UNITED STATES REPORTS VOLUME 366 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1960 Opinions and Decisions Per Curiam April 24 Through (in Part) June 5, 1961 Orders April 24 Through June 19, 1961 WALTER WYATT reporter of decisions UNITED STATES GOVERNMENT printing office WASHINGTON : 1961 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $6.00 (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 0. DOUGLAS, Associate Justice. TOM C. CLARK, Associate Justice. JOHN M. HARLAN, Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. CHARLES E. WHITTAKER, Associate Justice. POTTER STEWART, Associate Justice. RETIRED STANLEY REED, Associate Justice. HAROLD H. BURTON, Associate Justice. SHERMAN MINTON, Associate Justice. ROBERT F. KENNEDY, Attorney General. ARCHIBALD COX, Solicitor General. JAMES R. BROWNING, Clerk. WALTER WYATT, Reporter of Decisions. T. PERRY LIPPITT, Marshal. HELEN NEWTMAN, Librarian. 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, Potter Stewart, 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 0. Douglas, Associate Justice. For the Tenth Circuit, Charles E. Whittaker, Associate Justice. October 14, 1958. (For next previous allotment, see 357 U. S., p. v.) iv TABLE OF CASES REPORTED Note: Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on pages 901 et seq. are those in which orders were entered. Page Absentee Shawnee Tribe of Oklahoma, United States v..... 924 Adames v. United States.................................. 939 Adams, Akers v........................................... 901 Adams v. Banmiller....................................... 906 Adams, Crabtree v........................................ 927 Adams v. Cunningham...................................... 952 Adams, DeLong v.......................................... 901 Adams, Kincaid v......................................... 913 Adams, Oyler v........................................... 927 Adams, Perrine v......................................... 922 Adams, Scalf v............,.............................. 902 Adams, Sublett v......................................... 933 Aiken v. New York........................................ 920 Air Line Pilots Association v. Quesada................... 962 Akers v. Adams........................................... 901 Akers v. Boles........................................... 901 Alabama, Anderson v.................................... 208 Alabama, Lee v......................................... 972 Alabama, Lindsay v.................................... 933, 978 Alabama, Seals v....................................... 954 Alabama, Thomas v..................................... 938 Alabama ex rel. Gallion v. Kennedy....................... 913 Alabama ex rel. Gallion v. Rogers........................ 913 Alaska v. Arctic Maid.................................. 199 Alaska, Eckman v......................................... 947 Alatex Construction Service v. Crawford.................. 269 Alexander v. Daugherty................................... 939 Allegheny County, Griggs v............................... 943 Allen v. Rhay............................................ 971 Allen v. Walker.......................................... 947 Allison v. Indiana....................................... 927 American Dredging Co., Labor Board v.................. 908 American Greetings Corp., Ludwig v....................... 269 American Guild of Variety Artists v. Detroy.............. 929 v VI TABLE OF CASES REPORTED. Page Anastaplo, In re............................................. 82 Anderson v. Alabama......................................... 208 Anderson v. Kentucky........................................ 953 Anderson v. Swart........................................... 925 Arc & Gas Welder Associates, Green Fuel Economizer Co. v... 919 Arctic Maid, Alaska v....................................... 199 Arizona State Tax Commission v. Murray Co................... 950 Armour Research Foundation v. C. K. Williams & Co......... 941 Armstrong v. District Court of Appeal of California......... 957 Armstrong v. United States.................................. 974 Ashley v. United States..................................... 971 Astore v. United States..................................... 925 Atchley v. California....................................... 207 Attorney General, Bank Voor Handel en Scheepvaart v....... 962 Attorney General, Dinkins v................................. 913 Attorney General, Gallion v................................. 913 Attorney General, Gastelum-Quinones v....................... 922 Attorney General, Montana v................................. 308 Attorney General of Alabama v. Rogers....................... 913 Attorney General of Virginia, N. A. A. C. P. v.............. 956 Baker v. Carr............................................... 907 Baker v. Colorado........................................... 978 Baldonado v. California..................................... 417 Bankers Trust Co. v. United States.......................... 903 Bank of Hawaii, Duarte v.................................... 972 Banks v. New York........................................... 915 Banks v. United States...................................... 939 Bank Voor Handel en Scheepvaart v. Kennedy.................. 962 Banmiller, Adams v.......................................... 906 Banmiller, Dion v........................................... 945 Banmiller, Mercer v......................................... 968 Bannan, Solomon v........................................... 952 Barber v. McGee............................................. 925 Bata v. Bata................................................ 964 Bates v. California......................................... 967 Batistic v. Pilliod......................................... 935 Baxter v. Maryland.......................................... 968 Bayless v. United States................................... 971 Bell v. United States.............;......................... 393 Bennett, Cummings v......................................... 926 Bennett v. United States.................................... 911 Bensinger v. Steiner........................................ 957 Benson v. United States..................................... 745 Benson, Zahner v............................................ 904 TABLE OF CASES REPORTED. VII Page Bernard v. United States.................................... 961 Binks Manufacturing Co. v. Ransburg Electro-Coating Corp.. 211 Bircher v. Kansas........................................... 932 Birden v. Rhay.............................................. 952 Bistram v. United States.................................... 921 Blades v. Rhay.............................................. 973 Blau v. Lehman.............................................. 902 Blazina v. Bouchard......................................... 950 Bliss Co., Cold Metal Process Co. v......................... 911 Board of Public Instruction, Cramp v........................ 934 Board of Public Instruction v. Simpson...................... 957 Board of Regents Wise. Univ., Glendale Development v...... 931 Bogish, In re............................................... 957 Boldt, Hill v.............................................. 942 Boles, Akers v.............................................. 901 Boles, Crabtree v........................................... 927 Boles, DeLong v............................................. 901 Boles, Harris v............................................. 951 Boles, Oyler v.............................................. 927 Boles, Perrine v............................................ 922 Boles, Scalf v.............................................. 902 Boles, Sublett v............................................ 933 Bollettieri v. New York..................................... 950 Bologna v. Morrissey........................................ 212 Bond v. Green............................................... 271 Bouchard, Blazina v......................................... 950 Bowen v. Fay................................................ 972 Brabson v. New York..................................... 930,978 Bratton v. Commissioner..................................... 911 Braunfeld v. Brown.......................................... 599 Break, Pranger v............................................ 964 Bressler v. Pennsylvania.................................... 932 Britt v. South Carolina..................................... 955 Broch & Co., Federal Trade Comm’n v..................... 923, 957 Brooks v. Gladden........................................... 974 Brotherhood. For labor union, see name of trade. Brouk, Managed Funds, Inc., v............................. 958 Brown, Braunfeld v.......................................... 599 Brown v. California......................................... 970 Brown, Chandler v........................................... 978 Brown, Department & Specialty Store Employees v............. 934 Brown v. Indiana........................................ 902,954 Brown v. Taylor............................................. 970 Bryant v. New York.......................................... 976 VIII TABLE OF CASES REPORTED. Page Bryant v. Ohio................................................. 939 Buchkoe, Goodlow v............................................. 954 Buchkoe, Hatfield v............................................ 954 Buckeye Cellulose Corp., Foley Lumber Industries v............. 966 Buckley v. Savage.............................................. 910 Bush v. Illinois............................................... 926 Bush, New Orleans v............................................ 212 Bushnell v. Ellis.............................................. 418 Butler, Smith v............................................ 161,941 Butte, A. & P. R. Co., Locomotive Firemen & Enginemen v. .. 929 Byars v. United States......................................... 946 Cabins Tanker Industries, Compania Nacional v.................. 948 Cafeteria & Restaurant Workers Union v. McElroy................ 956 Calabritto, New York, N. H. & H. R. Co. v...................... 928 California, Atchley v.......................................... 207 California, Baldonado v........................................ 417 California, Bates v............................................ 967 California, Brown v...................................... 970 California, Collins v..................................... 904 California, Delaney v.......................................... 938 California, Duncan v....................................... 417,901 California v. El Paso Natural Gas Co.......................... 912 California, Evans v............................................ 931 California v. Federal Power Comm’n........................ 912,955 California, Lyons v............................................ 947 California, Mason v............................................ 904 California, Moya v............................................. 417 California, Ray v.............................................. 937 California, Schlette v......................................... 940 California, Stevens v......................................... 975 California, Williams v........................................ 967 California District Court of Appeal, Armstrong v............... 957 California State Bar, Konigsberg v.............................. 36 Campos de Jerez v. Esperdy...................................... 905 Carey Manufacturing Co. v. Taylor............................... 948 Carlo v. United States.......................................... 944 Carlson v. Iowa................................................. 942 Carlucci v. United States....................................... 961 Carminati v. United States...................................... 960 Carnley v. Cochran.............................................. 958 Carpenter v. Glock.............................................. 930 Carpentier, Complete Auto Transit, Inc., v...................... 168 Carr, Baker v................................................... 907 Cater v. Pennsylvania........................................... 914 TABLE OF CASES REPORTED. IX Page Cathcart v. United States.................................. 920 Cavell v. Fletcher......................................... 944 Cecil v. United States..................................... 926 Central & Southern Florida Flood Control District, Dupuis v.. 961 Central Vermont R. Co., H. K. Porter Co. v................. 272 Central Vermont R. Co., Interstate Commerce Comm’n v.... 272 Central Vermont R. Co., United States v.................... 272 Ceraul, Konchick v......................................... 957 Chaifetz v. United States.............................. 209,955 Chambers v. McGee.......................................... 932 Chandler v. Brown.......................................... 978 Chappell, Michaels v.................................... 940 Chavez, Dickson v.......................................... 922 Chemical Workers v. Labor Board.......................... 949 Che reton v. United States............................. 924,978 Chicago, M., St. P. & P. R. Co. v. United States........... 745 Christian v. United States................................. 970 Cincinnati, Schaengold v.................................. 270 Cito v. United States...................................... 938 City. See name of city. Ciucci v. Illinois......................................... 952 Civil Aeronautics Board, Great Lakes Airlines v............ 965 Civil Aeronautics Board, McManus v.................. 928,978 C. K. Williams & Co., Armour Research Foundation v....... 941 Clark v. Zimmerer....................................... 949 Clarke, Kremer v....................................... 920,978 Clawson v. United States............................... 905,947 Cliett v. Hammonds...................................... 960 Clinton v. Joshua Hendy Corp............................ 932 Coates v. United States................................... 914 Cochran, Carnley v...................................... 958 Cochran, Langham v...................................... 913 Cochran, Sizemore v..................................... 973 Coduto v. United States................................. 947 Cohan v. New York City.................................. 943 Cohen v. Hurley......................................... 117 Cohen v. Wilkins........................................ 952 Cold Metal Process Co. v. E. W. Bliss Co................ 911 Cole v. Door County Memorial Hospital................... 930 Coleman, Jackson v..................................... 933 Collins v. California................................... 904 Collins v. Klinger...................................... 904 Collins v. Southern Pacific Co.......................... 923 Colorado, Baker v....................................... 978 X TABLE OF CASES REPORTED. Page Colorado, Mathews v....................................... 916 Comer v. United States.................................... 925 Commissioner, Bratton v................................... 911 Commissioner, Field v..................................... 949 Commissioner, Fifth Avenue Coach Lines v.................. 964 Commissioner v. Lester................................... 299 Commissioner, May’s Estate v.............................. 903 Commissioner, Milwaukee & Suburban Transport Corp. v... 965 Commissioner, Schubert v.................................. 960 Commissioner, Showell v................................... 929 Commissioner, Spheeris v.................................. 944 Commissioner, Streight Radio & Television, Inc., v........ 965 Commissioner, Turnbow v................................... 923 Commissioner, United Finance & Thrift Corp, v............. 902 Commissioner, Upton v..................................... 911 Commissioner, Walker v.................................... 966 Commissioner, West Virginia N. R. Co. v................ 929, 978 Commissioner of Education of N. Y., Lush v................ 167 Commissioner of Internal Revenue. See Commissioner. Commissioner of Public Health of Iowa, Clark v............ 949 Communications Commission. See Federal Com. Comm’n. Compania Nacional de Navegacao v. Cabins Tanker Industries. 948 Complete Auto Transit v. Secretary of State of Illinois.. 168 Conerly v. McGee.......................................... 951 Consolidated Edison Co., United States v.................. 380 Coppedge v. United States................................. 959 Corbin v. Myers........................................... 972 Cory Corp. v. Sauber...................................... 935 Costello v. New York...................................... 915 County. See name of county. Crabtree v. Adams......................................... 927 Crabtree v. Boles......................................... 927 Crachy v. Michigan........................................ 912 Cramp v. Board of Public Instruction...................... 934 Crawford, Alatex Construction Service v................... 269 Crawford v. Michigan...................................... 952 Cronan v. Federal Communications Comm’n................... 904 Crown Kosher Super Market, Gallagher v................... 617 Crow Tribe, United States v............................... 924 Cruikshank v. Sacks....................................... 926 Cuevas v. United States................................... 920 Culinary & Hotel Service Workers v. Haugen................ 906 Cummings v. Bennett....................................... 926 Cummings v. Maryland............... ..................... 922 TABLE OF CASES REPORTED. XI Page Cunningham, Adams v...................................... 952 Cunningham, Eastman v.................................... 945 Cunningham, Heath v...................................... 946 Cunningham, Kearse v..................................... 952 Curran, Ledford v........................................ 948 Dahlberg Co., Western Hearing Aid Center v............... 961 D’Amico, Farace v........................................ 963 Daniel v. United States.................................. 970 Daugherty, Alexander v................................... 939 Davidson v. Murphy....................................... 973 Davis, Martin v.......................................... 915 Davis v. Nebraska........................................ 973 Day-Brite Lighting v. Sandee Manufacturing Co............ 963 Deal v. Steiner.......................................... 973 Dean v. Ohio............................................. 937 Deauville Realty Co. v. Tobin............................ 935 DeFino v. McNamara...................................... 976 De Jerez v. Esperdy...................................... 905 DeJesus v. United States................................ 963 Delaney v. California................................... 938 Delaware Superior Court, Pan American Corp, v............ 656 Delaware Superior Court, Texaco, Inc., v................. 656 DeLong v. Adams.......................................... 901 DeLong v. Boles.......................................... 901 Dento v. Urbaniak........................................ 971 Denver & Rio Grande W. R. Co., Trainmen v................ 966 Department & Specialty Store Employees v. Brown.......... 934 Detroy, American Guild of Variety Artists v.............. 929 Dickson v. Chavez........................................ 922 Dickson, Sullivan v...................................... 951 Dillon, Roebling v....................................... 918 Dimond v. Wyoming........................................ 957 Dinkins v. Kennedy....................................... 913 Dinkins v. Rogers........................................ 913 Dion v. Banmiller....................................... 945 Director of Immigration. See Immigration Director. Director of Patuxent Institution, Reeder v............... 939 District Court of Appeal of California, Armstrong v.... 957 District Director of Immigration. See Immigration Director. District Director of Int. Revenue, Simonson v............ 943 District Judge. See U. S. District Judge. D. C. Redevelopment Land Agency, Goddard v.............. 910 D. C. Unemployment Compensation Board, Taylor v........ 932,978 Dobson v. Warden......................................... 969 XII TABLE OF CASES REPORTED. Page Dooley Bros., Inc., v. Mitchell.............................. 911 Door County Memorial Hospital, Cole v........................ 930 Dowd, Irvin v................................................ 717 Drainage Board for Twelve Towns, Madison Heights v........ 919 Drake v. United States....................................... 954 Duarte v. Bank of Hawaii..................................... 972 Duncan v. California..................................... 417,901 Duncan v. Madigan........................................ 919,947 Du Pont & Co., United States v............................ 316, 956 Dupuis v. Central & Southern Florida Flood Control District.. 961 Duval County, Huckins v...................................... 945 Duval County Board of Public Instruction v. Simpson....... 957 Dyer v. Public Service Comm’n................................ 924 Dyson v. United States....................................... 974 Eager, Zenger v.............................................. 915 Eason, In re................................................ 922 Eastman v. Cunningham........................................ 945 Eastman v. LaVallee.......................................... 966 E. & B. Brewing Co., Labor Board v....................... 908 Eckman v. Alaska............................................. 947 Edmonds v. Nash.............................................. 952 E. I. du Pont de Nemours & Co., United States v.......... 316, 956 Eldridge v. United States.................................... 931 Electrical Workers v. Labor Board............................ 667 Electrical Workers, Mississippi Valley Electric Co. v........ 918 Electrical Workers, Power Reactor Development Co. v....... 901 Electrical Workers, United States v.......................... 901 Eh Lilly & Co. v. Sav-On-Drugs, Inc...................... 276,978 Ellinger v. Pepersack........................................ 951 Elliott v. United States..................................... 974 Ellis, Bushnell v............................................ 418 Ellis, Feather v............................................. 932 Ellis, Hamilton v............ 967 Ellis, King v................................................ 955 Ellis, Mason v............................................... 905 Ellis, Owens v............................................... 926 Ellis, Stickney v............................................ 933 Ellis, Wigfall v............................................. 977 El Paso Natural Gas Co., California v........................ 912 Engineers, Labor Board v.................................. 909 Esperdy, Campos de Jerez v................................... 905 Esperdy, Perez-Varela v...................................... 925 Esperdy, Sollazzo v.......................................... 905 TABLE OF CASES REPORTED. XIII Page Estate. See name of estate. Evans v. California......................................... 931 E. W. Bliss Co., Cold Metal Process Co. v.................. 911 Ex parte. See name of party. Eyman, Foggy v............................................ 953 Farace v. D’Amico........................................... 963 Fay, Bowen v................................................ 972 Fay, Pollino v.............................................. 967 Feather v. Ellis............................................ 932 Federal Aviation Agency, Air Line Pilots Assn, v............ 962 Federal Communications Comm’n, Cronan v................. 904 Federal Communications Comm’n, WHDH v................ 918 Federal Power Comm’n, California v...................... 912,955 Federal Power Comm’n, Gas Service Co. v..................... 927 Federal Trade Comm’n v. Henry Broch & Co................ 923,957 Federal Trade Comm’n, Hunter Mills Corp, v................ 903 Feeley v. Heinze............................................ 931 Ferguson v. Louisiana....................................... 913 Field v. Commissioner....................................... 949 Fifth Avenue Coach Lines v. Commissioner.................... 964 Finkle v. Housing Authority of Trenton...................... 923 First National Oil Corp. v. Florida Molasses Co............. 944 Fisher v. Illinois.......................................... 968 F. J. Buckley & Co. v. Savage.............................. 910 Flanagan v. United States................................... 906 Fleming v. United States.................................... 943 Fletcher, Cavell v.......................................... 944 Floete, Taylor v............................................ 955 Florida, Sing v............................................. 964 Florida Legislative Investigation Committee, Gibson v..... 917 Florida Molasses Co., First National Oil Corp, v............ 944 F. M. Reeves & Sons, Inc., v. Labor Board.................. 914 Foggy v. Eyman.............................................. 953 Foley Lumber Industries v. Buckeye Cellulose Corp........... 966 Fong v. United States....................................... 971 Fong Foo v. United States................................... 959 Food Fair Stores, Taxin v................................... 930 Fordham University, Smith v................................. 954 Forest v. Heinze............................................ 973 Fox Publishing Co. v. United States......................... 683 French v. Ohio.............................................. 973 Fullen v. Wyoming........................................... 937 Galgano v. United States.................................... 967 XIV TABLE OF CASES REPORTED. Page Gallagher v. Crown Kosher Super Market..................... 617 Gallion v. Rogers.......................................... 913 Gamble v. Sacks............................................ 975 G. A. Rafel & Co. v. Labor Board.......................... 948 Garcia v. Utah............................................. 970 Garment Workers v. Glendale Mfg. Co........................ 950 Garment Workers v. Labor Board............................. 731 Garrison v. New Mexico..................................... 947 Gas Service Co. v. Federal Power Comm’n.................... 927 Gastelum-Quinones v. Kennedy............................... 922 Gatlin v. Mitchell......................................... 963 Genco v. Genco............................................. 976 Giant Tiger Drugs v. Ohio.................................. 762 Gibson v. Florida Legislative Investigation Committee.... 917 Gillis, Solomon v.......................................... 946 Ginsburg v. Ginsburg....................................... 934 Girard Lodge v. Railway & Steamship Clerks................. 936 Gladden, Brooks v.......................................... 974 Gladden, Sherwood v........................................ 951 Gladden, Strausbaugh v.................................. 920 Glendale Development Co. v. Board of Regents Wise. Univ... 931 Glendale Manufacturing Co., Ladies’ Garment Workers v.... 950 Gliedman, Sauber v......................................... 906 Global Seamen’s Union v. National Maritime Union......... 905 Glock, Carpenter v......................................... 930 Goddard v. D. C. Redevelopment Land Agency................. 910 Gojack v. United States.................................... 943 Goldberg v. Whitaker House Cooperative...................... 28 Goldblatt v. Hempstead..................................... 942 Goodlow v. Buchkoe......................................... 954 Goodman, Nickerson v........................................ 967 Goodman v. United States................................... 930 Goss v. Illinois............................................ 941 Graham v. United States.................................... 921 Granquist, Simonson v....................................... 943 Grant County, Moses Lake Homes, Inc., v.................... 947 Great Lakes Airlines v. Civil Aeronautics Board............. 965 Green, Bond v............................................... 271 Green v. United States...................................... 953 Greene v. Michigan Department of Corrections.............. 976 Green Fuel Economizer Co. v. Arc & Gas Welder Associates... 919 Greeftwood v. Michigan...................................... 940 Gremillion v. National Association for Colored People.... 293 Griffin v. Missouri......................................... 938 TABLE OF CASES REPORTED. xv Page Griggs v. Allegheny County................................ 943 Gross v. United States.................................... 935 Gustin, In re............................................. 969 Guth v. Rhay.............................................. 931 Hagan, Sanders v.......................................... 969 Hagan, Washington v....................................... 970 Hall v. United States..................................... 910 Hamilton v. Ellis......................................... 967 Hammonds, Cliett v........................................ 960 Hand, Miller v............................................ 938 Hanna v. Home Insurance Co................................ 955 Harden v. United States................................... 976 Harmon v. Harmon.......................................... 270 Harris v. Boles........................................... 951 Harrison, National Association for Colored People v..... 956 Hatfield v. Buchkoe....................................... 954 Haugen, Culinary & Hotel Service Workers v................ 906 Hawaii Bank, Duarte v..................................... 972 Hawkins v. United States.................................. 975 Haynesworth v. Ohio....................................... 972 Hazelton v. San Diego..................................... 910 Heath v. Cunningham....................................... 946 Heath v. Smyth............................................ 946 Heinze, Feeley v.......................................... 931 Heinze, Forest v.......................................... 973 Heinze, McDaniels v....................................... 968 Heinze, Potter v.......................................... 937 Helm v. United States..................................... 919 Hempstead, Goldblatt v.................................... 942 Hendy Corp., Clinton v.................................... 932 Henry Broch & Co., Federal Trade Comm’n v............. 923,957 Henson v. Warden.......................................... 940 Hernandez v. New York..................................... 976 Herrin Transportation Co. v. United States................ 419 Herron v. United States................................... 715 High v. United States..................................... 923 Hilderbrand v. United States.............................. 932 Hill v. Boldt............................................. 942 Hill v. Settle............................................ 940 Hines, In re.............................................. 972 H. K. Porter Co. v. Central Vermont R. Co................ 272 Hod Carriers v. Labor Board............................... 903 Hod Carriers, Labor Board v............................... 910 Holekamp v. Holekamp Lumber Co............................ 715 XVI TABLE OF CASES REPORTED. Page Holt v. Oklahoma................................................ 716 Home Insurance Co., Hanna v................................ 955 Hoover v. Oklahoma Turnpike Authority........................... 962 Hopkins v. United States........................................ 952 Hotel Service Workers v. Haugen............................... 906 Hough v. Maroney................................................ 971 Housing Authority of Trenton, Finkle v.......................... 923 Houston v. New York............................................. 972 Huckins v. Duval County......................................... 945 Humko Co., Teamsters v.......................................... 962 Hunter Mills Corp. v. Federal Trade Comm’n...................... 903 Hurley, Cohen v................................................. 117 Ideal Cement Co., United Gas Pipe Line Co. v.................... 916 I. Leon Co. v. Reiner...................................... 929,978 Illinois, Bush v................................................ 926 Illinois, Ciucci v.............................................. 952 Illinois, Fisher v.............................................. 968 Illinois, Goss v................................................ 941 Illinois, Johnson v............................................. 975 Illinois, Kirsch v.............................................. 973 Illinois, Meaderds v........................................... 939 Illinois, Phillips v............................................ 938 Illinois, Shannon v............................................. 906 Illinois, Smart v............................................... 930 Illinois, Wilson v.............................................. 912 Illinois Institute of Technology v. C. K. Williams & Co....... 941 Illinois Secretary of State, Complete Auto Transit v............ 168 Immigration and Naturalization Service. See Immigration Director. Immigration Director, Batistic v................................ 935 Immigration Director, Blazina v................................. 950 Immigration Director, Campos de Jerez v......................... 905 Immigration Director, Perez-Varela v............................ 925 Immigration Director, Prassinos v............................... 966 Immigration Director, Sollazzo v...............................• 905 Indiana, Allison v............................................. 927 Indiana, Brown v........................................... 902, 954 Indiana, Kiefer v............................................... 914 Indiana, Prophet v.............................................. 906 In re. See name of party. Internal Revenue Service. See Commissioner. International Association, Brotherhood or Union. For labor union, see name of trade. Interstate Commerce Comm’n v. Central Vermont R. Co........... 272 TABLE OF CASES REPORTED. XVII Page Iowa, Carlson v............................................ 942 Irvin v. Dowd.............................................. 717 Isbrandtsen Co., Noel v.................................... 975 Jackson v. Coleman......................................... 933 Jackson v. United States................................... 941 James v. United States................................. 213,968 Janko v. United States..................................... 716 Jarvis v. United States.................................... 937 Jerez v. Esperdy........................................... 905 Johnson v. Illinois........................................ 975 Johnson v. Myers........................................... 921 Johnson v. United States........................... 931,946,978 Johnson v. Washington...................................... 934 Johnson County Probate Judge, Martin v..................... 915 Johnston, Segriff v........................................ 941 Johnston, Stanley v........................................ 942 Jones, In re..................i............................ 932 Jones v. New York.......................................... 932 Jordan v. Michigan......................................... 934 Joshua Hendy Corp., Clinton v............................ 932 Judy v. Pepersack.......................................... 939 Kansas, Bircher v.......................................... 932 Kearney v. United States................................... 935 Kearse v. Cunningham....................................... 952 Kelly v. Manning........................................... 951 Kennedy, Bank Voor Handel en Scheepvaart v................. 962 Kennedy, Dinkins v......................................... 913 Kennedy, Gallion v......................................... 913 Kennedy, Gastelum-Quinones v............................... 922 Kennedy, Montana v......................................... 308 Kennedy v. Wilkins......................................... 925 Kenton, Mokus v............................................ 951 Kentucky, Anderson v.................................... 953 Kesel v. Reid.............................................. 921 Kiefer v. Indiana.......................................... 914 Kiger v. United States..................................... 941 Killian v. United States................................... 915 Killilea v. United States.................................. 969 Kincaid v. Adams........................................... 913 King v. Ellis.............................................. 955 Kings County, Salyer Land Co. v........................... 917 Kinoshita & Co. v. Liberty Navigation & Trading Co....... 949 Kirsch v. Illinois......................................... 973 Klein, United States v..................................... 936 590532 0-61—2 XVIII TABLE OF CASES REPORTED. Page Klinger, Collins v........................................ 904 Kolovrat v. Oregon........................................ 187 Konchick v. Ceraul........................................ 957 Konigsberg v. State Bar of California...................... 36 Kortum v. Sigler.......................................... 938 Kossick v. United Fruit Co................................ 941 Kremer v. Clarke...................................... 920,978 Labor Board v. American Dredging Co....................... 908 Labor Board, Chemical Workers v.................... 949 Labor Board v. E. & B. Brewing Co......................... 908 Labor Board, Electrical Workers v......................... 667 Labor Board, F. M. Reeves & Sons, Inc., v................. 914 Labor Board, G. A. Rafel & Co. v.......................... 948 Labor Board, Garment Workers v............................ 731 Labor Board v. Hod Carriers............................... 910 Labor Board, Hod Carriers v............................... 903 Labor Board v. Lassing.................................... 909 Labor Board v. Longshoremen............................... 909 Labor Board v. Millwrights................................ 908 Labor Board, Mine Workers v............................... 949 Labor Board v. Morrison-Knudsen Co........................ 909 Labor Board, Navajo Tribe v............................... 928 Labor Board v. Operating Engineers........................ 909 Labor Board, Peabody Coal Co. v........................... 949 Labor Board v. Sheet Metal Workers........................ 908 Labor Board, Teamsters v..............................'.. 763 Labor Board, Typographical Union v........................ 941 Labor Board v. United States Steel Corp................... 908 Labor Board, United States Steel Corp, v.................. 909 Labor Union. See name of trade. Ladies’ Garment Workers v. Glendale Manufacturing Co.... 950 Ladies’ Garment Workers v. Labor Board.................... 731 Langham v. Cochran........................................ 913 Langston v. Letts......................................... 931 Lassing, Labor Board v.................................... 909 LaVallee, Eastman v....................................... 966 LaVallee, Shea v........................................ 974 Leavell & Ponder, Inc., v. United States.................. 944 Ledford v. Curran......................................... 948 Lee v. Alabama............................................ 972 Lehigh County District Attorney, Two Guys v............... 582 Lehigh Valley Cooperative Farmers v. United States...... 957 Lehman, Blau v............................................ 902 TABLE OF CASES REPORTED. XIX Page Leon Co. v. Reiner.................................... 929,978 Lester, Commissioner v.................................... 299 Letts, Langston v......................................... 931 Lewis v. Michigan......................................... 926 Liberty Navigation & Trading Co., Kinoshita & Co. v..... 949 Licavoli v. United States................................. 936 Lilly & Co. v. Sav-On-Drugs........................... 276,978 Lindsay v. Alabama.................................... 933,978 Lion Dry Goods, Retail Clerks v........................... 917 Lipscomb, Ex parte......................,................. 927 Liveright v. United States................................ 960 Local. For labor union, see name of trade. Locomotive Firemen & Enginemen v. Butte, A. & P. R. Co... . 929 Longshoremen, Labor Board v............................... 909 Loomis v. Priest.......................................... 978 Los Angeles Trust Deed & Mortgage Exchange v. S. E. C... 919 Louisiana, Ferguson v................................... 913 Louisiana ex rel. Allen v. Walker......................... 947 Louisiana ex rel. Gremillion v. Nat. Assn, for Colored People. . 293 Ludwig v. American Greetings Corp......................... 269 Lurk v. United States................................... 712, 906 Lush v. Commissioner of Education of N. Y................. 167 Lynch v. Overholser...................................... 958 Lyons v. California...................................... 947 Madigan, Duncan v................................... 919,947 Madigan, Payne v........................................ 761 Madigan, Simcox v....................................... 765 Madison Heights v. Drainage Board for Twelve Towns...... 919 Maintenance of Way Employes v. United States...... 169,916,955 Mallinson v. Nash......................................... 968 Managed Funds, Inc., v. Brouk............................ 958 Manning, Kelly v......................................... 951 Marcella v. United States................................. 911 Marco v. Michigan......................................... 952 Marino v. New York........................................ 907 Maritime Union, Global Seamen’s Union v................... 905 Maritime Union, Navios Corp, v........................ 905,941 Maroney, Pennsylvania ex rel. Hough v..................... 971 Martin v. Davis........................................... 915 Martin v. United States................................. 915 Martin v. Walton.......................................... 915 Martinez v. Udall......................................... 946 Maryland, Baxter v...................................... 968 XX TABLE OF CASES REPORTED. Page Maryland, Cummings v.................................. 922 Maryland, McGowan v.................................. 420 Maryland, Otten v........................................ 913 Maryland, Slater v....................................... 920 Mason v. California...................................... 904 Mason v. Ellis........................................... 905 Mathews v. Colorado...................................... 916 Mattingly v. Texas....................................... 974 Mattoon v. Rhay.......................................... 945 May’s Estate v. Commissioner............................ 903 McDaniels v. Heinze..................................... 968 McDonald v. Rhay....................................... 947 McDowell v. United States.............................. 937 McElroy, Cafeteria & Restaurant Workers Union v.......... 956 McGee, Barber v.......................................... 925 McGee, Chambers v........................................ 932 McGee, Conerly v......................................... 951 McGinley, Two Guys v..................................... 582 McGinnis, Walker v....................................... 966 McGowan v. Maryland...................................... 420 McManus v. Civil Aeronautics Board................... 928,978 McNamara, DeFino v....................................... 976 Meaderds v. Illinois..................................... 939 Medrano v. United States................................. 968 Mellen Manufacturing Co., In re......................... 962 Menard v. Nash........................................... 974 Mercer v. Banmiller...................................... 968 Miami Tribe of Oklahoma, United States v................. 924 Michaels v. Chappell.................................... 940 Michigan, Crachy v....................................... 912 Michigan, Crawford v..................................... 952 Michigan, Greenwood v.................................. 940 Michigan, Jordan v....................................... 934 Michigan, Lewis v........................................ 926 Michigan, Marco v........................................ 952 Michigan, Moriconi v..................................... 971 Michigan Department of Corrections, Greene v............. 976 Miles v. Settle.......................................... 977 Miller v. Hand........................................... 938 Millet v. United States.................................. 944 Millwrights, Labor Board v............................... 908 Milwaukee & Suburban Transport Corp. v. Commissioner.... 965 Mine Workers v. Labor Board.............................. 949 TABLE OF CASES REPORTED. XXI Page Mississippi Valley Electric Co. v. Electrical Workers.... 918 Missouri, Griffin v........................................ 938 Missouri, Wolfe v.......................................... 953 Missouri Public Service Comm’n, Dyer v.................... 924 Mitchell, Dooley Bros., Inc., v............................ 911 Mitchell, Gatlin v......................................... 963 Mohegan International Corp. v. City of New York............ 764 Mokus v. Kenton............................................ 951 Montana v. Kennedy......................................... 308 Montana Board of Equalization, Yellowstone Pipe Line Co. v.. 917 Moore, Williams v.......................................... 942 Moreno v. New York Central R. Co........................... 928 Moriconi v. Michigan....................................... 971 Morris v. Rousos........................................... 973 Morrison-Knudsen Co., Labor Board v..................... 909 Morrissey, Bologna v....................................... 212 Moses Lake Homes, Inc., v. Grant County.................... 947 Moya v. California......................................... 417 Munoz Perez v. United States............................... 978 Murdock v. United States................................... 953 Murgia v. United States.................................... 977 Murphy, New York ex rel. Davidson v..................... 973 Murphy, Romano v....................................... 919,941 Murray v. New York Central R. Co........................... 945 Murray Co. of Texas, State Tax Commission v................ 950 Myers, Corbin v............................................ 972 Myers, Johnson v........................................... 921 Myers v. New Mexico........................................ 947 Myers v. United States..................................... 967 Nash, Edmonds v............................................ 952 Nash, Mallinson v.......................................... 968 Nash, Menard v.................................,........... 974 Nash v. Richmond........................................... 938 National Association for Colored People, Gremillion v.... 293 National Association for Colored People v. Harrison........ 956 National Labor Relations Board. See Labor Board. National Maritime Union, Global Seamen’s Union v......... 905 National Maritime Union, Navios Corp, v................ 905,941 National Savings & Trust Co., Nicol v...................... 914 Navajo Tribe v. Labor Board................................ 928 Navios Corp. v. National Maritime Union................ 905,941 Neal v. United States...................................... 939 Nebraska, Davis v.......................................... 973 XXII TABLE OF CASES REPORTED. Page Neustadt, United States v.................................. 696 New Jersey, Rinaldi v...................................... 914 New Jersey, Shannon v...................................... 975 New Jersey, Thomas v....................................... 976 New Jersey Automobile Club v. United States................ 964 New Mexico, Garrison v.................................. 947 New Mexico, Myers v..................................... 947 New Mexico, Smith v.................................. 934,972 New Orleans v. Bush...................................... 212 New York, Aiken v.......................................... 920 New York, Banks v.......................................... 915 New York, Bollettieri v.................................... 950 New York, Brabson v.................................... 930,978 New York, Bryant v......................................... 976 New York, Costello v....................................... 915 New York, Hernandez v...................................... 976 New York, Houston v........................................ 972 New York, Jones v.......................................... 932 New York, Marino v......................................... 907 New York, Reina v.......................................... 953 New York, Rinaldo v........................................ 932 New York, Waterman v....................................... 933 New York, Watson v......................................... 976 New York, Weaver v......................................... 933 New York Central R. Co., Moreno v.......................... 928 New York Central R. Co., Murray v.......................... 945 New York City, Cohan v..................................... 943 New York City, Mohegan International Corp, v............... 764 New York Commissioner of Education, Lush v............. 167 New York ex rel. Davidson v. Murphy........................ 973 New York, N. H. & H. R. Co. v. Calabritto.................. 928 New York State Judge, Zenger v............................. 915 Nickerson v. Goodman....................................... 967 Nicol v. National Savings & Trust Co....................... 914 Noel v. Isbrandtsen Co..................................... 975 Norfolk & Western R. Co., Still v.......................... 956 Nunes v. Ragen............................................. 916 Oddo v. United States...................................... 975 Ohio, Bryant v......>...................................... 939 Ohio, Dean v............................................... 937 Ohio, French v............................................. 973 Ohio, Giant Tiger Drugs v.................................. 762 Ohio, Haynesworth v........................................ 972 Ohio, Slagle v............................................. 259 TABLE OF CASES REPORTED. XXIII Page Ohio, Victor v................................................ 920 Ohio, Vitoratos v............................................. 920 Oklahoma, Holt v.............................................. 716 Oklahoma Turnpike Authority, Hoover v......................... 962 Operating Engineers, Labor Board v.......................... 909 Orange County Board of Public Instruction, Cramp v....... 934 Oregon, Kolovrat v............................................ 187 Oregon, United States v....................................... 643 Oregonian Publishing Co., Portland Web Pressmen v........ 912 Orme v. Orme.................................................. 945 Osborn, Sinclair Refining Co. v........................... 963 O’Toole v. United States...................................... 927 Otten v. Maryland............................................. 913 Oughton v. United States...................................... 927 Outen v. South Carolina....................................... 977 Overholser, Lynch v........................................... 958 Owens v. Ellis................................................ 926 Oyler v. Adams................................................ 927 Oyler v. Boles................................................ 927 Palame v. Wilkins............................................. 973 Pan American Corp., Pierson v............. 936 Pan American Corp. v. Superior Court of Delaware.............. 656 Parker v. United States....................................... 937 Patuxent Institution Director, Reeder v....................... 939 Payne v. Madigan.............................................. 761 Peabody Coal Co. v. Labor Board............................... 949 Pennsylvania, Bressler v...................................... 932 Pennsylvania, Cater v......................................... 914 Pennsylvania, Rivers v........................................ 915 Pennsylvania, Ryan v.......................................... 940 Pennsylvania, Sliva v.................................... 939, 946 Pennsylvania ex rel. Dion v. Banmiller........................ 945 Pennsylvania ex rel. Hough v. Maroney......................... 971 Pennsylvania R. Co., Reed v................................... 936 Pepersack, Ellinger v.................................... 951 Pepersack, Judy v............................................. 939 Perez v. United States.................................... 978 Perez-Varela v. Esperdy...................................... 925 Perrine v. Adams.............................................. 922 Perroni, In re................................................ 916 Philadelphia Police Comm’r, Braunfeld v....................... 599 Philip Carey Manufacturing Co. v. Taylor...................... 948 Phillips v. Illinois.......................................... 938 Pierce, Ex parte.............................................. 928 XXIV TABLE OF CASES REPORTED. Page Pierson v. Pan American Petroleum Corp....................... 936 Pilliod, Batistic v.......................................... 935 Pollino v. Fay............................................... 967 Poresky, Ex parte............................................ 922 Porter Co. v. Central Vermont R. Co.......................... 272 Portland Web Pressmen v. Oregonian Publishing Co.......... 912 Potter v. Heinze............................................. 937 Power Commission. See Federal Power Comm’n. Power Reactor Development Co. v. Electrical Workers....... 901 Pranger v. Break............................................. 964 Prassinos v. District Director............................... 966 Pressmen v. Oregonian Publishing Co.......................... 912 Preston, In re............................................... 916 Preston v. Warden............................................ 974 Price v. United States...................’................ 959,971 Priest, Loomis v............................................. 978 Probate Judge of Johnson County, Martin v.................... 915 Producers. Inc., Schepp v................................... 903 Prophet v. Indiana........................................... 906 Public Service Comm’n, Dyer v.............................. 924 Quesada, Air Line Pilots Association v....................... 962 Rafel & Co. v. Labor Board................................... 948 Ragen, Nunes v............................................... 916 Railroad Trainmen v. Denver & Rio Grande W. R. Co......... 966 Railway & Steamship Clerks, Girard Lodge v................... 936 Ransburg Electro-Coating Corp., Binks Mfg. Co. v............. 211 Ray v. California............................................ 937 Real Estate Commissioner, Buckley v.......................... 910 Recorder’s Court Judge, Solomon v............................ 946 Reed v. Pennsylvania R. Co................................... 936 Reeder v. Director, Patuxent Institution..................... 939 Reeves & Sons v. Labor Board................................. 914 Reid, Kesel v................................................ 921 Reina v. New York............................................ 953 Reiner, I. Leon Co. v.................................... 929,978 Retail Clerks v. Lion Dry Goods.............................. 917 Rhay, Allen v................................................ 971 Rhay, Birden v............................................... 952 Rhay, Blades v............................................... 973 Rhay, Guth v................................................. 931 Rhay, Mattoon v.............................................. 945 Rhay, McDonald v............................................. 947 Rhay, Sam v.................................................. 957 Rhay, Seagrave v.......................................... 953 TABLE OF CASES REPORTED. XXV Page Rhay, Stultz v............................................. 926 Rhay, Westphal v........................................... 940 Richards v. United States.................................. 916 Richmond, Nash v........................................... 938 Rinaldi v. New Jersey...................................... 914 Rinaldo v. New York........................................ 932 Rivers v. Pennsylvania..................................... 915 Rocha v. United States..................................... 948 Roebling v. Dillon......................................... 918 Rogers, Dinkins v.......................................... 913 Rogers, Gallion v.......................................... 913 Rogers v. United States.................................... 951 Romano v. Murphy....................................... 919,941 Roth v. United States...................................... 961 Rousos, Morris v........................................ 973 Rusk, Schneider v.......................................... 963 Russell v. United States................................... 960 Ryan v. Pennsylvania....................................... 940 Sacks, Cruikshank v........................................ 926 Sacks, Gamble v............................................ 975 Salyer Land Co. v. County of Kings....................... 917 Sam v. Rhay................................................ 957 Sam Fox Pub. Co. v. United States.......................... 683 Sandee Manufacturing Co., Day-Brite Lighting v............. 963 Sanders v. Hagan........................................... 969 San Diego, Hazelton v...................................... 910 Sauber, Cory Corp, v....................................... 935 Sauber v. Gliedman......................................... 906 Savage, Buckley v.......................................... 910 Sav-On-Drugs, Inc., Eli Lilly & Co. v.................. 276,978 Scales v. United States.................................... 978 Scalf v. Adams............................................. 902 Scalf v. Boles............................................. 902 Schaengold v. Cincinnati................................... 270 Schatten, Waterman v....................................... 933 Schepp v. Producers, Inc................................... 903 Schlette v. California..................................... 940 Schneider v. Rusk........................................ 963 Schubert v. Commissioner................................... 960 Seagrave v. Rhay........................................... 953 Seals v. Alabama........................................... 954 Seamen v. National Maritime Union......................... 905 Secretary of Agriculture v. United States.................. 745 Secretary of Agriculture, Zahner v......................... 904 XXVI TABLE OF CASES REPORTED. Page Secretary of Air Force, Shields v............................ 917 Secretary of Defense, DeFino v.......................... 976 Secretary of Interior, Martinez v............................ 946 Secretary of Labor, Dooley Bros., Inc., v.................... 911 Secretary of Labor, Gatlin v................................. 963 Secretary of Labor v. Whitaker House Cooperative.............. 