rosenblum for petitioner. Solicitor General Sobelofi, Assistant Attorney
924
OCTOBER TERM, 1954.
May 9, 1955.
349 U. S.
General Olney and Beatrice Rosenberg for the United States. Reported below: 218 F. 2d 454.
No. 495, Mise. Davis v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 496, Mise. Norvell v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied.
No. 498, Mise. Lilly v. Randolph, Warden. Circuit Court of Randolph County, Illinois. Certiorari denied.
No. 499, Mise. Washington v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied.
No. 505, Mise. Bruce v. Pennsylvania. Superior Court of Pennsylvania, Philadelphia District. Certiorari denied. Reported below: 177 Pa. Super. 63, 110 A. 2d 838.
No. 506, Mise. Atkinson v. Ellis, General Manager, Texas Prison System, et al. Court of Criminal Appeals of Texas. Certiorari denied.
No. 511, Mise. Squire v. New York. Appellate Division of the Supreme Court of New York, Second Judicial Department. Certiorari denied.
No. 513, Mise. Williams v. Delmore, Warden. Supreme Court of Washington. Certiorari denied.
Rehearing Granted. (See No. 28, ante, p. 70.)
Rehearing Denied.
No. 598. Skinner v. United States, 348 U. S. 981;
No. 609. Cato v. Silling, 348 U. S. 981 ; and
No. 470, Mise. In re Judd, 348 U. S. 980. Petitions for rehearing denied.
DECISIONS PER CURIAM ETC.
925
349 U. S.	May 9, 16, 1955.
No. 736, October Term, 1953. McRae v. Woods, Acting Housing Expediter, 347 U. S. 1017. Motion for leave to file petition for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of this motion.
No. 51. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U. S. 437;
No. 184. Williamson, Attorney General of Oklahoma, et al. v. Lee Optical of Oklahoma, Inc. et al., 348 U.S. 483;
No. 199. Commissioner of Internal Revenue v. Glenshaw Glass Co. et al., 348 U. S. 426;
No. 559. Ridgeway v. Ridgeway, 348 U. S. 971;
No. 564. McRae v. United States, 348 U. S. 967;
No. 590. F. P. Newport Corp., Ltd. v. Sampsell, Trustee in Bankruptcy, et al., 348 U. S. 972;
No. 233, Mise. Skladd v. Bannan, Warden, 348 U. S. 973; and
No. 446, Mise. James v. United States, 348 U. S. 968. Petitions for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of these applications.
May 16, 1955.
Decisions Per Curiam.
No. 659. Pure Oil Co. v. Bowers, Tax Commissioner of Ohio. Appeal from the Supreme Court of Ohio. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a properly presented substantial federal question. William S. Evatt and Robert L. Barton for appellant. C. William O’Neill, Attorney General of Ohio, and W. E. Herron, Assistant Attorney General, for appellee. Reported below: 162 Ohio St. 375, 123 N. E. 2d 428.
926
OCTOBER TERM, 1954.
May 16, 1955.
349 U.S.
No. 514, Mise. Donahue v. Connecticut. Appeal from the Supreme Court of Errors of Connecticut. Per Curiam: The appeal is dismissed and, treating the papers whereon the appeal was taken as a petition for certiorari, certiorari is denied. Albert L. Coles and Philip H. Smith for appellant. Reported below: 141 Conn. 656, 109 A. 2d 364.
Miscellaneous Orders.
No.-------. Burke et al. v. United States et al. Motion to waive the rules and docket the case denied.
No. 376. Peters v. Hobby et al. Certiorari, 348 U. S. 882, to the United States Court of Appeals for the District of Columbia Circuit. Motion for leave to file brief of Emergency Civil Liberties Committee, as amicus curiae, denied.
No. 157. Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp. Certiorari, 348 U. S. 813, to the United States Court of Appeals for the Second Circuit. The petition for rehearing is granted. The judgment entered April 11, 1955, 349 U. S. 901, is vacated and the case is restored to the docket for reargument. Mr. Justice Harlan took no part in the consideration or decision of the petition for rehearing. Sidney A. Schwartz for petitioner.
No. 213. Indian Towing Co., Inc. et al. v. United States. Certiorari, 348 U. S. 810, to the United States Court of Appeals for the Fifth Circuit. The petition for rehearing is granted. The judgment entered April 11, 1955, 349 U. S. 902, is vacated and the case is restored to the docket for reargument. Mr. Justice Harlan took no part in the consideration or decision of the petition for rehearing. Richard B. Montgomery for petitioners.
DECISIONS PER CURIAM ETC.
927
349 U. S.
May 16, 1955.
No. 236, Mise. Lang v. Heinze, Warden;
No. 519, Mise. Mitchell v. Looney, Warden;
No. 526, Mise. Hopwood v. Brownell, Attorney
General, et al. ;
No. 531, Mise. Sykes v. Teets, Warden;
No. 538, Mise. Forsythe v. New Jersey;
No. 563, Mise. Potter v. Eidson, Warden;
No. 568, Mise. Davis v. Clemmer, Director, De
partment of Corrections, District of Columbia; and
No. 579, Mise. LaRose v. Clemmer, Director, Department of Corrections, District of Columbia. Motions for leave to file petitions for writs of habeas corpus denied. Petitioners pro se. Edmund G. Brown, Attorney General of California, and Doris H. Maier, Deputy Attorney General, for respondent in No. 236, Mise.
No. 493, Mise. Sullivan v. Heinze, Warden, et al. Motion for leave to file petition for writ of habeas corpus and motions for subpoena duces tecum and to appoint a referee denied.
No. 560, Mise. Bolesta v. United States. Application denied.
Certiorari Granted.
No. 716. Falcone et al. v. Barnes, Officer in Charge, Immigration and Naturalization Service. C. A. 2d Cir. Certiorari granted. Anthony S. Falcone for petitioners. Solicitor General Sobeloff for respondent. Reported below: 219 F. 2d 137.
Certiorari Denied. (See also No. 514, Mise., supra.)
No. 528. Heikkila v. Barber, District Director, Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. Lloyd E. McMurray for peti-
928
OCTOBER TERM, 1954.
May 16, 1955.
349 U. S.
tioner. Solicitor General Sobeloff, Assistant Attorney General Olney and Beatrice Rosenberg for respondent. Reported below: 216 F. 2d 407.
No. 674. OSBRINK ET AL., DOING BUSINESS AS R. H. Osbrink Manufacturing Co., v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Homer D. Crotty for petitioners. Solicitor General Sobeloff, David P. Findling and Dominick L. Manoli for respondent. Reported below: 218 F. 2d 341.
No. 675. Hanratty v. United States. C. A. 5th Cir. Certiorari denied. Jewell D. Lemons for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 218 F. 2d 358.
No. 678. Jarrico v. RKO Radio Pictures, Inc. District Court of Appeal of California, Second Appellate District. Certiorari denied. Samuel Rosenwein for petitioner. Peery Price for respondent. Reported below: 128 Cal. App. 2d 172, 274 P. 2d 928.
No. 684. Harriman et al. v. United States. C. A. 2d Cir. Certiorari denied. Louis Bender for petitioners. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States. Reported below: 219 F. 2d 918.
No. 685. Illinois ex rel. Goldstein et al. v. Babb, Sheriff. Supreme Court of Illinois. Certiorari denied. Henry H. Koven for petitioners. Latham Castle, Attorney General of Illinois, John L. Davidson, Jr., First Assistant Attorney General, and Fred G. Leach and William C. Wines, Assistant Attorneys General, for respondent. Reported below: 4 Ill. 2d 483, 123 N. E. 2d 639.
DECISIONS PER CURIAM ETC.
929
349 U.S.	May 16, 1955.
No. 686. Dumaine v. Securities and Exchange Commission. C. A. 1st Cir. Certiorari denied. John J. Burns for petitioner. Solicitor General Sobeloff, William H. Timbers, Arden L. Andresen and Elizabeth B. A. Rogers for respondent. Reported below: 218 F. 2d 308.
No. 687. Clifford et al. v. Ohio. Supreme Court of Ohio. Certiorari denied. Raymond T. Jackson and Charles D. Johnson for petitioners. Frank T. Cullitan and Gertrude M. Bauer for respondent. Reported below: 162 Ohio St. 370, 123 N. E. 2d 8.
No. 688. Automatic Die & Products Co. v. Campbell et al., Trustees. Supreme Court of Ohio. Certiorari denied. Lawrence C. Spieth for petitioner. Morris Berick for respondents. Reported below: 162 Ohio St. 321, 123 N. E. 2d 401.
No. 689. Lefors v. Texas. Court of Criminal Appeals of Texas. Certiorari denied. Maury Hughes for petitioner. John Ben Shepperd, Attorney General of Texas, and Robert 0. Fagg, Assistant Attorney General, for respondent. Reported below: -------- Tex. Cr. R. -----,
278 S. W. 2d 837.
No. 691. Elliott v. Oregon. Supreme Court of Oregon. Certiorari denied. A. L. Wirin and Fred Ok-rand for petitioner. Reported below: -------Ore.------, 277 P. 2d 754.
No. 693. Cohen et al., Executors, v. Glass, Executrix, et al. C. A. 2d Cir. Certiorari denied. Meyer Kraushaar for petitioners. Joseph P. Tumulty, Jr. for Glass et al.; and Ralph Montgomery Arkush for the Middle States Petroleum Corporation, respondents. Reported below: 220 F. 2d 593.
930
OCTOBER TERM, 1954.
May 16, 1955.
349 U. S.
No. 695. National Union of Marine Cooks and Stewards et al. v. National Labor Relations Board et al. C. A. 9th Cir. Certiorari denied. Norman Leonard for petitioners. Solicitor General Sobeloff, David P. Findling and Dominick L. Manoli for the National Labor Relations Board, respondent. Reported below: 218 F. 2d 913.
No. 696. Urbain et al. v. Knapp Brothers Manufacturing Co. et al. C. A. 6th Cir. Certiorari denied. Curtis F. Prangley for petitioners. Truman A. Herron for respondents. Reported below: 217 F. 2d 810.
No. 697. Caldwell v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Albert J. Ahern, Jr. for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 95 U. S. App. D. C.-------, 218 F. 2d 370.
No. 698. Groob, Trustee in Bankruptcy, v. Reconstruction Finance Corp. C. A. 2d Cir. Certiorari denied. Elliott R. Katz for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger, Melvin Richter and Lionel Kestenbaum for respondent. Reported below: 218 F. 2d 641.
No. 699. Hill v. Texas. Court of Criminal Appeals of Texas. Certiorari denied. Charles W. Tessmer for petitioner. John Ben Shepperd, Attorney General of Texas, and Robert 0. Fagg, Assistant Attorney General, for respondent. Reported below: --------Tex. Cr. R. -----,
---S.W. 2d------.
No. 700. Hazelcorn v. United States. C. A. 5th Cir. Certiorari denied. Louis Bender and Moses L. Kove for petitioner. Solicitor General Sobeloff, Assistant
DECISIONS PER CURIAM ETC.
931
349 U.S.	May 16, 1955.
Attorney General Olney, Beatrice Rosenberg and Robert G. May sack for the United States. Reported below: 218 F. 2d 145.
No. 729. Siciliano v. Illinois. Supreme Court of Illinois. Certiorari denied. Charles A. Bellows for petitioner. Latham Castle, Attorney General of Illinois, John L. Davidson, Jr., First Assistant Attorney General, and Fred G. Leach and William C. Wines, Assistant Attorneys General, for respondent. Reported below: 4 Ill. 2d 581, 123 N. E. 2d 725.
No. 761. Coco v. Florida. Supreme Court of Florida. Certiorari denied. Wallace N. Maer for petitioner. Richard W. Ervin, Attorney General of Florida, and Bart L. Cohen, Assistant Attorney General, for respondent. Reported below: 80 So. 2d 346.
No. 703. Schwartz, Administratrix, v. Kansas City Southern Railway Co. Supreme Court of Missouri. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion certiorari should be granted. B. Nathaniel Richter for petitioner. Richard S. Righter for respondent. Reported below: 365 Mo.-------, 275 S. W. 2d 236.
No. 333, Mise. Lang v. Heinze, Warden. C. A. 9th Cir. Certiorari denied.
No. 520, Mise. McCoy v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 521, Mise. Barr v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied.
