UNITED STATES REPORTS VOLUME 354 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1956 June 10 Through July 11, 1957 (End of Term) WALTER WYATT REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1957 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $5 (Buckram) JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. EARL WARREN, Chief Justice. HUGO L. BLACK, Associate Justice. FELIX FRANKFURTER, Associate Justice. WILLIAM O. DOUGLAS, Associate Justice. HAROLD H. BURTON, Associate Justice. TOM C. CLARK, Associate Justice. JOHN M. HARLAN, Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. CHARLES E. WHITTAKER, Associate Justice. RETIRED STANLEY REED, Associate Justice.* SHERMAN MINTON, Associate Justice. HERBERT BROWNELL, Jr., Attorney General. J. LEE RANKIN, Solicitor General. JOHN T. FEY, Clerk. WALTER WYATT, Reporter of Decisions. T. PERRY LIPPITT, Marshal. HELEN NEWMAN, Librarian. *By order entered July 8, 1957, Mr. Justice Reed (retired) was designated and assigned to perform judicial duties in the United States Court of Claims. See post, p. 944. in 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, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Earl Warren, Chief Justice.* For the Fifth Circuit, Hugo L. Black, Associate Justice. For the Sixth Circuit, Harold H. Burton, Associate Justice.* For the Seventh Circuit, Tom C. Clark, Associate Justice.* For the Eighth Circuit, Charles E. Whittaker, Associate Justice. For the Ninth Circuit, William O. Douglas, Associate Justice.* For the Tenth Circuit, Charles E. Whittaker, Associate Justice. March 25, 1957. (For next previous allotment, see 352 U. S., p. v.) *By order of June 24, 1957, the Court temporarily assigned Mr. Justice Black to the Ninth and District of Columbia Circuits, Mr. Justice Frankfurter to the Second and Seventh Circuits, and Mr. Justice Brennan to the Fourth and Sixth Circuits. See post, p. 934. IV TABLE OF CASES REPORTED 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 Abramowitz v. Brucker..................................... 920 Achilli v. United States.................................. 943 Adams Newark Theater Co. v. Newark........................ 931 Administrator. See name of administrator. Aetna Casualty & Surety Co., Lester v..................... 923 Akers v. California....................................... 927 Alabama, Blackburn v...................................... 393 Albert v. Nash............................................ 941 Alberts v. California..................................... 476 Alexander v. United States................................ 940 Alphen, Cabot v........................................... 907 Ambroselli v. Mailler..................................... 919 American Box & Paper Co., Pressmen Union v................ 937 Anderson, Retail Clerks’ Union v.......................... 937 Anglin v. United States................................... 912 Apfelbaum v. New York..................................... 924 Arizona v. California..................................... 918 Arnold v. Panhandle & S. F. R. Co......................... 927 Aspen Pictures, Inc., v. Oceanic S. S. Co................. 926 Association. For labor unions, see name of trade. Atkins v. United States................................... 943 Atlanta Printing Pressmen Union v. Parks.................. 937 Attorney General, Perez v................................. 934 Attorney General, Sweezy v................................ 234 Atwood v. Lydick.......................................... 927 Auditor of Public Accounts of Illinois v. Doud............ 457 Audubon Homes, Inc., Spokane Trades Council v............. 942 Austin, Bryan v........................................... 933 Baltimore & Ohio R. Co. v. Jackson........................ 943 Bar Association of California, Königsberg v............... 927 Bar Association of Memphis and Shelby County, Vick v.... 944 Barclay Home Products v. Federal Trade Comm’n............. 942 v VI TABLE OF CASES REPORTED. Page Barenblatt v. United States................................. 930 Barkey Importing Co. v. Iravani Mottaghi.................... 939 Beneficial Industrial Loan Corp. v. Forgay.................. 922 Ben Hur Coal Co. v. Wells................................... 910 Berryhill v. Pacific Far East Line.......................... 938 Beverly Hills Corp., Carr v................................. 917 Blackburn v. Alabama........................................ 393 Block Drug Co. v. University of Illinois Foundation......... 922 Bondified Systems, Morey v.................................. 457 Bonds v. Ellis.............................................. 937 Boyd, Rabang v.............................................. 944 Brigmon v. Pepersack........................................ 927 Brindley, Massey v.......................................... 909 British Transport Comm’n v. United States................... 129 Brodson v. United States.................................... 911 Brody v. United States...................................... 923 Brotherhood. For labor unions, see name of trade. Brown, Kingsley Books, Inc., v......................... 436 Brown v. United States...................................... 907 Brownell, Perez v........................................... 934 Brucker, Abramowitz v....................................... 920 Bruinsma v. Ellis........................................... 927 Brule v. United States...................................... 912 Bryan v. Austin............................................. 933 Bryan v. New York........................................... 912 Buckeye Cellulose Corp. v. Warehouse Workers................ 910 Buckeye Cotton Oil Co. v. Warehouse Workers................. 910 Building Trades Council v. Audubon Homes, Inc............... 942 Burchfield, Markham v....................................... 944 Burke v. District Court..................................... 924 Bush, Orleans Parish School Board v......................... 921 Cabot v. Alphen............................................. 907 Calamaro, United States v................................... 351 Cali, United States v................................... 932,945 California, Akers v......................................... 927 California, Alberts v....................................... 476 California, Arizona v....................................... 918 California, Crooker v....................................... 908 California, Hodge v......................................... 942 California, Lambert v....................................... 936 California, Morgan v........................................ 913 California, O’Connor v...................................... 924 California Adult Authority, Zambrano v...................... 925 TABLE OF CASES REPORTED. vn Page California State Bar, Königsberg v.......................... 927 Campbell v. South Carolina.................................. 914 Canaday Cooler Co. v. United States......................... 909 Carasaniti, Lehmann v....................................... 944 Carpinteria Lemon Assn. v. Labor Board...................... 909 Carr v. Beverly Hills Corp.................................. 917 Car roll v. United States................................... 394 Carson, Lehmann v........................................... 944 Catalanotte, Mulcahey v..................................... 943 Cathcart v. United States................................... 924 Cavell, Helwig v............................................ 912 Cavell, Szocki v............................................ 912 Cavell, Woods v............................................. 911 Cepero v. Pan American World Airways..................... 927, 944 Charles, United Press Associations v........................ 925 Chesapeake & 0. R. Co., Ringhiser v......................... 901 Chessman v. Teets........................................... 156 Cicenia v. Lagay............................................ 908 Circuit Court Judge, Hicks v................................ 935 City. See also name of city. City Manager of Norfolk, Verhaagen v..................... 945 Civil Aeronautics Board v. Hermann.......................... 927 Clark v. Ellis.............................................. 913 Clemmer, Rice v............................................. 924 Cleveland Electric Illuminating Co., Niepert v.............. 909 Cleveland Electric Illuminating Co. v. United States..... 917 Coles v. Smither & Co....................................... 914 Collector, Fidelity-Philadelphia Trust Co. v................ 921 Collector, Woodlaw v........................................ 942 Commissioner, Smoot Sand & Gravel Corp, v............... 922,943 Commissioner v. Sullivan.................................... 920 Commissioner, Tank Truck Rentals, Inc., v................... 920 Commissioner, 241 Corporation v............................. 938 Commissioner, Wexler v...................................... 938 Commissioner of Internal Revenue. See Commissioner. Commonwealth. See name of Commonwealth. Construction Trades Council v. Audubon Homes, Inc........ 942 Continental Foundry & Machine Co., Fink v................... 938 Cornelious v. New York...................................... 937 Corporation Comm’n of Oklahoma, Gulf Oil Corp, v......... 916 Corporation Counsel, Kingsley Books, Inc., v................ 436 County. See name of county. VIII TABLE OF CASES REPORTED. Page Court of Appeals of New York, Covey v....................... 919 Covert, Reid v................................................ 1 Covey v. Court of Appeals of New York....................... 919 Covey v. Town of Somers..................................... 916 Creech v. New York.......................................... 940 Croix, International Derrick Co. v.......................... 910 Crooker v. California....................................... 908 Culver v. New Jersey........................................ 925 Curcio v. United States..................................... 118 Curtis v. Kelly............................................. 918 Curtis v. United States..................................... 926 Cwiklinski v. New Jersey.................................... 911 Daniels v. United States.................................... 939 Davis v. Pepersack.......................................... 941 Davis v. United States...................................... 915 Delaware, L. & W. R. Co., Miller v.......................... 923 Delbridge v. United States.................................. 906 Denckla, Hanson v........................................... 919 Derrick & Equipment Co. v. Croix............................ 910 Director of Immigration. See Immigration Director. Director of Motor Vehicles, Gundaker Central Motors v..... 933 District Court, Burke v..................................... 924 District Director of Immigration. See Immigration Director. District Director of Internal Revenue, Libson Shops v..... 943 District Judge. See U. S. District Judge. Dooley v. Virginia.......................................... 915 Dopkowski v. Illinois....................................... 925 Doud, Morey v......................................... 457 Dowling v. Maryland......................................... 919 Downer Corp., Union Paving Co. v............................ 914 Dresser Equipment Co. v. Croix.............................. 910 Dulles, Lee You Fee v...................................... 908 Dulles, Nishikawa v........................................ 935 Dulles, Service v.......................................... 363 Dulles, Trop v............................................. 935 Eagle Lion Films, Inc., v. Szekely.......................... 922 Earle, Woodlaw v............................................ 942 Edwards, United States v................................ 932, 945 Edwards v. Velvac, Inc...................................... 942 Electrical Workers, Signal-Stat Corp, v..................... 911 Ellis, Bonds v.............................................. 937 Ellis, Bruinsma v........................................... 927 Ellis, Clark v.............................................. 913 Ellis, Gray v............................................... 940 TABLE OF CASES REPORTED. IX Page Ellis, Lyon v.............................................. 913 Eskridge v. Schneckloth.................................... 936 Eubanks v. Louisiana....................................... 934 Farley v. United States.................................... 521 Faubert v. Groat........................................... 943 Federal Trade Comm’n, Barclay Home Products v.............. 942 Federal Trade Comm’n, Tuttle v............................. 925 Fee v. Dulles.............................................. 908 Fidelity-Philadelphia Trust Co. v. Smith................... 921 Fink v. Continental Foundry Co...........:................. 938 Flaxer v. United States.................................... 929 Fletcher v. Pennsylvania................................... 913 Florida, Thomas v.......................................... 925 Forgay, Personal Industrial Loan Corp, v................... 922 Fowler v. Wilkinson........................................ 944 French v. Massachusetts.................................... 924 Fried v. United States..................................... 922 Galland-Henning Mfg. Co., Steelworkers v................... 906 Garmon, San Diego Bldg. Trades Council v................... 919 Gassert, Gundaker Central Motors v...................... 933 General Ins. Co., Western Fire & Casualty Co. v............ 909 Gentner v. Martin.......................................... 912 Gershenhorn v. Stutz Enterprises........................... 926 Girard v. Wilson........................................ 524, 928 Gordon v. United States.................................... 921 Gray v. Ellis.............................................. 940 Gray v. New York, N. H. & H. R. Co......................... 943 Gray, Pearson v........................................ 907,913 Gray v. United States...................................... 915 Green v. Green............................................. 937 Green v. United States..................................... 935 Gregory, Hill v............................................ 938 Groat, Faubert v........................................... 943 Gulf Oil Corp. v. Corporation Comm’n of Oklahoma........... 916 Gundaker Central Motors v. Gassert......................... 933 Hamm v. Kentucky........................................... 924 Hanson v. Denckla.......................................... 919 Hanson, Lewis v............................................ 920 Harris, United States v................................ 932,945 Harry C. Daniels & Co. v. United States.................... 939 Harvey v. Smyth............................................ 910 Haskell v. United States................................... 921 Hatch, United States v................................. 932,945 Hayman v. Heritage......................................... 919 X TABLE OF CASES REPORTED. Page Heinze, Morgan v............................................ 924 Heinze, York v.............................................. 925 Helwig v. Cavell............................................ 912 Henn, Lake Tankers Corp, v.......................... 147,945 Heritage, Hayman v.......................................... 919 Hermann, Civil Aeronautics Board v........................ 927 Hicks v. Holland............................................ 935 Hill v. Gregory............................................. 938 Hodge v. California......................................... 942 Hohensee v. United States................................... 927 Holland, Hicks v............................................ 935 Hoover Motor Express Co. v. United States................ 920 Housing Authority of Nashville, Starr v..................... 916 Howarth v. Howarth.......................................... 926 Hunt, United States v................................... 932,945 Hunt Tool Co. v. Lawrence................................... 910 Illinois, Dopkowski v....................................... 925 Illinois, Touhy v........................................... 943 Illinois Auditor of Public Accounts v. Doud................. 457 Illinois University Foundation, Block Drug Co. v............ 922 Immigration and Naturalization Service. See Immigration Director; Immigration Officer. Immigration Director v. Catalanotte......................... 943 Immigration Director, Rabang v.............................. 944 Immigration Officer, Carasaniti v........................... 944 Immigration Officer, Carson v.............................. 944 Immigration Officer, Rowoldt v.............................. 934 Indiana, Martin v........................................... 927 Internal Revenue. See Collector; Commissioner; District Director of Internal Revenue. International Derrick Co. v. Croix.......................... 910 International Union. See name of trade. Iravani Mottaghi, Barkey Importing Co. v.................... 939 Irons, Inc., v. United States............................... 923 Jackson, Baltimore & Ohio R. Co. v.......................... 943 Jackson v. Taylor........................................... 944 Johnson v. United States.................................... 940 Jordan v. Smyth............................................. 937 Kallos v. New York.......................................... 915 Kansas City Star Co. v. United States....................... 923 Kaplan v. United States..................................... 941 Kelly, Curtis v............................................. 918 Kennedy v. New York......................................... 924 Kentucky, Hamm v............................................ 924 TABLE OF CASES REPORTED. XI Page Kimes v. United States...................................... 912 Kingsley Books, Inc., v. Brown.............................. 436 Kinsella v. Krueger........................................... 1 Kitchin v. Missouri......................................... 914 Koehler, Libson Shops, Inc., v.............................. 943 Königsberg v. State Bar of California....................... 927 Korpan, United States v................................. 271,945 Krueger, Kinsella v........................................... 1 Labor Board, Carpinteria Lemon Assn, v...................... 909 Labor Board, Office Employes Union v........................ 928 Labor Union. See name of trade. Lagay, Cicenia v............................................ 908 Lake Tankers Corp. v. Henn.............................. 147,945 Lambert v. California....................................... 936 Landell v. Northern P. R. Co................................ 928 Lawrence, Hunt Tool Co. v................................... 910 Laycock v. Mathes........................................... 919 Lebron v. United States................................. 911,944 Lee You Fee v. Dulles....................................... 908 Legg v. Teneycke............................................ 915 Lehmann v. U. S. ex rel. Carasaniti......................... 944 Lehmann v. U. S. ex rel. Carson............................. 944 Lelies v. United States..................................... 944 Lentz, Reynolds v........................................... 939 Lester v. Aetna Casualty & Surety Co........................ 923 Lewis v. Hanson............................................. 920 Libson Shops, Inc., v. Koehler.............................. 943 Local Union. See name of trade. Louisiana, Eubanks v........................................ 934 Louisiana, Sheffield v.................................. 915,943 Louisiana, LTnited States v................................. 515 Louisiana Public Service Comm’n, S.E.C.v.................... 928 Luciano v. Wilkinson.................................... 924,944 Lumbermen’s Mutual Casualty Co. v. Wright................... 939 Lydick, Atwood v............................................ 927 Lyon v. Ellis............................................... 913 Mac. See Me. Machine Workers, Signal-Stat Corp, v........................ 911 Mack, United States v................................... 932,945 Mailler, Ambroselli v....................................... 919 Mallory v. United States.................................... 449 Markham v. Burchfield....................................... 944 Martin, Gentner v........................................... 912 Martin v. Indiana........................................... 927 XII TABLE OF CASES REPORTED. Page Martinez v. United States............................... 926 Maryland, Dowling v..................................... 919 Maryland, Medley v....................................... 919 Maryland, Walker v....................................... 907 Maryland, Young v........................................ 913 Massachusetts, French v.................................. 924 Massengale v. United States.......................... 909,936 Massey v. Brindley....................................... 909 Mathes, Laycock v........................................ 919 Matusow v. United States................................. 942 McAllister v. Pinto...................................... 925 McBride v. Toledo Terminal R. Co......................... 517 McCargo v. Smyth......................................... 910 McConnon v. United States................................ 922 McGee, Nichols v......................................... 940 McGowen v. Texas......................................... 936 Medley v. Maryland....................................... 919 Memphis and Shelby County Bar Assn., Vick v.............. 944 Miller v. Delaware, L. & W. R. Co..................... 923 Mineral Board, Sun Oil Co. v............................. 943 Minor v. United States................................... 915 Missouri, Kitchin v...................................... 914 Moccio v. United States.................................. 913 Monolith Portland Co. v. Reconstruction Finance Corp.... 921 Morey v. Doud............................................ 457 Morgan v. California..................................... 913 Morgan v. Heinze......................................... 924 Morgan v. Ohio........................................... 929 Mottaghi, Bar key Importing Co. v..................... 939 Moushon v.. National Garages, Inc........................ 905 Mulcahey v. Catalanotte.................................. 943 Nash, Albert v........................................... 941 Nashville Housing Authority, Starr v..................... 916 National Garages, Inc., Moushon v........................ 905 National Labor Relations Board. See Labor Board. Nevada, Sefton v......................................... 914 Newark, Adams Newark Theater Co. v...................... 931 New Hampshire, Sweezy v.................................. 234 New Jersey, Culver v..................................... 925 New Jersey, Cwiklinski v................................. 911 New Jersey Motor Vehicles Director, Gundaker Motors v.... 933 New Mexico, Texas v...................................... 918 New York, Apfelbaum v.................................... 924 New York, Bryan v........................................ 912 TABLE OF CASES REPORTED. XIII Page New York, Cornelious v................................... 937 New York, Creech v....................................... 940 New York, Kallos v....................................... 915 New York, Kennedy v...................................... 924 New York, Panariello v................................... 907 New York, Peters v....................................... 912 New York, Stanley v...................................... 917 New York, Strauch v...................................... 911 New York, Wager v........................................ 913 New York, Weinberger v.................................. 913 New York Court of Appeals, Covey v.......................... 919 New York, N. H. & H. R. Co., Gray v......................... 943 New York Parole Board, Ambroselli v......................... 919 Nichols v. McGee............................................ 940 Niepert v. Cleveland Electric Co............................ 909 Nirenberg v. United States.................................. 941 Nishikawa v. Dulles......................................... 935 Norfolk City Manager, Verhaagen v........................... 945 North Carolina, Stokes v.................................... 941 Northern P. R. Co., Landell v............................... 928 Oceanic S. S. Co., Aspen Pictures, Inc., v.................. 926 O’Connor v. California...................................... 924 Office Employes Union v. Labor Board........................ 928 Officer in Charge. See Immigration Officer. Ohio, Morgan v............................................ 929 Ohio, Popik v............................................... 927 Ohio, Raley v............................................... 929 Oklahoma Corporation Comm’n, Gulf Oil Corp, v............... 916 Ollhoff, United States v................................ 932,945 Opelika, West Point Wholesale Grocery Co. v................. 390 Orangeburg County School District No. 7, Bryan v............ 933 Orleans Parish School Board v. Bush......................... 921 Pacific Far East Line, Berryhill v.......................... 938 Pan American World Airways, Cepero v.................... 927,944 Panariello v. New York...................................... 907 Panhandle & S. F. R. Co., Arnold v.......................... 927 Parks, Atlanta Printing Pressmen Union v.................... 937 Pearson v. Gray......................................... 907,913 Pen, Eagle Lion Films, Inc., v.............................. 922 Pennsylvania, Fletcher v.................................... 913 Pennsylvania, Thompson v.................................... 923 Pepersack, Brigmon v........................................ 927 Pepersack, Davis v.......................................... 941 Perez v. Brownell........................................... 934 XIV TABLE OF CASES REPORTED. Page Perez v. United States..................................... 941 Perfetto, Rowoldt v........................................ 934 Personal Industrial Loan Corp. v. Forgay................... 922 Peters v. New York......................................... 912 Pinto, McAllister v........................................ 925 Popik v. Ohio.............................................. 927 Postma v. United States.................................... 922 Pressmen & Assistants Union v. Parks...................... 937 Printing Pressmen Union v. Parks........................... 937 Processing Workers, Buckeye Cotton Oil Co. v............... 910 Public Service Comm’n, S. E. C. v.......................... 928 Quon v. United States...................................... 913 Rabang v. Boyd............................................. 944 Radio & Machine Workers, Signal-Stat Corp, v............... 911 Raley v. Ohio.............................................. 929 Randolph, Shelton v........................................ 925 Reconstruction Finance Corp., Monolith Portland Co. v.... 921 Reeder, Verhaagen v........................................ 945 Reid v. Covert............................................... 1 Retail Clerks’ Union v. Anderson........................... 937 Retail Store Union, Buckeye Cotton Oil Co. v............... 910 Reynolds v. Lentz.......................................... 939 Rice v. Clemmer............................................ 924 Richmond v. United States.................................. 298 Ringhiser v. Chesapeake & O. R. Co......................... 901 Roth v. United States...................................... 476 Rowoldt v. Perfetto........................................ 934 Russell v. Texas Co........................................ 938 Sacher v. United States.................................... 930 Sanchez v. Swenson................................'........ 919 San Diego Bldg. Trades Council v. Garmon................... 919 Sauer v. United States..................................... 940 Schneckloth, Eskridge v.................................... 936 Schneckloth, Smith v....................................... 939 Schneiderman v. United States.............................. 298 School Board of Orleans Parish v. Bush..................... 921 School District No. 7, Orangeburg County, Bryan v........ 933 Schultz v. United States................................... 921 Scott v. Segarra-Serra..................................... 940 Sears, Roebuck & Co., Talley v............................. 943 S. E. C. Corp. v. United States............................ 909 Secretary of Defense v. Girard......................... 524,928 Secretary of State, Lee You Fee v.......................... 908 Secretary of State, Nishikawa v............................ 935 TABLE OF CASES REPORTED. xv Page Secretary of State, Service v................................ 363 Secretary of State, Trop v................................... 935 Securities & Exchange Comm’n v. Public Service Comm’n.... 928 Sees v. United States........................................ 923 Sefton v. Nevada............................................. 914 Segarra-Serra, Scott v....................................... 940 Service v. Dulles............................................ 363 Sheffield v. Louisiana................................... 915,943 Shelby County Bar Assn., Vick v.............................. 944 Shelton v. Randolph.......................................... 925 Sheridan v. United States.................................... 943 Sherman v. United States..................................... 911 Signal-Stat Corp. v. Electrical Workers...................... 911 Smith, Fidelity-Philadelphia Trust Co. v..................... 921 Smith v. Schneckloth......................................... 939 Smith v. Sperling............................................. 91 Smith v. United States....................................... 944 Smither & Co., Coles v........,........................... 914 Smoot Sand & Gravel Corp. v. Commissioner................ 922,943 Smyth, Harvey v.............................................. 910 Smyth, Jordan v.............................................. 937 Somers, Covey v.............................................. 916 South Carolina, Campbell v................................... 914 Sperling, Smith v............................................. 91 Spokane Building Trades Council v. Audubon Homes, Inc.... 942 Stanley v. New York.......................................... 917 Stanley v. Stanley........................................... 910 Starr v. Nashville Housing Authority......................... 916 Starr Coal Co., Ben Hur Coal Co. v........................... 910 State. See also name of State. State Bar of California, Königsberg v........................ 927 State Mineral Board, Sun Oil Co. v........................... 943 Steelworkers v. Galland-Henning Mfg. Co...................... 906 Stokes v. North Carolina..................................... 941 Stoneking v. United States................................... 941 Strauch v. New York.......................................... 911 Stutz Enterprises, Gershenhorn v.......................... 926 Sullivan, Commissioner v..................................... 920 Sun Oil Co. v. State Mineral Board........................... 943 Superintendent of School Dist. No. 7, Bryan v................ 933 Swanson v. Traer......................................... 114,936 Sweezy v. New Hampshire...................................... 234 Swenson, Sanchez v........................................... 919 Szekely, Eagle Lion Films, Inc., v........................... 922 XVI TABLE OF CASES REPORTED. Page Szocki v. Cavell............................................ 912 Talley v. Sears, Roebuck & Co............................... 943 Tank Truck Rentals, Inc., v. Commissioner................... 920 Taylor, Jackson v........................................... 944 Teamsters Union v. Vogt, Inc............................ 284,945 Teets, Chessman v........................................... 156 Teneycke, Legg v............................................ 915 Texas, McGowen v............................................ 936 Texas v. New Mexico......................................... 918 Texas Co., Russell v........................................ 938 Theard v. United States..................................... 278 Thomas v. Florida........................................... 925 Thompson v. Pennsylvania.................................... 923 Toledo Terminal R. Co., McBride v........................... 517 Touhy v. Illinois........................................... 943 Town. See name of town. Trade Comm’n. See Federal Trade Comm’n. Traer, Swanson v........................................ 114,936 Trop v. Dulles.............................................. 935 Turner v. United States..................................... 926 Tuttle v. Federal Trade Comm’n.............................. 925 241 Corporation v. Commissioner............................. 938 Union. See name of trade. Union Paving Co. v. Downer Corp............................. 914 United. For labor unions, see name of trade. United Press Associations v. Charles........................ 925 United States. See also U. S. ex rel. United States, Achilli v................................... 943 United States, Alexander v................................. 940 United States, Anglin v.................................... 912 United States, Atkins v.................................... 943 United States, Barenblatt v.............................. 930 United States, British Transport Comm’n v................. 129 United States, Brodson v................................... 911 United States, Brody v...................................... 923 United States, Brown v...................................... 907 United States, Brule v...................................... 912 United States v. Calamaro................................... 351 United States v. Cali................................... 932,945 United States, Canaday Cooler Co. v......................... 909 United States, Carroll v................................... 394 United States, Cathcart v.................................. 924 United States, Cleveland Electric Co. v..................... 917 United States, Curcio v..................................... 118 TABLE OF CASES REPORTED. xvn Page United States, Curtis v........................................ 926 United States, Daniels v....................................... 939 United States, Davis v......................................... 915 United States, Delbridge v..................................... 906 United States v. Edwards................................... 932,945 United States, Farley v........................................ 521 United States, Flaxer v........................................ 929 United States, Fried v....................................... 922 United States, Gordon v........................................ 921 United States, Gray v.......................................... 915 United States, Green v......................................... 935 United States v. Harris.................................... 932,945 United States, Haskell v....................................... 921 United States v. Hatch..................................... 932,945 United States, Hohensee v...................................... 927 United States, Hoover Motor Express Co. v...................... 920 United States v. Hunt...................................... 932,945 United States, Irons, Inc., v.................................. 923 United States, Johnson v....................................... 940 United States, Kansas City Star Co. v.......................... 923 United States, Kaplan v........................................ 941 United States, Kimes v......................................... 912 United States v. Korpan.................................... 271,945 United States, Lebrón v.................................... 911,944 United States, Lelies v........................................ 944 United States v. Louisiana..................................... 515 United States v. Mack...................................... 932,945 United States, Mallory v....................................... 449 United States, Martinez v...................................... 926 United States, Massengale v................................ 909, 936 United States, Matusow v....................................... 942 United States, McConnon v...................................... 922 United States, Minor v......................................... 915 United States, Moccio v........................................ 913 United States, Nirenberg v................................... 941 United States v. Ollhoff................................... 932,945 United States, Perez v......................................... 941 United States, Postma v........................................ 922 United States, Quon v.......................................... 913 United States, Richmond v................................... 298 United States, Roth v.......................................... 476 United States, Sacher v........................................ 930 United States, Sauer v......................................... 940 United States, Schneiderman v.................................. 298 430336 0—57-----2 XVIII TABLE OF CASES REPORTED. Page United States, Schultz v..................................... 921 United States, S. E. C. Corp, v............................. 909 United States, Sees v........................................ 923 United States, Sheridan v.................................... 943 United States, Sherman v..................................... 911 United States, Smith v....................................... 944 United States, Stoneking v................................... 941 United States, Theard v...................................... 278 United States, Turner v...................................... 926 United States, V. E. Irons, Inc., v.......................... 923 United States, Walker v...................................... 939 United States, Washington v.................................. 914 United States, Watkins v..................................... 178 United States, Wellman v..................................... 931 United States, Yates v................................... 298,907 U. S. District Judge, Laycock v............................ 919 U. S. ex rel. Carasaniti, Lehmann v.......................... 944 U. S. ex rel. Carson, Lehmann v............................ 944 University of Illinois Foundation, Block Drug Co. v........ 922 Vanderbilt v. Vanderbilt..................................... 416 V. E. Irons, Inc., v. United States........................ 923 Velvac, Inc., Edwards v...................................... 942 Verhaagen v. Reeder.......................................... 945 Vick v. Memphis and Shelby County Bar Assn................... 944 Virginia, Dooley v........................................... 915 Vogt, Inc., Teamsters Union v............................ 284,945 Wager v. New York............................................ 913 Walker v. Maryland........................................... 907 Walker v. United States...................................... 939 Walter R. Stutz Enterprises, Gershenhorn v................... 926 Warehouse Workers, Buckeye Cotton Oil Co. v.................. 910 Washington v. United States.................................. 914 Watkins v. United States..................................... 178 Weinberger v. New York....................................... 913 Wellman v. United States..................................... 