28 Secretary of State, Schneider v.............................. 963 Secretary of State of Ill., Complete Auto Transit v.......... 168 Secretary of the Treasury, Roebling v...................... 918 Securities & Exchange Comm’n, Los Angeles Exchange v....... 919 Segriff v. Johnston.......................................... 941 Settle, Hill v............................................... 940 Settle, Miles v.............................................. 977 Settle, Smith v.............................................. 969 Shannon v. Illinois.......................................... 906 Shannon v. New Jersey........................................ 975 Sharp, Shields v......................................... 917 Shawnee Tribe of Oklahoma, United States v................... 924 Shea v. LaVallee............................................. 974 Sheet Metal Workers, Labor Board v........................ 908 Sherwood v. Gladden.......................................... 951 Shields v. Sharp............................................. 917 Shorter v. United States..................................... 975 Sho well v. Commissioner..................................... 929 Sigler, Kortum v............................................. 938 Simcox v. Madigan............................................ 765 Simonson v. Granquist........................................ 943 Simpson, Board of Public Instruction of Duval County v... . 957 Sinclair Refining Co. v. Osborn.............................. 963 Sing v. Florida.............................................. 964 Sizemore v. Cochran.......................................... 973 Skantze v. United States..................................... 972 Slagle v. Ohio............................................... 259 Slater v. Maryland........................................... 920 Sliva v. Pennsylvania.................................... 939,946 Smart v. Illinois............................................ 930 Smith v. Butler.......................................... 161,941 Smith v. Fordham University.................................. 954 Smith v. New Mexico...................................... 934,972 Smith v. Settle.............................................. 969 Smith v. Smith............................................... 210 Smith v. United States....................................... 946 Smith ex rel. Sherwood v. Gladden............................ 951 TABLE OF CASES REPORTED. XXVII Page Smyly v. United States....................................... 930 Smyth, Heath v. ............................................ 946 Sollazzo v. Esperdy.......................................... 905 Solomon v. Bannan............................................ 952 Solomon v. Gillis............................................ 946 South Carolina, Britt v...................................... 955 South Carolina, Outen v...................................... 977 South Carolina, Westbury v................................... 955 Southern Pacific Co., Collins v............................ 923 Spheeris v. Commissioner..................................... 944 Springfield v. United States................................. 926 Springfield Police Chief v. Crown Kosher Super Market..... 617 Standard Coil Products Co. v. United States.................. 959 Stanley v. Johnston.......................................... 942 State. See also name of State. State Bar of California, Konigsberg v.......................... 36 State Board of Equalization, Yellowstone Pipe Line Co. v.... 917 State Tax Commission of Arizona v. Murray Co................. 950 Steiner, Bensinger v......................................... 957 Steiner, Deal v.............................................. 973 Stevens v. California........................................ 975 Stewart v. United States....................................... 1 Stickney v. Ellis............................................ 933 Still v. Norfolk & Western R. Co............................. 956 Stoneking v. United States................................. 940 Strausbaugh v. Gladden....................................... 920 Streight Radio & Television, Inc., v. Commissioner........... 965 Stultz v. Rhay............................................... 926 Sublett v. Adams............................................. 933 Sublett v. Boles............................................. 933 Sullivan v. Dickson.......................................... 951 Superior Court of Delaware, Pan American Corp, v............. 656 Superior Court of Delaware, Texaco, Inc., v.................. 656 Superior Oil Co. v. United Gas Improvement Co................ 965 Swart, Anderson v............................................ 925 Tahash, Williams v........................................... 975 Taxin v. Food Fair Stores.................................... 930 Taylor, Brown v.............................................. 970 Taylor v. D. C. Unemployment Compensation Board........... 932,978 Taylor v. Floete............................................. 955 Taylor, Philip Carey Manufacturing Co. v..................... 948 Taylor v. Virginia........................................... 957 Teamsters v. Humko Co........................................ 962 XXVIII TABLE OF CASES REPORTED. Page Teamsters v. Labor Board.................................... 763 Tennessee, White v.......................................... 969 Texaco, Inc., v. Superior Court of Delaware................. 656 Texas, Mattingly v...................................... 974 Thomas v. Alabama........................................... 938 Thomas v. New Jersey........................................ 976 Thomas v. United States..................................... 961 Tobin, Deauville Realty Co. v............................... 935 Trade Commission. See Federal Trade Comm’n. Trainmen v. Denver & R. G. W. R. Co......................... 966 Treasurer of the United States, Loomis v.................... 978 Trent v. United States...................................... 978 Trenton Housing Authority, Finkle v....................... 923 Turnbow v. Commissioner..................................... 923 Twelve Towns Drainage Board, Madison Heights v.............. 919 Two Guys v. McGinley........................................ 582 Typographical Union v. Labor Board.......................... 941 Udall, Martinez v. 946 Union. For labor union, see name of trade. United. For labor union, see name of trade. United Air Lines, Wiener v.................................. 924 United Finance & Thrift Corp. v. Commissioner............... 902 United Fruit Co., Kossick v.............................. 941 United Gas Improvement Co., Superior Oil Co. v.............. 965 United Gas Pipe Line Co. v. Ideal Cement Co................. 916 United States v. Absentee Shawnee Tribe of Oklahoma....... 924 United States, Adames v..................................... 939 United States, Armstrong v.................................. 974 United States, Ashley v..................................... 971 United States, Astore v..................................... 925 United States, Bankers Trust Co. v.......................... 903 United States, Banks v...................................... 939 United States, Bayless v.................................... 971 United States, Bell v....................................... 393 United States, Bennett v.................................... 911 United States, Benson v..................................... 745 United States, Bernard v.................................... 961 United States, Bistram v.................................... 921 United States, Byars v...................................... 946 United States, Carlo v...................................... 944 United States, Carlucci v................................... 961 United States, Carminati v.................................. 960 United States, Cathcart v................................... 920 TABLE OF CASES REPORTED. XXIX Page United States, Cecil v............................................ 926 United States v. Central Vermont R. Co............................ 272 United States, Chaifetz v..................................... 209,955 United States, Chereton v..................................... 924,978 United States, Chicago, M., St. P. & P. R. Co. v.................. 745 United States, Christian v........................................ 970 United States, Cito v............................................. 938 United States, Clawson v..................................... 905,947 United States, Coates v........................................... 914 United States, Coduto v........................................... 947 United States, Comer v............................................ 925 United States v. Consolidated Edison Co........................... 380 United States, Coppedge v............................... 959 United States v. Crow Tribe....................................... 924 United States, Cuevas v........................................... 920 United States, Daniel v........................................... 970 United States, De Jesus v......................................... 963 United States, Drake v............................................ 954 United States v. du Pont & Co................................. 316, 956 United States, Dyson v............................................ 974 United States v. E. I. du Pont de Nemours & Co............... 316,956 United States, Eldridge v......................................... 931 United States v. Electrical Workers............................... 901 United States, Elliott v.......................................... 974 United States, Flanagan v......................................... 906 United States, Fleming v.......................................... 943 United States, Fong v............................................. 971 United States, Fong Foo v......................................... 959 United States, Galgano v.......................................... 967 United States, Gojack v........................................... 943 United States, Goodman v.......................................... 930 United States, Graham v.................................... 921 United States, Green v............................................ 953 United States, Gross v............................................ 935 United States, Hall v............................................. 910 United States, Harden v...................................... 976 United States, Hawkins v.................................... 975 United States, Helm v............................................. 919 United States, Herrin Transportation Co. v........................ 419 United States, Herron v........................................... 715 United States, High v............................................. 923 United States, Hilderbrand v.................................. 932 United States, Hopkins v.......................................... 952 XXX TABLE OF CASES REPORTED. Page United States, Jackson v................................ 941 United States, James v................................... 213,968 United States, Janko v................................... 716 United States, Jarvis v................................. 937 United States, Johnson v............................. 931,946,978 United States, Kearney v................................ 935 United States, Kiger v.................................. 941 United States, Killian v................................ 915 United States, Killilea v............................... 969 United States v. Klein................................. 936 United States, Leavell & Ponder, Inc., v................... 944 United States, Lehigh Valley Cooperative Farmers v........ 957 United States, Licavoli v............................... 936 United States, Liveright v...................,................ 960 United States, Lurk v.................................... 712,906 United States, Maintenance of Way Employes v.... 169,916,955 United States, Marcella v................................... 911 United States, Martin v................................. 915 United States, McDowell v................................... 937 United States, Medrano v................................... 968 United States v. Miami Tribe of Oklahoma...................... 924 United States, Millet v....................................... 944 United States, Murdock v................................... 953 United States, Murgia v................................. 977 United States, Myers v....................................... 967 United States, Neal v........................................ 939 United States v. Neustadt..................................... 696 United. States, New Jersey Automobile Club v.................. 964 United States, Oddo v........................................ 975 United States v. Oregon..................................... 643 United States, O’Toole v..................................... 927 United States, Oughton v..................................... 927 United States, Parker v.................................. 937 United States, Perez v................................... 978 United States, Price v.................................... 959, 971 United States, Richards v................................... 916 United States, Rocha v....................................... 948 United States, Rogers v...................................... 951 United States, Roth v........................................ 961 United States, Russell v..................................... 960 United States, Sam Fox Pub. Co. v.......................... 683 United States, Scales v...................................... 978 United States, Secretary of Agriculture v.................... 745 TABLE OF CASES REPORTED. XXXI Page United States, Shorter v..................................... 975 United States, Skantze v..................................... 972 United States, Smith v....................................... 946 United States, Smyly v....................................... 930 United States, Springfield v................................ 926 United States, Standard Coil Products Co. v.................. 959 United States, Stewart v....................................... 1 United States, Stoneking v.................................. 940 United States, Thomas v...................................... 961 United States, Trent v....................................... 978 United States, Utah v........................................ 918 United States, Van Hook v..................................... 915 United States, Venus v........................................ 922 United States, Washington v................................... 969 United States, Wayne Fong v............................... 971 United States, Wey Him Fong v............................. 971 United States, Wheeldin v................................. 977 United States, White v.................................... 920 United States, Whitman v.................................. 959 United States, Williams v................................. 947 United States, Willis v................................... 953 United States, Wilson v............................... 914,921,947 United States, Winn v.................................... 915 United States, Witt v..................................... 950 United States, Yale Transport Corp, v................... 947 United States, Young v.................................... 761,970 U. S. District Judge, Board of Public Instruction v......... 957 U. S. District Judge, Hill v.................................. 942 U. S. District Judge, Langston v.......................... 931 U. S. District Judge, Ledford v............................... 948 U. S. District Judge, Philip Carey Manufacturing Co. v...... 948 United States Steel Corp. v. Labor Board...................... 909 United States Steel Corp., Labor Board v...................... 908 University of Wisconsin Regents, Glendale Develop. Co. v.... 931 Upton v. Commissioner......................................... 911 Urbaniak, Dento v............................................. 971 Utah, Garcia v.............................................., 970 Utah v. United States......................................... 918 Van Hook v. United States..................................... 915 Variety Artists v. Detroy................................... 929 Venus v. United States........................................ 922 Victor v. Ohio................................................ 920 Virginia, Taylor v............................................ 957 XXXII TABLE OF CASES REPORTED. Page Vitoratos v. Ohio......................................... 920 Walker, Allen v........................................... 947 Walker v. McGinnis........................................ 966 Walton, Martin v.......................................... 915 Warden, Dobson v.......................................... 969 Warden, Henson v.......................................... 940 Warden, Preston v......................................... 974 Warden, Winter v.......................................... 926 Washington v. Hagan....................................... 970 Washington, Johnson v..................................... 934 Washington v. United States............................... 969 Waterman v. New York...................................... 933 Waterman v. Schatten...................................... 933 Watson v. New York........................................ 976 Wayne Fong v. United States............................... 971 Weaver v. New York........................................ 933 Wells, In re.............................................. 969 Westbury v. South Carolina................................ 955 Western Hearing Aid Center v. Dahlberg Co................. 961 Westinghouse Electric Corp., Wray Equipment Corp, v.... 929 Westphal v. Rhay.......................................... 940 West Virginia ex rel. Sublett v. Adams.................... 933 West Virginia ex rel. Sublett v. Boles................. 933 West Virginia Northern R. Co. v. Commissioner......... 929,978 Wey Him Fong v. United States............................. 971 WHDH v. Federal Communications Comm’n...................... 918 Wheel din v. United States................................. 977 Whitaker House Cooperative, Secretary of Labor v........... 28 White v. Tennessee......................................... 969 White v. United States..................................... 920 Whitman v. United States................................... 959 Wiener v. United Air Lines................................. 924 Wigfall v. Ellis........................................... 977 Wilkins, Cohen v........................................... 952 Wilkins, Kennedy v......................................... 925 Wilkins, Palame v.......................................... 973 Williams v. California..................................... 967 Williams v. Moore.......................................... 942 Williams v. Tahash......................................... 975 Williams v. United States.................................. 947 Williams & Co., Armour Research Foundation v............... 941 Willis v. United States.................................... 953 Wilson v. Hlinois.......................................... 912 TABLE OF CASES REPORTED. XXXIII Page Wilson v. United States.......................... 914,921,947 Winn v. United States.................................... 915 Winter v. Warden......................................... 926 Wisconsin University Regents, Glendale Development Co. v... 931 Witt v. United States.................................... 950 Wolfe v. Missouri........................................ 953 Wray Equipment Corp. v. Westinghouse Electric Corp..... 929 Wyoming, Dimond v........................................ 957 Wyoming, Fullen v........................................ 937 Yale Transport Corp. v. United States.................... 947 Yellowstone Pipe Line Co. v. State Board of Equalization.... 917 Young v. United States............................. 761,970 Zahner v. Benson........................................ 904 Zenger v. Eager......................................... 915 Zimmerer, Clark v....................................... 949 590532 0-61—3 TABLE OF CASES CITED Page ABC Liquidators, Inc., v. Kansas City, 322 S. W. 2d 876 534 Abrams v. United States, 250 U. S. 616 50, 62, 63 Adams v. Gay, 19 Vt. 358 498 Adamson v. California, 332 U. S. 46 55,118, 129, 153, 155, 157, 159 Alison v. United States, 344 U. S. 167 220,227 Allen v. Colorado Springs, 101 Colo. 498 532 Allen v. Duffie, 43 Mich. 1 498 Allen Calculators, Inc., v. National Cash Register Co., 322 U. S. 137 688, 690 Aluminum Co. v. Federal Trade Comm’n, 284 F. 401 330 American Communications Assn. v. Douds, 339 U. S. 382 51,52, 54, 61, 70, 76, 79, 90 American Crystal Sugar Co. v. Cuban-American Sugar Co., 259 F. 2d 524 330 A. F. of L. v. American Sash Co., 335 U. S. 538 426 American Foundries v. Tri-City Council, 257 U. S. 184 742 Anastaplo, In re, 366 U. S. 82 71,73,117, 122, 123, 134, 143, 145 Andrews, Ex parte, 18 Cal. 678 435,508 Anglo-American Corp. v. United States, 242 F. 2d 236 703,704 Anonymous v. Baker, 360 U. S. 287 53,119,131 Appalachian Coals, Inc., v. United States, 288 U. S. 344 363 Page Application of. See name of party. Arizona v. California, 283 U. S. 423 469 Armstrong v. State, 170 Ind. 188 528 Arrigo v. Lincoln, 154 Neb. 537 532 Associated Press v. United States, 326 U. S. 1 375,379 Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96 426 Attorney’s License, In re, 21 N. J. L. 345 41 Augusta & S. R. Co. v. Renz, 55 Ga. 126 527 Auto-Rite Supply Co. v. Mayor, 25 N. J. 188 499, 556 Auto-Rite Supply Co. v. Mayor, 41 N. J. Super. 303 532 Bacardi Corp. v. Domenech, 311 U. S. 150 193 Bain Peanut Co. v. Pinson, 282 U. S. 499 523 Barenblatt v. United States, 360 U. S. 109 51,52,61,70, 89, 112, 115, 116, 134 Bargain City U. S. A., Inc., v. Dilworth, 142 Legal Intel. 813 (Pa.) 511 Barker v. United States, 88 Ct. Cl. 468 254 Barron v. Baltimore, 7 Pet. 243 141,154,155 Barrows v. Jackson, 346 U. S. 249 430,468 Barsky v. Board of Regents, 347 U. S. 442 116,137,147 Bart v. United States, 349 U. S. 219 267 Bartkus v. Illinois, 359 U. S. 121 239 Bates v. Little Rock, 361 U. S. 516 51,293,296 XXXV XXXVI TABLE OF CASES CITED. Page Beauharnais v. Illinois, 343 U. S. 250 50, 65,156 Beilan v. Bd. of Education, 357 U. S. 399 45, 52, 53, 93,133 Bennett v. Brooks, 91 Mass. 118 497,569,628 Berger v. United States, 295 U. S.78 8 Berman, In re, 344 Mich. 598 508, 517, 520 Besser Mfg. Co. v. United States, 343 U. S. 444 322, 329, 357 Betts v. Brady, 316 U. S. 455 158 Black, In re, 64 F. Supp. 518 314 Black Diamond S. S. Corp. v. Labor Board, 94 F. 2d 875 743 Bloom v. Richards, 2 Ohio St. 387 499 Board v. Poyntz, 152 Ore. 592 41 Board of Education v. Bar- nette, 319 U. S. 624 62, 561-564, 573, 613 Bocci & Sons Co. v. Lawndale, 208 Cal. 720 532 Bohl v. State, 3 Tex. App. 683 535 Bothwell v. York City, 291 Pa. 363 534 Bowman v. Secular Society, Ltd, [1917] A. C. 406 570 Boyd v. United States, 116 U. S. 616 65,130,160 Boynton v. Virginia, 364 U. S. 454 133 Braden v. United States, 365 U. S. 431 51,52, 61,77,116,134 Bram v. United States, 168 U. S. 532 159 Brattle Films, Inc, v. Com- missioner, 333 Mass. 58 512 Braunfeld v. Brown, 366 U. S. 599 429,459, 468, 470, 542, 561, 631 Breard v. Alexandria, 341 U. S. 622 51 Page Breyer v. State, 102 Tenn. 103 501, 509,529,535 Bridges v. California, 314 U. S.252 63,142,156 Briggs v. United States, 214 F. 2d 699 218 Brimhall v. Van Campen, 8 Minn. 13 498 Briscoe v. Bank of Kentucky, 11 Pet. 257 459 Broadbent v. Gibson, 105 Utah 53 532, 558 Brooks, Ex parte, 85 Tex. Cr. R. 397 419 Brooks v. Labor Board, 348 U. S. 96 737 Brotherhood. For labor union, see name of trade. Brown v. Allen, 344 U. S. 443 723 Brown v. Bd. of Education, 347 U. S. 483 142 Brown v. Helvering, 291 U. S. 193 385 Brown v. Mississippi, 297 U. S. 278 129 Browning v. Waycross, 233 U. S. 16 287 Brunswick - Balke-Collander Co. v. Evans, 228 F. 991 511 Bryan v. United States, 338 U. S.552 44 Buck Stove Co. v. Vickers, 226 U. S.205 292 Builders Assn. v. Detroit, 295 Mich. 272 515 Burnet v. Sanford & Brooks Co., 282 U. S. 359 384-385 Butler v. Smith, 104 So. 2d 868 166 Caldwell, In re, 82 Neb. 544 510,533 California v. Thompson, 313 U. S.109 284 Cameron v. Harvard College, 157 F. 2d 993 694 Canaday v. Superior Court, 49 Del. 332 658 Cantwell v. Connecticut, 310 U. S. 296 156,296-297, 429, 450, 462, 603, 607 TABLE OF CASES CITED. XXXVII Page Capitol Greyhound Lines v. Brice, 339 U. S. 542 205 Carpenter v. Shaw, 280 U. S. 363 573 Carpenters v. Labor Board, 357 U. S. 93 673 Carr v. State, 175 Ind. 241 498,529 Carrington v. United States, 46 Ct. Cl. 279 404 Case v. Bowles, 327 U. S. 92 649,654 Cash v. Culver, 358 U. S. 633 418 Caskey Baking Co. v. Virginia, 313 U. S. 117 205 Cassell v. Texas, 339 U. S. 282 208 Cassidy, In re, 268 App. Div. 282 41 Chambers v. Florida, 309 U. S. 227 131,141 Chan Sing v. Astoria, 79 Ore. 411 532 Chaplinsky v. New Hampshire, 315 U. S. 568 50, 66 Charleston Federal S. & L. Assn. v. Alderson, 324 U. S. 182 264 Cheney Brothers Co. v. Mas- sachusetts, 246 U. S. 147 281,282, 286, 292 Cherokee Nation v. Georgia, 5 Pet. 1 459 Chessman v. Teets, 354 U. S. 156 729 Chestnut Securities Co. v. United States, 104 Ct. Cl. 489 388,389 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 155 Chicago, M. & St. P. R. Co. v. Minneapolis C. & C. Assn., 247 U. S. 490 753,759 Cities Service Gas Co. v. State Corp. Comm’n, 355 U. S. 391 660 Cities Service Gas Co. v. State Corp. Comm’n, 180 Kan. 454 660 City. See also name of city. City Council v. Benjamin, 2 Strob. L. 508 498, 510, 522 Page Clark v. Allen, 331 U. S. 503 195,196, 649 Clark v. State, 167 Tex. Cr. R. 204 510 Clark v. United States, 218 F. 2d 446 703 Clendaniel v. Conrad, 26 Del. 549 657 Cleveland v. Bangor, 87 Me. 259 499 Cleveland v. United States, 329 U. S. 14 462 Cohen, In re, 7 N. Y. 2d 488 132 Cohen v. Hurley, 366 U. S. 117 58,88 Cohen v. Webb, 175 Ky. 1 515 Coleman v. Watts, 81 So. 2d 650 41 Columbian Fuel Corp. v. Su- perior Court, 52 Del.--- 661 Comitis v. Parkerson, 163 U. S. 681, 56 F. 556 313 Commissioner v. Church, 335 U. S. 632 231 Commissioner v. Culbertson, 337 U. S. 733 231 Commissioner v. Glenshaw Glass Co., 348 U. S. 426 219,241 Commissioner v. Jacobson, 336 U. S.28 219, 251 Commissioner v. Korell, 339 U. S. 619 231 Commissioner v. Smith, 324 U. S. 177 231 Commissioner v. Tower, 327 U. S. 280 231 Commissioner v. Wilcox, 327 U. S. 404 215-258 Commonwealth v. American Baseball Club, 290 Pa. 136 498, 570, 597 Commonwealth v. Bauder, 188 Pa. Super. 424 510, 534, 598 Commonwealth v. Cavalerro, 142 Legal Intel. 519 (Pa.) 510-511 Commonwealth v. Chernock, 336 Mass. 384 509, 522, 630 Commonwealth v. Coleman, 60 Pa. Super. 380 498 XXXVIII TABLE OF CASES CITED. Page Commonwealth v. Dextra, 143 Mass. 28 512, 527, 528, 569, 629, 630 Commonwealth v. Grocho-wiak, 184 Pa. Super. 522 535 Commonwealth v. Has, 122 Mass. 40 509, 512, 515, 522, 569, 620 Commonwealth v. Jeandelle, 3 Phila. 509 499 Commonwealth v. Kirshen, 194 Mass. 151 515 Commonwealth v. Louisville & N. R. Co., 80 Ky. 291 499,527 Commonwealth v. Matthews, 152 Pa. 166 527 Commonwealth v. McCar- thy, 244 Mass. 484 498, 512, 570, 629 Commonwealth v. Nesbit, 34 Pa. 398 499, 570, 597 Commonwealth v. Sampson, 97 Mass. 407 512, 528 Commonwealth v. Starr, 144 Mass. 359 515, 629 Commonwealth v. White, 190 Mass. 578 498, 512, 527, 569, 629 Commonwealth v. Wolf, 3 S. & R. 48 510, 522 Connally v. General Construction Co., 269 U. S. 385 428 Conrad v. United States, 32 Ct. Cl. 139 404 Consolidated Edison Co. v. United States, 133 Ct. Cl. 376 381-383,388,389,390 Consolidated Enterprises, Inc., v. State, 150 Tenn. 148 535 Continental Ins. Co. v. United States, 259 U. S. 156 325,329,361 Corliss v. Bowers, 281 U. S. 376 216- 217, 219, 238, 256, 303 County. See name of county. Courtney, In re, 83 Ariz. 231 41 Page Cox v. New Hampshire, 312 U. S. 569 51,69,463, 520 Credits Commutation Co. v. United States, 177 U. S. 311 694 Crook v. Commonwealth, 147 Va. 593 510 Crutcher v. Kentucky, 141 U. S. 47 _ 278 Cummings v. Missouri, 4 Wall. 277 47,59 Dahnke-Walker Co. v. Bondurant, 257 U. S. 282 292 D’Alessio v. Lehman, 183 F. Supp. 345 314 Dartmouth College v. Wood- ward, 4 Wheat. 518 58, 59,136 Davis v. Beason, 133 U. S. 333 442,462 Davis v. Somerville, 128 Mass. 594 497, 498, 512, 569, 629 Deese v. Lodi, 21 Cal. App. 2d 631 532 DeJonge v. Oregon, 299 U. S. 353 156 Delaney v. United States, 199 F. 2d 107 727 Dennis v. United States, 341 U. S. 494 50, 64, 70,144 Denver v. Bach, 26 Colo. 530 532 Derry v. Peek, L. R. 14 App. Cas. 337 706 District of Columbia v. Robinson, 30 App. D. C. 283 511 Dixie Pine Co. v. Commis- sioner, 320 U. S. 516 385-387, 389,390 Dodge v. United States, 33 Ct. Cl. 28 402 Donsky, In re, 77 F. Supp. 832 314 Doremus v. Board of Education, 342 U. S. 429 430 Douds v. Local 1250, 173 F. 2d 764 742 Douglas v. Willcuts, 296 U. S. 1 248, 301 Dowd v. Cook, 340 U. S. 206 729 TABLE OF CASES CITED. XXXIX Page Drivers v. Labor Board, 229 F. 2d 514 674 Durant, In re, 80 Conn. 140 41 Durham v. United States, 94 U. S. App. D. C. 228 8 Dyer v. Sims, 341 U. S. 22 573 Eary, In re, 134 W. Va. 204 41 Eaton v. Price, 364 U. S. 263 159 Eden v. People, 161 Ill. 296 528 Edison Co. v. Labor Board, 305 U. S. 197 741 Edwards v. Cuba R. Co., 268 U. S. 628 248 Eisinger v. Commissioner, 250 F. 2d 303 301, 305 Eisner v. Macomber, 252 U. S. 189 248 Eldorado Ice Cream Co. v. Clark, [1938] 1 K. B. 715 539 Electrical Workers v. Labor Board, 181 F. 2d 34 672 Elizabeth v. Windsor-Fifth Avenue, 31 N. J. Super. 187 496,533 Elkins v. United States, 364 U. S. 206 156 Elliott v. State, 29 Ariz. 389 509,531 Ellis v. United States, 356 U. S. 674 712 Emspak v. United States, 349 U. S. 190 267 Estate. See name of estate. Everson v. Board of Education, 330 U. S. 1 429, 430, 437, 442, 443, 460, 461, 465, 467, 494, 564-577, 627 Ex parte. See name of party. Factor v. Laubenheimer, 290 U. S.276 194 Fair v. Kohler Die & Specialty Co., 228 U. S. 22 662 Farmer, In re, 191 N. C. 235 41 Fay v. New York, 332 U. S. 261 721 Federal Baseball Club v. National League, 259 U. S. 200 234 Page Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134 44 Federal Trade Comm’n v. National Lead Co., 352 U. S. 419 364,365 Feldman v. United States, 322 U. S. 487 67 Fennell v. Ridler, 5 B. & C. 406 473 Ferguson, Ex parte, 62 Okla. Cr. 145 532 Fitzpatrick, Ex parte, 167 Tex. Cr. R. 376 419 Fitzroy, In re, 4 F. 2d 541 313 Fly v. Heitmeyer, 309 U. S. 146 " 44 Follett v. McCormick, 321 U. S. 573 462, 478, 521, 607, 613 Foltz v. State, 33 Ind. 215 508 Francisco v. Commonwealth, 180 Va. 371 499, 512, 528 Frank, In re, 293 Ill. 263 89 Friedeborn v. Commonwealth, 113 Pa. 242 541 Friedman v. New York, 341 U. S. 907 436, 511, 522, 542, 568 Frolickstein v. Mayor, 40 Ala. 725 509, 522 Furst v. Brewster, 282 U. S. 493 282 Gallagher v. Crown Kosher Super Market, 366 U. S. 617 429,459, 468, 470, 505, 521, 542 Gannon v. Porter Circuit Court, 239 Ind. 637 721 Garland, In re, 4 Wall. 333 59 Garner v. Bd. of Public Works, 341 U. S. 716 52, 54, 76, 90 Gemsco, Inc., v. Walling, 324 U. S. 244 31 George v. George, 47 N. H. 27 489 Gerende v. Bd. of Supervisors, 341 U. S. 56 54, 76 Giboney v. Empire Storage ■ Co., 336 U. S. 490 64 XL TABLE OF CASES CITED. Page Gillooley v. Vaughan, 92 Fla. 943 508, 534 Girouard v. United States, 328 U. S.61 220,232 Gitlow v. New York, 268 U. S. 652 62, 63,156 Glanzer v. Shepard, 233 N. Y. 236 705,706 Goesaert v. Cleary, 335 U. S. 464 524 Goldsby v. Harpole, 263 F. 2d 71 149 Gomillion v. Lightfoot, 364 U. S. 339 573 Gompers v. United States, 233 U. S. 604 50 Gonsky’s Estate, In re, 79 N. D. 123 645 Gordon v. Clinkscales, 215 Ga. 843 41 Grae, In re, 282 N. Y. 428 133 Graham v. State, 134 Tenn. 285 498 Grandsinger v. Bovey, 153 F. Supp. 201 729 Great Northern R. Co. v. Merchants Elevator Co., 259 U. S. 285 665 Great Northern R. Co. v. Sunburst Oil Co., 287 U. S. 358 224 Griffin v. Illinois, 351 U. S. 12 137 Grimley, In re, 137 U. S. 147 402 Grochowiak v. Pennsylvania, 358 U. S. 47 436,511,568 Gronlund v. Salt Lake City, 113 Utah 284 532 Grunewald v. United States, 353 U. S. 391 5,7, 27,125,154 Guaranty Trust Co. v. Commissioner, 303 U. S. 493 385 Gully v. First National Bank, 299 U. S. 109 663 Gundaker Central Motors v. Gassert, 354 U. S. 933 436,511,568 Gundaker Central Motors v. Gassert, 23 N. J. 71 501,508, 535 Hall v. United States, 247 F. 2d 69 703 Page Hamilton v. Regents, 293 U. S. 245 605 Hansberry v. Lee, 311 U. S. 32 691,692 Hanson v. Denckla, 357 U. S. 235 289 Harlan v. Scott, 290 Ky. 585 499 Hartford-E m p i r e Co. v. United States, 324 U. S. 570 325, 329, 364, 372, 373, 375 Harvester Co. v. Evatt, 329 U. S. 416 205 Healy v. Commissioner, 345 U. S. 278 216, 220,238,257 Hecht Co. v. Bowles, 321 U. S. 321 328, 358 Heiner v. Mellon, 304 U. S. 271 385 Helvering v. American Chicle Co., 291 U. S. 426 251 Helvering v. Clifford, 309 U. S. 331 218-219, 248 Helvering v. Fitch, 309 U. S. 149 301 Helvering v. Hallock, 309 U.S. 106 220,221,232,258 Helvering v. Horst, 311 U. S. 112 304 Helvering v. Jane Holding Corp., 109 F. 2d 933 251 Helvering v. Stockholms Enskilda Bank, 293 U. S. 84 219 Henderson v. Antonacci, 62 So. 2d 5 532, 553 Hennersdorf v. State, 25 Tex. App. 597 528 Hennington v. Georgia, 163 U. S. 299 436,437, 508, 568 Henry v. A. B. Dick Co., 224 U. S. 1 663 Hernandez v. Texas, 347 U. S. 475 208 Hickinbotham v. Williams, 227 Ark. 126 533 Hicks v. Dublin, 56 Ga. App. 63 496 Hiller v. Maryland, 124 Md. 385 449 Hiller v. State, 124 Md. 385 509 Hines v. Lowrey, 305 U. S. 85 649,650 TABLE OF CASES CITED. XLI Page Hirshberg v. Cooke, 336 U. S.210 415 Hirshberg v. Malanaphy, 73 F. Supp. 990, 168 F. 2d 503 415 Hoag v. New Jersey, 356 U. S. 464 44 Hodges, Ex parte, 65 Okla. Cr. 69 532 Hoffman v. Justus, 91 Minn. 447 499,533 Holland v. United States, 348 U. S. 121 221,242-244 Holt v. United States, 218 U. S. 245 723,724 Hopt v. Utah, 120 U. S. 430 724 Hudson v. Slade, 3 Foster & Finlason, 390 147 Hughes v. United States, 342 U. S. 353 375 Humphrey Chevrolet v. Evanston, 7 Ill. 2d 402 496, 509, 533 Hurtado v. California, 110 U. S. 516 158 Illinois ex rel. See name of real party in interest. Indian Towing Co. v. United States, 350 U. S. 61 708,711 In re. See name of party. International Associatioti, Brotherhood or Union. For labor union see name of trade. International Boxing Club v. United States, 358 U. S. 242 323, 329, 357, 367, 368, 372 International Salt Co. v. United States, 332 U. S. 392 319, 322, 324, 357, 374, 378 International Shoe Co. v. Federal Trade Comm’n, 280 U. S. 291 369 International Shoe Co. v. Washington, 326 U. S. 310 289 International Textbook Co. v. Pigg, 217 U. S. 91 278, 282,285,292 Irvin v. State, 236 Ind. 384 718 Page Irving Trust Co. v. Day, 314 U. S. 556 649 Jacobs v. Clark, 112 Vt. 484 527 Janko v. United States, 366 U. S. 716 730 Jentzsch, Ex parte, 112 Cal. 468 528 Jewell Ridge Coal Corp. v. Local 6167, 3 F. R. D. 251 694 J. I. Case Co. v. Labor Board, 321 U. S. 332 737 J. J. Dix, Inc., v. Commissioner, 223 F. 2d 436 218,233-235 Johns v. State, 78 Ind. 332 516 Johnson, Ex parte, 20 Okla. Cr. 66 496, 508, 535 Johnson, Ex parte, 77 Okla. Cr. 360 508, 529 Johnson v. United States, 318U. S. 189 10,11,218 Johnston v. Commonwealth, 22 Pa. 102 489,499, 527, 597 Jones v. Opelika, 319 U. S. 103 462,612 Jones v. United States, 4 Ct. Cl. 197 405 Jones v. United States, 207 F. 2d 563 702,707, 710 Jordan v. Tashiro, 278 U. S. 123 193 Joseph v. Carter & Weekes Co, 330 U. S. 422 202 Joseph Burstyn, Inc, v. Wilson, 343 U. S. 495 576 Judefind v. State, 78 Md. 510 439,447, 509, 570, 571 Justesen’s Food Stores v. Tulare, 12 Cal. 2d 324 532 Kann v. Commissioner, 210 F. 2d 247 217 Karlin v. Culkin, 248 N. Y. 465 124,127 Karwisch v. Mayor, 44 Ga. 204 496,509 Keenan, In re, 313 Mass. 186 41 Kelly v. Blackburn, 95 So. 2d 260 532, 553 Kennedy, Ex parte, 42 Tex. Cr. R. 148 528 XLII TABLE OF CASES CITED. Page Kidd v. Ohio, 358 U. S. 132 436, 511, 568 Kilgour v. Miles, 6 Gill and Johnson 268 447 King, In re, 46 F. 905 511 Kinsella v. Singleton, 361 U. S. 234 653 Kirk v. Olgiati, 203 Tenn. 1 534 Kislingbury v. Treasurer, 10 N. J. Mise. 798 516 Knapp v. Schweitzer, 357 U. S.371 118,129 Knight v. Haley, 36 Del. 366 658 Kolovrat v. Oregon, 366 U. S. 187 649, 650 Kolovrat v. Oregon, 220 Ore. 448 189,190 Komen v. St. Louis, 316 Mo. 9 496, 510,522,532 Konigsberg v. State Bar, 353 U. S. 252 36-40,42,45, 53, 57, 58, 84, 91, 123 Konigsberg v. State Bar, 366 U. S. 36 82, 88-90, 95, 97, 109, 111, 116, 117, 122, 123, 134, 143-145 Konigsberg v. State Bar, 52 Cal. 2d 769 57,116 Koser, Ex parte, 60 Cal. 177 509,533 Kotch v. Board of River Pilot Comm’rs, 330 U. S. 552 426,427, 523 Kountz v. Price, 40 Miss. 341 498 Kovacs v. Cooper, 336 U. S. 77 51,69, 613 Kreider v. State, 103 Ark. 438 509 Krieger v. State, 12 Okla. Cr. 566 499,515 Kurrle v. Helvering, 126 F. 2d 723 227 Labor Board v. Chauffeurs, 191 F. 2d 65 677 Labor Board v. Chauffeurs, 212 F. 2d 216 677 Labor Board v. Denver Building Council, 341 U. S. 675 672, 679 Page Labor Board v. Drivers, 362 U. S. 274 736, 742 Labor Board v. Drivers, 225 F. 2d 205 674 Labor Board v. Illinois Tool Works, 153 F. 2d 811 739 Labor Board v. Industrial Cotton Mills, 208 F. 2d 87 739 Labor Board v. International Rice Milling Co., 341 U. S. 665 672,674, 679 Labor Board v. Local 55, 218 F. 2d 226 677 Labor Board v. Local 728, 228 F. 2d 791 678 Labor Board v. Mine Workers, 355 U. S. 453 740, 744 Labor Board v. Pa. Greyhound Lines, 303 U. S. 261 738 Labor Board v. Perfect Circle Co., 162 F. 2d 566 739 Labor Board v. Teamsters, 284 F. 2d 887 672 Labor Board v. Virginia Elec. & P. Co., 314 U. S. 469 64 Lane v. McFadyen, 259 Ala. 205 509,532 Lane v. Wilson, 307 U. S. 268 573 Latimer, In re, 11 Ill. 2d 327 41 Leedom v. Kyne, 358 U. S. 184 131 Lee You Fee v. Dulles, 236 F. 2d 885 315 Legal Tender Cases, 12 Wall. 457 459 Leloup v. Mobile, 127 U. S. 640 288 Lerner v. Casey, 357 U. S. 468 93, 118,131, 133,134 Levering v. Park Commissioner, 134 Md. 48 499, 570, 571 Lewyt Corp. v. Commissioner, 215 F. 2d 518 391 Liberman v. State, 26 Neb. 464 533 Lindenmuller v. People, 33 Barb. 548 489,510 TABLE OF CASES CITED. XLIII Page Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 426, 535, 624 Lisenba v. California, 314 U. S. 219 723 Local 618 v. Labor Board, 249 F. 2d 332 680 Lorain Journal Co. v. United States, 342 U. S. 143 372, 379 Louisville & N. R. Co. v. United States, 242 U. S. 60 751 Lovell v. Griffin, 303 U. S. 444 296,561 Lucas v. American Code Co., 280 U. S. 445 385 Lucas v. Earl, 281 U. S. Ill 216 Lusthaus v. Commissioner, 327 U. S. 293 231 Lyeth v. Hoey, 305 U. S. 188 649 Lynch, In re, 31 F. 2d 762 313 Macias v. Commissioner, 255 F. 2d 23 217 Mager v. Grima, 8 How. 490 649 Mahler v. Eby, 264 U. S. 32 729 Marbury v. M a d i s o n, 1 Cranch 137 150,151 Marienfeld v. United States, 214 F. 2d 632 217 Marin v. United States, 356 U. S.412 173 Marsh v. Alabama, 326 U.S. 501 612 Marshall v. Bennett, 365 U. S. 708 271 Marshall v. United States, 360 U. S. 310 730 Martin v. Struthers, 319 U. S. 141 612 Maryland v. Baltimore Radio Show, 338 U. S. 912 730 Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458 322,330, 372 Masters-Jersey, I n c., v. Mayor, 32 N. J. 296 533, 556 Page Matter of. See name of party. Mayor v. Linck, 80 Tenn. 499 496,534 McClelland v. Denver, 36 Colo. 486 508, 528 McCollum v. Board of Education, 333 U. S. 203 429, 442, 452, 460, 461, 466, 564 McCray v. United States, 195 U. S. 27 469 McGatrick v. Wason, 4 Ohio St. 566 499, 528 McGee v. International Life Ins. Co., 355 U. S. 220 289 McGee v. North Carolina, 346 U. S. 802 436,511,542, 568 McGowan v. Maryland, 366 U. S. 420 584, 590, 592, 598, 602, 607, 615, 622, 630 McGowan v. State, 220 Md. 117 449,468 McKaig v. Kansas City, 363 Mo. 1033 532 McKnight v. Commissioner, 127 F. 2d 572 227,238 McNeal v. Culver, 365 U. S. 109 158,418 McPherson v. Chebanse, 114 Ill. 46 508 McQuay-Norris Mfg. Co. v. Labor Board, 116 F. 2d 748 739 Melvin v. Easley, 52 N. C. 356 499 Memphis Steam Laundry v. Stone, 342 U. S. 389 279,290,573 Meredith, In re, 272 S. W. 2d 456 41 Metcalf v. Commissioner, 271 F. 2d 288 301 Metropolis Theatre Co. v. Chicago, 228 U. S. 61 524 Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 426 Meyerson, In re, 190 Md. 671 41 XLIV TABLE OF CASES CITED. Page Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 202, 203 Miller Harness Co. v. United States, 241 F. 2d 781 703 Miller Music Corp. v. Daniels, Inc., 362 U. S. 373 650 Minersville District v. Gobitis, 310 U. S. 586 62, 561 Missouri v. Lewis, 101 U. S. 22 537 Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642 542 Mitchell v. Law, 161 F. Supp. 795 32 Mitchell v. Whitaker House Cooperative, 170 F. Supp. 743 29 Mock Gum Ying v. Cahill, 81 F. 2d 940 312 Mohney v. Cook, 26 Pa. 342 499 Montgomery, In re, 249 Ala. 378 41 Moore v. Dempsey, 261 U. S. 86 728 Moore v. Owen, 58 Mise. 332 499 More v. Clymer, 12 Mo. App. 11 499 Morf v. Bingaman, 298 U. S. 407 205 Mosko v. Dunbar, 135 Colo. 172 508,534 Mt. Vernon v. Julian, 369 Ill. 447 532 Mullis v. Celanese Corp., 234 S. C. 380 503 Murchison, In re, 349 U. S. 133 722 Murdock v. Pennsylvania, 319 U. S. 105 62, 290,429, 462, 478, 561, 607, 612 Murray v. Hoboken Land Co., 18 How. 272 130 Myerson, In re, 190 Md. 671 41 Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362 45,288 N. A. A. C. P. v. Alabama, 357 U. S. 449 49, 51, 53, 293, 296, 430 Page National Fire Ins. Co. v. Thompson, 281 U. S. 331 98 National Home v. Wood, 299 U. S. 211 648 National Labor Relations Board. See Labor Board. National Mfg. Co. v. United States, 210 F. 2d 263 703, 710 Near v. Minnesota, 283 U. S. 697 50,156 Nelson v. Los Angeles, 362 U. S. 1 45,133,134 Ness v. Supervisors, 162 Md. 529 533 Neuendorff v. Duryea, 69 N. Y.557 510 Newman, Ex parte, 9 Cal. 502 435,436, 507, 571 New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18 248 Nippert v. Richmond, 327 U. S. 416 284, 290 Norfolk & Western R. Co. v. Commonwealth, 93 Va. 749 509 North American Coal Corp. v. Commissioner, 97 F. 2d 325 251 North American Co. v. Securities & Exchange Comm’n, 327 U. S. 686 332 North American Oil v. Burnet, 286 U. S. 417 216, 219, 238, 256, 257 Northern Securities Co. v. United States, 193 U. S. 197 329, 367,370 Northrup, Ex parte, 41 Ore. 489 508,529 Northwestern Cement Co. v. Minnesota, 358 U. S. 450 287, 289, 291 Norton Co. v. Department of Revenue, 340 U. S. 534 286-287 O’Brien’s Petition, 79 Conn. 46 41 O’Donnell v. Sweeney, 5 Ala. 467 497 O’Hanlon v. Myers, 10 Rich. L. 128 511 TABLE OF CASES CITED. XLV Page Ohio ex rel. See name of real party in interest. Oklahoma v. Atkinson Co., 313 U. S. 508 649, 654 Oklahoma ex rel. See name of real party in interest. Oliver, In re, 333 U. S. 257 722 Oliver Iron Mining Co. v. Lord, 262 U. S. 172 203 O’Neil v. Vermont, 144 U. S. 323 155 Ott v. Mississippi Barge Line, 336 U. S. 169 203 Owen v. Paramount Productions, 41 F. Supp. 557 692 Pacesetter Homes, Inc., v. South Holland, 18 Ill. 2d 247 509 Pacific Magnesium, Inc., v. Westover, 86 F. Supp. 644 251 Palko v. Connecticut, 302 U.S. 319 44,118, 129, 157, 158, 461, 721 Paramount-Richards Theatres v. Hattiesburg, 210 Miss. 271 508 Parker v. State, 84 Tenn. 476 498 Patsone v. Pennsylvania, 232 U. S.138 542 Pearce v. Atwood, 13 Mass. 324 497, 569, 628 Pennsylvania v. West Virginia, 262 U. S. 553 204, 206 Pennsylvania R. Co. v. United States, 363 U. S. 202 274 People v. Adler, 174 App. Div. 301 515 People v. Belief, 99 Mich. 151 529 People v. Binstock, 7 Mise. 2d 1039 499 People v. DeRose; 230 Mich. 180 508,533 People v. Friedman, 341 U. S. 907 533 People v. Friedman, 302 N.Y. 75 510,515,522 People v. Havnor, 149 N. Y. 195 508, 529, 535 Page People v. Klinck Packing Co., 214 N. Y. 121 498 People v. Krotkiewicz, 286 Mich. 644 533 People v. Law, 142 N. Y. S. 2d 440 499 People v. Moses, 140 N. Y. 214 499 People v. Ruggles, 8 Johns. 290 498 People ex rel. See name of real party. People’s Appliance, Inc., v. Flint, 358 Mich. 34 533 Perkins v. Lukens Steel Co., 310 U. S. 113 130 Permoli v. New Orleans, 3 How. 589 613 Petit v. Minnesota, 177 U. S. 164 436, 437, 508, 528, 568 Petition of. See name of party in interest. Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209 527 Phillips v. Atkinson Co., 313 U. S.508 469 Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672 660 Pierce v. Society of Sisters, 268 U. S. 510 430, 467,468 Pierre v. Louisiana, 306 U. S. 354 208 Piezonki v. Labor Board, 219 F. 2d 879 677 Pirkey Bros. v. Commonwealth, 134 Va. 713 510 Plessy v. Ferguson, 163 U. S. 537 142 Podea v. Acheson, 179 F. 2d 306 315 Powell v. Alabama, 287 U. S. 45 158 Power v. Nordstrom, 150 Minn. 228 508 Pratt v. Paris Gas Light & Coke Co., 168 U. S. 255 664 Price v. United States, 269 U. S. 492 252 Prince v. Massachusetts, 321 U. S. 158 51, 69, 463, 520, 574, 605, 614 XLVI TABLE OF CASES CITED. Page Prokop v. Commissioner, 254 F. 2d 544 218 Prudential Ins. Co. v. Cheek, 259 U. S. 530 156 Quinn v. United States, 349 U. S. 155 267 Raffel v. United States, 271 U. S. 494 5, 6, 27 Ragio v. State, 86 Tenn. 272 528 Railroad Commission v. Pullman Co, 312 U. S. 496 589 Railroad Telegraphers v. Chicago & N. W. R. Co, 362 U. S. 330 178,179 Railway Express Co. v. Virginia, 282 U. S. 440 279,290 Railway Labor Executives v. United States, 339 U. S. 142 178 Raley v. Ohio, 360 U. S. 423 264 Republic Aviation Corp. v. Labor Board, 324 U. S. 793 674 Respublica v. McCarty, 2 Dall. 86 415 Reynolds v. United States, 98 U. S. 145 439, 442, 462, 574, 603, 605, 613, 614, 722-724 Rhode Island v. Massachusetts, 12 Pet. 657 459 Rice v. Santa Fe Elevator Corp, 331 U‘. S. 218 289-290 Rich v. Commonwealth, 198 Va. 445 509, 512, 527 Richardson v. Goddard, 23 How. 28 567 Richfield Oil Corp. v. State Board, 329 U. S. 69 202 Richman v. Bd. of Comm’rs, 122 N. J. L. 180 533 Richmond v. Moore, 107 Ill. 429 499 Robbins v. Shelby County Taxing District, 120 U. S. 489 279,284,286,290,291 Rochester Telephone Corp. v. United States, 307 U. S. 125 751 Rochin v. California, 342 U. S. 165 159 Page Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141 306 Rodman v. Robinson, 134 N. C. 503 499 Rodriquez, Ex parte, 334 S. W. 2d 294 418 Rogers v. Missouri Pacific R. Co, 352 U. S. 500 166 Rogers v. Richmond, 365 U. S. 534 159 Rogers v. State, 60 Ga. App. 722 498 Rosenbaum v. Denver, 102 Colo. 530 508, 534 Rosenbaum y. State, 131 Ark. 251 499, 528 Rosencranz v. Tidrington, 193 Ind. 472 41 Rosenman v. United States, 323 U. S. 658 391 Ross v. Oregon, 227 U. S. 150 248 Roth v. United States, 354 U. S. 476 50, 64,66,156 Ruckgaber v. Moore, 104 F. 947 313 Rupp, In re, 33 App. Div. 468 499 Rutherford Food Corp. v. McComb, 331 U. S. 722 33 Rutkin v. Reinfeld, 229 F. 2d 248 241 Rutkin v. United States, 343 U. S.130 215-258 Sacher v. United States, 343 U. S.1 144,149 St. Joe Paper Co. v. Atlantic C. L. R. Co, 347 U. S. 298 172 St. Louis v. DeLassus, 205 Mo. 578 499, 532 St. Louis Southwestern R. Co. v. United States, 245 U. S. 136 747 Salsburg v. Maryland, 346 U. S. 545 426,427, 537 Sanders v. Johnson, 29 Ga. 526 509 Sarner v. Union, 55 N. J. Super. 523 535 Sawyer, In re, 360 U. S. 622 145 TABLE OF CASES CITED. XLVII Page Sayeg v. State, 114 Tex. Cr. R. 153 510,534 Scales v. State, 47 Ark. 476 509,522 Schenck v. United States, 249 U. S. 47 50, 62 Schine Chain Theatres, Inc., v. United States, 334 U. S. 110 329,365,370,375 Schneider v. State, 308 U. S. 147 51, 69,296,297 Schware v. Bd. of Exam- iners, 353 U. S. 232 53, 60, 84,123 Schweppe v. Commissioner, 168 F. 2d 284 251 Scott v. California, 364 U. S. 471 153 Scougale v. Sweet, 124 Mich. 311 509 Seafarers v. Labor Board, 265 F. 2d 585 673, 674 Searcy v. State, 40 Tex. Cr. R. 460 534 Seattle v. Gervasi, 144 Wash. 429 496, 509, 534 Securities Co. v. United States, 85 F. Supp. 532 251 Security Mills Co. v. Com- missioner, 321 U. S. 281 385-390 Selective Draft Law Cases, 245 U. S. 366 468, 615 Sellers v. Dugan, 18 Ohio 489 498 Semler v. Dental Examiners, 294 U. S. 608 426 Service v. Dulles, 354 U. S. 363 414 Sheiner v. State, 82 So. 2d 657 143 Shelton v. Tucker, 364 U. S. 479 53, 72, 74,296, 297 Shepherd v. Florida, 341 U. S. 50 728, 730 Sherman v. Mayor, 82 N. J. L. 345 535 Shover v. State, 10 Ark. 259 498,509 Shreveport v. Levy, 26 La. Ann. 671 516 Silberman v. Commissioner, 44 B. T. A. 600 254 Page Silverberg Bros. v. Douglass, 62 Mise. 340 522 Sioux Remedy Co. v. Cope, 235 U. S. 197 278,282 Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667 663 Skiriotes v. Florida, 313 U. S. 69 203 Skriziszouski Estate, 382 Pa. 634 645 Slochower v. Bd. of Higher Education, 350 U. S. 551 125,151,160 Smith, In re, 220 Minn. 197 41 Smith v. Bennett, 365 U. S. 708 271 Smith v. Boston & Maine R. Co., 120 Mass. 490 498 Smith v. California, 361 U. S. 147 156 Smith v. Swormstedt, 16 How. 288 692 Smith v. Wertz, 91 W. Va. 622 496,499, 528 Snyder v. Massachusetts, 291 U. S.97 128,158 Social Security Adm’n v. United States, 138 F. Supp. 639 703 Society for Savings v. Bowers, 349 U. S.143 573, 629 Society for Visitation v. Commonwealth, 52 Pa. 125 498,597 Sonzinsky v. United States, 300 U. S. 506 469 Soon Hing v. Crowley, 113 U. S. 703 436, 508, 568 Sparhawk v. Union P. R. Co., 54 Pa. 401 527, 570, 597 Spear Box Co. v. Commissioner, 182 F. 2d 844 251 Spears v. State Bar, 211 Cal. 183 41 Specht v. Commonwealth, 8 Pa. 312 510, 522, 596-598, 628 Spector Motor Service, Inc., v. O’Connor, 340 U. S. 602 284 Speiser v. Randall, 357 U. S. 513 36,53,56, 74-77, 80, 81, 111, 116 XLVIII TABLE OF CASES CITED. Page Spiegel v. Commissioner, 335 U. S.701 231 Spies v. Illinois, 123 U. S. 131 723,724 Spies v. United States, 317 U. S. 492 221, 242-245 Springfield v. Smith, 322 Mo. 1129 532 Sprout v. South Bend, 277 U. S. 163 288 Standard Oil Co. v. United States, 221 U. S. 1 329, 360, 364, 366, 367, 370 Standard Oil Co. v. United States, 337 U. S. 293 329,370-371 Stark v. Backus, 140 Wis. 557 499,528 State v. Ambs, 20 Mo. 214 498, 510 State v. Beaudette, 122 Me. 44 497 State v. Bergfeldt, 210 U. S. 438 510,522 State v. Bergfeldt, 41 Wash. 234 529 State v. Blair, 130 Kan. 863 509 State v. B. & 0. R. Co., 15 W. Va. 362 499 State v. Bott, 31 La. Ann. 663 509 State v. Chicago, B. & Q. R. Co., 239 Mo. 196 499 State v. Corologos, 101 Vt. 300 528 State v. Cranston, 59 Idaho 561 508,533 State v. Dean, 149 Minn. 410 508 State v. Diamond, 56 N. D. 854 509,534 State v. Dolan, 13 Idaho 693 508,533 State v. Eskridge, 31 Tenn. 413 495 State v. Fass, 62 N. J. Super. 265 522 State v. Goff, 20 Ark. 289 527 State v. Grabinski, 33 Wash. 2d 603 510, 515, 516, 534 State v. Granneman, 132 Mo. 326 528 Page State v. Haase, 97 Ohio App. 377 508,534 State v. Haining, 131 Kan. 853 509, 515,522 State v. Hogreiver, 152 Ind. 652 529,535 State v. Hurliman, 143 Conn. 502 499, 533 State v. James, 81 S. C. 197 499 527 State v. Kidd, 358 U. S.’ 131 510,534 State v. Linsig, 178 Iowa 484 508,528 State v. Loomis, 75 Mont. 88 508,534 State v. Malone, 238 Mo. App. 939 499 State v. McBee, 52 W. Va. 257 528 State v. McGee, 346 U. S. 802 534 State v. McGee, 237 N. C. 633 496,510 State v. Mead, 230 Iowa 1217 499 State v. Medlin, 170 N. C. 682 533 State v. Miller, 68 Conn. 373 509 State v. Murray, 104 Neb. 51 ‘ 528,535 State v. Needham, 134 Kan. 155 527 State v. Nicholls, 77 Ore. 415 509 State v. Nichols, 28 Wash. 628 509 State v. Ohmer, 34 Mo. App. 115 528 State v. Petit, 177 U. S. 164 510 State v. Powell, 58 Ohio St. 324 510 State v. Ricketts, 74 N. C. 187 499 State v. Shuster, 145 Conn. 554 498,533 State v. Smith, 19 Okla. Cr. 184 499 State v. Somberg, 113 Neb. 761 533 State v. Sopher, 25 Utah 318 509,528 TABLE OF CASES CITED. XLIX Page State v. Towery, 347 U. S. 925 534 State v. Trahan, 214 La. 100 532 State v. Trantham, 230 N. C. 641 534 State v. Weddington, 188 N. C. 643 508 State v. Weiss, 97 Minn. 125 510, 515, 522 State ex rel. See name of real party in interest. Staub v. Baxley, 355 U. S. 313 62,561 Steelworkers v. Labor Board, 289 F. 2d 591 681 Steelworkers v. United States, 361 U. S. 39 358 Steinberg v. United States, 14 F. 2d 564 254 Stephenson, In re, 243 Ala. 342 41 Stevens v. United States, 89 F. 2d 151 647 Stewart v. United States, 363 U. S. 818 5 Stewart v. United States, 107 U. S. App. D. C. 159 5 Stewart Motor Co. v. Omaha, 120 Neb. 776 510, 534 Stone v. Graves, 145 Mass. 353 512 Strand Amusement Co. v. Commonwealth, 241 Ky. 48 * 509 Straughan v. United States, 1 Ct. Cl. 324 405,416 Stroble v. California, 343 U. S. 181 728, 730 Sumida, In re, 177 Cal. 388 496, 508, 533, 540 Summers, In re, 325 U. S. 561 114 Sundstrom, Ex parte, 25 Tex. App. 133 510,522,534 Superior Derrick Corp. v. Labor Board, 273 F. 2d 891 677 Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 692 Sutphen Estates v. United States, 342 U. S. 19 688, 694 Page Swann v. Swann, 21 F. 299 511 Switchmen’s Union v. Na- tional Mediation Bd., 320 U. S. 297 131 Tacoma v. Krech, 15 Wash. 296 529 Talley v. California, 362 U. S. 60 297, 561, 562 Tanner v. Little, 240 U. S. 369 378 Taylor v. Pine Bluff, 226 Ark. 309 532 Teamsters v. Labor Board, 365 U. S. 667 763 Teamsters v. United States, 291 U. S. 293 334 Temple v. Barnes, 22 N. D. 18 498,510 Texas & Pacific R. Co. v. Pottorff, 291 U. S. 245 177 Theisen v. McDavid, 34 Fla. 440 496,533 Thomasson v. State, 15 Ind. 449 498 Thompson v. Atlanta, 178 Ga. 281 528 Thompson v. Louisville, 362 U. S. 199 722 Tigner v. Texas, 310 U. S. 141 426,523, 542 Tileston v. Ullman, 318 U. S. 44 429 Times Film Corp. v. Chicago, 365 U. S. 43 77,134 Timken Roller Bearing Co. v. United States, 341 U. S. 593 322, 364, 372,379 Tinder v. Clarke Auto Co., 238 Ind. 302 499, 535 Tod v. Waldman, 266 U. S. 113 729 Toolson v. New York Yankees, 346 U. S. 356 234 Toomer v. Witsell, 334 U. S. 385 203 Tot v. United States, 319 U. S. 463 295, 652 Toth v. Quarles, 350 U. S. 11 416 Towery v. North Carolina, 347 U. S. 925 542, 568 Town. See name of town. 590532 0-61—4 L TABLE OF CASES CITED. Page Township. See name of township. Truck Drivers v. Labor Board, 249 F. 2d 512 678 Tumey v. Ohio, 273 U. S. 510 722 Tunstall v. Locomotive Firemen, 148 F. 2d 403 691 Turner v. State, 67 Ind. 595 527 Twining v. New Jersey, 211 U. S. 78 118,128, 130, 134, 157, 159, 160 Two Guys v. Furman, 32 N. J. 199 510, 517,535, 556 Two Guys v. McGinley, 366 U. S. 582 459, 468, 540, 542, 601 Two Guys From Harrison Case, 184 F. Supp. 352 601 Ullmann v. United States, 350 U. S. 422 160, 613 Ullner v. Ohio, 358 U. S. 131 436, 511, 568 Ultramares Corp. v. Touche, 255 N. Y. 170 706 Union Brokerage Co. v. Jen- sen, 322 U. S. 202 279, 284, 289, 292 Union Pacific R. Co. v. Price, 360 U. S. 601 162 United. For labor union, see name of trade. United States v. Aluminum Co., 320 U. S. 708 324 United States v. Aluminum Co, 91 F. Supp. 333 331 United States v. American Can Co, 234 F. 1019 362 United States v. American Tobacco Co, 221 U. S. 106 327, 329,360, 367, 371 United States v. Anderson, 269 U. S. 422 385, 387, 390, 391 United States v. Ballard, 322 U. S. 78 575, 615 United States v. Bausch & Lomb Optical Co, 321 U. S. 707 334 United States v. Bendix Home Appliances, 10 F. R. D. 73 689,690 United States v. Borden Co, 347 U. S. 514 689 Page United States v. Bowen, 100 U. S. 508 648 United States v. Bruswitz, 219 F. 2d 59 217,254 United States v. Burnison, 339 U. S. 87 649, 653 United States v. Carolene Products Co, 304 U. S. 144 613 United States v. Cohen Grocery Co, 255 U. S. 81 224 United States v. Columbia Gas & Elec. Corp, 27 F. Supp. 116 689,690 United States v. Coolidge, 1 Wheat. 415 225 United States v. Corn Products Refining Co, 234 F. 964 327,329, 334 United States v. Crescent Amusement Co, 323 U. S. 173 322, 326, 327, 329, 357, 367, 368, 370, 372 United States v. Darby, 312 U. S. 100 649, 654 United States v. Eastman Kodak Co, 226 F. 62 329 United States v. E. I. du Pont de Nemours & Co, 353 U. S. 586 319, 335 United States v. E. I. du Pont de Nemours & Co, 188 F. 127 327,329 United States v. General Electric Co, 95 F. Supp. 165 690 United States v. Gilbert Associates, 345 U. S. 361 252 United States v. Great Lakes Towing Co, 208 F. 733 362 United States v. Hall, 98 U. S. 343 650 United States v. Harriss, 347 U. S. 612 428 United States v. Hudson & Goodwin, 7 Cranch 32 225 United States v. Illinois Central R. Co, 263 U. S. 515 275 United States v. Imperial Chemical Indus, Ltd, 100 F. Supp. 504, 105 F. Supp. 215 330,332 United States v. International Boxing Club, 348 U. S. 236 234 TABLE OF CASES CITED. LI Page United States v. International Harvester Co., 214 F. 987 329 United States v. I. C. C, 337 U. S. .426 274 United States v. Johnson, 319 U. S. 503 218 United States v. Kirby Lumber Co., 284 U. S. 1 250 United States v. Lake Shore & M. S. R. Co, 203 F. 295 329 United States v. Landers, 92 U. S. 77 402 United States v. Lehigh Valley R. Co, 254 U. S. 255 329,367 United States v. Lewis, 340 U. S. 590 216, 220,238,257 United States v. Loew’s, Inc, 136 F. Supp. 13 690 United States v. Lovett, 328 U. S. 303 47,48 United States v. Lowden, 308 U. S. 225 173 United States v. Mayer, 235 U. S. 55 714 United States v. Miller, 307 U. S. 174 50 United States v. Minnesota Mining & Mfg. Co, 92 F. Supp. 947, 96 F. Supp. 356 330,366 United States v. Murdock, 290 U. S. 389 245 United States v. National Lead Co, 332 U. S. 319 322, 329 United States v. New Britain, 347 U. S. 81 252 United States v. New England Fish Exchange, 258 F. 732 330 United States v. Olympic Radio & Television, 349 U. S. 232 304, 385 United States v. Paramount Pictures, Inc, 334 U. S. 131 329,375 United States v. Peelle, 159 F. Supp. 45 257 United States v. Provoo, 350 U. S. 857 415 United States v. Radio Corp, 3 F. Supp. 23 690, 694 Page United States v. Raines, 362 U. S. 17 429,430,468 United States v. Reading Co, 226 U. S. 324, 228 U. S. 158 329,371 United States v. Reading Co, 253 U. S. 26 329, 367, 370 United States v. Rutkin, 189 F. 2d 431 236 United States v. Rutkin, 208 F. 2d 647 241 United States v. Rutkin, 212 F. 2d 641 241 United States v. Silk, 331 U. S. 704 33,231 United States v. Southern Pacific Co, 259 U. S. 214 329,367 United States v. Spelar, 338 U. S. 217 707 United States v. Stevens, 302 U. S. 623 646, 649, 650 United States v. Sullivan, 274 U. S. 259 218,226, 254,255 United States v. Terminal R. Assn, 224 U. S. 383 362 United States v. Texas, 314 U. S. 480 252 United States v. Union Pacific R. Co, 226 U. S. 61 329, 332, 367 United States v. United Shoe Machinery Co, 247 U. S. 32 “ 361 United States v. United Shoe Machinery Corp, 110 F. Supp. 295 365 United States v. United States District Court, 334 U. S. 258 324 United States v. United States Gypsum Co, 340 U. S. 76 322, 323, 364, 365, 372, 374 United States v. United States Steel Corp, 251 U. S. 417 363 United States v. Van Meter, 149 F. Supp. 493 703 United States v. Wong Kim Ark, 169 U. S. 649 312 United States v. Wood, 299 U. S. 123 724 LU TABLE OF CASES CITED. Page United States v. W. T. Grant Co., 345 U. S. 629 322 United States v. Wyss, 239 F. 2d 658 217 U. S. ex rel. See name of real party in interest. United States Time Corp. v. Grand Union Co., 64 N. J. Super. 