No. 522, Mise. Ginivalli v. Bannan, Warden. C. A. 6th Cir. Certiorari denied.
932
OCTOBER TERM, 1954.
May 16, 1955.
349 U. S.
No. 527, Mise. Myles v. Indiana. Supreme Court of Indiana. Certiorari denied. Reported below: 234 Ind. 129, 124 N. E. 2d 205.
No. 536, Mise. Ferguson v. Illinois. Circuit Court of Rock Island County, Illinois. Certiorari denied.
No. 537, Mise. Banks v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 540, Mise. Smith v. Virginia. Supreme Court of Appeals of Virginia. Certiorari denied.
No. 545, Mise. Smith v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.
No. 547, Mise. Crowe v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 548, Mise. Kreuter v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobelofi, Assistant Attorney General Olney, Beatrice Rosenberg and Isabelle Cappello for the United States. Reported below: 218 F. 2d 532.
No. 549, Mise. Pellegrini v. Ellis, General Manager, Texas Prison System. Court of Criminal Appeals of Texas. Certiorari denied.
No. 550, Mise. Fleischman v. New York et al. Supreme Court of New York, Cayuga County. Certiorari denied.
No. 551, Mise. Goodson v. Virginia. Supreme Court of Appeals of Virginia. Certiorari denied.
DECISIONS PER CURIAM ETC.
933
349 U.S.	May 16, 1955.
No. 556, Mise. Jackson v. Moore, Warden. Court of Criminal Appeals of Texas. Certiorari denied.
No. 557, Mise. Stewart v. Ohio. Court of Appeals of Ohio, Second Appellate District. Certiorari denied.
No. 558, Mise. McCoy v. Michigan. Supreme Court of Michigan. Certiorari denied.
No. 559, Mise. Jackson v. United States. C. A. 5th Cir. Certiorari denied.
No. 602, Mise. Jackson v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.
No. 564, Mise. MacMann v. Ellis, General Manager, Texas Prison System. Court of Criminal Appeals of Texas. Certiorari denied.
No. 565, Mise. Garrow v. California. District Court of Appeal of California, Fourth Appellate District. Certiorari denied. Reported below: 130 Cal. App. 2d 75, 278 P. 2d 475.
No. 566, Mise. DeFoe v. Weaver Bros., Inc. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Homer Brooks for petitioner. Milton W. King, Bernard I. Nordlinger, Wallace Luchs, Jr. and Robert B. Frank for respondent.
No. 569, Mise. Moriconi v. Michigan. Supreme Court of Michigan. Certiorari denied.
No. 573, Mise. Till v. Superior Court of San Mateo County, California. District Court of Appeal of California, First Appellate District. Certiorari denied.
340907 0-55-38
934
OCTOBER TERM, 1954.
May 16, 23, 1955.
349 U. S.
No. 577, Mise. Williams v. Eidson, Warden. Supreme Court of Missouri. Certiorari denied.
No. 578, Mise. White v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 218 F. 2d 145.
No. 589, Mise. Nordeste v. California. Supreme Court of California. Certiorari denied.
No. 600, Mise. Sykes v. Teets, Warden, et al. Supreme Court of California. Certiorari denied. Reported below: 44 Cal. 2d---, 280 P. 2d 769.
Rehearing Granted. (See Nos. 157 and 213, supra.)
Rehearing Denied.
No. 604. McKay, Secretary of the Interior, et al. v. Clackamas County, Oregon, ante, p. 909. Rehearing denied.
May 23, 1955.
Decisions Per Curiam.
No. 623. National Bank of Detroit v. Department of Revenue of Michigan. Appeal from the Supreme Court of Michigan. Per Curiam: The motion to dismiss is granted and the appeal is dismissed. Edward P. Wright for appellant. Thomas M. Kavanagh, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, for appellee. Reported below: 340 Mich. 573, 66 N. W. 2d 237.
DECISIONS PER CURIAM ETC.
935
349 U. S.	May 23, 1955.
No. 694. In re Rines, Administrator. Appeal from the Supreme Judicial Court of Massachusetts. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. David Rines and Robert H. Rines for appellant. Melville F. Weston for appellees. Reported below: 331 Mass. 714, 122 N. E. 2d 364.
No. 701. Pennsylvania v. Budd Company et al. Appeal from the Supreme Court of Pennsylvania, Middle District. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for failure to properly present a federal question. As to questions not subject to review by appeal, the papers whereon the appeal was taken are treated as a petition for writ of certiorari and certiorari is denied for the reason that the judgments rest on adequate state grounds. Herbert B. Cohen, Attorney General of Pennsylvania, and George W. Keitel and Howell C. Mette, Deputy Attorneys General, for appellant. Henry S. Drinker, Leslie M. Swope and James J. Dougherty for the Budd Company, and Charles E. Kenworthey and Roy J. Keejer for the Westinghouse Electric Corporation, appellees. Reported below: 379 Pa. 159, 108 A. 2d 563.
Miscellaneous Orders.
No. 11, Original. Mississippi v. Louisiana. This case is set for hearing on Monday, October 10, next, on the exceptions to the report of the Special Master. The brief of the State of Louisiana is to be filed on or before August 25 and that of the State of Mississippi 30 days after service of brief of the State of Louisiana.
No. 727. Wright, Successor to Hoffman, State Treasurer, et al. v. Mississippi River Fuel Corp. Supreme Court of Illinois. The motion that cause pro-
936
OCTOBER TERM, 1954.
May 23, 1955.
349 U. S.
ceed with Warren E. Wright as one of the petitioners is granted. Certiorari denied. Latham Castle, Attorney-General of Illinois, John L. Davidson, Jr., First Assistant Attorney General, William C. Wines, Assistant Attorney General, and Richard L. Cooper, Special Assistant Attorney General, for petitioners. William A. Dougherty, James Lawrence White, John H. Hendren, Norman J. Gundlach and Arthur W. Manley for respondent. Reported below: 4 Ill. 2d 468, 123 N. E. 2d 503.
No. 561, Mise. Sam v. Delmore, Warden. Supreme Court of Washington. Certiorari denied. The motion for leave to file petition for writ of habeas corpus is also denied.
No. 660, Mise. Burwell v. California. Supreme Court of California. The petition for stay of execution is denied. Certiorari also denied. Reported below: 44 Cal. 2d ---, 279 P. 2d 744.
No. 678, Mise. Rogers v. California. Supreme Court of California. The petition for stay of execution is denied. Certiorari also denied. Reported below: 44 Cal. 2d----, 279 P. 2d 744.
No. 516, Mise. Farnum v. Bigelow, Commissioner, State Mental Hygiene Department. The motion for leave to file petition for writ of mandamus and for other relief is denied.
No. 553, Mise. Ex parte Butler;
No. 562, Mise. Hamilton v. Brownell, Attorney General; and
No. 585, Mise. Chapman v. Looney, Warden, et al. The motions for leave to file petitions for writs of habeas corpus are severally denied.
DECISIONS PER CURIAM ETC.
937
349 U. S.	May 23, 1955.
Certiorari Granted.
No. 704. Mitchell, Secretary of Labor, v. Myrtle Grove Packing Co. C. A. 5th Cir. Certiorari granted. Solicitor General Sobeloff and Stuart Rothman for petitioner. Reported below: 217 F. 2d 952.
No. 715. Rex Trailer Co., Inc. v. United States. C. A. 7th Cir. Certiorari granted. Gustav H. Dongus for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger and Melvin Richter for the United States. Reported below: 218 F. 2d 880.
No. 736. Federal Power Commission v. Sierra Pacific Power Co.; and
No. 744. Pacific Gas & Electric Co. v. Sierra Pacific Power Co. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Solicitor General Sobeloff and Willard W. Gatchell for petitioner in No. 736. Robert H. Gerdes and Robert E. May for petitioner in No. 744. William C. Chanter for respondent. Reported below: 95 U. S. App. D. C.-----------, ----------------------------------------------------------F. 2d-.
No. 416, Mise. Griffin et al. v. Illinois. Supreme Court of Illinois. Certiorari granted.
Certiorari Denied. {See also Nos. 701, 727, and Mise.
Nos. 561, 660 and 678, supra.)
No. 319. Pickett et al. v. Michigan. Supreme Court of Michigan. Certiorari denied. Howard D. Cline and Francis J. George for petitioners. Frank G. Millard, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, for respondent. Reported below: 339 Mich. 294, 63 N. W. 2d 681.
938
OCTOBER TERM, 1954.
May 23, 1955.
349 U. S.
No. 702. Rossi v. United States. C. A. 2d Cir. Certiorari denied. Charles J. Margiotti and Samuel Goldstein for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 219 F. 2d 612.
No. 705. Colbert (now Brians) v. Roodhouse. Supreme Court of Oklahoma. Certiorari denied. James W. Bounds for petitioner. Albert W. Trice for respondent. Reported below: 279 P. 2d 349.
No. 706. United States v. Williams, doing business as Williams Equipment Co., et al. Court of Claims. Certiorari denied. Solicitor General Sobeloff for the United States. Tracy E. Griffin for respondents. Reported below: 130 Ct. Cl. 435, 127 F. Supp. 617.
No. 707. United States v. General Casualty Co. et al. Court of Claims. Certiorari denied. Solicitor General Sobeloff for the United States. Clifford B. Kimberly and Ernest Hubbell for respondents. Reported below: 130 Ct. Cl. 520, 127 F. Supp. 805.
No. 708. Anglo Chinese Shipping Co., Ltd. v. United States. Court of Claims. Certiorari denied. Henry J. Bogatko for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger and Melvin Richter for the United States. Reported below: 130 Ct. Cl. 361, 127 F. Supp. 553.
No. 709. Berry v. United States. Court of Claims. Certiorari denied. Russell V. Johnson for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger and Melvin Richter for the United States. Reported below: 130 Ct. Cl. 33, 126 F. Supp. 190.
DECISIONS PER CURIAM ETC.
939
349 U. S.	May 23, 1955.
No. 711. Consolidated Engineering Corp. v. United States. Court of Claims. Certiorari denied. James B. Christie for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger, Melvin Richter and William W. Ross for the United States. Reported below: 130 Ct. Cl. 504, 127 F. Supp. 558.
No. 717. Wood, doing business as 53rd Street Subway Liquor Store, v. O’Grady et al. Court of Appeals of New York. Certiorari denied. Julius Kass for petitioner. Jacob Friedberg and Morris P. Glushien for respondents. Reported below: 307 N. Y. 532, 122 N. E. 2d 386.
No. 719. Niles v. United States. C. A. 9th Cir. Certiorari denied. Hayden C. Covington for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop for the United States. Reported below: 220 F. 2d 278.
No. 720. Schnackenberg v. Towle. Supreme Court of Illinois. Certiorari denied. George E. Hale for petitioner. John E. Cassidy for respondent. Reported below: 4 Ill. 2d 561, 123 N. E. 2d 817.
No. 726. Watts v. United States. C. A. 10th Cir. Certiorari denied. Sumner M. Redstone, H. D. Reed and Frank A. Bruno for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, John H. Mitchell, Joseph M. Howard and Harold S. Larsen for the United States. Reported below: 220 F. 2d 483.
No. 730. Alker v. Fidelity-Philadelphia Trust Co., Trustee, et al. C. A. 3d Cir. Certiorari denied. A. D. Bruce, Harry J. Alker, Jr. and Francis E. Walter for
940
OCTOBER TERM, 1954.
May 23, 1955.
349 U. S.
petitioner. Richard C. Bull, Thomas Raeburn White and Thomas B. K. Ringe for respondents. Reported below: 218 F. 2d 602.
No. 712. JuNGERSEN V. AXEL BROS., INC. ET AL. C. A. 2d Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. Elliott L. Biskind for petitioner. John Vaughan Groner for respondents. Reported below: 217 F. 2d 646.
No. 714. Dictograph Products, Inc. v. Federal Trade Commission. C. A. 2d Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. Louis P. Hafjer for petitioner. Solicitor General Sobeloff, Assistant Attorney General Barnes, Charles F. Barber, Daniel M. Friedman, Earl W. Kintner and Robert B. Dawkins for respondent. Reported below: 217 F. 2d 821.