931 Wells, Ben Hur Coal Co. v.................................... 910 Western Fire & Casualty Co. v. General Ins. Co............... 909 West Point Market, Retail Clerks’ Union v.................... 937 West Point Wholesale Grocery Co. v. Opelika.................. 390 Wexler v. Commissioner....................................... 938 Wilkinson, Fowler v.......................................... 944 Wilkinson, Luciano v..................................... 924, 944 Wilson v. Girard......................................... 524, 928 TABLE OF CASES REPORTED. xix Page Woodlaw v. Earle................................... 942 Woods v. Cavell.................................... 911 Wright, Lumbermen’s Mutual Casualty Co. v.......... 939 Wyman, Sweezy v.................................... 234 Yates v. United States......................... 298,907 York v. Heinze..................................... 925 Young v. Maryland.................................. 913 Zambrano v. California Adult Authority............. 925 TABLE OF CASES CITED Page Accardi v. Shaughnessy, 347 U. S. 260 372, 373, 380, 386 Adah, The, 258 F. 377 139 Adamson v. California, 332 U. S.46 471 Adams Theatre Co. v. Keenan, 12 N. J. 267 489 Adler v. Dickson, [1954] 2 Lloyd’s List L. R. 267 144 Administrator. See name of administrator. A. F. of L. v. Swing, 312 U. S. 321 286-296 Aiuppa v. United States, 201 F. 2d 287 196 Alberts v. California, 354 U. S. 476 440, 445, 448-500, 931 Alert, The, 40 F. 836 134 Algoma Cent. & H. B. R. Co. v. Great Lakes Corp., 86 F. 2d 708 140,141 American Bank Co. v. Fed. Reserve Bank, 256 U. S. 350 427 American Civil Liberties Union v. Chicago, 3 Ill. 2d 334 489 American Communications Assn. v. Douds, 339 U. S. 382 229,339 American Fed. of Labor v. Swing, 312 U. S. 321 286-296 American Ins. Co. v. Canter, 1 Pet. 511 50,53 American Sugar Co. v. Loui- siana, 179 U. S. 89 471 Anderson v. Dunn, 6 Wheat. 204 192,207, 216 Andrews v. United States, 162 U. S. 420 482 Antrim’s Case, 5 Phila. 278 32 Application of. See name of party. Armstrong v. Armstrong, 350 U. S. 568 419 Page Ashwander v. T. V. A., 297 U. S. 288 82 Atherton v. Atherton, 181 U. S. 155 421 Bakelite Corp., Ex parte, 279 U. S. 438 78 Bakery Drivers v. Wohl, 315 U. S. 769 289, 290, 296 Baltimore Contractors v. Bodinger, 348 U. S. 176 400 Balzac v. Porto Rico, 258 U. S. 298 8,13, 53, 65,74 Bantam Books, Inc., v. Melko, 25 N. J. Super. 292 489 Barenblatt v. United States, 240 F. 2d 875 200 Barron v. Baltimore, 7 Pet. 243 . 7 Barsky v. United States, 334 U. S. 843 229 Barsky v. United States, 83 U. S. App. D. C. 127 197, 202, 203, 229 Bart v. United States, 349 U. S. 219 196,233 Bartell v. United States, 227 U. S. 427 482 Beauharnais v. Illinois, 343 U. S. 250 471, 481-486, 501-505, 514 Beets v. Hunter, 339 U. S. 963; 75 F. Supp. 825 36 Berger v. United States, 295 U. S. 78 906 Berman v. Parker, 348 U. S. 26 916 Berue, In re, 54 F. Supp. 252 33,83 Best v. United States, 184 F. 2d 131 9 Betts v. Brady, 316 U. S. 455 77 Bleakley v. Schlesinger, 294 N. Y. 312 126 Block v. Hirsh, 256 U. S. 135 475 XXI XXII TABLE OF CASES CITED. Page Bollenbach v. United States, 326 U. S. 607 327 Bolognino v. Bolognino, 231 App. Div. 817; 136 Misc. 656 448 Bordonaro Bros. v. Paramount Pictures, 203 F. 2d 676 338 Boston, The City of, 182 F. 171 139 Botiller v. Dominguez, 130 U. S. 238 18 Bowers v. United States, 202 F. 2d 447 208 Boyce Motor Lines v. United States, 342 U. S. 337 492 Boyd v. United States, 116 U. S. 616 40,264 Bradley, Ex parte, 7 Wall. 364 409 Bradley v. O’Hare, 2 App. Div. 2d 436 126 Braverman v. United States, 317 U. S. 49 334 Breard v. Alexandria, 341 U. S. 622 484 Brewster v. Gage, 280 U. S. 327 362 Briggs v. Mackellar, 2 Abb. Pr. (N. Y.) 30 194,232 British Transport Comm’n v. United States, 354 U.S. 129 150,151 Brown v. Allen, 344 U. S. 443 164 Bryan v. United States, 338 U. S. 552 328 Building Service Employees v. Gazzam, 339 U. S. 532 287,292,293 Burdeau v. McDowell, 256 U. S. 465 404 Burns v. Wilson, 346 U. S. 137 37,56 Cafeteria Employees v. Angelos, 320 U. S. 293 290 Callan v. Wilson, 127 U. S. 540 13 Carlson v. United States, 187 F. 2d 366 334 Carolene Products Co. v. United States, 323 U. S. 18 309,319 Page Carolene Products Co. v. United States, 140 F. 2d 61 125 Carpenters Union v. Ritter’s Cafe, 315 U. S. 722 289 Cates v. Haderline, 342 U. S. 804; 189 F. 2d 369 504 Central R. Co. v. Mills, 113 U. S. 249 96 Chae Chan Ping v. United States, 130 U. S. 581 18 Chambers v. Florida, 309 U. S. 227 393 Chandler v. United States, 336 U. S. 918; 171 F. 2d 921 12 Chaplinsky v. New Hampshire, 315 U. S. 568 481,485 Chapman, In re, 166 U. S. 661 194,216 Chappedelaine v. Dechen-aux, 4 Cranch 306 93 Charles Wolff Co. v. Court of Ind. Rel, 267 U. S. 552 470 Chastleton Corp. v. Sinclair, 264 U. S. 543 475 Cherokee Tobacco, The, 11 Wall. 616 17 Chessman, Application of, 219 F. 2d 162 176 Chessman, In re, 219 F. 2d 162 163 Chessman, In re, 128 F. Supp. 600 176 Chessman, In re, 43 Cal. 2d 296, 391, 408 175 Chessman, In re, 44 Cal. 2d 1 177 Chessman, In re, 273 P. 2d 936 177 Chessman v. California, 340 U. S. 840 164,172,174 Chessman v. California, 341 U. S. 929 164,174 Chessman v. California, 343 U. S. 915 164,169,175 Chessman v. California, 346 U. S. 916 164,175 Chessman v. California, 347 U. S. 908 175 Chessman v. California, 348 U. S. 864 164,176 TABLE OF CASES CITED. XXIII Page Chessman v. People, 205 F. 2d 128 175 Chessman v. Teets, 350 U. S. 3 161,176 Chessman v. Teets, 353 U. S. 928 177 Chessman v. Teets, 221 F. 2d 276 176 Chessman v. Teets, 239 F. 2d 205 177 Chessman v. Teets, 138 F. Supp. 761 168,177 Childress v. Emory, 8 Wheat. 642 93 Childs v. School District, 54 Minn. 213 310 Chisholm v. Georgia, 2 Dall. 419 14 City. See also name of city. City of Boston, The, 182 F. 171 139 Clark v. Allen, 331 U. S. 503 18 Clio, The—The Springhill, 1948 A. M. C. 75 141 Cobbledick v. United States, 309 U. S. 323 400 Coe v. Coe, 334 U. S. 378 422 Cogen v. United States, 278 U. S. 221 404 Cohen v. Beneficial Corp., 337 U. S. 541 95, 116, 403,413 Cole v. Arkansas, 333 U. S. 196 162 Cole v. Young, 351 U. S. 536 371,376 Coleman v. Tennessee, 97 U. S. 509 24 Colgate v. Harvey, 296 U. S. 404 473,475 Commissioner v. Glenshaw Glass Co., 248 U. S. 426 359 Commissioner v. Sunnen, 333 U. S. 591 336 Commissioner v. Wheeler, 324 U. S. 542 362 Commissioner of Internal Revenue. See Commissioner. Commonwealth. See also name of Commonwealth. Page Commonwealth v. Buckley, 200 Mass. 346 489 Commonwealth v. Feigen- baum, 166 Pa. Super. 120 486,489 Commonwealth v. Gordon, 66 Pa. D. & C. 101 486,489 Commonwealth v. Holmes, 17 Mass. 335 484 Commonwealth v. Isenstadt, 318 Mass. 543 489 Commonwealth v. Kneeland, 37 Mass. 206 482 Commonwealth v. Mann Co., 150 Pa. 64 310 Commonwealth v. Morris, 1 Brock. & Hol. (Va.) 176 482 Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91 484 Connolly v. Union Pipe Co., 184 U. S. 540 473 Corn Products Co. v. Comm’r, 350 U. S. 46 362 Cotting v. Kansas City Co., 183 U. S. 79 467 County. See name of county. Cox v. New Hampshire, 312 U. S. 569 484 Cramer v. United States, 325 U. S. 1 312,343 Cross v. United States, 145 U. S. 571 400,405,409 Currency Services v. Mat- thews, 90 F. Supp. 40 460, 462, 468 Daley v. United States, 231 F. 2d 123 359 Davidson v. New Orleans, 96 U. S. 97 287 Dawson v. Columbia Trust Co., 197 U. S. 178 100, 111 De Jonge v. Oregon, 299 U. S. 353 343 Delaware & Hudson Co. v. A. & S. R. Co., 213 U. S. 435 94, 96,109 De Lima v. Bidwell, 182 U. S. 1 53 Del Vecchio v. Bowers, 296 U. S. 280 414 De Meli v. De Meli, 120 N. Y. 485 434 XXIV TABLE OF CASES CITED. Page Dennis v. United States, 340 U. S. 863 321 Dennis v. United States, 341 U.S. 494 231,300,310,317- 328, 339,344, 349,486, 509 Department of Highways v. Jahncke, Inc., 174 F. 2d 894 141 Detroit v. Dean, 106 U. S. 537 97 Di Bartolo, In re, 50 F. Supp. 929 33 Dickhart v. United States, 57 App. D. C. 5 404 Dier v. Banton, 262 U. S. 147 403 Doctor v. Harrington, 196 U. S. 579 93-96,100-105,110 Dodge v. Woolsey, 18 How. 331 ~ 106 Doe v. Braden, 16 How. 635 17 Door v. Donaldson, 90 U. S. App. D. C. 188 504 Dorchy v. Kansas, 264 U. S. 286 470 Dorr v. United States, 195 U. S. 138 9,13, 52, 53, 65 Doubleday & Co. v. New York, 335 U. S. 848 506 Doud v. Hodge, 146 F. Supp. 887 470 Dowd v. U. S. ex rel. Cook, 340 U. S. 206 166 Dowdell v. United States, 221 U. S. 325 162 Dowling v. Collins, 10 F. 2d 62 404 Downes v. Bidwell, 182 U. S. 244 8,13, 53, 65 Dreyer v. Illinois, 187 U. S. 71 255,256,268 Duncan v. Kahanamoku, 327 U. S. 304 31,82 Dunlop v. United States, 165 U. S. 486 482,492 Dunn v. Clarke, 8 Pet. 1 93 Dynes v. Hoover, 20 How. 65 19,42 Eastern Dredging Co., In re, 182 F. 179 139 Edwards v. California, 314 U. S. 160 481 Page Eisenträger v. Forrestal, 84 U. S. App. D. C. 396 9 Eisler v. United States, 170 F. 2d 273 200 Emery’s Case, 107 Mass. 172 196 Emspak v. United States, 349 U. S. 190 122,196,233 Engel v. O’Malley, 219 U. S. 128 465,475 Erb v. Morasch, 177 U. S. 584 466 Erie R. Co. v. Tompkins, 304 U. S. 64 95,116 Essgee Co. v. United States, 262 U. S. 151 122 Estin v. Estin, 334 U. S. 541 417-420 Evergreens, The, v. Nunan, 141 F. 2d 927 336,338 Ex parte. See name of party. Falls, Ex parte, 251 F. 415 33,83 Fasulo v. United States, 272 U. S. 620 310 Federal Communications Comm’n v. Columbia Broad. System, 311 U. S. 132 357 Federal Trade Comm’n v. Cement Institute, 333 U. S. 683 337 Feldman v. United States, 322 U. S. 487 471 Flannery v. Commanding General, 69 F. Supp. 661 31 Fleming v. Mohawk Co., 331 U. S. Ill 380 Fox v. Washington, 236 U.S. 273 318,492 France v. United States, I. C. J. Reports 1952, p. 176 61 Francis v. Resweber, 329 U. S. 459 267 F. S. Royster Co. v. Virginia, 253 U. S. 412 465 Gadlin v. Auditor of Accounts, 414 Ill. 89 460 Geofroy v. Riggs, 133 U. S. 258 17 TABLE OF CASES CITED. XXV Page Gerlach, Ex parte, 247 F. 616 33,83 German Alliance Ins. Co. v. Lewis, 233 U. S. 389 466 Giboney v. Empire Co., 336 U. S. 490 291, 292, 296, 340, 514 Gitlow v. New York, 268 U. S. 652 318, 319, 326, 503 Go-Bart Co. v. United States, 282 U. S. 344 403 Goldsmith-Grant Co. v. United States, 254 U. S. 505 444 Grant v. United States, 227 U. S. 74 122 Graves v. N. Y. ex rel. O’Keefe, 306 U. S. 466 6 Green v. Frazier, 253 U. S. 233 473 Greenberg v. United States, 343 U. S. 918 122 Grewe v. France, 75 F. Supp. 433 83 Griffin v. United States, 336 U. S. 704 414 Grimley, In re, 137 U. S. 147 “ 37 Grimm v. United States, 156 U. S. 604 481 Guinn v. United States, 238 U. S. 347 470 Haddock v. Haddock, 201 U. S. 562 421-426 Hale v. Henkel, 201 U. S. 43 122 Haley v. Ohio, 332 U. S. 596 169,267 Hamilton v. Kentucky Dis- tilleries Co., 251 U. S. 146 35 Hannegan v. Esquire, Inc., 327 U. S. 146 481 Harris v. Balk, 198 U. S. 215 417,419 Harris v. South Carolina, 338 U. S. 68 169 Hartford Indemnity Co. v. So. Pac. Co., 273 U. S. 207 137 Hartford Ins. Co. v. Harri- son, 301 U. S. 459 464, 466,473 Page Haupt v. United States, 330 U. S. 631 312 Hawaii v. Mankichi, 190 U. S. 197 6,13, 52,53, 65 Hawes v. Oakland, 104 U. S. 450 94,96,106-108,116 Head Money Cases, 112 U. S. 580 18 Heath, In re, 144 U. S. 92 399,409 Heath & Milligan v. Worst, 207 U. S. 338 475 Hegeman Farms v. Baldwin, 293 U. S. 163 465 Heike v. United States, 227 U. S. 131 126 Helm v. Zarecor, 222 U. S. 32 97,99 Helvering v. Mitchell, 303 U. S.391 336 Helvering v. Winmill, 305 U. S. 79 362 Henderson, Ex parte, 11 Fed. Cas. 1067 20 Herrick v. Herrick, 55 Nev. 59 417 Hines v. Mikell, 259 F. 28 33,83 Hoffman v. United States, 341 U. S. 479 122 Hoke v. United States, 227 U. S. 308 481 Holden v. Joy, 17 Wall. 211 17 Hood & Sons v. Du Mond, 336 U. S. 525 471 Hoopeston Canning Co. v. Cullen, 318 U. S. 313 466 H. P. Hood & Sons v. Du Mond, 336 U. S. 525 471 Hudson, The, 15 F. 162 133 Hughes v. Fetter, 341 U. S. 609 425 Hughes v. Superior Court, 339 U. S. 460 292 Hunter v. Beets, 180 F. 2d 101 36 Hurtado v. California, 110 U. S. 516 43,266 Hygrade Provision Co. v. Sherman, 266 U.S. 497 492 Indianapolis v. Chase Nat. Bank, 314 U. S. 63 97,100,104,111 XXVI TABLE OF CASES CITED. Page In re. See name of party. Internal Revenue Commissioner. See Commissioner. International Teamsters Union v. Hanke, 339 U. S. 470 292-296,484 Jackson, Ex parte, 96 U. S. 727 481, 493, 504 Jackson v. Taylor, 353 U. S. 569 37 Jacob Ruppert Corp. v. Caffey, 251 U. S. 264 43 James v. Appel, 192 U. S. 129 319 Jay v. Topham, 12 How. St. Tr. 822 189 Jaybird Mng. Co. v. Weir, 271 U. S. 609 51, 287 Jochen, Ex parte, 257 F. 200 33,83 Johnson, Ex parte, 187 S. C. 1 196 Johnson v. Eisenträger, 339 U. S. 763 9 Johnson v. Muelberger, 340 U. S. 581 422 Johnson v. United States, 352 U. S. 565 523, 906 Johnson v. Zerbst, 304 U.S. 458 162,172 Joines v. Patterson, 274 U. S. 544 309,319 Jones v. Seward, 40 Barb. (N. Y.) 563 32 Josephson v. United States, 333 U. S. 838 230,232 Jurney v. MacCracken, 294 U. S. 125 195 Just v. Chambers, 312 U. S. 383 133,137 Karlin v. Culkin, 248 N. Y. 465 281 Kawakita v. United States, 343 U. S. 717 12 Kepner v. United States, 195 U. S. 100 38,405,406 Khan v. Feist, Inc., 165 F. 2d 188; 70 F. Supp 450 489 Kilbourn v. Thompson, 103 U. S. 168 194,198,232 Kingsley Books, Inc., v. Brown, 354 U. S. 436 500, 931 Page Kinsella v. Krueger, 351 U. S. 470 50, 58, 65,78, 79 Kinsella v. Krueger, 352 U. S. 901 65 Klapprott v. United States, 335 U. S. 601 336 Knowles v. State, 3 Day (Conn.) 103 483 Königsberg v. California, 353 U. S. 252 281 Koshland v. Helvering, 298 U. S. 441 359 Koster v. Lumbermens Cas. Co., 330 U. S. 518 95,103,104 Kotch v. Board, 330 U. S. 552 471 Kovacs v. Cooper, 336 U. S. 77 484 Labor Board v. Gullet Gin Co., 340 U. S. 361 380 Labor Board v. Virginia Power Co., 314 U. S. 469 296,340,484, 514 Lake County v. Rollins, 130 U. S. 662 8 Langnes v. Green, 282 U. S. 531 153 Lanzetta v. New Jersey, 306 U. S. 451 208 Lawson v. United States, 339 U. S. 934 230 Lawson v. United States, 85 U. S. App. D. C. 167 197,229 Lawson v. United States, 176 F. 2d 49 197,229 Lawton v. Steele, 152 U. S. 133 444 Layne & Bowler v. Western Works, 261 U. S. 387 902 Leach v. Carlile, 258 U. S. 138 504 Learned v. Tillotson, 97 N. Y. 1 448 Leyra v. Denno, 347 U. S. 556 172,393 Lindsley v. Nat. Gas Co., 220 U. S. 61 464 Liverpool, N. Y. & Phila. S. S. Co. v. Comm’rs, 113 U. S. 33 45 Local Plumbers Union v. Graham, 345 U. S. 192 293,296 TABLE OF CASES CITED. XXVII Page Lopiparo v. United States, 216 F. 2d 87 127 Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 267 Louisiana State Bar v. Theard, 222 La. 328; 225 La. 98 280 Louisville Gas Co. v. Cole- man, 277 U. S. 32 464,465,473 Louisville & N. R. Co. v. Barber Co., 197 U. S. 430 473 Lumber Products Assn. v. United States, 144 F. 2d 546 125 Mac. See also Me. MacFadden v. United States, 165 F. 51 489 Madden v. Kentucky, 309 U. S. 83 473 Madsen v. Kinsella, 343 U. S. 341 35,81 Magnolia Petroleum Co. v. Hunt, 320 U. S. 430 471 Main, The, v. Williams, 152 U. S. 122 133 Malinski v. New York, 324 U. S. 401 267 Manitoba, The, 122 U. S. 97 137 Marbury v. Madison, 1 Cranch 137 6,17 Marcello v. United States, 196 F. 2d 437 196 Marshall v. Gordon, 243 U. S. 521 194 Martin v. Hunter’s Lessee, 1 Wheat. 304 6 Maryland Cas. Co. v. Cush- ing, 347 U. S. 409 153 Massey v. Moore, 348 U. S. 105 171 Mastro Plastics Corp. v. Board, 350 U. S. 270 358 Matter of. See name of party. May v. Anderson, 345 U. S. 528 424 Mayflower Farms v. Ten Eyck, 297 U. S. 266 468 Me. See also Mac. Page McCulloch v. Maryland, 4 Wheat. 316 21, 22,43, 69, 266 McCune v. Kilpatrick, 53 F. Supp. 80 33 McDonald v. ’ Keeler, 99 N. Y. 463 228 McDougall v. Lueder, 389 Ill. 141 460,464, 465,469,470 McFarland v. Am. Sugar Co., 241 U. S. 79 467 McGrain v. Daugherty, 273 U. S. 135 194,219, 228,232 McNabb v. United States, 318 U. S. 332 452 Mecom v. Fitzsimmons Co., 284 U. S. 183 93 Memphis Laundry v. Stone, 342 U. S. 389 391 Meredith v. Meredith, 96 U. S. App. D. C. 355 419 Merryman, Ex parte, 17 'Fed. Cas. 144 31 Messenger v. Anderson, 225 U. S. 436 282 Mexican Cent. R. Co. v. Eckman, 187 U. S. 429 93 Milk Drivers v. Meadowmoor Dairies, 312 U. S. 287 289 Miller v. Strahl, 239 U. S. 426 465 Milligan, Ex parte, 4 Wall. 2 6,10, 30, 31,35 Milliken v. Meyer, 311 U. S. 457 426 Milwaukee Pub. Co. v. Burleson, 255 U.S. 407 504 Minnesota v. Nat. Tea Co., 309 U. S. 551 393 Missouri v. Becker, 364 Mo. 1079 489 Missouri v. Holland, 252 U. S. 416 18 Mitchell v. Harmony, 13 How. 115 9 Mobley v. Handy, 176 F. 2d 491 83 Mollan v. Torrance, 9 Wheat. 537 93 Mooney v. Holohan, 294 U. S. 103 165 XXVIII TABLE OF CASES CITED. Page Moore v. Am. Scantic Line, 30 F. Supp. 843 144 Moore v. Dempsey, 261 U. S. 86 172 Moore-McCormack Lines v. McMahon, 235 F. 2d 142 136,140 Morford v. United States, 176 F. 2d 54 200,202 Mormon Church v. United States, 136 U. S. 1 53 Moser v. United States, 341 U. S. 41 18 Mostyn v. Fabrigas, 1 Cowp. 161 25 Murphy v. United States, 272 U. S. 630 336 Musser v. Utah, 333 U. S. 95 208 Mutual Film Co. v. Comm’n, 236 U. S. 230 487 Myers v. Anderson, 238 U. S. 368 470 Nash v. United States, 229 U. S. 373 492 National Labor Relations Board. See Labor Board. Near v. Minnesota, 283 U. S. 697 440,441,445,481 Nelson v. Wyman, 99 N. H. 33 237,246,257 New Jersey Barging Corp. v. Jones & Co., 135 F. Supp. 97 140 Newton v. Consolidated Gas Co., 258 U. S. 165 475 New York, N. H. & H. R. Co. v. New York, 165 U. S. 628 465 Niles-Bement-Pond Co. v. Iron Moulders, 254 U. S. 77 99 Nilva v. United States, 352 U. S. 385 127 Nippert v. Richmond, 327 U. S. 416 391 Noble State Bank v. Haskell, 219 U. S. 104 473 North Star, The, 106 U. S. 17 136,139 Norwich Co. v. Wright, 13 Wall. 104 133 Page Ogden v. Saunders, 12 Wheat. 213 8 Oyama v. California, 332 U. S. 633 471 Palko v. Connecticut, 302 U. S. 319 266,400,440, 501 Pappas v. Stacey, 151 Me. 36 287,293,294 Parmelee v. United States, 72 App. D. C. 203 448,489,491 Pennington v. Fourth Nat. Bank, 243 U. S. 269 417,419 Pennoy er v. Neff, 95 U. S. 714 418-423,428 Pennsylvania v. Nelson, 350 U. S.497 269, 504 People v. Chessman, 35 Cal. 2d 455 172,173 People v. Chessman, 38 Cal. 2d 166 168,174 People v. Croswell, 3 Johns. (N. Y.) 337 482 People v. Ruggles, 8 Johns. (N. Y.) 290 483 People v. Schweinler Press, 214 N. Y. 395 289 People v. Superior Court, 44 Cal. 2d 1 177 People v. Superior Court, 273 P. 2d 936 177 People v. Thornton, 63 Cal. App. 724 309 People v. Thurman, 62 Cal. App. 147 309 People v. Ware, 67 Cal. App. 81 309 People v. Wepplo, 78 Cal. App. 2d Supp. 959 486,494,499, 509 People ex rel. Karlin v. Culkin, 248 N. Y. 465 281 People ex rel. McDonald v. Keeler, 99 N. Y. 463 228 Perkins v. Elg, 307 U. S. 325 372 Perlman v. United States, 247 U. S. 7 403 Perlstein v. Hiatt, 327 U. S. 777; 328 U. S. 822 33 Perlstein v. United States, 151 F. 2d 167 33,83 TABLE OF CASES CITED. XXIX Page Peters v. Hobby, 349 U. S. 331 366, 370,372, 385 Petition of. See name of party. Pierce v. United States, 252 U. S. 239 334 Poling Bros. No. 5—Tom Wogan, 1937 A. M. C. 1513 140 Powell v. Alabama, 287 U. S. 45 46, 77,162 Price v. Johnston, 334 U. S. 266 165 Price v. United States, 165 U. S. 311 482 Prince v. Massachusetts, 321 U. S. 158 484 Providence & N. Y. S. S. Co. v. Hill Co., 109 U. S. 578 133 Public Clearing House v. Coyne, 194 U. S. 497 481, 493, 504 Pulford v. United States, 155 F. 2d 944 125 Purity Extract Co. v. Lynch, 226 U. S. 192 43 Quincy v. Steel, 120 U. S. 241 97 Quinn v. United States, 349 U. S. 155 196,233 Quirin, Ex parte, 317 U. S. 1 6, 37, 38 R. v. Martin Seeker Warburg, Ltd., [1954] 2 All Eng. 683 442,489 Railroad Comm’n v. C., B. & Q. R. Co., 257 U. S. 563 43 Railway Mail Assn. v. Corsi, 326 U. S. 88 494 Rassmussen v. United States, 197 U. S. 516 13 Reed, Ex parte, 100 U. S. 13 19 Reed v. Comm’rs, 277 U. S. 376 219 Regina v. Hicklin, [1868] L. R. 2 Q. B. 360 489 Reid v. Covert, 351 U. S. 787 78,79 Page Reid v. Covert, 352 U. S. 901 65 Removal Cases, 100 U. S. 457 102,106 Richmond v. United States, 354 U. S. 298 931 Robertson v. Baldwin, 165 U. S. 275 481 Rogers v. Missouri Pac. R. Co., 352 U. S. 500 517, 901,903 Rosen v. United States, 161 U. S. 29 481,491 Ross, In re, 140 U. S. 453 10,12, 50, 54-58, 65, 78,87 Ross, In re, 44 F. 185 54 Roth v. Goldman, 172 F. 2d 788 489,491 Roth v. United States, 353 U. S. 476 503 Roth v. United States, 354 U. S. 476 448, 499,931 Rouss, Matter of, 221 N. Y. 81 281 Royster Co. v. Virginia, 253 U. S. 412 465 Ruppert Corp. v. Caffey, 251 U. S. 264 43 Sagonias v. United States, 223 F. 2d 146 354, 360 St. Paul Mercury Co. v. Red Cab Co., 303 U. S. 283 155 Sampere v. New Orleans, 279 U. S. 812; 166 La. 776 467 Samuel v. United States, 169 F. 2d 787 312 Schenck v. United States, 249 U. S. 47 318,484, 486 Schneider v. State, 308 U. S. 147 471 Schneiderman v. United States, 320 U. S. 118 303,335,336 Schneiderman v. United States, 354 U. S. 298 931 Schooner Exchange, The, v. M’Faddon, 7 Cranch 116 529 Schwab v. Berggren, 143 U. S. 442 162 Schware v. Board, 353 U. S. 232 281 XXX TABLE OF CASES CITED. Page Scotland, The, 105 U. S. 24 135,140 Sealfon v. United States, 332 U. S. 575 336 Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80 372 Selling v. Radford, 243 U. S. 46 282,283 Senn v. Tile Layers Union, 301 U. S. 468 288,296 Shapiro v. United States, 335 U. S. 1 124 Shapiro v. United States, 107 Ct. Cl. 650 36 Sherrer v. Sherrer, 334 U. S. 343 422 Shilman v. United States, 333 U. S. 837; 164 F. 2d 649; 73 F. Supp. 648 33 Silesian-American Corp. v. Clark, 332 U. S. 469 82 Sinclair v. United States, 279 U. S. 263 194, 208,219,229,232 Singleton v. United States, 343 U. S. 944 122 Slaughter-House Cases, 16 Wall. 36 471 Slayton, Ex parte, 105 U. S. 451 135 Smith v. Cahoon, 283 U. S. 553 465,466 Smith v. Shaw, 12 Johns. (N. Y.) 257 32 Smith v. Sperling, 354 U. S. 91 111-116,917 Snyder v. Massachusetts, 291 U. S. 97 162 Stack v. Boyle, 342 U. S. 1 403,413,414 Stanley v. Comm’n, 295 U. S. 76 468 Starkovich v. United States, 231 F. 2d 411 196 State. See also name of State. State v. Theard, 212 La. 1022 279 State v. Uphaus, 100 N. H. 1 238 Page State ex rel. Childs v. School District, 54 Minn. 213 310 State on inf. Taylor v. Currency Services, 358 Mo. 983 469 Steele v. United States, 267 U. S. 498, 505 404 Steel Inventor, The, 43 F. 2d 958 140,141 Strawbridge v. Curtiss, 3 Cranch 267 93,99 Stromberg v. California, 283 U. S.359 312 Swaim v. United States, 165 U. S. 553 37, 38 Swanson v. Traer, 354 U. S. 114 98,112,917 Swearingen v. United States, 161 U. S. 446 481 Sweeney v. Sweeney, 42 Nev. 431 417 Sweezy v. New Hampshire, 354 U. S. 234 929 Swift & Co. v. Compania Caribe, 339 U. S. 684 403,413 Tait v. Western Md. R. Co., 289 U. S. 620 336 Taylor v. Currency Services, 358 Mo. 983 469 Tenney v. Brandhove, 341 U. S. 367 228, 255 Territory. See name of Territory. Texas Co., Petition of, 81 F. Supp. 758 140 Textile Workers v. Lincoln Mills, 353 U. S. 448 906 Thompson, Proceedings against Richard, 8 How. St. Tr. 2 189,232 Thompson v. Thompson, 226 U. S. 551 419-423 Thompson v. Utah, 170 U. S. 343 10,13, 53 Thornhill v. Alabama, 310 U. S. 88 288,295,488 Tigner v. Texas, 310 U. S. 141 441,471,473 Tileston v. Ullman, 318 U. S. 44 231 Tone, Trial of Theobald Wolfe, 27 How. St. Tr. 614 31 TABLE OF CASES CITED. XXXI Page Toth v. Quarles, 350 U. S. 11 4,10,31-35,39,42,85,86 Trock v. United States, 351 U. S.976 122 Truax v. Corrigan, 257 U. S. 312 287 Turner v. Pennsylvania, 338 U. S. 62 169 Turney v. United States, 126 Ct. Cl. 202 9 Union Nat. Bank v. Lamb, 337 U. S. 38 236 United Public Workers v. Mitchell, 330 U. S. 75 493 United States. See also U.S. ex rel. United States v. Austin-Bag- ley Corp., 31 F. 2d 229 125 United States v. Ball, 163 U. S. 662 406 United States v. Basiliko, 35 A. 2d 185 409 United States v. Bennett, 24 Fed. Cas. 1093 489 United States v. Bowman, 260 U. S. 94 12 United States v. Bryan, 72 F. Supp. 58 197 United States v. Burney, 6 U. S. C. M. A. 776; 21 C. M. R. 98 83-85 United States v. Burroughs, 289 U. S. 1-59 400,411,415 United States v. Cardiff, 344 U. S. 174 208 United States v. Cefaratti, 91 U. S. App. D. C. 297 397,412,413 United States v. Chase, 135 U. S. 255 481 United States v. Clarke, 38 F. 500 489 United States v. Cohen, 101 F. Supp. 906 196 United States v. Commodi- ties Trading Corp., 339 U. S. 121 35 United States v. Costello, 198 F. 2d 200 196 United States v. Cruikshank, 92 U. S. 542 343 Page United States v. Daisart Sportswear, Inc., 169 F. 2d 856 127 United States v. Darby, 312 U. S. 100 18 United States v. Dennett, 39 F.2d 564 448, 487,489 United States v. Dennis, 183 F. 2d 201; (No. C. 128-87, D. C. S. D. N. Y.) 310 United States v. Di Carlo, 102 F. Supp. 597 196 United States v. Dickinson, 213 U. S. 92 401 United States v. Eliason, 16 Pet. 291 38 United States v. Evans, 213 U. S. 297; 30 App. D. C. 58 407 United States v. Field, 193 F. 2d 92 126,127 United States v. Fitzpatrick, 96 F. Supp.491 196 United States v. Fleischman, 339 U. S. 349 127 United States v. Flores, 289 U. S. 137 12 United States v. Flynn, 216 F. 2d 354 310,345 United States v. Flynn (No. C. 137-37, D. C. S. D. N. Y.) 310 United States v. 4200 Copies Int. Journal, 134 F. Supp. 490 491 United States v. Foster, 9 F. R. D. 367 326 United States v. Fujimoto, 107 F. Supp. 865 310 United States v. Gradwell, 243 U. S. 476 310 United States v. Harriss, 347 U. S. 612 208,484,492 United States v. Hoffman, 335 U. S. 77; 82 U. S. App. D. C. 153 411 United States v. Huff (Court of Appeals, unreported) 311 United States v. Illinois Alcohol Co., 45 F. 2d 145 125 United States v. Jaffe, 98 F. Supp. 191 196 XXXII TABLE OF CASES CITED. Page United States v. Janitz, 161 F. 2d 19 405 United States v. Josephson, 165 F. 2d 82 197, 200, 203,208,209,230, 232 United States v. Kahriger, 345 U. S. 22 358 United States v. Kamin, 135 F. Supp. 382 208 United States v. Kamin, 136 F. Supp. 791 200,208,215 United States v. Kennerley, 209 F. 119 489 United States v. Kirschen- blatt, 16 F. 2d 202 404, 405 United States v. Korpan, 354 U. S. 271 932 United States v. Lacher, 134 U. S. 624 310 United States v. Lay Fish Co., 13 F. 2d 136 125 United States v. Levine, 83 F. 2d 156 489 United States v. Licavoli, 102 F. Supp.607 196 United States v. Limehouse, 285 U. S. 424 482 United States v. Martin, 81 A. 2d 651 407,409 United States v. Mesarosh, 223 F. 2d 449; 116 F. Supp. 345 310 United States v. Minnesota, 270 U. S. 181 17 United States v. More, 3 Cranch 159 399,400 United States v. One Book Called “Ulysses,” 72 F. 2d 705; 5 F. Supp. 182 489 United States v. One 1946 Plymouth, 167 F. 2d 3 405 United States v. One Unbound Volume, 128 F. Supp. 280 491 United States v. Oppen- heimer, 242 U. S. 85 335 United States v. Orman, 207 F. 2d 148 208 United States v. Patterson, 219 F. 2d 659 127 United States v. Petrillo, 332 U. S.1 491 Page United States v. Ponder, 238 F. 2d 825 404,406 United States v. Rabinowich, 238 U. S. 78 334 United States v. Ragen, 314 U. S. 513 492 United States v. Raley, 96 F. Supp.495 196 United States v. Rosen- wasser, 145 F. 2d 1015 405 United States v. Roth, 237 F. 2d 796 486 United States v. Rumely, 345 U. S. 41 197, 198,205,219,229, 233,257 United States v. Sanges, 144 U. S. 310 399-401,405,410,415 United States v. Schneider- man, 106 F. Supp. 906 319 United States v. Sprague, 282 U. S. 716 8 United States v. Stephen- son, 96 U. S. App. D. C. 44 397,405 United States v. Temple, 105 U. S. 97 311 United States v. The Thekla, 266 U. S. 328 140 United States v. Urbuteit, 335 U. S. 355 444 United States v. Wallace & Tiernan, 336 U. S. 793 404 United States v. White, 322 U. S. 694 122-127 United States v. Williams, 227 F. 2d 149 405 United States v. Wiltberger, 5 Wheat. 76 304, 305, 310 United States v. Wurzbach, 280 U. S. 396 492 United States v. Yukio Abe, 95 F. Supp.991 196 U. S. ex rel. Accardi v. Shaughnessy, 347 U. S. 260 372,373, 380, 386 U. S. ex rel. Flannery v. Commanding General, 69 F. Supp. 661 31 U. S. ex rel. Milwaukee Pub. Co. v. Burleson, 255 U. S. 407 504 TABLE OF CASES CITED. XXXIII Page U. S. ex rel. Mobley v. Handy, 176 F. 2d 491 83 U. S. ex rel. Toth v. Quarles, 350 U. S. 11 4, 10,31-35, 39,42, 85,86 U. S. Steel Products, Co., In re, 24 F. 2d 657 140,141 Upshaw v. United States, 335 U. S. 410 453 Vandenbark v. Owens-Ill. Glass Co., 311 U. S. 538 382 Van Oster v. Kansas, 272 U. S. 465 444 Van Vranken, Ex parte, 47 F. 888 32 Venner v. Great Northern R. Co., 209 U. S. 24 95,101-103,109,110 Virginia Power Co. v. Board, 319 U. S. 533 341 Wade v. Hunter, 336 U. S. 684 342 Wade v. Mavo, 334 U. S. 672 172 Walker v. Chief Officer, 69 F. Supp. 980 34 Walker v. Popenoe, 80 U. S. App. D. C. 129 489 Warren v. Barber Co., 115 Mo. 572 310 Watkins v. United States, 354 U. S. 178 235, 255, 270, 929, 930 Watson v. Maryland, 218 U. S. 173 467 Watts v. Indiana, 338 U. S. 49 169 Wedesweiler v. Brundage, 297 Ill. 228 469 Wellman v. United States, 227 F. 2d 757 311 Page Wheeler v. United States, 226 U. S. 478 122 White v. Island Transp. Co., 233 U. S. 346 150 Whitmire v. Cass, 213 S. C. 230 310 Whitney v. California, 274 U. S. 357 231 Whitney v. Robertson, 124 U. S. 190 18 Wieman v. Updegraff, 344 U. S.183 247, 248, 270 Wilcox v. Consolidated Gas Co., 212 U. S. 19 474 Wilkerson v. McCarthy, 336 U. S. 53 901, 903 Williams v. Mayor, 289 U. S. 36 466 Williams v. North Carolina, 317 U. S. 287 312,419,421,426,430,432 Williams v. North Carolina, 325 U. S. 226 421 Williamson v. Lee Co., 348 U.S. 483 463,465,471 Willis v. Eastern Trust Co., 169 U. S. 295 309,319 Willis v. Fidelity Co., 345 Ill. App. 373 464 Wilson v. United States, 221 U. S. 361 122-127 Winters v. New York, 333 U. S. 507 481,491,208 Wolff Packing Co. v. Court of Ind. Rel., 267 U. S. 552 470 Yarborough v. Yarborough, 290 U. S. 202 433 Yates v. United States, 354 U. S.298 931 Ziffrin, Inc., v. United States, 318 U. S. 73 382 430336 O—57----3 TABLE OF STATUTES CITED (A) Statutes of the United States. Page 1789, Sept. 24, c. 20, 1 Stat. 73 ................. 394 1790, Apr. 30, c. 9, 1 Stat. 112 .................. 1 1802, Apr. 29, c. 31, 2 Stat. 156 ................ 394 1838, July 7, c. 192, 5 Stat. 306 ................ 394 1842, Aug. 30, c. 270, 5 Stat. 548 ................ 476 1857, Jan. 24, c. 19, 11 Stat. 155 ................ 178 Mar. 2, c. 63, 11 Stat. 168 ................ 476 1862, Jan. 24, c. 11, 12 Stat. 333 178 1863, Mar. 2, c. 67, 12 Stat. 696 .................. 1 Mar. 3, c. 75, 12 Stat. 731 .................. 1 1865, Mar. 3, c. 89, 13 Stat. 504 ................ 476 1872, June 1, c. 255, 17 Stat. 196 ................ 394 June 8, c. 335, 17 Stat. 283 ................ 476 1873, Mar. 3, c. 258, 17 Stat. 598 ................ 476 1875, Mar. 3, c. 137, 18 Stat. 470 ................. 91 1876, July 12, c. 186, 19 Stat. 90 ................. 476 1879, Mar. 1, c. 125, 20 Stat. 327 ................ 449 1888, June 18, c. 394,25 Stat. 187 ................ 476 Sept. ¿6, c. 1039, 25 Stat. 496........... 476 1889, Feb. 6, c. 113, 25 Stat. 655 ................ 394 1890, Oct. 1, c. 1244, 26 Stat. 567 ................ 476 1891, Mar. 3, c. 517, 26 Stat. 826 ................ 394 Page 1894, Aug. 18, c. 301, 28 Stat. 372........... 449 1897, Jan. 20, c. 68, 29 Stat. 492 ................ 394 Feb. 8, c. 172, 29 Stat. 512 ................ 476 1901, Mar. 3, c. 854, §§ 226, 935, 31 Stat. 1189.. 394 1905, Feb. 8, c. 550, 33 Stat. 705 ................ 476 1907, Mar. 2, c. 2564, 34 Stat. 1246.......... 394 1908, Apr. 22, c. 149, 35 Stat. 65 ................. 902 1909, Mar. 4, c. 321, 35 Stat. 1088 ............... 476 1911, Mar. 3, c. 231, 36 Stat. 1087 ............... 394 1916, Aug. 29, c. 418, 39 Stat. 619 .................. 1 1917, June 15, c. 30, 40 Stat. 217 ............ 363,394 1919, Oct. 28, c. 85, 41 Stat. 305 ................ 394 1920, June 5, c. 250, 41 Stat. 988 ................ 902 June 5, c. 268, 41 Stat. 1060 ............... 476 1922, June 10, c. 216, 42 Stat. 634........... 147 1926, July 3, c. 756, 44 Stat. 831 ................ 394 1930, June 17, c. 497,46 Stat. 590 ................ 476 1932, Mar. 23, c. 90, 47 Stat. 70 ................. 284 1934, June 7, c. 426, 48 Stat. 926 ................ 394 June 18, c. 595,48 Stat. 1008 ............... 449 June 19, c. 652, 48 Stat. 1064 ............... 476 1935, July 26, c. 417, 49 Stat. 500 ................ 363 XXXV XXXVI TABLE OF STATUTES CITED. Page 1936, June 5, c. 521, 49 Stat. 1479 ............... 129 1938, June 25, c. 675, § 304, 52 Stat. 1040....... 436 1940, June 28, c. 439, §§ 2, 3, 5, 54 Stat. 670... 298 1941, Sept. 21, c. 412, 55 Stat. 687 ................ 271 1942, May 9, c. 295, 56 Stat. 27i 394 Oct. 21, c. 619, 56 Stat. 798 ................ 271 1946, June 11, c. 324, 60 Stat. 237 363 Aug. 2, c.’753, 60 Stat. 812 ................ 178 Aug. 13, c. 957, §211, 60 Stat. 999........ 363 1947, June 23, c. 120, § 8, 61 Stat. 136........... 284 July 9, c. 211, 61 Stat. 279 ................ 363 1948, June 3, c. 400, 62 Stat. 305 ................ 363 June 25, c. 645,62 Stat. 683 ............ 298,476 June 25, c. 646,62 Stat. 869 ................ 394 July 1, c. 783, 62 Stat. 1206 ............... 363 1949, May 24, c. 139,63 Stat. 89 ............. 147,394 May 26, c. 143, §§ 3,4, 63 Stat. Ill........ 363 July 20, c. 354,63 Stat. 447 ................ 363 1950, May 5, c. 169, 64 Stat. 107 .................. 1 May 27, c. 214,64 Stat. ’ 194 ................ 476 Aug. 16, c. 721, 64 Stat. 451........... 476 Aug. 26, c. 803,64 Stat. 476 ................ 363 Sept. 6, c. 896, § 1213, 64 Stat. 595....... 363 Sept. 23, c. 1024, §4, 64 Stat. 987....... 298 1951, Oct. 20, c. 521, §§ 3285- 3294, 65 Stat. 452.. 351 Oct. 22, c. 533, § 103, 65 Stat. 575....... 363 Page 1952, July 10, c. 495, 66 Stat. 549 ............... 363 1954, Aug. 24, c. 886, 68 Stat. 775 ............... 178 1955, June 28, c. 190,69 Stat. 183 ............... 476 1956, July 5, c. 541, 60 Stat. 446 ............... 363 July 18, c. 629, § 1404, 70 Stat. 567....... 394 July 24, c. 678, 70 Stat. 623 ................. 298 July 27, c. 755, 70 Stat. 699 ................. 476 Aug. 1, c. 807, 70 Stat. 773 ................... 1 1957, Julv 24, c. 689, 70 Stat. 630 ............... 524 Constitution. See Index at end of volume. Criminal Code. See also U. S. Code, Title 18.......394 Internal Revenue Code. See also U. S. Code, Title 26. §3267 ................ 271 §§3285-3294, 4411...... 351 Judicial Code. See also U. S. Code, Title 28. §§238, 240.............. 394 Revised Statutes. §§ 102, 103............ 178 §651 ................. 394 §§ 1342, 4083-4130....... 1 §§4281-4289 ....... 129,147 §5596 .................. 1 Uniform Code of Military Justice, Arts. 2, 18-20, 36, 118, 134.............. 1 U. S. Code. Title 2, §§ 192, 193.... 178 Title 5, §§22-1, 22-3, 1002 ................. 363 Title 8, § 155........ 363 Title 18, §11.......?...... 298 §371 ........ 298,394 § 1404 .......... 394 § 1461 .......... 476 §§ 1503, 1951...... 118 §2385 ........... 298 §3238 ............. 1 TABLE OF STATUTES CITED. XXXVII Page U. S. Code—Continued. Title 18—Continued. §3282 ........... 298 §3401 ............. 1 §3731 ........... 394 Title 22, §§ 801 et seq., 826, 1007, 1008.... 363 Title 26, §§ 3285 et seq., 3286-3294, 4411..... 351 §§4461-4463 ...... 271 Title 28, §41 ............. 147 §42 ............. 934 §§43, 132......... 394 §§294, 295........ 944 §451 ............ 394 §601 ............ 933 § 1252 ............ 1 § 1253 .......... 457 § 1254 .......... 524 § 1257 .......... 234 §§ 1291, 1292 .... 394 § 1332 ........... 91 § 1333 .......... 147 § 1359 ........... 91 § 1738 .......... 416 §1915............ 521 § 2103 .......... 234 §2106 ........... 298 §2107 ........... 394 §§2281, 2284...... 457 Title 29, §§ 101, 158... 284 Title 44, §307....... 363 Title 45, § 51 et seq... . 902 Title 46, §§ 181-196 .... 129,147 § 688 et seq..... 902 § 789 ........... 129 Page U. S. Code—Continued. Title 50, §§552, 578-580, 611, 712, 728......... 1 §783 ............ 298 Administrative Procedure Act .................... 363 American Articles of War.. 1 Articles of War............. 1 Criminal Appeals Act...... 394 Employers’ Liability Act... 517, 901, 902, 904 Espionage Act............. 363 Federal Employers’ Liability Act ........ 517,901,902,904 Federal Register Act...... 363 Food, Drug, and Cosmetic Act .................... 436 Foreign Service Act....... 363 General Appropriations Act, 1951 ................... 363 Immigration Act........... 363 Internal Security Act.. 178,298 Jones Act................. 902 Judiciary Act.......... 91,394 Labor Management Rela- tions Act............... 178 Legislative Reorganization Act .................... 178 Limited Liability Act.. 129,147 Narcotic Control Act...... 394 National Labor Relations Act ................ 178,284 National Prohibition Act. .. 118, 394 National Security Act..... 178 Norris-LaGuardia Act......284 Smith Act................. 298 (B) Statutes of the States and Territories. Alabama. Ordinances Nos. 101-53, 103-53, §§ 82, 130, City of Opelika....... 390 California. Constitution, Art. VI, §5 ................... 476 1919 Stat., c. 188..... 298 Code of Civil Proc., § 953e ............... 156 California—Continued. Penal Code............ 476 §209 ............. 156 §§311, 313, 314.... 436 § 1239 ........... 156 West Ann. Codes. Civ. Proc. Code, § 953e ........ 156 Penal Code, § 1239 ....... 156 § 11401 ...... 298 XXXVIII TABLE OF STATUTES CITED. Page California—Continued. West Ann. Codes—Con. Penal Code, 1955, §311 ........ 476 Criminal Syndicalism Act .............. 298 Connecticut. 1784 Acts & Laws 66, 67, Punishment of Felonies Act........... 476 1804 Freedom of Press Act, 1 Pub. Stat. Laws (1808) 355.... 476 1821 Crimes and Punishment Act, § 69, 1824 Stat. Laws 109.. 476 Delaware. Constitution, 1792, Art. I, §5............. 476 1737 Drunkenness and Blasphemy Act, §§ 4, 5, 1 Laws of Del. (1797) 173, 174... 476 District of Columbia. Code, 1901, §§ 226,935. 394 Code, 1951, §§ 11-755, 11-772, 11-773, 17-102,22-1501,22-1502, 23-105 ............. 394 Rev. Stat. § 845.... 394 Georgia. Constitution, 1777, Art. LXI .............. 476 Penal Code, 1817, 8th Div., §VIII........ 476 Regulation of Taverns Act, Digest of Laws (Prince 1822), 512, 513 ................ 476 Illinois. Rev. Stat., 1955, c. 16^, §§30-56.3 .......... 457 Community Currency Exchanges Act...... 457 Maryland. Constitution, 1776, Declaration of Rights, §38 ................ 476 1723 Act, c. 16, §1, Digest of Laws (Herty 1799), 92.... 476 Page Maryland—Continued. 1803 Act, c. 54, II Pub. Gen. Laws (Poe 1888) 1096 ......................... 476 Massachusetts. Constitution, 1780, Declaration of Rights, Art. XVI...............476 1646 General Laws, c. XVIII, § 3, Bay Colony Charters & Laws, 1814, 58...................... 476 1712 Acts and Laws, c. CV, § 8, Bay Colony Charters & Laws, 1814, 399 .................... 476 1782 Acts, c. 8, Rev. Stat., 1836, § 15..............476 1798 Acts, c. 33, §§ 1,3, Rev. Stat., 1836, 741, § 16.......................... 476 Rev. Stat., 1835, c. 130, § 10.......................... 476 Rev. Stat., 1936, 740... 476 North Carolina. Suppressing Vice Act, 1 Laws of N. C. 52.. 476 New Hampshire. Constitution, 1784, Art. I, §XXII...................... 476 Bill of Rights, Art. 15.. 234 1791 Punishment of Certain Crimes Act, 1792 Laws, 252, 253, 256 .......................... 476 1791 Punishment of Cursing Act, 1792 Laws, 258............. 476 Rev. Stat., 1842, c. 113, §2, Rev. Stat., 1843, 221 .......................... 476 1951 Laws, c. 193. 234 1953 Laws, c. 307 . 234 1955 Laws, cc. 197, 340. 234 Rev. Stat. Ann., 1955, c. 7, §§6-11.................. 234 Rev. Stat. Ann., 1955, c. 491, §§ 19, 20............. 234 Rev. Stat. Ann., 1955, c. 588, §§ 1-16...... 234 Subversive Activities Act .......................... 234 TABLE OF STATUTES CITED. XXXIX Page New Jersey. 1798 Suppression of Vice Act, §§ VIII, IX, XII, Rev. Laws, 1800, 329, 331 ............... 476 1799 Libels Act, Rev. Laws, 1800, 411.... 