39 283,289 Universal Camera Corp. v. Labor Board, 340 U. S. 474 682 Uphaus v. Wyman, 360 U. S. 72 116,134 Uphaus v. Wyman, 364 U. S. 388 “ 61,77,116,134 Uveges v. Pennsylvania, 335 U. S. 437 " 158,418 Vanzant v. Waddel, 2 Yerger 260 136,140 Varney v. French, 19 N. H. 233 498 Veazie Bank v. Fenno, 8 Wall. 533 469 Village. See name of village. Virginian R. Co. v. Federation, 300 U. S. 515 741 Vitarelli v. Seaton, 359 U. S. 535 414 Voglesong v. State, 9 Ind. 112 508 Wagner v. Covington, 251 U. S. 95 288 Walker v. Judge, 39 La. Ann. 132 509,522 Wallenburg v. Missouri Pa- cific R. Co., 159 F. 217 313 Walsh v. State, 33 Del. 514 508 Walsh v. United States, 43 Ct. Cl. 225 404 Ward v. United States, 158 F. 2d 499 404 Warner & Co. v. Lilly & Co., 265 U. S. 526 334 Watkins v. Morgenthau, 56 F. Supp. 529 313 Watkins v. United States, 354 U. S. 178 51 Weedin v. Chin Bow, 274 U. S. 657 312 Weeks v. United States, 232 U. S. 383 156 Weil v. Commissioner, 240 F. 2d 584 305 Page Weinstein, In re, 150 Ore. 1 41 Weldon v. Colquitt, 62 Ga. 449 497 West Virginia Bd. of Education v. Barnette, 319 U. S. 624 156,429,603,611 White v. United States, 72 Ct. Cl. 459 404 Whitney v. California, 274 U. S. 357 50, 63,429 Wickard v. Filburn, 317 U. S. Ill 654 Wieman v. Updegraff, 344 U. S. 183 53 Wilcox v. Commissioner, 148 F. 2d 933 227 Wilkinson v. State, 59 Ind. 416 527 Wilkinson v. United States, 365 U. S. 399 51, 52, 61, 77, 116, 134 Williams v. Commonwealth, 179 Va. 741 528 Williams v. State, 167 Ga. 160 527 Williamson v. Lee Optical, Inc., 348 U. S. 483 426, 524, 540, 592 Wilmette Park Dist. v. Campbell, 338 U. S. 411 231 Wilson v. United States, 149 U. S. 60 2 Winters v. New York, 333 U. S. 507 295 Wisconsin v. Penney Co., 311 U. S. 435 203,289 Wissner v. Wissner, 338 U. S. 655 650 Wolf v. Colorado, 338 U. S. 25 156 Wright, In re, 19 F. Supp. 224 313 Xepapas v. Richardson, 149 S. C. 52 510, 522 Yates v. United States, 354 U. S. 298 50 York Mfg. Co. v. Colley, 247 U. S. 21 206 Zogbaum, In re, 32 F. 2d 911 313 Zorach v. Clauson, 343 U. S. 306 461,563 TABLE OF STATUTES CITED (A) Statutes of the United States. Page 1798, July 14, c. 74, 1 Stat. 596 .................. 36 1800, Apr. 23, c. 33, 2 Stat. 45 .................. 393 1802, Apr. 14, c. 28, § 4, 2 Stat. 153............ 308 1814, Mar. 30, c. 37, §14, 3 Stat. 113.......... 393 1855, Feb. 10, c. 71, § 1, 10 Stat. 604............ 308 1887, Feb. 4, c. 104, 24 Stat. 379 ................. 272 §§ 1,3......... 272,745 §5 ............... 169 §15 .............. 745 1890, July 2, c. 647, § 1, 26 Stat. 209....... 316,683 §2 ............. 316 1898, July 1, c. 541, § 64, 30 Stat. 544........... 213 1903, Feb. 11, c. 544, 32 Stat. 823 ................. 683 §§1,2.............. 316 1907, Mar. 2, c. 2534, §§ 3, 5, 34 Stat. 1228........ 308 1908, Apr. 22, c. 149, 35 Stat. 65................... 161 1910, June 18, c. 309, 36 Stat. 539 ................. 745 June 25, c. 384, §§ 1, 2, 36 Stat. 703....... 643 1913, Oct. 3, c. 16, § II B, 38 Stat. 114.................... 213 1914, Oct. 15, c. 323, §§ 3, 7, 11,15, 38 Stat. 730.. 316 §§ 4, 5............ 683 1919, Feb. 26, c. 48, 40 Stat. 1181................... 1 1924, June 2, c. 234, §219, 43 Stat. 253................. 213 1926, May 20, c. 347, 44 Stat. 577 ............. 161,731 1931, Mar. 3, c. 454, 46 Stat. 1516................. 213 Page 1932, Mar. 23, c. 90, 47 Stat. 70 .................. 293 1933, June 16, c. 91, 48 Stat. 211.................. 169 1934, May 24, c. 344, 48 Stat. 797 ................. 308 June 19, c. 652, § 2, 48 Stat. 1064........... 745 §222 ............. 169 June 27, c. 847, §§ 203, 226, 48 Stat. 1246. . 696 1935, July 5, c. 372, §§ 7, 9, 49 Stat. 449......... 731 July 5, c. 372, § 8, 49 Stat. 449, as amended ........ 667,731 1937, Aug. 17, c. 690, 50 Stat. 673 ................. 316 1938, June 21, c. 556, §§ 19, 22, 52 Stat. 821... . 656 June 25, c. 676, §§ 3, 6, 11, 15, 17, 52 Stat. 1060 ................. 28 1939, Aug. 2, c. 410, § 9A, 53 Stat. 1147........ 393 1940, Sept. 18, c. 722, 54 Stat. 898........ 169,745 1941, Sept. 20, c. 412, 55 Stat. 687............ 299 Dec. 26, c. 634, §§ 1, 2, 4 , 55 Stat. 868... 643 1942, Mar. 7, c. 166, 56 Stat. 143 ................. 393 Oct. 21, c. 619, 56 Stat. 798............ 299 Dec. 24, c. 828, 56 Stat. 1092 ................ 393 1943, Mar. 6, c. 10, 57 Stat. 5 169 1944, June 9, c. 239, 58 Stat. 272 316 July L c’ 371,'58 Stat. 679 ................. 393 LIII LIV TABLE OF STATUTES CITED. Page 1947, June 23, c. 120, 61 Stat. 136 ............ 667,731 1948, June 14, c. 468, 62 Stat. 438 ................ 213 June 24, c. 625, § 4, 62 Stat. 604............. 393 June 25, c. 645, 62 Stat. 683 .................... 1 1949, May 24, c. 139, 63 Stat. 89.................... 1 Oct. 25, c. 720, § 7, 63 Stat. 891............. 213 Oct. 26, c. 736, § 9, 63 Stat. 910.............. 28 1950, Sept. 23, c. 994, § 218, 64 Stat. 906................ 213 Dec. 29, c. 1184, 64 Stat. 1125............ 316 1951, Oct. 20, c. 521, §§ 217, 340, 402, 65 Stat. 452 213 1952, July 3, c. 570, 66 Stat. 330 393 July 14, c.' 745,' 66 Stat. 631 ................ 276 1953, Apr. 4, c. 17, 67 Stat. 20 ................. 393 1954, Jan. 30, c. 3, 68 Stat. 7................... 393 Aug. 2, c. 649, 68 Stat. 590 ................ 696 1955, June 30, c. 254, 69 Stat. 238 ................ 393 Aug. 9, c. 690, § 4, 69 Stat. 624............. 393 1956, July 20, c. 658, 70 Stat. 595 ................ 393 1957, Aug. 7, Pub. L. 85-121, 71 Stat. 341........ 393 Aug. 29, Pub. L. 85- 217, 71 Stat. 491.... 393 1959, Sept. 14, Pub. L. 86- 272, §101, 73 Stat. 555 ............... 276 Revised Statutes. § 1288 ................ 393 § 1978 ................ 643 §§ 1993,2172............. 308 §3466 ................. 213 U. S. Code. Title 8, § 1503........ 308 Title 10, §§ 101, 501, 857, 885, 886......... 393 Page U. S. Code—Continued. Title 10 (1952 ed.), §846 ................. 393 Title 11, § 104... 213 Title 12, §481 ............. 117 §§ 1701,1709,1715q. 696 Title 15, §1 ........... 316,683 §§ 2, 18, 28.... 316 §29 .............. 316,683 §45 .................. 276 § 717 et seq... 656 Title 15 (1946 ed.), § 18. 316 Title 18, § 3481.... 1 Title 26, §§ 61, 6321- 6323, 6331, 7201........ 213 Title 26 (1952 ed.), §§22,145.................. 213 §§23,41,42,43,48. 380 Title 28, § 1253 .......... 272, 293, 582,599, 617 § 1254 .............. 712 § 1257 ....... 259, 420 § 1346 ............... 696 §2101 ................ 272 §2103 ................ 259 §2111 .................. 1 §§2241,2243............ 717 §2255 ................ 977 §2281 ............ 293,582 §2284 ................ 582 §§2402,2680 ........... 696 Title 29, § 157 ............ 731 § 158 ........ 667, 731 § 203 ................. 28 Title 31, § 191........... 213 Title 37, c. 4, §§242, 244 393 Title 38, §§ 5220-5228..’ 643 Title 38 (1952 ed.), § 17 et seq 643 Title 42, § 1982......... 643 Title 45, §§ 51 et seq., 153................... 161 Title 47, § 152 .................... 745 §222 ................. 169 §§308,312.............. 117 Title 49, §§ 1,3........ 272,745 §5 ................... 169 TABLE OF STATUTES CITED. LV Page U. S. Code—Continued. Title 49—Continued. §15 745 § 16 ......... 272 Title 50, App, §§ 1001 et seq, 1002, 1009... 393 Alien and Sedition Act... 36 Bankruptcy Act........... 213 Clayton Act.......... 316,683 Communications Act... 169, 745 Emergency Railroad Transportation Act............ 169 Expediting Act....... 316,683 Fair Labor Standards Act of 1938 ................... 28 Fair Labor Standards Amendments of 1949...... 28 Federal Employers’ Liability Act.................... 161 Federal Tort Claims Act... 696 Income Tax Act of 1913. ... 213 Internal Revenue Code of 1939. §22 213,299 § 23 213,299,380 §§ 41, 42, 43, 48.... 380 §§ 125, 130A, 145, 191, 811, 1701......... 213 Page Internal Revenue Code of 1954. §§61,7201............. 213 §§1311-1315 .......... 380 Interstate Commerce Act.. 169, .272, 745 Mann-Elkins Act.......... 745 McGuire Act.............. 276 Missing Persons Act...... 393 National Housing Act..... 696 National Labor Relations Act ............... 667,731 Natural Gas Act.......... 656 Norris-LaGuardia Act..... 293 Railway Labor Act. .. . 161, 731 Revenue Act, 1924........ 213 Revenue Act, 1941........ 299 Revenue Act, 1942........ 299 Revenue Act, 1950........ 213 Revenue Act, 1951........ 213 Selective Service Act of 1948. 393 Sherman Act.......... 316,683 Sundry Appropriations Act of 1910................ 643 Taft-Hartley Act...... 667,731 Transportation Act of 1940. 169, 745 Wagner Act............... 731 (B) Constitutions and Statutes of the States and Territories. Alabama. Code of 1940 (Recomp. 1958), Tit. 5, § 131......420 Tit. 9, § 21...... 420 Tit. 14, §§420-422. 420 Tit. 26, §344..... 420 Tit. 29, §36...... 420 Tit. 55, §346..... 420 Alaska. Comp. Laws Ann. (1958 Cum. Supp.), §43-2-112 ................ 420 Laws, 1949, c. 82, § 1.. 199 Laws, 1949, c. 97, § 1. . 199 Laws, 1951, c. 113, § 1. 199 Laws, 1951, c. 116, § 1.. 199 Arizona. Rev. Stat. Ann. (1956), §4-244 ........... 420 §5-202 ........... 420 §23—281 .......... 420 §32-357 .......... 420 Arkansas. Stat. Ann., 1947, §§ 25-101, 25-103.......... 36 Stat. Ann. (1947) (Replacement Vols. 1956 & 1960), §§ 19-2335, 19-2336. 420 §§ 41-3805, 41-3807, 41-3808, 41-3809. 420 §§ 48-901, 48-904 to 48-906 .......... 420 §§ 81-601, 81-706, 81-707 .......... 420 § 84-2828 .. .... 420 §§84-2901,84-2902. 420 California. Const. (1849), Art. I, §4.................. 420 Agriculture Code, § 309. 420 Bus. & Prof. Code, §§ 6060, 6064, 6064.1, 6066 ................ 36 LVI TABLE OF STATUTES CITED. Page California—Continued. Fishing and Game Code, §§864,865............ 420 Labor Code, §§ 551-556, 851............. 420 Penal Code, § 413%.... 420 Revenue and Taxation Code, §32.............. 36 Colorado. Rev. Stat. Ann., 1953, §§ 13-20-1 to 13-20- 3................. 420 §27-1-4 ............ 420 §§40-12-20, 40-12- 21................ 420 §§75-2-3(3), 75-2- 3(4) ............. 420 §§ 129-1-16, 129-2- 10................ 420 Connecticut. Acts and Laws, 1750. .. 420 Acts and Laws, 1784... 420 Acts and Laws, 1796... 420 Code of 1650....... 420 Colonial Sunday Stat.. 420 Gen. Stat. Rev., § 53-303 ................. 599 Gen. Stat. Rev. (1958), §§7-164 to 7-168.. 420 § 16-72 ............... 420 § 19-334 ........... 420 §20-246 ............ 420 §§26-73,26-282.... 420 §27-35 ........... 420 §§31-13,31-18........ 420 §§53-300 to 53-303. 420 New Haven Code of 1656 ................ 420 Delaware. Colonial Sunday Stat.. 420 Code Ann. (1953), Tit. 4, §717......420 Tit. 7, §714.........420 Tit. 19, §§302, 515. 420 Tit. 28, §§ 151, 906, 1139 ............. 420 Laws of the Govt, of New-Castle, Kent and Sussex Upon Del., 1741 ................ 420 2 Laws of Del., 1700-1797 (1797), 1209... 420 Page District of Columbia. Code §§ 22-2401, 22-2404, 24-301........ 1 Code of 1951 (Supp. VIII, 1960), §§ 2-1114, 25-107, 36-202, 36-301 ............ 420 Florida. Laws of 1959, c. 59-295 ........ 420 c. 59-1650, §2... 599 Laws of 1959, Special Acts, c. 59-1650... 420 Stat. Ann. (1943), §§320.272,370.11... 420 §450.081(1)........... 420 §§550.04, 551.11, 562.14 ........ 420 §§855.01 to 855.07.. 420 Georgia. Acts of the General Assembly, 1761 - 1762 (ca. 1763), 10..... 420 Code Ann. (1936), §5-613 ........... 420 § 14-1810 ....... 420 §26-6105 ........ 420 §26-6903 ........ 420 §26-6905 ........ 420 §§ 26-6906 to 26-6908 ......... 420 §26-6910 ........ 420 §§ 26-6914 to 26-6916 ......... 420 §26-6920 ........ 420 §§ 58-738, 58-925, 58-1060, 58-1079. 420 Colonial Sunday Stat.. 420 Laws, 1906, No. 356.... 420 Laws, 1941, No. 113... 420 Hawaii. Rev. Laws (1955), §88-22 ........... 420 § 144-33 ........ 420 § 159-77 ........ 420 § 165-9 ......... 420 Idaho. Code Ann. (1947), § 18-1201 ........ 420 §§ 18-6202,18-6203. 420 §§23-307,23-927... 420 §54^13 ............. 420 TABLE OF STATUTES CITED. LVII Page Illinois. Laws, 1959, p. 1893, § 1. 213 38 Ill. Ann. Stat. (Cum. Supp. 1960) § 601.1.. 213 Rev. Stat. (1959), c.8, § 37s.7........420 c.38, §§ 549, 550.. 420 c. 43, § 129....... 420 c. 48, §§ 8a-8g, 31.3. 420 c. 61, § 187....... 420 Indiana. Burns’ Stat. Ann. (1956 Replacement Vol.), §§9-1305,9-1504... 717 § 10-4301 ............. 599 Burns’ Stat. Ann. (Repl. Vols. 1948, 1951, 1956), §§ 10-4301 to 10- 4303, 10-4305... 420 §§ 12-436, 12-917.. 420 §28-521 ............ 420 §§ 63-205, 63-216, 63-217 .......... 420 Stat. Ann., § 10-4301... 599 Iowa. Code Ann. (1949), §§ 123.25, 124.20 .... 420 Kansas. Gen. Stat. Ann. (1949), §21-953 .......... 420,599 Gen. Stat. Ann. (1949) & Supp. (1959), § 13-430 ........... 420 §§ 14-417, 15-422... 420 § 19-2220 .......... 420 §§21-952 to 21-956. 420 §§41-712,41-2704.. 420 Kentucky. Rev. Stat. (1960), §§244.290,244.480.. 420 §§337.050(1), 339-260 ................... 420 §§436.160, 436.160- T . (2)............. 420 Louisiana. Rev. Stat. (1950), §4:151 ................ 420 §§ 12:401-12:409 .. 293 §§ 14:385, 14:386 (1958 Supp.).... 293 §§23:211, 23:216, 23:332 .......... 420 Page Louisiana—Continued. Rev. Stat. (1950)-Cont. §§26:89, 26:286.... 420 §§33:401(7), 33:-4783 ................ 420 §§51:191-51:193 .. 420 Maine. Laws, 1959, c. 302... 420 Rev. Stat. (1954), c.30, §24......... 420 c.37, §§ 76,120.... 420 c.56, §16......... 28 c.61, §27....... 420 c. 134, §§ 38, 38-A, 39-41, 43, 44. .. . 420 Maryland. Ann. Code, Art. 2B, §§28, 90. . 420 Art. 27, §§ 492-534A ............ 420 Ann. Code (1957), Art. 2B, §§ 28, 90-106 .................. 420 Art. 27, §§ 252, 492-534C .........420 Art. 66C, §§ 132, 698 ............. 420 Art. 100, §20.... 420 2 Archives of Md. 414.. 420 13 Archives of Md. 425- 430 ............... 420 19 Archives of Md. 418-420 ................. 420 Colonial Sunday Stat.. 420 1 Dorsey, General Public Statutory Law of Md., 1692-1839 (1840).... 420 Laws, 1765, Sf2...... 420 Laws, 1959, cc. 232, 236, 248, 503, 510, 715, 811.................. 420 Proceedings and Acts of the Gen. Assem., 1637/8-1664 (1883).. 420 Proceedings and Acts of the Gen. Assem., 1666-1676 (1884).... 420 Proceedings and Acts of the Gen. Assem., 1684-1692 (1894).... 420 Proceedings and Acts of the Gen. Assem., 1693-1697 (1899).... 420 LVIII TABLE OF STATUTES CITED. Page Massachusetts. Act of 1629.......... 420 Acts and Laws of 1692 of His Majesty’s Province of the Massachusetts -Bay in New-England......... 420 Acts and Laws of 1782. 420 Acts of 1907, c. 577.... 420 Acts of 1909, c. 514, § 52 .............. 420 Acts of 1913, c. 619.... 420 Acts of 1957, cc. 300, 356, §§ 16, 17, 18.... 420 Actsof 1960, c. 812, §3. 420 Charter and Laws of the Colony of New Plymouth, 92........... 617 Charter of the Province of the Massachusetts-Bay in New-England 13-14 ............ 420, 617 Colonial Sunday Stat............ 420,617 General Laws of New Plimouth, c. HI, §§ 9, 10 (1672)............ 420 Gen. Laws Ann., c. 131, §58...... 617 c. 136, §§ 1-7, 9, 21, 22, 26, 27..... 617 c. 138, §§12, 33... 617 c. 149, §§47, 48... 617 c. 151B, §4...... 599 c.266, §§113, 117. 617 Gen. Laws Ann. (1958), c. 131, § 58... 420 c. 136, §§2-5..420 c. 136, § 6.. 420,599 c. 136, §§ 7, 9-11, 17, 18, 21-32.... 420 c. 138, §§ 12, 33... 420 c. 140, § 177A....420 c. 149, §§ 47-51, 67 .............. 420 c. 151B, §§ 1-10... 420 c. 160, § 184.... 420 c.266, §§113, 117. 420 Labor Code, 1909..... 420 2 Laws of Mass. 536 et seq............... 617 2 Laws of Mass., 1780-1800 (1801).......... 420 Page Michigan. Stat. Ann. (1957 Rev.), §§ 18.855, 18.122, 9.2702 ..... 420,599 § 18.856 ......... 420 Stat. Ann. (Rev. Vols. 1949,1952, 1957,1959, 1960), § 5.1740 ......... 420 §§9.2701, 9.2702... 420 §§ 17.261, 17.717, 17.718 ......... 420 §§ 18.121, 18.122, 18.422(10), 18.-531, 18.851, 18.-852, 18,854, 18.- 855, 18.856(1). .. 420 § 19.597 ......... 420 Minnesota. Stat. Ann. (1947), § 154.16 ......... 420 § 168.275 ........ 420 §221.191 ......... 420 §§ 340.14,341.07.... 420 §§ 614.29, 617.51.... 420 Mississippi. Code Ann. (1942) (Recomp. 1956), §§2368-2371 ........... 420 §§3374-54, 3374- 133 ............ 420 §8924 ............ 420 Missouri. Rev. Stat., 1959, § 563.700 ........... 599 Stat. Ann., 1953, § 563.700 ........... 420 Vernon’s Stat. Ann. (1953), § 294.030 ........ 420 §§311.296,311.480.. 420 §§ 563.690, 563.700, 563.710, 563.720, 563.730 ........ 420 Montana. Rev. Code Ann. (1947), §4-114 ........... 420 §§94 — 35 — 216, 94-3511 .......... 420 Nebraska. Rev. Stat. (1943), §28-940 ................... 599 TABLE OF STATUTES CITED. lix Page Nebraska—Continued. Rev. Stat. (1943) (Reissued Vols. 1954, 1956, 1958, 1960) & Cum. Supp. (1959), §§ 2-1213, 9-107 ... 420 §§ 14—102(24), 15- 258, 16-226, 17- 128 ........... 420 §§28-938,28-940... 420 §§ 53-179,69-207... 420 Rev. Stat. (1956 Reissued Vol.), § 28-940.. 420 Nevada. Rev. Stat. (1960), §§201.260, 609.030, 609.110 ........... 420 New Hampshire. Acts and Laws of the General Court of His Majesties Province of New - Hampshire in New-England, 1726. . 420 Colonial Sunday Stat.. 420 5 Laws of N. H., 1784- 1792 (1916)........ 420 6 Laws of N. H., 1792-1801 (1917).......... 420 Rev. Stat. Ann. (1955), §§ 176:11, 181:7.... 420 §§ 275 : 32 - 275 : 35 284:12, 287:2... 420 §§578:3-578:6 .... 420 New Jersey. Acts of the Fourteenth General Assembly, c. 311 (1790)......... 420 Acts of the General Assembly of the Province of N. J., 1703-1752 (1752).......... 420 Colonial Sunday Stat. . 420 Fair Trade Act........ 276 Laws Revised and Published under the Authority of the Legislature (1800).......... 420 Rev. Stat. §§14:15-3, 14:15-4, 56:4-6...... 276 Rev. Stat. Cum. Supp. (1951-1952), §5:5-47 .................. 420 Page New Jersey—Continued. Rev. Stat. Cum. Supp. (1953-1954), §§5:5-38, 5:8-31, 5:8-58... 420 Stat. Ann. (1939-1953), §§2A:171-1, 171- 1.1, 171-2, 171-4, 171-5.8 to 171-5.18, 171-6.... 420 §§23:3-32, 23:4-24, 23:5-24.4 ...... 420 §§33:1-40, 34:2- 21.3,34:2-24.... 420 §§40:48-2.1, 40:52- 1,40:95-3, 40:95- 4, 45:4-26, 45:-22-31 420 §§50:2-11,’50:3-15' 420 New Mexico. Stat. Ann. (1953), §§40-44-2, 40-44-3, 46-10-14.1 .......... 420 § 67-13-5 ....... 420 New York. Const., Art. I, §6... 117 1 Colonial Laws of N. Y., 1664-1775 (1894)............. 420 Colonial Sunday Stat.. 420 Judiciary Law, § 90. .. . 117 Labor Law, § 161..... 420 Laws, 1785-1788 (1886). 420 2 Laws of N. Y., 1785- 1788, 680.......... 420 McKinney’s Alcoholic Beverage Law, §§ 105, 106 ............... 420 McKinney’s Conservation Law, §226(9)-(a)................ 420 McKinney’s Education Law, § 6807........ 420 McKinney’s Gen. Mun. Law, § 485......... 420 McKinney’s Labor Law, §§ 161, 166, 167, 170 to 185-a........... 420 McKinney’s Penal Law, §§ 2143-2147, 2149, 2151-2153 ......... 420 McKinney’s Penal Law, §2144 ............. 599 LX TABLE OF STATUTES CITED. Page New York—Continued. McKinney’s Unconsolidated Laws, §§7581, 7598, 9105............ 420 Penal Law, §§ 270-a, 270-c, 270- d, 276......... 117 § 2144 ........... 420 North Carolina. Colonial Sunday Stat.. 420 Gen. Stat. (Recomp. 1953) (Repl. Vols. 1958 & 1960), §§ 18-45(f), 18-47.. 420 § 95.17 .......... 420 §§ 103-2, 110.2, 113-210, 113-211, 113-247 ....... 420 Laws of 1959, c. 633... 420 1 Laws of N. C. (1821). 420 North Dakota. Century Code (1960), §§12-21-15, 12-21-' 17, 12-21-19 to 12-21-22 ............. 420 §§34—06-06, 34-07-15............. 420 §40-05-03 ........ 420 Laws of 1959, c. 131... 420 Rev. Code, 1943, §12- 2117................ 599 Ohio. Rev. Code, §§ 101.44, 103.34,103.35, 2705.02 to 2705.09............ 259 Page’s Rev. Code Ann. (1954), § 1531.02 .......... 420 § 3773.23 420 § 3773.24 420, 599 § 3773.26 420 §§ 4107.46, 4107.47, 4109.22 ....... 420 §§4301.22,4709.24.. 420 Oklahoma. Const., Art. 27, § 6.... 420 Laws, 1959, p. 210.....420 Stat. Ann. (1951) (Vols. 1952-1958), Tit. 21, §§ 908, 909, 917-919.......... 420 Tit. 29, §228.... 420 Tit. 37, §213.....420 Page Oklahoma—Continued. Stat. Ann. (1958), Tit. 21, §909......... 420,599 Oregon. Rev. Stat., § 111.070 ........ 187 § 120.010 ........ 643 Rev. Stat. (1959), §§462.120,463.030.. 420 §§ 653.315,690.210.. 420 § 726.270 ............. 420 Pennsylvania. Charter and Laws of the Province of Pa., 1682— 1700 ........... 420, 582 Colonial Sunday Stat... 420 Duke of Yorke’s Book of Laws, 1676-1682 (1879)................ 420 Laws, 1959, Nos. 212, 278, 540, 684......... 420 Purdon’s Stat. Ann. (1945-1957), Tit. 4, §1 ........... 420 §§ 1, 30.202, 59-66, 81-91, 131-127,151-157, 181-185, 307 .......... 582 §3-304 ....... 420 §30.202 ...... 420 §§ 59-65, 81-91, 151-157 .... 420 §§ 121-127 .... 420 §§ 181-185 .... 420 §307 ......... 420 Tit. 18, §§ 632,633. 420,582 §4651 ... 420,582 §4699.4 . 420,582 §§ 4699.9, 4699.-10 ........ 420,582 Tit. 24, 19-1903... 582 Tit. 30, §§ 118, 138, 153, 265,273. 420,582 Tit. 34, §§ 1311,702, 1311.719, 1311.721 ... 420, 582 TABLE OF STATUTES CITED. LXI Page Pennsylvania—Continued. Purdon’s Stat. Ann. (1945-1957)—Cont. Tit. 34—Continued. §§ 1311.731, 1311.1205 .. 582 Tit. 43, §361 .... 420,582 §§46, 103, 481, 951-963 .... 420 Tit. 47, §3-304 ........... 582 §§ 4-406, 4-492. 420, 582 Tit. 51, § 623.. 420,582 Tit. 53, §§23130, 37403(24) .. 420,582 Tit. 61, §§ 184, 195. 582 Tit. 63, §§281-28, 519, 559.... 420,582 Purdon’s Stat. Ann. (1960 Cum.< Supp.), Tit. 18, §4699.10.. 582, 599 Tit. 43, § 955.... 599 Stat. Ann. (1952), Tit. 43, §361............ 420 Stat. Ann. (1960 Supp.), Tit. 4, § 60.......... 420 Stat. Ann. (1960 Supp.), Tit. 43, §§951-963.. 420 2 Stat, at L. (1896).... 420 2 Stat, at L. 3-4..... 582 9 Stat, at L. (1903).... 420 9 Stat, at L. 333 .... 582 12 Stat, at L. (1906)... 420 12 Stat, at L. 314.... 582 15 Stat, at L. (1911)... 420 15 Stat, at L. 110.... 582 Puerto Rico. Laws Ann., 1955, Tit. 29, §295..... 420 Tit. 33, §2201. .. . 420 Laws Ann. (1955—1956), Tit. 29, §§ 273,295. 420 Tit. 33, §§ 2201, 2202, 2204..... 420 Rhode Island. Acts and Laws of His Majesty’s Colony of Rhode - Island and Providence - Plantations (1730).......... 420 Page Rhode Island—Continued. Acts and Resolves, Aug. 1784 (1784)......... 420 Code of Laws, 1647 (1847), 50............ 420 Colonial Sunday Stat.. 420 Gen. Laws (1956), §§3-7-14,3-8-1.... 420 §§ 5-2-9, 5-16-5, 5-10-23, 5-22-6 to 5-22-11, 5-23-3 to 5-23-5, 5-27-17, 5-27-23, 5-32-9 ................. 420 §§ 11-9-1, 11-40-1, 11-40-2 ........ 420 § 11-40-4 .... 420,599 §19—26—16 ........ 420 §§ 25-1-6, 25-1-8... 420 §31-5-19 .......... 420 §§ 41-5-2, 41-5-21, 41-6-1 to 41-6-7, 45-6-1 ......... 420 Public Laws of R. I. and Providence P1 a n t a-tions (1798).......... 420 South Carolina. 6 S. C. Code Ann. (1952), § 64-5..... 420 Code Laws (1952), §§4-102, 4-204, 4-205,4-205.1........... 420 §§5-103, 5-110, 5-601, 5-616, 5-625 to 5-638.21..... 420 §§ 16-506, 28-861.2-11, 40-52....... 420 §§ 58-1021 to 58-1023 ........... 420 §§ 64-1 to 64-6.... 420 Colonial Sunday Stat.. 420 Public Laws of S. C. (1790)............. 420 2 Stat, at L. (1837).... 420 South Dakota. Code (1939), §§ 5.0108(3), 5.0226-(4)............. 420 §§ 12.1710, 13.1709.. 420 § 13.1710 .... 420, 599 §§53.0208,53.0604.. 420 Tennessee. Acts of 1957, c. 219.... 420 LXII TABLE OF STATUTES CITED. Page Tennessee—Continued. Code Ann. (1955), §§ 39-4001 to 39-4003 ................ 420 §§ 50-709, 57-142-(5), 57-221.... 420 Texas. Penal Code, Art. 284... 599 Stat. (1952), Pen. Code, Art. 284............. 420 Vernon’s Civil Stat. (Vols. 1949, 1952), Art. 6153............ 420 Vernon’s Code Crim. Proc., Art. 119.....418 Vernon’s Stat. (Vols. 1949, 1952), Penal Code, Arts. 283-287.... 420 Arts. 614-1, 614-11, 666-4, 666-25, 667-10, 667-10y2. 420 Utah. Code Ann. (1953), §11-5-1(1) ........ 420 §23-1-15 ........ 420 §34-5-2 ......... 420 § 76-55-1 ....... 420 Vermont. 1 Laws (1808), 275.... 420 Stat. Ann. (Rev. 1959), Tit. 7, §62........ 420 Tit. 13, §§ 3301, 3302, 3308....... 420 Tit. 21, §434.... 420 Tit. 31, §§307, 604. 420 Virginia. Declaration of Rights.. 420 Acts 1950, c. 439.... 420 Code Ann., § 18.1-359.. 599 Code (1950), § 18.1-359. 599 Code (1950) (Repl. Vols. 1953 & 1960), §§4-19,4-97........ 420 §§18.1-241, 18.1-358 to 18.1-360, 18.1-363 ...... 420 §§28-195,28-234... 420 §§29—143, 29-150.1. 420 §40-97 ........... 420 Code (1960) (Repl. Vol.), § 18.1-359.. 420 Colonial Sunday Stat... 420 Page Virginia—Continued. Hening, Stat, of Va. (1821), Vol. 9..... 420 Hening, Stat, of Va. (1823), Vols. 1, 2, 3, 12................... 420 Shepherd, Stat, of Va. (1835), Vol. 2..... 420 Washington. Rev. Code (1951), § 9.-76.020 .............. 599 Rev. Code (1959), §§9.76.010,9.76.020. 420 § 67.08.070 .......... 420 West Virginia. Code Ann. (1955), c. 61, Art. 8, § 18 ...............420 § 6073 .......... 599 Code Ann. (1955) & Cum. Supp. (I960), c. 19, Art. 23, §5 [2200(5)]..............420 c. 20, Art. 3, § 4 [2219]......... 420 c. 21, Art. 6, § 7 [2364]........... 420 c. 29, Art. 5A, § 6 [2833(6)].........420 c. 60, Art. 3, § 12 [5907(40)1 ...... 420 c. 61, Art. 8, §§ 17 [6072], 18 [6073]......... 420 Wisconsin. Stat. Ann. (1957), § 103.85 .......... 420 Stat. Ann. (1958), §301.33 ........... 599 Stat. Ann. (1961 Supp.), §218.01.............. 420 West’s Stat. Ann. (1957-1958), §§ 103.68(1), 103.85, 169.11, 176.06... 420 §§215.45(11) (a), 218.01(3) (a)21, 220.29(1), 348.07(2) (d) ... 420 Wyoming. Stat. (1957), §§ 12-19, 33-112... 420 §§15-160, Eleventh, 15-160, Twelfth, 27-228 ........... 420 TABLE OF STATUTES CITED. LXIII (C) Treaties and Other International Agreements. 1853, July 27 (Treaty of Friendship, Commerce, and Navigation, between the United States and the Argentine Confederation), 10 Stat. 1005............................................ 187 1881 (Treaty between the United States and Serbia), 22 Stat. 963 ................................................... 187 1923, Dec. 8 (Treaty between the United States and Germany), 44 Stat. 2132............................................ 187 1945, Dec. 27 (Bretton Woods Agreement), 60 Stat. 1401, T. I. A. S. 1501......................................... 187 1948, July 19 (Agreement between the United States and Yugoslavia), 62 Stat. 2658, T. I. A. S. 1803, Art 5.......... 187 Yugoslav-Czechoslovakian Treaty, 85 League of Nations Treaty Series 455............................................... 187 Yugoslav-Polish Treaty, 30 League of Nations Treaty Series 185. 187 (D) Foreign Statutes. Page England. Magna Charta.......... 117 9 Anne, c. 23, § 20.. 420 1 Charles I, c. 1.....420 3 Charles I, c. 2.... 420 29 Charles II, c.7. . 420,582 5 & 6 Edw. VI, c. 3.... 420 1 Edw. VII, c. 22.... 420 1 Edw. VIII & 1 Geo. VI, c. 67, §§ 77, 91... 420 2 & 3 Eliz. II, c. 57, §12 ................. 420 28 Geo. Ill, cc. 48, 49, 61 .................. 420 1 & 2 Geo. IV, c. 50, §11 ................. 420 3 Geo. IV, L. & P, c. 106, § 16...........420 2 Geo. V, c. 3, §§ 1, 4... 420 20 & 21 Geo. V, c. 35, §3 ................ 420 22 & 23 Geo. V, c. 51... 420 26 Geo. V & 1 Edw. VIII, cc. 30, 53... 420 14 Geo. VI, c. 28.... 420 14 & 15 Geo. VI, c. 39. . 420 27 Henry VI, c. 5.....420 34 & 35 Viet., c. 87.... 420 6 & 7 Wm. IV, c. 37, §14 ................. 420 10 & 11 Wm. HI, c. 24, §14 ................. 420 Baking Industry (Hours of Work) Act, 1954.. 420 Page England—Continued. Common Informers Act, 1951 .................. 420 Factories Act, 1937.... 420 Factory and Workshop Act, 1901, §§47, 48.. 420 Hairdressers’ and Barbers’ Shops Act, 1930. 420 Retail Meat Dealers’ Shops Act, 1936...... 420 Shops Act, 1912........ 420 Shops Act, 1950........ 420 Sunday Entertainments Act, 1932............ 420 Sunday Observation Prosecution Act, 1871. 420 Sunday Trading Restriction Act, 1936, § 7... 420 India. Const., Art. 25........ 420 Nigeria. Const., Art. 23........ 420 Yugoslavia. Law to Regulate Payments to and from Foreign Countries, Foreign Exchange Law, Official Gazette of the Federal People’s Republic of Yugoslavia, Oct. 25,1946, Belgrade, No. 86, Year II................ 187 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1960. STEWART v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 143. Argued February 21, 1961.—Decided April 24, 1961. Petitioner was tried three times in a federal court for murder. At the first two trials, he did not testify in his own defense; but he did so at the third trial, at which the main issue was whether or not he was insane when the offense was committed. On cross-examination, the prosecutor alluded to the two earlier trials and asked, “This is the first time you have gone on the stand, isn’t it, Willie?” Petitioner’s counsel moved for a mistrial on the ground that it was prejudicial to inform the jury of petitioner’s failure to take the stand in his previous trials. The motion was denied, and petitioner was convicted. Held: The question was prejudicial; the error was not harmless; a mistrial should have been granted; and the judgment affirming the conviction is reversed. Pp. 2-10. 107 U. S. App. D. C. 159, 275 F. 2d 617, reversed. Edward L. Carey argued the cause for petitioner. With him on the brief were Robert L. Ackerly and Walter E. Gillcrist. Carl W. Belcher argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Wayne G. Barnett, Beatrice Rosenberg and Jerome M. Feit. 1 590532 0-61—5 2 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. Mr. Justice Black delivered the opinion of the Court. The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may “be compelled in any criminal case to be a witness against himself.” To protect this right Congress has declared that the failure of a defendant to testify in his own defense “shall not create any presumption against him.” 1 Ordinarily, the effectuation of this protection is a relatively simple matter—if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted.2 But where for any reason it becomes necessary to try a particular charge more than one time, a more complicated problem may be presented. For a defendant may choose to remain silent at his first trial and then decide to take the stand at a subsequent trial. When this occurs, questions arise as to the propriety of comment or argument in the second trial based upon the defendant’s failure to take the stand at his previous trial. This case turns upon such a question. Petitioner has been tried three times in the District Court for the District of Columbia upon an indictment charging that he had committed first-degree murder under a felony-murder statute.3 In all three trials, petitioner’s 1 “In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.” 62 Stat. 833, 18 U. S. C. § 3481. 2 Wilson v. United States, 149 U. S. 60. 3 “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, STEWART v. UNITED STATES. 3 1 Opinion of the Court. chief defense has been insanity but, on each occasion, the jury has rejected this defense and returned a verdict of guilty upon which the District of Columbia’s mandatory death sentence has been imposed.4 After the first two trials, in which petitioner did not testify, the convictions and death sentences were set aside on the basis of trial errors that the Court of Appeals found had prevented a proper consideration of the case by the jury.5 At the third trial, in an apparent effort to bolster the contention of insanity, petitioner was placed upon the stand and asked a number of questions by defense counsel—a maneuver obviously made for the purpose of giving the jury an opportunity directly to observe the functioning of petitioner’s mental processes in the hope that such an exhibition would persuade them that his memory and mental comprehension were defective. Petitioner’s responses to these questions were aptly described by the court below as “gibberish without meaning.” 6 mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” District of Columbia Code § 22-2401. (Emphasis supplied.) 4 Section 22-2404 of the District of Columbia Code provides: “The punishment of murder in the first degree shall be death by electrocution.” 5 The first conviction was set aside because of erroneous instructions on the defense of insanity. 94 U. S. App. D. C. 293, 214 F. 2d 879. The second conviction was set aside because of improper argument by the prosecutor. 101 U. S. App. D. C. 51, 247 F. 2d 42. 6107 U. S. App. D. C. 159, 160, 275 F. 2d 617, 618. The following excerpt from petitioner’s testimony is entirely typical: “Q. Who is your lawyer? “A. Well, I mean, I am my own lawyer, as far as my concern. “Q. Have I been representing you here the last couple days? “A. As far as I am concerned, you all look the same to me. “Q. Do you know what is going on in this courtroom the last couple days? [Footnote 6 continued on p. 4-] 4 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. Upon cross-examination, the prosecutor attempted without noticeable success to demonstrate that these irrational answers were given by petitioner in furtherance of his plan to feign a mental weakness that did not exist. To this end, the prosecutor asked petitioner a number of questions about statements petitioner had allegedly made subsequent to his arrest, apparently in the hope that one of these questions would surprise petitioner and provoke a sensible response. When petitioner continued to talk in the same manner that he had used upon direct examination, the prosecutor concluded his cross-examination with the following remarks in the form of questions: “Willie, you were tried on two other occasions.” And, “This is the first time you have gone on the stand, isn’t it, Willie?” 7 The defense moved immediately for a mistrial on the ground that it was highly prejudicial for the prosecutor to inform the jury of the defendant’s failure to take the stand in his previous trials. The prosecutor defended his actions on the ground that this “is a fact that the Jury is entitled to know.” The trial judge agreed with the prosecutor, denied the motion for a mistrial, and the trial proceeded, culminating in the third verdict of guilty and death sentence. On appeal, the case was heard by “A. I ain’t asked about what is going on. It is up to you go on and describe yourself. I mean, don’t ask me. As far as I am just sitting here. “Q. Did you ever hear the name Harry Honigman [the man with whose murder petitioner was charged] before? “A. I haven’t. “Q. Do you know you are charged with first degree murder? “A. As far as I am concerned, I ain’t charged with nothing. “Q. What is first degree murder; do you know? “A. I don’t know.” 7 The record reveals the following exchange at the conclusion of the cross-examination of petitioner by the prosecutor, a Mr. Smithson: “Q. Willie, you were tried on two other occasions. STEWART v. UNITED STATES. 5 1 Opinion of the Court. all nine members of the Court of Appeals sitting en banc and was affirmed by a 5-4 vote * 8—the majority concluding that the issue was controlled by the decision of this Court in Raff el v. United States,9 and the minority concluding that the issue was controlled by our decision in Grunewald v. United States.10 We granted certiorari to consider whether it was error for the trial court to deny the motion for a mistrial under the circumstances.11 In this Court, the Government concedes that the question put to the defendant about his prior failures to testify cannot be justified under Raff el, Grunewald, or any other of this Court’s prior decisions. This concession, which we accept as proper, rests upon the Government’s recognition of the fact that in no case has this Court intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial. The Raff el case, relied upon by the majority below, involved a situation in which Raffel had sat silent at his first trial in the face of testimony by a government agent “A. Well, I don’t care how many occasions, how many case—you say case. I was a case man once in a time. “Q. This is the first time you have gone on the stand, isn’t it, Willie? “A. What? “Q. This is the first time you have gone on the stand, isn’t it, Willie? “A. I am always the stand; I am everything, I done told you. “Mr. Smithson: That is all.” 8107 U. S. App. D. C. 159, 275 F. 2d 617. 9 271 U.S.494. 10 353 U.S. 391. 11 363 U. S. 818. The petition for certiorari also raised objections based upon other alleged errors during the course of the trial. In view of our disposition of the primary issue and because the actions complained of may not arise at any subsequent trial, we find it unnecessary to pass upon these other objections. 6 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. that Raffel had previously made admissions pointing to his guilt. On a second trial, Raffel took the stand and denied the truth of this same testimony offered by the same witness. Under these circumstances, this Court held that Raffel’s silence at the first trial could be shown in order to discredit his testimony at the second trial on the theory that the silence itself constituted an admission as to the truth of the agent’s testimony. The result was that Raffel’s silence at the first trial was held properly admitted to impeach the specific testimony he offered at the second trial. Here, on the other hand, the defendant’s entire “testimony” comprised nothing more than “gibberish without meaning” with the result that there was no specific testimony to impeach. Any attempt to impeach this defendant as a witness could therefore have related only to his demeanor on the stand, and, indeed, the majority below expressly rested its conclusion upon the view that the prosecution had the right under Raffel to test the genuineness of this sort of “demeanor-evidence” by questions as to why it was not offered at previous trials.12 But if Raffel could properly be read as standing for this proposition, such questions would be permissible in every instance, for whenever a witness takes the stand, he necessarily puts the genuineness of his demeanor into issue.13 The Government quite properly concedes that 12 Thus, the majority reasoned: “The logical and permissible first step under Raffel v. United States, supra, was to have him say whether he had previously testified in order to lay the groundwork for developing an inconsistency inherent in the difference in his ‘demeanorevidence’ in the two trials.” 107 U. S. App. D. C. 159, 167, 275 F. 2d 617, 625. 13 This is so because the defendant’s credibility is in issue whenever he testifies. If the failure to testify at a previous trial were to amount to evidence that testimony at a subsequent trial was feigned or perjurious, the fact of failure to testify would always be admissible. STEWART v. UNITED STATES. 7 1 Opinion of the Court. this cannot be the law since it would conflict with the precise holding of this Court in the Grunewald case.14 Despite this concession, however, the Government persists in the contention that petitioner’s conviction should be upheld, arguing that the error committed was harmless and could not have affected the jury’s verdict. This argument is rested upon three grounds: first, that the jury may not even have heard the improper question; secondly, that even if the jury did hear the question, it may not have inferred that petitioner in fact did not testify at his previous trial; and, finally, that even if the jury did infer that petitioner did not testify previously, no inference adverse to petitioner would have been drawn from this fact. The first two of these grounds can be quickly disposed of. We can think of no justification for ignoring the part of a record showing error on a mere conjecture that the jury might not have heard the testimony that part of the record represents. Nor do we believe it reasonable to argue that the jury trying this case would not have inferred that this defendant had failed to testify in his prior trials when the prosecutor asked, “This is the first time you have gone on the stand, isn’t it, Willie?” Indeed, the recognition that such an inference will in all likelihood be drawn from leading questions of this kind lies at the root of the long-established rule that such questions may not properly be put unless the inference, if drawn, would be factually true.15 Thus, the Government’s argument that 14 The holding in Grunewald was that the defendant’s answers to certain questions were not inconsistent with his previous reliance upon the Fifth Amendment to excuse a refusal to answer those very same questions. Since defendant’s testimony placed his credibility in issue, the necessary implication of that holding is that his prior refusal to testify could not be used to impeach his general credibility. 15 III Wigmore, Evidence (3d ed.), § 780. Wigmore quotes Chitty, Practice of the Law, 2d ed., Ill, 901, for the proposition: “It is an 8 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. the error was harmless must stand or fall upon the third ground it urges—that the jury’s awareness of petitioner’s failure to take the stand at his previous trials would not have prejudiced the consideration of his case. The disposition of this contention requires the statement of a few more of the relevant facts of the case. In connection with the defense of insanity, petitioner had introduced evidence of both mental disease and mental defect, as those terms are applied in the relevant law of the District of Columbia.16 On the mental disease issue, the testimony was that petitioner was suffering from manic depressive psychosis, a disease which the record shows tends to fluctuate considerably in its manifestations from time to time. On the mental defect issue, the defense introduced evidence that petitioner had an intelligence level in the moronic class. The case went to the jury on both of these points, the jury being directed to acquit if it found the homicide to have been the product either of mental disease or mental defect.17 Petitioner’s “testimony” thus raised at least two different issues in the minds of the jury: first, whether petitioner was simply established rule, as regards cross-examination, that a counsel has no right, even in order to detect or catch a witness in a falsity, falsely to assume or pretend that the witness had previously sworn or stated differently to the fact, or that a matter had previously been proved when it had not.” This Court has previously recognized that principle. Berger v. United States, 295 U. S. 78, 84. 16 The difference between the terms “disease” and “defect” was explained in the charge to the jury in the following manner: “We'use ‘disease’ in the sense of a condition which is considered capable of either improving or deteriorating. We use ‘defect’ in the sense of a condition which is not considered capable of either improving or deteriorating, and which may be either congenital or the result of injury, or the residual effect of a physical or mental disease.” 17 These instructions stemmed from the test of criminal responsibility that prevails in the District of Columbia under the decision of the Court of Appeals in Durham v. United States, 94 U. S. App. D. C. 228, 214 F. 2d 862. STEWART v. UNITED STATES. 9 1 Opinion of the Court. feigning this testimony; and, secondly, whether, if not, petitioner’s condition at the time of his third trial fairly represented his condition at the time of the act charged in the indictment.18 We think it apparent that the jury’s awareness of petitioner’s failure to testify at his first two trials could have affected its deliberations on either or both of these issues. Thus, the jury might well have thought it likely that petitioner elected to feign this “testimony” out of desperation brought on by his failure to gain acquittal without it in the two previous trials. Similarly, even if the jury believed petitioner’s “testimony” was genuine, it might have thought that petitioner’s condition was caused by a mental disease and concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide. Or, on the same assumption, it might have thought that petitioner’s failure to exhibit himself at the previous trials indicated that the condition manifested at this trial was the result of a worsening in his mental condition since those trials and, consequently, also since the commission of the acts charged in the indictment. There may be other ways in which the jury might have used the information improperly given it by the prosecution—we have mentioned more than enough already, however, to satisfy ourselves that the Government’s contention that the error was harmless must be rejected. The Government’s final contention is that even if the error was prejudicial the conviction should be allowed 18 This second issue arises from the fact that the jury was not here trying the question whether petitioner was mentally competent to stand trial. Under the District of Columbia practice, that question is decided in a separate proceeding. See District of Columbia Code §24-301. 10 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. to stand on the theory that the error was not sufficiently prejudicial to warrant the granting of a mistrial and the defense made no request for cautionary instructions. One answer to this argument is to be found in the Government’s own brief. For, in its argument regarding the possibility that the jury may not have been aware of the improper question, the Government stresses the fact that the question was not emphasized by any reference to it in the instructions to the jury. During the course of this argument the Government expressly recognizes that the danger of the situation would have been increased by a cautionary instruction in that such an instruction would have again brought the jury’s attention to petitioner’s prior failures to testify. Plainly, the defense was under no obligation to take such a risk. The motion for a mistrial was entirely appropriate and, indeed, necessary to protect the interests of petitioner.19 We thus conclude that this conviction and sentence against petitioner cannot stand. In doing so, we agree with the point made by the Government in its brief—that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case. But under our system, a man is entitled to the findings of 12 jurors on evidence fairly and properly presented to them. Petitioner may not be deprived of his life until that right is accorded him. That right was denied here by the prosecutor’s improper questions. Reversed. 19 Johnson v. United States, 318 U. S. 189, relied upon by the Government, does not sustain its argument on this point. There the defense made no objection at all, choosing instead to rest its chances upon the verdict of the jury. Petitioner here made no such choice for he has repeatedly pressed his right to a mistrial, in the District Court, in the Court of Appeals, and here. STEWART v. UNITED STATES. 11 1 Frankfurter, J., dissenting. Mr. Justice Frankfurter, whom Mr. Justice Harlan and Mr. Justice Whittaker join, dissenting. The result which the Court draws from its account of the trial seems not unreasonable. But by force of what the Court does not relate, there is such disparity between its account and the almost nine hundred pages of the trial transcript that, in fairness, the Court’s opinion hardly conveys what took place before the jury and what must, therefore, rationally be evaluated in attributing any influence on the jury’s verdict to the questions which the Government now concedes were improperly asked. “In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.” Johnson v. United States, 318 U. S. 189, 202 (concurring opinion). What emerges from the transcript, at the outset, is that Willie Lee Stewart’s killing of Harry Honikman was practically never in issue. The testimony of two eyewitnesses who positively identified Stewart as the killer 1 was not seriously challenged. A third witness had examined in Stewart’s hands, shortly before the killing, the gun which unimpugned ballistic evidence established fired the lethal shots. The testimony of a fingerprint expert, also unimpugned, linked Stewart to the killing. Nowhere in their opening or closing statements did experienced defense counsel ask the jury to doubt that 1 Honikman’s daughter took the stand and testified at the trial. A transcription of her mother’s testimony at a previous trial, corroborating the daughter’s account of the killing, was read to the jury. 12 OCTOBER TERM, 1960. Frankfurter, J., dissenting. 366 U. S. Stewart was the killer: the whole of the defense was that Stewart was not responsible because insane. Insanity was not merely, as the Court says, Stewart’s chief defense; it was his defense. His lawyer put it aptly: “[The prosecutor] knows as well as I, as anybody in this courtroom, the only defense we have is insanity.” 2 Thus, there is not involved in this case the danger that the jury, being told as laymen of the defendant’s previous failure to testify in his own behalf, reasoned that if Stewart did not do the acts with which he was charged he would have said so. Here, those acts were not contested. If prejudice is not to be blindly assumed, but to be discovered in the record, it must be discovered by some more subtle train of associations. Stewart’s trial took the major part of six court days: twelve calendar days. The Government’s opening case, presenting the testimony of the eyewitnesses, fingerprint and ballistic experts, arresting and investigating officers, etc.—ten witnesses in all3—consumed a day and a half. Thereafter, beginning on the second court day and running into the third, the defense put in the testimony of a series of witnesses—Stewart’s cousin, landlady, friend, sister, employer, wife, neighbor, sister-in-law—all of whom recounted episodes of Stewart’s behavior tending to show his unsoundness of mind.4 These episodes spanned the period of his life from early childhood until the time of the killing, and they painted what, to say the least, is a bizarre portrait. 2 This remark was made at the bench, out of the hearing of the jury. 3 In addition to the testimony of Mrs. Honikman, that of two other witnesses was read to the jury. The remaining seven appeared at this trial. 4 Three of these eight witnesses took the stand. In the case of the other five, excerpts from their testimony at prior trials were read. STEWART v. UNITED STATES. 13 1 Frankfurter, J., dissenting. If the jury believed them, they believed, inter alia: (1) that Stewart, as a child, threw all his food on the floor, ran away from school, tore his clothes off, cut them up, roamed the house at night; (2) that Stewart’s aunts and brother were of unsound mind, in that they would often sit with saliva running out of their mouths and would never say anything; (3) that Stewart, as an adult, once shot at his wife, and sat on his wife and beat her while she was pregnant; (4) that he once punched a hole in a low ceiling with his fist for no apparent reason and, on another occasion, threw all the food out of his refrigerator and beat the refrigerator door so hard with his fists that he broke it; (5) that he locked his children out of the family’s room in cold weather; that he threatened to throw one of his children, while a baby, out of the window and threatened to throw another into a burning stove; that he would have done both if not forcibly prevented; (6) that he insisted on pushing through a boarded front door and jumping in and out of the house at a time when the porch was under repair; that he once jumped out of a window; that he threw his nephew’s toy piano out of a window; (7) that he attempted to have sexual relations with his sister-in-law in her husband’s presence; (8) that, having been told by his employer that he would get a requested pay raise, he kicked down a brick wall that he had been constructing. Following this testimony, defense counsel read to the jury portions of Stewart’s military record, revealing that a medical discharge had been recommended for Stewart after a fight with another soldier, largely on the basis of tests taken at that time which placed Stewart’s intelligence in the feeble-minded range. On the third trial day, the defendant took the stand and was examined and cross-examined briefly. His testimony occupies fifteen pages of the eight-hundred-and-eighty- 14 OCTOBER TERM, 1960. Frankfurter, J., dissenting. 366 U. S. five-page trial minutes. Let this sample of it give its quality of meaninglessness: “Q. What is your wife’s name, Willie? “A. You should ask her that. As far as I am concerned, I don’t have no wife. I don’t consider I have any; therefore, I can’t say what her name is. “Q. Have you ever been married? “A. I wouldn’t say married. “Q. What do you mean you wouldn’t say married? “A. Well, as far as I concerned, nobody is married, as far as my way of understanding. “Q. Do you have any children? “A. I don’t consider—I have none. She say I have some. I don’t have none. If she say I have some, I guess I have to leave it to her. As far as my concern, I don’t have none and I don’t want none. “Q. Do you know where you are now? “A. Looking at you, as far as I know. “Q. What is my name? “A. I don’t know. “Q. Who is your lawyer? “A. Well, I mean, I am my own lawyer, as far as my concern.” On his direct examination, Stewart testified that he did not know what kind of a building he was in, that he had never shot nobody but that the white folks told him he was supposed to kill; that he considered himself master, as far as the killing situation; that he was the monkey, the monkey with the tail; that he still remained to see that monkey with the tail; that he had been told to kill—his mind tells him to kill—and he was always going to kill until he conquered; that the good man upstairs say so; that he had talked to God and God told him to conquer everybody, that he was the master; he STEWART v. UNITED STATES. 15 1 Frankfurter, J., dissenting. hated everbody; counsel shouldn’t ask him no more. The brief cross-examination proceeded in the same vein. The prosecutor’s questions, designed less to elicit any information from the witness than to call forth some revealingly intelligent response, some sign of memory or understanding, which would show that Stewart’s apparently grave mental estrangement was a pose, evoked only wild and unresponsive answers. The cross-examination closed on the following dialogue: “Q. You can see me, can’t you, Willie? “A. Sure. You can see me, too, can’t you? We see one another. I am going to be the master and you ain’t going to stop me and nobody else. “Q. Tell me, Willie, do you know a Dr. Williams? “A. Dr. Williams? “Q. Yes, E. Y. Williams. “A. Why you keep asking me? If I told you once, I told you a hundred time, I am my own doctor. Why you keep asking me the same question over and over again. I told you I am my own doctor. “Q. Do you know a Deputy Marshal by the name of Ballinger? “A. I am my own marshal. I am everything. That takes care of the whole question. I am everything. Everything you ask me, I am talking to me, I am it. “Q. Willie, you were tried on two other occasions. “A. Well, I don’t care how many occasions, how many case—you say case. I was a case man once in a time. “Q. This is the first time you have gone on the stand, isn’t it, Willie? “A. What? “Q. This is the first time you have gone on the stand, isn’t it, Willie? 16 OCTOBER TERM, 1960. Frankfurter, J., dissenting. 366 U. S. “A. I am always the stand; I am everything, I done told you. “Mr. Smithson [the prosecutor]: That is all. “The Witness: You and nobody else going ever stop me. “The Court: Mr. Carey [defense counsel], anything further? “Mr. Carey: That is all.” Defense counsel immediately moved for a mistrial, which was denied. The defense then qualified Dr. E. Y. Williams, a psychiatrist, as an expert witness. Responsive to hypothetical questions predicated upon Stewart’s army record, the various instances of odd behavior testified to by the previous lay witnesses, and the circumstances of Honikman’s killing, Dr. Williams gave his professional opinion that Stewart was, at the time of the killing, suffering from both a mental defect and a mental disease. He explained in detail the psychiatric significance of Stewart’s intelligence quotient of sixty-five, a rating which, he told the jury, would characterize Stewart as a moron. He further typified Stewart’s mental disease as manic-depressive psychosis and, by the use of a blackboard, diagrammed and described the cyclic character of that disease. He testified that his own examination of the defendant in 1953 had yielded insufficient personal history to base a diagnosis, but that he had examined Stewart on several occasions since that time and found nothing which would change his opinion that Stewart was a manic-depressive psychotic. Dr. Williams was cross-examined at length on the afternoon of the third and the morning of the fourth days of the trial. The remaining three trial days were taken up, in large part, by the testimony of seven government witnesses put forward to rebut Stewart’s defense of insanity. Two psychiatric experts testified that they had examined STEWART v. UNITED STATES. 17 1 Frankfurter, J., dissenting. Stewart shortly after the killing in 1953 and found no mental defect or disease. A neighbor and friend of Stewart’s who had known him for six years and seen him regularly during at least three years preceding 1953 testified that, on the basis of Stewart’s conduct in his presence, he believed that Stewart was normal. An attendant at Saint Elizabeths Hospital, where Stewart had been committed during late 1957 and early 1958, described Stewart’s behavior there as that of a model patient who had caused no specific trouble, gotten along with others, played cards and checkers, been seen with a Bible, etc. A police lieutenant at the District of Columbia jail similarly related Stewart’s activities at the jail over the four years between the killing and the present trial. Through this witness there were put in evidence as exhibits portions of the jail file tending to show that Stewart had signed certain forms, made certain written requests, and sent numerous letters to his wife and sister-in-law. A third psychiatric expert, who had examined Stewart early in 1958, testified that he found no evidence of mental disease and did not regard Stewart as a mental defective. A fourth testified, on the basis of two examinations made in 1958, that the defendant was not a manic-depressive psychotic. Both of these psychiatrists agreed that Stewart was malingering at the time of their examinations. It is unnecessary to describe in greater detail here the testimony of these seven government witnesses. All were cross-examined, two of the experts at considerable length. On the sixth trial day, counsel for the Government and for the defense addressed the jury. Neither in these exhaustive closing statements nor in the court’s extended charge was any reference made to the two questions, asked several days before and, in effect, unanswered, which are now assigned as prejudicial error. The jury retired, deliberated, and found the defendant guilty. 590532 0-61 — 6 18 OCTOBER TERM, 1960. Frankfurter, J., dissenting. 366 U. S. On the totality of this record, with solicitous regard for the heavy obligation which rests upon us in a capital case, I cannot but conclude that the prosecutor’s questions concerning Stewart’s prior failures to testify are of that class of errors “which do not affect the substantial rights of the parties,” and which, therefore, this Court, by virtue of an Act of Congress, is under duty to disregard. 40 Stat. 1181 (1919), in its present form 63 Stat. 105, 28 U. S. C. § 2111. This is so in light of a number of considerations, none of which viewed in isolation might be determinative, but whose sum—in the whole context of the trial—convinces me that the Court’s conjectures of prejudice are chimerical. First, Stewart never intelligibly answered the questions. The jury was not told and did not know as a fact that he had not previously taken the stand. The Court now finds that the jury may nevertheless have inferred the information from the leading form of the prosecutor’s questions. But this conclusion should not be reached merely on the basis of the broad generalization that “such an inference will in all likelihood be drawn from leading questions of this kind.” Such an abstraction does not get us to the heart of the question before us. That question, in one aspect, is whether it is likely that this jury in the circumstances of this case drew the inference from this leading question. It is not only not likely, but overwhelmingly unlikely. The question was not pressed or persisted in by the prosecutor so as to concentrate the jury’s attention on it as an assertion of fact. It was once repeated—when Stewart asked “What?”