No. 238, Mise. Lovejoy v. Skeen, Warden. Supreme Court of Appeals of West Virginia. Certiorari denied. Petitioner pro se. John G. Fox, Attorney General of West Virginia, and T. D. Kauffelt, Assistant Attorney General, for respondent.
No. 398, Mise. Collins v. Heinze, Warden, et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Edmund G. Brown, Attorney General of California, and Doris H. Maier, Deputy Attorney General, for Heinze, respondent. Reported below: 217 F. 2d 62.
No. 428, Mise. Ortega v. Ragen, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 216 F. 2d 561.
No. 532, Mise. Pollack v. Aspbury et al. C. A. 2d Cir. Certiorari denied.
DECISIONS PER CURIAM ETC. 941
349 U. S.	May 23, 31, 1955.
No. 535, Mise. Furman v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 539, Mise. Brabson v. New York. Court of Appeals of New York. Certiorari denied. Reported below: 308 N. Y. 694, 124 N. E. 2d 324.
No. 570, Mise. Lawson v. Michigan. Supreme Court of Michigan. Certiorari denied.
No. 571, Mise. Worbetz v. New Jersey. Supreme Court of New Jersey. Certiorari denied. Petitioner pro se. Leon Gerojsky for respondent. Reported below : 17 N. J. 569, 112 A. 2d 246.
No. 572, Mise. Porter v. Smyth, Superintendent, Virginia State Penitentiary. Supreme Court of Appeals of Virginia. Certiorari denied.
No. 591, Mise. Butler v. Illinois. Supreme Court of Illinois. Certiorari denied.
Rehearing Denied.
No. 584. Seaboard Air Line Railroad Co. v. United States et al., ante, p. 902. Rehearing denied.
May 31, 1955.
Decisions Per Curiam.
No. 663. Fong, Guardian ad litem, et al. v. Dulles, Secretary of State. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Per Curiam: The petition for writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court for a new trial in accordance with the Govern-
942
OCTOBER TERM, 1954.
May 31, 1955.
349 U. S.
merit’s suggestion. Joseph S. Hertogs for petitioners. Solicitor General Sobeloff for respondent. Reported below: 217 F. 2d 138.
No. 677. Meyer et al. v. St. Louis Southwestern Railway Co. et al. Appeal from the Supreme Court of Missouri. Per Curiam: The motions to dismiss are granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Frankfurter took no part in the consideration or decision of this case. Walter E. Meyer and Roberts P. Elam for appellants. John W. Murphy and Lackland H. Bloom for the St. Louis Southwestern Railway Co.; and Paul D. Miller and Clem F. Storckman for the Southern Pacific Co. et al., appellees. Reported below: 363 Mo. 1057, 272 S. W. 2d 249.
No. 742. Combs et al. v. Illinois State Toll Highway Commission et al. Appeal from the United States District Court for the Northern District of Illinois. Per Curiam: The motion to affirm is granted and the judgment is affirmed. The motion to limit the time for filing rehearing and to issue the mandate forthwith is granted. Petition for rehearing, if any, is to be filed prior to 11:00 a. in., Friday, June 3d. John J. Yowell for appellants. Latham Castle, Attorney General of Illinois, John L. Davidson, Jr., First Assistant Attorney General, George W. McGurn, Assistant Attorney General, and Werner W. Schroeder and Theodore W. Schroeder, Special Assistant Attorneys General, for appellees. Reported below: 128 F. Supp. 305.
Miscellaneous Orders.
No. 9, Original. Texas v. New Mexico et al. This case is set for hearing on Monday, October 10th, next, on the exceptions to the report of the Special Master dated January 31, 1955.
DECISIONS PER CURIAM ETC.
943
349 U. S.	May 31, 1955.
No. 143, Mise., October Term, 1953. Shelton v. United States. The motion to vacate the order of November 30, 1953, 346 U. S. 892, dismissing the petition for writ of certiorari is denied. Mr. Justice Harlan took no part in the consideration or decision of this motion. Petitioner pro se. Solicitor General Sobeloff for the United States.
Certiorari Granted. (See also No. 663, supra.)
No. 690. Gibson v. Lockheed Aircraft Service, Inc. C. A. 5th Cir. Certiorari granted. G. C. Spillers and Edward C. Fritz for petitioner. R. K. Hanger for respondent. Reported below: 217 F. 2d 730.
No. 718. Communist Party of the United States v. Subversive Activities Control Board. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. John J. Abt and Joseph Forer for petitioner. Solicitor General Sobeloff, Assistant Attorney General Tompkins, Charles F. Barber, Harold D. Koffsky, Philip R. Monahan and George R. Gallagher for respondent. Reported below: 95 U. S. App. D. C.---------,----F. 2d----------------------------------------------------.
No. 731. Bernhardt v. Polygraphic Co., Inc. C. A. 2d Cir. Certiorari granted. Manured W. Ehrich, Jr. and Eugene V. Clark for petitioner. Joseph A. McNamara and Guy M. Page for respondent. Reported below: 218 F. 2d 948.
No. 458, Mise. Gonzales v. Landon, District Director, Immigration and Naturalization Service, et al. C. A. 9th Cir. Certiorari granted. W. S. Maycock for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Edward S. Szukelewicz for respondents. Reported below: 215 F. 2d 955.
944
OCTOBER TERM, 1954.
May 31, 1955.
349 U.S.
No. 588, Mise. Reece v. Georgia. Supreme Court of Georgia. Certiorari granted. Daniel Duke for petitioner. Reported below: 211 Ga. 339, 85 S. E. 2d 773.
Certiorari Denied.
No. 679. Smith v. Texas. Court of Criminal Appeals of Texas. Certiorari denied. Geo. W. McCleskey for petitioner. John Ben Shepperd, Attorney General of Texas, and A. M. Lecroix, Assistant Attorney General, for respondent. Reported below: --------Tex. Cr. R. ------, 273
S. W. 2d 623.
No. 721. Lew Wah Fook, Guardian ad litem, v. Brownell, Attorney General. C. A. 9th Cir. Certiorari denied. C. W. Cornell for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney and Beatrice Rosenberg for respondent. Reported below: 218 F. 2d 924.
No. 722. Connolly, Receiver, et al. v. First Trust & Deposit Co. C. A. 2d Cir. Certiorari denied. Laurence Sovik for petitioners. Gerald H. Henley for respondent. Reported below: 218 F. 2d 671.
No. 723. Wheeler v. United States; and
No. 724. McGowan v. United States. C. A. 7th Cir. Certiorari denied. David H. Greenberg for petitioner in No. 723. Irving S. Abrams for petitioner in No. 724. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 219 F. 2d 773.
No. 725. Capitol Hill Southeast Citizens Association v. Coe et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.
DECISIONS PER CURIAM ETC.
945
349 U. S.	May 31, 1955.
Betty Cochran Stockvis for petitioner. Vernon E. West, Chester H. Gray, Milton D. Korman and Harry L. Walker for respondents. Reported below: 95 U. S. App. D. C. ---, 219 F. 2d 33.
No. 728. Beecher v. Leavenworth State Bank et al. C. A. 9th Cir. Certiorari denied. Reported below: 217 F. 2d 304.
No. 732. Merchants Matrix Cut Syndicate, Inc. et al. v. United States et al. C. A. 7th Cir. Certiorari denied. Charles L. Stewart, Jr. for the Intertype Corporation, and Horace A. Young for the Advertising Checking Bureau, Inc., petitioners. Solicitor General Sobeloff, Assistant Attorney General Morton and John C. Harrington for the United States. Claude A. Roth for the Clark-Congress Corporation, respondent. Mr. Sobeloff, Mr. Morton and & Billingsley Hill filed a brief for the United States, as amicus curiae, supporting the Clark-Congress Corporation. Reported below: 219 F. 2d 90.
No. 734. Vermont Transit Co., Inc. v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Guy M. Page and Charles W. Tye for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack and Louise Foster for respondent. Reported below: 218 F. 2d 468.
No. 737. Panhandle Eastern Pipe Line Co. v. Federal Power Commission et al. C. A. 3d Cir. Certiorari denied. William E. Miller for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger, Melvin Richter, Lionel Kestenbaum, Willard W. Gatchell and William J. Grove for the Federal Power Commission; Samuel Brezner for Wayne County, Michigan; Donald R. Richberg, Arthur R. Seder, Jr. and Charles V. Shannon for the American Louisiana Pipe Line Co. et al., and
946
OCTOBER TERM, 1954.
May 31, 1955.
349 U. S.
Oscar L. Chapman for the Michigan Consolidated Gas Co., respondents. Reported below: 219 F. 2d 729.
No. 739. Business Men's Assurance Co. v. Driggers. C. A. 5th Cir. Certiorari denied. William Lipscomb and George L. Gordon for petitioner. Reported below: 219 F. 2d 292.
No. 740. Beaty v. United States. C. A. 4th Cir. Certiorari denied. Llewellyn A. Luce for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, John H. Mitchell, Joseph M. Howard and Dickinson Thatcher for the United States. Reported below: 220 F. 2d 681.
No. 741. Johnson v. Mississippi. Supreme Court of Mississippi. Certiorari denied. Thurgood Marshall and Jack Greenberg for petitioner. J. P. Coleman, Attorney-General of Mississippi, for respondent. Reported below: 222 Miss.----, 76 So. 2d 841.
No. 745. Fitzpatrick v. Snyder, Commander, Boston Naval Shipyard, et al. C. A. 1st Cir. Certiorari denied. Claude L. Dawson for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger and Paul A. Sweeney for respondents. Reported below: 220 F. 2d 522.
No. 746. Thys Company et al. v. Anglo-California National Bank, Executor. C. A. 9th Cir. Certiorari denied. Stephen S. Townsend and Carl Hoppe for petitioners. Arlington C. White and Margaret E. White for respondent. Reported below: 219 F. 2d 131.
No. 748. Mall Tool Co. v. Borg-Warner Corporation. C. A. 7th Cir. Certiorari denied. Horace Dawson for petitioner. Casper W. Ooms for respondent. Reported below: 217 F. 2d 850.
DECISIONS PER CURIAM ETC.
947
349 U. S.	May 31, 1955.
No. 768. Gordon v. Gordon et al. Probate Court of Massachusetts, Bristol County. Certiorari denied. Samuel Abrams for petitioner. Lee M. Friedman for respondents. Reported below: See 332 Mass. 197, 210, 124 N. E. 2d 228, 236.
No. 773. Tubular Service & Engineering Co. et al. v. Sun Oil Co. C. A. 5th Cir. Certiorari denied. Earl Babcock and Thomas 0. Arnold for petitioners. James B. Simms and Frank S. Busser for respondent. Reported below: 220 F. 2d 27.
No. 667. Peterson et al. v. Phillips Petroleum Co. C. A. 10th Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. Olin Wellborn, III, for petitioners. Rayburn L. Foster, Harry D. Turner and George L. Sneed for respondent. Reported below: 218 F. 2d 926.
No. 735. Froman v. Pan American Airways, Inc. Court of Appeals of New York. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this application. Michael Halperin and Irving Lemov for petitioner. William J. Junkerman for respondent. Reported below: 299 N. Y. 88, 85 N. E. 2d 880.
No. 161, Mise. Beecher v. Leavenworth State Bank et al. C. A. 9th Cir. Certiorari denied. Reported below: 214 F. 2d 114.
No. 464, Mise. Heirens v. Illinois. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. Latham Castle, Attorney General of Illinois, and John L. Davidson, Jr., Fred G. Leach and William C. Wines, Assistant Attorneys General, for respondent. Reported below: 4 Ill. 2d 131, 122 N. E. 2d 231.
948
349 U. S.
OCTOBER TERM, 1954.
May 31, June 6, 1955.
No. 542, Mise. Von Glahn v. New York. Court of Appeals of New York. Certiorari denied. Reginald C. Smith for petitioner. Reported below: 308 N. Y. 662, 124 N. E. 2d 312.
No. 543, Mise. Sell v. Day, Warden. Supreme Court of Pennsylvania, Eastern District. Certiorari denied.
No. 583, Mise. Harrison v. Missouri. Supreme Court of Missouri. Certiorari denied. Reported below: 276 S. W. 2d 222.
No. 586, Mise. Sorber v. Mississippi. Supreme Court of Mississippi. Certiorari denied. R. D. Everitt for petitioner. Reported below: 222 Miss.-----, 76 So. 2d 234.