476 New Mexico. Stat. Ann., 1953, §§ 14-21-3, 14-21-12. 476 New York. 1788 Suppressing Immorality Act, § IV, 2 Laws of N. Y. 257, 258 ................. 476 1902 Laws, c. 371... 298 1941 Laws, c. 925, §22-a ............. 436 1954 Laws, c. 702.... 436 Civil Practice Act, §430 ............... 436 Civil Practice Act, §§1165-a, 1170-b ... 416 Code of Criminal Procedure, § 22-a....... 436 Penal Law, §§ 1141, 1144 ................ 436 Gilbert-Bliss Civ. Prac., Vol. 3B, 1942, § 430.. 436 G i 1 b e r t-B 1 i s s Civ. Prac., Vol. 6A, Cum. Supp. 1956, §§ 1165-a, 1170-b ............ 416 McKinney Laws, Penal Law, § 161......... 298 New York City Crim- inal Courts Act, § 31. 436 Criminal Anarchy Act.. 298 North Carolina. Constitution, 1776, Declaration of Rights, Art. XV.............. 476 17 41 Suppression of Vice Act, 1 Laws 52.. 476 1803 Act, c. 632, 2 Laws (1821) 999......... 476 Pennsylvania. Constitution, 1776, Declaration of Rights, Art. XII............. 476 Constitution, 1790, Art. IX, §7............. 476 Page Pennsylvania—Continued. 1 7 0 0 Prevention of Cursing Act, II Stat, at Large (1700-1712) 49 ................. 476 1794 Prevention of Vice Act, § II, 3 Laws of Pa. (1791-1802) 177, 178 ................ 476 Rhode Island. Constitution, 1842, Art. I, §20.............. 476 1798 Reform of Penal Laws Act, §§ 33, 34, 1798 Laws of R. I. 584, 595............ 476 Code of Laws, 1647, 44-45 ................ 476 South Carolina. Constitution, 1778, Art. XLIII............... 476 1703 Suppression of Blasphemy Act, Laws of S. C. (Grimké 1790) 4............... 476 1956 Act, No. 741.... 933 1957 Act, No. 324.... 933 Vermont. Constitution, 1777, Declaration of Rights, Art. XIV.............. 476 1797 Punishment of Capital and Other High Crimes Act, § 20, 1 Laws of Vt. 332, 339............ 476 1797 Punishment of Inferior Crimes Act, § 20, 1 Laws of Vt. 352, 361............ 476 1804 Act, 1 Laws of Vt. 366 ................ 476 Virginia. Bill of Rights, 1776, § 12................ 476 1792 Suppression of Vice Act, § 1, 1794 Acts of Va. 286............. 476 12 Hening Stat., c. 34, p. 85............... 298 Wisconsin. Stat., §§ 103.535,111.06. 284 TABLE OF STATUTES CITED. XL (C) Treaties and Other International Agreements. Page 1787, Jan., 8 Stat. 100 (Morocco) ................. 1 1795, Sept. 5, 8 Stat. 133 (Algiers) ................. 1 1796, Nov. 4, 8 Stat. 154 (Tripoli) ................. 1 1797, Aug., and 1799, Mar. 26, 8 Stat. 157 (Tunis) ................... 1 1815, June 30 and July 6, 8 Stat. 224 (Algiers).... 1 1816, Dec. 22, 23, 8 Stat. 244 (Algiers) ................. 1 1830, May 7, 8 Stat. 408 (Turkey) .................. 1 1833, Sept. 21, 8 Stat. 458 (Muscat) .................. 1 1844, July 3, 8 Stat. 592 (China) ................... 1 1850, June 23, 10 Stat. 909 (Borneo) .................. 1 1854, Mar. 31, 11 Stat. 597 (Japan) ................... 1 1856, May 29, 11 Stat. 683 (Siam) .................... 1 1856, Dec. 13, 11 Stat. 709 (Persia) 1857, June 17, 11 Stat. 723 (Japan) ................... 1 1867, Feb. 14, 15 Stat. 491 (Madagascar) .............. 1 1878, Jan. 17, 20 Stat. 704 (Samoan Islands)......... 1 1882, May 22, 23 Stat. 720 (Korea) ................... 1 Page 1886, Oct. 2, 25 Stat. 1440 (Tonga Islands)............ 1 1891, Jan. 24, 27 Stat. 926 (Congo) ................... 1 1894, Nov. 22, 29 Stat. 848 (Japan) ................... 1 1903, Oct. 8, 33 Stat. 2208 (China) ................... 1 1903, Dec. 27, 33 Stat. 2254 (Ethiopia) ................ 1 1910, May 4, 37 Stat. 1511 (Agreement, Germany and other Nations)........... 476 1942, July 27, 57 Stat. 1193 (Executive Agree- ment, England)............. 1 1942, Dec. 4, 56 Stat. 1780 (Agreement, England)... 129 1951, June 19, 4 UST 1792 (Agreement, National Atlantic Treaty Organization) ..................... 524 1951, Sept. 8, Art. Ill, 3 UST 3329 (Japan).... 524 1952, Feb. 28, 3 UST 3341 (Administrative Agree-ment, Japan)........... 1,476 1953, Sept. 29, Arts. XVII, XXVI, 4 UST 1846 (Administrative Agreement, Japan) .................. 524 Status of Forces Agreement, Art. VII, §§ 1-3, 9, 4 UST 1792 (National Atlantic Treaty Organization).... 1 (D) Foreign Statutes. England. 12 Anne, c. 13, § 43.... 1 3 Car. I, c. 1......... 1 3 & 4 Eliz. II, c. 18, §209 ................ 1 1 Geo. I, c. 34........ 1 4 Geo. Ill, c. 15...... 1 8 Geo. Ill, c. 22...... 1 5 & 6 Geo. VI, c. 31.... 1 1 Henry IV, c. 14...... 1 18 Henry VI, c. 19.... 1 8 Richard II, c. 5..... 1 13 Richard II, cc. 2, 5.. 1 England—Continued. 57 & 58 Viet., c. 60, §503 ............. 129 1 Wm. & Mary, cc. 2, 5. 1 Army Act, 1955....... 1 Articles of War..... 1 Merchant Shipping Act .............. 129 Molasses Act........ 1 Mutiny Acts........... 1 Navigation Act...... 1 Petition of Right... 1 United States of Amer- ica (Visiting Forces) Act ................ 1 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1956. REID, SUPERINTENDENT, DISTRICT OF COLUMBIA JAIL, v. COVERT. ON REHEARING.* No. 701, October Term, 1955. Argued May 3,1956; decided June 11, 1956; rehearing granted November 5, 1956; reargued February 27, 1957.—Decided June 10, 1957. Article 2 (11) of the Uniform Code of Military Justice, providing for the trial by court-martial of “all persons . . . accompanying the armed forces” of the United States in foreign countries, cannot constitutionally be applied, in capital cases, to the trial of civilian dependents accompanying members of the armed forces overseas in time of peace. Kinsella v. Krueger, 351 U. S. 470, and Reid v. Covert, 351 U. S. 487, withdrawn. Pp. 3-78. Judgment below in No. 701, October Term, 1955, affirmed. 137 F. Supp. 806, reversed and remanded. Mr. Justice Black, in an opinion joined by The Chief Justice, Mr. Justice Douglas and Mr. Justice Brennan, concluded that: 1. When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution, including Art. Ill, § 2, and the Fifth and Sixth Amendments. Pp. 5-14. *Together with No. 713, October Term, 1955, Kinsella, Warden, v. Krueger, also on rehearing; argued, decided, rehearing granted, reargued, and decided on the same dates. 1 2 OCTOBER TERM, 1956. Syllabus. 354 U.S. 2. Insofar as Art. 2 (11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is “necessary and proper” to carry out obligations of the United States under international agreements made with those countries; since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution. Pp. 15-19. 3. The power of Congress under Art. I, § 8, cl. 14, of the Constitution, “To make Rules for the Government and Regulation of the land and naval Forces,” taken in conjunction with the Necessary and Proper Clause, does not extend to civilians—even though they may be dependents living with servicemen on a military base. Pp. 19-40. 4. Under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States. Pp. 40-41. Mr. Justice Frankfurter, concurring in the result, concluded that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by the power of Congress under Article I to regulate the “land and naval Forces,” when considered in connection with the specific protections afforded civilians by Article HI and the Fifth and Sixth Amendments. Pp. 41-64. Mr. Justice Harlan, concurring in the result, concluded that, where the offense is capital, Art. 2(11) of the Uniform Code of Military Justice cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace. Pp. 65-78. Solicitor General Rankin reargued the cause for appellant in No. 701 and petitioner in No. 713. With him on the brief were Assistant Attorney General Olney, Roger Fisher, Beatrice Rosenberg, Carl B. Klein and William M. Burch II. Frederick Bernays Wiener reargued the cause for appellee in No. 701 and respondent in No. 713. With him on the brief was Adam Richmond. REID v. COVERT. 3 1 Opinion of Black, J. Mr. Justice Black announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Douglas, and Mr. Justice Brennan join. These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because for the first time since the adoption of the Constitution wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial. In No. 701 Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ).1 The trial was on charges preferred by Air Force personnel and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2 (11) of the UCMJ,1 2 which provides: “The following persons are subject to this code: “(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, 1 50 U. S. C. § 712. 2 50 U. S. C. §552 (11). 4 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States . . . .” Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 USCMA 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court’s decision in United States ex rel. Toth v. Quarles, 350 U. S. 11, as holding that “a civilian is entitled to a civilian trial” the District Court held that Mrs. Covert could not be tried by court-martial and ordered her released from custody. The Government appealed directly to this Court under 28 U. S. C. § 1252. See 350 U. S. 985. In No. 713 Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and despite considerable evidence that she was insane was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 USCMA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2 (11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accom REID v. COVERT. 5 1 Opinion of Black, J. panying servicemen overseas. The District Court refused to issue the writ, 137 F. Supp. 806, and while an appeal was pending in the Court of Appeals for the Fourth Circuit we granted certiorari at the request of the Government, 350 U. S. 986. The two cases were consolidated and argued last Term and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U. S. 470, 487. The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there and that Congress could provide for the trial of such offenses in any manner it saw fit so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion the majority found it unnecessary to consider the power of Congress “To make Rules for the Government and Regulation of the land and naval Forces” under Article I of the Constitution. Subsequently, the Court granted a petition for rehearing, 352 U. S. 901. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities. I. At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely 6 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. a creature of the Constitution.3 Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.4 When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later an English historian wrote: “In a Settled Colony the inhabitants have all the rights of Englishmen. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony. But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country.” 5 The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone, they have been jealously preserved from the encroach 3 Martin n. Hunter’s Lessee, 1 Wheat. 304, 326; Ex parte Milligan, 4 Wall. 2, 119, 136-137; Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 477; Ex parte Quirin, 317 U. S. 1, 25. 4 Marbury v. Madison, 1 Cranch 137, 176-180; Hawaii v. Man-kichi, 190 U. S. 197, 236-239 (Harlan, J., dissenting). 5 2 Clode, Military Forces of the Crown, 175. REID v. COVERT. 7 1 Opinion of Black, J. ments of Government by express provisions of our written Constitution.6 Among those provisions, Art. Ill, § 2 and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” The Fifth Amendment declares: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . . .” And the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” The language of Art. Ill, § 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that when a crime is “not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” If 6 Cf. Barron v. Baltimore, 7 Pet. 243, 250. 8 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. this language is permitted to have its obvious meaning,7 § 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held.8 From the very first Congress, federal statutes have implemented the provisions of § 2 by providing for trial of murder and other crimes committed outside the jurisdiction of any State “in the district where the offender is apprehended, or into which he may first be brought.” 9 The Fifth and Sixth Amendments, like Art. Ill, § 2, are also all inclusive with their sweeping references to “no person” and to “all criminal prosecutions.” This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.10 While it has been suggested that only 7 This Court has constantly reiterated that the language of the Constitution where clear and unambiguous must be given its plain evident meaning. See, e. g., Ogden v. Saunders, 12 Wheat. 213, 302-303; Lake County v. Rollins, 130 U. S. 662, 670-671. In United States v. Sprague, 282 U. S. 716, 731-732, the Court said: “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition. . . . The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such limiting phrase ... is persuasive evidence that no qualification was intended.” 8 According to Madison, the section was intended “to provide for trial by jury of offences committed out of any State.” 3 Madison Papers (Gilpin ed. 1841) 1441. 91 Stat. 113-114. With slight modifications this provision is now 18 U. S. C. § 3238. 10 See, e. g., Balzac v. Porto Rico, 258 U. S. 298, 312-313 (Due Process of Law); Downes v. Bidwell, 182 U. S. 244, 277 (First Amendment, Prohibition against Ex Post Facto Laws or Bills of REID v. COVERT. 9 1 Opinion of Black, J. those constitutional rights which are “fundamental” protect Americans abroad,11 we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of “Thou shalt nots” which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right.* 11 12 As Blackstone wrote in his Commentaries: “. . . the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! ... [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his Attainder); Mitchell v. Harmony, 13 How. 115, 134 (Just Compensation Clause of the Fifth Amendment); Best v. United States, 184 F. 2d 131, 138 (Fourth Amendment); Eisenträger v. Forrestal, 84 U. S. App. D. C. 396, 174 F. 2d 961 (Right to Habeas Corpus), rev’d on other grounds sub nom. Johnson v. Eisenträger, 339 U. S. 763; Turney v. United States, 126 Ct. Cl. 202, 115 F. Supp. 457, 464 (Just Compensation Clause of the Fifth Amendment). 11 See Dorr v. United States, 195 U. S. 138, 144-148. 12 The right to trial by jury in a criminal case is twice guaranteed by the Constitution. It is common knowledge that the fear that jury trial might be abolished was one of the principal sources of objection to the Federal Constitution and was an important reason for the adoption of the Bill of Rights. The Sixth Amendment reaffirmed the right to trial by jury in criminal cases and the Seventh Amendment insured such trial in civil controversies. See 2 Elliot’s Debates (2d ed. 1836) passim; 3 id. passim. 430336 0—57---4 10 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 13 Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience. The keystone of supporting authorities mustered by the Court’s opinion last June to justify its holding that Art. Ill, § 2, and the Fifth and Sixth Amendments did not apply abroad was In re Ross, 140 U. S. 453. The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship’s officer, was seized and tried before a consular “court” in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other “non-Christian” countries.14 These 13 3 Blackstone’s Commentaries 379. As to the importance of trial by jury, see also Ex parte Milligan, 4 Wall. 2, 122-123; Thompson v. Utah, 170 U. S. 343, 349-350; United States ex rel. Toth v. Quarles, 350 U. S. 11, 16, 18-19; 2 Kent’s Commentaries, 3-10; The Federalist, No. 83 (Hamilton); 2 Wilson’s Works (Andrews ed. 1896) 222. De Tocqueville observed: “The institution of the jury . . . places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. ... He who punishes the criminal is . . . the real master of society. . . . All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury.” 1 De Tocqueville, Democracy in America (Reeve trans. 1948 ed.), 282-283. 14 Rev. Stat. §§ 4083-4130 (1878). REID v. COVERT. 11 1 Opinion of Black, J. statutes provided that the laws of the United States were to govern the trial except: . . where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.” 15 The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the “non-Christian” countries to which the statutes applied. Under these statutes consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and after conviction take away their liberty or their life—sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person or even in one branch of the Government is ordinarily regarded as the very acme of absolutism.16 Nevertheless, the Court sustained Ross’ conviction by the consul. It stated that constitutional 15 Id., § 4086. 16 Secretary of State Blaine referred to these consular powers as “greater than ever the Roman law conferred on the pro-consuls of the empire, to an officer who, under the terms of the commitment of this astounding trust, is practically irresponsible.” S. Exec. Doc. No. 21, 47th Cong., 1st Sess. 4. Seward, at a time when he was Consul-General, declared: “[t]here is no reason, excepting the absence of appropriate legislation, why American citizens in China, charged with grave offenses, should not have the privilege of a trial by jury as elsewhere throughout the world where the institution of civilization prevails.” Id., at 7. 12 OCTOBER TERM, 1956. Opinion of Black, J. 354U.S. protections applied “only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad.” 17 Despite the fact that it upheld Ross’ conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that “[t]he Constitution can have no operation in another country.” 18 The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases.19 That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad.20 Thus the Ross case rested, at least in substantial part, on a fundamental misconception and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans.21 We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era. The Court’s opinion last Term also relied on the “Insular Cases” to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable 17 In re Ross, supra, at 464. 18 Ibid. 19 See cases cited in note 10, supra. 20 See, e. g., Kawakita v. United States, 343 U. S. 717; United States v. Flores, 289 U. S. 137; United States v. Bowman, 260 U. S. 94; Chandler n. United States, 171 F. 2d 921, cert, denied, 336 U. S. 918. 21 70 Stat. 773. REID v. COVERT. 13 1 Opinion of Black, J. to the trial of Mrs. Smith and Mrs. Covert.22 We believe that reliance was misplaced. The “Insular Cases,” which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, § 3,23 had entirely different cultures and customs from those of this country. This Court, although closely divided,24 ruled that certain constitutional safeguards were not applicable to these territories since they had not been “expressly or impliedly incorporated” into the Union by Congress. While conceding that “fundamental” constitutional rights applied everywhere,25 the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions.26 22 Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United States, 195 U. S. 138; Balzac v. Porto Rico, 258 U. S. 298. 23 “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; . . . .” 24 Downes v. Bidwell, 182 U. S. 244, the first of the “Insular Cases” was decided over vigorous dissents from Mr. Chief Justice Fuller, joined by Justices Harlan, Brewer, and Peckham, and from Mr. Justice Harlan separately. The four dissenters took the position that all the restraints of the Bill of Rights and of other parts of the Constitution were applicable to the United States Government wherever it acted. This was the position which the Court had consistently followed prior to the “Insular Cases.” See, e. g., Thompson v. Utah, 170 U. S. 343; Callan v. Wilson, 127 U. S. 540. 25 As to the great significance of the right to trial by jury see text at note 13, supra, and the authorities referred to in that note. 26 Later the Court held that once a territory become “incorporated” all of the constitutional protections became “applicable.” See, e. g., Rassmussen v. United States, 197 U. S. 516, 520-521. 14 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. The “Insular Cases” can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.27 But we have no authority, or inclination, to read exceptions into it which are not there.28 27 It may be said that it is difficult to amend the Constitution. To some extent that is true. Obviously the Founders wanted to guard against hasty and ill-considered changes in the basic charter of government. But if the necessity for alteration becomes pressing, or if the public demand becomes strong enough, the Constitution can and has been promptly amended. The Eleventh Amendment was ratified within less than two years after the decision in Chisholm v. Georgia, 2 Dall. 419. And more recently the Twenty-First Amendment, repealing nationwide prohibition, became part of the Constitution within ten months after congressional action. On the average it has taken the States less than two years to ratify each of the twenty-two amendments w’hich have been made to the Constitution. 28 In 1881, Senator Carpenter, while attacking the consular courts “as a disgrace to this nation” because they deprived citizens of the REID v. COVERT. 15 1 Opinion of Black, J. II. At the time of Mrs. Covert’s alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States’ military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents.29 For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith “fundamental and essential” rights to indictment and trial by jury, declared: “If we are too mean as a nation to pay the expense of observing the Constitution in China, then let us give up our concessions in China and come back to as much of the Constitution as we can afford to carry out.” 11 Cong. Rec. 410. 29 Executive Agreement of July 27, 1942, 57 Stat. 1193. The arrangement now in effect in Great Britain and the other North Atlantic Treaty Organization nations, as well as in Japan, is the NATO Status of Forces Agreement, 4 U. S. Treaties and Other International Agreements 1792, T. I. A. S. 2846, which by its terms gives the foreign nation primary jurisdiction to try dependents accompanying American servicemen for offenses which are violations of the law of both the foreign nation and the United States. Art. VII, §§ 1 (b), 3 (a). The foreign nation has exclusive criminal jurisdiction over dependents for offenses which only violate its laws. Art. VII, § 2 (b). However, the Agreement contains provisions which require that the foreign nations provide procedural safeguards for our nationals tried under the terms of the Agreement in their courts. Art. VII, § 9. Generally, see Note, 70 Harv. L. Rev. 1043. Apart from those persons subject to the Status of Forces and comparable agreements and certain other restricted classes of Americans, a foreign nation has plenary criminal jurisdiction, of course, over all Americans—tourists, residents, businessmen, government employees and so forth—who commit offenses against its laws within its territory. 16 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. killed her husband.30 Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States’ obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. Article VI, the Supremacy Clause of the Constitution, declares : “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . .” There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolu 30 See Administrative Agreement, 3 U. S. Treaties and Other International Agreements 3341, T. I. A. S. 2492. REID v. COVERT. 17 1 Opinion of Black, J. tionary War, would remain in effect.31 It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.32 In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.33 For example, in Geojroy v. Riggs, 133 U. S. 258, 267, it declared : “The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the 31 See the references collected in 4 Farrand, Records of the Federal Convention (Rev. ed. 1937), 123. 32 See the discussion in the Virginia Convention on the adoption of the Constitution, 3 Elliot’s Debates (1836 ed.) 500-519. 33 E. g., United States v. Minnesota, 270 U. S. 181, 207-208; Holden v. Joy, 17 Wall. 211, 242-243; The Cherokee Tobacco, 11 Wall. 616, 620-621; Doe n. Braden, 16 How. 635, 657. Cf. Marbury v. Madison, 1 Cranch 137, 176-180. We recognize that executive agreements are involved here but it cannot be contended that such an agreement rises to greater stature than a treaty. 18 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.” This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.34 It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument. There is nothing in Missouri v. Holland, 252 U. S. 416, which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.35 In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. 34 In Whitney v. Robertson, 124 U. S. 190, the Court stated, at p. 194: “By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. ... [I]f the two are inconsistent, the one last in date will control the other . . . .” Head Money Cases, 112 U. S. 580; Botiller v. Dominguez, 130 U. S. 238; Chae Chan Ping v. United States, 130 U. S. 581. See Clark n. Allen, 331 U. S. 503, 509-510; Moser v. United States, 341 U. S. 41, 45. 35 See United States v. Darby, 312 U. S. 100, 124-125, and the authorities collected there. REID v. COVERT. 19 1 Opinion of Black, J. Covert. Since their court-martial did not meet the requirements of Art. Ill, § 2 or the Fifth and Sixth Amendments we are compelled to determine if there is anything within the Constitution which authorizes the military trial of dependents accompanying the armed forces overseas. III. Article I, § 8, cl. 14 empowers Congress “To make Rules for the Government and Regulation of the land and naval Forces.” It has been held that this creates an exception to the normal method of trial in civilian courts as provided by the Constitution and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights.36 But if the language of Clause 14 is given its natural meaning,37 the power granted does not extend to civilians—even though they may be dependents living with servicemen on a military base.38 The term “land and naval Forces” refers to per 36 Dynes v. Hoover, 20 How. 65; Ex parte Reed, 100 U. S. 13. 37 See note 7, supra. 38 Colonel Winthrop, who has been called the “Blackstone of Military Law,” made the following statement in his treatise: “Can [the power of Congress to raise, support, and govern the military forces] be held to include the raising or constituting, and the governing nolens volens, in time of peace, as a part of the army, of a class of persons who are under no contract for military service, . . . who render no military service, perform no military duty, receive no military pay, but are and remain civilians in every sense and for every capacity .... In the opinion of the author, such a range of control is certainly beyond the power of Congress under [the Constitution. The Fifth Amendment] clearly distinguishes the military from the civil class as separate communities. It recognizes no third class which is part civil and part military . . . and it cannot be perceived how Congress can create such a class, without a disregard of the letter and spirit of the organic law.” Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 106. 20 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. sons who are members of the armed services and not to their civilian wives, children and other dependents. It seems inconceivable that Mrs. Covert or Mrs. Smith could have been tried by military authorities as members of the “land and naval Forces” had they been living on a military post in this country. Yet this constitutional term surely has the same meaning everywhere. The wives of servicemen are no more members of the “land and naval Forces” when living at a military post in England or Japan than when living at a base in this country or in Hawaii or Alaska. The Government argues that the Necessary and Proper Clause when taken in conjunction with Clause 14 allows Congress to authorize the trial of Mrs. Smith and Mrs. Covert by military tribunals and under military law. The Government claims that the two clauses together constitute a broad grant of power “without limitation” authorizing Congress to subject all persons, civilians and soldiers alike, to military trial if “necessary and proper” to govern and regulate the land and naval forces. It was on a similar theory that Congress once went to the extreme of subjecting persons who made contracts with the military to court-martial jurisdiction with respect to frauds related to such contracts.39 In the only judicial test a Circuit Court held that the legislation was patently unconstitutional. Ex parte Henderson, 11 Fed. Cas. 1067, No. 6,349. It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the “land and naval Forces.” But the Necessary and Proper 39 12 Stat. 696. For debates showing sharp attacks on the constitutionality of this legislation see Cong. Globe, 37th Cong., 3d Sess. 952-958. The legislation was subsequently repealed. Rev. Stat. (1878 ed.) §§ 1342, 5596. REID v. COVERT. 21 1 Opinion of Black, J. Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in Clause 14—“the land and naval Forces.” Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States. And to protect persons brought before these courts, Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury and a number of other specific safeguards. By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law.40 Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14. Nothing said here contravenes the rule laid down in McCulloch v. Maryland, 4 Wheat. 316, at 421, that: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 40 As the Government points out in its brief on rehearing: “The clause granting Congress power to make rules for the government and regulation of the land and naval forces was included in the final draft of the Constitution without either discussion or debate. . . . Neither the original draft presented to the convention nor the draft submitted by the 'Committee of Detail’ contained the clause. 5 Elliot’s Debates 130, 379.” 22 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. In McCulloch this Court was confronted with the problem of determining the scope of the Necessary and Proper Clause in a situation where no specific restraints on governmental power stood in the way. Here the problem is different. Not only does Clause 14, by its terms, limit military jurisdiction to members of the “land and naval Forces,” but Art. Ill, § 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions—safeguards which cannot be given in a military trial. In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the “letter and spirit of the constitution.” Further light is reflected on the scope of Clause 14 by the Fifth Amendment. That Amendment which was adopted shortly after the Constitution reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . . .” (Emphasis added.) Since the exception in this Amendment for “cases arising in the land or naval forces” was undoubtedly designed to correlate with the power granted Congress to provide for the “Government and Regulation” of the armed services, it is a persuasive and reliable indication that the authority conferred by Clause 14 does not encompass persons who cannot fairly be said to be “in” the military service. Even if it were possible, we need not attempt here to precisely define the boundary between “civilians” and members of the “land and naval Forces.” We recognize REID v. COVERT. 23 1 Opinion of Black, J. that there might be circumstances where a person could be “in” the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. But the wives, children and other dependents of servicemen cannot be placed in that category, even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government.41 We have no difficulty in saying that such persons do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier’s family. The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution. The idea that the relatives of soldiers could be denied a jury trial in a court of law and instead be tried by court-martial under the guise of regulating the armed forces would have seemed incredible to those men, in whose lifetime the right of the military to try soldiers for any offenses in time of peace had only been grudgingly conceded.42 The Founders envisioned the 41 Most of the benefits received by dependents accompanying servicemen overseas are also enjoyed by those accompanying servicemen in this country—for example, quarters, commissary privileges, medical benefits, free transportation of household effects and so forth. 42 In the Mutiny Acts, first passed in 1688, 1 Will. & Mar., c. 5, the English Parliament reluctantly departed from the Common Law, see note 44, infra, and granted the Army authority in time of peace to try soldiers—initially for only the offenses of mutiny and desertion in time of civil insurrection. In the beginning this limited court-martial jurisdiction was granted only for periods of four months; later it was granted from year to year. See 1 Clode, Military Forces of the Crown, 19-21, 55-61, 76-78, 142-166, 499-501, 519-520. Initially the Mutiny Acts did not apply to the American Colonies. In 1713, Parliament, for the first time, authorized the trial of soldiers by courts-martial during peacetime in the overseas dominions. 12 24 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders.43 They were familiar with the history of Seventeenth Century England, where Charles I tried to govern through the army and without Parliament. During this attempt, contrary to the Common Law, he used courts-martial to try soldiers for certain non-military offenses.44 Anne, c. 13, § 43; 1 Geo. I, c. 34. See the British War Office, Manual of Military Law (7th ed. 1929), 10-14. For colonial reaction to military trial of soldiers in this country in the period preceding the revolution see text at note 49 and the authorities referred to there. It was not until 1863 that Congress first authorized the trial of soldiers, in wartime, for civil crimes such as murder, arson, rape, etc., by courts-martial. 12 Stat. 736. Previously the soldiers had been turned over to state authorities for trial in state courts. In Coleman v. Tennessee, 97 U. S. 509, this Court declined to construe the 1863 statute as depriving civilian courts of a concurrent jurisdiction to try soldiers for crimes. The Court said: “With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect.” Id., at 514. 43 Washington warned that “Mercenary Armies . . . have at one time or another subverted the liberties of allmost all the Countries they have been raised to defend . . . .” 26 Writings of Washington (Fitzpatrick ed.) 388. Madison in The Federalist, No. 41, cautioned: “[T]he liberties of Rome proved the final victim to her military triumphs; and . . . the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments.” 44 The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts so “if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or an action of battery.” 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 91. In time of REID v. COVERT. 25 1 Opinion of Black, J. This court-martialing of soldiers in peacetime evoked strong protests from Parliament.45 The reign of Charles I was followed by the rigorous military rule of Oliver Cromwell. Later, James II used the Army in his fight war the Common Law recognized an exception that permitted armies to try soldiers “in the field.” The pages of English history are filled with the struggle of the common-law courts and Parliament against the jurisdiction of military tribunals. See, for example, 8 Richard II, c. 5; 13 Richard II, cc. 2, 5; 1 Henry IV, c. 14; 18 Henry VI, c. 19; 3 Car. I, c. 1. See 3 Rushworth, Historical Collections, App. 76-81. During the Middle Ages the Court of the Constable and Marshal exercised jurisdiction over offenses committed by soldiers in time of war and over cases “of Death or Murder committed beyond the Sea.” Hale, History and Analysis of the Common Law of England (1st ed. 1713), 37-42. As time passed the jurisdiction of this court was steadily narrowed by Parliament and the common-law courts so that Lord Chief Justice Hale (1609-1676) could write that the court “has been long disused upon great Reasons.” Hale, supra, 42. As the Court of the Constable and Marshal fell into disuse and disrepute jurisdiction over soldiers in time of war was assumed by commissions appointed by the King or by military councils. In Mostyn v. Fabrigas, 1 Cowp. 161, at 176, Lord Mansfield observed that “tradesmen who followed the train [of the British Army at Gibraltar], were not liable to martial law.” (The distinction between the terms “martial law” and “military law” is of relatively recent origin. Early writers referred to all trials by military authorities as “martial law.”) 45 In 1627, the Petition of Right, 3 Car. I, c. 1 (Pickering, Vol. VII, p. 319, 1763) protested: “nevertheless of late time divers commissions under your Majesty’s great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of 430336 0—57----5 26 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. against Parliament and the people. He promulgated Articles of War (strangely enough relied on in the Government’s brief) authorizing the trial of soldiers for non-military crimes by courts-martial.46 This action hastened the revolution that brought William and Mary to the throne upon their agreement to abide by a Bill of Rights which, among other things, protected the right of trial by jury.47 It was against this general background that two of the greatest English jurists, Lord Chief Justice Hale and Sir William Blackstone—men who exerted considerable influence on the Founders—expressed sharp hostility to any expansion of the jurisdiction of military courts. For instance, Blackstone went so far as to assert: “For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; such offenders, and them to cause to be executed and put to death according to the law martial: “[Your Majesty’s subjects] do therefore humbly pray your most excellent Majesty . . . that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed, or put to death contrary to the laws and franchise of the land.” See also 1 Clode, Military Forces of the Crown, 18-20, 424—425. 46 These Articles are set out in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 920. James II also removed Lord Chief Justice Herbert and Sir John Holt (later Lord Chief Justice) from the bench for holding that military trials in peacetime were illegal and contrary to the law of the land. See 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 90-93, 129. 471 Will. & Mar., c. 2. REID v. COVERT. 27 1 Opinion of Black, J. and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.” 48 The generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace. The trial of soldiers by courts-martial and the interference of the military with the civil courts aroused great anxiety and antagonism not only in Massachusetts but throughout the colonies. For example, Samuel Adams in 1768 wrote: . . [I]s it not enough for us to have seen soldiers and mariners forejudged of life, and executed within the body of the county by martial law? Are citizens 481 Blackstone’s Commentaries 413. And Hale in much the same vein wrote: “First, That in Truth and Reality [martial law] is not a Law, 1 but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, .... “Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army; whereof they were not Parts, but they were to be order’d and govern’d according to the Laws to which they were subject, though it were a Time of War. “Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the Kings Courts are open for all Persons to receive Justice, according to the Laws of the Land.” Hale, History and Analysis of the Common Law of England (1st ed. 1713), 40-41. 