—and then dropped. It was asked in a setting in which it is not to be assumed, because most improbable, that the jury took in and paid heed to the content of the prosecutor’s questions as such, particularly the one now so inflated in importance. On the STEWART v. UNITED STATES. 19 1 Frankfurter, J., dissenting. stand was a witness who had just testified that he was the master and the monkey with the tail and that he had been told by God to conquer and kill. His responses appeared raving and incoherent. The only significance of his testimony, of course, was his demeanor, and it was upon the manner and character of his responses, not upon the subjects inquired into, that the jury can plausibly be supposed to have focused. The offending question followed a series of others—“You can see me, can’t you, Willie?” “. . . Willie, do you know a Dr. Williams?” “Do you know a Deputy Marshal by the name of Ballinger?”—which had absolutely no significance of content, except insofar as they prodded the witness to respond. There is no reason to think that the jury could have regarded the questions concerning previous failure to testify any differently, or attributed special significance to them. In any event, assuming that the jury were given to pondering subtle inferences in the face of this manifest madman, they could have learned no more from the prosecutor’s questions than what Stewart’s own counsel had already elicited. The jury knew that this defendant had been tried before because testimony from prior trials had been read to them. Yet defense counsel asked Stewart on direct examination: “Have you ever taken an oath?” and Stewart answered: “Not that I knows of.” Even had the jurors not been absorbed by the eyecatching spectacle of Stewart on the stand, and even had the unanswered questions been answered, the inference attributed to the jury by the Court would hardly have been a probable one. For the prejudice which the Court conceives does not arise from the simple knowledge that Stewart had not previously testified. It arises only upon the supposition that the jury indulged conjectures concerning the reasons for his not testifying, and upon the 20 OCTOBER TERM, 1960. Frankfurter, J., dissenting. 366 U. S. further supposition that, in the course of those conjectures, it rejected alternatives favorable to the defense—for example, that Stewart, being insane, capriciously refused to go on the stand—and fixed on the explanation that Stewart was sane at the time of the earlier trials. Perhaps, were there nothing else in this case, this chain of suppositions might be entertainable. But the weakness of its links is one more factor making it implausible to find prejudice here. Finally, these two concededly impermissible questions—more accurately, a single question once repeated at the witness’ request—must be viewed in the perspective of the proceedings as a whole. Asked and left unanswered on the third day of a six-day trial at which eighteen witnesses testified and the testimony of eight more was read to the jury, the questions were never again adverted to. They had been preceded by a series of what the jury cannot but have found startling accounts of Stewart’s behavior, were contemporaneous with a glaring display of the symptoms of madness, and were followed by a two-day battle of expert witnesses—one accoutered with blackboard and chalk—all addressed to the question of Stewart’s sanity. It weaves solidities out of gossamer assumptions to attribute to fleeting and argumentative implications of fact in a leading question an impact so ponderous as to discredit and reverse a jury’s verdict in the context of a record that impressively carries the contrary meaning. The jury was not left to pick at such threads in order to weave the cords of its verdict. On both sides—by both the prosecution and the defense— strong, heavy cables were furnished it. To suppose that, even if noticed when asked and made the occasion of implausible deductions, these questions amounted to more than a whisper drowned in the compulsion of ear-resounding testimony, seems to me a striking example of pursuing a quest for error. STEWART v. UNITED STATES. 21 1 Frankfurter, J., dissenting. More than a half-century ago, William H. Taft, reflecting his wide experience even before he became Chief Justice, laid this charge at the door of the courts: . . The . . . disposition on the part of the courts to think that every provision of every rule of law in favor of the defendant is one to be strictly enforced, and even widened in its effect in the interest of the liberty of the citizen, has led courts of appeal to a degree of refinement in upholding technicalities in favor of defendants, and in reversing convictions that render one who has had practical knowledge of the trial of criminal cases most impatient. “. . . When a court of highest authority in this country thus interposes a bare technicality between a defendant and his just conviction, it is not too much to charge some of the laxity in our administration of the criminal law to a proneness on the part of courts of last resort to find error and to reverse judgments of conviction.” 5 I am convinced that today’s decision falls within these weighty strictures. To explain the jury’s rejection of Stewart’s sole defense of insanity, with its consequent finding of guilt, on the ground, as a matter of assumption, that the jury was influenced by the two questions on which the verdict is reversed here, is to show less respect for the jury system than do the opponents of the system.6 One does not have to accept all the encomia which opinions of this Court have showered on the jury’s functions and values, not to attribute fecklessness to the twelve men and women chosen to sit in this murder case. To make 5 Taft, The Administration of Criminal Law, 15 Yale L. J. 1, 15 (1905). 6 See, e. g., Frank, Courts on Trial (1949), cc. VIII, IX. 22 OCTOBER TERM, 1960. Clark, J., dissenting. 366 U.S. such attribution is to be unconsciously betrayed, as sophisticates sometimes are, into a depreciation of the capacities of the run of men. I dissent from the judgment of the Court. Mr. Justice Clark, with whom Mr. Justice Whittaker joins, dissenting. It may be that Willie Lee Stewart “had an intelligence level in the moronic class,” but he can laugh up his sleeve today for he has again made a laughingstock of the law. This makes the third jury verdict of guilt—each with a mandatory death penalty—that has been set aside since 1953. It was in that year that Willie walked into Harry Honikman’s little grocery store here in Washington, bought a bag of potato chips and a soft drink, consumed them in the store, ordered another bottle of soda, and then pulled out a pistol and killed Honikman right before the eyes of his wife and young daughter. The verdict is now set aside because of some hypotheticals as to what the jury might have inferred from a single question asked Willie as to whether he had testified at his other trials. In my view, none of these conjectures is sufficiently persuasive to be said to cast doubt on the validity of the jury’s determination. Let us first review the setting of the fatal question in the trial. The jury heard evidence for six days and from some 26 witnesses. The printed record here, which is only partial, consists of 400 pages. Willie Stewart’s “gibberish” comprises nine pages, representing perhaps some 20 minutes of testimony. It came during the third day of the trial. Mr. Carey, Willie’s counsel, had placed him on the stand. He had asked on direct examination, “Have you ever taken an oath?” Willie replied, “Not that I knows of.” Willie was also asked by his counsel, “Did you ever stand trial before this trial for the murder of Harry Honikman?” He answered, “Well, you talk. You STEWART v. UNITED STATES. 23 1 Clark, J., dissenting. just go ahead and explain yourself. Have you ever stand trial? Go ahead. Don’t ask me. I don’t know.” Mr. Carey had not represented Willie on the other trials. Carey then asked, “Were you ever tried for first degree murder before this time?” And Willie replied, “I ain’t never been tried. I ain’t never been tried.” With these openings made by Carey, the Government, on cross-examination, asked the same questions. No issue is made of the examination relating to the fact of prior trials. Then came the question which has brought on this reversal: “This is the first time you have gone on the stand, isn’t it, Willie?” There was no objection. Willie answered, “What?” And the Government’s counsel again asked the same question in identical words. Still there was no objection. Willie answered: “I am always the stand; I am everything, I done told you.” Thereafter Willie was excused as a witness, whereupon his counsel approached the bench and made his motion for mistrial. He asked for no curative instruction. Counsel had set his trap, lain in wait and was now demanding all or nothing. The demand for a mistrial was denied. A government witness then testified that on the very night of the murder Willie was playing cards, that he exhibited the pistol used in the slaying to one of the players, that he left the card game before the hour of the murder, and that he returned to the card game after the hour of the murder and continued playing cards until about 2 a. m. This witness testified, “he [Willie] seemed normal to me.” This was followed by testimony of an aide at St. Elizabeths Hospital and a guard at the District jail as to his conduct all during the period after his arrest up until a few weeks before his third trial. All said that he was perfectly normal; that he talked freely and understood the conversation; that he used a Bible and a dictionary, played bid whist and checkers and was a “model” patient or prisoner. His jail file revealed that 24 OCTOBER TERM, 1960. Clark, J., dissenting. 366 U. S. he mailed letters to his wife and sister-in-law, both of whom testified in his behalf, during April, October and November, 1953; July, August, September and October 1954; October, November and December, 1955; January, February and March, 1956; and October, November and December, 1957; and forwarded his wife $10 on each of two occasions, once in 1954 and the other in 1955. On several occasions he sent memo requests for conferences with jail officials. He asked for work to pass the time while in the District jail and actually put in many hours working day-in and day-out during the time of his custody. He first did cleaning, then plumbing, and finally was continually engaged in painting cell blocks throughout the jail. In 1957 his son was ill and he requested permission, which was granted, to visit him in custody. These witnesses all related that Willie “acted normal” during this period. In fact, his only expert witness, a psychiatrist, testified that he could not decide in June 1953 when he examined Willie whether or not he was suffering from a mental disease. However, he stated that after talking with Willie’s sister-in-law and hearing the story of Willie’s background, he decided that Willie suffered a manic-depressive psychosis. The three government psychiatrists, two of whom examined him in March 1953, found him “perfectly normal.” He answered their questions freely, went through various tests cooperatively and was found to be in “average normal range of intelligence.” Each agreed that Willie was later malingering, i. e., feigning mental illness. This began shortly before his third trial. In addition, Willie had served two enlistments in the Army before 1953. On discharge he was found “illiterate but mentally adequate.” In the light of this testimony, I find the hypotheses of the Court, with due deference, entirely unrealistic, if not STEWART v. UNITED STATES. 25 1 Clark, J., dissenting. completely absurd. The crucial date was the time of the killing, 1953, not the date of the third trial, 1958. Despite this and the uncontradicted evidence, detailed above, of Willie’s normality all during the period 1953-1958, the Court assumes that, from the asking of the question by the prosecutor, the jury believed that Willie had not testified in the two prior trials and therefore the jury “might” have inferred that (1) Willie “elected to feign this ‘testimony’ [gibberish] out of desperation brought on by his failure to gain acquittal” previously; or (2) the jury “might have thought” Willie suffered from a mental disease but “concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide”; or (3) the jury “might have thought” that the condition was worsening as indicated by his action at the trial. In the first place, it seems to me a violent assumption to say that the jury believed, solely from the Government’s question on cross-examination, that Willie had not testified at the prior trials, especially since he had already testified in response to a query from his own counsel on direct examination that he had never been under oath. Moreover, in opening up the issue of prior trials, the defense counsel was obviously trying to leave the impression with the jury that they had not concluded in guilty verdicts. When he received answers such as “you talk”— “You just go ahead and explain”—“Don’t ask me,” he repeated the question. And the government counsel got like answers to his questions: “I don’t care how many occasions,” etc. And the answer to the question found prejudicial was first a “What?” and upon its repetition, “I am always the stand.” Using the majority’s speculative approach, it is the more likely that the jury thought from those questions that the previous trials resulted in hung 26 OCTOBER TERM, 1960. Clark, J., dissenting. 366 U.S. juries and never speculated upon the nice distinctions the Court makes as to Willie’s demeanor.* The uncontradicted evidence was that he was a faker. They needed no inference to so conclude. Discounting the speculative effects of his own counsel’s question on oaths, and the Government’s question on testifying, his answers themselves might well have led the jury to believe that he did testify on the previous trials. In any event, a simple instruction to the jury to consider this trial alone, to strike out of its minds and give no consideration whatever to any reference to a former trial or to any event or thing that might or might not have happened there, would have certainly been sufficient. But Willie did not ask for this. He wanted “all or none” and the Court is giving him “all.” But, returning to the hypotheses, whether or not Willie “elected” to feign his testimony was not the question. The jury’s concern was whether he did feign it, and the uncontradicted testimony was that he did so. Secondly, the only testimony as to Willie’s activity on the very night of the killing was that of the card player. He stated that Willie “seemed normal to me.” How the jury might infer from the prosecutor’s question that Willie had a mental disease but it was inactive at the time of the murder is beyond me. Every witness testified to the contrary—save one psychiatrist—and even he said that his examination of Willie was inconclusive. The jury knew it had been five years since the killing and that both lay and medical evidence—uncontradicted—was that Willie was normal during all that period. Lastly, as to the disease worsening, that possibility had no relevancy to the condition in 1953 at the time of the killing. *If there was any impression relating to Willie’s failure to take the stand in prior trials, it was surely due to the questioning by his own counsel on the issue of oaths. STEWART v. UNITED STATES. 27 1 Clark, J., dissenting. I might add that, as I read the Government’s brief, it conceded only that the question asked Willie “was of but negligible importance to the government’s case.” The sole issue, it said, was whether the question was prejudicial. This does not license the Court to find other and further concessions as to the Raffel and Grunewald cases. Nor do I find the Government contending, in its point that no prejudice resulted from the question, that “the jury may not even have heard the improper question.” To so state its attitude makes the Government appear ridiculous. Its true position was that one could not assume, as the Court does, that “the jury noted and focused attention on a question given so little emphasis that it was overlooked by the trial judge.” I add that in the light of the long trial, the uncontradicted evidence as to Willie’s malingering and the fact that the question was never mentioned again during the remaining three days of the trial, the jury did not need, nor as a matter of relevancy was it able, to go through the mental gymnastics the Court supposes. I note that the Court does adopt one point made by the Government. It says “that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case.” I, too, agree with that, but in view of the Court’s approach I would add that its regret is tempered by its willingness to indulge in such hypothesizing as to effectively remove from our law the concept of harmless error in capital cases. 28 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. GOLDBERG, SECRETARY OF LABOR, v. WHITAKER HOUSE COOPERATIVE, INC, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 274. Argued March 30, 1961.—Decided April 24, 1961. Respondent is a cooperative incorporated to manufacture, sell and deal in knitted, crocheted and embroidered goods. Its members make such goods in their homes and deliver them to the cooperative, which pays them periodically “an advance allowance” pending sale of the goods and distribution of any net proceeds to the members. The members manufacture what the cooperative desires, receive the compensation it dictates, and may be expelled from membership for substandard work or failure to obey the cooperative’s regulations. Held: The cooperative is an “employer” and its members are “employees” within the meaning of § 3 of the Fair Labor Standards Act of 1938, as amended, and the cooperative is subject to the minimum-wage and record-keeping provisions of the Act and the regulations prescribed by the Administrator under § 11 (d) “to prevent the circumvention or evasion of and to safeguard the minimum wage rate” prescribed by the Act. Pp. 28-33. 275 F. 2d 362, reversed. Bessie Margolin argued the cause for petitioner. With her on the briefs were former Solicitor General Rankin, Solicitor General Cox, Harold C. Nystrom, Charles Donahue and Sylvia S. Ellison. Philip S. Bird argued the cause for respondents. With him on the brief was Cyril M. Joly. Mr. Justice Douglas delivered the opinion of the Court. Respondent cooperative was organized in 1957 under the laws of Maine; and we assume it was legally organized. The question is whether it is an “employer” and its members are “employees” within the meaning of the Fair Labor Standards Act of 1938, § 3, 52 Stat. 1060, as GOLDBERG v. WHITAKER HOUSE COOP. 29 28 Opinion of the Court. amended, 29 U. S. C. § 203. The question is raised by a suit filed under § 17 of the Act by petitioner to enjoin respondent from violating the provisions of the Act concerning minimum wages (§6), record-keeping (§ 11 (c)) and the regulation of industrial homework (§11 (d)). And see §15 (a)(5). The District Court denied relief. 170 F. Supp. 743. The Court of Appeals affirmed by a divided vote. 275 F. 2d 362. The case is here on a petition for certiorari which we granted (364 U. S. 861) because of the importance of the problem in the administration of the Act. The corporate purpose of the respondent as stated in its articles is to manufacture, sell, and deal in “knitted, crocheted, and embroidered goods of all kinds.” It has a general manager and a few employees who engage in finishing work, i. e., trimming and packaging. There are some 200 members who work in their homes. A homeworker who desires to become a member buys from respondent a sample of the work she is supposed to do, copies the sample, and submits it to respondent. If the work is found to be satisfactory, the applicant can become a member by paying $3 and agreeing to the provisions of the articles and bylaws. Members were prohibited from furnishing others with articles of the kind dealt in by respondent.1 They are required to remain members at least a year. They may, however, be expelled at any time by the board of directors if they violate any rules or regulations or if their work is substandard.2 Members are not liable for respondent’s debts; they may not be 1 This provision of the bylaws was purportedly removed by a vote at the annual meeting of June 26, 1958, though a quorum was not present at the meeting. See Mitchell v. Whitaker House Cooperative, Inc., 170 F. Supp., at 749, n. 7, 8; 751. 2 An expulsion may be appealed by filing a petition “to be acted upon by the members at the next meeting.” Cf. Me. Rev. Stat., c. 56, § 16. 30 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. assessed; each has one vote; their certificates are not transferrable; each member can own only one membership; no dividends or interest is payable on the certificate “except in the manner and limited amount” provided in the bylaws. The bylaws provide that “excess receipts” are to be applied (1) to writing off “preliminary expenses”; (2) to “necessary depreciation reserves”; (3) to the establishment of a “capital reserve.” The balance may be used in the discretion of the board of directors “for patronage refunds which shall be distributed according to the percentage of work submitted to the Cooperative for sale.” Members are paid every month or every other month for work submitted for sale on a rate-per-dozen basis. This payment is considered to be “an advance allowance” until there is a distribution of “excess receipts” to the members “on the basis of the amount of goods which each member has submitted to [respondent] for sale.” By § 11 (d) of the Act the Administrator is authorized to make “such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to prevent the circumvention or evasion of and to safeguard the minimum wage rate prescribed in this Act.” Section 11 (d) was added in 1949 3 and provides that “all existing regulations or orders of the Administrator relating to industrial homework are hereby continued in full force and effect.” These Regulations 4 provide that no industrial homework, such as respondent’s members do, shall be done “in or about a home, apartment, tenement, or room in a residential establishment unless a special homework certificate” 5 has been issued. Respondent’s members have no 3 Fair Labor Standards Amendments of 1949, § 9, 63 Stat. 910, 916. 4 See 29 CFR §§ 530.1-530.12. 5 Id., § 530.2. GOLDBERG v. WHITAKER HOUSE COOP. 31 28 Opinion of the Court. such certificates; and the question for us is whether its operations are lawful without them and without compliance by respondent with the other provisions of the Act. These Regulations have a long history. In 1939, shortly after the Act was passed, bills were introduced in the House to permit homeworkers to be employed at rates lower than the statutory minimum.6 These amendments were rejected.7 Thereupon the Administrator issued regulations governing homeworkers;8 and we sustained some of them in Gemsco, Inc., v. Walling, 324 U. S. 244, decided in 1945. In 1949 the House adopted an amendment which would have exempted from the Act a large group of homeworkers.9 The Senate bill contained no such exemption; and the Conference Report rejected the exemption.10 Instead, § 11 (d) was added, strengthening the authority of the Administrator to restrict or prohibit homework.11 Still later respondent was organized ; and, as we have said, it made no attempt to comply with these homework regulations. We think we would be remiss, in light of this history, if we construed the Act loosely so as to permit this homework to be done in ways not permissible under the Regulations. By § 3 (d) of the Act an “employer” is any person acting “in the interest of an employer in relation to an employee.” By § 3 (e) an “employee” is one “employed” by an employer. By § 3 (g) the term employ 6 See H. R. Rep. No. 522, 76th Cong., 1st Sess., p. 10; 86 Cong. Rec. 4924, 5122. 7 86 Cong. Rec. 5499; see also the remarks of Mr. Zimmerman, id., at 5136, and of Mr. Hook, id., at 5224-5225. 8 The Knitted Outerwear Wage Order, which covers the industry in which respondent is engaged, was issued April 4, 1942. See 7 Fed. Reg. 2592. 9 95 Cong. Rec. 11209-11210. 10 H. R. Rep. No. 1453, 81st Cong., 1st Sess. 11 95 Cong. Rec. 14927. 32 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. “includes to suffer or permit to work.” We conclude that the members of this cooperative are employees within the meaning of the Act. There is no reason in logic why these members may not be employees. There is nothing inherently inconsistent between the coexistence of a proprietary and an employment relationship. If members of a trade union bought stock in their corporate employer, they would not cease to be employees within the conception of this Act. For the corporation would “suffer or permit” them to work whether or not they owned one share of stock or none or many. We fail to see why a member of a cooperative may not also be an employee of the cooperative. In this case the members seem to us to be both “members” and “employees.” It is the cooperative that is affording them “the opportunity to work, and paying them for it,” to use the words of Judge Aldrich, dissenting below. 275 F. 2d, at 366. However immediate or remote their right to “excess receipts” may be,12 they work in the same way as they would if they had an individual proprietor as their employer.13 The members are not self-employed; nor are they independent, selling their products on the market for whatever price they can command. They are regimented under one organization, manufacturing what the organization desires and receiving the compensation the organization dictates.14 Apart from formal differences, 12 There has been no distribution of “excess receipts” to the members. The evidence is that respondent could survive “as a financially solvent enterprise only by doubling its present gross income.” As of the date of the trial, respondent was in arrears even as respects what it owed its managerial employees. See 170 F. Supp., at 751. 13 See Mitchell n. Law, 161 F. Supp. 795. 14 When the cooperative desired to reduce its inventory and the rate of production of its members, it withheld the “advance allowances.” GOLDBERG v. WHITAKER HOUSE COOP. 33 28 Whittaker, J., dissenting. they are engaged in the same work they would be doing whatever the outlet for their products. The management fixes the piece rates at which they work; the management can expel them for substandard work or for failure to obey the regulations. The management, in other words, can hire or fire the homeworkers. Apart from the other considerations we have mentioned, these powers make the device of the cooperative too transparent to survive the statutory definition of “employ” and the Regulations governing homework. In short, if the “economic reality” rather than “technical concepts” is to be the test of employment {United States v. Silk, 331 U. S. 704, 713; Rutherford Food Corp. v. McComb, 331 U. S. 722, 729), these homeworkers are employees. Reversed. Mr. Justice Whittaker, with whom Mr. Justice Brennan and Mr. Justice Stewart join, dissenting. It is clear and undisputed that the Fair Labor Standards Act does not apply in the absence of an employeremployee relationship. Here, upon what seems to me to be ample evidence, the District Court found that the cooperative was created and is being operated as a true cooperative under the laws of Maine, 170 F. Supp. 743, and, on appeal, the Court of Appeals approved those findings. 275 F. 2d 362. Unless those findings are clearly erroneous, they must be accepted here. Fed. Rules Civ. Proc, 52 (a), 28 U. S. C. Accepting them excludes any notion that the cooperative was formed or availed of as a “device” to circumvent the Act. It is not seriously contended here that these findings of the two courts below were “clearly erroneous,” but rather the Government’s principal contention is that the bona tides of the cooperative are immaterial. 590532 0-61—7 34 OCTOBER TERM, 1960. Whittaker, J., dissenting. 366 U. S. Doubtless, even a true cooperative may have employees. But surely a true cooperative does not automatically become the “employer” of its “members” in the commonly understood sense of those terms, nor, hence, in their sense as used in subparagraphs (d) and (e) of § 3 of the Act, 29 U. S. C. § 203 (d) and (e). Something more is required. For the Act to apply, the cooperative must in a fair sense “employ” its “members.” Like the two courts below, I think it may not fairly be said, on this record, that there is any evidence that the cooperative ever did “employ” its “members,” or suffer or permit them to work for it. Instead, the evidence shows, as the two courts below found and as I read it, that each member worked for herself—in her own home when and as she chose—toward the production of knitted articles which she marketed through her cooperative, receiving immediately “an advance” thereon, and ultimately—after payment of her portion of the cooperative’s “expenses” and setting up its “necessary depreciation [and capital] reserves”—the balance of the proceeds of sale would “be distributed [to her] according to the percentage of work [she] submitted to the Cooperative for sale.” Like the two courts below, I fail to see in this any element of employment by the cooperative of its members. If, as seems practically inevitable in the light of the Court’s judgment, the cooperative must now be dissolved, will not its assets, including its “depreciation [and capital] reserves” as well as its “excess receipts,” have to be refunded to its members “according to the percentage of work submitted [by them respectively] to the Cooperative for sale,” and not according to their memberships or investments, just as required by the Maine statute and the cooperative’s articles? This seems wholly inconsistent with any notion that the members were employees of the cooperative or that they were suffered to work for it, or that it bought or paid them for their knitted articles. GOLDBERG v. WHITAKER HOUSE COOP. 35 28 Whittaker, J., dissenting. On the basis of the amply supported findings of the two courts below, it seems reasonably clear that the cooperative never did “employ” its “members,” and inasmuch as the Act does not apply in the absence of an employment relationship, I think the judgment of the two courts below is consonant with the facts and the law and should be affirmed. 36 OCTOBER TERM, 1960. Syllabus. 366 U. S. KONIGSBERG v. STATE BAR OF CALIFORNIA et al. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. No. 28. Argued December 14, 1960.—Decided April 24, 1961. Under California law, the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. In hearings by that Committee on his application for admission to the Bar, petitioner refused to answer any questions pertaining to his membership in the Communist Party, not on the ground of possible self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee’s authority and infringed rights of free thought, association and expression assured him under the State and Federal Constitutions. The Committee declined to certify him as qualified for admission to the Bar on the ground that his refusals to answer had obstructed a full investigation into his qualifications. The State Supreme Court denied him admission to practice. Held: Denial of petitioner’s application for admission to the Bar on this ground did not violate his rights under the Fourteenth Amendment. Pp. 37-56. (a) The State’s refusal to admit petitioner to practice on the ground that his refusal to answer the Committee’s questions had thwarted a full investigation into his qualifications was not inconsistent with this Court’s decision in Konigsberg v. State Bar, 353 U.S. 252. Pp. 40-44. (b) The Fourteenth Amendment’s protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to answer questions having a substantial relevance to his qualifications; and California’s application of such a rule in this instance cannot be said to have been arbitrary or discriminatory. Pp. 44-49. (c) Petitioner was not privileged to refuse to answer questions concerning membership in the Communist Party on the ground that they impinged upon rights of free speech and association protected by the Fourteenth Amendment. Speiser v. Randall, 357 U. S. 513, distinguished. Pp. 49-56. 52 Cal. 2d 769, 344 P. 2d 777, affirmed. KONIGSBERG v. STATE BAR. 37 36 Opinion of the Court. Edward Mosk argued the cause for petitioner. With him on the brief was Sam Rosenwein. Frank B. Belcher argued the cause for respondents. With him on the brief was Ralph E. Lewis. Briefs of amici curiae, urging reversal, were filed by David Scribner, Leonard B. Boudin, Ben Margolis, William B. Murrish and Charles Stewart for the National Lawyers Guild; A. L. Wirin, Fred Okrand and Hugh R. Manes for the American Civil Liberties Union of Southern California; and Robert L. Brock, Pauline Epstein, Robert W. Kenny, Hugh R. Manes, Ben Margolis, Daniel G. Marshall, William B. Murrish, John McTernan, Maynard Omerberg, Alexander Schullman and David Sokol on behalf of themselves and certain other members of the California Bar. Mr. Justice Harlan delivered the opinion of the Court. This case, involving California’s second rejection of petitioner’s application for admission to the state bar, is a sequel to Konigsberg v. State Bar, 353 U. S. 252, in which this Court reversed the State’s initial refusal of his application. Under California law the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. Cal. Bus. & Prof. Code § 6064. To qualify for certification an applicant must, among other things, be of “good moral character,” id., § 6060 (c), and no person may be certified “who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means . . . .” Id., § 6064.1. The Committee is empowered and required to ascertain the qualifications of all candidates. Id., § 6046. Under rules prescribed by the Board of Governors of the State Bar, an applicant before 38 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. the Committee has “the burden of proving that he is possessed of good moral character, of removing any and all reasonable suspicion of moral unfitness, and that he is entitled to the high regard and confidence of the public.” Id., Div. 3, c. 4, Rule X, § 101. Any applicant denied certification may have the Committee’s action reviewed by the State Supreme Court. Id., § 6066. In 1953 petitioner, having successfully passed the California bar examinations, applied for certification for bar membership. The Committee, after interrogating Konigsberg and receiving considerable evidence as to his qualifications, declined to certify him on the ground that he had failed to meet the burden of proving his eligibility under the two statutory requirements relating to good moral character and nonadvocacy of violent overthrow. That determination centered largely around Konigsberg’s repeated refusals to answer Committee questions as to his present or past membership in the Communist Party.1 The California Supreme Court denied review without opinion. See 52 Cal. 2d 769, 770, 344 P. 2d 777, 778. On certiorari this Court, after reviewing the record, held the state determination to have been without rational support in the evidence and therefore offensive to the Due Process Clause of the Fourteenth Amendment. Konigsberg v. State Bar, supra. At the same time the Court declined to decide whether Konigsberg’s refusals to answer could constitutionally afford “an independent ground for exclusion from the Bar,” considering that such an issue was not before it. Id., 259-262. The case was remanded 1 Konigsberg rested his refusals, not on any claim of privilege against self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee’s authority, and infringed rights of free thought, association, and expression assured him under the State and Federal Constitutions. He affirmatively asserted, however, his disbelief in violent overthrow of government. KONIGSBERG v. STATE BAR. 39 36 Opinion of the Court. to the State Supreme Court “for further proceedings not inconsistent with this opinion.” Id., 274. On remand petitioner moved the California Supreme Court for immediate admission to the bar. The court vacated its previous order denying review and referred the matter to the Bar Committee for further consideration. At the ensuing Committee hearings Konigsberg introduced further evidence as to his good moral character (none of which was rebutted), reiterated unequivocally his disbelief in violent overthrow, and stated that he had never knowingly been a member of any organization which advocated such action. He persisted, however, in his refusals to answer any questions relating to his membership in the Communist Party. The Committee again declined to certify him, this time on the ground that his refusals to answer had obstructed a full investigation into his qualifications.2 The California Supreme Court, by a divided vote, refused review, and also denied Konigsberg’s motion for direct admission to practice.3 52 Cal. 2d 769, 2 The Committee made the following findings relevant to the issues now before us: “(1) That the questions put to the applicant by the Committee concerning past or present membership in or affiliation with the Communist Party are material to a proper and complete investigation of his qualifications for admission to practice law in the State of California. “(2) That the refusal of applicant to answer said questions has obstructed a proper and complete investigation of applicant’s qualifications for admission to practice law in the State of California.” 3 The essence of the state court’s decision 'appears in the following extracts from its opinion: "... The committee action now before us contains no findings or conclusion that petitioner had failed to establish either his good moral character or his abstention from advocacy of overthrow of the government. “Here it is the refusal to answer material questions which is the basis for denial of certification. . . . [Note 3 continued on p. JO.] 40 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. 344 P. 2d 777. We again brought the case here. 362 U. S.910. Petitioner’s contentions in this Court in support of reversal of the California Supreme Court’s order are reducible to three propositions: (1) the State’s action was inconsistent with this Court’s decision in the earlier Konigsberg case; (2) assuming the Committee’s inquiries into Konigsberg’s possible Communist Party membership were permissible, it was unconstitutionally arbitrary for the State to deny him admission because of his refusals to answer; and (3) in any event, Konigsberg was constitutionally justified in refusing to answer these questions. I. Consideration of petitioner’s contentions as to the effect of this Court’s decision in the former Konigsberg case requires that there be kept clearly in mind what is entailed in California’s rule, comparable to that in many States, that an applicant for admission to the bar bears the burden of proof of “good moral character”4—a “. . . [T]o admit applicants who refuse to answer the committee’s questions upon these subjects would nullify the concededly valid legislative direction to the committee. Such a rule would effectively stifle committee inquiry upon issues legislatively declared to be relevant to that issue.” Id., at 772, 774, 344 P. 2d, at 779, 780. Justice Traynor dissented on the ground that the California Supreme Court, not being required by statute to exclude bar applicants on the sole ground of their refusal to answer questions concerning possible advocacy of the overthrow of government, should not adopt such an exclusionary rule, at least where the Committee of Bar Examiners has not come forward with some evidence of advocacy. He declined to reach constitutional issues. Justice Peters dissented on federal constitutional grounds and in the belief that this Court’s decision in the first Konigsberg case required immediate admission of the applicant. Chief Justice Gibson did not participate in the decision. 4 All of the 50 States, as well as Puerto Rico and the District of Columbia, prescribe qualifications of moral character as precondi- KONIGSBERG v. STATE BAR. 41 36 Opinion of the Court. requirement whose validity is not, nor could well be, drawn in question here.5 Under such a rule an applicant must initially furnish enough evidence of good character to make a prima facie case. The examining Committee then has the opportunity to rebut that showing with evidence of bad character. Such evidence may result from the Committee’s own independent investigation, from an applicant’s responses tions for admission to the practice of law. See West Publishing Co., Rules for Admission to the Bar (35th ed. 1957); Survey of the Legal Profession, Bar Examinations and Requirements for Admission to the Bar (1952); Jackson, Character Requirements for Admission to the Bar, 20 Fordham L. Rev. 305 (1951); Annot., 64 A. L. R. 2d 301 (1959). The burden of demonstrating good moral character is regularly placed upon the bar applicant. Ex parte Montgomery, 249 Ala. 378, 31 So. 2d 85; In re Stephenson, 243 Ala. 342, 10 So. 2d 1; Application of Courtney, 83 Ariz. 231, 319 P. 2d 991; Ark. Stat. Ann., 1947, §§ 25-101, 25-103; Spears v. State Bar, 211 Cal. 183, 294 P. 697; O’Brien’s Petition, 79 Conn. 46, 63 A. 777; In re Durant, 80 Conn. 140, 147, 67 A. 497; Del. Sup. Ct. Rule 31 (1) (A) (a), (2) (A) (a); Coleman v. Watts, 81 So. 2d 650 (Fla.) (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); Gordon v. Clinkscales, 215 Ga. 843, 114 S. E. 2d 15; In re Latimer, 11 Ill. 2d 327, 143 N. E. 2d 20 (semble); Rosencranz v. Tidrington, 193 Ind. 472, 141 N. E. 58; In re Meredith, 212 S. W. 2d 456 (Ky.); In re Meyerson, 190 Md. 671, 59 A. 2d 489 (semble); Matter of Keenan, 313 Mass. 186, 47 N. E. 2d 12; Application of Smith, 220 Minn. 197, 19 N. W. 2d 324 (semble); On Application for Attorney’s License, 21 N. J. L. 345; Application of Cassidy, 268 App. Div. 282, 51 N. Y. S. 2d 202, aff’d, 296 N. Y. 926, 73 N. E. 2d 41; Application of Farmer, 191 N. C. 235, 131 S. E. 661; In re Weinstein, 150 Ore. 1, 42 P. 2d 744; State ex rel. Board v. Poyntz, 152 Ore. 592, 52 P. 2d 1141 (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); In the Matter of Eary, 134 W. Va. 204, 58 S. E. 2d 647 (semble). 5 For reasons given later (pp. 55-56, infra), we need not decide whether California’s burden-of-proof rule could constitutionally be applied, as it was by the Committee after the first Konigsberg proceedings, to the requirement of nonadvocacy of violent overthrow. 42 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. to questions on his application form, or from Committee interrogation of the applicant himself. This interrogation may well be of decisive importance for, as all familiar with bar admission proceedings know, exclusion of unworthy candidates frequently depends upon the thoroughness of the Committee’s questioning, revealing as it may infirmities in an otherwise satisfactory showing on his part. This is especially so where a bar committee, as is not infrequently the case, has no means of conducting an independent investigation of its own into an applicant’s qualifications. If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission to the applicant, just as in an ordinary suit a plaintiff may fail in his case because he has not met his burden of proof. In the first Konigsberg case this Court was concerned solely with the question whether the balance between the favorable and unfavorable evidence as to Konigsberg’s qualifications had been struck in accordance with the requirements of due process. It was there held, first, that Konigsberg had made out a prima facie case of good character and of nonadvocacy of violent overthrow, and, second, that the other evidence in the record could not, even with the aid of all reasonable inferences flowing therefrom, cast such doubts upon petitioner’s prima facie case as to justify any finding other than that these two California qualification requirements had been satisfied.6 In assessing the significance of Konigsberg’s refusal to answer questions as to Communist Party membership, the Court dealt only with the fact that this refusal could not provide any reasonable indication of a character not meet- 6 The Court assumed, but did not discuss, the constitutionality of California’s burden-of-proof rule as applied to the nonadvocacy-of-forcible-overthrow requirement of the California statute. KONIGSBERG v. STATE BAR. 43 36 Opinion of the Court. ing these two standards for admission. The Court did not consider, but reserved for later decision, all questions as to the permissibility of the State treating Konigsberg’s refusal to answer as a ground for exclusion, not because it was evidence from which substantive conclusions might be drawn, but because the refusal had thwarted a full investigation into his qualifications. See 353 U. S, at 259-262. The State now asserts that ground for exclusion, an issue that is not foreclosed by anything in this Court’s earlier opinion which decided a quite different question. It is equally clear that the State’s ordering of the rehearing which led to petitioner’s exclusion manifested no disrespect of the effect of the mandate in that case, which expressly left the matter open for further state proceedings “not inconsistent with” the Court’s opinion. There is no basis for any suggestion that the State in so proceeding has adopted unusual or discriminatory procedures to avoid the normal consequences of this Court’s earlier determination. In its earlier proceeding, the California Bar Committee may have found further investigation and questioning of petitioner unnecessary when, in its view, the applicant’s prima facie case of qualifications had been sufficiently rebutted by evidence already in the record. While in its former opinion this Court held that the State could not constitutionally so conclude, it did not undertake to preclude the state agency from asking any questions or from conducting any investigation that it might have thought necessary had it known that the basis of its then decision would be overturned. In recalling Konigsberg for further testimony, the Committee did only what this Court has consistently held that federal administrative tribunals may do on remand after a reviewing court has set aside agency orders as unsupported by requisite findings of fact. Federal Communications 44 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134; Fly v. Heitmeyer, 309 U. S. 146. In the absence of the slightest indication of any purpose on the part of the State to evade the Court’s prior decision, principles of finality protecting the parties to this state litigation are, within broad limits of fundamental fairness, solely the concern of California law. Such limits are broad even in a criminal case, see Bryan v. United States, 338 U. S. 552; Hoag v. New Jersey, 356 U. S. 464; cf. Palko v. Connecticut, 302 U. S. 319, 328. In this instance they certainly have not been transgressed by the State’s merely taking further action in this essentially administrative type of proceeding.7 II. We think it clear that the Fourteenth Amendment’s protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications. An investigation of this character, like a civil suit, requires procedural as well as substantive rules. It is surely not doubtful that a State could validly adopt an administrative rule analogous to Rule 37 (b) of the Federal Rules of Civil Procedure which provides that that refusal, after due warning, to answer relevant questions may result in “the matters regarding which the questions were asked” being 7 Moreover, even if there could be debate as to whether this Court’s prior decision prevented new hearings on matters that had already transpired at the time of the first state hearings, there can be no doubt that such decision did not prevent California from investigating petitioner’s actions during the period subsequent to the first hearing. Therefore we would in any case be presented with the question of the constitutionality of the State’s refusing to admit petitioner to the practice of law because of his declining to answer whether he has been a member of the Communist Party since the termination of the first set of hearings. KONIGSBERG v. STATE BAR. 45 36 Opinion of the Court. considered for the purposes of the proceeding to be answered in a way unfavorable to the refusing party, or even that such refusal may result in “dismissing the action or proceeding” of the party asking affirmative relief. The state procedural rule involved here is a less broad one, for all that California has in effect said is that in cases where, on matters material to an applicant’s qualifications, there are gaps in the evidence presented by him which the agency charged with certification considers should be filled in the appropriate exercise of its responsibilities, an applicant will not be admitted to practice unless and until he cooperates with the agency’s efforts to fill those gaps. The fact that this rule finds its source in the supervisory powers of the California Supreme Court over admissions to the bar, rather than in legislation, is not constitutionally significant. Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362. Nor in the absence of a showing of arbitrary or discriminatory application in a particular case, is it a matter of federal concern whether such a rule requires the rejection of all applicants refusing to answer material questions, or only in instances where the examining committee deems that a refusal has materially obstructed its investigation. Compare Beilan v. Board of Education, 357 U. S. 399, with Nelson v. County of Los Angeles, 362 U. S. 1. In the context of the entire record of these proceedings,8 the application of the California rule in this instance cannot be said to be arbitrary or discriminatory. In the first Konigsberg case this Court held that neither the somewhat weak but uncontradicted testimony, that petitioner had been a Communist Party member in 1941, nor his refusal to answer questions relating to Party membership, could rationally support any substantive adverse 8 The transcript of the original hearings before the Committee has been made part of the record before us in the present case. 46 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. inferences as to petitioner’s character qualifications, 353 U. S, at 266-274. That was not to say, however, that these factors, singly or together, could not be regarded as leaving the investigatory record in sufficient uncertainty as constitutionally to permit application of the procedural rule which the State has now invoked, provided that Konigsberg had been first given due warning of the consequences of his continuing refusal to respond to the Committee’s questions. Cf. 353 U. S, at 261. It is no answer to say that petitioner has made out a prima facie case of qualifications, for this is precisely the posture of a proceeding in which the Committee’s right to examine and cross-examine becomes significant. Assuming, as we do for the moment, that there is no privilege here to refuse to answer, petitioner could no more insist that his prima facie case makes improper further questioning of him than he could insist that such circumstance made improper the introduction of other forms of rebutting evidence. We likewise regard as untenable petitioner’s contentions that the questions as to Communist Party membership were made irrelevant either by the fact that bare, innocent membership is not a ground of disqualification or by petitioner’s willingness to answer such ultimate questions as whether he himself believed in violent overthrow or knowingly belonged to an organization advocating violent overthrow. The Committee Chairman’s answer to the former contention was entirely correct: “If you answered the question, for example, that you had been a member of the Communist Party during some period since 1951 or that you were presently a member of the Communist Party, the Committee would then be in a position to ask you what acts you engaged in to carry out the functions and purposes of that party, what the aims and purposes of KONIGSBERG v. STATE BAR. 47 36 Opinion of the Court. the party were, to your knowledge, and questions of that type. You see by failing to answer the initial question there certainly is no basis and no opportunity for us to investigate with respect to the other matters to which the initial question might very well be considered preliminary.” And the explanation given to petitioner’s counsel by another Committee member as to why Konigsberg’s testimony about ultimate facts was not dispositive was also sound: “Mr. Mosk, you realize that if Mr. Konigsberg had answered the question that he refused to answer, an entirely new area of investigation might be opened up, and this Committee might be able to ascertain from Mr. Konigsberg that perhaps he is now and for many years past has been an active member of the Communist Party, and from finding out who his associates were in that enterprise we might discover that he does advocate the overthrow of this government by force and violence. I am not saying that he would do that, but it is a possibility, and we don’t have to take any witness’ testimony as precluding us from trying to discover if he is telling the truth. That is the point.” Petitioner’s further miscellaneous contentions that the State’s exclusion of him was capricious are all also insubstantial.9 9 There is no basis for any intimation that the California Supreme Court fashioned a special procedural rule for the purposes of this particular case. The California Bar Committee has in the past declined to certify applicants who refused to answer pertinent questions. See Farley (Secretary, Committee of Bar Examiners), Character Investigation of Applicants for Admission, 29 Cal. State Bar Journal, 454, 457, 466 (1954). No more does the State’s action bear any of the hallmarks of a bill of attainder or of an ex post facto regulation, see Cummings v. Missouri, 4 Wall. 277; cf. United 48 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. There remains the question as to whether Konigsberg was adequately warned of the consequences of his refusal to answer. At the outset of the renewed hearings the Chairman of the Committee stated: “As a result of our two-fold purpose [to investigate and reach determinations], particularly our function of investigation, we believe it will be necessary for you, Mr. Konigsberg, to answer our material questions or our investigation will be obstructed. We would not then as a result be able to certify you for admission.” After petitioner had refused to answer questions on Communist Party membership, the Chairman asked: “Mr. Konigsberg, I think you will recall that I initially advised you a failure to answer our material questions would obstruct our investigation and result in our failure to certify you. With this in mind do you wish to answer any of the questions which you heretofore up to now have refused to answer?” At the conclusion of the proceeding another Committee member stated: “I would like to make this statement so that there will be no misunderstanding on the part of any court that may review this record in the future, that I feel that as a member of the Committee that the failure States v. Lovett, 328 U. S. 303, especially in light of the fact that petitioner was explicitly warned in advance of the consequences of his refusal to answer. Likewise, there is no room for attributing to the Committee a surreptitious purpose to exclude Konigsberg by the device of putting to him questions which it was known in advance he would not answer, and then justifying exclusion on the premise of his refusal to respond. So far as this record shows Konigsberg was excluded only because his refusal to answer had impeded the investigation of the Committee, a ground of rejection which it is still within his power to remove. KONIGSBERG v. STATE BAR. 49 36 Opinion of the Court. of Mr. Konigsberg to answer the question as to whether or not he is now a member of the Communist Party is an obstruction of the function of this Committee, not a frustration if that word has been used. I think it would be an obstruction. There are phases of his moral character that we haven’t been able to investigate simply because we have been stopped at this point, and I for one could not certify to the Supreme Court that he was a proper person to be admitted to practice law in this State until he answers the question about his Communist affiliation.” The record thus leaves no room for doubt on the score of “warning,” and petitioner does not indeed contend to the contrary. III. Finally, petitioner argues that, in any event, he was privileged not to respond to questions dealing with Communist Party membership because they unconstitutionally impinged upon rights of free speech and association protected by the Fourteenth Amendment. At the outset we reject the view that freedom of speech and association (V. A. A. C. P. v. Alabama, 357 U. S. 449, 460), as protected by the First and Fourteenth Amendments, are “absolutes,” not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.10 Throughout its history this Court 10 That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law . . . abridging the freedom of 590532 0-61—8 50 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection.11 See, e. g., Schenck v. United States, 249 U. S. 47; Chaplinsky v. New Hampshire, 315 U. S. 568; Dennis v. United States, 341 U. S. 494; Beauharnais v. Illinois, 343 U. S. 250; Yates v. United States, 354 U. S. 298; Roth v. United States, 354 U. S. 476. On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or speech, or of the press; or the right of the people peaceably to assemble . . . .” But as Mr. Justice Holmes once said: “[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U. S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U. S. 174. 11 That the First Amendment immunity for speech, press and assembly has to be reconciled with valid but conflicting governmental interests was clear to Holmes, J. (“I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.” Abrams v. United States, 250 U. S. 616, 627); to Brandeis, J. (“But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute.” Whitney v. California, 274 U. S. 357, 373); and to Hughes, C. J. (“[T]he protection [of free speech] even as to previous restraint is not absolutely unlimited.” Near v. Minnesota, 283 U. S. 697, 716.) KONIGSBERG v. STATE BAR. 51 36 Opinion of the Court. the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See, e. g., Schneider v. State, 308 U. S. 147, 161; Cox v. New Hampshire, 312 U. S. 569; Prince v. Massachusetts, 321 U. S. 158; Kovacs v. Cooper, 336 U. S. 77; American Communications Assn. v. Douds, 339 U. S. 382; Breard v. Alexandria, 341 U. S. 622. It is in the latter class of cases that this Court has always placed rules compelling disclosure of prior association as an incident of the informed exercise of a valid governmental function. Bates v. Little Rock, 361 U. S. 516, 524. Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved. Watkins v. United States, 354 U. S. 178, 198; N. A. A. C. P. v. Alabama, supra; Baren-blatt v. United States, 360 U. S. 109, 126-127; Bates v. Little Rock, supra; Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431. With more particular reference to the present context of a state decision as to character qualifications, it is difficult, indeed, to imagine a view of the constitutional protections of speech and association which would automatically and without consideration of the extent of the deterrence of speech and association and of the importance of the state function, exclude all reference to prior speech or association on such issues as character, purpose, credibility, or intent. On the basis of these considerations we now judge petitioner’s contentions in the present case. Petitioner does not challenge the constitutionality of § 6064.1 of the California Business and Professions Code forbidding certification for admission to practice of those advocating the violent overthrow of government. It 52 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions. Cf. Garner v. Board of Public Works, 341 U. S. 716. Nor is the state interest in this respect insubstantially related to the right which California claims to inquire about Communist Party membership. This Court has long since recognized the legitimacy of a statutory finding that membership in the Communist Party is not unrelated to the danger of use for such illegal ends of powers given for limited purposes. See American Communications Assn. v. Douds, 339 U. S. 382; see also Barenblatt v. United States, 360 U. S. 109, 128-129; cf. Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431. As regards the questioning of public employees relative to Communist Party membership it has already been held that the interest in not subjecting speech and Association to the deterrence of subsequent disclosure is outweighed by the State’s interest in ascertaining the fitness of the employee for the post he holds, and hence that such questioning does not infringe constitutional protections. Beilan v. Board of Public Education, 357 U. S. 399; Garner v. Board of Public Works, 341 U. S. 716. With respect to this same question of Communist Party membership, we regard the State’s interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented. There is here no likelihood that deterrence of association may result from foreseeable private action, see KONIGSBERG v. STATE BAR. 53 36 Opinion of the Court. N. A. A. C. P. v. Alabama, supra, at 462, for bar committee interrogations such as this are conducted in private. See Rule 58, Section X, Rules of Practice and Procedure of the Supreme Court of Illinois; cf. Cal. Bus. & Prof. Code, Rules of Procedure of the State Bar of California, Rule 8; Anonymous v. Baker, 360 U. S. 287, 291-292. Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association, see Shelton v. Tucker, 364 U. S. 479, 486, for a bar applicant’s exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution. See Konigsberg v. State Bar, 353 U. S. 252; Schware v. Board of Examiners of New Mexico, 353 U. S. 232; cf. Wieman n. Updegraff, 344 U. S. 183. In these circumstances it is difficult indeed to perceive any solid basis for a claim of unconstitutional intrusion into rights assured by the Fourteenth Amendment. If this were all there was to petitioner’s claim of a privilege to refuse to answer, we would regard the Beilan case as controlling. There is, however, a further aspect of the matter. In Speiser v. Randall, 357 U. S. 513, we held unconstitutional a state procedural rule that in order to obtain an exemption a taxpayer must bear the burden of proof, including both the burdens of establishing a prima facie case and of ultimate persuasion, that he did not advocate the violent overthrow of government. We said (p. 526): “The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding—inherent in all litigation—will create the danger that the legitimate utterance will be 54 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.” It would be a sufficient answer to any suggestion of the applicability of that holding to the present proceeding to observe that Speiser was explicitly limited so as not to reach cases where, as here, there is no showing of an intent to penalize political beliefs. Distinguishing Garner v. Board of Public Works, 341 U. S. 716; Gerende v. Board of Supervisors, 341 U. S. 56, and American Communications Assn. v. Douds, 339 U. S. 382, the Court said (p.527): “In these cases . . . there was no attempt directly to control speech but rather to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern. . . . Each case concerned a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety. The principal aim of those statutes was not to penalize political beliefs but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public.” KONIGSBERG v. STATE BAR. 55 36 Opinion of the Court. But there are also additional factors making the rationale of Speiser inapplicable to the case before us. There is no unequivocal indication that California in this proceeding has placed upon petitioner the burden of proof of nonadvocacy of violent overthrow, as distinguished from its other requirement of “good moral character.” 12 All it has presently required is an applicant’s cooperation with the Committee’s search for evidence of forbidden advocacy. Petitioner has been denied admission to the California bar for obstructing the Committee in the performance of its necessary functions of examination and cross-examination, a ruling which indeed presupposes that the burden of producing substantial evidence on the issue of advocacy was not upon petitioner but upon the Committee. Requiring a defendant in a civil proceeding to testify or to submit to discovery has never been thought to shift the burden of proof to him. Moreover, when this Court has allowed a State to comment upon a criminal defendant’s failure to testify it has been careful to note that this does not result in placing upon him the burden of proving his innocence. Adamson v. California, 332 U. S. 46, 58. In contrast to our knowledge with respect to the burden of establishing a prima facie case, we do not now know where, under California law, would rest the ultimate burden of persuasion on the issue of advocacy of violent overthrow. But it is for the Supreme Court of California first to decide this question. Only if and when that burden is placed by the State upon a bar applicant can there be drawn in question the distinction made in 12 Indeed, we cannot tell whether California did so even in the earlier proceeding, since the California Supreme Court’s denial of review of the Committee’s original rejection of Konigsberg was without opinion, and for all we know may have rested alone on petitioner’s failure to meet his state burden of proof as to “good moral character.” 56 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. the Speiser case between penalizing statutes and those merely denying access to positions where unfitness may lead to the abuse of state-given powers or privileges. The issue is not now before us. Thus as matters now stand, there is nothing involved here which is contrary to the reasoning of Speiser, for despite compelled testimony the prospective bar applicant need not “steer far wider of the unlawful zone” (357 U. S, at 526) for fear of mistaken judgment or fact finding declaring unlawful speech which is in fact protected by the Constitution. This is so as to the ultimate burden of persuasion for, notwithstanding his duty to testify, the loss resulting from a failure of proof may, for all we now know, still fall upon the State. It is likewise so as to the initial burden of production, for there is no indication in the proceeding on rehearing of petitioner’s application that the Bar Committee expected petitioner to “sustain the burden of proving the negative” (357 U. S, at 526) of those complex factual elements which amount to forbidden advocacy of violent overthrow. To the contrary it is clear that the Committee had assumed the burden of proving the affirmative of those elements, but was prevented from attempting to discharge that burden by petitioner’s refusal to answer relevant questions. The judgment of the Supreme Court of California is Affirmed. Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting. When this case was here before, we reversed a judgment of the California Supreme Court barring the petitioner Konigsberg from the practice of law in that State on the ground that he had failed to carry the burden of proving his good moral character and that he did not advocate forcible overthrow of the Government. In do- KONIGSBERG v. STATE BAR. 57 36 Black, J., dissenting. ing so, we held that there was “no evidence in the record” which could rationally justify such a conclusion.1 Upon remand, the Supreme Court of California referred the matter back to the Committee of State Bar Examiners for further hearings, at which time Konigsberg presented even more evidence of his good character. The Committee produced no evidence whatever which tended in the slightest degree to reflect upon the good character and patriotism which we had already held Konigsberg to have established. The case is therefore now before us with the prior adjudication that Konigsberg possesses the requisite good character and patriotism for admission to the Bar unimpaired. What the Committee did do upon remand was to repeat the identical questions with regard to Konigsberg’s suspected association with Communists twenty years ago that it had asked and he had refused to answer at the first series of hearings. Konigsberg again refused to answer these questions and the Committee again refused to certify him as fit for admission to the Bar, this time on the ground that his refusal to answer had obstructed the required investigation into his qualifications, a ground subsequently adopted by a majority of the Supreme Court of that State.2 Thus, California purports to be denying Konigsberg admission to its Bar solely on the ground that he has refused to answer questions put to him by the Committee of Bar Examiners. But when the case was here before, we observed: “There is nothing in the California statutes, 1 Konigsberg v. State Bar of California, 353 U. S. 252, 273. That, decision was reached on the basis of a record containing a large quantity of evidence favorable to Konigsberg and some scanty evidence arguably adverse to him. 2 Konigsberg v. State Bar of California, 52 Cal. 2d 769, 344 P. 2d 777. Mr. Justice Traynor and Mr. Justice Peters dissented in separate opinions. 58 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner’s inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners.” 3 And we have been pointed to no subsequent California statutes, rules, regulations or court decisions which require or even permit rejection of a lawyer’s application for admission solely because he refuses to answer questions.4 In this situation, it seems to me that Konigsberg has been rejected on a ground that is not supported by any authoritatively declared rule of law for the State of California.5 This alone would be 3 353 U. S., at 260-261. 4 The total absence of any authoritative source for this rule is, in my judgment, merely accentuated by the reference in the majority opinion to the article written for the California State Bar Journal by the Secretary of the Committee of Bar Examiners. So far as the cases relied upon in that article are even available for study, they do not in any way support the action of the Bar Committee here. 5 Thus, it seems to me that California’s rejection of Konigsberg is not supported by any “law of the land,” as required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See Cohen v. Hurley, decided today, post, p. 117, at 135-150 (dissenting opinion). As Daniel Webster argued in the Dartmouth College case: “Are then these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land ? Let this question be answered by the text of Blackstone: ‘And first, it (i. e. law) is a rule: not a transient sudden order from a superior, to, or concerning, a particular person; but something permanent, uniform, and universal. Therefore, a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law.’ Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated 29th chap, of Magna Charta, he says, ‘no man shall be disseized, &c. unless it be by the lawful judgment, that is, verdict of equals, or by the law KONIGSBERG v. STATE BAR. 59 36 Black, J., dissenting. enough for me to vote to reverse the judgment. There are other reasons, however. Konigsberg’s objection to answering questions as to whether he is or was a member of the Communist Party has, from the very beginning, been based upon the contention that the guarantees of free speech and association of the First Amendment as made controlling upon the States by the Fourteenth Amendment preclude California from denying him admission to its Bar for refusing to answer such questions. In this I think Konigsberg has been correct. California has apparently not even attempted to make actual present membership in the Communist Party a bar to the practice of law, and even if it had, I assume it would not be contended that such a law could be applied to conduct that took place before the law was passed. For such an application would, I think, not only be a clear violation of the ex post facto provision of the Federal Constitution, but would also constitute a bill of attainder squarely within this Court’s holdings in Cummings v. Missouri* 6 and Ex parte Garland.7 And yet it seems to me that this record shows, beyond any shadow of a doubt, that the reason Konigsberg has been rejected is because the Committee suspects that he was at one time a member of the Communist Party.8 I agree with the implication of the majority opinion that this is of the land, that is, (to speak it once for all,) by the due course and process of law.’ ” (Emphasis as in source.) Dartmouth College v. Woodward, 4 Wheat. 518, 580-581. 6 4 Wall. 277. 7 4 Wall. 333. 8 The suspicions of the Committee doubtless relate to the period around 1941 for the Committee had heard testimony from an exCommunist that Konigsberg had attended meetings of a Communist Party unit during that period. The unreliability of that testimony was discussed in the Court’s opinion when the case was here before. See 353 U. 8, at 266-268. 60 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. not an adequate ground to reject Konigsberg and that it could not be constitutionally defended.9 The majority avoids the otherwise unavoidable necessity of reversing the judgment below on that ground by simply refusing to look beyond the reason given by the Committee to justify Konigsberg’s rejection. In this way, the majority reaches the question as to whether the Committee can constitutionally reject Konigsberg for refusing to answer questions growing out of his conjectured past membership in the Communist Party even though it could not constitutionally reject him if he did answer those questions and his answers happened to be affirmative. The majority then goes on to hold that the Committee, by virtue of its power to reject applicants who advocate the violent overthrow of the Government, can reject applicants who refuse to answer questions in any way related to that fact, even though the applicant has sworn under oath that he does not advocate violent overthrow of the Government and even though, as the majority concedes, questions as to the political associations of an applicant subject “speech and association to the deterrence of subsequent disclosure.” I cannot agree with that holding. The recognition that California has subjected “speech and association to the deterrence of subsequent disclosure” is, under the First Amendment, sufficient in itself 9 Under the circumstances of this case, it seems clear to me that the action of the State of California in rejecting Konigsberg is also contrary to our decision in Schware v. Board of Bar Examiners of New Mexico, 353 U. S. 232. In that case, every member of this Court who participated in the decision expressed serious doubts with regard to the probative value of evidence as to a Bar applicant’s membership in the Communist Party 15 years previous to our consideration of the case. Id., at 246 (concurring opinion) 251. I cannot believe that such evidence becomes more probative when, as here, it would, if obtained, have been five years older. KONIGSBERG v. STATE BAR. 61 36 Black, J., dissenting. to render the action of the State unconstitutional unless one subscribes to the doctrine that permits constitutionally protected rights to be “balanced” away whenever a majority of this Court thinks that a State might have interest sufficient to justify abridgment of those freedoms. As I have indicated many times before,101 do not subscribe to that doctrine for I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the “balancing” that was to be done in this field. The history of the First Amendment is too well known to require repeating here except to say that it certainly cannot be denied that the very object of adopting the First Amendment, as well as the other provisions of the Bill of Rights, was to put the freedoms protected there completely out of the area of any congressional control that may be attempted through the exercise of precisely those powers that are now being used to “balance” the Bill of Rights out of existence.11 Of course, the First Amendment originally applied only to the Federal Gov- 10 See, e. g., my dissenting opinions in Braden v. United States, 365 U. S. 431, 441-446; Wilkinson v. United States, 365 U. S. 399, 422-423; Uphaus v. Wyman, 364 U. S. 388, 392-393; Barenblatt v. United States, 360 U. S. 109, 140-144; American Communications Assn. v. Douds, 339 U. S. 382, 445-453. 11 James Madison, for example, indicated clearly that he did not understand the Bill of Rights to permit any encroachments upon the freedoms it was designed to protect. “If they [the first ten Amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” 1 Annals of Congress 439 (1789). (Emphasis supplied.) 62 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. ernment and did not apply to the States. But what was originally true only of Congress is now no less true with respect to the governments of the States, unless a majority of this Court wants to overrule a large number of cases in which it has been held unequivocally that the Fourteenth Amendment made the First Amendment’s provisions controlling upon the States.12 The Court attempts to justify its refusal to apply the plain mandate of the First Amendment in part by reference to the so-called “clear and present danger test” forcefully used by Mr. Justice Holmes and Mr. Justice Brandeis, not to narrow but to broaden the then prevailing interpretation of First Amendment freedoms.13 I think very little can be found in anything they ever said that would provide support for the “balancing test” presently in use. Indeed, the idea of “balancing” away First Amendment freedoms appears to me to be wholly inconsistent with the view, strongly espoused by Justices Holmes and Brandeis, that the best test of truth is the power of the thought to get itself accepted in the competition of the market.14 The “clear 12 See, e. g., Minersville District v. Gobitis, 310 U. S. 586, 593; Murdock v. Pennsylvania, 319 U. S. 105, 108; Board of Education v. Barnette, 319 U. S. 624, 639; Staub v. City of Baxley, 355 U. S. 313, 321. 13 See Schenck v. United States, 249 U. S. 47, 52, where Mr. Justice Holmes, writing for the Court, said: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” 14 Abrams v. United States, 250 U. S. 616, 630 (Holmes, J., dissenting). See also Gitlow v. New York, 268 U. S. 652, 673: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and KONIGSBERG v. STATE BAR. 63 36 Black, J., dissenting. and present danger test” was urged as consistent with this view in that it protected speech in all cases except those in which danger was so imminent that there was no time for rational discussion.* 15 The “balancing test,” on the other hand, rests upon the notion that some ideas are so dangerous that Government need not restrict itself to contrary arguments as a means of opposing them even where there is ample time to do so. Thus here, where there is not a semblance of a “clear and present danger,” and where there is more than ample time in which to combat by discussion any idea which may be involved, the majority permits the State of California to adopt measures calculated to suppress the advocacy of views about governmental affairs. I recognize, of course, that the “clear and present danger test,” though itself a great advance toward individual liberty over some previous notions of the protections afforded by the First Amendment,16 does not go as far as my own views as to the protection that should be accorded these freedoms. I agree with Justices Holmes and Brandeis, however, that a primary purpose of the First Amendment was to insure that all ideas would be allowed to enter the “competition of the market.” But I fear that the creation of “tests” by which speech is left unprotected under certain circumstances is a standing invitation to abridge it. This is nowhere more clearly indi- have their way.” (Holmes, J., dissenting.) And see Whitney v. California, 274 U. S. 357, 378: “Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.” (Brandeis, J., concurring.) 15 See Abrams v. United States, 250 U. S. 616, 630-631 (dissenting opinion); Gitlow v. New York, 268 U. S. 652, 672-673 (dissenting opinion); Whitney v. California, 274 U. S. 357, 378-379 (concurring opinion). 16 See Bridges v. California, 314 U. S. 252, 260-263. 64 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. cated than by the sudden transformation of the “clear and present danger test” in Dennis v. United States. In that case, this Court accepted Judge Learned Hand’s “restatement” of the “clear and present danger test”: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” 17 After the “clear and present danger test” was diluted and weakened by being recast in terms of this “balancing” formula, there seems to me to be much room to doubt that Justices Holmes and Brandeis would even have recognized their test. And the reliance upon that weakened “test” by the majority here, without even so much as an attempt to find either a “clear” or a “present” danger, is only another persuasive reason for rejecting all such “tests” and enforcing the First Amendment according to its terms. The Court suggests that a “literal reading of the First Amendment” would be totally unreasonable because it would invalidate many widely accepted laws. I do not know to what extent this is true. I do not believe, for example, that it would invalidate laws resting upon the premise that where speech is an integral part of unlawful conduct that is going on at the time, the speech can be used to illustrate, emphasize and establish the unlawful conduct.18 On the other hand, it certainly would invalidate all laws that abridge the right of the people to discuss matters of religious or public interest, in the broadest meaning of those terms, for it is clear that a desire to protect this right was the primary purpose of the First Amendment. Some people have argued, with much force, that the freedoms guaranteed by the First Amend- 17 183 F. 2d 201, 212; 341 U. S. 494, 510. 18 Roth v. United States, 354 U. S. 476, 514 (dissenting opinion). See also Labor Board v. Virginia Electric & Power Co., 314 U. S. 469; Giboney v. Empire Storage Co., 336 U. S. 490. KONIGSBERG v. STATE BAR. 65 36 Black, J., dissenting. ment are limited to somewhat broad areas like those.19 But I believe this Nation’s security and tranquility can best be served by giving the First Amendment the same broad construction that all Bill of Rights guarantees deserve.20 The danger of failing to construe the First Amendment in this manner is, I think, dramatically illustrated by the decision of this Court in Beauharnais v. Illinois,21 one of the cases relied upon for this holding today. In that case, a majority of this Court upheld the conviction of a man whose only “crime” was the circulation of a petition to be presented to the City Council of Chicago urging that body to follow a policy of racial segregation in language that the State of Illinois chose to regard as “libelous” against Negroes. Holding that “libelous utterances” were not included in the “speech” protected against state invasion by the Due Process Clause of the Fourteenth Amendment,22 this Court there concluded that 19 See, e. g., Meiklejohn, What Does the First Amendment Mean ? 20 U. of Chi. L. Rev. 461,464. 20 Cf. Boyd v. United States, 116 U. S. 616, 635: “[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.” 21 343 U. S. 250. 22 The Court opinion here apparently treats the Beauharnais case as having decided that the Federal Government has power, despite the First Amendment, to pass so-called “group libel” laws. This, I think, is wholly unjustified. The Beauharnais opinion was written on the assumption that the protection afforded the freedoms of speech and petition against state action by the Fourteenth Amendment amounted to something less than the protection afforded these freedoms against congressional action by the First Amendment. Thus, as pointed out in my dissent in that case, the majority in Beauharnais never even mentioned the First Amendment but upheld 590532 0-61—9 66 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. the petition which had been circulated fell within that exception and therefore outside the area of constitutionally protected speech because it made charges against the entire Negro population of this country. Thus, Beau-harnais was held to have simultaneously “libelled” some fifteen million people. And by this tremendous expansion of the concept of “libel,” what some people might regard as a relatively minor exception to the full protection of freedom of speech had suddenly become a vehicle which could be used to justify a return to the vicious era of the laws of seditious libel, in which the political party in power, both in England and in this country, used such laws to put its opponents in jail.23 Whatever may be the wisdom, however, of an approach that would reject exceptions to the plain language of the First Amendment based upon such things as “libel,” “obscenity” 24 or “fighting words,” 25 such is not the issue in this case. For the majority does not, and surely would not, contend that the kind of speech involved in this case—wholly related as it is to conflicting ideas about governmental affairs and policies—falls outside the protection of the First Amendment, however narrowly that Amendment may be interpreted. So the only issue presently before us is whether speech that must be well within the protection of the Amendment should be given complete protection or whether it is entitled only to such pro- the state “group libel” law on the ground that it did not violate “civilized 'canons of decency,’ reasonableness, etc.” See 343 U. S., at 268-269. See also the dissent of Mr. Justice Jackson, at 287-305. 23 The story of the use by the Federalists of the Alien and Sedition Acts of 1798 as a weapon to suppress the political opposition of the Jeffersonians has been graphically told in Bowers, Jefferson and Hamilton, at 362-411. 24 See, e. g., Roth v. United States, 354 U. S. 476. 25 See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568. KONIGSBERG v. STATE BAR. 67 36 Black, J., dissenting. tection as is consistent in the minds of a majority of this Court with whatever interest the Government may be asserting to justify its abridgment. The Court, by stating unequivocally that there are no “absolutes” under the First Amendment, necessarily takes the position that even speech that is admittedly protected by the First Amendment is subject to the “balancing test” and that therefore no kind of speech is to be protected if the Government can assert an interest of sufficient weight to induce this Court to uphold its abridgment. In my judgment, such a sweeping denial of the existence of any inalienable right to speak undermines the very foundation upon which the First Amendment, the Bill of Rights, and, indeed, our entire structure of government rest.26 The Founders of this Nation attempted to set up a limited government which left certain rights in the people—rights that could not be taken away without amendment of the basic charter of government. The majority’s “balancing test” tells us that this is not so. It tells us that no right 26 “The founders of our federal government were too close to oppressions and persecutions of the unorthodox, the unpopular, and the less influential to trust even elected representatives with unlimited powers of control over the individual. From their distrust were derived the first ten amendments, designed as a whole to ‘limit and qualify the powers of Government,’ to define ‘cases in which the Government ought not to act, or to act only in a particular mode,’ and to protect unpopular minorities from oppressive majorities. 1 Annals 437. The first of the ten amendments erected a Constitutional shelter for the people’s liberties of religion, speech, press, and assembly. This amendment reflects the faith that a good society is not static but advancing, and that the fullest possible interchange of ideas and beliefs is essential to attainment of this goal. The proponents of the First Amendment, committed to this faith, were determined that every American should possess an unrestrained freedom to express his views, however odious they might be to vested interests whose power they might challenge.” Feldman v. United States, 322 U. S. 487, 501 (dissenting opinion). 68 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. to think, speak or publish exists in the people that cannot be taken away if the Government finds it sufficiently imperative or expedient to do so. Thus, the “balancing test” turns our “Government of the people, by the people and for the people” into a government over the people. I cannot believe that this Court would adhere to the “balancing test” to the limit of its logic. Since that “test” denies that any speech, publication or petition has an “absolute” right to protection under the First Amendment, strict adherence to it would necessarily mean that there would be only a conditional right, not a complete right, for any American to express his views to his neighbors—or for his neighbors to hear those views. In other words, not even a candidate for public office, high or low, would have an “absolute” right to speak in behalf of his candidacy, no newspaper would have an “absolute” right to print its opinion on public governmental affairs, and the American people would have no “absolute” right to hear such discussions. All of these rights would be dependent upon the accuracy of the scales upon which this Court weighs the respective interests of the Government and the people. It therefore seems to me that the Court’s “absolute” statement that there are no “absolutes” under the First Amendment must be an exaggeration of its own views. These examples also serve to illustrate the difference between the sort of “balancing” that the majority has been doing and the sort of “balancing” that was intended when that concept was first accepted as a method for insuring the complete protection of First Amendment freedoms even against purely incidental or inadvertent consequences. The term came into use chiefly as a result of cases in which the power of municipalities to keep their streets open for normal traffic was attacked by groups wishing to use those streets for religious or polit- KONIGSBERG v. STATE BAR. 69 36 Black, J., dissenting. ical purposes.27 When those cases came before this Court, we did not treat the issue posed by them as one primarily involving First Amendment rights. Recognizing instead that public streets are avenues of travel which must be kept open for that purpose, we upheld various city ordinances designed to prevent unnecessary noises and congestions that disrupt the normal and necessary flow of traffic. In doing so, however, we recognized that the enforcement of even these ordinances, which attempted no regulation at all of the content of speech and which were neither openly nor surreptitiously aimed at speech, could bring about an “incidental” abridgment of speech. So we went on to point out that even ordinances directed at and regulating only conduct might be invalidated if, after “weighing” the reasons for regulating the particular conduct, we found them insufficient to justify diminishing “the exercise of rights so vital to the maintenance of democratic institutions” as those of the First Amendment.28 But those cases never intimated that we would uphold as constitutional an ordinance which purported to rest upon the power of a city to regulate traffic but which was aimed at speech or attempted to regulate the content of speech. None of them held, nor could they constitutionally have held, that a person rightfully walking or riding along the streets and talking in a normal way could have his views controlled, licensed or penalized in any way by the city—for that would be a direct abridgment of speech itself. Those cases have only begun to take on that meaning by being relied upon, again and again as they 27 Typical of such cases are those referred to by the majority in its opinion here: Schneider v. State, 308 U. S. 147; Cox v. New Hampshire, 312 U. S. 569; Prince v. Massachusetts, 321 U. S. 158; Kovacs v. Cooper, 336 U. S. 77. 28 Schneider v. State, 308 U. S. 147, 161. 70 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. are here, to justify the application of the “balancing test” to governmental action that is aimed at speech and depends for its application upon the content of speech. Thus, those cases have been used to support decisions upholding such obviously antispeech actions on the part of government as those involved in American Communications Assn. v. Douds 29 and Dennis v. United States.30 And the use being made of those cases here must be considered as falling squarely within that class.31 The Court seeks to bring this case under the authority of the street-regulation cases and to defend its use of the “balancing test” on the ground that California is attempting only to exercise its permissible power to regulate its Bar and that any effect its action may have upon speech is purely “incidental.” But I cannot agree that the questions asked Konigsberg with regard to his suspected membership in the Communist Party had nothing more than an “incidental” effect upon his freedom of speech and association. Why does the Committee of Bar Examiners ask a bar applicant whether he is or has been a member of the Communist Party? The avowed purpose of such questioning is to permit the Committee to deny applicants admission to the Bar if they “advocate” forcible overthrow of the Government. Indeed, that is precisely the ground upon which the majority is here upholding the Committee’s right to ask Konigsberg these questions. I realize that there has been considerable talk, even in the opinions of this Court, to the effect that “advocacy” is not “speech.” But with the highest respect for those who believe that there is such a distinction, I cannot agree with it. For this reason, I think the conclusion is inescapable that this case presents the question of the consti- 29 3 39 U. S. 382, especially at 398-400. 30 341 U. S. 494, especially at 508-509. 31 See also the discussion of these street-regulation cases in my dissenting opinion in Barenblatt v. United States, 360 U. S. 109, 141-142. KONIGSBERG v. STATE BAR. 71 36 Black, J., dissenting. tutionality of action by the State of California designed to control the content of speech. As such, it is a “direct,” and not an “incidental” abridgment of speech. Indeed, if the characterization “incidental” were appropriate here, it would be difficult to imagine what would constitute a “direct” abridgment of speech. The use of the “balancing test” under these circumstances thus permits California directly to abridge speech in explicit contradiction to the plain mandate of the First Amendment. But even if I thought the majority was correct in its view that “balancing” is proper in this case, I could not agree with its decision. In the first place, I think that the decision here is unduly restrictive upon individual liberty even under the penurious “balancing test.” The majority describes the State’s interest which is here to be “balanced” against the interest in protecting the freedoms of speech and association as an interest in “having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change.” But is that an accurate statement of the interest of the State that is really at stake here? Konigsberg has stated unequivocally that he never has, does not now, and never will advocate the overthrow of the Government of this country by unconstitutional means, and we held when the case was here before that his evidence was sufficient to establish that fact. Since the Committee has introduced no evidence at any subsequent hearing that would lead to a contrary conclusion, the fact remains established.32 So the issue in 32 The majority places some stress upon the fact that the Committee did not have independent investigatory resources with which to seek further evidence. In view of the complete reliance upon this decision to justify the use of an identical procedure in In re Anastaplo, decided today, post, p. 82, where the bar admission committee not only had investigatory resources but also utilized them to the fullest, this fact must be of little “weight” in the constitutional “balance.” 72 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. this case is not, as the majority’s statement of the State’s interest would seem to indicate, whether a person who advocates the overthrow of existing government by force must be admitted to the practice of law. All we really have on the State’s side of the scales is its desire to know whether Konigsberg was ever a member of the Communist Party. The real lack of value of that information to the State is, to my mind, clearly shown by the fact that the State has not even attempted to make membership in the Communist Party a ground for disqualification from the Bar. Indeed, if the State’s only real interest was, as the majority maintains, in having good men for its Bar, how could it have rejected Konigsberg, who, undeniably and as this Court has already held, has provided overwhelming evidence of his good character? Our former decision, which I still regard as resting on what is basically just good common sense, was that a man does not have to tell all about his previous beliefs and associations in order to establish his good character and loyalty. When the majority turns to the interest on the other side of the scale, it admits that its decision is likely to have adverse effects upon free association caused by compulsory disclosures, but then goes on to say that those adverse effects will be “minimal” here, first, because Bar admission interrogations are private and, secondly, because the decisions of Bar admission committees are subject to judicial review. As to the first ground, the Court simply ignores the fact that California law does not require its Committee to treat information given it as confidential.33 And besides, it taxes credulity to sup- 33 In this regard, the situation is identical to that invalidated as unconstitutional by our decision in Shelton v. Tucker, 364 U. S. 479. Indeed, the absence of such a requirement was there stressed as an important part of the ground upon which that decision rested. Id., at 486. KONIGSBERG v. STATE BAR. 73 36 Black, J., dissenting. pose that questions asked an applicant and answers given by him in the highly emotional area of communism would not rapidly leak out to the great injury of an applicant— regardless of what the facts of his particular case may happen to be. As to the second ground given, the Court fails to take into account the fact that judicial review widens the publicity of the questions and answers and thus tends further to undercut its first ground. At the same time, such review, as is demonstrated by this and the companion case decided today,34 provides small hope that an applicant will be afforded relief against stubborn efforts to destroy him arbitrarily by innuendoes that will subject him to lasting suspicions. But even if I thought the Court was correct in its beliefs that the interrogation of a Bar applicant would be kept confidential and that judicial review is adequate to prevent arbitrary exclusions from the Bar, I could not accept its conclusion that the First Amendment rights involved in this case are “minimal.” The interest in free association at stake here is not merely the personal interest of petitioner in being free from burdens that may be imposed upon him for his past beliefs and associations. It is the interest of all the people in having a society in which no one is intimidated with respect to his beliefs or associations. It seems plain to me that the inevitable effect of the majority’s decision is to condone a practice that will have a substantial deterrent effect upon the associations entered into by anyone who may want to become a lawyer in California. If every person who wants to be a lawyer is to be required to account for his associations as a prerequisite to admission into the practice of law, the only safe course for those desiring admission would seem to be scrupulously to avoid 34 In re Anastaplo, supra. See also the discussion in my dissenting opinion in that case, especially at pp. 108-112. 74 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. association with any organization that advocates anything at all somebody might possibly be against, including groups whose activities are constitutionally protected under even the most restricted notion of the First Amendment.35 And, in the currently prevailing atmosphere in this country, I can think of few organizations active in favor of civil liberties that are not highly controversial.36 In addition, it seems equally clear that anyone who had already associated himself with an organization active in favor of civil liberties before he developed an interest in the law, would, after this case, be discouraged from spending the large amounts of time and money necessary to obtain a legal education in the hope that he could practice law in California. Thus, in my view, the majority has reached its decision here against the freedoms of the First Amendment by a fundamental misapplication of its own currently, but I hope only temporarily, prevailing “balancing” test. The interest of the Committee in satisfying its curiosity with respect to Konigsberg’s “possible” membership in the Communist Party two decades ago has been inflated out of all proportion to its real value—the vast interest of the public in maintaining unabridged the basic freedoms of speech, press and assembly has been paid little if anything more than lip service—and important constitutional rights have once again been “balanced” away. This, of course, is an ever-present danger of the “balanc- 35 The situation here is thus identical to that in Speiser v. Randall, where the Court expressly recognized the danger to protected associations. See 357 U. S. 513, 526. 36 Cf. Shelton v. Tucker, supra, at 486, n. 7, where we took note of testimony that efforts were being made to remove from a school system all teachers who supported such organizations as the American Civil Liberties Union, the Urban League, the American Association of University Professors, and the Women’s Emergency Committee to Open Our Schools. KONIGSBERG v. STATE BAR. 75 36 Black, J., dissenting. ing test” for the application of such a test is necessarily tied to the emphasis particular judges give to competing societal values. Judges, like everyone else, vary tremendously in their choice of values. This is perfectly natural and, indeed, unavoidable. But it is neither natural nor unavoidable in this country for the fundamental rights of the people to be dependent upon the different emphasis different judges put upon different values at different times. For those rights, particularly the First ^Amendment rights involved here, were unequivocally set out by the Founders in our Bill of Rights in the very plainest of language, and they should not be diluted by “tests” that obliterate them whenever particular judges think values they most highly cherish outweigh the values most highly cherished by the Founders. Moreover, it seems to me that the “balancing test” is here being applied to cut the heart out of one of the very few liberty-protecting decisions that this Court has rendered in the last decade. Speiser v. Randall37 struck down, as a violation of the Federal Constitution, a state law which denied tax exemptions to veterans who refused to sign an oath that they did not advocate “the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means . . . .” 38 The case arose when certain veterans insisted upon their right to the exemptions without signing the oath. The California Supreme Court rejected the veterans’ constitutional contention that the state law violated due process by placing the burden of proof upon the taxpayer to prove that he did not advocate violent overthrow of the Government. This Court reversed, with only 37 3 57 U. S. 513. 38 Section 32 of the California Revenue and Taxation Code. This section was set out in full in the majority opinion in Speiser. 357 U. S., at 516-517, n. 2. 76 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. one Justice dissenting, on the ground that the necessary effect of such an imposition of the burden of proof “can only result in a deterrence of speech which the Constitution makes free.” 39 Indeed, the majority opinion in the Speiser case distinguished the very cases upon which the majority here is relying on the ground that “the oaths required in those cases performed a very different function from the declaration in issue here. In the earlier cases it appears that the loyalty oath, once signed, became conclusive evidence of the facts attested so far as the right to office was concerned. If the person took the oath he retained his position. The oath was not part of a device to shift to the officeholder the burden of proving his right to retain his position.” 40 But that is precisely what is happening here. For, even though Konigsberg has taken an oath that he does not advocate the violent overthrow of the Government, the Committee has persisted in the view that he has not as yet demonstrated his right to admission to the Bar. If that does not amount to the sort of shifting of the burden of proof that is proscribed by Speiser, I do not know what would. The situation in the present case is closely analogous to that condemned in the Speiser case and, indeed, the major factual difference between the two cases tends to make this case an even stronger one. Here, as in Speiser, the State requires an oath that the person involved does not advocate violent overthrow of the Government. Here, as there, the taking of the oath is not conclusive of the rights of the person involved. And here, as there, contrary to the implications in the majority opinion, I think it clear that the State places upon each applicant for admission to the Bar the burden of proving that he does 39 357 U. S., at 526. 40 Id., at 528. The cases so distinguished were Garner v. Board of Public Works, 341 U. S. 716; Gerende v. Board of Supervisors, 341 U. S. 56, and American Communications Assn. v. Douds, 339 U. S. 382. KONIGSBERG v. STATE BAR. 77 36 Black, J., dissenting. not advocate the violent overthrow of the Government. There is one difference between the two cases, for here Konigsberg agreed to take the oath required and he refused to answer only when the State insisted upon more. Surely he cannot be penalized for his greater willingness to cooperate with the State. The majority also suggests that the Speiser case may be distinguishable because it involved merely the power of the State to impose a penalty, by way of a heavier tax burden, upon a person who refused to take an oath, while this case involves the power of the State to determine the qualifications a person must have to be admitted to the Bar—a position of importance to the public. This distinction seems to me to be little more than a play on words. Speiser had the burden of proving that he did not advocate the overthrow of the Government and, upon his refusal to satisfy this burden, he was forced to pay additional taxes as a penalty. Konigsberg has the burden of proving that he does not advocate the violent overthrow of the Government and, upon his supposed failure to meet this burden, he is being denied an opportunity to practice the profession for which he has expended much time and money to prepare himself. So far as I am concerned the consequences to Konigsberg, whether considered from a financial standpoint, a social standpoint, or any other standpoint I can think of, constitute a more serious “penalty” than that imposed upon Speiser. In my judgment this case must take its place in the ever-lengthening line of cases in which individual liberty to think, speak, write, associate and petition is being abridged in a manner precisely contrary to the explicit commands of the First Amendment.41 And I believe the 41 This line has already been considerably lengthened during this very Term of Court. See, e. g., Uphaus v. Wyman, 364 U. S. 388; Times Film Corp. v. City of Chicago, 365 U. S. 43; Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431. 78 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. abridgment of liberty here, as in most of the other cases in that line, is based upon nothing more than a fear that the American people can be alienated from their allegiance to our form of government by the talk of zealots for a form of government that is hostile to everything for which this country now stands or ever has stood. I think this fear is groundless for I believe that the loyalty and patriotism of the American people toward our own free way of life are too deeply rooted to be shaken by mere talk or argument from people who are wedded to totalitarian forms of government. It was this kind of faith in the American people that brought about the adoption of the First Amendment, which was expressly designed to let people say what they wanted to about government—even against government if they were so inclined. The idea underlying this then revolutionary idea of freedom was that the Constitution had set up a government so favorable to individual liberty that arguments against that government would fall harmless at the feet of a satisfied and happy citizenship. Thomas Jefferson voiced this idea with simple eloquence on the occasion of his first inauguration as President of the United States: “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” 42 In the main, this is the philosophy under which this country has lived and prospered since its creation. There have, however, been two notable exceptions, the first being the period of the short-lived and unlamented alien and sedition laws of the late 1700’s, and the other 42 Thomas Jefferson, First Inaugural Address, March 4, 1801. This address is reprinted in Jones, Primer of Intellectual Freedom 142, 143 (Harvard University Press, 1949). KONIGSBERG v. STATE BAR. 79 36 Black, J., dissenting. being the period since the beginning of the “cold war” shortly after the close of World War II, in which there has been a widespread fear of an imagined overwhelming persuasiveness in Communist arguments. The most commonly offered justification for the liberty-stifling measures that have characterized this latter period is that the Communists do not themselves believe in the freedoms of speech, press and assembly so they should not be allowed to take advantage of the freedoms our Constitution provides. But, as illustrated by this and many other cases, the effect of repressive laws and inquisitions of this kind cannot be and is not limited to Communists.43 Moreover, the fact that Communists practice repression of these freedoms is, in my judgment, the last reason in the world that we should do so. We do not have to imitate the Communists in order to survive. Our Bill of Rights placed our survival upon a firmer ground—that of freedom, not repression. Nothing in this record shows that Konigsberg has ever been guilty of any conduct that threatens our safety. Quite the contrary, the record indicates that we are fortunate to have men like him in this country for it shows that Konigsberg is a man of firm convictions who has stood up and supported this country’s freedom in peace and in war. The writings that the record shows he has published constitute vehement protests against the idea 43 “Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by that group for its own purposes.” American Communications Assn. v. Douds, 339 U. S. 382, 448-449 (dissenting opinion). 80 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. of overthrowing this Government by force. No witness could be found throughout the long years of this inquisition who could say, or even who would say, that Konigsberg has ever raised his voice or his hand against his country. He is, therefore, but another victim of the prevailing fashion of destroying men for the views it is suspected they might entertain. Mr. Justice Brennan, with whom The Chief Justice joins, dissenting. This judgment must be reversed even if we assume with Mr. Justice Traynor in his dissent in the California Supreme Court, 52 Cal. 2d 769, 774, at 776, 344 P. 2d 777, 780, at 781-782, that “a question as to present or past membership in [the Communist Party] is relevant to the issue of possible criminal advocacy and hence to [Konigsberg’s] qualifications.” The Committee did not come forward, in the proceeding we passed upon in 353 U. S. 252, nor in the subsequent proceeding, with evidence to show that Konigsberg unlawfully advocated the overthrow of the Government. Under our decision in Speiser v. Randall, 357 U. S. 513, the Fourteenth Amendment therefore protects Konigsberg from being denied admission to the Bar for his refusal to answer the questions. In Speiser we held that “. . . when the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.” 357 U. S., pp. 528-529. “There may be differences of degree,” Mr. Justice Traynor said, “in the public interest in the fitness of the applicants for tax exemption and for admission to the Bar”; yet, as to' the latter also, “Such a procedure is logically dictated by Speiser . . . .” 52 Cal. 2d, p. 776, 344 P. 2d, p. 782. And unless mere whimsy governs this Court’s decisions in situations im- KONIGSBERG v. STATE BAR. 81 36 Brennan, J., dissenting. possible rationally to distinguish, such a procedure is indeed constitutionally required here. The same reasons apply. For Mr. Justice Traynor was entirely right in saying: “Whatever its relevancy [the question as to past or present Party membership] in a particular context, ... it is an extraordinary variant of the usual inquiry into crime, for the attendant burden of proof upon any one under question poses the immediate threat of prior restraint upon the free speech of all applicants. The possibility of inquiry into their speech, the heavy burden upon them to establish its innocence, and the evil repercussions of inquiry despite innocence, would constrain them to speak their minds so noncommittally that no one could ever mistake their innocuous words for advocacy. This grave danger to freedom of speech could be averted without loss to legitimate investigation by shifting the burden to the examiners. Confronted with a prima facie case, an applicant would then be obliged to rebut it.” Id., p. 776, 344 P. 2d, p. 782. The Court admits the complete absence of any such predicate by the Committee for its questions. The Court attempts to distinguish the situations in order to escape the controlling authority of Speiser. The speciousness of its reasoning is exposed in Mr. Justice Black’s dissent. I would reverse. 590532 0-61 — 10 82 OCTOBER TERM, 1960. Syllabus. 366 U. S. IN RE ANASTAPLO. CERTIORARI TO THE SUPREME COURT OF ILLINOIS. No. 58. Argued December 14, 1960.—Decided April 24, 1961. A rule of the Supreme Court of Illinois provides that applicants shall be admitted by it to the practice of law after satisfactory examination by the Board of Examiners and certification of qualification by a Committee on Character and Fitness. In hearings before that Committee, petitioner refused to answer any questions pertaining to his membership in the Communist Party, not on the ground of possible self-incrimination, but on the ground that such inquiries violated his freedom of speech and association. The Committee declined to certify him as qualified for admission to the Bar, solely on the ground that his refusals to answer such questions had obstructed the Committee’s performance of its functions. The State Supreme Court denied him admission to practice. Held: Denial of petitioner’s application for admission to the Bar on this ground did not violate his rights under the Fourteenth Amendment. Pp. 83-97. (a) It is not constitutionally impermissible for a State to adopt a rule that an applicant will not be admitted to the practice of law if, and so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-examining him upon his qualifications. Konigsberg v. State Bar, ante, p. 36. P. 88. (b) Petitioner was not privileged under the Fourteenth Amendment to refuse to answer questions concerning membership in the Communist Party. Konigsberg n. State Bar, supra. P. 89. (c) The fact that there was no independent evidence that petitioner had ever been a member of the Communist Party did not prevent the State, acting in good faith, from making this inquiry in an investigation of this kind. Pp. 89-90. (d) During the hearings before the Committee, petitioner w’as given adequate warning as to the consequences of his refusal to answer the Committee’s questions relating to membership in the Communist Party. Pp. 90-94. (e) In the circumstances of this case, petitioner’s exclusion from the Bar on the ground that he had obstructed the Committee in the performance of its duties was not arbitrary or discriminatory. Pp. 94-97. 18 Ill. 2d 182, 163 N. E. 2d 429, affirmed. IN RE ANASTAPLO. 