Rehearing Denied.
No. 478. Obear-Nester Glass Co. v. Commissioner of Internal Revenue, 348 U. S. 982. The motion for leave to file petition for rehearing is denied. Mr. Justice Harlan took no part in the consideration or decision of this motion.
No. 632. Lloyd v. Campbell, Executor, et al., ante, p. 911; and
No. 670. Green et ux. v. Green et al., ante, p. 917. The petitions for rehearing are denied.
June 6, 1955.
Decision Per Curiam.
No. 581, Mise. Lee v. McDonald, Warden. On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. Per Curiam: The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeals is vacated and the case is remanded to the Dis-
DECISIONS PER CURIAM ETC.
949
349 U. S.	June 6, 1955.
trict Court with directions to dismiss the petition for writ of habeas corpus upon the ground that the cause is moot. Petitioner pro se. Solicitor General Sobeloff for respondent. Reported below: 217 F. 2d 619.
Miscellaneous Orders.
No. 815. Griffin et al. v. Illinois. Certiorari, 349 U. S. 937, to the Supreme Court of Illinois. It is ordered that Charles A. Horsky, Esquire, of Washington, D. C., a member of the Bar of this Court, be appointed to serve as counsel for the petitioners in this case.
No. 150. United States ex rel. Toth v. Talbott, Secretary of the Air Force. Certiorari, 348 U. S. 809, to the United States Court of Appeals for the District of Columbia Circuit. Argued February 8-9, 1955. This case is restored to the docket for reargument. William A. Kehoe, Jr., Al. Philip Kane, Charles V. Koons, John J. McGrath, Peter F. Flaherty, Joseph H. Ridge and James F. Smith for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Marvin E. Frankel, Beatrice Rosenberg, Carl H. Imlay and Chester W. Wilson for respondent. Ralph B. Gregg filed a brief for the American Legion, as amicus curiae, urging reversal. Reported below: 94 U. S. App. D. C.------, 215 F. 2d 22.
No. 292, Mise. Manchester v. Gladden, Warden;
No. 643, Mise. Rooks v. Ellis, General Manager, Texas Prison System;
No. 658, Mise. Groat v. Agent of Levin, U. S. District Judge, et al. ; and
No. 666, Mise. Weldon v. Brownell, Attorney General, et al. The motions for leave to file petitions for writs of certiorari are denied. Petitioners pro se. Robert Y. Thornton, Attorney General of Oregon, and Wolf D. von Otterstedt, Assistant Attorney General, for respondent in No. 292, Mise.
340907 0 - 55 - 39
950	OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 306, Mise. Kendrick v. Manning, Superintendent, South Carolina Penitentiary;
No. 335, Mise. Ex parte Hightower;
No. 596, Mise. Collins v. Ragen, Warden;
No. 617, Mise. Farris et al. v. Heinze, Warden,
et al.;
No. 650, Mise. Taylor v. United States;
No. 657, Mise. Tabor v. Hardwick, Warden;
No. 664, Mise. Hamilton v. Uffelman, Superintendent, Illinois State Security Hospital;
No. 665, Mise. Howell v. Looney, Warden;
No. 669, Mise. Newstead v. Baynes;
No. 674, Mise. Kelley v. Virginia et al. ;
No. 675, Mise. Wellens v. California;
No. 680, Mise. Ex parte Jackson; and
No. 682, Mise. Hilderbrand v. Steele, Warden.
The motions for leave to file petitions for writs of habeas corpus are denied. Petitioners pro se. T. C. Callison, Attorney General of South Carolina, and William A. Dallis, Assistant Attorney General, for respondent in No.
306, Mise.
No. 638, Mise.
In re Howlery. The application is
denied.
No. 659, Mise. Danker v. Starr, U. S. District Judge ;
No. 670, Mise. Ex parte Lipscomb; and
No. 683, Mise. Lancaster v. Kent, U. S. District
Judge. The motions for leave to file petitions for writs of mandamus are denied.
No.-----. In re Jones, 348 U. S. 969. It appearing that all costs in the cases of Amalgamated Association of Street, Electric Railway, etc., Employees et al. v. Southern
DECISIONS PER CURIAM ETC.
951
349 U. S.	June 6, 1955.
Bus Lines, 345 U. S. 964, Nos. 716 and 717, of the October Term, 1952, have now been paid, the rule to show cause is discharged.
No.------. In re Baltzegar, 348 U. S. 969. It appearing that all costs in the case of Rickenbaker v. United States, 348 U. S. 832, have now been paid, the rule to show cause is discharged.
No.------. In re Hawke, 348 U. S. 969. The rule to show cause is discharged, it appearing that the respondent died prior to the date the rule issued.
No.------. In re Collins, 348 U. S. 969. It appearing that the rule to show cause has not been served because the respondent cannot be located, the rule is discharged.
Certiorari Granted. (See also No. 581, Mise., supra.)
No. 763. Ullmann v. United States. C. A. 2d Cir. The motion for leave to file brief of Emergency Civil Liberties Committee, as amicus curiae, is denied. Certiorari granted. Nathan Witt, Leonard B. Boudin and Victor Rabinowitz for petitioner. Solicitor General Sobeloff, Assistant Attorney General Tompkins, Harold D. Koffsky and John H. Davitt for the United States. Reported below: 221 F. 2d 760.
No. 790. Affronti v. United States. C. A. 8th Cir. Certiorari granted. Harry F. Murphy for petitioner. Solicitor General Sobeloff for the United States. Reported below: 220 F. 2d 150.
No. 793. United States v. Leslie Salt Co. C. A. 9th Cir. Certiorari granted. Solicitor General Sobeloff for the United States. Walter C. Fox, Jr. for respondent. Reported below: 218 F. 2d 91.
952
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
Certiorari Denied. (See also Mise. Nos. 292,6^3,658 and 666, supra.)
No. 653. Couto v. Shaughnessy, District Director, Immigration and Naturalization Service. C. A. 2d Cir. Certiorari denied. Aaron L. Danzig for petitioner. Solicitor General Sobeloff for respondent. Reported below: 218 F. 2d 758.
No. 743. Feldmann et al. v. Perlman et al. C. A. 2d Cir. Certiorari denied. Arthur H. Dean and Howard T. Milman for petitioners. Eugene Eisenmann and William E. Haudek for respondents. Reported below: 219 F. 2d 173.
No. 747. Fairbairn, Administratrix, v. North Atlantic & Gulf Steamship Co. C. A. 2d Cir. Certiorari denied. Jacob Rassner for petitioner. Eugene Underwood for respondent. Reported below: 218 F. 2d 602.
No. 749. Henry Heide, Inc. v. National Labor Relations Board; and
No. 783. Candy and Confectionery Workers Union, Local 452, AFL, v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Godfrey P. Schmidt, Theodore Kiendl, William R. Meagher and Rufus D. McDonald for petitioner in No. 749. Lawrence Kovalsky for petitioner in No. 783. Solicitor General Sobeloff, Theophil C. Kammholz, David P. Findling, Dominick L. Manoli and Rosanna A. Blake for respondent. Reported below: 219 F. 2d 46.
No. 750. Cefalu v. United States. C. A. 5th Cir. Certiorari denied. Fred A. Blanche for petitioner. Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, John H. Mitchell, Joseph M. Howard and James X. Kilbridge for the United States. Reported below: 218 F. 2d 956.
DECISIONS PER CURIAM ETC.
953
349 U. S.	June 6, 1955.
No. 751. West Texas Utilities Co. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. Frank Cain for petitioner. Solicitor General Sobeloff, Theophil C. Kammholz, David P. Findling, Dominick L. Manoli and Frederick U. Reel for respondent. Reported below: 218 F. 2d 824.
No. 752. Walters et al. v. Hall. Supreme Court of South Carolina. Certiorari denied. Arthur J. Goldberg and David E. Feller for petitioners. Thomas E. McCutchen, Jr. for respondent. Reported below: -----------S. C. --------------------------------------------------------, 85 S. E. 2d 729.
No. 753. H. Koch & Sons v. Hycon Mfg. Co. C. A. 9th Cir. Certiorari denied. George B. White and Collins Mason for petitioner. Robert W. Fulwider and Edward E. Tuttle for respondent. Reported below: 219 F. 2d 353.
No. 755. Cammarata v. Michigan. Supreme Court of Michigan. Certiorari denied. Joseph W. Louisell and Ivan E. Barris for petitioner. Thomas M. Kavanagh, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, for respondent. Reported below: 341 Mich. 528, 67 N. W. 2d 677.
No. 756. Permanente Steamship Corp. v. Peterson. District Court of Appeal of California, First Appellate District. Certiorari denied. Cyril Appel and George Liebermann for petitioner. Albert Michelson for respondent. Reported below: 129 Cal. App. 2d 579, 277 P. 2d 495.
No. 764. Hupman v. United States. C. A. 6th Cir. Certiorari denied. Frank J. Donner, Arthur Kinoy,
954
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
Marshall Perlin and David Scribner for petitioner. Solicitor General Sobeloff, Assistant Attorney General Tompkins and Philip R. Monahan for the United States. Reported below: 219 F. 2d 243.
No. 767. Frantz et al., doing business as Frantz Equipment Co., v. United States. C. A. 3d Cir. Certiorari denied. Joseph W. Henderson, George M. Brodhead and Harry Norman Ball for petitioners. Solicitor General Sobeloff, Assistant Attorney General Burger, Melvin Richter and Morton Hollander for the United States. Reported below: 220 F. 2d 123.
No. 769. City of Amarillo v. Copeland. C. A. 5th Cir. Certiorari denied. Don H. Cutter for petitioner. John H. Merchant and J. O. Fitzjarrald for respondent. Reported below: 218 F. 2d 49.
No. 770. Johnson, Administratrix, v. New York, New Haven & Hartford Railroad Co. C. A. 2d Cir. Certiorari denied. Jacquin Frank and Herman B. Ger-ringer for petitioner. Edward R. Brumley and Robert M. Peet for respondent. Reported below: 220 F. 2d 279.
No. 772. Lewis v. United States. C. A. 7th Cir. Certiorari denied. Capelie Damrell for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 220 F. 2d 357.
No. 775. United States v. Roberson. Court of Claims. Certiorari denied. Solicitor General Sobeloff for the United States. Clarence G. Pechacek for respondent. Reported below: 129 Ct. Cl. 581, 124 F. Supp. 857.
DECISIONS PER CURIAM ETC.
955
349 U. S.	June 6, 1955.
No. 776. Pacific Employers Insurance Co. v. Wack-erle et al. C. A. 8th Cir. Certiorari denied. Roy B. Thomson for petitioner. Lon Hocker for respondents. Reported below: 219 F. 2d 1.
No. 778. Bishop et al. v. United States. Court of Claims. Certiorari denied. John F. Donelan and David V. Lansden for petitioners. Solicitor General Sobeloff, Assistant Attorney General Morton and Roger P. Marquis for the United States. Reported below: 130 Ct. Cl.-------, 126 F. Supp. 449.
No. 781. McAlmond v. Delmore, Warden. Supreme Court of Washington. Certiorari denied. Petitioner pro se. Don Eastvoid, Attorney General of Washington, and E. P. Donnelly and Michael Alfieri, Assistant Attorneys General, for respondent.
No. 786. National Savings & Trust Co. et al., Surviving Trustees, v. Brownell, Attorney General, Successor to the Alien Property Custodian. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. John E. Powell, Arthur P. Drury, John M. Lynham and Charles T. Tittmann for petitioners. Solicitor General Sobeloff, Assistant Attorney General Townsend, James D. Hill and George B. Searls for respondent. Reported below: 95 U. S. App. D. C.----, 222 F. 2d 395.
No. 811. Brill, Trustee in Bankruptcy, v. Cohen & Miller Advertising, Inc. et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Leon M. Shinberg for petitioner. James R. Sharp for Cohen & Miller Advertising, Inc.; and Herbert J. Miller, Jr. for Washington Times-Herald, Inc., respondents. Reported below: 95 U. S. App. D. C.---------, 221 F. 2d 868.
956
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 840. PlRMAN ET AL. V. FLORIDA STATE IMPROVEMENT Commission et al. Supreme Court of Florida. Certiorari denied. O. K. Reaves for petitioners. J. Turner Butler for the Florida State Improvement Commission, respondent. Reported below: 78 So. 2d 718.