28 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights of subjects, and contrary to the law and franchise of the land? . . . Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? No! Let us rouse our attention to the common law,—which is our birthright, our great security against all kinds of insult and oppression . . . .”49 Colonials had also seen the right to trial by jury subverted by acts of Parliament which authorized courts of admiralty to try alleged violations of the unpopular 491 Wells, The Life and Public Services of Samuel Adams, 231. See also Dickerson, Boston Under Military Rule; Report of Boston Committee of Correspondence (November 20, 1772), “A List of Infringements and Violations of Rights,” in Morison, The American Revolution 1764-1788, 91; Declaration and Resolves of the First Continental Congress in 1 Journals of the Continental Congress (Ford-ed.) 63-73. In June 1775, General Gage, then Royal Governor of Massachusetts Colony, declared martial law in Boston and its environs. The Continental Congress denounced this effort to supersede the course of the common law and to substitute the law martial. Declaration of Causes of Taking Up Arms, in 2 American Archives, Fourth Series (Force ed.), 1865, 1868. In November 1775, Norfolk, Virginia, also was placed under martial law by the Royal Governor. The Virginia Assembly denounced this imposition of the “most execrable of all systems, the law martial,” as in “direct violation of the Constitution, and the laws of this country.” 4 id., 81-82. And the Constitution adopted by the Provincial Congress of South Carolina on March 26, 1776, protested: . . governors and others bearing the royal commission in the colonies [have] . . . dispensed with the law of the land, and substituted the law martial in its stead; . . . .” Thorpe, The Federal and State Constitutions, 3242. REID v. COVERT. 29 1 Opinion of Black, J. “Molasses” and “Navigation” Acts.50 This gave the admiralty courts jurisdiction over offenses historically triable only by a jury in a court of law and aroused great resentment throughout the colonies.51 As early as 1765 delegates from nine colonies meeting in New York asserted in a “Declaration of Rights” that trial by jury was the “inherent and invaluable” right of every citizen in the colonies.52 With this background it is not surprising that the Declaration of Independence protested that George III had “affected to render the Military independent of and superior to the Civil Power” and that Americans had been deprived in many cases of “the benefits of Trial by Jury.” 53 And those who adopted the Constitution embodied their profound fear and distrust of military power, as well as their determination to protect trial by jury, in the Constitution and its Amendments.54 Perhaps they 50 4 Geo. Ill, c. 15; 8 Geo. Ill, c. 22. 51 See 4 Benedict, American Admiralty (6th ed. 1940), §§ 672-704; Harper, The English Navigation Laws, 184-196; 9 John Adams, Works, 318-319. Jefferson in 1775 protested: “[Parliament has] extended the jurisdiction of the courts of admiralty beyond their antient limits thereby depriving us of the inestimable right of trial by jury in cases affecting both life and property and subjecting both to the arbitrary decision of a single and dependent judge.” 2 Journals of the Continental Congress (Ford ed.) 132. 52 43 Harvard Classics 147, 148. 53 State constitutions adopted during this period generally contained provisions protecting the right to trial by jury and warning against the military. See Thorpe, The Federal and State Constitutions, (Delaware) 569, (Maryland) 1688, (Massachusetts) 1891-1892, (North Carolina) 2787-2788, (Pennsylvania) 3083, (South Carolina) 3257, (Virginia) 3813-3814. 54 See Art. I, §§ 8, 9; Art. II, §2; Art. HI; Amendments II, HI, V, VI of the Constitution. See Madison, The Debates in the Federal 30 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. were aware that memories fade and hoped that in this way they could keep the people of this Nation from having to fight again and again the same old battles for individual freedom. In light of this history, it seems clear that the Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were “necessary and proper” for the regulation of the “land and naval Forces.” Such a latitudinarian interpretation of these clauses would be at war with the well-established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority. The Constitution does not say that Congress can regulate “the land and naval Forces and all other persons whose regulation might have some relationship to maintenance of the land and naval Forces.” There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over nonmilitary America. On several occasions this Court has been faced with an attempted expansion of the jurisdiction of military courts. Ex parte Milligan, 4 Wall. 2, one of the great landmarks in this Court’s history, held that military authorities were without power to try civilians not in the military or naval service by declaring martial law in an area where the civil Convention of 1787, in Documents Illustrative of the Formation of The Union of The American States, H. R. Doc. No. 398, 69th Cong., 1st Sess. 564—571, 600-602; Warren, The Making of the Constitution (1947 ed.), 482-484, 517-521. The Federalist, Nos. 26, 27, 28, 41; Elliot’s Debates (2d ed. 1836) passim. REID v. COVERT. 31 1 Opinion of Black, J. administration was not deposed and the courts were not closed.55 In a stirring passage the Court proclaimed: “Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right—one of the most valuable in a free country—is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service.” 56 In Duncan v. Kahanamoku, 327 U. S. 304, the Court reasserted the principles enunciated in Ex parte Milligan and reaffirmed the tradition of military subordination to civil authorities and institutions. It refused to sanction the military trial of civilians in Hawaii during wartime despite government claims that the needs of defense made martial law imperative. Just last Term, this Court held in United States ex rel. Toth v. Quarles, 350 U. S. 11, that military courts could not constitutionally try a discharged serviceman for an offense which he had allegedly committed while in the armed forces. It was decided (1) that since Toth was a civilian he could not be tried by military court-martial,57 55 Cf. Ex parte Merryman, 17 Fed. Cas. 144, No. 9,487. And see the account of the trial of Theobald Wolfe Tone, 27 Howell’s State Trials 614. 56 4 Wall., at 122-123. 57 350 U. S., at 22-23. Cf. United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, rev’d by stipulation in unreported 32 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. and (2) that since he was charged with murder, a “crime” in the constitutional sense, he was entitled to indictment by a grand jury, jury trial, and the other protections contained in Art. Ill, § 2 and the Fifth, Sixth, and Eighth Amendments. The Court pointed out that trial by civilian courts was the rule for persons who were not members of the armed forces. There are no supportable grounds upon which to distinguish the Toth case from the present cases. Toth, Mrs. Covert, and Mrs. Smith were all civilians. All three were American citizens. All three were tried for murder. All three alleged crimes were committed in a foreign country. The only differences were: (1) Toth was an ex-serviceman while they were wives of soldiers; (2) Toth was arrested in the United States while they were seized in foreign countries. If anything, Toth had closer connection with the military than the two women for his crime was committed while he was actually serving in the Air Force. Mrs. Covert and Mrs. Smith had never been members of the army, had never been employed by the army, had never served in the army in any capacity. The Government appropriately argued in Toth that the constitutional basis for court-martialing him was clearer than for court-martialing wives who are accompanying their husbands abroad.58 Certainly Toth’s conduct as a soldier bears a closer relation to the maintenance of order and discipline in the armed forces than the conduct of these wives. The fact that Toth was arrested here while the order of the Second Circuit, No. 20235, April 18, 1946. And see Ex parte Van Vranken, 47 F. 888; Antrim’s Case, 5 Phila. 278, 288; Jones n. Seward, 40 Barb. (N. Y.) 563, 569-570; Smith v. Shaw, 12 Johns. (N. Y.) 257. 58 Brief for respondent, p. 31, United States ex rel. Toth n. Quarles, 350 U.S. 11: “Indeed, we think the constitutional case is, if anything, clearer for the court-martial of Toth, who was a soldier at the time of his offense, than it is for a civilian accompanying the armed forces.” REID v. COVERT. 33 1 Opinion of Black, J. wives were arrested in foreign countries is material only if constitutional safeguards do not shield a citizen abroad when the Government exercises its power over him. As we have said before, such a view of the Constitution is erroneous. The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them. The Milligan, Duncan and Toth cases recognized and manifested the deeply rooted and ancient opposition in this country to the extension of military control over civilians. In each instance an effort to expand the jurisdiction of military courts to civilians was repulsed. There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces “in the field” during time of war™ To the extent that these cases can be justified, insofar as they involved trial of persons who were not “members” of the armed forces, they must rest on the Government’s “war powers.” In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront. From a time prior to the adoption of the Constitution the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules.59 60 But neither Japan 59 Perlstein v. United States, 151 F. 2d 167, cert, granted, 327 U. S. 777, dismissed as moot, 328 U. S. 822; Hines v. Mikell, 259 F. 28; Ex parte Jochen, 257 F. 200; Ex parte Falls, 251 F. 415; Ex parte Gerlach, 247 F. 616; Shilman v. United States, 73 F. Supp. 648, reversed in part, 164 F. 2d 649, cert, denied, 333 U. S. 837; In re Berue, 54 F. Supp. 252; McCune v. Kilpatrick, 53 F. Supp. 80; In re Di Bartolo, 50 F. Supp. 929. 60 See, e. g., American Articles of War of 1775, Art. XXXII in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 953, 956. We have examined all the cases of military trial of civilians by the 34 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. nor Great Britain could properly be said to be an area where active hostilities were under way at the time Mrs. Smith and Mrs. Covert committed their offenses or at the time they were tried.61 The Government urges that the concept “in the field” should be broadened to reach dependents accompanying the military forces overseas under the conditions of world tension which exist at the present time. It points out how the “war powers” include authority to prepare defenses and to establish our military forces in defensive posture about the world. While we recognize that the “war powers” of the Congress and the Executive are British or American Armies prior to and contemporaneous with the Constitution that the Government has advanced or that we were able to find by independent research. Without exception these cases appear to have involved trials during wartime in the area of battle— “in the field”—or in occupied enemy territory. Even in these areas there are only isolated instances of military trial of “dependents” accompanying the armed forces. Apparently the normal method of disciplining camp followers was to expel them from the camp or to take away their ration privileges. 61 Experts on military law, the Judge Advocate General and the Attorney General have repeatedly taken the position that “in the field” means in an area of actual fighting. See, e. g., Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 100-102; Davis, Military Law (3d ed. 1915), 478-479; Dudley, Military Law and the Procedures of Courts-Martial (2d ed. 1908), 413-414; 14 Op. Atty. Gen. 22; 16 id., 48; Dig. Op. JAG (1912) 151; id. (1901) 56, 563; id. (1895 ) 76, 325-326, 599-600; id. (1880) 49, 211, 384. Cf. Walker v. Chief Quarantine Officer, 69 F. Supp. 980, 987. Article 2 (10) of the UCMJ, 50 U. S. C. § 552 (10), provides that in time of war persons serving with or accompanying the armed forces in the field are subject to court-martial and military law. We believe that Art. 2 (10) sets forth the maximum historically recognized extent of military jurisdiction over civilians under the concept of “in the field.” The Government does not attempt—and quite appropriately so—to support military jurisdiction over Mrs. Smith or Mrs. Covert under Art. 2 (10). REID v. COVERT. 35 1 Opinion of Black, J. broad,62 we reject the Government’s argument that present threats to peace permit military trial of civilians accompanying the armed forces overseas in an area where no actual hostilities are under way.63 The exigencies which have required military rule on the battlefront are not present in areas where no conflict exists. Military trial of civilians “in the field” is an extraordinary jurisdiction and it should not be expanded at the expense of the Bill of Rights. We agree with Colonel Winthrop, an expert on military jurisdiction, who declared: “a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace.” 64 (Emphasis not supplied.) As this Court stated in United States ex rel. Toth v. Quarles, 350 U. S. 11, the business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. Traditionally, military justice has been a rough form of justice emphasizing summary procedures, 62 Even during time of war the Constitution must be observed. Ex parte Milligan, 4 Wall. 2, at 120, declares: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” Also see Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 156; United States v. Commodities Trading Corp., 339 U. S. 121, 125. 63 Madsen v. Kinsella, 343 U. S. 341, is not controlling here. It concerned trials in enemy territory which had been conquered and held by force of arms and which was being governed at the time by our military forces. In such areas the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with the Army or not. 64 Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 107. 36 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. Because of its very nature and purpose the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civilian society and in civilian courts. Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of “command influence.” 65 66 * In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings—in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.68 65 See Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H. R. 4080, 81st Cong., 1st Sess.; Beets v. Hunter, 75 F. Supp. 825, rev’d on other grounds, 180 F. 2d 101, cert, denied, 339 U. S. 963; Shapiro v. United States, 107 Ct. Cl. 650, 69 F. Supp. 205. Cf. Keeffe, JAG Justice in Korea, 6 Catholic U. of Amer. L. Rev. 1. The officer who convenes the court-martial also has final authority to determine whether charges will be brought in the first place and to pick the board of inquiry, the prosecutor, the defense counsel, and the law officer who serves as legal adviser to the court-martial. 66 Speaking of the imperative necessity that judges be independent, Hamilton declared: . . [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; . . . nothing can contribute so much to its firmness and independence as permanency in office, this quality REID v. COVERT. 37 1 Opinion of Black, J. We recognize that a number of improvements have been made in military justice recently by engrafting more and more of the methods of civilian courts on courts-martial. In large part these ameliorations stem from the reaction of civilians, who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in the civil courts. Looming far above all other deficiencies of the military trial, of course, is the absence of trial by jury before an independent judge after an indictment by a grand jury. Moreover the reforms are merely statutory; Congress—and perhaps the President—can reinstate former practices, subject to any limitations imposed by the Constitution, whenever it desires.67 As yet it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials.68 may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” The Federalist, No. 78. 67 The chief legal officers of the armed services have already recommended to Congress that certain provisions of the UCMJ which were designed to provide protection to an accused should be repealed or limited in the interest of military order and efficiency. Joint Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury (1954). See Walsh, Military Law: Return to Drumhead Justice?, 42 A. B. A. J. 521. 68 Cf. Burns n. Wilson, 346 U. S. 137, 146, 148, 150; Note, 70 Harv. L. Rev. 1043, 1050-1053. But see Jackson v. Taylor, 353 U. S. 569; In re Grimley, 137 U. S. 147, 150. The exception in the Fifth Amendment, of course, provides that grand jury indictment is not required in cases subject to military trial and this exception has been read over into the Sixth Amendment so that the requirements of jury trial are inapplicable. Ex parte Quirin, 317 U. S. 1, 40. In Swaim v. United States, 165 U. S. 553, this Court held that the President or commanding officer had power to return a case to a court-martial for an 38 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law—law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms.69 It emphasizes the iron hand of discipline more that it does the even scales of justice. Moreover, it has not yet been definitely established to what extent the President, as Commander-in-Chief of the armed forces, or his delegates, can promulgate, supplement or change substantive military law as well as the procedures of military courts in time of peace, or in time of war.70 In any event, Congress has given the President broad discretion to provide the rules governing military trials.71 For example, in these very cases a technical manual issued under the President’s name with regard to the defense of insanity in military trials was of critical importance in the convictions of Mrs. Covert and Mrs. Smith. If the President can provide increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional. Cf. Kepner v. United States, 195 U. S. 100. 69 For example, Art. 134, UCMJ, 50 U. S. C. § 728 provides: “Though not specifically mentioned in this [Code], all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces . . . shall be taken cognizance of . . . and punished at the discretion of [a court-martial].” In 1942 the Judge Advocate General ruled that a civilian employee of a contractor engaged in construction at an Army base could be tried by court-martial under the predecessor of Article 134 for advising his fellow employees to slow down at their work. Dig. Op. JAG, 1941 Supp., 357. 70 See Ex parte Quirin, 317 U. S. 1, 28-29; United States v. Eliason, 16 Pet. 291, 301; Swaim v. United States, 165 U. S. 553. Cf. General Orders, No. 100, Official Records, War of Rebellion, Ser. Ill, Vol. Ill, April 24, 1863; 15 Op. Atty. Gen. 297 and Note attached. 71 Art. 36, UCMJ, 50 U. S. C. § 611. REID v. COVERT. 39 1 Opinion of Black, J. rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one branch of the Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers. In summary, “it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.” 72 In part this is attributable to the inherent differences in values and attitudes that separate the military establishment from civilian society. In the military, by necessity, emphasis must be placed on the security and order of the group rather than on the value and integrity of the individual. It is urged that the expansion of military jurisdiction over civilians claimed here is only slight, and that the practical necessity for it is very great.73 The attitude appears to be that a slight encroachment on the Bill of Rights and other safeguards in the Constitution reed cause little concern. But to hold that these wives could be tried by the military would be a tempting precedent. Slight encroachments create new boundaries from which legions of power can seek new territory to capture. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional 72 United States ex rel. Toth v. Quarles, 350 U. S. 11, 17. 73 According to the Government’s figures almost 95% of the civilians tried abroad by army courts-martial during the six-year period from 1949-1955 were tried for minor offenses. In this country “petty offenses” by civilians on military reservations are tried by civilian commissioners unless the alleged offender chooses trial in the Federal District Court. 18 U. S. C. §3401. 40 OCTOBER TERM, 1956. Opinion of Black, J. 354 U. S. practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”74 Moreover we cannot consider this encroachment a slight one. Throughout history many transgressions by the military have been called “slight” and have been justified as “reasonable” in light of the “uniqueness” of the times. We cannot close our eyes to the fact that today the peoples of many nations are ruled by the military. We should not break faith with this Nation’s tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. The country has remained true to that faith for almost one hundred seventy years. Perhaps no group in the Nation has been truer than military men themselves. Unlike the soldiers of many other nations, they have been content to perform their military duties in defense of the Nation in every period of need and to perform those duties well without attempting to usurp power which is not theirs under our system of constitutional government. Ours is a government of divided authority on the assumption that in division there is not only strength but freedom from tyranny. And under our Constitution courts of law alone are given power to try civilians for 74 Boyd v. United States, 116 U. S. 616, 635. REID v. COVERT. 41 1 Frankfurter, J., concurring in result. their offenses against the United States. The philosophy expressed by Lord Coke, speaking long ago from a wealth of experience, is still timely: “God send me never to live under the Law of Con-veniency or Discretion. Shall the Souldier and Justice Sit on one Bench, the Trumpet will not let the Cryer speak in Westminster-Hall.”75 In No. 701, Reid v. Covert, the judgment of the District Court directing that Mrs. Covert be released from custody is Affirmed. In No. 713, Kinsella v. Krueger, the judgment of the District Court is reversed and the case is remanded with instructions to order Mrs. Smith released from custody. Reversed and remanded. Mr. Justice Whittaker took no part in the consideration or decision of these cases. Mr. Justice Frankfurter, concurring in the result. These cases involve the constitutional power of Congress to provide for trial of civilian dependents accompanying members of the armed forces abroad by court-martial in capital cases. The normal method of trial of federal offenses under the Constitution is in a civilian tribunal. Trial of offenses by way of court-martial, with all the characteristics of its procedure so different from the forms and safeguards of procedure in the conventional courts, is an exercise of exceptional jurisdiction, arising from the power granted to Congress in Art. I, § 8, cl. 14, of the Constitution of the United States “To make Rules for the Government and Regula- 75 3 Rushworth, Historical Collections, App. 81. 430336 0—57--6 42 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. tion of the land and naval Forces.” Dynes v. Hoover, 20 How. 65; see Toth n. Quarles, 350 U. S. 11; Winthrop, Military Law and Precedents (2d ed. 1896), 52. Article 2 (11) of the Uniform Code of Military Justice, 64 Stat. 107, 109, 50 U. S. C. § 552 (11), and its predecessors were passed as an exercise of that power, and the agreements with England and Japan recognized that the jurisdiction to be exercised under those agreements was based on the relation of the persons involved to the military forces. See the agreement with Great Britain, 57 Stat. 1193, E. A. S. No. 355, and the United States of America (Visiting Forces) Act, 1942, 5 & 6 Geo. VI, c. 31; and the 1952 Administrative Agreement with Japan, 3 U. S. Treaties and Other International Agreements 3341, T. I. A. S. 2492. Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the “land and naval Forces,” and who therefore are not protected by specific provisions of Article III and the Fifth and Sixth Amendments. It is of course true that, at least regarding the right to a grand jury indictment, the Fifth Amendment is not unmindful of the demands of military discipline.1 Within the scope of appropriate construction, the phrase “except in cases arising in the land and naval Forces” has been assumed also to modify the guaranties of speedy and public trial 1 1 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces . . . .” Article 2 of the Uniform Code of Military Justice provides: “The following persons are subject to this code: . . . (11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States . . . REID v. COVERT. 43 1 Frankfurter, J., concurring in result. by jury. And so, the problem before us is not to be answered by recourse to the literal words of this exception. The cases cannot be decided simply by saying that, since these women were not in uniform, they were not “in the land and naval Forces.” The Court’s function in constitutional adjudications is not exhausted by a literal reading of words. It may be tiresome, but it is nonetheless vital, to keep our judicial minds fixed on the injunction that “it is a constitution we are expounding.” M’Culloch v. Maryland, 4 Wheat. 316, 407. Although Winthrop, in his treatise, states that the Constitution “clearly distinguishes the military from the civil class as separate communities” and “recognizes no third class which is part civil and part military—military for a particular purpose or in a particular situation, and civil for all other purposes and in all other situations . . . Winthrop, Military Law and Precedents (2d ed. 1896), 145, this Court, applying appropriate methods of constitutional interpretation, has long held, and in a variety of situations, that in the exercise of a power specifically granted to it, Congress may sweep in what may be necessary to make effective the explicitly worded power. See Jacob Ruppert v. Caffey, 251 U. S. 264, especially 289 et seq.; Purity Extract Co. n. Lynch, 226 U. S. 192, 201; Railroad Commission v. Chicago, Burlington & Quincy R. Co., 257 U. S. 563, 588. This is the significance of the Necessary and Proper Clause, which is not to be considered so much a separate clause in Art. I, § 8, as an integral part of each of the preceding 17 clauses. Only thus may be avoided a strangling literalness in construing a document that is not an enumeration of static rules but the living framework of government designed for an undefined future. M’Culloch v. Maryland, 4 Wheat. 316; Hurtado v. California, 110 U. S. 516, 530-531. Everything that may be deemed, as the exercise of an allowable judgment by Congress, to fall fairly within the 44 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. conception conveyed by the power given to Congress “To make Rules for the Government and Regulation of the land and naval Forces” is constitutionally within that legislative grant and not subject to revision by the independent judgment of the Court. To be sure, every event or transaction that bears some relation to “the land and naval Forces” does not ipso facto come within the tolerant conception of that legislative grant. The issue in these cases involves regard for considerations not dissimilar to those involved in a determination under the Due Process Clause. Obviously, the practical situations before us bear some relation to the military. Yet the question for this Court is not merely whether the relation of these women to the “land and naval Forces” is sufficiently close to preclude the necessity of finding that Congress has been arbitrary in its selection of a particular method of trial. For, although we must look to Art. I, § 8, cl. 14, as the immediate justifying power, it is not the only clause of the Constitution to be taken into account. The Constitution is an organic scheme of government to be dealt with as an entirety. A particular provision cannot be dissevered from the rest of the Constitution. Our conclusion in these cases therefore must take due account of Article III and the Fifth and Sixth Amendments. We must weigh all the factors involved in these cases in order to decide whether these women dependents are so closely related to what Congress may allowably deem essential for the effective “Government and Regulation of the land and naval Forces” that they may be subjected to court-martial jurisdiction in these capital cases, when the consequence is loss of the protections afforded by Article III and the Fifth and Sixth Amendments. We are not concerned here even with the possibility of some alternative non-military type of trial that does REID v. COVERT. 45 1 Frankfurter, J., concurring in result. not contain all the safeguards of Article III and the Fifth and Sixth Amendments. We must judge only what has been enacted and what is at issue. It is the power actually asserted by Congress under Art. I, § 8, cl. 14, that must now be adjudged in the light of Article III and the Fifth and Sixth Amendments. In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question. The Court has not before it, and therefore I need not intimate any opinion on, situations involving civilians, in the sense of persons not having a military status, other than dependents. Nor do we have before us a case involving a non-capital crime. This narrow delineation of the issue is merely to respect the important restrictions binding on the Court when passing on the constitutionality of an Act of Congress. “In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it ; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.” Steamship Co. v. Emigration Commissioners, 113 U. S. 33, 39. We are also not concerned here with the substantive aspects of the grant of power to Congress to “make Rules for the Government and Regulation of the land and naval Forces.” What conduct should be punished and what constitutes a capital case are matters for congressional discretion, always subject of course to any specific restrictions of the Constitution. These cases involve the validity of procedural conditions for determining the commission of a crime in fact punishable by death. The taking of life is irrevocable. It is in capital cases especially 46 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. that the balance of conflicting interests must be weighted most heavily in favor of the procedural safeguards of the Bill of Rights. Thus, in Powell v. Alabama, 287 U. S. 45, 71, the fact “above all that they stood in deadly peril of their lives” led the Court to conclude that the defendants had been denied due process by the failure to allow them reasonable time to seek counsel and the failure to appoint counsel. I repeat. I do not mean to imply that the considerations that are controlling in capital cases involving civilian dependents are constitutionally irrelevant in capital cases involving civilians other than dependents or in non-capital cases involving dependents or other civilians. I do say that we are dealing here only with capital cases and civilian dependents. The Government asserts that civilian dependents are an integral part of our armed forces overseas and that there is substantial military necessity for subjecting them to court-martial jurisdiction. The Government points out that civilian dependents go abroad under military auspices, live with military personnel in a military community, enjoy the privileges of military facilities, and that their conduct inevitably tends to influence military discipline. The prosecution by court-martial for capital crimes committed by civilian dependents of members of the armed forces abroad is hardly to be deemed, under modern conditions, obviously appropriate to the effective exercise of the power to “make Rules for the Government and Regulation of the land and naval Forces” when it is a question of deciding what power is granted under Article I and therefore what restriction is made on Article III and the Fifth and Sixth Amendments. I do not think that the proximity, physical and social, of these women to the “land and naval Forces” is, with due regard to all that has been put before us, so clearly demanded by the effective “Government and Regulation” REID v. COVERT. 47 1 Frankfurter, J., concurring in result. of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses. The Government speaks of the “great potential impact on military discipline” of these accompanying civilian dependents. This cannot be denied, nor should its implications be minimized. But the notion that discipline over military personnel is to be furthered by subjecting their civilian dependents to the threat of capital punishment imposed by court-martial is too hostile to the reasons that underlie the procedural safeguards of the Bill of Rights for those safeguards to be displaced. It is true that military discipline might be affected seriously if civilian dependents could commit murders and Other capital crimes with impunity. No one, however, challenges the availability to Congress of a power to provide for trial and punishment of these dependents for such crimes.2 The method of trial alone is in issue. The Government suggests that, if trial in an Article III court subject to the restrictions of the Fifth and Sixth Amendments is the only alternative, such a trial could not be held abroad practicably, and it would often be equally impracticable to transport all the witnesses back to the United States for trial. But, although there is no need to pass on that issue in this case, trial in the United States is obviously not the only practical alternative and other alternatives may raise different constitutional questions. The Government’s own figures for the Army show that the total number of civilians (all civilians “serving with, employed by, or accompanying the armed forces” overseas and not merely civilian dependents) for whom general courts-martial for alleged 2 Article III, § 2, cl. 3, provides that “The Trial of all Crimes . . . when not committed within any State . . . shall be at such Place or Places as the Congress may by Law have directed.” Since 1790, 1 Stat. 113-114, Congress has provided for such trial in the district where the offender is found (apprehended) or first brought. See 18 U. S. C. § 3238. 48 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. murder were deemed advisable3 was only 13 in the 7 fiscal years, 1950-1956. It is impossible to ascertain from the figures supplied to us exactly how many persons were tried for other capital offenses, but the figures indicate that there could not have been many. There is nothing to indicate that the figures for the other services are more substantial. It thus appears to be a manageable problem within the procedural restrictions found necessary by this opinion. A further argument is made that a decision adverse to the Government would mean that only a foreign trial could be had. Even assuming that the NATO Status of Forces Agreement, 4 U. S. Treaties and Other International Agreements 1792, T. I. A. S. 2846, covering countries where a large part of our armed forces are stationed, gives jurisdiction to the United States only through its military authorities, this Court cannot speculate that any given nation would be unwilling to grant or continue such extraterritorial jurisdiction over civilian dependents in capital cases if they were to be tried by some other manner than court-martial. And, even if such were the case, these civilian dependents would then 3 Under Article 19 of the Uniform Code of Military Justice, 64 Stat. 114, 50 U. S. C. § 579, a special court-martial may impose any punishment not forbidden by the Code “except death, dishonorable discharge, dismissal, confinement in excess of six months, hard labor without confinement in excess of three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for a period exceeding six months.” Under Art. 20, 64 Stat. 114, 50 U. S. C. § 580, a summary court-martial may impose any punishment not forbidden by the Code “except death, dismissal, dishonorable or bad-conduct discharge, confinement in excess of one month, hard labor without confinement in excess of forty-five days, restriction to certain specified limits in excess of two months, or forfeiture of pay in excess of two-thirds of one month’s pay.” In order to impose a punishment in excess of these limits, a general court-martial must be convened under Art. 18, 64 Stat. 114, 50 U. S. C. § 578. REID v. COVERT. 49 1 Frankfurter, J., concurring in result. merely be in the same position as are so many federal employees and their dependents and other United States citizens who are subject to the laws of foreign nations when residing there.4 See also the NATO Status of Forces Agreement, supra, Art. VII, § § 2, 3. The Government makes the final argument that these civilian dependents are part of the United States military contingent abroad in the eyes of the foreign nations concerned and that their conduct may have a profound effect on our relations with these countries, with a consequent effect on the military establishment there. But the argument that military court-martials in capital cases are necessitated by this factor assumes either that a military court-martial constitutes a stronger deterrent to this sort of conduct or that, in the absence of such a trial, no punishment would be meted out and our foreign policy thereby injured. The reasons why these considerations carry no conviction have already been indicated. I therefore conclude that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by Article I, considered in connection with the specific protections of Article III and the Fifth and Sixth Amendments. Since the conclusion thus reached differs from what the Court decided last Term, a decent respect for the judicial process calls for re-examination of the two grounds that then prevailed. The Court sustained its action on the 4 A Report of the Joint Committee on Reduction of Nonessential Federal Expenditures on Federal Personnel and Pay indicates that the executive agencies of the Federal Government, excluding the Department of Defense, alone employed 51,027 persons outside the continental United States in February 1957, excluding employees of the Panama Canal. S. Com. Print No. 157, 85th Cong., 1st Sess. Although these figures include “some foreign nationals,” they nevertheless indicate a substantial number of United States citizens subject to foreign law. See 103 Cong. Rec. 5313-5316. 