83 82 Opinion of the Court. Petitioner argued the cause and filed a brief pro se. William C. Wines, Assistant Attorney General of Illinois, argued the cause for the State of Illinois, respondent. With him on the brief were William L. Guild, Attorney General, and Raymond S. Sarnow and A. Zola Groves, Assistant Attorneys General. Briefs of amici curiae, urging reversal, were filed by Roscoe T. Steffen for the American Civil Liberties Union and by David Scribner, Leonard B. Boudin, Ben Margolis, William B. Murrish and Charles Stewart for the National Lawyers Guild. Mr. Justice Harlan delivered the opinion of the Court. The questions presented by this case are similar to those involved in No. 28, Konigsberg v. State Bar of California, decided today, ante, p. 36. In 1954 petitioner, George Anastaplo, an instructor and research assistant at the University of Chicago, having previously passed his Illinois bar examinations, was denied admission to the bar of that State by the Illinois Supreme Court.1 The denial was based upon his refusal to answer 1 The Illinois procedure for admission to the bar was thus summarized by the State Supreme Court (3 Ill. 2d, at 475-476, 121 N. E. 2d, at 829): “In the exercise of its judicial power over the bar, and in discharge of its responsibility for the choice of personnel who will compose that bar, this court has adopted Rule 58, (Ill. Rev. Stat. 1951, chap. 110, par. 259.58,) which governs admissions and provides, among other things, that applicants shall be admitted to the practice of law by this court after satisfactory examination by the Board of Examiners and certification of approval by a Committee on Character and Fitness. Section IX of the rule provides for the creation of such committees and imposes upon them the duty to examine applicants who appear before them for moral character, general fitness to practice law and good citizenship. Still another condition precedent to admission to practice law in this State, imposed by the legislature, is the taking of an oath to support the constitution of 84 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. questions of the Committee on Character and Fitness as to whether he was a member of the Communist Party.2 This Court, two Justices dissenting, refused review. 348 U. S. 946. In 1957, following this Court’s decisions in the earlier Konigsberg case, 353 U. S. 252, and in Schware v. Board of Bar Examiners of New Mexico, 353 U. S. 232, Anastaplo sought to have the Character Committee rehear his application for certification. The Committee, by a divided vote, refused, but the State Supreme Court reversed and directed rehearing.3 the United States and the constitution of the State of Illinois. (Ill. Rev. Stat. 1951, chap. 13, par. 4.)” 2 On that occasion the State Supreme Court said (3 Ill. 2d, at 480, 121 N. E. 2d, at 831): “It is our opinion, therefore, that a member of the Communist Party may, because of such membership, be unable truthfully and in good conscience to take the oath required as a condition for admission to practice, and we hold that it is relevant to inquire of an applicant as to his membership in that party. A negative answer to the question, if accepted as true, would end the inquiry on the point. If the truthfulness of a negative answer were doubted, further questions and information to test the veracity of the applicant would be proper. If an affirmative answer were received, further inquiry into the applicant’s innocence or knowledge as to the subversive nature of the organization would be relevant. Under any hypothesis, therefore, questions as to membership in the Communist Party or known subversive ‘front’ organizations were relevant to the inquiry into petitioner’s fitness for admission to the bar. His refusal to answer has prevented the committee from inquiring fully into his general fitness and good citizenship and justifies their refusal to issue a certificate.” 3 In remanding the matter to the Character Committee, the Illinois Supreme Court stated (see 18 Ill. 2d, at 186, 163 N. E. 2d, at 431): “ ‘The principal question presented by the petition for rehearing concerns the significance of the applicant’s views as to the overthrow of government by force in the light of Konigsberg v. State Bar of California, 353 U. S. 252, and Yates v. United States, 1 L. ed. 2d 1356, 77 S. Ct. 1064. Additional questions presented concern the applicant’s activities since his original application was denied, and his present reputation. [Note 3 continued on p. 85.] IN RE ANASTAPLO. 85 82 Opinion of the Court. The ensuing lengthy proceedings before the Committee,* 4 at which Anastaplo was the only witness, are perhaps best described as a wide-ranging exchange between the Committee and Anastaplo in which the Committee sought to explore Anastaplo’s ability conscientiously to swear support of the Federal and State Constitutions, as required by the Illinois attorneys’ oath, and Anastaplo undertook to expound and defend, on historical and ideological premises, his abstract belief in the “right of revolution,” and to resist, on grounds of asserted constitutional right and scruple, Committee questions which he deemed improper.5 The Committee already had before it uncontroverted evidence as to Anastaplo’s “good moral character,” in the form of written statements or affidavits “ ‘We are of the opinion that the Committee should have allowed the petition for rehearing and heard evidence on these matters, and the Committee is requested to do so, and to report the evidence and its conclusions.’ ” 4 The proceedings consumed six hearing days, and resulted in a transcript of over 400 pages. 5 More particularly: petitioner was first asked routine questions about his personal history. He refused, on constitutional grounds, to answer whether he was affiliated with any church. He answered all questions about organizational relationships so long as he did not know that the organization was “political” in character. He refused, on grounds of protected free speech and association, to answer whether he was a member of the Communist Party or of any other group named in the Attorney General’s list of “subversive” organizations, including the Ku Klux Klan and the Silver Shirts of America. Much of the ensuing five sessions was devoted to discussion of Anastaplo’s reasons for believing that inquiries into such matters were constitutionally privileged, and to an unjustifiable attempt, later expressly repudiated by the Committee, to delve into the consistency of petitioner’s religious beliefs with an attorney’s duty to take an oath of office. A substantial part of the proceedings revolved around Anastaplo’s views as to the right to revolt against tyrannical government, and the right to resist judicial decrees in exceptional circumstances. 86 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. furnished by persons of standing acquainted with him, and the record on rehearing contains nothing which could properly be considered as reflecting adversely upon his character or reputation or on the sincerity of the beliefs he espoused before the Committee.6 Anastaplo persisted, however, in refusing to answer, among other inquiries,7 the Committee’s questions as to his possible membership in the Communist Party or in other allegedly related organizations. Thereafter the Committee, by a vote of 11 to 6, again declined to certify Anastaplo because of his refusal to answer such questions, the majority stating in its report to the Illinois Supreme Court: “his [Anastaplo’s] failure to reply, in our view, (i) obstructs the lawful processes of the Committee, (ii) prevents inquiry into subjects which bear intimately upon the issue of character and fitness, such as loyalty to our basic institutions, belief in representative government and bona fides of the attorney’s oath and (iii) results in his failure to meet the burden of establishing that he possesses the good moral character and fitness to practice law, which are conditions to the granting of a license to practice law. “We draw no inference of disloyalty or subversion from applicant’s continued refusal to answer questions concerning Communist or other subversive affiliations. We do, however, hold that there is a strong public interest in our being free to question applicants for admission to the bar on their adherence to our basic institutions and form of government 6 Although the transcript of the prior Committee proceedings has not been made part of the record before us, it is evident that it contained nothing which affirmatively reflected unfavorably on petitioner’s character or reputation. 7 See note 5, supra. IN RE ANASTAPLO. 87 82 Opinion of the Court. and that such public interest in the character of its attorneys overrides an applicant’s private interest in keeping such views to himself. By failing to respond to this higher public interest we hold that the applicant has obstructed the proper functions of the Committee. ... We cannot certify the applicant as worthy of the trust and confidence of the public when we do not know that he is so worthy and when he has prevented us from finding out.” At the same time the full Committee acknowledged that Anastaplo “is well regarded by his academic associates, by professors who had taught him in school and by members of the Bar who know him personally . . .”; that it had “not been supplied with any information by any third party which is derogatory to Anastaplo’s character or general reputation . . and that it had “received no information from any outside source which would cast any doubt on applicant’s loyalty or which would tend to connect him in any manner with any subversive group.” Further, the majority found that Anastaplo’s views “with respect to the right to overthrow the government by force or violence, while strongly libertarian and expressed with an intensity and fervor not necessarily shared by all good citizens, are not inconsistent with those held by many patriotic Americans both at the present time and throughout the course of this country’s history and do not in and of themselves reveal any adherence to subversive doctrines.” 88 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. Upon review, the Illinois Supreme Court, over three dissents,8 confirmed the Committee’s report and refusal to certify Anastaplo, reaffirming in its per curiam opinion the court’s “. . . earlier conclusion that a determination as to whether an applicant can in good conscience take the attorney’s oath to support and defend the constitutions of the United States and the State of Illinois is impossible where he refuses to state whether he is a member of a group dedicated to the overthrow of the government of the United States by force and violence.” 18 Ill. 2d 182, 200-201, 163 N. E. 2d 429, 439. We granted certiorari, 362 U. S. 968, and set the matter for argument along with the Konigsberg case, ante, p. 36, and Cohen v. Hurley, post, p. 117. Two of the basic issues in this litigation have been settled by our contemporary Konigsberg opinion. We have there held it not constitutionally impermissible for a State legislatively, or through court-made regulation as here and in Konigsberg, to adopt a rule that an applicant will not be admitted to the practice of law if, and so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-examining him upon his qualifications. That such was a proper function of the Illinois Character Committee is incontestably established by the opinions of the State Supreme Court in this case. 3 Ill. 8 Two dissenting opinions were filed. Justice Bristow dissented on constitutional grounds. 18 Ill. 2d, at 201, 163 N. E. 2d, at 439. Justices Schaefer and Davis, joining in a single opinion, did not reach the constitutional questions. 18 Ill. 2d, at 224, 163 N. E. 2d, at 928. IN RE ANASTAPLO. 89 82 Opinion of the Court. 2d, at 476,121 N. E. 2d, at 829; 18 Ill. 2d, at 188,163 N. E. 2d, at 432.9 We have also held in Konigsberg that the State’s interest in enforcing such a rule as applied to refusals to answer questions about membership in the Communist Party outweighs any deterrent effect upon freedom of speech and association, and hence that such state action does not offend the Fourteenth Amendment.10 We think that in this respect no valid constitutional distinction can be based on the circumstance that in Konigsberg there was some, though weak, independent evidence that the applicant had once been connected with the Communist Party, while here there was no such evidence as to 9 In its second opinion, the State Supreme Court stated (18 Ill. 2d, at 188, 163 N. E. 2d, at 432): “The committee further advises us that it has conducted no independent investigation into Anastaplo’s character, reputation or activities. For the very practical reason that the committee has no personnel or other resources for any such investigation, the committee states that it has traditionally asserted the view that it cannot be expected to carry the burden of establishing, by independent investigation, whether an applicant possesses the requisite character and fitness for admission to the bar and that a duty devolves upon the applicant to establish that he possesses the necessary qualifications and that it is then the duty of the committee to test, by hearings and questioning of the applicant, the worth of the evidence which he proffers. We agree, and have held that the discretion exercised by the Committee on Character and Fitness will not ordinarily be reviewed. In re Frank, 293 Ill. 263.” 10 The fact that in Konigsberg the materiality of questions relating to Communist Party membership rested directly on the existence of a California statute disqualifying from membership in the bar those advocating forcible overthrow of government, whereas here materiality stemmed from their bearing upon the likelihood that a bar applicant would observe as a lawyer the orderly processes that lie at the roots of this country’s legal and political systems, cf. Barenblatt v. United States, 360 U. S. 109, is of course a circumstance of no significance. 90 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. Anastaplo. Where, as with membership in the bar, the State may withhold a privilege available only to those possessing the requisite qualifications, it is of no constitutional significance whether the State’s interrogation of an applicant on matters relevant to these qualifications— in this case Communist Party membership—is prompted by information which it already has about him from other sources, or arises merely from a good faith belief in the need for exploratory or testing questioning of the applicant. Were it otherwise, a bar examining committee such as this, having no resources of its own for independent investigation, might be placed in the untenable position of having to certify an applicant without assurance as to a significant aspect of his qualifications which the applicant himself is best circumstanced to supply. The Constitution does not so unreasonably fetter the States.11 Two issues, however, do arise upon this record which are not disposed of by Konigsberg. The first is whether Anastaplo was given adequate warning as to the consequences of his refusal to answer the Committee’s questions relating to Communist Party membership. The second is whether his exclusion from the bar on this ground was, in the circumstances of this case, arbitrary or discriminatory. I. The opinions below reflect full awareness on the part of the Character Committee and the Illinois Supreme Court of Anastaplo’s constitutional right to be warned in advance of the consequences of his refusal to answer.12 11 Cf. Garner v. Los Angeles Board, 341 U. S. 716; American Communications Assn. v. Douds, 339 U. S. 382. 12 The Committee’s majority report states: “The Committee repeatedly warned the applicant that questions regarding Communist affiliation were viewed as important by the IN RE ANASTAPLO. 91 82 Opinion of the Court. Cf. Konigsberg v. State Bar, 353 U. S, at 261. On the part of Anastaplo, he stands in the unusual position of one who had already been clearly so warned as a result of his earlier exclusion from the bar for refusal to answer the very question which was again put to him on rehearing. See note 2, supra. Anastaplo nevertheless, contends in effect that he was lulled into a false sense of security by various occurrences at the Committee hearings: (1) several statements by Committee members indicating that all questions asked and refused an answer should not be considered as bearing the same level of importance in the eyes of the Committee; * 13 and (2) a statement by one of the principal Committee members that Illinois had no “per se” rule of exclusion, that is that Anastaplo’s refusal to answer would not automatically operate to exclude him from the bar.14 Committee members and that his failure to respond to them could adversely affect his application for admission to the bar.” The Illinois Supreme Court stated (18 Ill. 2d, at 196, 163 N. E. 2d, at 436): “. . . no problem exists as to inadequate notice of the consequences of a refusal to answer; the applicant was specifically notified both by the Illinois Supreme Court in its opinion in 3 Ill. 2d 471, and by the committee on rehearing that his continued refusal to answer might lead to the denial of his application.” 13 It was stated at one point in the Committee hearings: “It has been pointed out before to you, that the mere fact that a question is asked does not indicate that other people would have asked or approved that question, nor does it indicate that any particular weight will be attached to the answer or failure to answer the question; do you understand?” It should be observed, however, that this remark, as was also the case with an earlier similar remark, was made in the context of questions involving petitioner’s religious beliefs. See note 5, supra. 14 This aspect of Anastaplo’s contention is based on the following episode relating to the Committee’s Communist Party questions: “Mr. Anastaplo: ... I would like to find out exactly what this 92 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. These suggestions, whether taken separately or together, can only be viewed as insubstantial. The sum and substance of the matter is that throughout the renewed proceedings petitioner was fully aware that his application for admission had already once been rejected on the very ground about which he now professes to have been left in doubt, and that the Committee made manifest both that it continued to attach special importance to its Communist Party affiliation questions, and that adverse entails. You are not suggesting that refusal to answer that question would per se block my admission to the bar? “Commissioner Stephan: No, I am saying your refusal to answer that question as to whether you are a member of the Communist Party, could and might. “Mr. Anastaplo: I see. “Commissioner Stephan: To us, it is relevant to your character and fitness. If you should answer the question ‘yes,’ I am not at all sure that would end the inquiry. I think if you should answer it ‘yes,’ the committee should be entitled to probe further and find out what kind of Communist Party member the applicant might be, whether he is an active member, whether he is a dues-paying member, whether he is a policy-making member, whether he is an officer in a local group, or just what he is. So I would point out the seriousness of that issue to you at this time. “Mr. Anastaplo: I assume that the committee does not care to state why this is a particularly serious issue with respect to me? I mean—I notice you say nothing about the Ku Klux Klan or the Silver Shirts of America, about which you have also asked with the same amount of emphasis up to this point, and which I have refused to answer for the same reasons. Would you care to indicate why you say this about this question and not about the other ones? “Commissioner Stephan: I think there is an easy answer to that. This committee has not come into being—this committee cannot completely ignore the history of this proceeding. “Commissioner-----------: But the history includes that question, and that question has been before two of the high courts of the country. “Commissioner Stephan: Whatever the relevance of other questions, we consider that one quite relevant.” IN RE ANASTAPLO. ' 93 82 Opinion of the Court. consequences might well follow if Anastaplo persisted in refusing to answer them. What follows will suffice to show that statements to the effect that the Committee as a whole did not necessarily approve or adopt every question asked by any of its members can hardly be taken as having left petitioner in doubt as to the central importance and general approval of questions about Communist Party membership. At an early stage of the proceedings Anastaplo was informed: “Now you have asked for a warning when we put a question to you that we think is a pivotal, important question in connection with your qualification. I must tell you that we consider that question, ‘Are you a member of the Communist Party,’ such a question; and that the refusal to answer it may have serious consequences to your application.” And at the last hearing one of the leading Committee members responded to Anastaplo’s insistence on being told even more explicitly what refusals to answer would be of significance to the Committee, by pointing out that “The Supreme Court of Illinois has ruled that it is proper for us to ask you whether you are a member of the Communist Party. You have refused to answer the question.” 15 Further, petitioner’s repeated objections throughout the hearings to the effect that there was no basis for the Committee’s evident purpose to give much greater emphasis to questions about Communist Party membership than to other unanswered inquiries, dispel any doubt that 15 The particular importance which the Committee attached to its Communist Party questions was still further brought home to Anastaplo by the fact that after this Court’s decisions in Beilan v. Board of Education, 357 U. S. 399, and Lerner v. Casey, 357 U. S. 468, had come down, the Committee wrote Anastaplo specifically drawing his attention to them. 94 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. Anastaplo was quite aware that Communist-affiliation questions were to be treated differently from other questions he had refused to answer. The other aspect of petitioner’s claim on lack of adequate warning is equally untenable. It is true that the Committee told Anastaplo that his refusal to answer questions would not ipso facto result in his exclusion from the bar, but only that it “could and might.” This, however, certainly did not give rise to constitutional infirmity. Even as to one charged with crime due process does not demand that he be warned as to what specific sanction will be applied to him if he violates the law. It is enough that he know what sanction “could and might” be visited on him. Anastaplo was entitled to no more. It is of course indubitable that by reason of the original rejection of his application, Anastaplo knew of Illinois’ rule of exclusion for refusal to answer relevant questions—indeed the very questions involved here.16 Petitioner having been fairly warned that exclusion from admission to practice might follow from his refusal to answer, it must be found that this requirement of due process was duly met. II. Petitioner’s claim that the application of the State’s exclusionary rule was arbitrary and discriminatory in the circumstances of this case must also be rejected. It is contended (1) that Anastaplo’s refusal to answer these 16 We find it difficult to understand how it can be seriously suggested, as it further is, that petitioner was put off guard by the fact that instead of standing on petitioner’s mere refusal to answer such questions, the Committee proceeded to interrogate him widely. Not only are subsequent events generally irrelevant to an earlier warning, but a large part of the questioning which Anastaplo now complains led him astray was in fact devoted to exploring the bearing of these questions on his fitness for admission to the bar and his reasons for declining to answer them. IN RE ANASTAPLO. 95 82 Opinion of the Court. particular questions did not obstruct the Committee’s investigation, because that body already had before it uncontroverted evidence establishing petitioner’s good character and fitness for the practice of law; and (2) that the real reason why the State proceeded as it did was because of its disapproval of Anastaplo’s constitutionally protected views on the right to resist tyrannical government. Neither contention can be accepted. It is sufficient to say in answer to the first contention that even though the Committee already had before it substantial character evidence altogether favorable to Anastaplo, there is nothing in the Federal Constitution which required the Committee to draw the curtain upon its investigation at that point. It had the right to supplement that evidence and to test the applicant’s own credibility by interrogating him. And to those ends the Committee could insist upon unprivileged answers to relevant questions, such as we have held in our today’s Konigsberg opinion those relating to Communist affiliations were, even though as to them the Committee could not, as it did not, draw an unfavorable inference from refusal to answer. Konigsberg v. State Bar of California, supra. As to the second contention, there is nothing in the record which would justify our holding that the State has invoked its exclusionary refusal-to-answer rule as a mask for its disapproval of petitioner’s notions on the right to overthrow tyrannical government.17 While the Committee’s majority report does observe that there was “a serious question” whether Anastaplo’s views on the right to resist judicial decrees would be compatible with his taking of the attorney’s oath, and that “certain” members of the Committee thought that such views affirma- 17 Both the Committee’s report and the State Supreme Court’s opinion make it apparent that this area of Anastaplo’s views played no part in his exclusion from the bar. See pp. 86-88, supra; 18 Ill. 2d, at 188, 163 N. E. 2d, at 432. 96 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. tively demonstrated his disqualification for admission to the bar,18 it is perfectly clear that the Illinois Bar Committee and Supreme Court regarded petitioner’s refusal to cooperate in the Committee’s examination of him as the basic and only reason for a denial of certification.19 A different conclusion is not suggested by the circumstances that the Committee when it reheard Anastaplo evinced its willingness to consider the effect of petitioner’s refusal to answer in light of what might transpire at the hearings, and that it continued to explore petitioner’s views on resistance and overthrow long after it became clear that he would refuse to answer Communist-affiliation questions. These factors indicate no more than that the Committee was attempting to exercise an informed judgment as to whether the situation was an appropriate one for waiver of the Committee’s continuing requirement, earlier enforced after the first Anastaplo hearings, that such questions must be answered. Finally, contrary to the assumption on which some of the arguments on behalf of Anastaplo seem to have proceeded, we do not understand that Illinois’ exclusionary requirement will continue to operate to exclude Anastaplo from the bar any longer than he continues in his refusal to answer. We 18 This of course could hardly be so in the context of the illustrations which Anastaplo gave of his views as to when a right to resist might arise. These were: Nazi Germany; Hungary during the 1956 revolt against Russia; a hypothetical decree of this Court establishing “some dead pagan religion as the official religion of the country . . .”; a capital sentence of Jesus Christ. Asked to give a more realistic instance of when resistance would be proper, Anastaplo summarized: “I know of no decree, off hand, in the history of American government, where such a single instance has occurred. No—I grant that it is hard to find these instances. I think it is important to insist that there might be such instances.” Nothing in the State Court’s opinion remotely suggests its approbation of these views of “certain” Committee members. 19 Supra, pp. 86-88. IN RE ANASTAPLO. 97 82 Black, J., dissenting. find nothing to suggest that he would not be admitted now if he decides to answer, assuming of course that no grounds justifying his exclusion from, practice resulted. In short, petitioner holds the key to admission in his own hands. We conclude with observing that our function here is solely one of constitutional adjudication, not to pass judgment on what has been done as if we were another state court of review, still less to express any view upon the wisdom of the State’s action. With appropriate regard for the limited range of our authority we cannot say that the State’s denial of Anastaplo’s application for admission to its bar offends the Federal Constitution.20 The judgment of the Illinois Supreme Court must therefore be Affirmed. Mr. Justice Black, with whom The Chief Justice, Mr. Justice Douglas and Mr. Justice Brennan concur, dissenting. The petitioner George Anastaplo has been denied the right to practice law in the State of Illinois for refusing to answer questions about his views and associations. I think this action by the State violated rights guaranteed to him by the First and Fourteenth Amendments. The reasons which lead me to this conclusion are largely the same as those expressed in my dissenting opinion in Konigsberg v. State Bar of California, the companion case decided today, ante, p. 56. But this case provides such a striking illustration of the destruction that can be inflicted upon individual liberty when this Court fails to 20 Apart from anything else, there is of course no room under our Rules for the suggestion made in petitioner’s brief that he be admitted to the Bar of this Court, “independently of the action Illinois might be induced to take.” See Rule 5, Revised Rules of this Court. 590532 0-61 — 11 98 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. enforce the First Amendment to the full extent of its express and unequivocal terms that I think it deserves separate treatment. The controversy began in November 1950,1 when Anastaplo, a student at the University of Chicago Law School, having two months previously successfully passed the Illinois Bar examination, appeared before the State’s Committee on Character and Fitness for the usual interview preliminary to admission to the Bar. The personal history form required by state law had been filled out and filed with the Committee prior to his appearance and showed that Anastaplo was an unusually worthy applicant for admission. His early life had been spent in a small town in southern Illinois where his parents, who had immigrated to this country from Greece before his birth, still resided. After having received his precollege education in the public schools of his home town, he had discontinued his education, at the age of eighteen, and joined the Air Force during the middle of World War II— flying as a navigator in every major theater of the military operations of that war. Upon receiving an honorable discharge in 1947, he had come to Chicago and resumed his education, obtaining his undergraduate degree at the University of Chicago and entering immediately into the study of law at the University of Chicago Law School. His record throughout his life, both as a student and as a citizen, was unblemished. The personal history form thus did not contain so much as one statement of fact about Anastaplo’s past life or conduct that could have, in any way, cast doubt upon his fitness for admission to the Bar. It did, however, contain 1 As the majority points out, the record in the first series of hearings, which culminated in a denial of certiorari by this Court (348 U. S. 946), is not a part of the record in this case but we take judicial notice of it. National Fire Ins. Co. v. Thompson, 281 U. S. 331, 336, and cases cited there. IN RE ANASTAPLO. 99 82 Black, J., dissenting. a statement of opinion which, in the minds of some of the members of the Committee at least, did cast such doubt and in that way served to touch off this controversy. This was a statement made by Anastaplo in response to the command of the personal history form: “State what you consider to be the principles underlying (a) the Constitution of the United States.” Anastaplo’s response to that command was as follows: “One principle consists of the doctrine of the separation of powers; thus, among the Executive, Legislative, and Judiciary are distributed various functions and powers in a manner designed to provide for a balance of power, thereby intending to prevent totally unrestrained action by any one branch of government. Another basic principle (and the most important) is that such government is constituted so as to secure certain inalienable rights, those rights to Life, Liberty and the Pursuit of Happiness (and elements of these rights are explicitly set forth in such parts of the Constitution as the Bill of Rights.). And, of course, whenever the particular government in power becomes destructive of these ends, it is the right of the people to alter or to abolish it and thereupon to establish a new government. This is how I view the Constitution.” (Emphasis supplied.) When Anastaplo appeared before a two-man Subcommittee of the Committee on Character and Fitness, one of its members almost immediately engaged him in a discussion relating to the meaning of these italicized words which were substantially taken from that part of the Declaration of Independence set out below.2 This dis- 2 “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted 100 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. cussion soon developed into an argument as Anastaplo stood by his statement and insisted that if a government gets bad enough, the people have a “right of revolution.” It was at this juncture in the proceedings that the other member of the Subcommittee interrupted with the question: “Are you a member of any organization that is listed on the Attorney General’s list, to your knowledge?” And this question was followed up a few moments later with the question: “Are you a member of the Communist Party?” 3 A colloquy then ensued among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.” 3 The following excerpt from the record of the first hearing indicates clearly the connection between Anastaplo’s views on the “right of revolution” and the questions subsequently asked him about his “possible” political associations: “Commissioner Mitchell: When you say ‘believe in revolution,’ you don’t limit that revolution to an overthrow of a particular political party or a political government by means of an election process or other political means? “Mr. Anastaplo: I mean actual use of force. “Commissioner Mitchell: You mean to go as far as necessary? “Mr. Anastaplo: As far as Washington did, for instance. “Commissioner Mitchell: So that would it be fair to say that you believe the end result would justify any means that were used? “Mr. Anastaplo: No, the means proportionate to the particular end in sight. “Commissioner Mitchell: Well, is there any difference from your answer and my question? “Mr. Anastaplo: Did you ask— “Commissioner Mitchell: I asked you whether you thought that you believe that if a change, or overthrow of the government were justified, that any means could be used to accomplish that end. “Mr. Anastaplo: Now, let’s say in this positive concrete situation—I am not quite sure what it means in abstract. “Commissioner Mitchell: I will ask you in detail. You believe IN RE ANASTAPLO. 101 82 Black, J., dissenting. between Anastaplo and the two members of the Subcommittee as to the legitimacy of the questions being asked, Anastaplo insisting that these questions were not reasonably related to the Committee’s functions and that they violated his rights under the Constitution, and the mem-that assuming the government should be overthrown, in your opinion, that you and others of like mind would be justified in raising a company of men with military equipment and proceed to take over the government of the United States, of the State of Illinois? “By shaking your head do you mean yes? “Mr. Anastaplo : If you get to the point where overthrow is necessary, then overthrow is justified. It just means that you overthrow the government by force. “Commissioner Mitchell: And would that also include in your mind justification for putting a spy into the administrative department, one or another of the administrative departments of the United States or the government of the State of Illinois ? “Mr. Anastaplo: If you got to the point you think the government should be overthrown, I think that would be a legitimate means. “Commissioner Mitchell: There isn’t any difference in your mind in the propriety of using a gun or using a spy? “Mr. Anastaplo: I think spies have been used in quite honorable causes. “Commissioner Mitchell: Your answer is, you do think so? “Mr. Anastaplo: Yes. “Commissioner Baker: Let me ask you a question. Are you aware of the fact that the Department of Justice has a list of what are described as subversive organizations? “Mr. Anastaplo: Yes. “Commissioner Baker: Have you ever seen that list? “Mr. Anastaplo: Yes. “Commissioner Baker: Are you a member of any organization that is listed on the Attorney General’s list, to your knowledge? (No answer.) Just to keep you from having to work so hard mentally on it, what organizations—give me all the organizations you are affiliated with or are a member of. (No answer.) That oughtn’t to be too hard. “Mr. Anastaplo: Do you believe that is a legitimate question? “Commissioner Baker: Yes, I do. We are inquiring into not only your character, but your fitness, under Rule 58. We don’t compel you to answer it. Are you a member of the Communist Party?” 102 OCTOBER TERM, 1960. Black, J., dissenting. 366U.S. bers of the Subcommittee insisting that the questions were entirely legitimate. The Subcommittee then refused to certify Anastaplo for admission to the Bar but, instead, set a further hearing on the matter before the full Committee. That next hearing, as well as all of the hearings that followed, have been little more than repetitions of the first. The rift between Anastaplo and the Committee has grown ever wider with each successive hearing. Anastaplo has steadfastly refused to answer any questions put by the Committee which inquired into his political associations or religious beliefs. A majority of the members of the Committee, faced with this refusal, has grown more and more insistent that it has the right to force him to answer any question it sees fit to ask. The result has been a series of hearings in which questions have been put to Anastaplo with regard to his “possible” association with scores of organizations, including the Ku Klux Klan, the Silver Shirts (an allegedly Fascist organization), every organization on the so-called Attorney General’s list, the Democratic Party, the Republican Party, and the Communist Party. At one point in the proceedings, at least two of the members of the Committee insisted that he tell the Committee whether he believes in a Supreme Being and one of these members stated that, as far as his vote was concerned, a man’s “belief in the Deity . . . has a substantial bearing upon his fitness to practice law.” It is true, as the majority points out, that the Committee did not expressly rest its refusal to certify Anastaplo for admission to the Bar either upon his views on the “right of revolution,” as that “right” is defined in the Declaration of Independence, or upon his refusal to disclose his beliefs with regard to the existence of God,4 4 As the majority points out, the Committee eventually did expressly disavow any right to insist upon an answer to this question. This came at the end of a long disagreement between Anastaplo and IN RE ANASTAPLO. 103 82 Black, J., dissenting. or upon his refusals to disclose any of his political associations other than his “possible” association with the Communist Party. But it certainly cannot be denied that the other questions were asked and, since we should not presume that these members of the Committee did not want answers to their questions, it seems certain that Anastaplo’s refusal to answer them must have had some influence upon the final outcome of the hearings. In any case, when the Committee did vote, 11-6, not to certify Anastaplo for admission, not one member who asked any question Anastaplo had refused to answer voted in his favor. The reasons for Anastaplo’s position have been stated by him time and again—first, to the Committee and, later, in the briefs and oral arguments he presented in his own behalf, both before this Court and before the Supreme Court of Illinois. From a legal standpoint, his position throughout has been that the First Amendment gave him a right not to disclose his political associations or his religious beliefs to the Committee. But his decision to refuse to disclose these associations and beliefs went much deeper than a bare reliance upon what he considered to be his legal rights. The record shows that his refusal to answer the Committee’s question stemmed primarily from his belief that he had a duty, both to society and to the legal profession, not to submit to the demands of the Committee because he believed that the questions had been asked solely for the purpose of harassing him because he certain members of the Committee with respect to the vitality of an old Illinois decision which indicated that a belief in God might be necessary in order to take an oath to testify. The Committee’s abandonment of the point came only after Anastaplo produced a more recent Illinois case disapproving the earlier decision. It is interesting to note that neither of the Committee members who had expressed such a strong interest in knowing whether Anastaplo believes in God voted in favor of his certification. 104 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. had expressed agreement with the assertion of the right of revolution against an evil government set out in the Declaration of Independence. His position was perhaps best stated before the Committee in his closing remarks at the final session: “It is time now to close. Differences between us remain. I leave to others the sometimes necessary but relatively easy task of praising Athens to Athenians. Besides, you should want no higher praise than what I have said about the contribution the bar can make to republican government. The bar deserves no higher praise until it makes that contribution. You should be grateful that I have not made a complete submission to you, even though I have cooperated as fully as good conscience permits. To the extent I have not submitted, to that extent have I contributed to the solution of one of the most pressing problems that you, as men devoted to character and fitness, must face. This is the problem of selecting the standards and methods the bar must employ if it is to help preserve and nourish that idealism, that vital interest in the problem of justice, that so often lies at the heart of the intelligent and sensitive law student’s choice of career. This is an idealism which so many things about the bar, and even about bar admission practices, discourage and make unfashionable to defend or retain. The worthiest men live where the rewards of virtue are greatest. “I leave with you men of Illinois the suggestion that you do yourselves and the bar the honor, as well as the service, of anticipating what I trust will be the judgment of our most thoughtful judges. I move therefore that you recommend to the Supreme Court of Illinois that I be admitted to the bar of this IN RE ANASTAPLO. 105 82 Black, J., dissenting. State. And I suggest that this recommendation be made retroactive to November 10, 1950 when a young Air Force veteran first was so foolish as to continue to serve his country by daring to defend against a committee on character and fitness the teaching of the Declaration of Independence on the right of revolution.” The reasons for the Committee’s position are also clear. Its job, throughout these proceedings, has been to determine whether Anastaplo is possessed of the necessary good moral character to justify his admission to the Bar of Illinois. In that regard, the Committee has been given the benefit of voluminous affidavits from men of standing in their professions and in the community that Anastaplo is possessed of an unusually fine character. Dr. Alexander Meiklejohn, Professor of Philosophy, Emeritus, at the University of Wisconsin, for example, described Anastaplo as “intellectually able, a hard, thorough student and moved by high devotion to the principles of freedom and justice.” Professor Malcolm P. Sharp of the University of Chicago Law School stated: “No question has ever been raised about his honesty or his integrity, and his general conduct, characterized by friendliness, quiet independence, industry and courage, is reflected in his reputation.” Professor Roscoe T. Steffen of the University of Chicago Law School said: “I know of no one who doubts his honesty and integrity.” Yves R. Simon, Professor of Philosophy at the University of Chicago, said: “I consider Anastaplo as a young man of the most distinguished and lofty moral character. Everybody respects him and likes him.” . Angelo G. Geocaris, a practicing attorney in the City of Chicago, said of Anastaplo: “His personal code of ethics is unexcelled by any practicing attorney I have met in the state of Illinois.” Robert J. Coughlan, Division Director of 106 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. a research project at the University of Chicago, said: “His honesty and integrity are, in my opinion, beyond question. I would highly recommend him without the slightest reservation for any position involving the highest or most sacred trust. The applicant is a rare man among us today: he has an inviolable sense of Honor in the great traditions of Greek culture and thought. If admitted to the American Bar, he could do nothing that would not reflect glory on that institution.” These affidavits and many more like them were presented to the Committee. Most of the statements came from men who knew Anastaplo intimately on the University of Chicago campus where Anastaplo has remained throughout the proceedings here involved, working as a research assistant and as a lecturer in Liberal Arts and studying for an advanced degree in History and Social Sciences. Even at the present time, he is still there preparing his doctoral dissertation which, understandably enough, is tentatively entitled “The Historical and Philosophical Background of the First Amendment of the Constitution of the United States.” The record also shows that the Committee supplemented the information it had obtained about Anastaplo from these affidavits by conducting informal independent investigations into his character and reputation. It sent agents to Anastaplo’s home town in southern Illinois and they questioned the people who knew him there. Similar inquiries were made among those who knew him in Chicago. But these intensive investigations apparently 5 failed to produce so much as one man in Chicago or in the whole State of Illinois who could say or would say, directly, indirectly or even by hearsay, one thing deroga- 5 The record shows that although Anastaplo repeatedly requested that the Committee allow him to see any reports that resulted from these independent investigations, the Committee, without denying that such reports existed, refused to produce them. IN RE ANASTAPLO. 107 82 Black, J., dissenting. tory to the character, loyalty or reputation of George Anastaplo, and not one man could be found who would in any way link him with the Communist Party. This fact is particularly significant in view of the evidence in the record that the Committee had become acquainted with a person who apparently had been a member of a Communist Party cell on the University of Chicago campus and that this person was asked to and did identify for the Committee every member of the Party whom he knew. In addition to the information it had obtained from the affidavits and from its independent investigations, the Committee had one more important source of information about Anastaplo’s character. It had the opportunity to observe the manner in which he conducted himself during the many hours of hearings before it. That manner, as revealed by the record before us and undenied by any findings of the Committee to the contrary, left absolutely nothing to be desired. Faced with a barrage of sometimes highly provocative and totally irrelevant questions from men openly hostile to his position, Anastaplo invariably responded with all the dignity and restraint attributed to him in the affidavits of his friends. Moreover, it is not amiss to say that he conducted himself in precisely the same manner during the oral argument he presented before this Court. Thus, it is against the background of a mountain of evidence so favorable to Anastaplo that the word “overwhelming” seems inadequate to describe it that the action of the Committee in refusing to certify Anastaplo as fit for admission to the Bar must be considered. The majority of the Committee rationalized its position on the ground that without answers to some of the questions it had asked, it could not conscientiously perform its duty of determining Anastaplo’s character and fitness to be a lawyer. A minority of the Committee described 108 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. this explanation as “pure sophistry.” And it is simply impossible to read this record without agreeing with the minority. For, it is difficult to see what possible relevancy answers to the questions could have had in the minds of these members of the Committee after they had received such completely overwhelming proof beyond a reasonable doubt of Anastaplo’s good character and staunch patriotism. I can think of no sound reason for further insistence upon these answers other than the very questionable, but very human, feeling that this young man should not be permitted to resist the Committee’s demands without being compelled to suffer for it in some way. It is intimated that the Committee’s feeling of resentment might be assuaged and that Anastaplo might even be admitted to the Bar if he would only give in to the demands of the Committee and add the requested test oath to the already overwhelming proof he has submitted to establish his good character and patriotism. In this connection, the Court says: “We find nothing to suggest that he would not be admitted now if he decides to answer, assuming of course that no grounds justifying his exclusion from practice resulted. In short, petitioner holds the key to admission in his own hands.” However well this familiar phrase may fit other cases, it does not fit this one. For the attitude of the Committee, as revealed by the transcript of its hearings, does not support a belief that Anastaplo can gain admission to the Illinois Bar merely by answering the Committee’s questions, whatever answers he should give. Indeed, the Committee’s own majority report discloses that Anastaplo’s belief in the “right of revolution” was regarded as raising “a serious question” in the minds of a majority of the Committee with regard to his fitness to practice law and that “certain” members of that majority (how many, we cannot know) have already stated categorically that they will IN RE ANASTAPLO. 109 82 Black, J., dissenting. not vote to admit an applicant who expresses such views. Nor does the opinion of the Illinois Supreme Court indicate that Anastaplo “holds the key to admission in his own hands.” Quite the contrary, that court’s opinion evidences an almost insuperable reluctance to upset the findings of the Committee. Certainly, that opinion contains nothing that even vaguely resembles the sort of implicit promise that would justify the belief asserted by the majority here. And, finally, I see nothing in the majority opinion of this Court, nor in the majority opinions in the companion cases decided today, that would justify a belief that this Court would unlock the door that blocks his admission to the Illinois Bar if Anastaplo produced the “key” and the state authorities refused to use it. The opinion of the majority already recognizes that there is not one scrap of evidence in the record before us “which could properly be considered as reflecting adversely upon his [Anastaplo’s] character or reputation or on the sincerity of the beliefs he espoused before the Committee,” and that the Committee had not received any “ ‘information from any outside source which would cast any doubt on applicant’s loyalty or which would tend to connect him in any manner with any subversive group.’ ” The majority opinion even concedes that Anastaplo was correct in urging that the questions asked by the Committee impinged upon the freedoms of speech and association guaranteed by the First and Fourteenth Amendments. But, the opinion then goes on to hold that Anastaplo can nonetheless be excluded from the Bar pursuant to “the State’s interest in having lawyers who are devoted to the law in its broadest sense . ...” 6 I cannot regard that holding, as applied to a man like Anastaplo, as in any way justi- 6 Konigsberg v. State Bar of California, decided today, ante, pp. 36, 52, which the majority here relies upon as also having settled the issue in this case. 110 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. fied. Consider it, for example, in the context of the following remarks of Anastaplo to the Committee— remarks the sincerity of which the majority does not deny: “I speak of a need to remind the bar of its traditions and to keep alive the spirit of dignified but determined advocacy and opposition. This is not only for the good of the bar, of course, but also because of what the bar means to American republican government. The bar when it exercises selfcontrol is in a peculiar position to mediate between popular passions and informed and principled men, thereby upholding republican government. Unless there is this mediation, intelligent and responsible government is unlikely. The bar, furthermore, is in a peculiar position to apply to our daily lives the constitutional principles which nourish for this country its inner life. Unless there is this nourishment, a just and humane people is impossible. The bar is, in short, in a position to train and lead by precept and example the American people.” 7 These are not the words of a man who lacks devotion to “the law in its broadest sense.” The majority, apparently considering this fact irrelevant because the State might possibly have an interest in learning more about its Bar applicants, decides that Anastaplo can properly be denied admission to the Bar by purporting to “balance” the interest of the State of Illinois in “having lawyers who are devoted to the law in its broadest sense” against the interest of Anastaplo 7 These remarks were made by Anastaplo in his closing argument before the Committee. He also introduced evidence to the Committee that he had earlier expressed similar views in a book review published in 1954. See Anastaplo, Review: Drinker, Legal Ethics, 14 Law. Guild Rev. 144. IN RE ANASTAPLO. Ill 82 Black, J., dissenting. and the public in protecting the freedoms of the First Amendment, concluding, as it usually does when it engages in this process, that “on balance” the interest of Illinois must prevail.8 If I had ever doubted that the “balancing test” comes close to being a doctrine of governmental absolutism—that to “balance” an interest in individual liberty means almost inevitably to destroy that liberty—those doubts would have been dissipated by this case. For this so-called “balancing test”—which, as applied to the First Amendment, means that the freedoms of speech, press, assembly, religion and petition can be repressed whenever there is a sufficient governmental interest in doing so—here proves pitifully and pathetically inadequate to cope with an invasion of individual liberty so plainly unjustified that even the majority apparently feels compelled expressly to disclaim “any view upon the wisdom of the State’s action.” I, of course, wholeheartedly agree with the statement of the majority that this Court should not, merely on the ground that such action is unwise, interfere with governmental action that is within the constitutional powers of that government. But I am no less certain that this Court should not permit governmental action that plainly abridges constitutionally protected rights of the People merely because a majority believes that on “balance” it is better, or “wiser,” to abridge those rights than to leave them free. The inherent vice of the “balancing test” is that it purports to do just that. In the context of its reliance upon the “balancing test,” the Court’s disclaimer 81 think the majority has once again misapplied its own “balancing test,” for the interests it purports to “balance” are no more at stake here than in Konigsberg. Moreover, it seems clear to me that Illinois, like California, is placing the burden of proof upon applicants for the Bar to prove they do not advocate the overthrow of the Government. Thus the decision here, like that in Konigsberg, is contrary to Speiser v. Randall, 357 U. S. 513. 112 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. of “any view upon the wisdom of the State’s action” here thus seems to me to be wholly inconsistent with the only ground upon which it has decided this case. Nor can the majority escape from this inconsistency on the ground that the “balancing test” deals only with the question of the importance of the existence of governmental power as a general matter without regard to the importance of its exercise in a particular case. For in Barenblatt v. United States the same majority made it clear that the “balancing test” is to be applied to the facts of each particular case: “Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” 9 (Emphasis supplied.) Thus the Court not only “balances” the respective values of two competing policies as a general matter, but also “balances” the wisdom of those policies in “the particular circumstances shown.” Thus, the Court has reserved to itself the power to permit or deny abridgment of First Amendment freedoms according to its own view of whether repression or freedom is the wiser governmental policy under the circumstances of each case. The effect of the Court’s “balancing” here is that any State may now reject an applicant for admission to the Bar if he believes in the Declaration of Independence as strongly as Anastaplo and if he is willing to sacrifice his career and his means of livelihood in defense of the freedoms of the First Amendment. But the men who founded this country and wrote our Bill of Rights were strangers neither to a belief in the “right of revolution” nor to the urgency of the need to be free from the control of govern- 9 360 U. S. 109, 126. The majority in Barenblatt then proceeded to “balance” those interests on the basis of the particular record of that case. Id., at 127-134. IN RE ANASTAPLO. 