No. 758. National Airlines, Inc. v. Scholnik. C. A. 6th Cir. Certiorari denied. Mr. Justice Burton took no part in the consideration or decision of this application. Thomas V. Koykka and Edward D. Crocker for petitioner. Ralph Rudd for respondent. Reported below: 219 F. 2d 115.
No. 762. Lyles & Lang Construction Co. v. E. I. du Pont de Nemours & Co. et al.; and
No. 785. E. I. du Pont de Nemours & Co. v. Lyles & Lang Construction Co. C. A. 4th Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of these applications. James F. Dreher and David W. Robinson for the Lyles & Lang Construction Co. Solicitor General Sobeloff, Assistant Attorney General Burger, Paul A. Sweeney and Benjamin Forman for respondents in No. 762. Mr. Sobeloff for petitioner in No. 785. Reported below: 219 F. 2d 328.
No. 541, Mise. Thrailkill et al. v. Baltimore & Ohio Railroad Co. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. J. Kenton Chapman for petitioners. Stephen Ailes for respondent.
No. 93, Mise. Hartfield v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. Latham Castle, Attorney General of Illinois, for respondent.
DECISIONS PER CURIAM ETC.
957
349 U. S.	June 6, 1955.
No. 160, Mise. Mahurin v. Tomlinson. Supreme Court of Missouri. Certiorari denied. Petitioner pro se. John M. Dalton, Attorney General of Missouri, and Samuel M. Watson, Assistant Attorney General, for respondent.
No. 188, Mise. Westbrook v. Illinois. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. Latham Castle, Attorney General of Illinois, for respondent.
No. 211, Mise. Mahurin v. Eidson, Warden. Supreme Court of Missouri. Certiorari denied. Petitioner pro se. John M. Dalton, Attorney General of Missouri, and Samuel M. Watson, Assistant Attorney General, for respondent.
No. 235, Mise. Mason v. Delmore, Superintendent, Washington State Penitentiary. Supreme Court of Washington. Certiorari denied. Don Eastvoid, Attorney General, and E. P. Donnelly and Michael R. Alfieri, Assistant Attorneys General, for respondent.
No. 291, Mise. Hightower v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States.
No. 336, Mise. Ross v. Teets, Warden. Supreme Court of California. Certiorari denied. Petitioner pro se. Edmund G. Brown, Attorney General of California, Clarence A. Linn, Assistant Attorney General, and Arlo E. Smith, Deputy Attorney General, for respondent.
340905 0 —55-----------15
958
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 359, Mise. Harris v. Teets, Warden. Supreme Court of California. Certiorari denied. Petitioner pro se. Edmund G. Brown, Attorney General of California, Clarence A. Linn, Chief Assistant Attorney General, and Arlo E. Smith, Deputy Attorney General, for respondent.
No. 395, Mise. Rutledge v. Greeley County District Court et al. Supreme Court of Kansas. Certiorari denied. Petitioner pro se. Harold R. Fatzer, Attorney General of Kansas, and James L. Galle, Assistant Attorney General, for respondents.
No. 397, Mise. Provancher v. Illinois. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. Latham Castle, Attorney General of Illinois, for respondent.
No. 420, Mise. Haines v. Courtney et al. C. A. 7th Cir. Certiorari denied.
No. 422, Mise. Jennings v. Nester et al. C. A. 7th Cir. Certiorari denied. Petitioner pro se. John Gut-knecht, John J. Mortimer, Charles Dana Snewind, L. Louis Karton and Arthur Magid for respondents. Reported below: 217 F. 2d 153.
No. 426, Mise. Strong v. Edmondson, Warden, et al. Supreme Court of Kansas. Certiorari denied. Petitioner pro se. Harold R. Fatzer, Attorney General of Kansas, James L. Galle, Assistant Attorney General, and Robert A. Reeder for respondents. Reported below: 177 Kan. 247, 277 P. 2d 585.
No. 427, Mise. Levy v. Hayward et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff for the United States.
DECISIONS PER CURIAM ETC.
959
349 U. S.	June 6, 1955.
No. 429, Mise. Parker v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 217 F. 2d 672.
No. 430, Mise. Pond v. Indiana. Supreme Court of Indiana. Certiorari denied. Petitioner pro se. Edwin K. Steers, Attorney General of Indiana, and Owen S. Boling, Deputy Attorney General, for respondent. Reported below: 233 Ind. 585, 121 N. E. 2d 640.
No. 431, Mise. Clark v. Florida. Supreme Court of Florida. Certiorari denied. Wm. W. Flournoy for petitioner. Richard W. Ervin, Attorney General of Florida, and John S. Floyd, Special Assistant Attorney General, for respondent.
No. 459, Mise. Crozier et ux. v. Bank of Hawaii et al. C. A. 9th Cir. Certiorari denied. O. P. Soures for petitioners.
No. 492, Mise. Kubus v. Minnesota. Supreme Court of Minnesota. Certiorari denied. Reported below: ----Minn.------, 68 N. W. 2d 217.
No. 500, MisC. SWAGGERTY V. UNITED STATES. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia H. Dubrovsky for the United States. Reported below: 218 F. 2d 875.
No. 501, Mise. Hayman v. United States. C. A. 9th Cir. Certiorari denied.
No. 502, Mise. Hodge v. United States. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General
960
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 217 F. 2d 716.
No. 507, Mise. Hite v. Western Maryland Railway. C. A. 4th Cir. Certiorari denied. Milford J. Meyer and William Saxon for petitioner. Hilary W. Gans for respondent. Reported below: 217 F. 2d 781.
No. 508, Mise. Lunce et al. v. Indiana. Supreme Court of Indiana. Certiorari denied. James C. Cooper for petitioners. Reported below: 233 Ind. 685, 122 N. E. 2d 5.
No. 509, Mise. Simpson v. Teets, Warden. Supreme Court of California. Certiorari denied. A. J. Zirpoli for petitioner. Edmund G. Brown, Attorney General of California, Clarence A. Linn, Chief Assistant Attorney General, and Arlo E. Smith, Deputy Attorney General, for respondent.
No. 510, Mise. Ward v. United States. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 218 F. 2d 885.
No. 518, Mise. Burden v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States. Reported below: 218 F. 2d 822.
No. 524, Mise. Mahurin v. Morris et ux. Supreme Court of Missouri. Certiorari denied.
DECISIONS PER CURIAM ETC.
961
349 U. S.	June 6, 1955.
No. 533, Mise. Witt v. McGee, Director of Corrections, et al. Supreme Court of California. Certiorari denied.
No. 534, Mise. Bates v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. A. Lillian C. Kennedy, Eugene A. Chase, Frank D. Reeves, Aubrey E. Robinson, Jr. and Charles T. Duncan for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 95 U. S. App. D. C.----------, 219 F. 2d 30.
No. 544, Mise. Edwards v. United States. C. A. 1st Cir. Certiorari denied.
No. 546, Mise. Hudson v. Iowa. Supreme Court of Iowa. Certiorari denied.
No. 552, Mise. Applebaum et al., doing business as Center Amusements, v. Paramount Pictures, Inc. et al. C. A. 5th Cir. Certiorari denied. Walter P. Armstrong, Jr. for petitioners. Earl T. Thomas for respondents. Reported below: 217 F. 2d 101.
No. 575, Mise. Dayton v. Bennett, Director, Bureau of Prisons, et al. C. A. 10th Cir. Certiorari denied. Reported below: 218 F. 2d 696.
No. 582, Mise. Condon v. New York. County Court of Kings County, New York. Certiorari denied. Petitioner pro se. William I. Siegel for respondent.
No. 584, Mise. Serraille v. Illinois. Supreme Court of Illinois. Certiorari denied.
962
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 587, Mise. Plocar v. Foster, Sheriff. Supreme Court of Georgia. Certiorari denied. Reuben A. Garland for petitioner. Eugene Cook, Attorney General of Georgia, Robert H. Hall, Deputy Assistant Attorney General, and E. Freeman Leverett, Assistant Attorney General, for respondent. Reported below: 211 Ga. 153, 84 S. E. 2d 360.
No. 592, Mise. Baldridge v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 594, Mise. Nistal v. Hausauer, Commanding General, New York National Guard. Court of Appeals of New York. Certiorari denied. Arthur G. Warner for petitioner. Jacob K. Javits, Attorney General of New York, Henry S. Manley, Solicitor General, and Abe Wagman and Jerome 0. Glucksman, Assistant Attorneys General,’for respondent. Reported below: 308 N. Y. 146, 124 N. E. 2d 94.
No. 597, Mise. Randall v. Ragen, Warden. Supreme Court of Illinois. Certiorari denied.
No. 598, Mise. Mitchell v. California. Supreme Court of California. Certiorari denied.
No. 603, Mise. Barnes v. Federal Communications Commission. C. A. 7th Cir. Certiorari denied. Reported below: ----F. 2d-----.
No. 605, Mise. Lyons v. Weems et al., doing business as Weems Brothers Seafood Co. Supreme Court of Mississippi. Certiorari denied. William Eugene Morse for petitioner. W. Lee Guice and R. W. Thompson, Jr. for respondents. Reported below: 222 Miss.----, 76 So. 2d 354.
DECISIONS PER CURIAM ETC.
963
349 U. S.	June 6, 1955.
No. 606, Mise. Vraniak v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 5 Ill. 2d 384, 125 N. E. 2d 513.
No. 607, Mise. Haines v. Ragen, Warden. C. A. 7th Cir. and the United States District Court for the Northern District of Illinois. Certiorari denied.
No. 608, Mise. Yager v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 220 F. 2d 795.
No. 609, Mise. Galle v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied.
No. 610, Mise. Hall v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 611, Mise. Rodriguez v. Jackson, Warden. C. A. 2d Cir. Certiorari denied.
No. 612, Mise. Vandever v. United- States. C. A. 10th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff for the United States. Reported below: 220 F. 2d 438.
No. 613, Mise. Wilson v. District of Columbia. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. De Long Harris for petitioner. Vernon E. West, Chester H. Gray, Milton D. Korman, Harry L. Walker and Hubert B. Pair for respondent.
No. 614, Mise. Sproch v. Illinois. Supreme Court of Illinois. Certiorari denied.
964
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 615, Mise. Woods v. Ragen, Warden. Circuit Court of Will County, Illinois. Certiorari denied.
No. 616, Mise. Taylor v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 620, Mise. Freccia v. New York. Court of Appeals of New York. Certiorari denied.
No. 621, Mise. Boone v. Massachusetts. Supreme Judicial Court of Massachusetts. Certiorari denied.
No. 622, Mise. Milan v. Kentucky et al. Court of Appeals of Kentucky. Certiorari denied. Petitioner pro se. J. D. Buckman, Jr., Attorney General, and Zeb A. Stewart, Assistant Attorney General, for the State of Kentucky, respondent. Reported below: 275 S. W. 2d 921.
No. 623, Mise. Hill v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 221 F. 2d 437.
No. 624, Mise. Ford v. District of Columbia. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Albert A. Stern and Homer Brooks for petitioner. Vernon E. West, Chester H. Gray, Milton D. Korman, Harry L. Walker and Hubert B. Pair for respondent. Reported below: 95 U. S. App. D. C.-----, 219 F. 2d 769.
No. 625, Mise. De Lorenzo v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Bernard Margolius for petitioner. Solicitor General Sobeloff, Assistant At-
DECISIONS PER CURIAM ETC.
965
349 U. S.	June 6, 1955.
torney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 95 U. S. App. D. C.-----, 219 F. 2d 506.
No. 626, Mise. Davis v. Summerfield, Postmaster General. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Burger and Melvin Richter for respondent. Reported below: 95 U. S. App. D. C.-----, 219 F. 2d 510.
No. 627, Mise. Hicks et ux. v. Corbett et al. District Court of Appeal of California, Second Appellate District. Certiorari denied. Reported below: 130 Cal. App. 2d 87, 278 P. 2d 77.
No. 628, Mise. Lenz v. Looney, Warden. C. A. 10th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for respondent. Reported below: 217 F. 2d 841.
No. 629, Mise. Harvey v. Mayo, Prison Custodian. Supreme Court of Florida. Certiorari denied.