50 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. authority of the cases dealing with the power of Congress to “make all needful Rules and Regulations” for the Territories, reinforced by In re Ross, 140 U. S. 453, in which this Court, in 1891, sustained the criminal jurisdiction of a consular court in Japan.5 These authorities grew out of, and related to, specific situations very different from those now here. They do not control or even embarrass the problem before us. Legal doctrines are not self-generated abstract categories. They do not fall from the sky; nor are they pulled out of it. They have a specific juridical origin and etiology. They derive meaning and content from the circumstances that gave rise to them and from the purposes they were designed to serve. To these they are bound as is a live tree to its roots. Doctrines like those expressed by the Ross case and the series of cases beginning with American Insurance Co. v. Canter, 1 Pet. 511, must be placed in their historical setting. They cannot be wrenched from it and mechanically transplanted into an alien, unrelated context without suffering mutilation or distortion. “If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal jerae naturae or a chose in action, then we would venture into thought. The difference might make a difference. We really are concerned about precedents chiefly when their facts differ somewhat from the facts in the case at bar. Then there is a gulf or hiatus that has to be bridged by a concern for principle and a concern for practical results and practical wisdom.” Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation, 5 Having based the constitutionality of Article 2(11) on these grounds, the Court concluded, “we have no need to examine the power of Congress ‘To make Rules for the Government and Regulation of the land and naval Forces’ under Article I of the Constitution.” 351 U. S. 470, 476. REID v. COVERT. 51 1 Frankfurter, J., concurring in result. 36. This attitude toward precedent underlies the whole system of our case law. It was thus summarized by Mr. Justice Brandéis: “It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation and that an expression in an opinion yields later to the impact of facts unforeseen.” Jaybird Mining Co. n. Weir, 271 U. S. 609, 619 (dissenting). Especially is this attitude to be observed in constitutional controversies. The territorial cases relied on by the Court last Term held that certain specific constitutional restrictions on the Government did not automatically apply in the acquired territories of Florida, Hawaii, the Philippines, or Puerto Rico. In these cases, the Court drew its decisions from the power of Congress to “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States,” for which provision is made in Art. IV, § 3. The United States from time to time acquired lands in which many of our laws and customs found an uncongenial soil because they ill accorded with the history and habits of their people. Mindful of all relevant provisions of the Constitution and not allowing one to frustrate another—which is the guiding thought of this opinion—the Court found it necessary to read Art. IV, § 3, together with the Fifth and Sixth Amendments and Article III in the light of those circumstances. The question arose most frequently with respect to the establishment of trial by jury in possessions in which such a system was wholly without antecedents. The Court consistently held with respect to such “Territory” that congressional power under Art. IV, § 3, was not restricted by the requirement of Art. Ill, § 2, cl. 3, and the Sixth Amendment of providing trial by jury. “If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the 52 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice. Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unknown to them and unsuited to their needs. We do not think it was intended, in giving power to Congress to make regulations for the territories, to hamper its exercise with this condition.” Dorr v. United States, 195 U. S. 138, 148.6 6 In Hawaii v. Mankichi, 190 U. S. 197, the Court rested its decision on an interpretation of the joint resolution of Congress annexing the Hawaiian Islands. The Court held that the act of annexation did not of its own force require indictment by grand jury and a trial by a Sixth Amendment jury. Implicit in this holding was the assumption that such indictment and trial were not constitutionally required in Hawaii. This assumption was based on a recognition REID v. COVERT. 53 1 Frankfurter, J., concurring in result. The “fundamental right” test is the one which the Court has consistently enunciated in the long series of cases— e. g., American Ins. Co. v. Canter, 1 Pet. 511; De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 182 U. S. 244; Dorr v. United States, 195 U. S. 138, Balzac v. Porto Rico, 258 U. S. 298—dealing with claims of constitutional restrictions on the power of Congress to “make all needful Rules and Regulations” for governing the unincorporated territories. The process of decision appropriate to the problem led to a detailed examination of the relation of the specific “Territory” to the United States. This examination, in its similarity to analysis in terms of “due process,” is essentially the same as that to be made in the present cases in weighing congressional power to make “Rules for the Government and Regulation of the land and naval Forces” against the safeguards of Article III and the Fifth and Sixth Amendments. The results in the cases that arose by reason of the acquisition of exotic “Territory” do not control the present cases, for the territorial cases rest specifically on Art. IV, § 3, which is a grant of power to Congress to deal with “Territory” and other Government property. Of course the power sought to be exercised in Great Britain and Japan does not relate to “Territory.” 7 The Court’s that the act should not be construed as “imposing upon the islands every provision of a Constitution, which must have been unfamiliar to a large number of their inhabitants, and for which no previous preparation had been made . . . .” Id., at 215-216. 7 For a statement of the applicable law before the question arose with respect to lands outside the continental limits of the United States, see Thompson v. Utah, 170 U. S. 343, 347: “It is equally beyond question that the provisions of the National Constitution relating to trials by jury for crimes and to criminal prosecutions apply to the Territories of the United States.” But see Mormon Church v. United States, 136 U. S. 1, 44: “Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the 54 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. opinions in the territorial cases did not lay down a broad principle that the protective provisions of the Constitution do not apply outside the continental limits of the United States. This Court considered the particular situation in each newly acquired territory to determine whether the grant to Congress of power to govern “Territory” was restricted by a specific provision of the Constitution. The territorial cases, in the emphasis put by them on the necessity for considering the specific circumstances of each particular case, are thus relevant in that they provide an illustrative method for harmonizing constitutional provisions which appear, separately considered, to be conflicting. The Court last Term relied on a second source of authority, the consular court case, In re Ross, 140 U. S. 453. Pursuant to a treaty with Japan, Ross, a British subject but a member of the crew of a United States ship, was tried and convicted in a consular court in Yokohama for murder of a fellow seaman while the ship was in Yokohama harbor. His application for a writ of habeas corpus to a United States Circuit Court was denied, 44 F. 185, and on appeal here, the judgment was affirmed. This Court set forth the ground of the Circuit Court, “the long and uniform acquiescence by the executive, administrative and legislative departments of the government in the validity of the legislation,” 140 U. S., at 461, and then stated: “The Circuit Court might have found an additional ground for not calling in question the legislation of Congress, in the uniform practice of civilized governments for centuries to provide consular tribunals in other than Christian countries ... for the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers, than by any express and direct application of its provisions.” REID v. COVERT. 55 1 Frankfurter, J., concurring in result. trial of their own subjects or citizens for offences committed in those countries, as well as for the settlement of civil disputes between them; and in the uniform recognition, down to the time of the formation of our government, of the fact that the establishment of such tribunals was among the most important subjects for treaty stipulations. . . . “The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. “We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out .... “. . . By the Constitution a government is ordained and established Tor the United States of America,’ and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad. . . . The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private 56 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. American vessel, it is true, is considered for manypurposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. . . .” 140 U. S., at 462-464. One observation should be made at the outset about the grounds for decision in Ross. Insofar as the opinion expressed a view that the Constitution is not operative outside the United States—and apparently Mr. Justice Field meant by “United States” all lands over which the United States flag flew, see John W. Burgess, How May the United States Govern Its Extra-Continental Territory?, 14 Pol. Sci. Q. 1 (1899)—it expressed a notion that has long since evaporated. Governmental action abroad is performed under both the authority and the restrictions of the Constitution—for example, proceedings before American military tribunals, whether in Great Britain or in the United States, are subject to the applicable restrictions of the Constitution. See opinions in Burns v. Wilson, 346 U. S. 137. The significance of the Ross case and its relevance to the present cases cannot be assessed unless due regard is accorded the historical context in which that case was decided. Ross is not rooted in any abstract principle or comprehensive theory touching constitutional power or its restrictions. It was decided with reference to a very particular, practical problem with a long history. To be mindful of this does not attribute to Mr. Justice Field’s opinion some unavowed historical assumption. On behalf of the whole Court, he spelled out the considerations that controlled it : “The practice of European governments to send officers to reside in foreign countries, authorized to REID v. COVERT. 57 Frankfurter, J., concurring in result. exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. ... In other than Christian countries they were, by treaty stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offences. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people.” 140 U. S., at 462-463. “It is true that the occasion for consular tribunals in Japan may hereafter be less than at present, as every year that country progresses in civilization and in the assimilation of its system of judicial pro- 430336 0—57--7 58 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. cedure to that of Christian countries, as well as in the improvement of its penal statutes; but the system of consular tribunals ... is of the highest importance, and their establishment in other than Christian countries, where our people may desire to go in pursuit of commerce, will often be essential for the protection of their persons and property.” Id., at 480.8 It is important to have a lively sense of this background before attempting to draw on the Ross case. Historians have traced grants of extraterritorial rights as far back as the permission given by Egypt in the 12th or 13th century B. C. to the merchants of Tyre to establish factories on the Nile and to live under their own law and practice their own religion. Numerous other instances of persons living under their own law in foreign lands existed in the later pre-Christian era and during the Roman Empire and the so-called Dark and Middle Ages—Greeks in 8 This feeling about the “non-Christian” nations of the world was widely shared. In his "Jubilee of the Constitution,” delivered on the 50th anniversary of the inauguration of George Washington, John Quincy Adams said: "The Declaration of Independence recognised the European law of nations, as practised among Christian nations, to be that by which they considered themselves bound, and of which they claimed the rights. This system is founded upon the principle, that the state of nature between men and between nations, is a state of peace. But there was a Mahometan law of nations, which considered the state of nature as a state of war—an Asiatic law of nations, which excluded all foreigners from admission within the territories of the state .... With all these different communities, the relations of the United States were from the time when they had become an independent nation, variously modified according to the operation of those various laws. It was the purpose of the Constitution of the United States to establish justice over them all.” Adams, Jubilee of the Constitution, 73. See also the views of Secretary of State Hamilton Fish, quoted in 351 U. S., at 484-485. REID v. COVERT. 59 1 Frankfurter, J., concurring in result. Egypt, all sorts of foreigners in Rome, inhabitants of Christian cities and states in the Byzantine Empire, the Latin kingdoms of the Levant, and other Christian cities and states, Mohammedans in the Byzantine Empire and China, and many others lived in foreign lands under their own law. While the origins of this extraterritorial jurisdiction may have differed in each country, the notion that law was for the benefit of the citizens of a country and its advantages not for foreigners appears to have been an important factor. Thus, there existed a long-established custom of extraterritorial jurisdiction at the beginning of the 15th century when the complete conquest of the Byzantine Empire by the Turks and the establishment of the Ottoman Empire substantially altered political relations between Christian Europe and the Near East. But commercial relations continued, and in 1535 Francis I of France negotiated a treaty with Suleiman I of Turkey that provided for numerous extraterritorial rights, including criminal and civil jurisdiction over all disputes among French subjects. 1 Ernest Char-rière, Négociations de la France dans le Levant 283. Other nations and eventually the United States in 1830, 8 Stat. 408, later negotiated similar treaties with the Turks. (For a more complete history of the development of extraterritorial rights and consular jurisdiction see 1 Calvo, Le Droit International Théorique et Pratique (5th ed., Rousseau, 1896), 2-18, 2 id., 9-12; Hinckley, American Consular Jurisdiction in the Orient, 1-9; 1 Mil-titz, Manuel des Consuls passim; Ravndal, The Origin of the Capitulations and of the Consular Institution, S. Doc. No. 34, 67th Cong., 1st Sess. 5-45, 56-96; Shih Shun Liu, Extraterritoriality, 23-66, 118 Studies in History, Economics and Public Law, Columbia University (1925); Twiss, The Law of Nations (Rev. ed. 1884), 443-457.) 60 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. The emergence of the nation-state in Europe and the growth of the doctrine of absolute territorial sovereignty changed the nature of extraterritorial rights. No longer were strangers to be denied the advantages of local law. Indeed, territorial sovereignty meant the exercise of sovereignty over all residents within the borders of the state, and the system of extraterritorial consular jurisdiction tended to die out among Christian nations in the 18th and 19th centuries. But a new justification was found for the continuation of that jurisdiction in those countries whose systems of justice were considered inferior, and it was this strong feeling with respect to Moslem and Far Eastern countries that was reflected, as we have seen, in the Ross opinion. Until 1842, China had asserted control over all foreigners within its territory, Shih Shun Liu, op. cit. supra, 76-89, but, as a result of the Opium War, Great Britain negotiated a treaty with China whereby she obtained consular offices in five open ports and was granted extraterritorial rights over her citizens. On July 3, 1844, Caleb Cushing negotiated a similar treaty on behalf of the United States. 8 Stat. 592. In a letter to Secretary of State Calhoun, he explained: “I entered China with the formed general conviction that the United States ought not to concede to any foreign state, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign state be of our own family of nations,—in a word, a Christian state.” Quoted in 7 Op. Atty. Gen. 495, 496-497. Later treaties continued the extraterritorial rights of the United States, and the Treaty of 1903 contained the following article demonstrating the purpose of those rights: “The Government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of Western nations, the REID v. COVERT. 61 I Frankfurter, J., concurring in result. United States agrees to give every assistance to such reform and will also be prepared to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in doing so.” 33 Stat. 2208, 2215. The first treaty with Japan was negotiated by Commodore Perry in 1854. 11 Stat. 597. It opened two ports, but did not provide for any exercise of judicial powers by United States officials. Under the Treaty of 1857, 11 Stat. 723, such power was given, and later treaties, which opened up further Japanese cities for trade and residence by United States citizens, retained these rights. The treaty of 1894, effective on July 17, 1899, however, ended these extraterritorial rights and Japan, even though a “non-Christian” nation, came to occupy the same status as Christian nations. 29 Stat. 848. The exercise of criminal jurisdiction by consuls over United States citizens was also provided for, at one time or another, in treaties with Borneo, 10 Stat. 909, 910; Siam, II Stat. 683, 684; Madagascar, 15 Stat. 491, 492; Samoan Islands, 20 Stat. 704; Korea, 23 Stat. 720, 721; Tonga Islands, 25 Stat. 1440, 1442, and, by virtue of most-favored-nation clauses, in treaties with Tripoli, 8 Stat. 154; Persia, 11 Stat. 709; the Congo, 27 Stat. 926; and Ethiopia, 33 Stat. 2254. The exercise of criminal jurisdiction was also provided for in a treaty with Morocco, 8 Stat. 100, by virtue of a most-favored-nation clause and by virtue of a clause granting jurisdiction if “any . . . citizens of the United States . . . shall have any disputes with each other.” The word “disputes” has been interpreted by the International Court of Justice to comprehend criminal as well as civil disputes. France v. United States, I. C. J. Reports 1952, pp. 176, 188-189. The treaties with Algiers, 8 Stat. 133, 224, 244; Tunis, 8 Stat. 62 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. 157; and Muscat, 8 Stat. 458, contained similar “disputes” clauses.9 The judicial power exercised by consuls was defined by statute and was sweeping: “Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.” Rev. Stat. § 4086. The consuls, then, exercised not only executive and judicial power, but legislative power as well. The number of people subject to the jurisdiction of these courts during their most active periods appears to 9 On August 1, 1956, the President approved Public Law 856, 84th Cong., 2d Sess., providing for the relinquishment by the President, at such time as he deemed appropriate, of the consular jurisdiction of the United States in Morocco, the only foreign country where United States consuls continued to exercise such jurisdiction. 70 Stat. 773. The jurisdiction was relinquished on October 6, 1956. N. Y. Times, Oct. 8, 1956, p. 1, col. 6. REID v. COVERT. 63 1 Frankfurter, J., concurring in result. have been fairly small. In the Chronicle & Directory for China, Japan, & the Philippines, for the year 1870, there is a listing of the total number of foreign, not just United States, residents in these three places. The list is 81 pages long, with a total of some 4,500 persons. (Pp. 54-134.) This same publication gives the following information about Japan: “The number of foreigners settled in Japan is as yet very small. At the end of the year 1862, the foreign community at Kanagawa, the principal of the three ports of Japan open to aliens, consisted of . . . thirty-eight Americans . . . and in the latter part of 1864 the permanent foreign residents at Kanagawa had increased to 300, not counting soldiers, of which number . . . about 80 [were] Americans .... At Nagasaki, the second port of Japan thrown open to foreign trade by the government, the number of alien settlers was as follows on the 1st of January, 1866:— . . . American citizens 32 ... . A third port opened to European and American traders, that of Hakodadi, in the north of Japan, was deserted, after a lengthened trial, by nearly all the foreign merchants settled there . . . .” (Appendix, p. 353.) The Statesman’s Yearbook of 1890 shows: China at the end of 1888: 1,020 Americans (p. 411); Japan in 1887: 711 Americans (p. 709); Morocco, 1889 estimate: “The number of Christians is very small, not exceeding 1,500.” (P. 739.) The Statesman’s Yearbook of 1901 shows: China at the end of 1899: 2,335 Americans (p. 484); Japan, December 31, 1898, just before the termination of our extraterritorial rights: 1,165 Americans (p. 809); Morocco: “The number of Christians does not exceed 6,000; the Christian population of Tangier alone probably amounts to 5,000.” (P. 851.) These figures of course do not include those civilians temporarily in the country coming within consular jurisdiction. 64 OCTOBER TERM, 1956. Frankfurter, J., concurring in result. 354 U. S. The consular court jurisdiction, then, was exercised in countries whose legal systems at the time were considered so inferior that justice could not be obtained in them by our citizens. The existence of these courts was based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in those countries. The Ross case, therefore, arose out of, and rests on, very special, confined circumstances, and cannot be applied automatically to the present situation, involving hundreds of thousands of American citizens in countries with civilized systems of justice. If Congress had established consular courts or some other non-military procedure for trial that did not contain all the protections afforded by Article III and the Fifth and Sixth Amendments for the trial of civilian dependents of military personnel abroad, we would be forced to a detailed analysis of the situation of the civilian dependent population abroad in deciding whether the Ross case should be extended to cover such a case. It is not necessary to do this in the present cases in view of our decision that the form of trial here provided cannot constitutionally be justified. The Government, apparently recognizing the constitutional basis for the decision in Ross, has, on rehearing, sought to show that civilians in general and civilian dependents in particular have been subject to military order and discipline ever since the colonial period. The materials it has submitted seem too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication. What has been urged on us falls far too short of proving a well-established practice—to be deemed to be infused into the Constitution—of court-martial jurisdiction, certainly not in capital cases, over such civilians in time of peace. REID v. COVERT. 65 1 Harlan, J., concurring in result. Mr. Justice Harlan, concurring in the result. I concur in the result, on the narrow ground that where the offense is capital, Article 2 (11 )T cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace. Since I am the only one among today’s majority who joined in the Court’s opinions of June 11, 1956, which sustained the court-martial jurisdiction in these cases, 351 U. S. 470, 487, I think it appropriate to state the reasons which led to my voting, first, to rehear these cases, 352 U. S. 901, and, now, to strike down that jurisdiction. I. The petitions for rehearing which were filed last summer afforded an opportunity for a greater degree of reflection upon the difficult issues involved in these cases than, at least for me, was possible in the short interval between the argument and decision of the cases in the closing days of last Term.1 2 As a result I became satisfied that this court-martial jurisdiction could in any event not be sustained upon the reasoning of our prior opinion. In essence, that reasoning was this: (1) Under In re Ross, 140 U. S. 453, and the Insular Cases,3 the requirement of a trial by an Article III court and the other specific safeguards of Article III and the Fifth and Sixth Amendments are not applicable to the trial of American citizens outside the United States; (2) there is thus no express constitutional prohibition against the use of courts- 1 50 U. S. C. §552 (11). 2 The cases were argued on May 3, 1956, and decided on June 11, 1956. 3 Downes n. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United States, 195 U. S. 138; Balzac v. Porto Rico, 258 U. S. 298. 66 OCTOBER TERM, 1956. Harlan, J., concurring in result. 354 U. S. martial for such trials abroad; (3) the choice of a court-martial in cases such as these was “reasonable,” because of these women’s connection with the military, and therefore satisfied due process; (4) the court-martial jurisdiction was thus constitutional. I have since concluded that this analysis was not sound, for two reasons: (1) The underlying premise of the prior opinion, it seems to me, is that under the Constitution the mere absence of a prohibition against an asserted power, plus the abstract reasonableness of its use, is enough to establish the existence of the power. I think this is erroneous. The powers of Congress, unlike those of the English Parliament, are constitutionally circumscribed. Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers. Hence the constitutionality of the statute here in question must be tested, not by abstract notions of what is reasonable “in the large,” so to speak, but by whether the statute, j as applied in these instances, is a reasonably necessary and j proper means of implementing a power granted to Congress by the Constitution. To say that the validity of the statute may be rested upon the inherent “sovereign powers” of this country in its dealings with foreign nations seems to me to be no more than begging the question. As I now see it, the validity of this court-martial I jurisdiction must depend upon whether the statute, as I applied to these women, can be justified as an exercise I of the power, granted to Congress by Art. I, § 8, cl. 14 of I the Constitution, “To make Rules for the Government I and Regulation of the land and naval Forces.” I can I find no other constitutional power to which this statute I can properly be related. I therefore think that we were I wrong last Term in considering that we need not decide I REID v. COVERT. 67 1 Harlan, J., concurring in result. the case in terms of the Article I power. In my opinion that question squarely confronts us. (2) I also think that we were mistaken in interpreting Ross and the Insular Cases as standing for the sweeping proposition that the safeguards of Article III and the Fifth and Sixth Amendments automatically have no application to the trial of American citizens outside the United States, no matter what the circumstances. Aside from the questionable wisdom of mortgaging the future by such a broad pronouncement, I am satisfied that our prior holding swept too lightly over the historical context in which this Court upheld the jurisdiction of the old consular and territorial courts in those cases. I shall not repeat what my brother Frankfurter has written on this subject, with which I agree. But I do not go as far as my brother Black seems to go on this score. His opinion, if I understand it correctly, in effect discards Ross and the Insular Cases as historical anomalies. I believe that those cases, properly understood, still have vitality, and that, for reasons suggested later, which differ from those given in our prior opinions, they have an important bearing on the question now before us. II. I come then to the question whether this court-martial jurisdiction can be justified as an exercise of Congress’ Article I power to regulate the armed forces. At the outset, I cannot accept the implication of my brother Black’s opinion that this Article I power was intended to be unmodified by the Necessary and Proper Clause of the Constitution,4 and that therefore this power 4 Article I, § 8, cl. 18 of the Constitution provides that Congress shall have the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 68 OCTOBER TERM, 1956. Harlan, J., concurring in result. 354 U. S. is incapable of expansion under changing circumstances. The historical evidence, in fact, shows quite the opposite. True, the records of the time indicate that the Founders shared a deep fear of an unchecked military branch. But what they feared was a military branch unchecked by the legislature, and susceptible of use by an arbitrary executive power.5 So far as I know, there is no evidence at all that the Founders intended to limit the power of the people, as embodied in the legislature, to make such laws in the regulation of the land and naval forces as are necessary to the proper functioning of those forces. In other words, there is no indication that any special limitation on the power of Congress, as opposed to the power of the executive, was subsumed in the grant of power to govern the land and naval forces. Alexander Hamilton, indeed, stated exactly the opposite: 6 “The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be 5 Thus, proposals to limit the size of the standing army in times of peace to a specific number of men in the Constitution were defeated at the Constitutional Convention. See 5 Elliot’s Debates 442-443 (“no room for . . . distrust of the representatives of the people”). See also The Federalist, No. 24: “[T]he whole power of raising armies was lodged in the Legislature, not in the Executive; . . . this legislature was to be a popular body, consisting of the representatives of the people periodically elected . . . .” 6 The Federalist, No. 23. REID v. COVERT. 69 1 Harlan, J., concurring in result. imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. . . Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. . . . “Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. ... A government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. Wherever these can with propriety be confided, the coincident powers may safely accompany them.” No less an authority than Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, has taught us that the Necessary and Proper Clause is to be read with all the powers of Congress, so that “where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.” Id., at 423. 70 OCTOBER TERM, 1956. Harlan, J., concurring in result. 354 U. S. I think it no answer to say, as my brother Black does, that “having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of [Art. I] Clause 14.” For that simply begs the question as to whether there is such a collision, an issue to which I address myself below. For analytical purposes, I think it useful to break down the issue before us into two questions: First, is there a rational connection between the trial of these army wives by court-martial and the power of Congress to make rules for the governance of the land and naval forces; in other words, is there any initial power here at all? Second, if there is such a rational connection, to what extent does this statute, though reasonably calculated to subserve an enumerated power, collide with other express limitations on congressional power; in other words, can this statute, however appropriate to the Article I power looked at in isolation, survive against the requirements of Article III and the Fifth and Sixth Amendments? I recognize that these two questions are ultimately one and the same, since the scope of the Article I power is not separable from the limitations imposed by Article III and the Fifth and Sixth Amendments. Nevertheless I think it will make for clarity of analysis to consider them separately. A. I assume, for the moment, therefore, that we may disregard other limiting provisions of the Constitution, and examine the Article I power in isolation. So viewed, I do not think the courts-martial of these army wives can be said to be an arbitrary extension of congressional power. It is suggested that historically the Article I power was intended to embody a rigid and unchangeable selflimitation, namely, that it could apply only to those REID v. COVERT. 71 1 Harlan, J., concurring in result. in the actual service of the armed forces.7 I cannot agree that this power has any such rigid content. First of all, the historical evidence presented by the Government convinces me that, at the time of the adoption of the Constitution, military jurisdiction was not thought to be rigidly limited to uniformed personnel. The fact is that it was traditional for “retainers to the camp” to be subjected to military discipline, that civilian dependents encamped with the armies were traditionally regarded as being in that class, and that the concept was not strictly limited to times of war.8 Indeed, the British, who are no less sensitive than we to maintaining the supremacy of civil justice, have recently enacted a law comparable to the statute involved here.9 Thinking, as I do, that Article I, still taking it in isolation, must be viewed as supplemented by the Necessary and Proper Clause, I cannot say that the court-martial jurisdiction here involved has no rational connection with the stated power. The Government, it seems to me, has 7 To be sure, the opinion does “recognize that there might be circumstances where a person could be ‘in’ the armed services for purposes of [Art. I, § 8] Clause 14 even though he had not formally been inducted into the military or did not wear a uniform.” It continues, however, to state categorically that “wives, children and other dependents of servicemen cannot be placed in that category . . . .” 8 The essential element was thought to be, not so much that there be war, in the technical sense, but rather that the forces and their retainers be “in the field.” The latter concept, in turn, would seem to have extended to any area where the nature of the military position and the absence of civil authority made military control over the whole camp appropriate. See, in general, Blumenthal, Women Camp Followers of the American Revolution. The British history is the same. See, in particular, Samuel, Historical Account of the British Army and of the Law Military, pp. 691-692. 9 Army Act, 1955, 3 & 4 Eliz. II, c. 18, §209; and see Fifth Schedule, id., at 219. 72 OCTOBER TERM, 1956. Harlan, J., concurring in result. 354 U. S. made a strong showing that the court-martial of civilian dependents abroad has a close connection to the proper and effective functioning of our overseas military contingents. There is no need to detail here the various aspects of this connection, which have been well dealt with in the dissenting opinion of my brother Clark. Suffice it to say that to all intents and purposes these civilian dependents are part of the military community overseas,10 11 are so regarded by the host country, and must be subjected to the same discipline if the military commander is to have the power to prevent activities which would jeopardize the security and effectiveness of his command.11 The matter has been well summarized by General Palmer, Commander of the Eighth Army, stationed in Japan: “Jurisdiction by courts-martial over all civilians accompanying the Army overseas is essential because of the manner in which U. S. Armed Forces personnel 10 These dependents are taken abroad only because their presence is deemed necessary to the morale and proper functioning of our armies overseas. They are transported at government expense, carry passports identifying them as service dependents, are admitted to the host country without visas, use military payment certificates, and receive the benefit of army postal facilities and privileges. They enjoy the tax exemptions and customs benefits of the military. They are treated at service hospitals, their children go to schools maintained by the Government, and they share with the military the recreational facilities provided by the Government. They are housed and furnished heat, light, fuel, water, and telephone service by the military, as well as receiving transportation, food, and clothing from military sources. 11 This necessity is particularly acute with regard to peculiarly “military” and “local” offenses which must be dealt with swiftly and effectively. Thus security regulations at these military installations must be enforced against civilian dependents as well as servicemen; the same is true of base traffic violations, black marketeering, and misuse of military customs and post-exchange privileges. REID v. COVERT. 73 1 Harlan, J., concurring in result. live in their overseas military communities. In this command, almost all personnel serving in or accompanying the U. S. Armed Forces live in or near separate, closely-knit U. S. military communities which are basically under the control, administration and supervision of the local U. S. Commander who is in turn responsive to the normal military chain of command. This responsibility which is vested in the military commander extends to the administration and supervision of the operation and use of all facilities and major activities of the community including the proper control of occupants and users which is inherent in such supervision overseas. In the absence of a supporting judicial system responsive to the same government as the military, such as is the case existing in the United States and overseas possessions, and as the law enforcement requirement stems primarily from the immediate unalterable responsibilities of the overseas commander and his subordinate commanders, it is essential that the commander be vested with the law enforcement authority commensurate with his responsibilities.” It seems to me clear on such a basis that these dependents, when sent overseas by the Government, become pro tanto a part of the military community. I cannot say, therefore, that it is irrational or arbitrary for Congress to subject them to military discipline. I do not deal now, of course, with the problem of alternatives to court-martial jurisdiction; all that needs to be established at this stage is that, viewing Art. I, § 8, cl. 14 in isolation, subjection of civilian dependents overseas to court-martial jurisdiction can in no wise be deemed unrelated to the power of Congress to make all necessary and proper laws to insure the effective governance of our overseas land and naval forces. 430336 O—57--8 74 OCTOBER TERM, 1956. Harlan, J., concurring in result. 354 U. S. B. I turn now to the other side of the coin. For no matter how practical and how reasonable this jurisdiction might be, it still cannot be sustained if the Constitution guarantees to these army wives a trial in an Article III court, with indictment by grand jury and jury trial as provided by the Fifth and Sixth Amendments. We return, therefore, to the Ross question: to what extent do these provisions of the Constitution apply outside the United States? As I have already stated, I do not think that it can be said that these safeguards of the Constitution are never operative without the United States, regardless of the particular circumstances. On the other hand, I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution “does not apply” overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a specific guarantee altogether impracticable and anomalous. To take but one example: Balzac v. Porto Rico, 258 U. S. 298, is not good authority for the proposition that jury trials need never be provided for American citizens tried by REID v. COVERT. 