113 82 Black, J., dissenting. ment with regard to political beliefs and associations. Thomas Jefferson was not disclaiming a belief in the “right of revolution” when he wrote the Declaration of Independence. And Patrick Henry was certainly not disclaiming such a belief when he declared in impassioned words that have come on down through the years: “Give me liberty or give me death.” This country’s freedom was won by men who, whether they believed in it or not, certainly practiced revolution in the Revolutionary War. Since the beginning of history there have been governments that have engaged in practices against the people so bad, so cruel, so unjust and so destructive of the individual dignity of men and women that the “right of revolution” was all the people had left to free themselves. As simple illustrations, one government almost 2,000 years ago burned Christians upon fiery crosses and another government, during this very century, burned Jews in crematories. I venture the suggestion that there are countless multitudes in this country, and all over the world, who would join Anastaplo’s belief in the right of the people to resist by force tyrannical governments like those. In saying what I have, it is to be borne in mind that Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the “right of revolution” should be exercised.10 Quite the contrary, 10 Anastaplo’s belief in the “right of revolution,” as disclosed by this record, is no different from that expressed by Professor Chafee: “Most of us believe that our Constitution makes it possible to change all bad laws through political action. We ought to disagree vehemently with those who urge violent methods, and whenever necessary take energetic steps to prevent them from putting such methods into execution. This is a very different matter from holding that all discussion of the desirability of resorting to violence for political purposes should be ruthlessly stamped out. There is not one among us who would not join a revolution if the reason for it be made strong enough.” Chafee, Free Speech in the United States 178 (Harvard University Press, 1942). 590532 0-61 — 12 114 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. the entire course of his life, as disclosed by the record, has been one of devotion and service to his country—first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace. The one and only time in which he has come into conflict with the Government is when he refused to answer the questions put to him by the Committee about his beliefs and associations. And I think the record clearly shows that conflict resulted, not from any fear on Anastaplo’s part to divulge his own political activities, but from a sincere, and in my judgment correct, conviction that the preservation of this country’s freedom depends upon adherence to our Bill of Rights. The very most that can fairly be said against Anastaplo’s position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself. This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar.11 It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law—men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the 11 For a similar case, see In re Summers, 325 U. S. 561, in which a 5-4 majority of this Court upheld an informal order of the Illinois Supreme Court denying Bar admission to Clyde W. Summers on the ground that his religious beliefs were inconsistent with the Illinois Constitution. IN RE ANASTAPLO. 115 82 Black, J., dissenting. fanatical leaders of the Revolutionary government of France 12—men like Charles Evans Hughes, Sr, later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots13—men like Charles Evans Hughes, Jr, and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party 14— men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a 12 At the time of his decision to volunteer his services in defense of Louis XVI, Malsherbes, a man of more than seventy, was apparently completely safe from the post-revolutionary blood bath which then enveloped France. For, although active in public life prior to the Revolution, he had always been a friend of the people and, in any case, he had largely passed out of the public mind with his retirement some years earlier. Within a year of his unsuccessful defense of the life of France’s former king, however, he, together with his entire family, was convicted by a revolutionary tribunal on the vague charge of conspiracy against “the safety of the State and the unity of the Republic.” Malsherbes was then taken to the guillotine where, after being forced to witness the beheading of the other members of his family, he paid with his life for his courage as a lawyer. This story has been interestingly told by John W. Davis. See Davis, The Lawyers of Louis XVI, in The Lawyer, April 1942, p. 5, at 6-13. 13 The story of Hughes’ participation in the fight against the action of the New York Legislature in suspending five of its members in 1920 on the ground that they were socialists is told in John Lord O’Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, 593-594. 14 See Barenblatt v. United States, 360 U. S. 109, 147-148 (dissenting opinion). 116 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. group of thoroughly orthodox, time-serving, governmentfearing individuals is to humiliate and degrade it. But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and timeserving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think.15 This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free. Mr. Justice Brennan, with whom The Chief Justice joins, dissenting. I join Mr. Justice Black’s dissent. I add only that I think the judgment must also be reversed on the authority of Speiser v. Randall, 357 U. S. 513, for the reasons expressed in my dissent in Konigsberg v. State Bar of California, ante, p. 80. 15 See, e. g., Barsky v. Board of Regents, 347 U. S. 442; Uphaus v. Wyman, 360 U. S. 72; Barenblatt v. United States, 360 U. S. 109; Uphaus v. Wyman, 364 U. S. 388; Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431; Konigsberg v. State Bar of California, supra. COHEN v. HURLEY. 117 Syllabus. COHEN v. HURLEY. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 84. Argued December 14-15, 1960.—Decided April 24, 1961. During a judicial inquiry in a state court into alleged professional misconduct of lawyers, petitioner, a lawyer, was called to testify and produce records before the judge in charge of the inquiry. Relying primarily on his state privilege against self-incrimination, he refused to produce the required records and to answer questions relating to his alleged professional misconduct, and he persisted in such refusal after being warned that it might result in “serious consequences” in the form of an exercise of the court’s disciplinary power over attorneys practicing before it. Solely on the ground of such refusal to cooperate in the court’s efforts to expose unethical practices and without any independent proof of wrongdoing on his part, petitioner was disbarred by the state court. Held: Such disciplinary action did not violate petitioner’s rights under the Fourteenth Amendment. Pp. 118-131. (a) Disbarment of petitioner solely because of his refusal to cooperate in the court’s efforts to expose unethical conduct, and without any independent evidence of wrongdoing on his part, was not arbitrary or irrational, and it did not deprive him of liberty without due process of law contrary to the Fourteenth Amendment. Konigsberg v. State Bar, ante, p. 36; In re Anastaplo, ante, p. 82. Pp. 123-125. (b) A different conclusion is not required by the fact that petitioner’s refusal was based on a bona fide assertion of his state privilege against self-incrimination. Pp. 125-127. (c) The Fourteenth Amendment did not give petitioner a federal constitutional right not to be required to incriminate himself in the state proceedings. Pp. 127-129. (d) The State’s action does not unconstitutionally discriminate against lawyers as a class. Pp. 129-131. 7 N. Y. 2d 488, 166 N. E. 2d 672, affirmed. Theodore Kiendl argued the cause and filed a brief for petitioner. 118 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. Denis M. Hurley, respondent, argued the cause pro se. With him on the brief were Michael A. Castaldi, Michael Caputo and James F. Niehoff. Briefs of amici curiae, urging affirmance, were filed by Henry Weiner for the Co-ordinating Committee on Discipline of the Association of the Bar of the City of New York et ah, and by Robert P. Hobson for the Standing Committee on Professional Grievances of the American Bar Association. Briefs of amici curiae, urging reversal, were filed by Leonard B. Boudin for the New York State Association of Plaintiffs’ Trial Lawyers; Emanuel Redfield for the New York Civil Liberties Union; and David Scribner and Herman B. Gerringer for the National Lawyers Guild. Mr. Justice Harlan delivered the opinion of the Court. We are called upon to decide whether the State of New York may, consistently with the Fourteenth Amendment, disbar an attorney who, relying on his state privilege against self-incrimination, has refused to answer material questions of a duly authorized investigating authority relating to alleged professional misconduct.1 1 N. Y. Const., Art. I, § 6. While petitioner, at his appearance before the investigating authority, also claimed a federal privilege not to testify, in his later response to the petition initiating disciplinary proceedings he relied solely upon “the privilege against self-incrimination guaranteed to all persons, lawyers or laymen alike, under Article I Section 6 of the New York State Constitution.” It is of course settled that a Fifth Amendment privilege was not available to petitioner in the present case. See, e. g., Knapp v. Schweitzer, 357 U. S. 371; Lerner v. 'Casey, 357 U. S. 468, 478. Nor do we understand it to be contended that the Fourteenth Amendment automatically precluded the State from exacting petitioner’s testimony and attaching consequences to his refusal to respond. Cf. Adamson v. California, 332 U. S. 46, 54; Palko v. Connecticut, 302 U. S. 319, 323-324; Twining v. New Jersey, 211 U. S. 78, 110-114. We take the petitioner’s position and the remittitur of the Court of Appeals as presenting under the Fourteenth Amendment only a broad claim of fundamental unfairness. COHEN v. HURLEY. 119 117 Opinion of the Court. The issue arises in the context of the so-called Brooklyn “ambulance chasing” Judicial Inquiry which this Court had before it in Anonymous v. Baker, 360 U. S. 287. The origins, authority, and nature of the Inquiry have already been sufficiently described in our opinion in that case. There need only be added here that the purpose of the Inquiry, as reflected in the establishing order of the Appellate Division of the Supreme Court of the State of New York, Second Department, was twofold: “to expose all the evil practices [involved in the improper solicitation and handling of contingent-retainers in personal injury cases] with a view to enabling this court to adopt appropriate measures to eliminate them and to discipline those attorneys found to have engaged in them.” 9 App. Div. 2d 436, 437, 195 N. Y. S. 2d 990, 993. For some years the Second Department has had a court rule “which requires that an attorney who makes contingent-fee agreements for his services in personal injury, wrongful death, property damage, and certain other kinds of cases, must file such agreements with the [Appellate Division] and, if he enters into five or more such agreements in any year, must give to the court in writing certain particulars as to how he came to be retained” (called “Statements of Retainer”). 7 N. Y. 2d 488, 493,166 N. E. 2d 672, 674; see Rule 3 of the Special Rules Regulating the Conduct of Attorneys and Counselors at Law in the Second Judicial Department, Clevenger’s Practice Manual, p. 21-19 (1959). Principally as a result of the large number of Statements of Retainer filed by him during recent years, petitioner was called to testify and produce records before the Justice in charge of the Inquiry.2 Relying on his con- 2 The following quotation from the respondent’s brief accurately reflects the record: “During the period 1954 to 1958, inclusive, pursuant to the provisions of said Rule, petitioner, a specialist in negligence cases, filed 228 statements as to retainer in his own name. In addition, 76 such 120 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. cededly available state privilege against self-incrimina-tion, petitioner refused to produce the records called for and to answer some sixty other questions. The subject matter of such questions was summarized by the New York Court of Appeals in its opinion in this case (7 N. Y. 2d 488, 494, 166 N. E. 2d 672, 674-675), as follows: . Those unanswered questions related to the identity of his law office partners, associates and employees, to his possession of the records of the cases described in his statements of retainer, to any destruction of such records, to his bank accounts, to his paying police officers or others for referring claimants to him, to his paying insurance company employees for referring cases to him, and to his promising to pay to any ‘lay person’ 10% of recoveries or settlements. He was asked—and refused to answer—as to whether he had made or agreed to make such payments to any of several named persons, as to whether he had hired or paid nonlawyers to arrange settlements of his cases with insurance companies and as to whether his partner or associate Rothenberg had been indicted for and had pleaded guilty to violations of sections 270-a and 270-d of the Penal Law which forbid the solicitation of legal business or the employment by lawyers of such solicitors. . . .” After petitioner had refused to answer these questions, counsel for the Inquiry warned him that “serious consequences,” in the form of an exercise of the Appellate Division’s disciplinary power over attorneys practicing before statements were filed in the firm name of Cohen & Rothenberg, thus indicating that petitioner and his law firm had been retained on a contingent basis in a total of 304 negligence cases in five years (R. 33-35). The inquiry therefore deemed it advisable to call petitioner as one of its witnesses.” COHEN v. HURLEY. 121 117 Opinion of the Court. it,3 might flow from his refusal to respond, even though that refusal was based on a claim of privilege. As the basis for his warning counsel referred to various provisions of the Canons of Professional Ethics 4 and of the New York Penal Law.5 Petitioner was then given a further opportunity to respond to the unanswered questions, but he declined, preferring to rely upon his claim of privilege. Thereafter the Justice in charge of the Inquiry recommended to the Appellate Division that petitioner be disciplined. The Appellate Division ordered respondent Hurley to file a petition for disciplinary action. The ensuing petition sought petitioner’s disbarment, alleging as grounds therefor: “The refusal of . . . Albert Martin Cohen, to produce the records [called for by the Inquiry], and his refusal to answer the questions [summarized above], are in disregard and in violation of the inherent duty and obligation of respondent as a member of the legal profession in that, among other things, such refusals are contrary to the standards of candor and frankness that are required and expected of a lawyer 3 Section 90 of the New York Judiciary Law. 4 . . Canon 22 . . . requiring lawyers to be candid and frank when before the court, Canons 28 and 29 forbidding the payment of awards to persons bringing in legal business and requiring lawyers knowing of such practices to inform the court thereof, Canon 34 outlawing division of fees except with other lawyers . . . .” 7 N. Y. 2d 488, 494, 166 N. E. 2d 672, 675. Canons 29 and 34 of the New York Canons of Professional Ethics are found in McKinney N. Y. Laws, Judiciary Law, pp. 774-775. Canons 22 and 28 are found in the 1959 “pocket part,” at pp. 210-211. They are similar in all respects to the correspondingly numbered Canons of Professional Ethics of the American Bar Association. 5 N. Y. Pen. Law §§ 270-a, 270-c, 270-d, 276, “all relating to soliciting and fee splitting.” 7 N. Y. 2d 488, 494, 166 N. E. 2d 672, 675. 122 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. to the Court; such refusals are in defiance of and flaunt [sfc] the authority of the Court to inquire into and elicit information within respondent’s knowledge relating to his conduct and practices as a lawyer; by his refusal to answer the aforesaid questions the respondent hindered and impeded the Judicial Inquiry that was ordered by this Court; by his refusals respondent withheld vital information bearing upon his conduct, character, fitness, integrity, trust and reliability as a member of the legal profession. . . .” The Appellate Division ordered petitioner disbarred, saying (9 App. Div. 2d, at 448-449, 195 N. Y. S. 2d, at 1003): “To avoid any possible doubt as to our position, we state again that the basis for any disciplinary action by this court is, not the fact that respondent has invoked his constitutional privilege against self incrimination, but rather the fact that he has deliberately refused to co-operate with the court in its efforts to expose unethical practices and in its efforts to determine incidentally whether he had committed any acts of professional misconduct which destroyed the character and fitness required of him as a condition to his retention of the privilege of remaining a member of the Bar.” The New York Court of Appeals affirmed, Judge Fuld dissenting.6 7 N. Y. 2d 488, 166 N. E. 2d 672. We granted certiorari because the case presented still another variant of the issues arising in the Konigsberg and Anastaplo cases, ante, pp. 36, 82. Starting from the undeniably correct premise that a State may not arbitrarily refuse a person permission to 6 Judge Fuld dissented on state constitutional grounds, reaching no federal questions. COHEN v. HURLEY. 123 117 Opinion of the Court. practice law, Konigsberg v. State Bar of California, 353 U. S. 252; Schware v. Board of Bar Examiners, 353 U. S. 232, petitioner’s claim that New York’s disbarment of him was capricious rests essentially on two propositions: (1) that the Fourteenth Amendment forbade the State from making his refusal to answer the Inquiry’s questions a per se ground for disbarment; (2) that in any event such a ground is not permissible when refusal to answer rests on a bona fide claim of a privilege against selfincrimination. I. The first contention must be rejected largely in light of our today’s opinions in the Konigsberg and Anastaplo cases, ante, pp. 36, 82. The fact that such refusal was here made a ground for disbarment, rather than for denial of admission to the bar, as in Konigsberg and Anastaplo, is not of constitutional moment. And there is no claim here either that the unanswered questions were not material or that petitioner was not duly warned of the consequences of his refusal to answer. By the same token those cases also dispose of petitioner’s basically similar contention that the State could proceed against him only by way of independent evidence of wrongdoing on his part. We do not think it can be seriously contended that New York’s judicial inquiry was so devoid of rational justification that the mere act of compelling even unprivileged testimony was a deprivation of petitioner’s liberty without due process. History and policy combine to establish the presence of a substantial state interest in conducting an investigation of this kind. That interest is nothing less than the exertion of disciplinary powers which English and American courts (the former primarily through the Inns of Court) have for centuries possessed over members of the bar, incident to their broader responsibility for 124 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. keeping the administration of justice and the standards of professional conduct unsullied. Not only is the practice of such judicial investigations long-established, but the subject matter of the present investigation does not lack a rational basis. It is no less true than trite that lawyers must operate in a three-fold capacity, as selfemployed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes. It is certainly not beyond the realm of permissible state concerns to conclude that too much attention to the business of getting clients may be incompatible with a sufficient devotion to duties which a lawyer owes to the court, or that the “payment of awards to persons bringing in legal business” is inconsistent with the personally disinterested position a lawyer should maintain. Finally, it cannot by any stretch be considered that New York acted arbitrarily or irrationally in applying the disciplinary sanction of disbarment to the petitioner. What Mr. Justice Cardozo (then Chief Judge of the New York Court of Appeals) said in the Karlin case is enough to put an end to that contention: “If a barrister was suspected of misconduct, the benchers of his inn might inquire of his behavior. We can hardly doulpt that refusal to answer would have been followed by expulsion. There was thus little occasion for controversies as to discipline to be brought before the judges unless the benchers failed in the performance of their duties. In case they did fail, a supervisory power was ever in reserve. The inns . . . were subject ... to visitation by the judges .... Short shrift would there have been for the barrister who refused to make answer as to his professional behavior in defiance of the visitors.” 248 N. Y., at 472-473, 162 N. E., at 490. COHEN v. HURLEY. 125 117 Opinion of the Court. If more than long-lived practice is thought necessary to justify such a sanction, it is to be found in the fact that the denial of continued access to a position that can be misused is permissible to assure that the position may not be held without observance of the obligations lawfully imposed upon it. Revocation of a license for failure to fulfill similar obligations of a licensee is the very sanction which the Federal Government has adopted in a number of situations. See 12 U. S. C. § 481,47 U. S. C. §§ 308 (b), 312 (a)(4). II. A different constitutional conclusion does not result from the fact that petitioner’s refusal was based on a good-faith assertion of his state privilege against selfincrimination. Because, from a federal standpoint, there can be no doubt that a State has great leeway in defining the reach of its own privilege against self-incrimination, we regard the scope of federal review here as being limited to the question whether arbitrary or discriminatory state action can be found in the consequences New York has attached to the exercise of the privilege in this instance. Basic to consideration of this aspect of petitioner’s case is the fact that the State’s disbarment order was predicated not upon any unfavorable inference which it drew from petitioner’s assertion of the privilege, cf. Slochower v. Board of Higher Education, 350 U. S. 551, 557-558; Grunewald v. United States, 353 U. S. 391, 421, nor upon any purpose to penalize him for its exercise, but solely upon his refusal to discharge obligations which, as a lawyer, he owed to the court. The Court of Appeals stated: “Of course, [petitioner] had the right to assert the privilege and to withhold the criminating answers. That right was his as it would be the right of any citizen and it was not denied to him. He could not 126 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. be forced to waive his immunity .... But the question still remained as to whether he had broken the ‘condition’ on which depended the ‘privilege’ of membership in the Bar .... ‘Whenever the condition is broken, the privilege is lost’ [citing Matter of Rouss, 221 N. Y. 81, 84-85, 116 N. E. 782, 783, Cardozo, J.]. Appellant as a citizen could not be denied any of the common rights of citizens. But he stood before the inquiry and before the Appellate Division in another quite different capacity, also. As a lawyer he was ‘an officer of the court, and, like the court itself, an instrument ... of justice’ [citing People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471, 162 N. E. 487, 489, Cardozo, J.], with the inevitable consequences that the court which was charged with control and discipline of its officers had its own right to demand his full, honest and loyal co-operation in its investigations and to strike his name from the rolls if he refused to co-operate. Such ‘co-operation’ is a ‘phrase without reality’ as Chief Judge Cardozo wrote in People ex rel. Karlin v. Culkin (supra, p. 471) if a lawyer after refusing to answer pertinent questions about his professional conduct can retain his status and privileges as an officer of the court.” 7 N. Y. 2d, at 495, 166 N. E. 2d, at 675. We do not think that it can be seriously contended that the unavailability of the state privilege in judicial inquiries of this type amounts to a distinction from criminal prosecutions so irrational as to suggest either a denial of due process or a purposeful discrimination of the kind which violates the Equal Protection Clause of the Fourteenth Amendment. A State may rationally conclude that the consequence of disbarment is less drastic than that of a prison term for contempt, albeit arguments to the contrary can be made as well. It may also rationally COHEN v. HURLEY. 127 117 Opinion of the Court. conclude that procedures resulting in greater preventive certainty are warranted when what is involved is the right to continue to occupy a position affording special opportunities for deleterious conduct—opportunities, indeed, created by the State’s original certification of the petitioner’s merit. In this regard all that New York has in effect held is that petitioner, by resort to a privilege against self-incrimination, can no more claim a right not to be disbarred for his refusal to answer with respect to matters within the competence of the Court’s supervisory powers over members of the bar, than could a trustee claim a right not to be removed from office for failure to render accounts which might incriminate him. Finally, where illegal or shady practices on the part of some lawyers are suspected, New York could rationally conclude that the profession itself need not be subjected to the disrespect which would result from the publicity, delay, and possible ineffectiveness in their exposure and eradication that might follow could miscreants only be dealt with through ordinary investigatory and prosecutorial processes. “If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work.” People ex rel. Karlin v. Culkin, 248 N. Y. 465, 480, 162 N. E. 487, 493 (Cardozo, J.). These bases for affording a procedure in such judicial inquiries different from that in criminal prosecutions are more than enough to make wholly untenable a contention that there has here been a denial either of due process or of equal protection. Although what has already been said disposes of this case, we take note, in conclusion, of two further considerations. First, it is suggested that the Fourteenth Amendment gave petitioner a federal constitutional right not to be required to incriminate himself in the state proceedings (although, apart from his claim of funda- 128 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. mental unfairness, the petitioner himself does not so contend, Note 1, supra). That proposition, however, was explicitly rejected by this Court, upon the fullest consideration, more than fifty years ago, Twining v. New Jersey, 211 U. S. 78,7 and such has been the position of the Court ever since.8 See Snyder v. Massachusetts, 291 7 “Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham; many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice but as a law proved by experience to be expedient. See Wigmore, § 2251. It has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law. It should, must and will be rigidly observed where it is secured by specific constitutional safeguards, but there is nothing in it which gives it a sanctity above and before constitutions themselves. Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of National citizenship, but, as has been shown, the decisions of this court have foreclosed that view. There seems to be no reason whatever, however, for straining the meaning of due process of law to include this privilege within it, because, perhaps, we may think it of great value. The States had guarded the privilege to the satisfaction of their own people up to the adoption of the Fourteenth Amendment. No reason is perceived why they cannot continue to do so. The power of their people ought not to be fettered, their sense of responsibility lessened, and their capacity for sober and restrained self-government weakened by forced construction of the Federal Constitution. . . .” 211 U. S., at 113-114. 8 Hence, if any “constitutional privilege against self-incrimination” has here been made a “ ‘phrase without reality’ ” it can only have been a state privilege which this Court does not have jurisdiction to protect. COHEN v. HURLEY. 129 117 Opinion of the Court. U. S. 97; 9 Brown v. Mississippi, 297 U. S. 278, 285; Palko v. Connecticut, 302 U. S. 319, 323-324; Adamson v. California, 332 U. S. 46; 10 Knapp n. Schweitzer, 357 U. S. 371, 374. This is not to say, of course, that States have free rein either in the choice of means of forcing incriminatory testimony, or in the drawing of inferences from a refusal to testify on grounds of possible self-incrimination, no matter how objectionable or irrational. But these decisions do establish, at the very least, that to make out a violation of the Fourteenth Amendment, something substantially more must be shown than that the state procedures involved have a tendency to discourage the withholding of self-incriminatory testimony. It is, however, suggested that such additional factors are to be found in New York’s assertion of a power to grant a state privilege against self-incrimination without including within its sweep protection from disbarment of a lawyer who asserts this privilege during a judicial inquiry into his professional conduct. It is said that this gives rise to a pernicious doctrine whereby lawyers “may be separated into a special group upon which special burdens can be imposed even though such burdens are not and cannot be placed upon other groups.” This argument wholly misconceives the issue and what the Court has held respecting it. The issue is not, of course, whether lawyers are entitled to due process of law in matters of this kind, but, rather, what process is constitutionally due them in such circumstances. We do 9 “The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.” 291 U. S., at 105. 10 “California follows Anglo-American legal tradition in excusing defendants in criminal prosecutions from compulsory testimony. . . . That is a matter of legal policy and not because of the requirements of due process under the Fourteenth Amendment.” 332 U. S., at 54-55. 590532 0-61 — 13 130 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. not hold that lawyers, because of their special status in society, can therefore be deprived of constitutional rights assured to others, but only, as in all cases of this kind, that what procedures are fair, what state process is constitutionally due, what distinctions are consistent with the right to equal protection, all depend upon the particular situation presented, and that history is surely relevant to these inquiries.11 State banks may be subjected to periodic examinations that would violate the rights of some other kinds of business against unreasonable search and seizure. Compare 12 U. S. C. § 481 with Boyd v. United States, 116 U. S. 616. A state contractor can be deprived of even the rudiments of a hearing on the issue of whether the state executive department is contracting in accordance with applicable state law. Cf. Perkins v. Lukens Steel Co., 310 U. S. 113. The “right” to judicial review of agency determinations can be taken away from railroad employees in one situation but 11 Of course it is not alone the early beginning of the practice of judicial inquiry into attorney practices which is significant upon the reasonableness of what transpired here. Rather it is the long life of that mode of procedure which bears upon that issue, in much the same way that a strong consensus of views in the States is relevant to a finding of fundamental unfairness. What is significant is that the practice we are now concerned with has survived the centuries which have seen the fall of all those iniquitous standards of which we are reminded, and which, incidentally, would be equally unconstitutional today if applied after a full criminal-type investigation and trial. While recognizing that the test was not exclusive, this Court stated many years ago: “First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. This test was adopted by the court, speaking through Mr. Justice Curtis, in Murray v. Hoboken Land Co., 18 How. 272, 280 . . . .” Twining v. New Jersey, supra, at 100. COHEN v. HURLEY. 131 117 Black, J., dissenting. guaranteed to professional employees in other situations. Compare Switchmen’s Union of North America v. National Mediation Board, 320 U. S. 297, with Leedom n. Kyne, 358 U. S. 184. A state employee need no longer be entrusted with government property if he refuses to explain what has become of property with which he is charged though his refusal may be protected against a contempt sanction by a state or federal privilege against self-incrimination. Cf. Lerner v. Casey, 357 U. S. 468. Clearly enough, factual distinctions are the determinative consideration upon the question of what process is due in each of these cases. Otherwise making state procedures vary solely on the basis of the given occupation would indeed be nothing less than a denial of equal protection to bankers, contractors, railroad employees, and government employees. On the basis of the factual distinctions that we have mentioned above, we consider that a State can constitutionally afford a different procedure— the present procedure—in these judicial investigations from that in criminal prosecutions. Petitioner’s disbarment is not constitutionally infirm, and the Court of Appeals’ order must be Affirmed. Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting. We are once again called upon to consider the constitutionality of penalties imposed upon lawyers who refuse to testify before a secret inquiry being conducted by the State of New York into suspected unethical practices among members of the legal profession in and around New York City. In Anonymous v. Baker J a majority 1 360 U. S. 287. The majority there held that witnesses before the inquiry could constitutionally be deprived of a public hearing and the assistance of counsel. But cf. Chambers v. Florida, 309 U. S. 227, 237: “The determination to preserve an accused’s right to pro- 132 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. of this Court upheld the power of New York to conduct such a secret inquiry. Here, the majority upholds the disbarment of petitioner, a New York lawyer for thirty-nine years, solely because, in reliance upon an assertion of his constitutional privilege against self-incrimination, he refused to testify before that inquiry. The theory upon which this order of disbarment was upheld by the New York Court of Appeals—a theory which the majority here embraces—is that although lawyers, as citizens, have a constitutional right not to incriminate themselves, they also have a special duty, as lawyers, to cooperate with the courts and that this “duty of co-operation” would become a “ ‘phrase without reality’... if a lawyer after refusing to answer pertinent questions about his professional conduct can retain his status and privileges as an officer of the court.” 2 In my judgment, however, the majority is here approving a practice that makes the constitutional privilege against self-incrimination the “phrase without reality.” 3 cedural due process sprang in large part from knowledge of the historical truth that the rights and liberties of people accused of crime could not be safely entrusted to secret inquisitorial processes.” 2 Matter of Cohen, 7 N. Y. 2d 488, 495, 166 N. E. 2d 672, 675. 3 In my judgment, petitioner’s reliance upon his federal privilege against self-incrimination under the Fifth and Fourteenth Amendments is sufficiently shown by this whole record to require the consideration of that question by this Court. As the majority points out, petitioner expressly asserted that privilege before the court conducting the inquiry. Since that time it is true that he has not always spelled out with meticulous specificity this self-incrimination claim under the Fifth and Fourteenth Amendments, but he has consistently and repeatedly urged that his disbarment violates the Fourteenth Amendment. And the record shows throughout that the whole controversy has hinged around the question of the power of the State, under both the State and the Federal Constitutions, to force him to answer the questions he had been asked at the inquiry. Under these circumstances, I cannot allow to pass unnoticed the violation which I think has occurred with respect to petitioner’s rights under the Fifth COHEN v. HURLEY. 133 117 Black, J., dissenting. This almost magical obliteration of the privilege against self-incrimination represents a radical departure from the previously established practice in the State of New York. For, as pointed out in the dissent of Judge Fuld, the New York Court of Appeals had earlier condemned an attempt to introduce precisely the policy it here accepted, saying: “‘The constitutional privilege [not to incriminate one’s self] is a fundamental right and a measure of duty; its exercise cannot be a breach of duty to the court.’ It follows that . . . the present disciplinary proceeding instituted against the appellant, wherein the single offense charged is his refusal to yield a constitutional privilege, is unwarrantable.” * 4 In departing from its prior policy of fully protecting the privilege against compelled self-incrimination guaranteed by both the State and the Federal Constitutions, the New York court relied heavily on several of this Court’s recent cases.5 Those cases, I regret to say, do provide some support for New York’s partial nullification of the constitutional privilege against self-incrimination. For those cases are a product of the recently emphasized constitutional philosophy under which no constitutional right is safe from being “balanced” out of existence whenever a majority of this Court thinks that the interests of the State “weigh more” than the particular constitutional guarantee involved.6 The product of the “bal- Amendment. Cf. Boynton v. Virginia, 364 U. S. 454, 457. While the Court seems to intimate an opposite view, its opinion appears to me actually to pass upon this federal contention. 4 Matter of Grae, 282 N. Y. 428, 435, 26 N. E. 2d 963, 967. 5 7 N. Y. 2d, at 496, 166 N. E. 2d, at 676. The cases relied upon were: Lerner v. Casey, 357 U. S. 468; Beilan v. Board of Education, 357 U. S. 399; Nelson v. County of Los Angeles, 362 U.S. 1. 6 The majority has not even bothered expressly to “strike a balance” in these cases apparently on the theory that the value of the privilege against self-incrimination is so small that it can be “outweighed” by 134 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. ancing” here is the conclusion that the State’s interest in disbarring any lawyer suspected of “ambulance chasing” outweighs the value of those provisions of our Bill of Rights and the New York Constitution commanding government not to make people testify against themselves. This is a very dubious conclusion, at least to one like me who believes that our Bill of Rights guarantees are essential to individual liberty and that they state their own values leaving no room for courts to “weigh” them out of the Constitution.7 The First Amendment freedoms have already suffered a tremendous shrinkage from “balancing,” 8 and here the Fifth Amendment once again suffers from the same process.9 I agree with Mr. Justice Douglas that the order here under review is in direct conflict with the mandate of the Fifth Amendment as made controlling upon the States by the Fourteenth Amendment.10 any countervailing governmental interest. See, e. g., Nelson v. County of Los Angeles, supra, at 7-8: “Nor do we think that this discharge is vitiated by any deterrent effect that California’s law might have had on Globe’s exercise of his federal claim of privilege. The State may nevertheless legitimately predicate discharge on refusal to give information touching on the field of security.” 7 My views of this “balancing” process have been set out at length in the companion cases, Konigsberg v. State Bar of California, decided today, ante, p. 56, at 62-71, 75, and In re Anastaplo, decided today, ante, p. 97, at 109-113. See also the opinions cited at n. 10 in my dissenting opinion in Konigsberg. 8 See, e. g., Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431; Times Film Corp. v. City of Chicago, 365 U. S. 43; Uphaus v. Wyman, 364 U. S. 388; Barenblatt v. United States, 360 U. S. 109; Uphaus v. Wyman, 360 U. S. 72. 9 It is true that some inroads have already been made into the Fifth Amendment, for both Lerner v. Casey, supra, and Nelson v. County of Los Angeles, supra, rested partly upon a willingness of a majority of this Court to “balance” away the full protection of that Amendment. 10 This conclusion is reached primarily on the basis of agreement with the dissenting opinion of Mr. Justice Harlan in Twining v. New COHEN v. HURLEY. 135 117 Black, J., dissenting. In a less important area, I would be content to rest my dissent upon the single ground that a State may not penalize any person for invoking his constitutional privilege against self-incrimination. But, as I see this case, it involves other constitutional problems that go far beyond the privilege against self-incrimination—problems that involve dangers which, though as yet largely peculiar to the members of the legal profession, are so important that they need to be discussed. And, as I understand the majority’s opinion, it disposes of those problems on a ground that, from the standpoint of the legal profession, is the most far-reaching possible—that lawyers have fewer constitutional rights than others. It thus places the stamp of approval upon a doctrine that, if permitted to grow, as doctrines have a habit of doing, can go far toward destroying the independence of the legal profession and thus toward rendering that profession largely incapable of performing the very kinds of services for the public that most justify its existence. The unlimited reach of the doctrine being promulgated can best be shown by analysis of the issue before us as that issue was posed by the court below. In concluding that petitioner should be disbarred for reliance upon the privilege against self-incrimination, the New York Court of Appeals expressly recognized the right of every citizen, under New York law, to refuse to give self-incriminating testimony. “That right,” the court said, “was his [petitioner’s] as it would be the right of any citizen . . . .” But, the court reasoned, petitioner was more Jersey, 211 U. S. 78, 114-127. But even if that case were rightly decided, it would not provide support for the decision here. For the issue with regard to the privilege against self-incrimination here is quite different from the issue posed in the Twining case. In that case the only question before the Court was whether comment upon a defendant’s failure to take the stand in his own defense was constitutionally permissible. 136 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. than an ordinary citizen. “[H]e stood before the inquiry and before the Appellate Division in another quite different capacity, also.” 11 The capacity referred to was petitioner’s capacity as a lawyer. In that “capacity,” the court concluded, petitioner could not properly avail himself of his rights as a citizen. Thus it is clear that the theory adopted by the court below and reaffirmed by the majority here is that lawyers may be separated into a special group upon which special burdens can be imposed even though such burdens are not and cannot be placed upon other groups. Lawyers are thus to have their legal rights determined by something less than the “law of the land” as it is accorded to other people. In my judgment, the theory so casually but enthusiastically adopted by the majority constitutes nothing less than a denial to lawyers of both due process and equal protection of the laws as guaranteed by the Fourteenth Amendment. For I have always believed that those guarantees, taken together, mean at least as much as Daniel Webster told this Court was meant by due process of law, or the “law of the land,” in his famous argument in the Dartmouth College case: “By the law of the land is most clearly intended the general law .... The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.” 12 I think it is clear that the opin- 11 7 N. Y. 2d, at 495, 166 N. E. 2d, at 675. 12 Dartmouth College v. Woodward, 4 Wheat. 518, 581. See also Vanzant v. Waddel, 2 Yerger 260, in which Judge Catron, later Mr. Justice Catron, speaking for the Supreme Court of Tennessee, observed: “The right to life, liberty and property, of every individual, must stand or fall by the same rule or law that governs every other member of the body politic, or ‘land,’ under similar circumstances; and every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void.” Id., at 270. The views expressed by Webster and Judge Catron COHEN v. HURLEY. 137 117 Black, J., dissenting. ion of the majority in this case says unequivocally that lawyers may not avail themselves of “the general rules which govern society.” The majority recognizes, as indeed it must, that New York is depriving lawyers, because they are lawyers, of the full benefit of a constitutional privilege available to other people. But, instead of reaching the natural and, I think, obvious conclusion that such a singling out of one particular group * 13 for special disabilities with regard to the basic privileges of individuals is in direct conflict with the Fourteenth Amendment,14 it chooses to defend this patent discrimination against lawyers on the theory that there are no protections guaranteed to every man who, in the words of Magna Charta, is being “anywise destroyed” by the Government. The “law of the land” is therefore, in the view of the majority, an accordion-like protection that can be withdrawn from any person or group of persons whenever the Government might prefer “procedures resulting in greater preventive certainty” if it can show some “reasonable” basis for that go back at least as far as 1215 and Magna Charta, in which it was provided: “No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall wre go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land.” 131 recognize, of course, that New York also singles out other groups for special treatment with regard to certain constitutional privileges. See Barsky v. Board of Regents, 347 U. S. 442. That practice, which I regard as also clearly unconstitutional (see my dissenting opinion in that case, id., at 456-467), does not affect the argument here. For discrimination against one group cannot be justified on the ground that it is also practiced against another. 14 Cf. Griffin v. Illinois, 351 U. S. 12. In that case, we said: “In this tradition [the tradition of Magna Charta], our own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.” Id., at 17. 138 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. preference. The majority then proceeds to find such a “reasonable” basis on two grounds: first, that lawyers occupy a high position in our society “affording special opportunities for deleterious conduct” and can, by virtue of that position, be compelled to forego rights that are accorded to other groups; and, secondly, that the powers here exercised over petitioner by the courts of New York are no different than those exercised over lawyers by the courts of England several hundred years ago. In my judgment, neither of these grounds provides the slightest justification for the refusal of the State of New York to allow lawyers to avail themselves of “the general rules which govern society.” I heartily agree with the view expressed by the majority that lawyers occupy an important position in our society, for I recognize that they have a great deal to do with the administration, the enforcement, the interpretation, and frequently even with the making of the Constitution and the other laws that govern us. But I do not agree with the majority that the importance of their position in any way justifies a discrimination against them with regard to their basic rights as individuals. Quite the contrary, I would think that the important role that lawyers are called upon to play in our society would make it all the more imperative that they not be discriminated against with regard to the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power. For, in my judgment, one of the great purposes underlying the grant of those freedoms was to give independence to those who must discharge important public responsibilities. The legal profession, with responsibilities as great as those placed upon any group in our society, must have that independence. If it is denied them, they are likely to become nothing more than parrots of the views of whatever group wields governmental power at the moment. Wherever that has happened in the COHEN v. HURLEY. 139 117 Black, J., dissenting. world, the lawyer, as properly so called and respected, has ceased to perform the highest duty of his calling and has lost the affection and even the respect of the people. Nor do I believe, as the majority asserts, that the discrimination here practiced is justified by virtue of the fact that the courts of England have for centuries exercised disciplinary powers “over members of the bar, incident to their broader responsibility for keeping the administration of justice and the standards of professional conduct unsullied.” The rights of lawyers in this country are not, I hope, to be limited to the rights that English rulers chose to accord to their barristers hundreds of years ago. For it is certainly true that the courts of England could have then, as the majority points out, made “short shrift” of any barrister who refused to “co-operate” with the King’s courts. Indeed, those courts did sometimes make “short shrift” of lawyers whose greatest crime was to dare to defend unpopular causes.15 And in much the same manner, these same courts were at this same time using their “inherent” powers to make “short shrift” of juries that returned the wrong verdict.16 History, I think, records 15 The following excerpt from Hallam, The Constitutional History of England, Vol. I (2d ed.), at 477, indicates the extent to which this sort of thing was done in seventeenth-century England: “Two puritans having been committed by the high-commission court, for refusing the oath ex-officio, employed Mr. Fuller, a bencher of Gray’s Inn, to move for their habeas corpus; which he did on the ground that the high commissioners were not empowered to commit any of his majesty’s subjects to prison. This being reckoned a heinous offence, he was himself committed, at Bancroft’s instigation, (whether by the king’s personal warrant, or that of the council-board, does not appear) and lay in gaol to the day of his death . . . .” 16 Hallam, op. cit., supra, n. 15, at 316, makes the following observation with regard to the duty of cooperation imposed upon English juries: “There is no room for wonder at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff returned a pannel, either 140 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. that it was this willingness on the part of the courts of England to make “short shrift” of unpopular and uncooperative groups that led, first, to the colonization of this country, later, to the war that won its independence, and, finally to the Bill of Rights.17 When the Founders of this Nation drew up our Constitution, they were uneasily aware of this English practice, both as it had prevailed in that country and as it had been experienced in the colonies prior to the Revolution. Particularly fresh in their minds was the treatment that had been accorded the lawyers who had sought to defend John Peter Zenger against a charge of seditious libel before a royal court in New York in 1735.18 These two according to express directions, of which we have proofs, or to what he judged himself of the crown’s intention and interest. If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appearing before the starchamber; lucky, if they should escape, on humble retractation, with sharp words, instead of enormous fines and indefinite imprisonment.” 17 Judge Catron expressed the same point in Vanzant v. Waddel, supra: “The idea of a people through their representatives, making laws whereby are swept away the life, liberty and property of one or a few citizens, by which neither the representatives nor their other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has a name. Such abuses resulted in the adoption of Magna Charta in England, securing the subject against odious exceptions, which is, and for centuries has been the foundation of English liberty. Its infraction was a leading cause why we separated from that country, and its value as a fundamental rule for the protection of the citizen against legislative usurpation, was the reason of its adoption as part of our constitution.” 2 Yerger, at 270-271. 18 See the Trial of John Peter Zenger, 17 Howell’s State Trials 675. Zenger, a newspaper publisher, had seen fit to criticize the government and was being tried for printing “many things derogatory of the dignity of his majesty’s government, reflecting upon the legislature, upon the most considerable persons in the most distinguished stations in the province, and tending to raise seditions and tumults among the people thereof.” Id., at 678. COHEN v. HURLEY. 141 117 Black, J., dissenting. lawyers had been summarily disbarred by the judges presiding at that trial for “having presumed, (notwithstanding they were forewarned by the Court of their displeasure, if they should do it) to sign, and having actually signed, and put into court, Exceptions, in the name of John Peter Zenger; thereby denying the legality of the judges their commissions . . . .” 19 It is to the lasting credit and renown of the colonial bar that Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of the judges, defended and brought about the acquittal of Zenger.20 Unlike the majority today, however, the Founders were singularly unimpressed by the long history of such English practices. They drew up a Constitution with provisions that were intended to preclude for all time in this country the practice of making “short shrift” of anyone— whether he be lawyer, doctor, plumber or thief. Thus, it was provided that in this country, the basic “law of the land” must include, among others, freedom from bills of attainder, from ex post facto laws and from compulsory self-incrimination, and rights to trial by jury after indictment by grand jury and to assistance of counsel.21 To make certain that these rights and freedoms would be accorded equally to everyone, it was also provided: “No person shall ... be deprived of life, liberty, or property, without due process of law.” 22 (Emphasis supplied.) 19 Id., at 686-687. The judges there preferred the label of “contempt” to that of “failure to co-operate.” 20 See Dictionary of American Biography, Vol. XX, at 648-649, for the story of Hamilton’s successful defense of Zenger. 21 Cf. Chambers v. Florida, 309 U. S. 227, 235-241, especially at 237, n. 10. 22 That command, of course, originally applied only to the Federal Government. Barron v. Baltimore, 7 Pet. 243. But with the adoption in 1868 of the Fourteenth Amendment, the same command, together with the related requirement of equal protection of the laws, became binding upon the States. 142 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. The majority is holding, however, that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of.23 This Court should say here with respect to due process and selfincrimination what it said with respect to the freedoms of speech and press in Bridges v. California: “[T]o assume that English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.’ ” 24 Instead of applying the reasoning of the Bridges case to protect the right of lawyers to avail themselves of the privilege against self-incrimination, the majority departs from that reasoning in an opinion that threatens also to restrict the freedoms of speech, press and association. For, in addition to the bare holding that a lawyer may not avail 23 The majority asserts that it is not only “the early beginning of the practice of judicial inquiry into attorney practices . . . [but also] the long life of that mode of procedure” that justifies its decision here. This argument—that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution—is not, as the majority points out, a new one. It lay at the basis of two of this Court’s more renowned decisions—Dred Scott n. Sandford, 19 How. 393, and Plessy n. Ferguson, 163 U. S. 537. But cf. Brown v. Board of Education, 347 U. S. 483. The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often “claims the right not only of making the laws, but of breaking the laws it has made.” De Tocqueville, Democracy in America, Vol. 1, at 261. 24 314 U. S. 252, 264. COHEN v. HURLEY. 143 117 Black, J., dissenting. himself of the “law of the land” with respect to the privilege against self-incrimination, the opinion carries the plain implication that a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to “co-operate” with a judge.25 It is, of course, possible that the majority will allow this process to go no further—that it will not disturb the few remaining constitutional safeguards of the lawyer’s independence. But I find no such promise in the majority’s opinion. On the contrary, I find in that opinion a willingness to give overriding effect to the lawyer’s duty of “co-operation,” even to the destruction of constitutional safeguards, and I cannot know how many constitutional safeguards would be sacrificed to this doctrine. Could a lawyer who refused to “co-operate” now be subjected to an unlawful search in an attempt to find evidence that he is guilty of something that a judge might later find to constitute “shady practices”? 26 Could the court peremptorily confine a lawyer in jail for contempt until he agreed to “co-operate” with the court by foregoing his privilege against self-incrimination—or renouncing his freedom of speech? 27 Or can American courts now emu- 25 This implication stems from the majority’s reliance upon its opinions in the companion cases, Konigsberg v. State Bar of California, ante, p. 36, and In re Anastaplo, ante, p. 82. If, as the majority says, there is no constitutional difference between admission and disbarment proceedings, it seems clear that lawyers may now be called in by a State and forced to disclose their political associations on a penalty of disbarment if they refuse to do so. 20 The same point was persuasively urged by Mr. Justice Floyd of the Florida Supreme Court in a concurring opinion where that court refused to adopt the rule adopted by the New York court in this case. See Sheiner v. State, 82 So. 2d 657, 664. 27 As shown in notes 15 and 16, supra, the same arguments used to justify the decision in this case would also be applicable to the supposed case for it certainly cannot be denied that such a practice had the “sanction” of English history. 144 OCTOBER TERM, 1960. Black, J., dissenting. 366 U.S. late the one-time practice of English courts of sending lawyers to jail for the “crime” of publicly advocating the repeal of laws that require people to incriminate themselves? 