No. 631, Mise. Pratt v. Department of the Army et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff, Assistant Attorney General Burger and Paul A. Sweeney for respondents.
No. 632, Mise. Moyle v. Teets, Warden. Supreme Court of California. Certiorari denied.
No. 633, Mise. Page v. Skeen, Warden. Supreme Court of Appeals of West Virginia. Certiorari denied.
340907 0 - 55 - 40
966
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 634, Mise. Cason v. United States. C. A. 4th Cir. Certiorari denied.
No. 635, Mise. Byrnes v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 636, Mise. Pugliese v. Massachusetts. Supreme Judicial Court of Massachusetts. Certiorari denied.
No. 640, Mise. Byers v. United States. C. A. 10th Cir. Certiorari denied. Petitioner pro se. Solicitor General Sobeloff for the United States.
No. 641, Mise. Lancaster v. Pennsylvania et al. Supreme Court of Pennsylvania, Western District. Certiorari denied.
No. 645, Mise. Kelly v. Indiana. Supreme Court of Indiana. Certiorari denied. Reported below: --- Ind.
---, 126 N. E. 2d 13.
No. 646, Mise. Worthington v. Florida. Supreme Court of Florida. Certiorari denied.
No. 647, Mise. Manhat v. United States et al. C. A. 2d Cir. Certiorari denied. William L. Standard and Louis R. Harolds for petitioner. Solicitor General Sobeloff, Assistant Attorney General Burger, Paul A. Sweeney and William W. Ross for the United States, respondent. Reported below: 220 F. 2d 143.
No. 648, Mise. Hall v. Ellis, General Manager, Texas Prison System, et al. Court of Criminal Appeals of Texas. Certiorari denied.
No. 649, Mise. Wallace v. Copiah County Lumber Co. et al. Supreme Court of Mississippi. Certiorari
DECISIONS PER CURIAM ETC.
967
349 U. S.	June 6, 1955.
denied. Leon E. Provine for petitioner. Charles B. Snow and Junior O’Mara for respondents. Reported below: ----- Miss. ----, 77 So. 2d 316.
No. 651, Mise. Curtis v. Michigan. Supreme Court of Michigan. Certiorari denied.
No. 652, Mise. Marcias v. California. District Court of Appeal of California, Fourth Appellate District. Certiorari denied. Reported below: 130 Cal. App. 2d 860, 279 P. 2d 987.
No. 653, Mise. Philyaw v. Arkansas. Supreme Court of Arkansas. Certiorari denied. Marvin Brooks Norfleet for petitioner. Reported below: -------Ark.------, 277 S. W. 2d 484.
No. 654, Mise. Gates v. Illinois. Supreme Court of Illinois. Certiorari denied.
No. 655, Mise. Firmstone v. Day, Warden. C. A. 3d Cir. Certiorari denied. Reported below: 220 F. 2d 746.
No. 656, Mise. Malvin v. New Jersey. Supreme Court of New Jersey. Certiorari denied.
No. 661, Mise. Ortega v. Illinois. Supreme Court of Illinois. Certiorari denied. Reported below: 5 Ill. 2d 79, 125 N. E. 2d 481.
No. 662, Mise. Tait v. Ragen, Warden. Criminal Court uf Cook County, Illinois. Certiorari denied.
No. 667, Mise. Wohl v. New York. County Court of Nassau County, New York. Certiorari denied.
968
OCTOBER TERM, 1954.
June 6, 1955.
349 U. S.
No. 671, Mise. Waterman v. Secretary of the Air Force et al. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.
No. 672, Mise. Buzzie v. California. District Court of Appeal of California, Fourth Appellate District. Certiorari denied.
No. 676, Mise. Hamilton v. Baker, Circuit Court Judge. Circuit Court of Dearborn County, Indiana. Certiorari denied.
No. 677, Mise. Charizio v. Cummings, Warden. C. A. 2d Cir. Certiorari denied.
No. 679, Mise. Zakowicki v. Conboy, Superintendent, Great Meadows Correctional Institution. Court of Appeals of New York. Certiorari denied.
No. 681, Mise. Sullivan v. Heinze, Warden, et al. C. A. 9th Cir. Certiorari denied.
No. 684, Mise. Hudson v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.
No. 685, Mise. Doris v. Missouri. Supreme Court of Missouri. Certiorari denied.
No. 686, Mise. Owens v. Cummings, Warden. C. A. 2d Cir. Certiorari denied.
No. 691, Mise. Cooper et al. v. Denno, Warden. C. A. 2d Cir. Certiorari denied. Nathan Kestnbaum for petitioners. Jacob K. Javits, Attorney General of New
DECISIONS PER CURIAM ETC.
969
349 U. S.	June 6, 1955.
York, Henry S. Manley, Solicitor General, Vincent A. Marsicano, Assistant Attorney General, and John J. O’Brien for respondent. Reported below: 221 F. 2d 626.
No. 580, Mise. Bollotin v. Workman Service Co. et al. District Court of Appeal of California, Second Appellate District. Certiorari denied. The Chief Justice took no part in the consideration or decision of this application. Reported below: 128 Cal. App. 2d 339, 275 P. 2d 599.
Rehearing Denied.
No. 152, October Term, 1952. Mondakota Gas Co. v. Montana-Dakota Utilities Co., 344 U. S. 827. The motion for leave to file petition for rehearing is denied. The Chief Justice and Mr. Justice Harlan took no part in the consideration or decision of this motion.
No. 459. Lopiparo v. United States, 348 U. S. 916. The motion for leave to file petition for rehearing is denied. Mr. Justice Harlan took no part in the consideration or decision of this motion.
No. 646. Bianchi et al. v. United States, ante, p. 915;
No. 657. Henderson v. United States, ante, p. 920;
No. 681. Gusick v. Arizona, ante, p. 922;
No. 697. Caldwell v. United States, ante, p. 930;
No. 742. Combs et al. v. Illinois State Toll Highway Commission et al., ante, p. 942.
No. 538, Mise. Forsythe v. New Jersey, ante, p. 927 ;
No. 565, Mise. Garrow v. California, ante, p. 933; and
No. 566, Mise. DeFoe v. Weaver Bros., Inc., ante, p. 933. The petitions for rehearing in these cases are severally denied.
NOTICE RE ORAL ARGUMENTS.
Supreme Court of the United States.
MONDAY, JUNE 6, 19 55.
Present: Mr. Chief Justice Warren, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr. Justice Clark, Mr. Justice Minton, and Mr. Justice Harlan.
The Chief Justice said:
Beginning next term and until further notice the Court will not hear arguments or hold open sessions on Friday. That day will be reserved for conferences of the Court, heretofore held on Saturday.
This change in our schedule will not affect the number of cases to be heard during the term. The Court is current with its calendar and expects to remain so.
Normally, in order to obviate the possibility of inconvenience to counsel coming from a distance, cases in which counsel reside nearby will be listed for hearing on Thursday.
971
AMENDMENT TO RULE 41 OF THE RULES OF THIS COURT.
Monday, June 6, 1955.
It is ordered that paragraph 1 of Rule 41 of the Rules of this Court be amended to read as follows:
1. Counsel for the appellant or petitioner shall file with the clerk forty copies of his printed brief on the merits, within thirty days after receipt by him of the printed record transmitted by the clerk pursuant to Rule 36 (5), or within forty-five days of the order noting or postponing probable jurisdiction or of the order granting the writ of certiorari, whichever is later. Where copies of the record as printed for the use of the court below are furnished, such brief shall be filed within forty-five days of the order noting or postponing probable jurisdiction or of the order granting certiorari. Where, however, a case is placed on the calendar too late in the term to be reached for argument before the commencement of the next term, the clerk will so notify the parties. In that event, counsel for the appellant or petitioner need not file the required number of copies of his brief prior to August 25, if that date would be later than thirty days after receipt of the printed record.
973
STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS, AT CONCLUSION OF OCTOBER TERMS—1952, 1953, AND 1954
975
Terms		ORIGINAL						APPELLATE				MISCELLANEOUS			TOTALS		
	1952		1953		1954		1952		1953	1954	1952	1953	1954	1952	1953	1954
Number of cases on dockets	 Number disposed of during terms. Number remaining on dockets—	11 0		11 0		11 0		863 742		815 694	843 721	563 544	637 609	712 640	1,437 1,286	1,463 1,303	1,566 1,361
	11		11		11		121		121	122	19	28	72	151	160	205
		TERMS												TERMS		
		1952		1953		1954								1952	1953	1954
Distribution of cases disposed of during terms: Original cases	 Appellate cases on merits	 Petitions for certiorari	 Miscellaneous docket applica-		0 201 541 544		0 172 522 609		0 189 532 640		Distribu docke Orij Api Pet Mis t		tion of cases remaining on ts: ;inal cases	 jellate cases on merits	 itions for certiorari	 cellaneous docket applica-ons	 _ _ _				11 55 66 19	11 52 69 28	11 67 55 72
																
June 7, 1955.
INDEX
ACCOUNTING. See Taxation, 2-3.
ACCRUAL BASIS. See Taxation, 2-3.
ADMINISTRATIVE PROCEDURE. See also Aliens; Communications Act; Federal Power Commission; Government Employees; National Railroad Adjustment Board; Procedure, 3-4.
1.	Examiner’s findings — Review — Overruling. — Administrative agency’s overruling of examiner’s findings based on demeanor of witness need not be supported by “very substantial preponderance” in evidence. Federal Communications Comm’n v. Allentown Broadcasting Corp., 358.
2.	Administrative Procedure Act — Deportation proceedings — Judicial review.—Provision of 1952 Immigration Act making deportation orders of Attorney General “final” does not make § 10 of Administrative Procedure Act inapplicable to deportation proceedings. Shaughnessy v. Pedreiro, 48.
3.	Administrative Procedure Act—Hearing provisions—1952 Immigration Act.—Hearing provisions of Administrative Procedure Act superseded by hearing provisions of 1952 Immigration Act. Marcello v. Bonds, 302.
ADMIRALTY.
1.	Towage — Negligence — Liability — Exemption. — Contract exempting towboat owner from all liability for own negligent towage invalid; provision that employees of towboat shall be employees of tow ineffective. Bisso v. Inland Waterways Corp., 85.
2.	Towage—Negligence—Liability of tow.—Owner of tow not liable to third party for negligence of employees of towing company, irrespective of towage contract. Boston Metals Co. v. The Winding Gulf, 122.
3.	Towage—Negligence—Contract.—Contract exempting tugboat company from liability did not authorize recovery by tugboat company for damage to own tugboat resulting from negligent pilotage by tugboat captain aboard tow. United States v. Nielson, 129.
ADVERTISING. See Judgments.
AGRICULTURE. See Constitutional Law, V, 1; Labor, 1.
977
978
INDEX.
ALIENS. See also Constitutional Law, IV; VII, 4; Procedure, 3-4.
1.	Deportation—Conviction of crime—Finality.—Conviction of alien for crime had not attained finality sufficient to support deportation order. Pino v. Landon, 901.
2.	Deportation—Conviction of crime—Hearing—Prejudgment.— Deportation under 1952 Immigration Act for prior conviction under narcotics law; 1952 Immigration Act supersedes hearing provisions of Administrative Procedure Act; claim of alien that case was prejudged unsupported. Marcello v. Bonds, 302.
3.	Deportation—Suspension—Hearing—Prejudgment.—Decision of Board of Immigration Appeals on application for suspension of deportation not “dictated” by Attorney General. Shaughnessy v. Accardi, 280.
4.	Deportation—Review of order—1952 Act.—Alien ordered deported under 1952 Immigration Act may obtain under § 10 of Administrative Procedure Act judicial review of order by action in federal district court for declaratory judgment and injunctive relief; habeas corpus not exclusive remedy. Shaughnessy v. Pedreiro, 48.
AMENDMENT OF RULES. See Supreme Court, 1.
ANTITRUST ACTS. See Judgments.
APPEAL. See Procedure, 1, 3.
APPEARANCE. See Virgin Islands.
ARGUMENTS. See Supreme Court, 2.
ARKANSAS. See Constitutional Law, VI.
ATTORNEY GENERAL. See Aliens, 2-3.
AWARD. See Constitutional Law, VI.
BANKS. See Constitutional Law, II.
BOARD OF IMMIGRATION APPEALS. See Aliens, 2-3.