75 1 Harlan, J., concurring in result. the United States abroad; but the case is good authority for the proposition that there is no rigid rule that jury trial must always be provided in the trial of an American overseas, if the circumstances are such that trial by jury would be impractical and anomalous. In other words, what Ross and the Insular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of Americans overseas. I think the above thought is crucial in approaching the cases before us. Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not “apply” overseas. But, for me, the question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it. The question is one of judgment, not of compulsion. And so I agree with my brother Frankfurter that, in view of Ross and the Insular Cases, we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is “due” a defendant in the particular circumstances of a particular case. On this basis, I cannot agree with the sweeping proposition that a full Article III trial, with indictment and trial by jury, is required in every case for the trial of a civilian dependent of a serviceman overseas. The Government, it seems to me, has made an impressive showing that at least for the run-of-the-mill offenses committed by dependents overseas, such a requirement would 76 OCTOBER TERM, 1956. Harlan, J., concurring in result. 354 U. S. be as impractical and as anomalous as it would have been to require jury trial for Balzac in Porto Rico.12 Again, I need not go into details, beyond stating that except for capital offenses, such as we have here, to which, in my opinion, special considerations apply, I am by no means ready to say that Congress’ power to provide for trial by court-martial of civilian dependents overseas is limited by Article III and the Fifth and Sixth Amendments. 12 The practical circumstances requiring some sort of disciplinary jurisdiction have already been adverted to, supra, pp. 71-73. These circumstances take on weight when viewed in light of the alternatives available to Congress—certainly a crucial question in weighing the need for dispensing with particular constitutional guarantees abroad. What are these alternatives? (1) One is to try all offenses committed by civilian dependents abroad in the United States. But the practical problems in the way of such a choice are obvious and overwhelming. To require the transportation home for trial of every petty black marketeer or violator of security regulations would be a ridiculous burden on the Government, quite aside from the problems of persuading foreign witnesses to make the trip and of preserving evidence. It can further be deemed doubtful in the extreme whether foreign governments would permit crimes punishable under local law to be tried thousands of miles away in the United States. (2) Civilian trial overseas by the United States also presents considerable difficulties. If juries are required, the problem of jury recruitment would be difficult. Furthermore, it is indeed doubtful whether some foreign governments would accede to the creation of extraterritorial United States civil courts within their territories— courts which by implication would reflect on the fairness of their own tribunals and which would smack unpleasantly of consular courts set up under colonial “capitulations.” (3) The alternative of trial in foreign courts, in at least some instances, is no more palatable. Quite aside from the fact that in some countries where we station troops the protections granted to criminal defendants compare unfavorably with our own minimum standards, the fact would remain that many of the crimes involved—particularly breaches of security—are not offenses under foreign law at all, and thus would go completely unpunished. Add to this the undesirability of foreign police carrying out investigations in our military installations abroad, and it seems to me clear that this alternative does not commend itself. REID v. COVERT. 77 1 Harlan, J., concurring in result. Where, if at all, the dividing line should be drawn among cases not capital, need not now be decided. We are confronted here with capital offenses alone; and it seems to me particularly unwise now to decide more than we have to. Our far-flung foreign military establishments are a new phenomenon in our national life, and I think it would be unfortunate were we unnecessarily to foreclose, as my four brothers would do, our future consideration of the broad questions involved in maintaining the effectiveness of these national outposts, in the light of continuing experience with these problems. So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority. I do not concede that whatever process is “due” an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. The distinction is by no means novel, compare Powell v. Alabama, 287 U. S. 45, with Betts v. Brady, 316 U. S. 455; nor is it negligible, being literally that between life and death. And, under what I deem to be the correct view of Ross and the Insular Cases, it is precisely the kind of distinction which plays a large role in the process of weighing the competing considerations which lead to sound judgment upon the question whether certain safeguards of the Constitution should be given effect in the trial of an American citizen abroad. In fact, the Government itself has conceded that one grave offense, treason, presents a special case: “The gravity of this offense is such that we can well assume that, whatever difficulties may be involved in trial far from the scene of the offense . . . the trial should be in our courts.” I see no reason for not applying the same principle to any case where a civilian 78 OCTOBER TERM, 1956. Clark, J., dissenting. 354 U. S. dependent stands trial on pain of life itself. The number of such cases would appear to be so negligible that the practical problems of affording the defendant a civilian trial would not present insuperable problems. On this narrow ground I concur in the result in these cases. Mr. Justice Clark, with whom Mr. Justice Burton joins, dissenting. The Court today releases two women from prosecution though the evidence shows that they brutally killed their husbands, both American soldiers, while stationed with them in quarters furnished by our armed forces on its military installations in foreign lands. In turning these women free, it declares unconstitutional an important section of an Act of Congress governing our armed forces. Furthermore, four of my brothers would specifically overrule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross, 140 U. S. 453 (1891), cited by this Court with approval in many opinions and as late as 1929 by a unanimous Court1 in Ex parte Bakelite Corp., 279 U. S. 438, 451. And, finally, the Court reverses, sets aside, and overrules two majority opinions and judgments of this Court in these same cases, reported in 351 U. S., at 470 and 487, and entered on June 11, 1956, less than 12 months ago. In substitute therefor it enters no opinion whatever for the Court. It is unable to muster a majority. Instead, there are handed down three opinions. But, worst of all, it gives no authoritative guidance as to what, if anything, the Executive or the Congress may do to remedy the distressing situation in which they now find themselves. 1 1 The Court was composed of Chief Justice Taft and Associate Justices Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, and Stone. Mr. Justice Van Devanter wrote the opinion for the Court. REID v. COVERT. 79 1 Clark, J., dissenting. Mr. Justice Burton and I remain convinced that the former opinions of the Court are correct and that they set forth valid constitutional doctrine under the long-recognized cases of this Court. The opinions were neither written nor agreed to in haste and they reflect the consensus of the majority reached after thorough discussion at many conferences. In fact, the cases were here longer both before and after argument than many of the cases we decide. We adhere to the views there expressed since we are convinced that through them we were neither “mortgaging the future,” as is claimed, nor foreclosing the present, as does the judgment today. We do not include a discussion of the theory upon which those former judgments were entered because we are satisfied with its handling in the earlier opinions. See 351 U. S., at 470 and 487. I. Before discussing the power of the Congress under Art. I, § 8, cl. 14, of the Constitution it is well to take our bearings. These cases do not involve the jurisdiction of a military court-martial sitting within the territorial limits of the United States. Nor are they concerned with the power of the Government to make treaties or the legal relationship between treaties and the Constitution. Nor are they concerned with the power of Congress to provide for the trial of Americans sojourning, touring, or temporarily residing in foreign nations. Essentially, we are to determine only whether the civilian dependents of American servicemen may constitutionally be tried by an American military court-martial in a foreign country for an offense committed in that country. Congress has provided in Article 2 (11) of the Uniform Code of Military Justice, 64 Stat. 109, 50 U. S. C. § 552 (11), that they shall be so tried in those countries with which we have an implementing treaty. The question therefore is whether 80 OCTOBER TERM, 1956. Clark, J., dissenting. 354 U. S. this enactment is reasonably related to the power of Congress “To make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, § 8, cl. 14. Historically, the military has always exercised jurisdiction by court-martial over civilians accompanying armies in time of war. Over 40 years ago this jurisdiction was declared by Congress to include “all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States.” 2 Art. of War 2 (d), 39 Stat. 651. Article 2 (11) of the present Uniform Code of Military Justice was taken without material change from this provision of the Articles of War. At the time of enactment of the earlier provision Congress was plainly concerned with the maintenance of discipline and morale of American expeditionary forces composed of both military and civilian personnel. As pointed out in the Senate Report to the Sixty-fourth Congress at the time Article 2 (d) was adopted: “The existing articles are further defective in that they do not permit the disciplining of these three classes of camp followers in time of peace in places to which the civil jurisdiction of the United States does not extend and where it is contrary to international policy to subject such persons to the local jurisdiction, or where, for other reasons, the law of the local jurisdiction is not applicable, thus leaving these classes practically without liability to punishment for their unlawful acts under such circumstances—as, for example, . . . where such forces so 2 An interesting and authoritative treatment of court-martial jurisdiction over camp followers is found in Blumenthal, Women Camp Followers of the American Revolution (1952). It points out many instances where women, not in the armed services, were subjected to a court-martial long after the war had ended. This was not taken to be an “astronomical doctrine” either in our forces or abroad. REID v. COVERT. 81 1 Clark, J., dissenting. accompanied are engaged in the nonhostile occupation of foreign territory, as was the case during the intervention of 1906-7 in Cuba.” S. Rep. No. 130, 64th Cong., 1st Sess. 37-38. Since that time the power of Congress to make civilians amenable to military jurisdiction under such circumstances has been considered and sustained by this Court and other federal courts in a number of cases. In Madsen v. Kinsella, 343 U. S. 341 (1952), we sustained the jurisdiction of a military commission to try a civilian wife for the murder of her husband in Germany in 1949. Unlike Mrs. Smith, the petitioner in Madsen contended that a military court-martial had exclusive jurisdiction to try her pursuant to Article of War 2 (d), the predecessor of Article 2 (11). In upholding the constitutionality of trial by a military commission, we pointed out that its jurisdiction was concurrent with that of the military court-martial, 343 U. S., at 345, and that the jurisdiction of both stemmed directly from Article 2 (d), 343 U. S., at 361. It is contended that no holding on the validity of court-martial jurisdiction over civilians was necessary to our decision in Madsen and that the case itself is distinguishable because occupied territory was involved and hence the action of Congress could be supported under the War Power. It is true that our reference to concurrent court-martial jurisdiction—when both petitioner and the Government agreed to it—was a concomitant to that decision, but our recognition of the power of Congress to authorize military trial of civilians under the circumstances provided for in Article 2 (d) was essential to the judgment. 343 U. S., at 361. Madsen was factually very similar to the present case, and in terms of the relevant considerations involved it is practically indistinguishable. In Madsen, as here, the crime involved was murder of a serviceman by a dependent wife living as a civilian with 82 OCTOBER TERM, 1956. Clark, J., dissenting. 354 U. S. our armed forces in a foreign country. In both cases jurisdiction was exercised by a military tribunal pursuant to an Act of Congress authorizing such jurisdiction over all persons accompanying the armed forces outside the territorial jurisdiction of the United States. The distinction that in one case the trial was by court-martial and in the other by a military commission is insubstantial. The contention that jurisdiction could be sustained in Madsen under the War Power of Congress but that this power is unavailable to authorize jurisdiction in Smith is likewise without merit.3 Aside from the fact that this Court has never restricted so narrowly the action that Congress might take under the War Power, see Ashwander v. T. V. A., 297 U. S. 288 (1936), and Silesian-American Corp. v. Clark, 332 U. S. 469 (1947), there is as much, if not more, justification for employment of the War Power in Japan in 1952 as in Germany in 1949. At the time Mrs. Smith’s crime was committed, Japan was the logistics and aviation base for actual hostilities then being waged in Korea, just across the Sea of Japan. And in 1949, Germany, after four years of peaceful and uneventful occupation, could hardly be considered an area where Congress could act only under its War Power. But the salient feature common to both countries was that the problems of maintaining control, morale, and discipline of our military contingents located there were substantially identical. These problems were not appreciably affected by the fact that one instance occurred during an occupation and the other shortly after a peace treaty had been signed. Earlier, in Duncan n. Kahanamoku, 327 U. S. 304, 313 (1946), this Court had recognized the “well-established 3 In this connection see “Madsen v. Kinsella—Landmark and Guidepost in Law of Military Occupation,” by John M. Raymond, Assistant Legal Adviser, Department of State, 47 Am. J. Int’l L. 300 (1953). REID v. COVERT. 83 1 Clark, J., dissenting. power of the military” to exercise jurisdiction over persons directly connected with the armed forces, and this power has been repeatedly recognized in cases decided in the lower federal courts. See United States ex rel. Mobley v. Handy, 176 F. 2d 491 (1949); Perlstein v. United States, 151 F. 2d 167 (1945); Grewe v. France, 75 F. Supp. 433 (1948); In re Berue, 54 F. Supp. 252 (1944); Hines v. Mikell, 259 F. 28 (1919); Ex parte Jochen, 257 F. 200 (1919); Ex parte Falls, 251 F. 415 (1918); Ex parte Gerlach, 247 F. 616 (1917). See also United States v. Burney, 6 U. S. C. M. A. 776, 21 C. M. R. 98 (1956). In considering whether Article 2 (11) is reasonably necessary to the power of Congress to provide for the government of the land and naval forces we note, as relevant, certain other considerations. As a nation we have found it necessary to the preservation of our security in the present day to maintain American forces in 63 foreign countries throughout the world. In recent years the services have recognized that the presence of wives and families at many of these foreign bases is essential to the maintenance of the morale of our forces. This policy has received legislative approval and the tremendous expense to the Government involved in the transportation and accommodation of dependents overseas is considered money well spent. It is not for us to question this joint executive and legislative determination. The result, however, has been the creation of American communities of mixed civilian and military population on military bases throughout the world. These civilians are dependent on the military for food, housing, medical facilities, transportation, and protection. Often they live in daily association in closely knit groups nearly isolated from their surroundings. It cannot be denied that disciplinary problems have been multiplied and complicated by this influx of civilians onto military bases, and Congress has provided that military personnel and civilians 84 OCTOBER TERM, 1956. Clark, J., dissenting. 354U.S. alike shall be governed by the same law administered by the same courts. Concerning the effect of civilian activities under such circumstances on the discipline and morale of the armed services, we have found no better statement than that of Judge Latimer of the United States Court of Military Appeals where the constitutionality of Article 2(11) was upheld in the recent case of United States v. Burney, 6 U. S. C. M. A. 776, 21 C. M. R. 98 (1956). Referring to the combat readiness of an overseas command, Judge Latimer stated: “ [I] t is readily ascertainable that black market transactions, trafficking in habit-forming drugs, unlawful currency circulation, promotion of illicit sex relations, and a myriad of other crimes which may be perpetrated by persons closely connected with one of the services, could have a direct and forceful impact on the efficiency and discipline of the command. One need only view the volume of business transacted by military courts involving, for instance, the sale and use of narcotics in the Far East, to be shocked into a realization of the truth of the previous statement. If the Services have no power within their own system to punish that type of offender, then indeed overseas crime between civilians and military personnel will flourish and that amongst civilians will thrive unabated and untouched. A few civilians plying an unlawful trade in military communities can, without fail, impair the discipline and combat readiness of a unit. At best, the detection and prosecution of crime is a difficult and time-consuming business, and we have grave doubts that, in faraway lands, the foreign governments will help the cause of a military commander by investigating the seller or user of habit-forming drugs, or assist him in de REID v. COVERT. 85 1 Clark, J., dissenting. terring American civilians from stealing from their compatriots, or their Government, or from misusing its property.” 6 U. S. C. M. A., at 800, 21 C. M. R., at 122. In addition, it is reasonable to provide that the military commander who bears full responsibility for the care and safety of those civilians attached to his command should also have authority to regulate their conduct. Moreover, all members of an overseas contingent should receive equal treatment before the law. In their actual day-to-day living they are a part of the same unique communities, and the same legal considerations should apply to all. There is no reason for according to one class a different treatment than is accorded to another. The effect of such a double standard on discipline, efficiency, and morale can easily be seen. In United States ex rel. Toth n. Quarles, 350 U. S. 11 (1955), the Court recognized this necessity. There Art. I, § 8, cl. 14, was “given its natural meaning” and “would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.” (Emphasis added.) Id., at 15. The Court went on to say: “It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex-servicemen the benefit of a civilian court trial when they are actually civilians. . . . Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new 86 OCTOBER TERM, 1956. Clark, J., dissenting. 354 U. S. expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.” Id., at 22-23. These women were as much “a part” of the military installation as were their husbands. Upon attack by an enemy they would be so treated; all foreign governments so recognized them at all times; and, in addition, it has been clearly shown, unlike in Toth, that “the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed” by excluding them from the provisions of the Uniform Code. Every single one of our major military commanders over the world has filed a statement to this effect in this case. We should not substitute our views as to this necessity for the views of those charged with the responsibility of the protection of such far-flung outposts of the free world. The former minority, however, repudiates this underlying basis of the opinion in Toth, namely, that where disciplinary measures are necessary to the regulation of the armed forces the Congress does have constitutional power to make rules. In my opinion the rules it has made are necessary to the regulation of the land and naval forces and the means chosen, the Uniform Code, is in no way an unreasonable one. There remains the further consideration of whether this provision is “ ‘the least possible power adequate to the end proposed.’ ” United States ex rel. Toth v. Quarles, supra, at 23. This is the strict standard by which we determine the scope of constitutional power of Congress to authorize trial by court-martial. A study of the problem clearly indicates that the use of the Uniform Code of Military Justice was really the only practicable alternative available. While it was conceded before this Court that Congress could have established a system of territorial or consular REID v. COVERT. 87 1 Clark, J., dissenting. courts to try offenses committed by civilian dependents abroad, the action of four of my brothers who would overrule and two who would impair the vitality of In re Ross, supra, places this alternative in jeopardy. Territorial courts have been used by our Government for over a century and have always received the sanction of this Court until today. However, in the light of all of the opinions of the former minority here, the use of a system of territorial or consular courts is now out of the question. Moreover, Congress probably had concluded to abandon this system before the Uniform Code was adopted, since a short time thereafter the jurisdiction of the last of our territorial or consular courts was terminated. 70 Stat. 773. Another alternative the Congress might have adopted was the establishment of federal courts pursuant to Article III of the Constitution. These constitutional courts would have to sit in each of the 63 foreign countries where American troops are stationed at the present time. Aside from the fact that the Constitution has never been interpreted to compel such an undertaking, it would seem obvious that it would be manifestly impossible. The problem of the use of juries in common-law countries alone suffices to illustrate this. Obviously the jury could not be limited to those who live within the military installation. To permit this would be a sham. A jury made up of military personnel would be tantamount to the personnel of a court-martial to which the former minority objects. A jury composed of civilians residing on the military installation is subject to the same criticism. If the jury is selected from among the local populace, how would the foreign citizens be forced to attend the trial? And perchance if they did attend, language barriers in non-English-speaking countries would be nigh insurmountable. Personally, I would much prefer, as did Mrs. Madsen, that my case be tried before a 88 OCTOBER TERM, 1956. Clark, J., dissenting. 354 U. S. military court-martial of my own countrymen. Moreover, we must remember that the agreement of the foreign country must be obtained before any American court could sit in its territory. In noncommon-law countries, if such courts were permitted to sit—a doubtful possibility—our jury system would be tossed about like a cork on unsettled waters. Likewise, trial of offenders by an Article III court in this country, perhaps workable in some cases, is equally impracticable as a general solution to the problem. The hundreds of petty cases involving black-market operations, narcotics, immorality, and the like, could hardly be brought here for prosecution even if the Congress and the foreign nation involved authorized such a procedure. Aside from the tremendous waste of the time of military personnel and the resultant disruptions, as well as the large expenditure of money necessary to bring witnesses and evidence to the United States, the deterrent effect of the prosecution would be nil because of the delay and distance at which it would be held. Furthermore, compulsory process is an essential to any system of justice. The attendance of foreign nationals as witnesses at a judicial proceeding in this country could rest only on a voluntary basis and depositions could not be required. As a matter of international law such attendance could never be compelled and the court in such a proceeding would be powerless to control this vital element in its procedure. In short, this solution could only result in the practical abdication of American judicial authority over most of the offenses committed by American civilians in foreign countries. The only alternative remaining—probably the alternative that the Congress will now be forced to choose—is that Americans committing offenses on foreign soil be tried by the courts of the country in which the offense is committed. Foreign courts have exclusive jurisdiction REID v. COVERT. 89 1 Clark, J., dissenting. under the principles of international law and many nations enjoy concurrent jurisdiction with the American military authorities pursuant to Article VII of the Agreement Regarding Status of Forces of Parties to the North Atlantic Treaty.4 Where the American military authorities do have jurisdiction, it is only by mutual agreement with the foreign sovereign concerned and pursuant to carefully drawn agreements conditioned on trial by the American military authorities. Typical of these agreements was the one concluded between the United States and Japan on February 28, 1952, and in force at the time one of these cases arose. Under this and like agreements, the jurisdiction so ceded to the United States military courts will surely be withdrawn if the services are impotent to exercise it. It is clear that trial before an American court-martial in which the fundamentals of due process are observed is preferable to leaving American servicemen and their dependents to the widely varying standards of justice in foreign courts throughout the world. Under these circumstances it is untenable to say that Congress could have exercised a lesser power adequate to the end proposed. II. My brothers who are concurring in the result seem to find some comfort in that for the present they void an Act of Congress only as to capital cases. I find no distinction in the Constitution between capital and other cases. In fact, at argument all parties admitted there could be no valid difference. My brothers are careful not to say that they would uphold the Act as to offenses less than capital. They unfortunately leave that decision for 4 NATO Status of Forces Agreement, T. I. A. S. 2846 (signed in London on July 19, 1951), 4 U. S. Treaties and Other International Agreements 1792. 430336 o—57--9 90 OCTOBER TERM, 1956. Clark, J., dissenting. 354 U. S. another day. This is disastrous to proper judicial administration as well as to law enforcement. The Congress and the Executive Department are entitled to know whether a court-martial may be constitutionally utilized to try an offense less than capital. If so, then all that is necessary is to eliminate capital punishment insofar as Article 2 (11) offenses are concerned. I deeply regret that the former minority does not, now that it has become the majority, perform the high duty that circumstance requires. Both the Congress and the Executive are left only to conjecture as to whether they should “sack” Article 2 (11) and require all dependents to return and remain within this country or simply eliminate capital punishment from all offenses under the Article. The morale of our troops may prevent the former and certainly the abstention of this Court prohibits the latter. All that remains is for the dependents of our soldiers to be prosecuted in foreign courts, an unhappy prospect not only for them but for all of us. SMITH v. SPERLING. 91 Syllabus. SMITH, SPECIAL ADMINISTRATOR, v. SPERLING et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 316. Argued March 27-28, 1957.—Decided June 10, 1957. This is a stockholder’s derivative suit brought in a Federal District Court in California on grounds of diversity of citizenship by a citizen of New York against two Delaware corporations and the directors of one of them, who are citizens of California. The complaint alleged fraudulent wastage of the assets of Warner Bros., the plaintiff’s corporation, for the benefit of a son-in-law of one of its directors and the son-in-law’s corporation. It alleged that a demand on the directors of Warner Bros, to institute the suit was not made because it would have been futile, since all or a majority of them had approved the contracts involved. The District Court found that (1) the contracts were made in good faith and without fraud, (2) the stockholders, officers or directors were not “antagonistic to the financial interests” of Warner Bros., (3) none of the directors “wrongfully participated” in the acts complained of, and (4) if a demand had been made on Warner Bros, to institute suit, the management would not have been disqualified “from faithfully doing their duty,” but that “such a demand would have been futile.” On these grounds, the District Court realigned Warner Bros, as a party plaintiff and dismissed the bill for want of diversity jurisdiction. Held: It erred in doing so, and the judgment is reversed and the cause remanded. Pp. 92-98. (a) In considering the issue of federal diversity jurisdiction, the District Court should have considered only the face of the pleadings and the nature of the controversy without attempting to adjudicate the merits of the charges of wrongdoing. Pp. 94-98. (b) Federal law governs the question of federal jurisdiction; but local law will govern the decision on the merits. Pp. 95-96. (c) There is “antagonism” between a corporation and its stockholder whenever the management is aligned against the stockholder and defends a course of action which the stockholder attacks, even though the management acts in good faith. Pp. 95, 96-98. (d) Absent collusion, there is diversity jurisdiction when the real collision of issues is between citizens of different States. P. 97. 92 OCTOBER TERM, 1956. Opinion of the Court. 354 U. S. (e) On the record in this case, it is evident that there is such a collision here. Pp. 97-98. (f) Diversity jurisdiction having once vested, it was not lost merely because the original plaintiff died while the suit was pending and the special administrator substituted for him was a citizen of California. P. 93, n. 1. (g) The bill meets the requirements of Rule 23 (b) of the Rules of Civil Procedure that the stockholder show with particularity what efforts he made to get those who control the corporation to take action, “and the reasons for his failure to obtain such action or the reasons for not making such effort.” P. 94, n. 2. 237 F. 2d 317, reversed and remanded. Herman H. Levy argued the cause for petitioner. With him on the brief was Morris J. Pollack. Eugene D. Williams and Oliver B. Schwab argued the cause for respondents. On the briefs were Mr. Williams and Ralph E. Lewis for Warner Bros. Pictures, Inc., et al., and Mr. Schwab, Marvin Sears and Norman Altman for United States Pictures, Inc., et al., respondents. Mr. Justice Douglas delivered the opinion of the Court. This suit was filed in a Federal District Court in California by reason of diversity of citizenship. It is a stockholder’s derivative suit. The first cause of action, the only one involved here, is based on alleged fraudulent wastage of assets of Warner Bros. Pictures, Inc. (which we will call Warner Bros.) for the benefit of one Sperling, a son-in-law of a director of Warner Bros., and United States Pictures, Inc. (which we will call United), the son-in-law’s corporation. Extended allegations are made concerning various agreements between Warner Bros, and United which, it is charged, are unfair to Warner Bros. Demand on the directors of Warner Bros, to institute this action was not made because, it is averred, such a demand would be futile since, inter alia, all or a majority of the SMITH v. SPERLING. 93 91 Opinion of the Court. board of directors approved the contracts. The plaintiff is a citizen of New York; 1 the defendant directors are citizens of California; and Warner Bros, and United are Delaware corporations. The complaint joined Warner Bros, as a defendant. It was urged before the District Court, and it is claimed here, that since the cause of action sought to be enforced is one that belongs to the corporation and since the corporation is not “antagonistic” to the stockholder within the meaning of that term as used in Doctor v. Harrington, 196 U. S. 579, 588, Warner Bros, should be realigned as plaintiff. In that event there would be no diversity of citizenship since Delaware corporations would be on both sides of the lawsuit. Strawbridge v. Curtiss, 3 Cranch 267. The District Court held a hearing on the issue—a hearing that lasted 15 days. It found: (1) that the contracts in controversy were made in good faith and without fraud; that they were considered by the 1 While the action was pending plaintiff died and for him a special administrator has been substituted. The latter is a citizen of California. Had the suit been originally commenced by the decedent’s representative, it would have been the citizenship of the representative which would have been determinative of jurisdiction in this diversity case. See Chappedelaine v. Dechenaux, 4 Cranch 306; Childress v. Emory, 8 Wheat. 642, 669; Mexican Central R. Co. v. Eckman, 187 U. S. 429, 434; Mecom v. Fitzsimmons Drilling Co., 284 U. S. 183, 186. But jurisdiction, once attached, is not impaired by a party’s later change of domicile. Mollan v. Torrance, 9 Wheat. 537. As Chief Justice Marshall said in that case: “It is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.” Id., p. 539. The rationale, that jurisdiction is tested by the facts as they existed when the action is brought, is applied to a situation where a party dies and a non-diverse representative is substituted. Dunn v. Clarke, 8 Pet. 1 (1834). 94 OCTOBER TERM, 1956. Opinion of the Court. 354 U. S. directors to be in the best interests of Warner Bros, and that, in approving them, they exercised their best business judgment; (2) that Warner Bros, was not under the domination or control of the Warners on the board; and that the stockholders, officers, or directors were not “antagonistic to the financial interests” of Warner Bros.; (3) that neither all nor a majority nor any of the directors and officers of Warner Bros, “wrongfully participated” in the acts complained of; that the board was not dominated or controlled by the Warners and Sperling or by any one or more of them; (4) that if demand had been made on Warner Bros, to institute suit, the management would not have been disqualified “from faithfully doing their duty” as officers and directors but that “such a demand would have been futile.” 2 For these reasons the District Court realigned Warner Bros, as a party plaintiff and dismissed the bill. 117 F. Supp. 781. The Court of Appeals affirmed. 237 F. 2d 317. The case is here on a writ of certiorari. 352 U. S. 865. This is a corporate cause of action brought by a stockholder. Whether it is a proper case for assertion by a stockholder of that cause of action is not the question here. Such was the problem involved in Hawes v. Oakland, 104 U. S. 450, upon which so much reliance is placed in supporting the court below. Here we assume that this corporate cause of action may be enforced by the stock 2 The bill therefore meets the requirements of Rule 23 (b) of the Rules of Civil Procedure that the stockholder show with particularity what efforts he made to get those who control the corporation to take action, “and the reasons for his failure to obtain such action or the reasons for not making such effort.” And see Hawes v. Oakland, 104 U. S. 450; Delaware 883 and Misc. No. 579, supra.) No. 643. Lee You Fee v. Dulles, Secretary of State. C. A. 7th Cir. Certiorari granted. Jack Wasserman for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for respondent. Reported below: 236 F. 2d 885. No. 586, Misc. Cicenia v. Lagay, Superintendent, New Jersey Prison Farm. Motion for leave to proceed in forma pauperis and petition for writ of certiorari to the United States Court of Appeals for the Third Circuit granted. Mr. Justice Brennan took no part in the consideration or decision of this application. Petitioner pro se. Charles V. Webb, Jr. and C. William Caruso for respondent. Reported below: 240 F. 2d 844. No. 707, Misc. Crooker v. California. Motion for leave to proceed in forma pauperis and petition for writ of certiorari to the Supreme Court of California granted i limited to questions 1 and 2 presented by the petition for I the writ which read as follows: “1. Was the defendant denied due process of law by the refusal of the investigation officers to allow him to consult with an attorney upon demand being made to do so while I he was in custody? I “2. Was the defendant denied due process of law by the I admission into evidence of a confession which was taken I from him while in custody and after he had been in such I custody for fourteen hours and had not been allowed to I consult with his attorney?” I Reported below: 47 Cal. 2d 348, 303 P. 2d 753. I DECISIONS PER CURIAM ETC. 909 354 U.S. June 10, 1957. Certiorari Denied. No. 937. S. E. C. Corporation, formerly known as Canaday Cooler Co., Inc., v. United States. C. A. 2d Cir. Certiorari denied. Rollin Browne and Paul Van Anda for petitioner. Solicitor General Rankin, Assistant Attorney General Rice and Harry Baum for the United States. Reported below: 241 F. 2d 416. No. 941. Western Fire & Casualty Co. v. General Insurance Co. of America et al. C. A. 5th Cir. Certiorari denied. Chas. C. Crenshaw for petitioner. Neth L. Leachman for respondents. Reported below: 241 F. 2d 289. No. 947. Niepert, Executor, v. Cleveland Electric Illuminating Co. C. A. 6th Cir. Certiorari denied. Louis S. Belkin for petitioner. James C. Davis for respondent. Reported below: 241 F. 2d 916. No. 963. Massey v. Brindley et al. Court of Civil Appeals of Texas, Third Supreme Judicial District. Certiorari denied. Robert Lee Guthrie and Searcy L. Johnson for petitioner. James P. Hart and Byron Skelton for respondents. Reported below: 296 S. W. 2d 296. No. 964. Carpinteria Lemon Assn, et al. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Ivan G. McDaniel for petitioners. Solicitor General Rankin, Jerome D. Fenton, Stephen Leonard, Dominick L. Manoli and Samuel M. Singer for respondent. Reported below: 240 F. 2d 554. No. 1013. Massengale v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 240 F. 2d 781. 910 OCTOBER TERM, 1956. June 10, 1957. 354 U. S. No. 970. Ben Hur Coal Co. v. Wells et al., doing business as Starr Coal Co. C. A. 10th Cir. Certiorari denied. G. C. Spillers and G. C. Spillers, Jr. for petitioner. Fenelon Boesche, Richard B. McDermott and T. Hillas Eskridge for respondents. Reported below: 242 F. 2d 481. No. 979. International Derrick & Equipment Co. and its Successor, Dresser Equipment Co., v. Croix et al. C. A. 5th Cir. Certiorari denied. Paul J. Sedgwick and L. W. Anderson for petitioners. James 0. Bean for respondents. Reported below: 241 F. 2d 216. No. 991. Stanley v. Stanley. Court of Civil Appeals of Texas, Seventh Supreme Judicial District. Certiorari denied. Cleo G. Clayton and Cleo G. Clayton, Jr. for petitioner. Howard F. Saunders for respondent. Reported below: 294 S. W. 2d 132. No. 1016. Hunt Tool Co. v. Lawrence et al. C. A. 5th Cir. Certiorari denied. J. Vincent Martin for petitioner. Earl Babcock for respondents. Reported below: 242 F. 2d 347. No. 515. Buckeye Cotton Oil Co. (now merged into the Buckeye Cellulose Corp.) v. Local 19, Warehouse, Processing & Distributive Workers Union, Retail, Wholesale & Department Store Union (CIO). C. A. 6th Cir. Certiorari denied. Mr. Justice Black took no part in the consideration or decision of this application. Harris K. Weston for petitioner. Reported below: 236 F. 2d 776. No. 675, Misc. Harvey, alias McCargo, v. Smyth, Superintendent, Virginia State Penitentiary. Supreme Court of Appeals of Virginia. Certiorari denied, i DECISIONS PER CURIAM ETC. 911 354 U.S. June 10, 1957. No. 520. Signal-Stat Corporation v. Local 475, United Electrical, Radio & Machine Workers of America, (UE). C. A. 2d Cir. Certiorari denied. Mr. Justice Black took no part in the consideration or decision of this application. Herbert Bur stein for petitioner. David Scribner and Basil R. Pollitt for respondent. Reported below: 235 F. 2d 298. No. 616, Misc. Brodson v. United States. C. A. 7th Cir. Certiorari denied. Steven E. Keane and Victor M. Harding for petitioner. Solicitor General Rankin, Assistant Attorney General Rice and Joseph M. Howard for the United States. Reported below: 241 F. 2d 107. No. 674, Misc. Cwiklinski v. New Jersey. Supreme Court of New Jersey. Certiorari denied. No. 677, Misc. Lebron v. United States. C. A. 1st Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 241 F. 2d 885. No. 682, Misc. Sherman v. United States. C. A. 9th Cir. Certiorari denied. Morris Lavine for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 241 F. 2d 329. No. 700, Misc. Strauch v. New York. Appellate Division of the Supreme Court of New York, Fourth Judicial Department. Certiorari denied. No. 709, Misc. Woods v. Cavell, Warden. Supreme Court of Pennsylvania, Western District. Certiorari denied. 912 OCTOBER TERM, 1956. June 10, 1957. 354 U.S. No. 687, Misc. Brule v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 240 F. 2d 589. No. 694, Misc. Kimes v. United States. C. A. 5th Cir. Certiorari denied. Hugh N. Clayton for petitioner. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 240 F. 2d 301. No. 715, Misc. Bryan v. New York. Appellate Division of the Supreme Court of New York, Fourth Judicial Department. Certiorari denied. No. 732, Misc. Anglin v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Reported below: 99 U. S. App. D. C. 400, 240 F. 2d 638. No. 738, Misc. Peters v. New York. Court of Appeals of New York. Certiorari denied. No. 739, Misc. Helwig v. Cavell, Warden. Supreme Court of Pennsylvania, Western District. Certiorari denied. No. 742, Misc. Gentner v. Martin, Warden. Supreme Court of Pennsylvania, Eastern District. Certiorari denied. Petitioner pro se. James N. Lafferty and Victor H. Blanc for respondent. No. 746, Misc. Szocki v. Cavell, Warden. Court of Common Pleas of Erie County, Pennsylvania. Certiorari denied. DECISIONS PER CURIAM ETC. 913 354 U.S. June 10, 1957. No. 745, Misc. Weinberger v. New York. Court of Appeals of New York. Certiorari denied. No. 750, Misc. Quon v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 241 F. 2d 161. No. 762, Misc. Wager v. New York. Court of Appeals of New York. Certiorari denied. No. 766, Misc. Young v. Maryland. Court of Appeals of Maryland. Certiorari denied. No. 767, Misc. Morgan v. California. Supreme Court of California. Certiorari denied. No. 774, Misc. Pearson v. Gray, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 243 F. 2d 23. No. 684, Misc. Clark v. Ellis, General Manager, Texas Prison System. Court of Criminal Appeals of Texas. Certiorari denied. Reported below: 299 S. W. 2d 128. No. 698, Misc. Fletcher v. Pennsylvania. Supreme Court of Pennsylvania, Western District. Certiorari denied. Reported below: 387 Pa. 602, 128 A. 2d 897. No. 701, Misc. Lyon v. Ellis, General Manager, Texas Prison System. Court of Criminal Appeals of Texas. Certiorari denied. Reported below: 296 S. W. 2d 262. No. 938. Moccio v. United States. C. A. 2d Cir. Certiorari denied. Michael P. Direnzo for petitioner. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. 914 OCTOBER TERM, 1956. June 10, 1957. 354 U. S. No. 942. Washington v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Joseph Sitnick and William R. Lichtenberg for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 100 U. S. App. D. C.---, 243 F. 2d 43. No. 958. Campbell v. South Carolina. Supreme Court of South Carolina. Certiorari denied. Nicholas J. Chase for petitioner. T. C. Callison, Attorney General of South Carolina, and James S. Verner, Assistant Attorney General, for respondent. Reported below: 230 S. C. 432, 96 S. E. 2d 476. No. 974. Union Paving Co. v. Downer Corporation. District Court of Appeal of California, Third Appellate District. Certiorari denied. Henry C. Clausen for petitioner. Forrest E. Macomber for respondent. Reported below: 146 Cal. App. 2d 708, 304 P. 2d 756. No. 683, Misc. Coles v. Smither & Co., Inc. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Wm. Edison Owen for petitioner. Charles E. Pledger, Jr. and Randolph C. Richardson for respondent. Reported below: 100 U. S. App. D. C.----, 242 F. 2d 220. No. 693, Misc. Kitchin v. Missouri. Supreme Court of Missouri. Certiorari denied. Reported below: 300 S. W. 2d 420. No. 728, Misc. Sefton v. Nevada. Supreme Court of Nevada. Certiorari denied. Toy R. Gregory for peti- j tioner. Reported below: 73 Nev.-----, 306 P. 2d 771. i DECISIONS PER CURIAM ETC. 915 354 U.S. June 10, 17, 1957. No. 743, Misc. Minor v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. T. Emmett McKenzie for petitioner. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 100 U. S. App. D. C.------, 240 F. 2d 888. No. 765, Misc. Sheffield v. Louisiana. Supreme Court of Louisiana. Certiorari denied. Eugene Stanley for petitioner. Jack P. F. Gremillion, Attorney General of Louisiana, and M. E. Culligan, Special Assistant Attorney General, for respondent. Reported below: 232 La. 53, 93 So. 2d 691. Rehearing Denied. No. 632, Misc. Davis v. United States, 353 U. S. 960; No. 635, Misc. Gray v. United States, 353 U. S. 946; No. 641, Misc. Legg v. Teneycke et al., 353 U. S. 960; and No. 676, Misc. Kallos et ux. v. New York, 353 U. S. 956. Petitions for rehearing denied. June 17, 1957. I Decisions Per Curiam. I No. 911. Dooley v. Virginia. Appeal from the I Supreme Court of Appeals of Virginia. Per Curiam: I The motion to dismiss is granted and the appeal is dis-I missed for want of a substantial federal question. G. Galt I Bready and James L. Dooley for appellant. J. Lind-I say Almond, Jr., Attorney General of Virginia, and I C. F. Hicks, Assistant Attorney General, for appellee. I Reported below: 198 Va. 32, 92 S. E. 2d 348. 916 OCTOBER TERM, 1956. June 17, 1957. 354 U. S. No. 914. Gulf Oil Corp. v. Corporation Commission of Oklahoma et al. Appeal from the United States District Court for the Western District of Oklahoma. Per Curiam: The motion to affirm is granted and the judgment is affirmed. Mr. Justice Frankfurter, Mr. Justice Douglas, and Mr. Justice Brennan would note probable jurisdiction and set the case for argument. Richard B. McDermott and James B. Diggs for appellant. Mac Q. Williamson, Attorney General of Oklahoma, Richard M. Huff, Assistant Attorney General, Charles R. Nesbitt and Ferrill H. Rogers for appellees. Reported below: 147 F. Supp. 640. No. 933. Covey, Committee, v. Town of Somers. Appeal from the Court of Appeals of New York. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. Adolph I. King, Samuel M. Sprafkin and Mandel Matthew Einhorn for appellant. Otto E. Koegel and Harry H. Chambers for appellee. Reported below: 2 N. Y. 2d 250, 140 N. E. 2d 277. No. 936. Starr et al. v. Nashville Housing Authority et al. Appeal from the United States District Court for the Middle District of Tennessee. Per Curiam: The motions to affirm are granted and the judgment is affirmed. Berman v. Parker, 348 U. S. 26. Robert E. Sher, Abraham J. Harris and William Waller for appellants. Solicitor General Rankin, Assistant Attorney General Morton and Roger P. Marquis for the Housing and Home Finance Agency et al., Albert Williams and Kenneth Harwell for the Nashville Housing Authority, and K. Harlan Dodson, Jr. for the City of Nashville, appellees. Reported below: 145 F. Supp. 498. DECISIONS PER CURIAM ETC. 917 354 U.S. June 17, 1957. No. 927. Cleveland Electric Illuminating Co. et al. v. United States et al. Appeal from the United States District Court for the Northern District of Ohio. Per Curiam: The motions to affirm are granted and the judgment is affirmed. Nuel D. Belnap and Harold E. Spencer for the Cleveland Electric Illuminating Co., and C. F. Taplin, Jr. for the Ohio Coal Association, appellants. Solicitor General Rankin, Robert PF. Ginnane and Samuel R. Howell for the United States and the Interstate Commerce Commission, and Howard F. Burns, R. B. Clay tor, Hugh B. Cox, Anthony P. Donadio, John P. Fishwick, Richard J. Murphy, W. A. Wilkinson and Edward A. Kaier for the Baltimore & Ohio Railroad Co. et al., appellees. Reported below: 147 F. Supp. 622. No. 468. Carr v. Beverly Hills Corp, et al. 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 reversed on the authority of Smith v. Sperling, ante, p. 91, decided June 10, 1957, and Swanson v. Traer, ante, p. 114, decided June 10, 1957, and the cause is remanded to the District Court for proceedings in conformity with this opinion. Mr. Justice Frankfurter, Mr. Justice Burton, Mr. Justice Harlan, and Mr. Justice Whittaker dissent for the reasons stated in their dissent in Smith v. Sperling, ante, p. 98. Thomas Dodd Healy and George E. Danielson for petitioner. Paul R. Watkins for the Beverly Hills Corporation, and Frederic H. Sturdy for Lordan et al., respondents. Reported below: 237 F. 2d 323. No. 781, Misc. Stanley v. New York. Appeal from the Appellate Division of the Supreme Court of New York, Second Judicial Department. Per Curiam: The appeal is dismissed. 918 OCTOBER TERM, 1956. June 17, 1957. 354 U.S. No. 956. Curtis v. Kelly, Sheriff. Appeal from the Supreme Court of Florida. Per Curiam: The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. M. H. Rosenhouse for appellant. Reported below: 91 So. 2d 184. Miscellaneous Orders. No. 9, Original. Texas v. New Mexico. It is ordered by this Court that John Raeburn Green, Esquire, be and he is hereby, awarded the sum of $25,000 as compensation for his services as Special Master in this case, and that his disbursements totaling $7,611.27 be allowed. It is further ordered that the fee and disbursements of the Special Master be paid by the parties in the following proportions: Texas, 50%; New Mexico, 25%; and the Middle Rio Grande Conservancy District, 25%. No. 10, Original. Arizona v. California et al. The petition for an order approving payment on account of fees and expenses of the Special Master is granted and the parties are ordered to make payments to cover the expenses of the Special Master in the following proportions: Arizona, 28%; California, 28%; United States, 28%; Nevada, 12%; New Mexico, 2%; and Utah, 2%. They are further ordered to make payments totaling I $50,000 to Simon H. Rifkind, Esquire, Special Master, on I account of the fee to be awarded by this Court as com- I pensation for his services as Special Master. Such I payments are to be made in the proportions set forth I above. I This order is subject to any further award, allowance I or division of costs or fees as this Court may deem proper. I The Chief Justice took no part in the consideration or I decision of this petition. I DECISIONS PER CURIAM ETC. 919 354 U.S. June 17, 1957. No. 50. San Diego Building Trades Council et al. v. Garmon et al., 353 U. S. 26. The motion to retax costs is denied. James W. Archer and J. Sterling Hutcheson for movants. Walter Wencke, Charles P. Scully, Mathew Tobriner and John C. Stevenson for petitioners in opposition. Reported below: 45 Cal. 2d 657, 291 P. 2d 1. No. 718, Mise. Covey, Committee, v. Court of Appeals of New York et al. Motion for leave to file petition for writ of mandamus denied. Adolph I. King, Samuel M. Sprafkin and Mandel Matthew Einhorn for petitioner. Louis J. Lefkowitz, Attorney General of New York, and John R. Davison, Solicitor General, for respondents. Otto E. Koegel and Harry H. Chambers filed a brief for the Town of Somers in opposition to the motion. No. 723, Mise. Laycock v. Mathes, U. S. District Judge, et al. Motion for leave to file petition for writ of mandamus denied. Norman L. Easley for petitioner. Solicitor General Rankin, Assistant Attorney General Doub and Melvin Richter for Kenney, respondent. No. 779, Mise. Dowling v. Maryland et al.; No. 780, Mise. Medley v. Maryland; No. 788, Mise. Sanchez v. Swenson, Warden; No. 793, Mise. Hayman v. Heritage, Warden ; and No. 799, Mise. Ambroselli v. Mailler, Chairman, New York Parole Board, et al. Motions for leave to file petitions for writs of habeas corpus denied. No. 918. Hanson, Executrix, et al. v. Denckla et al. Appeal from the Supreme Court of Florida. Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits. Wil- 430336 0—57--39 920 OCTOBER TERM, 1956. June 17, 1957. 354 U.S. Ham H. Foulk and Manley P. Caldwell for appellants. D. H. Redfearn, C. Robert Burns, R. H. Ferrell, Sol A. Rosenblatt and Charles Roden for appellees. Certiorari Granted. (See also No. 175, ante, p. 234, and No. 468, supra.) No. 977. Lewis et al. v. Hanson, Executrix and Trustee, et al. Supreme Court of Delaware. Certiorari granted. Arthur G. Logan for petitioners. Reported below: ----Del.-----, 128 A. 2d 819. No. 1032. Abramowitz v. Brucker. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Victor Rabinowitz and Leonard B. Boudin for petitioner. Solicitor General Rankin for respondent. Reported below: 100 U. S. App. D. C.--------, 243 F. 2d 834. No. 862. Hoover Motor Express Co., Inc., v. United States. C. A. 6th Cir. Certiorari granted. Judson Harwood for petitioner. Solicitor General Rankin for the United States. Reported below: 241 F. 2d 459. No. 932. Tank Truck Rentals, Inc., v. Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari granted. Paul A. Wolkin for petitioner. Solicitor General Rankin for respondent. Reported below: 242 F. 2d 14. No. 983. Commissioner of Internal Revenue v. Sullivan et al. C. A. 7th Cir. Certiorari granted. Solicitor General Rankin, Assistant Attorney General Rice and Meyer Rothwacks for petitioner. E. J. Blair and Eugene Bernstein for Sullivan et al., respondents. Reported below: 241 F. 2d 46, 242 F. 2d 558. DECISIONS PER CURIAM ETC. 921 354 U.S. June 17, 1957. No. 1008. Fidelity-Philadelphia Trust Co. et al. Executors, v. Smith, Collector of Internal Revenue. C. A. 3d Cir. Certiorari granted. Robert T. McCracken for petitioners. Solicitor General Rankin for respondent. Reported below: 241 F. 2d 690. Certiorari Denied. (See also Nos. 933 and 956, supra.) No. 949. Monolith Portland Midwest Co. v. Reconstruction Finance Corp. C. A. 9th Cir. Certiorari denied. Joseph T. Enright and Norman Elliott for petitioner. Assistant Attorney General Doub and Samuel D. Slade for respondent. Reported below: 240 F. 2d 444. No. 952. Gordon v. United States. C. A. 3d Cir. Certiorari denied. Jacob Kossman for petitioner. Solicitor General Rankin, Assistant Attorney General Rice and Joseph M. Howard for the United States. Reported below: 242 F. 2d 122. No. 966. Schultz v. United States. C. A. 2d Cir. Certiorari denied. Hayden C. Covington for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop for the United States. Reported below: 243 F. 2d 349. No. 967. Haskell v. United States. C. A. 10th Cir. Certiorari denied. Harvey B. Cochran for petitioner. Solicitor General Rankin, Assistant Attorney General Rice and Joseph M. Howard for the United States. Reported below: 241 F. 2d 790. No. 980. Orleans Parish School Board v. Bush et al. C. A. 5th Cir. Certiorari denied. Gerard A. Rault and W. Scott Wilkinson for petitioner. Robert L. Carter for respondents. Reported below: 242 F. 2d 156. 922 OCTOBER TERM, 1956. June 17, 1957. 354 U. S. No. 968. McConnon v. United States; and No. 982. Postma v. United States. C. A. 2d Cir. Certiorari denied. Isadore Katz for petitioner in No. 968. Barney Samelstein for petitioner in No. 982. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 242 F. 2d 488. No. 978. Personal Industrial Loan Corp, (now known as Beneficial Industrial Loan Corp.) v. For-gay. C. A. 10th Cir. Certiorari denied. Jackson R. Collins and Linn K. Twinem for petitioner. Reported below: 240 F. 2d 18. No. 987. Eagle Lion Films, Inc., v. Szekely, also known as Pen. C. A. 2d Cir. Certiorari denied. Louis Nizer and Sidney Davis for petitioner. Harold J. Sherman for respondent. Reported below: 242 F. 2d 266. No. 1002. Fried v. United States et al. C. A. 2d Cir. Certiorari denied. Morris K. Siegel for petitioner. Solicitor General Rankin, Assistant Attorney General Rice, Ellis N. Slack and A. F. Prescott for the United States, respondent. Reported below: 241 F. 2d 504. No. 1007. Block Drug Co. et al. v. University of Illinois Foundation. C. A. 7th Cir. Certiorari denied. Benjamin B. Schneider for petitioners. Charles J. Merriam and John Rex Allen for respondent. Reported below: 241 F. 2d 6. No. 1017. Smoot Sand & Gravel Corp. v. Commissioner of Internal Revenue. C. A. 4th Cir. Certiorari denied. David R. Shelton for petitioner. Solicitor General Rankin, Assistant Attorney General Rice and A. F. Prescott for respondent. Reported below: 241 F. 2d 197. DECISIONS PER CURIAM ETC. 923 354 U.S. June 17, 1957. No. 1021. Lester v. Aetna Casualty & Surety Co. C. A. 5th Cir. Certiorari denied. Leonard Lloyd Lockard for petitioner. Richard H. Switzer for respondent. Reported below: 240 F. 2d 676. No. 1026. V. E. Irons, Inc., et al. v. United States. C. A. 1st Cir. Certiorari denied. Vincent A. Kleinfeld for petitioners. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 244 F. 2d 34. No. 1039. Brody v. United States. C. A. 1st Cir. Certiorari denied. John F. Cogan, Jr. for petitioner. Solicitor General Rankin for the United States. Reported below: 243 F. 2d 378. No. 985. Kansas City Star Co. v. United States; and No. 986. Sees v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Whittaker took no part in the consideration or decision of these applications. John T. Cahill, Thurlow M. Gordon, Henry N. Ess, Elton L. Marshall and Carl E. Enggas for petitioners. Solicitor General Rankin, Assistant Attorney General Hansen and Daniel M. Friedman for the United States. Reported below: 240 F. 2d 643. No. 753, Misc. Thompson et al. v. Pennsylvania. Supreme Court of Pennsylvania, Western District. Certiorari denied. Reported below: 388 Pa. 572, 131 A. 2d 449. No. 759, Misc. Miller et al. v. Delaware, Lackawanna & Western Railroad Co. C. A. 2d Cir. Certiorari denied. John Francis Noonan for petitioners. Pierre W. Evans for respondent. Reported below: 241 F. 2d 116. 924 OCTOBER TERM, 1956. June 17, 1957. 354 U. S. No. 768, Misc. Rice v. Clemmer, Director, Department of Corrections, et al. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin for respondents. Reported below: 242 F. 2d 870. No. 769, Misc. Morgan v. Heinze, Warden. Supreme Court of California. Certiorari denied. No. 771, Misc. Burke v. District Court. Petition for writ of certiorari to the Supreme Court of Iowa denied. No. 777, Misc. Apfelbaum v. New York. Appellate Division of the Supreme Court of New York, Second Judicial Department. Certiorari denied. No. 784, Misc. French v. Massachusetts. Supreme Judicial Court of Massachusetts. Certiorari denied. No. 786, Misc. Cathcart v. United States. C. A. 10th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin for the United States. Reported below: 244 F. 2d 74. No. 789, Misc. Kennedy v. New York. Appellate Division of the Supreme Court of New York, Fourth Judicial Department. Certiorari denied. No. 794, Misc. Hamm v. Kentucky. Court of Appeals of Kentucky. Certiorari denied. Reported below: 300 S. W. 2d 562. No. 795, Misc. Luciano v. Wilkinson, Warden. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin for respondent. No. 796, Misc. O’Connor v. California. Supreme Court of California. Certiorari denied. DECISIONS PER CURIAM ETC. 925 354 U.S. June 17, 1957. No. 797, Misc. Dopkowski v. Illinois. Supreme Court of Illinois. Certiorari denied. No. 800, Misc. York v. Heinze, Warden. Supreme Court of California. Certiorari denied. No. 801, Misc. Shelton v. Randolph, Warden. Supreme Court of Illinois. Certiorari denied. No. 803, Misc. McAllister v. Pinto, Superintendent, New Jersey State Prison Farm. Supreme Court of New Jersey. Certiorari denied. No. 806, Misc. Zambrano v. California Adult Authority et al. Supreme Court of California. Certiorari denied. No. 807, Misc. Thomas v. Florida. Supreme Court of Florida. Certiorari denied. Releford McGriff for petitioner. Reported below: 92 So. 2d 621. No. 782, Misc. Culver v. New Jersey. Supreme Court of New Jersey. Certiorari denied. Mr. Justice Brennan took no part in the consideration or decision of this application. Reported below: 23 N. J. 495, 129 A. 2d 715. No. 948. United Press Associations v. Charles et al. C. A. 9th Cir. Certiorari denied. John H. Dimond for petitioner. Reported below: 245 F. 2d 21. No. 962. Tuttle v. Federal Trade Commission. C. A. 2d Cir. Certiorari denied. >S. Hazard Gillespie, Jr. for petitioner. Solicitor General Rankin, Assistant Attorney General Hansen, Daniel M. Friedman, Earl W. Kintner and Robert B. Dawkins for respondent. Reported below: 244 F. 2d 605. 926 OCTOBER TERM, 1956. June 17, 1957. 354 U. S. No. 973. Howarth v. Howarth. District Court of Appeal of California, Second Appellate District. Certiorari denied. Lawrence M. Cahill for petitioner. Reported below: 146 Cal. App. 2d 694, 304 P. 2d 147. No. 984. Aspen Pictures, Inc., v. Oceanic Steamship Co. et al. District Court of Appeal of California, Second Appellate District. Certiorari denied. Leonard Horwin for petitioner. Gregory A. Harrison and Marion B. Plant for respondents. Reported below: 148 Cal. App. 2d 238, 306 P. 2d 933. No. 990. Gershenhorn et al. v. Walter R. Stutz Enterprises et al. Supreme Court of Nevada. Certiorari denied. Herbert Jones and Alvin Gershenson for petitioners. W. Bruce Beckley for respondents. Reported below: 72 Nev. 293, 312, 304 P. 2d 395, 306 P. 2d 121. No. 1000. Martinez et ux. v. United States. C. A. 9th Cir. Certiorari denied. Petitioners pro se. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Isabelle Cappello for the United States. No. 1055. Turner v. United States. C. A. 2d Cir. Certiorari denied. Hayden C. Covington for petitioner. Solicitor General Rankin for the United States. Reported below: 244 F. 2d 404. No. 763, Misc. Curtis et al. v. United States. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. T. Emmett McKenzie for petitioners. Solicitor General Rankin for the United States. Reported below: 99 U. S. App. D. C. 351, 240 F. 2d 37. DECISIONS PER CURIAM ETC. 927 354 U.S. June 17, 1957. No. 628, Misc. Popik v. Ohio et al. Court of Appeals of Franklin County, Ohio. Certiorari denied. No. 775, Misc. Cepero v. Pan American World Airways et al. C. A. 2d Cir. Certiorari denied. No. 778, Misc. Bruinsma v. Ellis, General Manager, Texas Prison System, et al. Court of Criminal Appeals of Texas. Certiorari denied. Reported below: ---Tex. Cr. R.----, 298 S. W. 2d 838. No. 792, Misc. Martin v. Indiana. Supreme Court of Indiana. Certiorari denied. Reported below: ------ Ind.----, 141 N. E. 2d 107. No. 798, Misc. Akers v. California et al. C. A. 9th Cir. Certiorari denied. No. 808, Misc. Brigmon v. Pepersack, Warden. Court of Appeals of Maryland. Certiorari denied. Reported below: 213 Md. 628, 131 A. 2d 245. Rehearing Denied. No. 240. Arnold v. Panhandle & Santa Fe Railway Co, 353 U. S. 360; No. 540. Civil Aeronautics Board v. Hermann et al, 353 U. S. 322; No. 816. Atwood v. Lydick, 353 U. S. 949; and No. 909. Hohensee et al. v. United States, 353 U. S. 976. Petitions for rehearing denied. No. 5. Königsberg v. State Bar of California et al, 353 U. S. 252. Rehearing denied. Mr. Justice Whittaker took no part in the consideration or decision of this application. 928 OCTOBER TERM, 1956. June 17, 21, 1957. 354 U. S. No. 422. Office Employes International Union, Local No. 11, AFL-CIO, v. National Labor Relations Board, 353 U. S. 313. Motion of International Brotherhood of Teamsters et al. for leave to file petitions for rehearing of the order denying motion for leave to intervene, 353 U. S. 904, and for rehearing of the case on the merits denied. No. 466. Securities and Exchange Commission v. Louisiana Public Service Commission et al., 353 U. S. 368. Rehearing denied. Mr. Justice Clark took no part in the consideration or decision of this application. No. 722. Landell, Executor, et al. v. Northern Pacific Railway Co., 352 U. S. 1017. Motion for leave to file petition for rehearing out of time denied. Mr. Justice Whittaker took no part in the consideration or decision of this motion. June 21, 1957. No. 1103. WTlson, Secretary of Defense, et al. v. Girard; and No. 1108. Girard v. Wilson et al. On petitions for writs of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Per Curiam: The petitions for writs of certiorari are granted. The cases are consolidated and assigned for argument on Monday, July 8, next. A maximum of four hours is allowed for argument, to be equally divided. In each case, the brief for petitioners will be served and filed on or before July 1, 1957. The briefs for respondents will be served and filed within five days from receipt of the petitioners’ briefs. Attorney General Brownell and Solicitor General Rankin for petitioners in No. 1103. Joseph S. Robinson, Earl J. Carroll and Dayton M. Harrington for petitioner in No. 1108. Reported below: 152 F. Supp. 21. DECISIONS PER CURIAM ETC. 929 354 U. S. June 24, 1957. June 24, 1957. Decisions Per Curiam. No. 306. Raley et al. v. Ohio. Appeal from the Supreme Court of Ohio. Per Curiam: The judgment of the Supreme Court of Ohio is vacated and the case is remanded for consideration in the light of Sweezy v. New Hampshire, 354 U. S. 234, and Watkins v. United States, 354 U. S. 178. Mr. Justice Burton would note probable jurisdiction and set the case for argument. Mr. Justice Clark dissents from this disposition of the case for the reasons stated in his dissenting opinions in Sweezy v. New Hampshire and Watkins v. United States, supra. Louis C. Capelle and Morse Johnson for appellants. Reported below: 164 Ohio St. 529, 133 N. E. 2d 104. No. 206, Misc. Morgan v. Ohio. Appeal from the Supreme Court of Ohio. Per Curiam: The judgment of the Supreme Court of Ohio is vacated and the case is remanded for consideration in the light of Sweezy v. New Hampshire, 354 U. S. 234, and Watkins v. United States, 354 U. S. 178. Mr. Justice Burton would note probable jurisdiction and set the case for argument. Mr. Justice Clark dissents from this disposition of the case for the reasons stated in his dissenting opinions in Sweezy v. New Hampshire and Watkins v. United States, supra. Ann Fagan Ginger and Thelma C. Furry for appellant. Reported below: 164 Ohio St. 529, 133 N. E. 2d 104. No. 462. Flaxer v. United States. 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 in this case is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded for consideration in light of Watkins v. United States, 354 930 OCTOBER TERM, 1956. June 24, 1957. 354 U. S. U. S. 178. Mr. Justice Burton took no part in the consideration or decision of this case. Mr. Justice Clark dissents for the reasons stated in his dissenting opinion in Watkins v. United States, supra. David Rein and Joseph Forer for petitioner. Solicitor General Rankin, Assistant Attorney General Tompkins and Doris H. Spangenburg for the United States. Reported below: 98 U. S. App. D. C. 324, 235 F. 2d 821. No. 742. Barenblatt v. United States. 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 in this case is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded for consideration in light of Watkins n. United States, 354 U. S. 178. Mr. Justice Burton took no part in the consideration or decision of this case. Mr. Justice Clark dissents for the reasons stated in his dissenting opinion in Watkins v. United States, supra. David Scribner for petitioner. Solicitor General Rankin, Assistant Attorney General Tompkins, Philip R. Monahan and Doris H. Spangenburg for the United States. Reported below: 100 U. S. App. D. C.---, 240 F. 2d 875. No. 884. Sacher v. United States. 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 in this case is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded for consideration in light of Watkins v. United States, 354 U. S. 178. Mr. Justice Burton took no part in the consideration or decision of this case. Mr. Justice Clark dissents for the reasons stated in his dissenting opinion in Watkins v. United States, supra. Frank J. Donner and DECISIONS PER CURIAM ETC. 931 354 U.S. June 24, 1957. David Rein for petitioner. Solicitor General Rankin, Assistant Attorney General Tompkins, Harold D. Koffsky, Philip R. Monahan and Doris H. Spangenburg for the United States. Reported below: 99 U. S. App. D. C. 360, 240 F. 2d 46. No. 9, Misc. Wellman et al. v. United States. On petition for writ of certiorari to the United States Court of Appeals for the Sixth 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 for the Sixth Circuit is vacated and the case is remanded for consideration in light of Yates v. United States, 354 U. S. 298; Schneiderman v. United States, 354 U. S. 298; and Richmond v. United States, 354 U. S. 298. Mr. Justice Clark dissents for the reasons given in his dissenting opinion in Yates v. United States; Schneiderman v. United States; and Richmond v. United States, supra. Ernest Goodman for petitioners. Solicitor General Rankin and Simon E. Sobeloff, then Solicitor General, for the United States. Reported below: 227 F. 2d 757. No. 835. Adams Newark Theater Co. et al. v. City of Newark et al. Appeal from the Supreme Court of New Jersey. Per Curiam: The motion to affirm is granted and the judgment is affirmed. Alberts v. California, 354 U. S. 476; Kingsley Books, Inc., v. Brown, 354 U. S. 436; and Roth v. United States, 354 U. S. 476. The Chief Justice would note probable jurisdiction and set the case for argument. Mr. Justice Black and Mr. Justice Douglas dissent. Mr. Justice Brennan took no part in the consideration or decision of this case. Sylvan C. Balder and Isadore Gottlieb for appellants. Vincent J. Casale for appellees. Reported below: 22 N. J. 472, 126 A. 2d 340. 932 OCTOBER TERM, 1956. June 24, 1957. 354 U. S. No. 674. United States v. Hunt et al.; and No. 675. United States v. Ollhoff et al. Appeals from the United States District Court for the District of Minnesota. Per Curiam: The judgments are reversed. United States v. Korpan, 354 U. S. 271. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Robert A. Sprecher and Harry E. Ryan for appellees. Reported below: 146 F. Supp. 143. No. 723. United States v. Mack; No. 724. United States v. Cali; and No. 725. United States v. Edwards. Appeals from the United States District Court for the District of Arizona. Per Curiam: The judgments are reversed. United States v. Korpan, 354 U. S. 271. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Robert A. Sprecher for appellees. No. 726. United States v. Hatch. Appeal from the United States District Court for the Eastern District of Louisiana. Per Curiam: The judgment is reversed. United States v. Korpan, 354 U. S. 271. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Robert A. Sprecher for appellee. No. 727. United States v. Harris et al. Appeal from the United States District Court for the Western District of Arkansas. Per Curiam: The judgment is reversed. United States v. Korpan, 354 U. S. 271. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Robert A. Sprecher for appellees. DECISIONS PER CURIAM ETC. 933 354 U. S. June 24, 1957. No. 931. Bryan et al. v. Austin, Superintendent, School District No. 7, Orangeburg County, South Carolina, et al. Appeal from the United States District Court for the Eastern District of South Carolina. Per Curiam: In view of the repeal of South Carolina Act No. 741 of 1956 by Act No. 324 of 1957 after the decision below, 148 F. Supp. 563, the cause has become moot. Accordingly, the judgment of the District Court is vacated and the case is remanded to it, with leave to the appellants to amend their pleadings either to safeguard any rights that may have accrued to them by virtue of the operation of the repealed Act or to set forth a cause of action based on the operation of the new Act. Rule 15 of the Federal Rules of Civil Procedure. Thurgood Marshall, Robert L. Carter and Jack Greenberg for appellants. Robert McC. Figg, Jr. and David W. Robinson for appellees. Reported below: 148 F. Supp. 563. No. 934. Gundaker Central Motors, Inc., v. Gas-sert, Director, Division of Motor Vehicles of New Jersey, et al. Appeal from the Supreme Court of New Jersey. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Brennan took no part in the consideration or decision of this case. Ward Kremer for appellant. Grover C. Richman, Jr., Attorney General of New Jersey, and John F. Crane, Deputy Attorney General, for Gassert, appellee. Reported below: 23 N. J. 71, 127 A. 2d 566. Miscellaneous Orders. The Court appoints Mr. William Leigh Ellis, of Michigan, to be Assistant Director of the Administrative Office of the United States Courts, pursuant to the provisions of § 601 of Title 28 of the United States Code. 934 OCTOBER TERM, 1956. June 24, 1957. 354 U. S. Pursuant to the provisions of Title 28, U. S. C., § 42, It is ordered that Mr. Justice Black be, and he is hereby, temporarily assigned to the Ninth and District of Columbia Circuits as Circuit Justice; That Mr. Justice Frankfurter be, and he is hereby, temporarily assigned to the Second and Seventh Circuits as Circuit Justice; and That Mr. Justice Brennan be, and he is hereby, temporarily assigned to the Fourth and Sixth Circuits as Circuit Justice. No. 838, Misc. Eubanks v. Louisiana. On petition for writ of certiorari to the Supreme Court of Louisiana. It is ordered that execution of the sentence of death imposed upon the petitioner be, and the same is hereby, stayed pending final disposition of the petition for writ of certiorari. In the event certiorari is granted, this stay is to continue until final disposition of the case. Leopold Stahl for petitioner. Reported below: 232 La. 289, 94 So. 2d 262. No. 34. Rowoldt v. Perfetto, Acting Officer in Charge, Immigration and Naturalization Service. Certiorari, 350 U. S. 993, to the United States Court of Appeals for the Eighth Circuit. Argued November 13-14, 1956. This case is restored to the calendar for reargument. David Rein, Joseph Forer and Ann Fagan Ginger for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Carl H. Imlay for respondent. Reported below: 228 F. 2d 109. No. 572. Perez v. Brownell, Attorney General. Certiorari, 352 U. S. 908, to the United States Court of Appeals for the Ninth Circuit. Argued May 1, 1957. This case is restored to the calendar for reargument. Charles A. Horsky, Fred Okrand, A. L. Wirin, Jack Wasserman and Salvatore C. J. Fusco for petitioner. DECISIONS PER CURIAM ETC. 935 354U.S. June 24, 1957. Solicitor General Rankin, Assistant Attorney General Olney, Oscar H. Davis and J. F. Bishop for respondent. John W. Willis filed a brief for Mendoza-Martinez, as amicus curiae, in support of petitioner. Reported below: 235 F. 2d 364. No. 415. Nishikawa v. Dulles, Secretary of State. Certiorari, 352 U. S. 907, to the United States Court of Appeals for the Ninth Circuit. Argued May 1-2, 1957. This case is restored to the calendar for reargument. A. L. Wirin and Fred Okrand for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Oscar H. Davis and Beatrice Rosenberg for respondent. Reported below: 235 F. 2d 135. No. 710. Trop v. Dulles, Secretary of State, et al. Certiorari, 352 U. S. 1023, to the United States Court of Appeals for the Second Circuit. Argued May 2, 1957. This case is restored to the calendar for reargument. Osmond K. Fraenkel for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Oscar H. Davis and J. F. Bishop for respondents. Reported below: 239 F. 2d 527. No. 589. Green v. United States. Certiorari, 352 U. S. 915, to the United States Court of Appeals for the District of Columbia Circuit. Argued April 25, 1957. This case is restored to the calendar for reargument. George Blow, George Rublee, II, and Charles E. Ford for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Leonard B. Sand, Beatrice Rosenberg and Carl H. Imlay for the United States. Reported below: 98 U. S. App. D. C. 413, 236 F. 2d 708. No. 816, Misc. Hicks v. Holland, Circuit Court Judge, et al. Motion for leave to file petition for writ of mandamus denied. 430336 o—57-40 936 OCTOBER TERM, 1956. June 24, 1957. 354 U. S. No. 590. Lambert v. California. Appeal from the Appellate Department of the Superior Court of California, Los Angeles County. (Probable jurisdiction noted, 352 U. S. 914.) Warren M. Christopher, Esquire, of Los Angeles, California, is invited to appear and present oral argument, as amicus curiae, in support of the appellant. No. 873. Eskridge v. Schneckloth, Superintendent, Washington State Penitentiary. Certiorari, 353 U. S. 922, to the Supreme Court of Washington. It is ordered that Robert W. Graham, Esquire, of Seattle, Washington, a member of the Bar of this Court, be appointed to serve as counsel for the petitioner in this case. No. 149. Swanson et al. v. Traer et al. Certiorari, 352 U. S. 865, to the United States Court of Appeals for the Seventh Circuit. The motion to substitute B. J. Fallon, Jr., as Executor of the estate of Bernard J. Fallon, deceased, in the place and stead of Bernard J. Fallon, as a party respondent, is granted. Avern B. Scolnik, Philip F. La Follette, William H. Bowman and James E. Doyle for respondents-movants. Reported below: 230 F. 2d 228. No. 1013. Massengale v. United States. Motion to dispense with printing of the petition for rehearing and the petition for rehearing granted. Upon further consideration of the petition for certiorari the Court adheres to its order of June 10, 1957, 354 U. S. 909, denying the petition for writ of certiorari. No. 717, Misc. McGowen v. Texas. The motion of petitioner to dismiss motion for leave to file petition for writ of error coram nobis is granted. Preston Pope Reynolds for petitioner. DECISIONS PER CURIAM ETC. 937 354 U. S. June 24, 1957. No. 1014. Green et al. v. Green et al. The motion of petitioners to dispense with the printing of the petition for writ of certiorari and to incorporate prior record is granted. Motion for extension of time to file trial record denied. Petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit denied. Arthur W. Sprague for petitioners. August F. Brandt for respondents. No. 812, Misc. Bonds v. Ellis, General Manager, Texas Prison System ; No. 819, Misc. Cornelious v. New York; and No. 825, Misc. Jordan v. Smyth, Superintendent, Virginia State Penitentiary. Motions for leave to file petitions for writs of habeas corpus denied. Certiorari Granted. (See No. 972, ante, p. 517; No. 686, Misc., ante, p. 521; and Nos. lf.62, 71$, 88Jf and No. 9, Misc., supra.) Certiorari Denied. (See also Nos. 1013 and 1014, supra.) No. 837. Local Union No. 698, Retail Clerks’ Union (A. F. of L.) v. Anderson et al., doing business as West Point Market. Supreme Court of Ohio. Certiorari denied. Robert E. Shufi, S. G. Lippman and Joseph E. Finley for petitioner. Stanley Denlinger and C. C. Lipps for respondents. Reported below: 165 Ohio St. 512, 137 N. E. 2d 752. No. 1003. Atlanta Printing Pressmen & Assistants Union No. 8, International Printing Pressmen & Assistants’ Union of North America, AFLr-CIO, v. Parks, doing business as American Box & Paper Co. C. A. 5th Cir. Certiorari denied. Herbert S. Thatcher for petitioner. Reported below: 243 F. 2d 284. 