28 If the requirements of due process and equal protection of the laws are observed, we know that the answers to these questions would be, no. But who knows how short “short shrift” can get? The majority says that some of the evil practices I have referred to do not exist today and that they would now be held unconstitutional. The Court does not mean, of course, that the people of this country have an “absolute” right not to be subjected to such practices.29 It means rather that a majority of this Court, as presently constituted, thinks that such practices are not “justified on balance.” But only 10 years ago, a different majority of this Court upheld summary imprisonment of the defense counsel in Dennis v. United States,30 on a record which indicated that the primary reason for that imprisonment was the imputation to the lawyers of what the trial judge conceived of as the unpatriotic and treasonable designs of their clients.31 Even more recently, a 28 Hallam, op. cit., supra, n. 15, at 287, reports the following event in early seventeenth-century England: “The oath ex officio, binding the taker to answer all questions that should be put to him, inasmuch as it contravened the generous maxim of English law that no one is obliged to criminate himself, provoked very just animadversion. Morice, attorney of the court of wards, not only attacked its legality with arguments of no slight force, but introduced a bill to take it away. This was on the whole well received by the house; and sir Frahcis Knollys, the stanch enemy of episcopacy, though in high office, spoke in its favour. But the queen put a stop to the proceeding, and Morice lay some time in prison for his boldness.” 29 This much is made indisputably clear in the majority opinion in Konigsberg v. State Bar of California, supra, at 49-51. 30 341 U. S. 494. 31 See Sacher v. United States, 343 U. S. 1, 19 (dissenting opinion). In my judgment the Sacher case is not altogether unlike the case of the lawyer Fuller discussed in n. 15, supra. COHEN v. HURLEY. 145 117 Black, J., dissenting. bare 5-4 majority of this Court prevented the temporary disbarment of a lawyer whose only “crime” lay in criticizing the manner in which the federal courts conduct trials for sedition.32 And today, this Court is upholding the refusal of two States to admit lawyers to their respective Bars solely because those lawyers would not renounce their rights under the First Amendment.33 The sad truth is that the majority is being unduly optimistic in thinking the practices I have mentioned do not exist today. They may have been disguised by description in different language but the practices themselves have not changed. It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man. It is beyond dispute that one of the important ends served by the practice of law is that it provides a means of livelihood for the lawyer and those dependent upon him for support. That means of earning a livelihood is not one that has been conferred upon the lawyer as a gift from the State. Quite the contrary, it represents a substantial investment in time, money and energy on the part of the person who prepares himself to go into the legal profession. Moreover, even after a lawyer has been admitted to practice, a further substantial investment must be made to enable the lawyer to build up the sort of goodwill that lies at the root of any successful practice. Young lawyers must and do take on cases in which their ultimate fee is only a fraction of the real value of the work they 32 In re Sawyer, 360 U. S. 622. Cf. Trial of John Peter Zenger, supra. 33 Konigsberg v. State Bar of California, decided today, supra; In re Anastaplo, decided today, supra. The pressures being brought upon Konigsberg and Anastaplo are subtler than those brought upon such people as Morice (see note 28), but they are no less real. 590532 0-61 — 14 146 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. put into the case in order to build up this sort of goodwill. The lawyer’s abilities, acquired through long and expensive education, and the goodwill attached to his practice, acquired in part through uncompensated services, are capital assets that belong to the lawyer—both as a lawyer and as a man, assuming that such a conceptualistic distinction can be drawn. These assets should be no more subject to confiscation than his home or any other asset he may have acquired through his industry and initiative. If they are used in violation of an already-existing, clear requirement of the law which pronounces as the penalty for violation confiscation of the assets, and if the violation is established in a proceeding in which all the requirements of the “law of the land” are satisfied, that is one thing.34 But to confiscate the earning capacity that represents a large part of a lawyer’s lifetime achievements on the theory that no such asset exists is quite another. The theory that the practice of law is nothing more than a privilege conferred by the State which it can destroy whenever it 34 Thus, I am in complete agreement with the majority that, on a constitutional level, “[i]t is certainly not beyond the realm of permissible state concerns to conclude that too much attention to the business of getting clients may be incompatible with a sufficient devotion to duties which a lawyer owes to the court, or that the ‘payment of awards to persons bringing in legal business’ is inconsistent with the personally disinterested position a lawyer should maintain.” But that state concern in preventing “ambulance chasing” is certainly no greater than the state concern in preventing any other activity which it has seen fit to make a crime. Suspected “ambulance chasers” should be no more subject to the deprivation of due process and equal protection that stems from “procedures resulting in greater preventive certainty” than are suspected murderers. Indeed, it seems to me that if the question is to be decided on the basis of “state concern,” there is no more justification for applying such summary procedures to “ambulance chasing” than for applying them to any other variety of crime. COHEN v. HURLEY. 147 117 Black, J., dissenting. can assert a “reasonable” justification for doing so seems to me to permit plain confiscation. Even apart from the financial impact, the disbarment of a lawyer cannot help but have a tremendous effect upon that lawyer as a man. The dishonor occasioned by an official pronouncement that a man is no longer fit to follow his chosen profession cannot well be ignored. Such dishonor undoubtedly goes far toward destroying the reputation of the man upon whom it is heaped in the community in which he lives. And the suffering that results falls not only upon the disbarred lawyer but upon his family as well. Government certainly should not be allowed to do this to a man without according him the full benefit of the “law of the land,” both constitutional and statutory. In view of all this, I can see no justification for the notion that membership in the bar is a mere privilege conferred by the State and is therefore subject to withdrawal for the “breach” of whatever vague and indefinite “duties” the courts and other lawyers may see fit to impose on a case-by-case basis.35 Nearly a century ago, an English judge observed, correctly I think, that “short of those heavy consequences which would attach to the greater and more heinous offences, I own I can conceive of no jurisdiction more serious than that by which a man may be deprived of his degree and status as a barrister, and which, in such a case—perhaps, after he has devoted the best years of his life to this arduous profession,—deprives him of his position as a member of that profession, and throws him back upon the world to commence a new career as best he may, stamped with dishonour and disgrace.” 36 35 Cf. Barsky v. Board of Regents, supra, at 459, 472-474 (dissenting opinions). 36 Hudson v. Slade, 3 Foster and Finlason (Q. B.) 390, 411. 148 OCTOBER TERM, 1960. Black, J., dissenting. 366 U. S. But that is precisely what is happening here on the basis of nothing more than petitioner’s “failure to co-operate” with the courts by reliance upon his constitutional privilege against self-incrimination. A man who has devoted thirty-nine years of his life to the practice of law and who, so far as this record shows, has never failed to perform those services faithfully and honorably is being dismissed from the profession in disgrace and is having his means of livelihood taken away from him at a point in his life when it seems highly unlikely that he will be able to find an adequate alternative means to support himself. Quite differently from the majority, I think that the legal profession not only can but should endure what the majority refers to as the “disrespect which would result from the publicity, delay, and possible ineffectiveness in their exposure and eradication that might follow could miscreants only be dealt with through ordinary investigatory and prosecutorial processes.” (Emphasis supplied.) Indeed, I cannot understand how any man in this country can assume that “publicity,” “delay” and “ineffectiveness” brought on by observance of due process of law can ever be disrespectable. I am not at all certain, however, that the legal profession can survive in any form worthy of the respect we want it to have if its internal intergroup conflicts over professional ethics37 are not rigidly confined by just those “ordinary investigatory and prosecutorial processes” which, though belittled by the majority today, are enshrined in the concepts of equal protection and due process. For if the legal profession can, with the aid of those members of 37 The true nature of the underlying controversy in this case, as a controversy between economically competing groups of lawyers, is shown by the fact that four different associations of attorneys filed briefs as amici curiae in the present proceeding—two favorable to petitioner and two favorable to respondent. COHEN v. HURLEY. 149 117 Black, J., dissenting. the profession who have become judges, exclude any member it wishes even though such exclusion could not be accomplished within the limits of the same kind of due process that is accorded to other people, how is any lawyer going to be able to take a position or defend a cause that is likely to incur the displeasure of the judges or whatever group of his fellow lawyers happens to have authority over him? 38 The answer is that in many cases he is not going to be able to take such a position or to defend such a cause and the public will be deprived of just those legal services that, in the past, have given lawyers their most bona fide claim to greatness. It may be that petitioner has been guilty of some violation of law which if legally proved would justify his disbarment. It is only fair to say, however, that there is not one shred of evidence in this record to show such a violation. And petitioner is entitled to every presumption of innocence until and unless such a violation has been charged and proved in a proceeding in which he, like other citizens, is accorded the protection of all of the safeguards guaranteed by the requirements of equal protection and due process of law. This belief that lawyers too are entitled to due process and equal protection of the laws will not, I hope, be regarded as too new or too novel. The great importance of observing due process of law, though to some extent familiar to lawyers and laymen alike, is sometimes difficult for laymen to understand. Courts have often had to rely upon lawyers and their familiarity with the wisdom underlying these processes 38 The immense danger of departures from due process to lawyers who represent unpopular causes is dramatically illustrated in Sacher v. United States, supra. Cf. United States ex rel. Goldsby v. Harpole, 263 F. 2d 71, 82, for a discussion of another situation in which the independence of the lawyer may be crucial to his ability adequately to defend his client. 150 OCTOBER TERM, 1960. Douglas, J., dissenting. 366 U.S. to explain the need for time-consuming procedures to impatient laymen. Such impatience is understandable when it comes from laymen—but it is regrettable to find it in lawyers. The respect for a rule of law administered through due process of law is the very hallmark of a lawyer—without it he cannot keep faith with his profession. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. The privilege against self-incrimination contained in the Fifth Amendment has an honorable history and should not be downgraded as it is today. Levi Lincoln, Attorney General, objected in the hearing of Marbury v. Madison, 1 Cranch 137, 144, to answering certain questions on the ground that the answers might tend to criminate him.1 See Warren, The Supreme Court in United States History (1937), Vol. I, p. 237. The Court, then headed by Chief Justice Marshall, respected the privilege.2 Neither he nor any Justice even intimated that it was improper for a lawyer to invoke his constitutional rights. They knew that the Fifth Amendment was designed to protect the 1 As reported in The Aurora for February 15, 1803, Levi Lincoln stated to the Court “[t]hat if the court should upon the questions being submitted in writing determine that he was bound to answer them, another difficulty would suggest itself upon the principles of evidence; he would suppose the case to assume its most serious form, if in the course of his official duty these commissions should have come into his hands, and that he might either by error or by intention have done wrong, it would not be expected that he should give evidence to criminate himself. This was an extreme case, and he used only to impress upon the court the nature of the principle in the strongest terms.” 2 The Court, as reported in 1 Cranch, at 144, said that the Attorney General was not obliged “to state any thing which would criminate himself.” COHEN v. HURLEY. 151 117 Douglas, J., dissenting. innocent as well as the guilty. What the Court did that day reflected the attitude expressed by the Court in 1956 in Slochower v. Board of Education, 350 U. S. 551, 557-558, when we said, “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. . . . The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” The lawyer in this case is in the same need of that protection as was the Attorney General in Marbury v. Madison and the professor in the Slochower case. The American philosophy of the Fifth Amendment was dynamically stated by President Andrew Jackson who replied as follows to a House Committee investigating the spoils system: “[Y]ou request myself and the heads of the departments to become our own accusers, and to furnish the evidence to convict ourselves.” H. R. Rep. No. 194, 24th Cong., 2d Sess., p. 31. President Grant took long absences from Washington, D. C., for recreational purposes. A House resolution asked Grant to list all his executive acts, since his election, which had been “performed at a distance from the seat of government established by law,” together with an explanation of the necessity “for such performance.” Grant declined, stating that if the information was wanted for purposes of impeachment “. . . it is asked in derogation of an inherent natural right, recognized in this country by a constitutional guarantee which protects every citizen, the President as well as the humblest in the land, from being made a witness against himself.” 4 Cong. Rec., Pt. 3, 44th Cong., 1st Sess., p. 2999; H. Jour., 44th Cong., 1st Sess., p. 917. 152 OCTOBER TERM, 1960. Douglas, J., dissenting. 366 U. S. A faithful account of the Fifth Amendment was given by Simon H. Rifkind, formerly a federal judge in the Southern District of New York who served with distinction from 1941 to 1950. He said in an address on May 3, 1954: 3 “Far and wide, currency has been given to what I regard as the mischievous doctrine, the unconstitutional and historically false doctrine that the plea of the Fifth Amendment is an admission of guilt, an act of subversion, a badge of disloyalty. “I confess that when I hear the words ‘Fifth Amendment Communist’ spoken, I experience a sense of revulsion. In that phrase I detect a denial of seven centuries of civilizing growth in our law, a repudiation of that high regard for human dignity which is the proud hallmark of our law. That phrase makes a mockery of a practice of every court in our land—a practice which is so well-accepted that we take it for granted: Has any of you ever seen a prosecutor call a defendant to the witness stand? Of course not; you are shocked, I hope, at the suggestion. A defendant takes the stand only of his own free will. Nor do we speak of ‘Fifth Amendment burglars,’ ‘Fifth Amendment traffic violators,’ or ‘Fifth Amendment anti-trust law violators.’ Nor, for that matter, would I speak of ‘Fifth and Sixth Amendment Senators.’ But I do seem to recall that when the actions of a Senator recently came under investigation, he hastened to insure that he would have the right to confront and cross-examine his accusers. He demanded that a statement of the charges be made available to him, and he insisted that he be allowed 3 Rifkind, Reflections on Civil Liberties (American Jewish Committee), pp. 12-13. COHEN v. HURLEY. 153 117 Douglas, J., dissenting. to compel the attendance of witnesses in his own behalf. “This is not the time to go into the hoary history of the Fifth Amendment, but this much is clear: The privilege to remain silent was regarded by our ancestors as the inalienable right of a free man. To compel a man to accuse himself was regarded as a cruelty beneath the tolerance of civilized people, and it simply is not true as a matter of law that only the guilty are privileged to plead the Fifth Amendment. The innocent too have frequent occasion to seek its beneficent protection.” There is no exception in the Fifth Amendment for lawyers any more than there is for professors, Presidents, or other office holders. I believe that the States are obligated by the Due Process Clause of the Fourteenth Amendment to accord the full reach of the privilege to a person who invokes it. See Adamson v. California, 332 U. S. 46, 68 (dissenting opinion); Scott v. California, 364 U. S. 471 (dissenting opinion)—a position which Mr. Justice Brennan today strengthens and reaffirms. In the disbarment proceedings, petitioner relied not only on the state constitution but on the Due Process Clause of the Fourteenth Amendment, contending that it forbade the State’s making his silence the basis for his disbarment. I agree with that view. Moreover, apart from the Fifth Amendment, I do not think that a State may require self-immolation as a condition of retaining the license of an attorney. When a State uses petitioner’s silence to brand him as one who has not fulfilled his “inherent duty and obligation ... as a member of the legal profession,” it adopts a procedure that does not meet the requirements of due process. Taking away a man’s right to practice law is imposing a 154 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. penalty as severe as a criminal sanction, perhaps more so. The State should carry the burden of proving guilt. The short-cut sanctioned today allows proof of guilt to be “less than negligible.” Grunewald v. United States, 353 U. S. 391, 424. Mr. Justice Brennan, with whom The Chief Justice joins, dissenting. I would reverse because I think that the petitioner was protected by the immunity from compulsory self-incrimination guaranteed by the Fifth Amendment, which in my view is absorbed by the Fourteenth Amendment, and therefore is secured against impairment by the States. In Barron v. Baltimore, 7 Pet. 243, decided in 1833, the Court held that it was without jurisdiction to review a judgment of the Maryland Court of Appeals which denied an owner compensation for his private property taken for public use. Chief Justice Marshall wrote that, contrary to the contention of the owner, “the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.” This, he said, was because the first eight Amendments “contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them.” 7 Pet., pp. 250-251. For over a quarter of a century after the adoption of the Fourteenth Amendment in 1868, this holding was influential in many decisions of the Court which rejected arguments for the application to the States of one after another of the specific guarantees included in the Federal Bill of Rights. See Knapp v. Schweitzer, 357 U. S. 371, 378-379, note 5, where the cases are collected. COHEN v. HURLEY. 155 117 Brennan, J., dissenting. In 1897, however, the Court decided Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226. That case also challenged the constitutionality of a judgment of a State Supreme Court, that of Illinois, alleged to have sustained a taking of private property for public purposes without just compensation. But the property owner could now invoke the Fourteenth Amendment against the State. The Court held that the claim based on that Amendment was cognizable by the Court. On the merits, the first Mr. Justice Harlan wrote, “In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that State of a right secured to the owner by that instrument.” 166 U. S., p. 241. Thus the Court, in fact if not in terms, applied the Fifth Amendment’s just-compensation requirement to the States, finding in the Fourteenth Amendment a basis which Chief Justice Marshall in Barron found lacking elsewhere in the Constitution. But if suitors in state cases who invoked the protection of individual guarantees of the Bill of Rights were no longer to be turned away by the Court with Marshall’s summary “This court cannot so apply them,” neither was the Court to give encouragement that all specifics in the federal list would be applied as was the Just Compensation Clause. Although there were Justices as early as 1892, see O’Neil v. Vermont, 144 U. S. 323, 337, 366 (dissenting opinions), as there are Justices today, see dissent of Mr. Justice Douglas herein and Adamson v. California, 332 U. S. 46, 68 (dissenting opinion), urging the view that the Fourteenth Amendment carried over intact the 156 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. first eight Amendments as limitations on the States, the course of decisions has not so far followed that view. Additional specific guarantees have, however, been applied to the States. For example, while as recently as 1922, Prudential Ins. Co. v. Cheek, 259 U. S. 530, 543, the Court had said that the Fourteenth Amendment did not make the protections of the First Amendment binding on the States, decisions since 1925 have extended against state power the full panoply of the First Amendment’s protections for religion, speech, press, assembly, and petition. See, e. g., Gitlow v. New York, 268 U. S. 652, 666; Cantwell v. Connecticut, 310 U. S. 296, 303; West Virginia State Board of Education v. Barnette, 319 U. S. 624; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 707; DeJonge v. Oregon, 299 U. S. 353, 364; Bridges v. California, 314 U. S. 252, 277. The view occasionally expressed that the freedom of speech and the press may be secured by the Fourteenth Amendment less broadly than it is secured by the First, see Beauharnais v. Illinois, 343 U. S. 250, 288 (dissenting opinion); Roth v. United States, 354 U. S. 476, 505-506 (separate opinion); Smith n. California, 361 U. S. 147, 169 (separate opinion), has never persuaded even a substantial minority of the Court. Again, after saying in 1914 that “the Fourth Amendment is not directed to individual misconduct of [state] . . . officials. Its limitations reach the Federal Government and its agencies,” Weeks v. United States, 232 U. S. 383, 398, the Court held in 1949 that “[t]he security of one’s privacy against arbitrary, intrusion by the police . . . is . . . implicit in ‘the concept of ordered liberty’ and as such enforceable against the States . . . .” Wolf v. Colorado, 338 U. S. 25, 27-28; and see Elkins v. United States, 364 U. S. 206. This application of specific guarantees to the States has been attended by denials that this is what in fact is being done. The insistence has been that the applica- COHEN v. HURLEY. 157 117 Brennan, J., dissenting. tion to the States of a safeguard embodied in the first eight Amendments is not made “because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.” Twining v. New Jersey, 211 U. S. 78, 99. In other words, due process is said to be infused with “an independent potency” not resting upon the Bill of Rights, Adamson v. California, 332 U. S. 46, 66 (concurring opinion). It is strange that the Court should not have been able to detect this characteristic in a single specific when it rejected the application to the States of virtually every one of them in the three decades following the adoption of the Fourteenth Amendment. Since “[f]ew phrases of the law are so elusive of exact apprehension as . . . [due process of law] . . . [and] ... its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise,” Twining v. New Jersey, supra, at 99-100, this formulation has been a convenient device for leaving the Court free to select for application to the States some of the rights specifically mentioned in the first eight Amendments, and to reject others. But surely it blinks reality to pretend that the specific selected for application is not really being applied. Mr. Justice Cardozo more accurately and frankly described what happens when he said in Palko v. Connecticut, 302 U. S. 319, 326, that guarantees selected by the Court “have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. . . .” (Italics supplied.) Many have had difficulty in seeing what justifies the incorporation into the Fourteenth Amendment of the First and Fourth Amendments which would not similarly justify the incorporation of the other six. Even if I assume, however, that, at least as to some guarantees, 158 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. there are considerations of federalism—derived from our tradition of the autonomy of the States in the exercise of powers concerning the lives, liberty, and property of state citizens—which should overbear the weighty arguments in favor of their application to the States, I cannot follow the logic which applies a particular specific for some purposes and denies its application for others. If we accept the standards which justify the application of a specific, namely that it is “of the very essence of a scheme of ordered liberty,” Palko v. Connecticut, supra, p. 325, or is included among “those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” Hurtado v. California, 110 U. S. 516, 535, or is among those personal immunities “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U. S. 97, 105, surely only impermissible subjective judgments can explain stopping short of the incorporation of the full sweep of the specific being absorbed. For example, since the Fourteenth Amendment absorbs in capital cases the Sixth Amendment’s requirement that an accused shall have the assistance of counsel for his defense, Powell v. Alabama, 287 U. S. 45, I cannot see how a different or greater interference with a State’s system of administering justice is involved in applying the same guarantee in noncapital cases. Yet our decisions have limited the absorption of the guarantee to such noncapital cases as on their particular facts “render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair . . . ,” Uveges v. Pennsylvania, 335 U. S. 437, 441; see also Betts v. Brady, 316 U. S. 455. But see McNeal v. Culver, 365 U. S. 109, 117 (concurring opinion). This makes of the process of absorption “a license to the judiciary to administer a watered-down, subjective version of the individual guarantees of the Bill of Rights when state cases come before COHEN v. HURLEY. 159 117 Brennan, J., dissenting. us,” which, I said in Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion), I believe to be indefensible. The case before us presents, for me, another situation in which the application of the full sweep of a specific is denied, although the Court has held that its restraints are absorbed in the Fourteenth Amendment for some purposes. Only this Term we applied, admittedly not in terms but nevertheless in fact, the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment to invalidate a state conviction obtained with the aid of a confession, however true, which was secured from the accused by duress or coercion. Rogers v. Richmond, 365 U. S. 534; and see Bram v. United States, 168 U. S. 532. And not too long ago we invalidated a state conviction for illegal possession of morphine based on evidence of two capsules which the accused had swallowed and then had been forced by the police to disgorge. Rochin v. California, 342 U. S. 165. But the Court today relies upon earlier statements that the immunity from compulsory self-incrimination is not secured by the Fourteenth Amendment against impairment by the States. These statements appear primarily in Twining v. New Jersey, supra, and Adamson v. California, supra. Those cases do not require the conclusion reached here. Neither involved the question here presented of the constitutionality of a penalty visited by a State upon a citizen for invoking the privilege. Both involved only the much narrower question whether comment upon a defendant’s failure to take the stand in his own defense was constitutionally permissible. However, all other reasons aside, a cloud has plainly been cast on the soundness of Twining and Adamson by our decisions absorbing the First and Fourth Amendments in the Fourteenth. There is no historic or logical reason for supposing that those Amendments secure more important individual rights. I need not rely only on 160 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. Mr. Justice Bradley’s famed statement in Boyd v. United States, 116 U. S. 616, 632, that compulsory self-incrimination “is contrary to the principles of a free government. It is abhorrent to the instincts of an . . . American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.” I may also call to my support the more current appraisal in the same vein in Ullmann v. United States, 350 U. S. 422, 426-428. The privilege is rightly designated “one of the great landmarks in man’s struggle to make himself civilized.” Griswold, The Fifth Amendment Today, (1955) 7. But even without the support of these eminent authorities, I believe that the unanswerable case for absorption was stated by the first Mr. Justice Harlan in his dissent in Twining, supra, p. 114. Therefore, with him, “I cannot support any judgment declaring that immunity from self-incrimination is not ... a part of the liberty guaranteed by the Fourteenth Amendment against hostile state action.” Id., at 126. The degree to which the privilege can be eroded unless deterred by the Fifth Amendment’s restraints is forcefully brought home in this case by the New York Court of Appeals’ departure from its former precedents. See Judge Fuld’s dissent, 7 N. Y. 2d 488, 498, 166 N. E. 2d 672, 677. I would hold that the full sweep of the Fifth Amendment privilege has been absorbed in the Fourteenth Amendment. In that view the protection it affords the individual, lawyer or not, against the State, has the same scope as that against the National Government, and, under our decision in Slochower v. Board of Education, 350 U. S. 551, the order under review should be reversed. SMITH v. BUTLER. 161 Per Curiam. SMITH v. BUTLER et al, TRUSTEES. CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD APPELLATE DISTRICT. No. 313. Argued March 27-28, 1961.—Decided April 24, 1961. In this case arising under the Federal Employers’ Liability Act, it appeared after argument and due consideration that the course of litigation and the decisions in the Florida courts did not turn on the issue on the basis of which certiorari was granted. Accordingly, the writ is dismissed. Reported below: 118 So. 2d 237. William S. Frates argued the cause and filed a brief for petitioner. Harold B. Wahl argued the cause for respondents. With him on the brief was E. F. P. Brigham. Per Curiam. The petition for certiorari in this case raised solely a question regarding the bearing of the Railway Labor Act on the enforcement of the Federal Employers’ Liability Act. The petition was granted. 364 U. S. 869. After full argument and due consideration, it became manifest that the course of litigation and the decisions in the Florida courts did not turn on the issue on the basis of which certiorari was granted. Accordingly, the writ is dismissed. Mr. Justice Brennan, with whom The Chief Justice and Mr. Justice Black join, dissenting. I cannot agree that, as the Court says, the petition for certiorari in this case “raised solely a question regarding the bearing of the Railway Labor Act on the enforcement of the Federal Employers’ Liability Act.” The issue actually tendered is the familiar one whether a reviewing 590532 0-61 — 15 162 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U.S. court properly deprived an FELA claimant of a jury verdict on the ground that the evidence was insufficient to support the finding of the carrier’s negligence. The Court relies upon “the course of litigation and the decisions in the Florida courts.” My reading of what occurred in the Florida courts makes manifest to me that the issue under the Question Presented in the petition is as to the sufficiency of the proofs to establish negligence. The petitioner was a flagman in the employ of Florida East Coast Railway. He brought this action under the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq., in the Circuit Court of Dade County, Florida. He alleged that he suffered injuries in the course of his employment while taking a “field test” which the carrier required him to take along its right of way and tracks in Florida. He alleged eight grounds of negligence but has abandoned six and we are concerned only with two, namely that the carrier violated the Federal Employers’ Liability Act, “(a) In negligently and unlawfully requiring the plaintiff to participate in such a ‘field test’; (b) In negligently allowing its servants, agents or supervisors to conduct such a ‘field test.’ ” At the close of petitioner’s case at the trial, the carrier made a motion to dismiss the claim alleged under allegations (a) and (b), on the ground that those allegations “pertain to the right to give a field test.” Respondents contended that such a claim, if cognizable at all, was cognizable not under the Federal Employers’ Liability Act but only as a grievance within the exclusive cognizance of the National Railroad Adjustment Board created under the Railway Labor Act, 45 U. S. C. § 153, First (i); see Union Pacific R. Co. v. Price, 360 U. S. 601. The trial judge denied the motion and ruled that the gravamen of the petitioner’s claim was not that respondents could not require petitioner to take a test, but that, “knowing his physical condition,” the carrier was negligent in requiring the petitioner to take SMITH v. BUTLER. 163 161 Brennan, J, dissenting. the particular test. The trial judge also denied the carrier’s motion for a directed verdict grounded on the alleged insufficiency of the proofs to establish negligence. The jury returned a verdict for the petitioner. The Florida District Court of Appeal, Third District, reversed and remanded the case for a new trial. 104 So. 2d 868. On remand counsel for both parties and the trial judge discussed at length what it was the Court of Appeal held. There was agreement that the opinion of the Court of Appeal was ambiguous. It might be read to ground the reversal on the finding by the Court of Appeal that the cause was pleaded and tried on a claim not actionable under the Federal Employers’ Liability Act but, if at all, under the Railway Labor Act. This is suggested by the language in the opinion, “If the appellee were aggrieved, he had a remedy for such grievance under the Railway Labor Act.” 104 So. 2d, at 869-870. On the other hand, the opinion might also be interpreted as grounding the reversal on the insufficiency of the evidence to prove negligence, because the petitioner, while assuming the right of the carrier to give the test, had failed to show that it was negligent in the circumstances proved for the carrier to require the petitioner to take the test. Support for this interpretation is in the statement of the opinion that “The appellee’s entire case as reflected by this record conclusively indicates that it was premised upon the claim that appellant’s conduct in requiring the appellee to take a field test was unlawful and that all of his injuries and damages resulted from such unlawful act.” 104 So. 2d, at 870. The trial judge finally concluded that the opinion of the Court of Appeal was to be read as resting the reversal upon the latter ground. The trial judge stated, “I think that I am inclined to agree with [petitioner’s counsel] that they [the Court of Appeal] just didn’t say requiring a field test was improper. They said, ‘requiring the 164 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. appellee to participate in a field test,’ and they had the field test that was conducted when they wrote this opinion, and if their opinion means anything to us at all, I think we have got to follow it to the extent of our interpretation of their words and what they meant.” The trial judge ruled further that a cause of action for negligence on the part of the carrier in giving the particular test “would be included” in allegation (a) above quoted. The record on remand thus plainly reveals that the trial judge agreed with petitioner’s argument that allegations (a) and (b) of the complaint pleaded, and the parties had tried, a cause of action under the Federal Employers’ Liability Act. Counsel for the carrier admitted during the colloquy on the remand that if this was the cause of action pleaded and tried, the claim was actionable under the Federal Employers’ Liability Act. Carrier’s counsel went further. He said, “I think the proofs so far justify it, but if they want to travel on that issue, I think they could amend.” Petitioner’s counsel was willing to amend but insisted that the case had been pleaded and tried on that theory and that no amendment was necessary. No formal amendment was made, obviously because the trial judge ruled that the theory was embraced within allegation (a). However, petitioner’s counsel desired to apply for review of the Court of Appeal’s determination as rested, as the trial judge had interpreted its opinion, on the ground that the evidence was insufficient to present a jury question of negligence. But, since a new trial was ordered by the Court of Appeal, there could be no final judgment review of which might be sought until a judgment was entered on the retrial. In order to obtain such a judgment without retrying the case, petitioner’s counsel proffered the trial record of the first trial as his only proof at the retrial. He expressly stated that his posi- SMITH v. BUTLER. 165 161 Brennan, J., dissenting. tion was that the trial record was sufficient “to prove that the railroad either knew or should have known that Bert Smith was physically unable to take that test and likely to be injured if he took it, and in spite of what the railroad knew or should have known, they gave him the test.” The trial judge accepted the proffer over the carrier’s objection, but ruled that he was bound by the Court of Appeal’s holding that that record did not suffice to raise a jury question of negligence. “[U]nder the testimony that was adduced before on this point, that I would rule that there was no proper issue of evidence to submit to the jury of negligence on requiring him to take this particular field test under the testimony.” The judge accordingly directed the entry of a judgment in favor of the carrier. Obviously the case went to the District Court of Appeal the second time with this gloss of the trial judge’s interpretation of that Court’s earlier opinion. Therefore, when the District Court of Appeal, per curiam, affirmed “upon the authority” of its previous opinion, 118 So. 2d 237, the affirmance sustained the trial judge’s interpretation of the reversal as having rested, not on the ground that the Railway Labor Act precluded the petitioner’s claim under the Federal Employers’ Liability Act, but on the ground that the evidence of negligence was insufficient to support a recovery on the claim properly pleaded under the latter statute. The Supreme Court of Florida, in an unreported minute, denied petitioner’s petition for certiorari. We granted his petition to this Court, 364 U. S. 869. Against this background of “the course of litigation and the decisions in the Florida courts” the Question Presented, if plain English is to have its ordinary meaning, is whether the Florida Court of Appeal correctly determined that the evidence at the first trial was insufficient to raise a jury question of the alleged negligence of the 166 OCTOBER TERM, 1960. Brennan, J., dissenting. 366 U. S. carrier in requiring the petitioner, knowing his physical condition, to take the field test. For the Question Presented is as follows: “Did the Florida Appellate Court err in holding that when a railroad employee sustains personal injuries while performing an alleged physical fitness field test ordered by the railroad that the provisions of the Railway Labor Act, 45 U. S. C., Section 151, et seq., preclude him from claiming that the giving of such a test under the facts and circumstances of this case was an act of negligence under the Federal Employers’ Liability Act, 45 U. S. C., Section 51, et seq.?” (Emphasis supplied.) Although the members of the Court have disagreed whether we should grant review of these cases, when they are brought here all of us except my Brother Frankfurter believe that we have the duty to dfecide them on the merits. Viewing the issue presented for our review I have read the trial record. I need not rely solely on my own conclusion that the evidence plainly presented a jury question “whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury ... for which damages are sought.” Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 506. I may summon to my support the concession of the carrier’s counsel that on that issue “the proofs so far justify it.” I would reverse and remand the cause with direction to enter an order reinstating the judgment in favor of the petitioner. Mr. Justice Douglas joins this opinion except that he would remand for a new trial. He believes that the District Court of Appeal was correct in holding that the jury trial was not a fair one. See Butler v. Smith, 104 So. 2d 868. LUSH v. EDUCATION COMMISSIONER. 167 366 U. S. Per Curiam. LUSH v. COMMISSIONER OF EDUCATION OF NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 683. Decided April 24, 1961. Appeal dismissed and certiorari denied. Reported below: 7 N. Y. 2d 745, 162 N. E. 2d 738. Francis G. Hessney for appellant. Charles A. Brind for appellee. Max G. Morris for Board of Education Central School District No. 1, intervenor-appellee. Per Curiam. The motions to dismiss are granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. 168 OCTOBER TERM, 1960. Per Curiam. 366 U. S. COMPLETE AUTO TRANSIT, INC., v. CARPENTIER, SECRETARY OF STATE OF ILLINOIS. APPEAL FROM THE SUPREME COURT OF ILLINOIS. No. 750. Decided April 24, 1961. Appeal dismissed and certiorari denied. Reported below: 19 Ill. 2d 551, 169 N. E. 2d 78. Larry A. Esckilsen and Edmund M. Brady for appellant. William G. Clark, Attorney General of Illinois, and Samuel H. Young and Raymond S. Sarnow, Assistant Attorneys General, for appellee. George S. Dixon for the National Automobile Transporters Association, as amicus curiae. Per Curiam. The motion of the National Automobile Transporters Association for leave to file brief, as amicus curiae, is granted. The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. MAINTENANCE EMPLOYES v. U. S. 169 Opinion of the Court. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES et al. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN. No. 681. Argued March 28, 1961.—Decided May 1, 1961. As a condition of its approval of any merger of two or more railroads, § 5 (2) (f) of the Interstate Commerce Act provides that the Interstate Commerce Commission “shall require a fair and equitable arrangement to protect the interests of the railroad employees affected,” including a requirement that, for at least the length of his prior service up to four years, such merger shall not result in any employee “being in a worse position with respect to” his employment. Held: This does not require that all employees remain in the employ of the surviving railroad for at least the length of their previous employment up to four years; it is satisfied by a requirement that discharged employees receive adequate compensation benefits. Pp. 169-179. 189 F. Supp. 942, affirmed. William G. Mahoney argued the cause for appellants. With him on the brief were Clarence M. Mulholland, Edward J. Hickey, Jr., James L. Highsaw, Jr., George E. Brand and George E. Brand, Jr. Solicitor General Cox argued the cause for appellees. With him on the brief were Assistant Attorney General Loevinger, Ralph S. Spritzer, Richard A. Solomon and Robert W. Ginnane. Ralph L. McAfee argued the cause for the Erie-Lackawanna Railroad Co, appellee. With him on the brief were John H. Pickering, Richard D. Rohr and Thomas D. Caine. Mr. Chief Justice Warren delivered the opinion of the Court. The dispute in this case commenced when the Delaware, Lackawanna & Western Railroad Co. and the Erie 170 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. Railroad Co. filed a joint application for approval by the Interstate Commerce Commission of a proposed merger, the surviving company to be known as the Erie-Lackawanna Railroad Co. Supervision by the Commission of railroad mergers is required by §5(2) of the Interstate Commerce Act, 54 Stat. 905, 49 U. S. C. § 5 (2), and the statute directs the Commission to authorize such transactions as it finds will be “consistent with the public interest.” The Commission concluded in this case that the public interest would be served by a merger of the two applicants and that finding has not been questioned. The point in issue is whether the conditions attached to the merger for the protection of the employees of the two roads satisfy the congressional mandate embodied in §5 (2)(f) of the Act, which provides in relevant part that: “As a condition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by railroad subject to the provisions of this part, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order.” (Emphasis added.) MAINTENANCE EMPLOYES v. U. S. 171 169 Opinion of the Court. Before the Commission’s hearing examiner, the railroads suggested that the “New Orleans conditions” be imposed in satisfaction of § 5 (2)(f). These conditions derive their name and substance from the Commission’s decision in the New Orleans Union Passenger Terminal Case, 282 I. C. C. 271, and they provide compensation benefits for employees displaced or discharged as a result of a merger.1 After the hearing had concluded, however, appellant Railway Labor Executives’ Association (RLEA) filed a brief with the examiner claiming that compensatory conditions were not enough since, in its view, the second sentence of §5(2)(f) imposes a minimum requirement that no employee be discharged for at least the length of his prior service up to four years following consummation of the merger. The hearing examiner did not agree with the RLEA’s reading of § 5 (2) (f) and recommended the New Orleans conditions to the Commission, a recommendation which the Commission unanimously adopted. 312 I. C. C. 185. Appellants then instituted proceedings in the United States District Court of Michigan, seeking to enjoin the Commission’s order approving the merger. A temporary restraining order issued following testimony by a representative of the RLEA that irreparable injury to the employees would otherwise ensue. However, after hearing the case on its merits, the District Court dissolved the restraining order and dismissed appellants’ complaint. 189 F. Supp. 1 Briefly, the New Orleans conditions prescribe the following: employees retained on the job but in a lower paying position get the difference between the two salaries for four years following the merger; discharged employees get their old salaries for four years, less whatever they make in other jobs, or they may elect a lump sum payment; transferred employees get certain moving expenses, and certain fringe benefits are insured; and any additional benefits that a given employee would have received under the Washington Job Protection Agreement, discussed in the text infra, are guaranteed. 172 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. 942. Direct appeal to this Court followed and we noted probable jurisdiction. 365 U. S. 809. Preliminarily, it must be noted that the adequacy of the New Orleans conditions is not an issue before this Court: Appellants did not challenge their sufficiency below, nor do they argue the point here.2 Rather, appellants’ sole contention is that no compensation plan is adequate unless it is based on the premise that all the employees currently on the payroll remain in the surviving railroad’s employ for at least the length of their previous employment up to four years. Appellants do not say that every employee must remain in his present job, but they do insist that some job must remain open for each one. We think, however, that a review of the background of § 5 (2) (f) and its subsequent interpretation demonstrates the defects in appellants’ position. Section 5 (2) (f), as it now appears, was enacted as part of the Transportation Act of 1940. A broad synopsis of the occurrences which led to the enactment of those sections on railroad consolidation of which §5(2)(f) is a part is contained in the Appendix to this Court’s opinion in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298, 315, and it is unnecessary to reproduce that 2 Appellants do relate certain objections to the adequacy of the conditions but it seems clear that these objections, which were not introduced before the Commission or the court below except at the hearing for temporary injunctive relief, have been included in appellants’ brief only as background material. If appellants wish to challenge directly the adequacy of the conditions, it seems clear that they may still proceed to do so pursuant to § 5 (9) of the Act. In this connection, it should be noted that appellants have contended that the lower court erred when it refused to accept certain testimony concerning the adequacy of the conditions. The short answer to this is that the court did not refuse to accept appellants’ proof; the court explicitly refrained from ruling on the matter when the offer was made and appellants never renewed their efforts. See R. 179. MAINTENANCE EMPLOYES v. U. S. 173 169 Opinion of the Court. material here except to note that: “The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940, enacting § 5 (2) (a) in its present form, was to facilitate merger and consolidation in the national transportation system.” County of Marin v. United States, 356 U. S. 412, 416. The relevant events, for present purposes, date from 1933, when Congress passed the Emergency Railroad Transportation Act, 48 Stat. 211. That Act contemplated extensive railroad consolidations and provided for employee protection pursuant thereto in the following language: “[N]or shall any employee in such service be deprived of employment such as he had during said month of May or be in a worse position with respect to his compensation for such employment, by reason of any action taken pursuant to the authority conferred by this title.” Shortly before the Emergency Act expired in 1936, a great majority of the Nation’s railroads and brotherhoods entered into the Washington Job Protection Agreement,3 an industry-wide collective bargaining agreement which also specified conditions for the protection of employees in the event of mergers. Unlike the Emergency Act, however, the Washington Agreement provided for compensatory protection rather than the “job freeze” previously prescribed. Subsequently, efforts commenced to re-evaluate the law relating to railroad consolidations and a “Committee of Six” was appointed by the President to study the matter. Those portions of the Committee’s final report pertaining to employee protection urged codification of the Washington Agreement4 and a bill drafted 3 A discussion of this agreement and its terms is found in United States v. Lowden, 308 U. S. 225. 4 See Hearings before the House Committee on Interstate and Foreign Commerce on H. R. 2531 and H. R. 4862, 76th Cong., 1st Sess. 216-217, 275. 174 OCTOBER TERM, 1960. Opinion of the Court. 366 U.S. along those lines, S. 2009, was passed by the Senate in 1939. 84 Cong. Rec. 6158. The Senate bill contained language identical to that now found in the first sentence of § 5 (2) (f)—i. e., the transaction should contain “fair and equitable” conditions. A bill similar in this respect to S. 2009 was introduced in the House but, before it was sent to the Conference Committee, Representative Harrington inserted an amendment which added a second sentence to the one contained in the original version, this sentence stating that: “[N]o such transaction shall be approved by the Commission if such transaction will result in unemployment or displacement of employees of the carrier or carriers, or in the impairment of existing employment rights of said employees.” 84 Cong. Rec. 9882. The bill came out of the Conference Committee without Representative Harrington’s addendum and, dissatisfaction having been expressed by Representative Harrington and others, a motion to recommit was passed by the House. This motion required that the language of the original House bill be restored “but modified so that the sentence in section 8 which contains the provision known as the Harrington amendment” should speak as the second sentence of § 5 (2)(f) now does—viz., “[the] transaction will not result in employees of said carrier . . . being in a worse position with regard to their employment.” 86 Cong. Rec. 5886. This new phraseology was adopted by the Conference Committee, with the added limitation that such protection need extend no more than four years, and the bill passed without further relevant alteration. 86 Cong. Rec. 10193, 11766. It would not be productive to relate in detail the various statements offered by members of the House to explain the significance of the events outlined above. It is enough to say that they were many, sometimes ambig- MAINTENANCE EMPLOYES v. U. S. 175 169 Opinion of the Court. uous and often conflicting. However, certain points can be made with confidence. First, it is clear that there were two alterations made in the substance of the original Harrington amendment: Not only was a four-year limitation imposed, but also general language of imprecise import was used in substitution for language clearly requiring “job freeze” such as appeared in the original amendment and the 1933 Act.5 Secondly, the representatives whose floor statements are entitled to the greatest weight are those House members who had the last word on the bill—the House conferees who explained the final version of the statute to the House at large immediately prior to passage—rather than those Congressmen whose voices were heard in the early skirmishing but who did not participate in the final compromise.6 Finally, although 5 As further evidence that Congress would have specified “job freeze” had it meant “job freeze” in the 1940 Act, compare the 1943 amendment to § 222 (f) of the Communications Act, 47 U. S. C. §222 (f), where an employee protective arrangement was added by the following language: “Each employee of any carrier which is a party to a consolidation or merger pursuant to this section who was employed by such carrier immediately preceding the approval of such consolidation or merger, and whose period of employment began on or before March 1, 1941, shall be employed by the carrier resulting from such consolidation or merger for a period of not less than four years from the date of the approval of such consolidation or merger, and during such period no such employee shall, without his consent, have his compensation reduced or be assigned to work which is inconsistent with his past training and experience in the telegraph industry.” See also the remarks of Senator White, a proponent of this bill, at 89 Cong. Rec. 1195-1196. 6 Appellants point out that several members of the conference committee opposed the motion to recommit. However, as appellants must concede, reliance on unexplained opposition to a proposal is untrustworthy at best. Witness the fact that all the House members on whose remarks appellants base their position (Representatives Warren, Harrington, and Thomas) voted against the final version of the bill. 176 OCTOBER TERM, 1960. Opinion of the Court. 366 U. S. it might be an overstatement to claim that their remarks are dispositive, the statements the House conferees gave in explanation of the final version clearly reveal an understanding that compensation, not “job freeze,” was contemplated.7 Appellants vigorously argue that the legislative history of §5(2)(f) supports their interpretation. However, were we to agree, it would be necessary to say that a substantial change in phraseology was made for no purpose and to disregard the statements of those 7 See the remarks of conference chairman Lea at 86 Cong. Rec. 10178, particularly that part of his explanation responding to questions put by Representatives Vorys and O’Connor, where it was said: “Mr. VORYS of Ohio. Mr. Speaker, will the gentleman yield? “Mr. LEA. I yield to the gentleman from Ohio. “Mr. VORYS of Ohio. Would this 4-year rule have the effect of delaying a consolidation for 4 years, or would it mean that if a consolidation were made there would still be a 4-year period during which the man would be paid? “Mr. LEA. No; this rule does not delay consolidation. It means from the effective date of the order of the Commission the benefits are available for 4 years. The order determines the date, and the protective benefits run 4 years from that date. “Mr. VORYS of Ohio. That would be whether or not they were still employed? “Mr. LEA. Yes. “Mr. O’CONNOR. Mr. Speaker, will the gentleman yield? “Mr. LEA. I yield to the gentleman from Montana. “Mr. O’CONNOR. As I want to see those who might lose their jobs as a result of consolidation protected, I should like to have the gentleman’s interpretation of the phrase that the employee will not be placed in a worse position with respect to his employment. Does ‘worse position’ as used mean that his compensation will be just the same for a period of 4 years, assuming that he were employed for 4 years, as it would if no consolidation were,effected? “Mr. LEA. I take that to be the correct interpretation of those words.” See also the statements of conference member Halleck at 86 Cong. Rec. 10187, and conference member Wolverton at 86 Cong. Rec. 10189. The Conference Report also lends itself to this interpretation. H. R. Rep. No. 2832, 76th Cong., 3d Sess., pp. 68-69. MAINTENANCE EMPLOYES v. U. S. 177 169 Opinion of the Court. House members most intimately connected with the final version of the statute. The indications gleaned from the history of the statute are reinforced and confirmed by subsequent events. Immediately after the section was passed, interested parties—including the brotherhood appealing in this case—expressed the opinion that compensation protection for discharged employees was the intendment of § 5 (2)(f).8 The Commission echoed this interpretation in its next annual report, I. C. C. 55th Ann. Rep. 60-61, and began imposing compensatory conditions, and only compensatory conditions, in proceedings involving § 5 transactions. See, e. g., Cleveland