BRIEFS. See Supreme Court, 1.
BROADCASTING. See Communications Act.
CANALS. See Labor, 2.
CARRIERS. See National Railroad Adjustment Board.
CARRY-BACK. See Taxation, 2-3.
CAUSE OF ACTION. See Judgments.
CERTIORARI. See Jurisdiction, I, 1, 3.
CHANGE OF VENUE. See Procedure, 2.
INDEX.
979
CIVIL SERVICE. See Government Employees.
COMMERCE. See Communications Act; Constitutional Law, V;
Criminal Law, 1; Labor.
COMMISSIONER OF IMMIGRATION. See Procedure, 4.
COMMITTEES OF CONGRESS. See Constitutional Law, III, 2-4.
COMMUNICATIONS ACT.
Radio stations—Licenses—Applications.—Mutually exclusive applications for radio broadcasting stations in different communities may be determined by Commission on basis of which community has the greater need. Federal Communications Comm’n v. Allentown Broadcasting Corp., 358.
COMMUNISM. See Constitutional Law, III, 3.
CONGRESS. See Constitutional Law, III, 2-4; V, 1; Virgin Islands.
CONSENT. See Federal Power Commission.
CONSERVATION. See Federal Power Commission.
CONSPIRACY. See Judgments.
CONSTITUTIONAL LAW. See also Government Employees;
Jurisdiction, I, 1-4.
I.	In General, p. 979.
II.	Federal-State Relations, p. 979.
III.	Self-Incrimination, p. 980.
IV.	Ex Post Facto Clause, p. 980.
V.	Commerce, p. 980.
VI	Full Faith and Credit, p. 980.
VII.	Due Process of Law, p. 981.
VIII.	Equal Protection of Laws, p. 981.
I.	In General.
Racial discrimination—Public schools—Decrees.—Racial discrimination in public schools unconstitutional; all contrary laws must yield; cases remanded to District Courts for formulation of decrees to effectuate decision. Brown v. Board of Education, 294.
II.	Federal-State Relations.
Supremacy clause—State taxation—Federal obligations.—Ohio property tax assessed against mutual savings bank and federal savings and loan association, measured without deduction for federal obligations owned, void. Society for Savings v. Bowers, 143.
980
INDEX.
CONSTITUTIONAL LAW—Continued.
III.	Self-Incrimination.
1.	Nature of privilege—Liberal construction.—Constitutional privilege against self-incrimination must be liberally construed. Quinn v. United States, 155.
2.	Contempt of Congress—Invoking privilege—Refusal to answer— Intent.—Witness before congressional committee adequately invoked privilege against self-incrimination ; insufficient proof of deliberate refusal to answer. Quinn v. United States, 155; Emspak v. United States, 190; Bart v. United States, 219.
3.	Contempt of Congress—Refusal to answer—Incriminatory questions.—Questions concerning membership in Communist Party and Communist-front organizations, and concerning associates, as within privilege against self-incrimination. Quinn v. United States, 155; Emspak v. United States, 190.
4.	Waiver of privilege.—Privilege against self-incrimination held not waived. Emspak v. United States, 190.
5.	State immunity statute—Waiver of immunity.—Conviction of contempt for refusal to testify before New York grand jury valid, in view of state immunity statute, irrespective of validity of waiver of immunity. Regan v. New York, 58.
IV.	Ex Post Facto Clause.
Scope of prohibition—Deportation.—Ex post facto clause of Constitution not applicable to deportation proceeding. Marcello v. Bonds, 302.
V.	Commerce.
1.	Federal regulation—Hawaiian exporter.—Operations of Hawaiian agricultural company, which exported virtually its entire output for sale in United States, subject to regulation by Congress under Commerce Clause. Maneja v. Waialua Agricultural Co., 254.
2.	State regulation—Interstate commerce—Natural gas.—State may not fix minimum price to be paid for natural gas, after production and gathering has ended, by a company which transports the gas for resale in interstate commerce; such sale and transportation subject to regulation by Federal Power Commission exclusively. Natural Gas Pipeline Co. v. Panoma Corp., 44.
VI.	Full Faith and Credit.
Workmen’s compensation—Damages.—Judgment for damages in Arkansas, where injury occurred, did not deny full faith and credit to Missouri Workmen’s Compensation Act, when there had been no final award under that Act. Carroll v. Lanza, 408.
INDEX.
981
CONSTITUTIONAL LAW—Continued.
VII.	Due Process of Law.
1.	Racial discrimination—Public schools—District of Columbia.— Racial discrimination in District of Columbia public schools denied due process; all contrary law must yield; case remanded to District Court for formulation of decree to effectuate decision. Bolling v. Sharpe, 294.
2.	Self-incrimination—State immunity statute—Waiver of immunity.—Conviction of contempt for refusal to testify before New York grand jury valid, in view of state immunity statute, irrespective of validity of waiver of immunity. Regan v. New York, 58.
3.	Contempt of court—Trial by same judge.—Conviction of grand jury witness for contempt by same state court judge who had acted as Michigan one-man grand jury invalid, though after open hearing. In re Murchison, 133.
4.	Deportation — Hearing — Independence of hearing officer.— Fact that special inquiry officer was subject to supervision and control of officials in Immigration Service charged with investigative and prosecutive functions did not vitiate deportation proceeding. Marcello v. Bonds, 302.
VIII. Equal Protection of Laws.
Racial discrimination—Public schools—Decrees.—Racial discrimination in public schools unconstitutional; all contrary laws must yield; cases remanded to District Courts for formulation of decrees to effectuate decision. Brown v. Board of Education, 294.
CONTEMPT. See Constitutional Law, III, 2-5; VII, 2-3.
CONTRACTS. See Admiralty, 1-3; Constitutional Law, VI.
COURTS. See Constitutional Law, I; VI; VII, 1, 3; VIII; Jurisdiction; Procedure; Virgin Islands.
CRIMINAL LAW. See also Aliens, 1-2; Constitutional Law, III;
IV; VII, 2-3; Jurisdiction, I, 2.
1.	Mann Act—Multiple offenses—Sentence.—Simultaneous transportation of two women was single offense and not subject to cumulative punishment under two counts. Bell v. United States, 81.
2.	Contempt of Congress—Elements of offense—Proof.—Convictions of contempt of Congress for refusal to answer questions of congressional committee set aside; claims of privilege against selfincrimination sustained; deliberate, intentional refusal to answer not proved. Quinn v. United States, 155; Emspak v. United States, 190; Bart v. United States, 219.
340907 0 - 55 - 41
982	INDEX.
DAMAGES. See Admiralty; Constitutional Law, VI; Judgments;
Jurisdiction, II.
DECLARATORY JUDGMENT. See Government Employees;
Procedure, 3.
DECREES. See Constitutional Law, I.
DEDUCTIONS. See Taxation, 1-3.
DELAWARE. See Constitutional Law, VIII.
DEPORTATION. See Aliens, 1-4; Constitutional Law, IV; VII, 4; Procedure, 3-4.
DESCHUTES RIVER. See Federal Power Commission.
DESERT LAND ACT. See Federal Power Commission.
DISCRIMINATION. See Constitutional Law, I; VII, 1; VIII;
Jurisdiction, 1,2.
DISTRICT OF COLUMBIA. See Constitutional Law, VII, 1.
DIVORCE. See Virgin Islands.
DOMICILE. See Virgin Islands.
DUE PROCESS. See Constitutional Law, VII.
EDUCATION. See Constitutional Law, I; VII, 1; VIII.
EMPLOYER AND EMPLOYEE. See Admiralty, 1-3; Constitutional Law, VI; Government Employees; Labor; Procedure, 2.
EMPLOYERS’ LIABILITY ACT. See Procedure, 2.
EQUAL PROTECTION OF LAWS. See Constitutional Law, VIII;
Jurisdiction, I, 2.
EQUITY. See Constitutional Law, I; Jurisdiction, II; Taxation, 1.
EVIDENCE. See Administrative Procedure, 1; Constitutional Law, III, 2.
EXAMINERS. See Administrative Procedure, 1; Constitutional
Law, VII, 4.
EXCESS PROFITS TAX. See Taxation, 2-3.
EXECUTIVE ORDERS. See Government Employees.
EXEMPTION. See Admiralty, 1-3; Labor, 1.
EX POST FACTO LAW. See Constitutional Law, IV.
FAIR LABOR STANDARDS ACT. See Labor.
FEDERAL COMMUNICATIONS COMMISSION. See Communications Act.
INDEX.
983
FEDERAL EMPLOYEES. See Government Employees.
FEDERAL EMPLOYERS’ LIABILITY ACT. See Procedure, 2.
FEDERAL POWER COMMISSION. See also Constitutional Law,
V, 2.
Authority—License—Reserved lands.—License to power company to construct, operate and maintain hydroelectric plant on reserved lands of United States on Deschutes River in Oregon, valid; consent of State not required; discretion of Commission; provision for conservation of anadromous fish. Federal Power Comm’n v. Oregon, 435.
FEDERAL SAVINGS AND LOAN ASSOCIATIONS. See Con-
stitutional Law, II.
FEES. See Procedure, 1 ; Public Utilities.
FIFTH AMENDMENT. See Constitutional Law, III, 1-4; VII,
1,	4.
FISH. See Federal Power Commission.
FORUM NON CONVENIENS. See Procedure, 2.
FOURTEENTH AMENDMENT. See Constitutional Law, VII;
VIII.
FULL FAITH AND CREDIT. See Constitutional Law, VI.
GAS. See Constitutional Law, V, 2.
GEORGIA. See Jurisdiction, I, 2.
GOVERNMENT BONDS. See Constitutional Law, II.
GOVERNMENT EMPLOYEES.
Loyalty program—Loyalty Review Board—Jurisdiction.—Employee’s removal and debarment from federal employment invalid; Loyalty Review Board without jurisdiction under Executive Order 9835 to review on own motion case of employee who had not been recommended for dismissal and which had not been referred to the Board by the employee or his agency ; expiration of term of employee’s appointment precluded reinstatement. Peters v. Hobby, 331.
GOVERNMENT RESERVATIONS. See Federal Power Commission.
GRAND JURY. See Constitutional Law, III, 5; VII, 2-3.
GULF INTRACOASTAL WATERWAY. See Labor, 2.
HABEAS CORPUS. See Procedure, 3.
HAWAII. See Constitutional Law, V, 1; Labor, 1.
984
INDEX.
HEARING. See Aliens, 2-3; Constitutional Law, III; VII, 2-4; Government Employees.
HOLDING COMPANY ACT. See Public Utilities.
HOURS. See Labor.
HUSBAND AND WIFE. See Virgin Islands.
HYDROELECTRIC POWER. See Federal Power Commission.
IMMIGRATION. See Aliens; Constitutional Law, VII, 4; Procedure, 3-4.
IMMUNITY. See Constitutional Law, II; III; VII, 2.
INDICTMENT. See Criminal Law, 1.
INJUNCTION. See Jurisdiction, II; Judgments; Procedure, 3.
INSULAR POSSESSIONS. See Virgin Islands.
INTERNAL REVENUE CODE. See Taxation.
INTERSTATE COMMERCE. See Communications Act; Constitutional Law, V; Criminal Law, 1; Labor.
IOWA. See Jurisdiction, I, 1.
JACKSON, J.—Memorial proceedings, p. xxvn.
JUDGES. See Constitutional Law, VII, 3.
JUDGMENTS. See also Aliens, 1; Constitutional Law, VI; Jurisdiction.
Res judicata—Cause of action—Parties.—Judgment in antitrust action for treble damages and injunctive relief against conspiracy to monopolize distribution of motion picture advertising material did not bar later action by same party against same and additional defendants based on similar injuries sustained after first judgment. Lawlor v. National Screen Service Corp., 322.
JURISDICTION. See also Constitutional Law, I; V; VI; VII;
VIII; Federal Power Commission; Government Employees; Procedure; Virgin Islands.
I.	Supreme Court, p. 984.
II.	District Courts, p. 985.
I.	Supreme Court.
1.	Review of state courts—Certiorari—Question which could not arise again.—Judgment affirming decision of state court vacated and writ of certiorari dismissed as improvidently granted where same constitutional question could not arise again; requirement of “special and important reasons” for granting certiorari. Rice v. Sioux City Memorial Park Cemetery, Inc., 70.