938 OCTOBER TERM, 1956. June 24, 1957. 354 U. S. No. 1009. Russell v. Texas Company et al. C. A. 9th Cir. Certiorari denied. Harold Judson for petitioner. M. L. Countryman, Jr. and Cale Crowley for the Northern Pacific Railway Co, respondent. Reported below: 238 F. 2d 636. No. 1011. Berryhill v. Pacific Far East Line, Inc. C. A. 9th Cir. Certiorari denied. Jay A. Darwin for petitioner. John Hays for respondent. Reported below: 238 F. 2d 385. No. 1012. Hill et al. v. Gregory. C. A. 7th Cir. Certiorari denied. Tom L. Yates and Hugh M. Matchett for petitioners. L. Duncan Lloyd for respondent. Reported below7: 241 F. 2d 612. No. 1019. 241 Corporation v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Bernard Weiss for petitioner. Solicitor General Rankin, Assistant Attorney General Rice, Lee A. Jackson and Morton K. Rothschild for respondent. Reported below: 242 F. 2d 759. No. 1022. Fink et al. v. Continental Foundry & I Machine Co. et al. C. A. 7th Cir. Certiorari denied. Samuel Morgan for petitioners. Harold A. Smith and Arthur D. Welton, Jr. for respondents. Reported below: 240 F. 2d 369. No. 1024. Wexler et ux. v. Commissioner of Inter- I nal Revenue. C. A. 6th Cir. Certiorari denied. Samuel I Barker for petitioners. Solicitor General Rankin, Assist- I ant Attorney General Rice, Robert N. Anderson and I C. Guy Tadlock for respondent. Reported below: 241 F. I 2d 304. I DECISIONS PER CURIAM ETC. 939 354U.S. June 24, 1957. No. 997. Lumbermen’s Mutual Casualty Co. v. Wright et al. C. A. 5th Cir. Certiorari denied. Albert E. Brault for petitioner. Reported below: 242 F. 2d 1. No. 1033. Walker et ux. v. United States. C. A. 5th Cir. Certiorari denied. Petitioners pro se. Solicitor General Rankin, Assistant Attorney General Rice, Lee A. Jackson and Melva M. Graney for the United States. Reported below: 240 F. 2d 601. No. 1066. Reynolds et ux. v. Lentz et al. C. A. 9th Cir. Certiorari denied. Bailey E. Bell for petitioners. Edward V. Davis for Lentz et ux., Ralph E. Moody for the Bank of Homer et al., and J. Earl Cooper for Anderson et al., respondents. Reported below: 243 F. 2d 589. No. 1083. Daniels, doing business as Harry C. Daniels & Co., v. United States et al. C. A. 7th Cir. Certiorari denied. David F. Root for petitioner. Solicitor General Rankin, Assistant Attorney General Hansen, Robert L. Farrington, Neil Brooks and Donald A. Campbell for the United States and the Secretary of Agriculture, respondents. Reported below: 242 F. 2d 39. No. 1089. Barkey Importing Co. v. Iravani Mot-taghi. C. A. 2d Cir. Certiorari denied. Isidor J. Kresel for petitioner. Thomas F. Meehan for respondent. I Reported below: 244 F. 2d 238. No. 580, Mise. Smith v. Schneckloth, Superin-| TENDENT, WASHINGTON STATE PENITENTIARY. Supreme I Court of Washington. Certiorari denied. Petitioner I pro se. John J. O’Connell, Attorney General of Washing-I ton, and Michael R. Alfieri, Assistant Attorney General, I for respondent. 940 OCTOBER TERM, 1956. June 24, 1957. 354U.S. No. 1090. Scott v. Segarra-Serra. C. A. 1st Cir. Certiorari denied. Benicio F. Sanchez and Felix Ocho-teco, Jr. for petitioner. Walter L. Newsom, Jr. for respondent. Reported below: 242 F. 2d 315. No. 598, Misc. Johnson v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 239 F. 2d 698. No. 608, Misc. Nichols v. McGee, Director, California State Department of Corrections, et al. Supreme Court of California. Certiorari denied. Petitioner pro se. Edmund G. Brown, Attorney General of California, and Clarence A. Linn, Assistant Attorney General, for respondents. No. 679, Misc. Sauer v. United States. C. A. 9th Cir. Certiorari denied. Loren Miller for petitioner. Solicitor General Rankin, Assistant Attorney General Olney, Robert S. Erdahl and Isabelle R. Cappello for the United States. Reported below: 241 F. 2d 640. No. 729, Misc. Alexander v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin for the United States. Reported below: 241 F. 2d 351. No. 811, Misc. Gray v. Ellis, General Manager, I Texas Prison System. Court of Criminal Appeals of Texas. Certiorari denied. 1 No. 815, Misc. Creech v. New York. Appellate I Division of the Supreme Court of New York, Second I Judicial Department. Certiorari denied. I DECISIONS PER CURIAM ETC. 941 354 U. S. June 24, 1957. No. 737, Misc. Nirenberg v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg for the United States. Reported below: 242 F. 2d 632. No. 761, Misc. Perez v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin for the United States. Reported below: 242 F. 2d 867. No. 772, Misc. Kaplan v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Rankin, Assistant Attorney General Rice and Joseph M. Howard for the United States. Reported below: 241 F. 2d 521. No. 821, Misc. Stokes v. North Carolina. C. A. 2d Cir. Certiorari denied. No. 827, Misc. Albert v. Nash, Warden. Supreme Court of Missouri. Certiorari denied. No. 519, Misc. Davis v. Pepersack, Warden. Petition for writ of certiorari to the Court of Appeals of Maryland denied without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court. Reported below: 211 Md. 606, 125 A. 2d 841. No. 802, Misc. Stoneking v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Whittaker took no part in the consideration or decision of this application. Petitioner pro se. Solicitor General Rankin for the United States. 942 OCTOBER TERM, 1956. June 24, 1957. 354 U. S. No. 618. Spokane Building & Construction Trades Council et al. v. Audubon Homes, Inc. Supreme Court of Washington. Certiorari denied. Samuel B. Bassett for petitioners. Reported below: 49 Wash. 2d 145, 298 P. 2d 1112. No. 1005. Edwards v. Velvac, Inc., et al. C. A. 7th Cir. Certiorari denied. J. Preston Swecker and William L. Mathis for petitioner. Ira Milton Jones for respondents. No. 1006. Barclay Home Products, Inc., et al. v. Federal Trade Commission. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Smith W. Brookhart, Ralph E. Becker and Benjamin H. Dorsey for petitioners. Solicitor General Rankin, Assistant Attorney General Hansen, Daniel M. Friedman, W. Louise Florencourt, Earl W. Kintner and Robert B. Dawkins for respondent. Reported below: 100 U. S. App. D. C.---, 241 F. 2d 451. No. 1010. Woodlaw et al., Executors, v. Earle, Former Collector of Internal Revenue. C. A. 9th Cir. Certiorari denied. George W. Mead for petitioners. Solicitor General Rankin, Assistant Attorney General Rice, A. F. Prescott and Louise Foster for respondent. Reported below: 245 F. 2d 119. No. 814, Misc. Matusow v. United States. C. A. I 2d Cir. Certiorari denied. Stanley Faulkner for peti- I tioner. Solicitor General Rankin for the United States. I Reported below: 244 F. 2d 532. I No. 818, Misc. Hodge v. California. District Court I of Appeal of California, First Appellate District. Cer- I tiorari denied. Reported below: 147 Cal. App. 2d 591, I 305 P. 2d 957. I DECISIONS PER CURIAM ETC. 943 354 U. S. June 24, 1957. Rehearing Granted. (See No. 1013, ante, p. 936.) Rehearing Denied. Nos. 430 and 834. Achilli v. United States, 353 U. S. 373; No. 435. Mulcahey, District Director, Immigration and Naturalization Service, v. Catalanotte, 353 U. S.692; No. 866. Sun Oil Co. v. State Mineral Board et al, 353 U. S. 962; No. 889. Talley v. Sears, Roebuck & Co, 353 U. S. 965; No. 915. Atkins v. United States, 353 U. S. 974; No. 960. Gray et al. v. New York, New Haven & Hartford Railroad Co, 353 U. S. 966 ; No. 1017. Smoot Sand & Gravel Corp. v. Commissioner of Internal Revenue, 354 U. S. 922; No. 591, Mise. Sheridan v. United States, 353 U. S. 980; No. 618, Mise. Touhy v. Illinois, 353 U. S. 962; No. 725, Mise. Faubert v. Groat et al, 353 U. S. 980; and No. 765, Mise. Sheffield v. Louisiana, 354 U. S. 915. Petitions for rehearing denied. No. 64. Libson Shops, Inc, v. Koehler, District Director of Internal Revenue, 353 U. S. 382. Rehearing denied. Mr. Justice Whittaker took no part in the consideration or decision of this application. No. 370. Baltimore & Ohio Railway Co. v. Jack-son, 353 U. S. 325. Motion of the Association of American Railroads for leave to file brief, as amicus curiae, in support of the petition for rehearing granted. Rehearing-denied. 944 OCTOBER TERM, 1956. June 24, July 8, 1957. 354 U. S. No. 390, Mise. Vick v. Memphis and Shelby County Bar Association, Inc., 352 U. S. 975. Motion for leave to file second petition for rehearing denied. July 8, 1957. Order. An order of The Chief Justice designating and assigning Mr. Justice Reed (retired) to perform judicial duties in the United States Court of Claims pursuant to 28 U. S. C. § 294, is ordered entered on the minutes of this Court pursuant to 28 U. S. C. § 295. Rehearing Denied. No. 72. Lehmann, Officer in Charge, Immigration and Naturalization Service, v. United States ex rel. Carson or Carasaniti, 353 U. S. 685; No. 403. Rabang v. Boyd, District Director, Immi- I GRATION AND NATURALIZATION SERVICE, 353 U. S. 427 ; No. 619. Jackson v. Taylor, Acting Warden, 353 U.S. 569; No. 620. Fowler v. Wilkinson, Warden, 353 U. S. I 583; I No. 820. Smith v. United States, 353 U. S. 983; I No. 922. Lelles v. United States, 353 U. S. 974; I No. 939. Markham et al. v. Burchfield et al., 353 I U.S. 988; I No. 677, Mise. Lebron v. United States, ante, p. 911 ; I No. 775, Mise. Cepero v. Pan American World Air- I ways et al., ante, p. 927; and I No. 795, Mise. Luciano v. Wilkinson, Warden, ante, I p. 924. Petitions for rehearing denied. Mr. Justice I Douglas took no part in the consideration or decision of I these applications. I DECISIONS PER CURIAM ETC. 945 354U.S. July 8, 11, 1957. No. 445. Lake Tankers Corp. v. Henn, Administratrix, ante, p. 147. Rehearing denied. Mr. Justice Douglas and Mr. Justice Whittaker took no part in the consideration or decision of this application. No. 603. Verhaagen et al. v. Reeder, City Manager of Norfolk, et al., 353 U. S. 974. Rehearing denied. Mr. Justice Black and Mr. Justice Douglas took no part in the consideration or decision of this application. July 11, 1957. Rehearing Denied. No. 79. International Brotherhood of Teamsters, Local 695, A. F. L., et al. v. Vogt, Inc., ante, p. 284. Rehearing denied. Mr. Justice Douglas and Mr. Justice Whittaker took no part in the consideration or decision of this application. No. 596. United States v. Korpan, ante, p. 271 ; No. 674. United States v. Hunt et al., ante, p. 932; No. 675. United States v. Ollhoff et al., ante, p. 932; No. 723. United States v. Mack, ante, p. 932; No. 724. United States v. Cali, ante, p. 932; No. 725. United States v. Edwards, ante, p. 932; No. 726. United States v. Hatch, ante, p. 932; and No. 727. United States v. Harris et al., ante, p. 932. Petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this application. 946 STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS, AT CONCLUSION OF OCTOBER TERMS—1954, 1955, AND 1956 MISCELLANEOUS TOTALS 1956 cm m o o r-cm~ h 351 TERMS 1956 TH CO Th Q TH co CM 00 rH 1955 CO U-iO co 00 C0^ t-H r—■* 219 SS6I 11 79 76 53 1956 1954 878 1,566 798 1,361 80 205 1954 ng on 11 67 55 >plica- 72 1955 821 768 co m Distribution of cases remaini dockets: Original cases Appellate cases on merits. Petitions for certiorari Miscellaneous docket ap tions 1954 CM O t- CO cm APPELLATE 1956 006 091‘1 260 1955 1,020 865 155 1954 843 721 122 TERMS 1956 3 236 664 798 ORIGINAL 1956 Th CO 1955 Th cm co oo cm Th co CM CO b- 1955 m Th r-H T—4 1954 O Ci CM O oo co Th th in co 1954 th r-H Distribution of cases disposed of during terms: Original cases Anoellate cases on merits Petitions for certiorari Miscellaneous docket applications Terms Number of cases on dockets Number disposed of during terms. Number remaining on dockets July 12, 1957. INDEX ADMINISTRATIVE AGREEMENT. See Constitutional Law, I, 2. ADMINISTRATIVE OFFICE OF UNITED STATES COURTS. Appointment of Assistant Director of the Administrative Office of the United States Courts, p. 933. ADMINISTRATIVE PROCEDURE. See Government Employees. ADMIRALTY. 1. Limitation proceeding—Cross-claims against foreign claimant.— Federal court in admiralty limitation proceeding may permit parties to cross-claim against foreign claimant for damages arising out of same maritime collision; consideration of Admiralty Rules. British Transport Commission v. United States, p. 129. 2. Limitation proceeding—Right of claimant—State court proceeding.—In admiralty limitation proceeding where aggregate of claims was reduced to less than value of vessels and their pending freight, principal claimant permitted to proceed in state court to determine liability of vessel owner for wrongful death of husband; concur sus not necessary where value of vessels and pending freight exceeds claims. Lake Tankers Corp. v. Henn, p. 147. ADVOCACY. See Criminal Law, 2. AIR FORCE. See Constitutional Law, I, 1. ALABAMA. See Constitutional Law, IV; Procedure, 1. ALIGNMENT OF PARTIES. See Jurisdiction, 4. ALIMONY. See Constitutional Law, V. AMERICAN EXPRESS COMPANY. See Constitutional Law, VII. AMUSEMENTS. See Taxation, 1. APPEAL. See Constitutional Law, VI, 9; Jurisdiction, 1-3; Procedure, 3. ARIZONA. See Special Masters. ARMED FORCES. See Constitutional Law, I, 1-2. ARRAIGNMENT. See Criminal Law, 3. ASSIGNMENT. See Supreme Court, 1-2. ASSOCIATIONS. See Constitutional Law, III. 947 948 INDEX. ATTORNEYS. Disbarment—Grounds—Federal courts.—Disbarment of lawyer by state court does not automatically require disbarment by federal court; “principles of right and justice” did not require federal court to disbar lawyer for forgery committed 18 years previously while mentally ill. Theard v. United States, p. 278. BETTING. See Taxation, 2. BILL OF RIGHTS. See Constitutional Law. BOOKS. See Constitutional Law, II, 3-6; III. CALIFORNIA. See Constitutional Law, I, 5; VI, 9; Special Masters. CAMP FOLLOWERS. See Constitutional Law, I, 1. CAPITAL CASES. See Constitutional Law, I, 1. CARRIERS. See Admiralty; Employers’ Liability Act. CERTIORARI. See Jurisdiction, 1. CITIES. See Constitutional Law, IV. I CITIZENS. See Constitutional Law, I, 1-2. | CIVILIANS. See Constitutional Law, I, 1. I CIVIL SERVICE. See Government Employees. I CODE OF MILITARY JUSTICE. See Constitutional Law, I, 1. I COERCION. See Constitutional Law, II, 7. I COLLATERAL ESTOPPEL. See Criminal Law, 2. I COLLISION. See Admiralty. I COMMERCE. See Constitutional Law, IV; VI, 6; VII. I COMMITTEE ON UN-AMERICAN ACTIVITIES. See Constitu- I tional Law, I, 3. I COMMITTEES. See Constitutional Law, I, 3-4. I COMMUNISM. See Constitutional Law, I, 3-4; Criminal Law, 1-2. I COMMUNITY CURRENCY EXCHANGES ACT. See Constitu- 1 tional Law, VII. ■ CONCURSUS. See Admiralty, 2. I CONFESSION. See Criminal Law, 3. ■ CONGRESS. See Constitutional Law, I, 1-3, 5; II, 1; VI, 1. fl CONSPIRACY. See Criminal Law, 2. ■ INDEX. 949 CONSTITUTIONAL LAW. See also Jurisdiction, 2. I. In General, p. 949. II. Freedom of Speech and Press, p. 950. III. Self-Incrimination, p. 950. IV. Commerce, p. 951. V. Full Faith and Credit, p. 951. VI. Due Process of Law, p. 951. VII. Equal Protection of Laws, p. 952. I. In General. 1. Court-martial jurisdiction—Limits—Dependents of servicemen overseas—Capital offenses.—Civilian dependent accompanying member of armed forces overseas not triable by court-martial for capital offense in peacetime; Uniform Code of Military Justice, Art. 2 (11), unconstitutional pro tanto; provisions of Art. Ill, § 2, and Fifth and Sixth Amendments, for jury trial of crimes, applicable; Necessary and Proper Clause; regulation of “land and naval Forces”; exclusive power of law courts to try civilians for federal offenses. Reid v. Covert, p. 1. 2. Armed forces of United States—Offenses in Japan—Jurisdiction—Security Treaty.—Validity of waiver by United States of jurisdiction over offense committed in Japan by member of United States armed forces; wisdom of arrangement was exclusively for the determination of the Executive and Legislative Branches; delivery of serviceman to Japanese authorities for trial sustained. Wilson v. Girard, p. 524. 3. Congressional investigations—Limitations on power—Fairness— Contempt.—Constitutional limitations on congressional investigations; no general authority to expose private affairs of individuals; investigations justifiable solely as adjunct to legislative process; Bill of Rights applicable; House Committee on Un-American Activities; conviction for refusal to answer invalid where witness not afforded fair opportunity to determine “question under inquiry.” Watkins v. United States, p. 178. 4. State legislative investigations—Limitations on power—Witnesses—Contempt.—Constitutional limitations upon state legislative investigations; on record in this case, constitutional rights of witness violated by conviction for contempt for refusal to answer certain questions. Sweezy v. New Hampshire, p. 234. 5. Obscenity statutes—Validity.—Federal statute forbidding mailing of obscene matter (18 U. S. C. § 1461) sustained; proper exercise of postal power of Congress; not violative of freedom of press or due process nor encroachment on powers reserved to States by Ninth and Tenth Amendments. California obscenity statute (Penal 950 INDEX. CONSTITUTIONAL LAW—Continued. Code, §311) sustained; not violative of freedom of press or due process nor inhibited by federal postal functions. Roth v. United States, p. 476; Alberts v. California, p. 476. See also Kingsley Books, Inc, v. Brown, p. 436. II. Freedom of Speech and Press. 1. Congressional investigations—Limitations on power—Rights of witnesses.—Congressional investigations subject to Bill of Rights. Watkins v. United States, p. 178. 2. State legislative investigations—Limitations on power—Rights of witness.—Constitutional rights of witness violated by conviction for contempt for refusal to answer certain questions. Sweezy v. New Hampshire, p. 234. 3. Obscenity statutes generally.—Obscenity not within freedom of speech or press; standard for judging obscenity is whether matter in question appeals to prurient interest. Roth v. United States, p. 476. 4. Obscenity—Federal criminal statute—Validity.—Validity of 18 U. S. C. § 1461, making it crime to mail obscene matter; when properly applied, not violative of freedom of speech and press. Roth v. United States, p. 476. 5. Obscenity—California criminal statute—Validity.—Validity of obscenity provisions of California Penal Code, §311; when properly applied, not violative of freedom of speech and press. Alberts v. California, p. 476. 6. Obscenity—Injunction—New York law.—New York law authorizing injunctive remedy against sale and distribution of publications adjudged obscene, and authorizing their seizure and destruction, ' valid; not forbidden “prior restraint.” Kingsley Books, Inc, v. Brown, p. 436. 7. Labor relations — Picketing — State injunction. — Wisconsin I injunction against picketing for unlawful purpose of coercing em- I ployer to coerce his employees, sustained. Teamsters Union v. Vogt, I Inc, p. 284. I III. Self-Incrimination. I Privilege against self-incrimination—Custodian of union’s books I and records—Subpoena duces tecum.—Privilege against self-incrim- I ination attaches to questions asked custodian of union’s books and I records by federal grand jury as to whereabouts of books and records I subpoenaed but not produced; questions here were incriminating. I Curcio v. United States, p. 118. I INDEX. 951 CONSTITUTIONAL LAW—Continued. IV. Commerce. State taxation—Wholesale grocers—Discrimination against interstate commerce.—Privilege tax imposed by Alabama city on out-ofcity wholesale grocery business, as here applied to Georgia corporation, held invalid as discriminatory burden on interstate commerce. West Point Grocery Co. v. Opelika, p. 390. V. Full Faith and Credit. Nevada divorce—Alimony rights in New York.—New York not bound by Full Faith and Credit Clause to recognize husband’s Nevada ex parte divorce so far as it purported to affect wife’s right to support. Vanderbilt v. Vanderbilt, p. 416. VI. Due Process of Law. 1. Congressional investigations—Fairness—Contempt.—Conviction under 2 U. S. C. § 192 for refusal to answer questions before congressional investigating committee invalid where witness not afforded fair opportunity to determine “question under inquiry.” Watkins v. United States, p. 178. 2. State legislative investigations—Limitations on power—Contempt.—On record in this case, rights of witness violated by conviction for contempt for refusal to answer certain questions. Sweezy v. New Hampshire, p. 234. 3. Federal obscenity statute—Validity.—Validity of 18 U. S. C. § 1461, making it crime to mail obscene matter; when properly applied, not violative of due process. Roth v. United States, p. 476. 4. State obscenity statute—Validity.—Validity of obscenity provisions of California Penal Code, §311; when properly applied, not violative of due process. Alberts v. California, p. 476. 5. State obscenity statute—Validity—Injunction.—New York law authorizing injunctive remedy against sale and distribution of publications adjudged obscene, and authorizing their seizure and destruction, valid; not forbidden “prior restraint”; want of jury trial not violative of due process. Kingsley Books, Inc., v. Brown, p. 436. 6. Labor relations—Picketing—Injunction.—Limits on power of State to enjoin picketing; Wisconsin injunction against picketing for unlawful purpose of coercing employer to coerce his employees sustained. Teamsters Union v. Vogt, Inc., p. 284. 7. Criminal statutes—Validity — Vagueness.—Federal and California obscenity statutes not too vague to support conviction for crime. Roth v. United States, p. 476. 430336 0—57-41 952 INDEX. CONSTITUTIONAL LAW—Continued. 8. Criminal statutes — Validity — Vagueness. — 26 U. S. C. §4462 (a)(2), imposing tax on “so-called ‘slot’ machines,” not invalid for vagueness as here applied. United States v. Korpan, p. 271. 9. Criminal procedure—State courts—Trial record—Appeal.—Ex parte settlement of state court trial record for use on appeal denied appellant procedural due process; right to counsel not waived; valid appeal to Constitution not too late. Chessman v. Teets, p. 156. VII. Equal Protection of Laws. Regulation of business—Discrimination—Sale of money orders.— Provision of Illinois Community Currency Exchanges Act exempting American Express Company money orders from state licensing and regulation, invalid as to other sellers of money orders. Morey v. Doud, p. 457. CONSTRUCTION OF STATUTES. See Words. CONTEMPT. See Constitutional Law, III ; VI, 1-2. CONTEMPT OF CONGRESS. See Constitutional Law, I, 3. CORPORATIONS. See Constitutional Law, III; IV; VII; Jurisdiction, 4; Procedure, 4. COUNSEL. See Attorneys; Constitutional Law, VI, 9. COURT OF CLAIMS. See Supreme Court, 2. COURTS. See Administrative Office of United States Courts; Admiralty; Attorneys; Constitutional Law, I, 1-2; II, 6-7; III; V; VI, 5-6, 9; Criminal Law, 3; Employers’ Liability Act; Jurisdiction; Procedure; Supreme Court. COURTS-MARTIAL. See Constitutional Law, I, 1-2. | CRIMINAL LAW. See also Attorneys; Constitutional Law, I, 1-5; II, 1-5; III; VI, 1-5, 7-9; Instructions to Jury; Jurisdiction, 3; Procedure, 3, 5; Taxation. 1. Offenses—Contempt of Congress—Refusal to answer.—Conviction under 2 U. S. C. § 192 for refusal to answer before congressional I committee invalid where witness not accorded fair opportunity to | determine pertinency of question. Watkins v. United States, p. 178. j 2. Offenses—Smith Act—Construction—“Organize”—Conspiracy— I Limitations.—Advocacy and teaching of forcible overthrow of Gov- I ernment, as abstract principle without intent to instigate action, not I prohibited by Smith Act; statute of limitations as applied to indict- I ment for conspiracy ; meaning of “organize” ; adequacy of instructions I to jury; sufficiency of evidence; doctrine of collateral estoppel. I Yates v. United States, p. 298. I INDEX. 953 CRIMINAL LAW—Continued. 3. Arraignment—Federal rules—Unnecessary delay.—Application of federal rule requiring officer to arraign arrested person “without unnecessary delay”; delay in arraignment vitiated confession of rape. Mallory v. United States, p. 449. CROSS-CLAIMS. See Admiralty, 1. CURRENCY EXCHANGES. See Constitutional Law, VII. CUSTODIANS. See Constitutional Law, III. DAMAGES. See Admiralty; Employers’ Liability Act. DEATH. See Admiralty, 2; Constitutional Law, I, 1-2. DEFENSE. See Constitutional Law, I, 1-2. DELAY. See Criminal Law, 3. DEPARTMENTAL REGULATIONS. See Government Employees. DEPARTMENT OF DEFENSE. See Constitutional Law, I, 1-2. DEPARTMENT OF STATE. See Government Employees. DEPENDENTS. See Constitutional Law, I, 1. DERIVATIVE SUIT. See Jurisdiction, 4; Procedure, 4. DISBARMENT. See Attorneys. DISCHARGE. See Government Employees. DISCRIMINATION. See Constitutional Law, IV; VII. DISLOYALTY. See Constitutional Law, I, 3-4; Criminal Law, 1-2; Government Employees. DISTRICT OF COLUMBIA. See Jurisdiction, 3. DIVERSITY JURISDICTION. See Jurisdiction, 4. DIVORCE. See Constitutional Law, V. DOCUMENTS. See Constitutional Law, III. DUE PROCESS. See Constitutional Law, VI. EMPLOYER AND EMPLOYEE. See Constitutional Law, II, 7; Employers’ Liability Act; Government Employees. EMPLOYERS’ LIABILITY ACT. 1. Liability of employer—Questions for jury—Sufficiency of evidence.—Sufficiency of evidence of employer negligence to sustain jury verdict. Ringhiser v. Chesapeake & 0. R. Co., p. 901. 2. Liability of employer—Questions for jury—Sufficiency of evidence.—Judgment of Ohio Supreme Court reversed, and cause remanded, on authority of Rogers v. Missouri Pacific R. Co., 352 U. S. 500. McBride v. Toledo Terminal R. Co., p. 517. 954 INDEX. EQUAL PROTECTION OF LAWS. See Constitutional Law, VII. ESTOPPEL. See Criminal Law, 2. EVIDENCE. See Criminal Law, 2-3; Employers’ Liability Act; Jurisdiction, 3. EXECUTIVE AGREEMENTS. See Constitutional Law, I, 2. EXECUTIVE DEPARTMENTS. See Constitutional Law, I, 2; Government Employees. EXEMPTION. See Constitutional Law, VII. EXONERATION. See Admiralty. EX PARTE PROCEEDINGS. See Constitutional Law, V; VI, 9. FEDERAL EMPLOYERS’ LIABILITY ACT. See Employers’ Liability Act. FEDERAL RULES OF CIVIL PROCEDURE. See Admiralty, 1; Jurisdiction, 4; Procedure, 4. FEDERAL RULES OF CRIMINAL PROCEDURE. See Criminal Law, 3. FIFTH AMENDMENT. See Constitutional Law, I, 1-3; III; VI. FINAL DECISION. See Jurisdiction, 3. FIRST AMENDMENT. See Constitutional Law, II. FLORIDA. See Procedure, 1. FORCIBLE OVERTHROW. See Criminal Law, 2. FOREIGN AFFAIRS. See Admiralty; Constitutional Law, I, 1-2. I FOREIGN SERVICE. See Government Employees. 1 FORGERY. See Attorneys. I FORMA PAUPERIS. See Procedure, 3. I FOURTEENTH AMENDMENT. See Constitutional Law, I, 3-4; I II, 2, 5-7; VI; VII. I FRAUD. See Attorneys. 1 FREEDOM OF SPEECH AND PRESS. See Constitutional Law, I II; Instructions to Jury. I FREIGHT. See Admiralty, 2. I FRIVOLOUS APPEAL. See Procedure, 3. I FULL FAITH AND CREDIT. See Constitutional Law, V. I INDEX. 955 GAMING DEVICES. See Constitutional Law, VI, 8; Taxation, 1. GOVERNMENT EMPLOYEES. Discharge—Validity—Regulations.—Discharge of Foreign Service Officer by Secretary of State on recommendation of Civil Service Loyalty Review Board, violative of State Department regulations, invalid; Department’s regulations were applicable to discharges under McCarran Rider. Service v. Dulles, p. 363. GRAND JURY. See Constitutional Law, III. GROCERS. See Constitutional Law, IV. HABEAS CORPUS. See Constitutional Law, I, 1-2; VI, 9. HOUSE OF REPRESENTATIVES. See Constitutional Law, I, 3; Criminal Law, 1. HUSBAND AND WIFE. See Constitutional Law, I, 1; V. ILLINOIS. See Constitutional Law, VII. INCOMPETENTS. See Attorneys. INCRIMINATION. See Constitutional Law, III. IN FORMA PAUPERIS. See Procedure, 3. INJUNCTION. See Constitutional Law, II, 6-7. INSANITY. See Attorneys. INSTRUCTIONS TO JURY. See also Criminal Law, 2. Criminal trials—Obscenity.—Sufficiency of instructions in trial for violation of obscenity statutes; what is obscenity; protection of freedom of speech and press. Roth v. United States, p. 476. INTERNAL REVENUE. See Taxation. INTERNATIONAL LAW. See Admiralty, 1; Constitutional Law, I, 1-2. INTERPRETATION OF STATUTES. See Words. INTERSTATE COMMERCE. See Constitutional Law, IV; VI, 6. INTERVENTION. See Procedure, 1. INVESTIGATIONS. See Constitutional Law, I, 3-4. JAPAN. See Constitutional Law, I, 2. JUDGES. See Supreme Court, 1-2. JUDGMENTS. See Constitutional Law, V; Criminal Law, 1-2; Employers’ Liability Act; Jurisdiction, 1-3. 956 INDEX. JURISDICTION. See also Admiralty; Constitutional Law, I, 1-2; V; VI, 6; Procedure. 1. Supreme Court—Review of state court—Appeal—Certiorari.— Appeal under 28 U. S. C. § 1257 (2) dismissed and certiorari granted. Sweezy v. New Hampshire, p. 234. 2. Supreme Court—Review of state court—Federal question.— Cause remanded to state court for determination as to whether federal constitutional question was passed on. Blackburn v. Alabama, p. 393. 3. Court of Appeals for District of Columbia Circuit—Appeals from District Court—“Final” decisions—Criminal cases—Order suppressing evidence—Appeal by Government.—Order of District Court for District of Columbia granting motion of defendant to suppress evidence in pending criminal case not appealable by Government as “final” decision. Carroll v. United States, p. 394. 4. District courts—Diversity jurisdiction—Stockholder’s derivative suit.—Determination of diversity jurisdiction over stockholder’s derivative suit; realignment of parties; management as “antagonistic” to stockholders; diversity jurisdiction not lost by death of original plaintiff; requirements of Rule 23 (b) of Rules of Civil Procedure; whether stockholder may sue on behalf of corporation is question of local law. Smith v. Sperling, p. 91; Swanson v. Traer, p. 114. JURY. See Constitutional Law, I, 1; III; VI, 5; Criminal Law, 2; Employers’ Liability Act; Instructions to Jury. JUSTICES. See Supreme Court, 1-2. LABOR. See Constitutional Law, II, 7; III; Employers’ Liability Act; Government Employees. LAWYERS. See Attorneys; Constitutional Law, VI, 9. LEGISLATURE. See Constitutional Law, I, 2-4; Criminal Law, 1. LICENSE. See Constitutional Law, IV; VII. j LIMITATIONS. See Criminal Law, 2. j LIMITED LIABILITY ACT. See Admiralty. I LOTTERY. See Taxation, 2. LOUISIANA. See Procedure, 1. LOYALTY REVIEW BOARD. See Government Employees. MACHINES. See Constitutional Law, VI, 8; Taxation, 1. I MAILS. See Constitutional Law, I, 5. I INDEX. 957 MARITIME LAW. See Admiralty. MATRIMONY. See Constitutional Law, V. McCARRAN RIDER. See Government Employees. MENTAL ILLNESS. See Attorneys. MILITARY TRIBUNALS. See Constitutional Law, I, 1-2. MISSISSIPPI. See Procedure, 1. MONEY ORDERS. See Constitutional Law, VII. MUNICIPALITIES. See Constitutional Law, IV. MURDER. See Constitutional Law, I, 1-2. “NECESSARY AND PROPER’’ CLAUSE. See Constitutional Law, I, 1. NEGLIGENCE. See Admiralty; Employers’ Liability Act. NEVADA. See Constitutional Law, V. NEW HAMPSHIRE. See Constitutional Law, I, 4. NEW MEXICO. See Special Masters. NEW YORK. See Constitutional Law, II, 6; V. NINTH AMENDMENT. See Constitutional Law, I, 5. NUMBERS GAME. See Taxation, 2. OBSCENITY. See Constitutional Law, I, 5; Instructions to Jury. OCCUPATIONAL TAX. See Taxation, 2. OFFICERS. See Constitutional Law, III; Criminal Law, 3. OHIO. See Employers’ Liability Act, 2. ORGANIZING. See Criminal Law, 2. ORIGINAL JURISDICTION. See Procedure, 1. OVERT ACT. See Criminal Law, 2. PARTIES. See Admiralty; Jurisdiction, 4; Procedure, 1, 4. PAUPERS. See Procedure, 3. PICKETING. See Constitutional Law, II, 7. PINBALL MACHINES. See Constitutional Law, VI, 8. POLICE. See Criminal Law, 3. POSTAL POWER. See Constitutional Law, I, 5. PRIOR RESTRAINT. See Constitutional Law, II, 6. PRIVILEGE. See Constitutional Law, III; IV. 958 INDEX. PRIVILEGE TAX. See Constitutional Law, IV. PROCEDURE. See also Admiralty; Attorneys; Constitutional Law, I, 1-4; II, 1-2, 6-7; III; V; VI, 1-2, 5-6, 9; Employers’ Liability Act; Government Employees; Instructions to Jury; Jurisdiction. 1. Supreme Court—Original jurisdiction—Intervention.—Alabama, Florida, Mississippi and Texas granted leave to intervene, without prejudice to motions of United States and Louisiana which are continued. United States v. Louisiana, p. 515. 2. Supreme Court—State statute—Remand.—Remand of case to state court for determination of question of state law unnecessary where highest state court has already clearly indicated answer. Morey v. Doud, p. 457. 3. Federal courts—Appeal in forma pauperis.—Applicant for leave to appeal in forma pauperis not afforded adequate opportunity to show Court of Appeals that claimed errors in District Court trial were not frivolous; case remanded. Farley v. United States, p. 521. 4. Federal Rules of Civil Procedure — Stockholder’s action — Requirements.—Requirement of Rule 23 (b) that stockholder particularize efforts to secure desired action from management. Smith v. Sperling, p. 91. 5. Federal Rules of Criminal Procedure—Arraignment—Delay.— Application of rule requiring officer to arraign arrested person “without unnecessary delay”; extended delay in arraignment vitiated confession. Mallory v. United States, p. 449. PROTOCOL. See Constitutional Law, I, 2. PUBLICATIONS. See Constitutional Law, II, 3-6. QUESTION UNDER INQUIRY. See Constitutional Law, I, 3. RAILROADS. See Employers’ Liability Act. RAPE. See Criminal Law, 3. REALIGNMENT OF PARTIES. See Jurisdiction, 4. RECORDS. See Constitutional Law, III; VI, 9. REGULATIONS. See Constitutional Law, VII; Government Employees. RESERVED POWERS. See Constitutional Law, I, 5. J RULES OF CIVIL PROCEDURE. See Admiralty, 1; Jurisdiction, 4; Procedure, 4. | RULES OF CRIMINAL PROCEDURE. See Criminal Law, 3. INDEX. 959 SECRETARY OF STATE. See Constitutional Law, I, 2; Government Employees. SECURITY TREATY. See Constitutional Law, I, 2. SEIZURE. See Constitutional Law, VI, 5. SELF-INCRIMINATION. See Constitutional Law, III. SENATE APPROVAL. See Constitutional Law, I, 2. SERVICEMEN. See Constitutional Law, I, 1-2. SHIPOWNERS’ LIMITED LIABILITY ACT. See Admiralty. SIXTH AMENDMENT. See Constitutional Law, I, 1. SLOT MACHINES. See Constitutional Law, VI, 8. SMITH ACT. See Criminal Law, 2. SOLDIERS. See Constitutional Law, I, 1-2. SPECIAL MASTERS. Orders relative to compensation, fees and expenses of Special Masters in certain cases. Texas v. New Mexico, p. 918; Arizona v. California, p. 918. STATE DEPARTMENT. See Constitutional Law, I, 2; Government Employees. STATEMENT OF BUSINESS. See Supreme Court, 3. STATES. See Constitutional Law, I, 4-5; II, 2, 7; IV; V; VI, 2, 6; VII; Procedure, 1-2; Special Masters. STOCKHOLDERS. See Jurisdiction, 4; Procedure, 4. SUBPOENA DUCES TECUM. See Constitutional Law, III. SUBVERSION. See Constitutional Law, I, 3-4; Criminal Law, 1-2. SUPPORT. See Constitutional Law, V. SUPPRESSION OF EVIDENCE. See Jurisdiction, 3. SUPREME COURT. See also Jurisdiction, 1-2; Procedure, 1-2; Special Masters. 1. Order temporarily assigning certain Associate Justices to certain circuits as Circuit Justices, p. 934. 2. Mr. Justice Reed (retired) designated and assigned to perform judicial duties in United States Court of Claims, p. 944. 3. Statement showing the number of cases filed, disposed of, and remaining on dockets, at conclusion of October Terms 1954, 1955, and 1956. P. 946. 960 INDEX. TAXATION. See also Constitutional Law, IV. 1. Federal taxes—“Gaming devices”—Pinball machines.—Pinball machine entitling winners to cash held “so-called ‘slot’ machine” subject to $250 tax under 26 U. S. C. (Supp. IV) §§ 4461-4462. United States v. Korpan, p. 271. 2. Federal taxes—Wagers—Occupational tax.—Pick-up man in numbers game not subject to occupational tax under 26 U. S. C. (1952 ed.) § 3290 as person “engaged in receiving wagers.” United States v. Calamaro, p. 351. TENTH AMENDMENT. See Constitutional Law, I, 5. TESTIMONY. See Constitutional Law, I, 3-4; III. TEXAS. See Procedure, 1; Special Masters. TRANSPORTATION. See Employers’ Liability Act. TREATIES. See Constitutional Law, I, 1-2. TRIAL. See Constitutional Law, I, 1-2; VI, 9; Instructions to Jury; Procedure, 3, 5. UN-AMERICAN ACTIVITIES COMMITTEE. See Constitutional Law, I, 3. UNIFORM CODE OF MILITARY JUSTICE. See Constitutional Law, I, 1. UNIONS. See Constitutional Law, III; VI, 6. VAGUENESS. See Constitutional Law, I, 3; VI, 7-8. VERDICT. See Employers’ Liability Act, 1. VESSELS. See Admiralty. WAGERS. See Taxation, 2. WAIVER. See Constitutional Law, I, 2; VI, 9. WHOLESALE GROCERS. See Constitutional Law, IV. WISCONSIN. See Constitutional Law, VI, 6. WITNESSES. See Constitutional Law, I, 3-4; III; Criminal | Law, 1. WORDS. 1. “Absolute discretion.”—McCarran Rider. Service v. Dulles, j p. 363. 2. “Advocate.”—Smith Act. Yates v. United States, p. 298. 3. “Antagonism” between corporation and stockholders.—Smith v. | Sperling, p. 91; Swanson v. Traer, p. 114. ] INDEX. 961 WORDS—Continued. 4. “Engaged in receiving wagers.”—26 U. S. C. (1952 ed.) §3290. United States v. Calamaro, p. 351. 5. “Final decision.”—28 U. S. C. § 1291. Carroll v. United States, p. 394. 6. “Frivolous appeal.”—Farley v. United States, p. 521. 7. “Gaming device.”—26 U. S. C. § 4462. United States v. Korpan, p. 271. 8. “Good faith.”—28 U. S. C. § 1915. Farley v. United States, p. 521. 9. “Land and naval Forces.”—Const, Art. I, § 8, cl. 14. Reid v. Covert, p. 1. 10. “Necessary and proper.”—Const, Art. I, § 8, cl. 18. Reid v. Covert, p. 1. 11. “Necessary or advisable in the interests of the United States.”— McCarran Rider. Service v. Dulles, p. 363. 12. “Not taken in good faith.”—28 U. S. C. § 1915. Farley v. United States, p. 521. 13. “Obscene.”—Kingsley Books, Inc, v. Brown, p. 436. 14. “Obscene, lewd, lascivious, or filthy.”—18 U. S. C. § 1461. Roth v. United States, p. 476. 15. “Obscene or indecent.”—California Penal Code, § 311. Alberts v. California, p. 476. 16. “Organize.”—Smith Act. Yates v. United States, p. 298. 17. “Overt act.”—18 U. S. C. § 371. Yates v. United States, p. 298. 18. “Principles of right and justice.”—Theard v. United States, p. 278. 19. “Prior restraint.”—Kingsley Books, Inc, v. Brown, p. 436. 20. “Question under inquiry.”—2 U. S. C. § 192. Watkins v. United States, p. 178. 21. “Slot machines.”—26 U. S. C. §4462 (a)(2). United States v. Korpan, p. 271. 22. “Teach.”—Smith Act. Yates v. United States, p. 298. 23. “Unlawful purpose.”—Wis. Stat. § 111.06 (2) (b). Teamsters Union v. Vogt, Inc, p. 284. 24. “Without unnecessary delay.”—Rule 5 (a) of Federal Rules of i Criminal Procedure. Mallory v. United States, p. 449. WRONGFUL DEATH. See Admiralty, 2; Constitutional Law, I, 1-2; Employers ’ Liability Act. o