INDEX.
985
JURISDICTION—Continued.
2.	Review of state courts—Federal right—Time to raise question.— Case in which Georgia courts denied extraordinary motion for new trial based on claim of unconstitutional discrimination against Negroes in selection of jury panel remanded for reconsideration, though State Supreme Court held federal question was raised too late. Williams v. Georgia, 375.
3.	Review of state courts—Federal right—Adequate state ground.— It appearing that the decision of the state court might have rested on adequate state ground that a claim of federal constitutional right had not been properly presented, the writ of certiorari is dismissed as improvidently granted. Ellis v. Dixon, 458.
4.	Review of state courts—Scope of review—Effect of state statute.—This Court not bound by state court’s conclusion that state tax was imposed on depositors rather than on banks. Society for Savings v. Bowers, 143.
II.	District Courts.
Injunction—Mandamus—Pending decision in labor dispute.— Injury anticipated by railroad too speculative to warrant injunction or mandamus against National Railroad Adjustment Board prior to decision by Board on merits of labor dispute. Whitehouse v. Illinois Central R. Co., 366.
JURY. See Constitutional Law, III, 5; VII, 2-3; Jurisdiction, I, 2.
KANSAS. See Constitutional Law, VIII.
LABOR. See also Constitutional Law, VI; Jurisdiction, II.
1.	Fair Labor Standards Act—Coverage—Exemptions—Agriculture.—Application of Act to employees of Hawaiian agricultural company; agriculture exemption; sugar-processing exemption. Maneja v. Waialua Agricultural Co., 254.
2.	Fair Labor Standards Act—Coverage—“Engaged in commerce.”—Forty-hour week and overtime provisions of Act applicable to employees engaged in construction of lock and canal designed as alternate route to inadequate facility in Gulf Intracoastal Waterway. Mitchell v. Vollmer & Co., 427.
LANDS. See Federal Power Commission.
LEGISLATURES. See Virgin Islands.
LICENSES. See Communications Act; Federal Power Commission.
LOCKS. See Labor, 2.
LOSS. See Taxation, 1-3.
986
INDEX.
LOYALTY PROGRAM. See Government Employees.
MANDAMUS. See Jurisdiction, II.
MANN ACT. See Criminal Law, 1.
MASTER AND SERVANT. See Admiralty; Constitutional Law, VI; Government Employees; Labor; Procedure, 2.
MICHIGAN. See Constitutional Law, VII, 3.
MINIMUM PRICE. See Constitutional Law, V, 2.
MISSOURI. See Constitutional Law, VI.
MONOPOLY. See Judgments.
MOTION PICTURES. See Judgments.
MUTUAL SAVINGS BANKS. See Constitutional Law, II.
NATIONAL RAILROAD ADJUSTMENT BOARD.
Jurisdictional dispute—Notice to affected employee and other union—Injunction—Mandamus.—Before decision by National Railroad Adjustment Board on merits of labor dispute, injury anticipated by railroad from possible conflicting claims was too speculative to warrant injunction or mandamus requiring Board to serve notice on employee and union not parties to proceeding. Whitehouse v. Illinois Central R. Co., 366.
NATURAL GAS ACT. See Constitutional Law, V, 2.
NAVIGATION. See Admiralty.
NEGLIGENCE. See Admiralty; Constitutional Law, VI.
NEGROES. See Constitutional Law, I; VII, 1; VIII; Jurisdiction, 1,2.
NET OPERATING LOSS. See Taxation, 2.
NEW TRIAL. See Jurisdiction, I, 2.
NEW YORK. See Constitutional Law, III, 5; VII, 2.
NOTICE OF APPEAL. See Procedure, 1.
OHIO. See Constitutional Law, II.
OIL AND GAS. See Constitutional Law, V, 2.
OKLAHOMA. See Constitutional Law, V, 2.
ONE-MAN GRAND JURY. See Constitutional Law, VII, 3.
OPERATING LOSS. See Taxation, 2.
OREGON. See Federal Power Commission.
ORGANIC ACTS. See Virgin Islands.
INDEX.
987
OVERTIME. See Labor.
PARTIES. See Judgments; Procedure, 4.
PELTON PROJECT. See Federal Power Commission.
PENALTY. See Criminal Law, 1.
PERSONAL INJURIES. See Constitutional Law, VI; Procedure, 2.
PILOTAGE. See Admiralty, 3.
PIPELINES. See Constitutional Law, V, 2.
POWER COMMISSION. See Constitutional Law, V, 2; Federal Power Commission.
POWER COMPANIES. See Federal Power Commission.
PRICE. See Constitutional Law, V, 2.
PRIVILEGE. See Constitutional Law, III; VII, 2.
PROCEDURE. See also Administrative Procedure; Aliens, 2-3; Communications Act; Constitutional Law, III; IV; VI; VII; VIII; Jurisdiction; Virgin Islands.
1.	Appeal—Notice of appeal—Payment of fee.—Untimely payment of the fee required by 28 U. S. C. § 1917 did not vitiate notice of appeal which Clerk of District Court received within 30-day period prescribed by 28 U. S. C. § 2107. Parissi v. Telechron, Inc., 46.
2.	Change of venue—District courts—Discretion.—Discretion of district court under 28 U. S. C. § 1404 (a) to transfer civil action to another district is broader than under the doctrine of forum non conveniens; district court’s grant of motion to transfer suit under Federal Employers’ Liability Act sustained. Norwood v. Kirkpatrick, 29.
3.	Administrative Procedure Act—Deportation order—Judicial review.—Administrative order for deportation of alien reviewable by action in district court for declaratory judgment and injunctive relief; habeas corpus not exclusive remedy. Shaughnessy v. Pedreiro, 48.
4.	Parties—Review of deportation order.—Commissioner of Immigration and Naturalization not indispensable party to action in district court against District Director to review deportation order. Shaughnessy v. Pedreiro, 48.
PROCESSING. See Labor, 1.
PROPERTY OF UNITED STATES. See Federal Power Commission.
PUBLIC LANDS. See Federal Power Commission.
PUBLIC POLICY. See Admiralty, 1.
988
INDEX.
PUBLIC SCHOOLS. See Constitutional Law, I; VII, 1; VIII.
PUBLIC UTILITIES. See also Federal Power Commission.
Holding Company Act—Reorganization of subsidiary—Fees.— Amendment of opinion of the Court in this case in 348 U. S. 341. Securities & Exchange Comm’n v. Drexel & Co., 910.
RACIAL DISCRIMINATION. See Constitutional Law, I; VII, 1;
VIII; Jurisdiction, I, 2.
RADIO. See Communications Act.
RAILROADS. See Jurisdiction, II; Procedure, 2.
REORGANIZATION. See Public Utilities.
RESERVED LANDS. See Federal Power Commission.
RES JUDICATA. See Judgments.
RESTRAINT OF TRADE. See Judgments.
RETROACTIVE LAW. See Constitutional Law, IV.
ROBERTS, J.—Death of, p. vn.
RULES. See Supreme Court, 1.
SALE. See Constitutional Law, V, 2.
SAVINGS AND LOAN ASSOCIATIONS. See Constitutional Law, II.
SCHOOLS. See Constitutional Law, I; VII, 1; VIII.
SECURITIES. See Constitutional Law, II.
SELF-INCRIMINATION. See Constitutional Law, III; VII, 2.
SENTENCE. See Criminal Law, 1.
SHIPS. See Admiralty.
SOUTH CAROLINA. See Constitutional Law, VIII.
SUGAR INDUSTRY. See Constitutional Law, V; Labor, 1.
SUPREMACY CLAUSE. See Constitutional Law, II.
SUPREME COURT. See also Jurisdiction, I.
1.	Rules—Briefs on the merits—Time for filing.—Amendment of Rule 41, par. 1, of the Rules of this Court. See p. 973.
2.	Arguments.—Beginning next term, Court will not hear arguments or hold open sessions on Friday. See p. 971.
3.	Vinson, C. J.—Proceedings in memory of, p. ix.
4.	Jackson, J.—Proceedings in memory of, p. xxvn.
5.	Roberts, J.—Death of, p. vn.
INDEX.
989
TAXATION. See also Constitutional Law, II; Jurisdiction, I, 4.
1.	Federal taxation—Deductions—Equitable considerations.—Question of what deductions are permissible under the Internal Revenue Code is not controlled by general equitable considerations. United States v. Olympic Radio & Television, Inc., 232; Lewyt Corp. v. Commissioner, 237.
2.	Federal taxation — Loss carry-back — Computation. — Under I. R. C. § 122 (d)(6), accrual basis taxpayer computing net operating loss cannot deduct excess profits taxes paid in year but accrued in earlier year. United States v. Olympic Radio & Television, Inc., 232; Lewyt Corp. v. Commissioner, 237.
3.	Federal taxation—Deductions—Computation.—Under I. R. C. §122 (b)(1) and (d)(6), amount of 1944 net income to be offset against carry-back from 1946 is to be determined in accord with normal principles of accrual accounting. Lewyt Corp. v. Commissioner, 237.
TERRITORIES. See Virgin Islands.
TESTIMONY. See Constitutional Law, III; VII, 2-3.
TORTS. See Admiralty; Constitutional Law, VI; Judgments;
Procedure, 2.
TOWAGE. See Admiralty, 1-3.
TRANSFER OF ACTIONS. See Procedure, 2.
TRANSPORTATION. See Admiralty; Constitutional Law, V, 2;
Criminal Law, 1; National Railroad Adjustment Board; Procedure, 2.
TRIAL. See Jurisdiction, I, 2.
TUGS. See Admiralty, 1-3.
VENUE. See Procedure, 2.
VINSON, C. J.—Memorial proceedings, p. ix.
VIRGINIA. See Constitutional Law, VIII.
VIRGIN ISLANDS.
Legislative Assembly—Divorce law—Validity.—Virgin Islands divorce law, §9 (a), vesting jurisdiction in district court to grant divorce regardless of domicile, where plaintiff is within district six weeks and defendant enters general appearance, invalid as not within power of Legislative Assembly; law not on subject of “local application” within meaning of Organic Act. Granville-Smith v. Granville-Smith, 1.
WAGES. See Labor.
WAIVER. See Constitutional Law, III, 4; VII, 2.
990
INDEX.
WATER POWER. See Federal Power Commission.
WHITE-SLAVE TRAFFIC. See Criminal Law, 1.
WITNESSES. See Constitutional Law, HI; VII, 2-3.
WORDS.
1.	“Accrued.”—Internal Revenue Code. United States v. Olympic Radio & Television, Inc., 232; Lewyt Corp. v. Commissioner, 237.
2.	“Clearly erroneous.”—Shaughnessy v. Accardi, 280.
3.	“Dictation.”—Shaughnessy v. Accardi, 280.
4.	“Engaged in commerce.”—Fair Labor Standards Act. Mitchell v. Vollmer & Co., 427.
5.	“Expressly.”—Administrative Procedure Act. Shaughnessy v. Pedreiro, 48; Marcello v. Bonds, 302.
6.	“Final.”—1952 Immigration Act. Shaughnessy v. Pedreiro, 48.
7.	“Imposed.”—Internal Revenue Code, §122 (d)(6). Lewyt Corp. v. Commissioner, 237.
8.	“In commerce.”—Fair Labor Standards Act. Mitchell v. Vollmer & Co., 427.
9.	“Liable for any damage.”—Contract for towage. United States v. Nielson, 129.
10.	“Local application.”—Organic Act of Virgin Islands. Granville-Smith v. Granville-Smith, 1.
11.	“Paid or accrued.”—Internal Revenue Code. United States v. Olympic Radio & Television, Inc., 232.
12.	“Processing of sugarcane into sugar.”—Fair Labor Standards Act. Maneja v. Waialua Agricultural Co., 254.
13.	“Public lands.”—Federal Power Comm’n v. Oregon, 435.
14.	“Reservations.”—Federal Power Comm’n v. Oregon, 435.
15.	“Special and important reasons” for grant of certiorari.—Rule 19 of Rules of this Court. Rice v. Sioux City Memorial Park Cemetery, 70.
WORKMEN’S COMPENSATION. See Constitutional Law, VI.
U. S. GOVERNMENT PRINTING OFFICE : 1955 O - 340907