DT^^ED R 1 9 ^06 CSE UNITED STATES REPORTS VOLUME 370 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1961 MAY 28 THROUGH JUNE 25, 1962 (END OF TERM) WALTER WYATT REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1962 For sale by the Superintendent of Documents, U.S. Government Printing Office Washingtor. 2,, D.C. - Price $~.50 (Buckram) Un r Un r 4 7; 7 0 JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. EARL w ARREN, CHIEF JUSTICE. HUGO L. BLACK, ASSOCIATE JUSTICE. FELIX FRANKFURTER, ASSOCIATE JUSTICE.* \VILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE. TOM C. CLARK, ASSOCIATE JUSTICE. JOHN M. HARLAN, ASSOCIATE JUSTICE. WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE. POTTER STEW ART, ASSOCIATE JUSTICE. BYROX R. WHITE, ASSOCIATE Jt:STICE. RETIRED STANLEY REED, ASSOCIATE JUSTICE. HAROLD H. BURTON, ASSOCIATE JUSTICE. SHER.MAN MINTON, ASSOCIATE JUSTICE. CHARLES E. WHITTAKER, ASSOCIATE JUSTICE. ROBERT F. KENNEDY, ATTORNEY GENERAL. ARCHIBALD cox, SOLICITOR GENERAL. JOHN F. DA VIS, CLERK. w ALTER WYATT, REPORTER OF DECISIONS. T. PERRY LIPPITT, MARSHAL. HELEN NEWMAN, LIBRARIAN. *~IR. J USTICE FR.\NKFURTER was absent from the bench becau se of illness, and he took no part in the decision of any case reported in this volume . III SUPREME COURT OF THE UNITED STATES. ALLOTMENT OF JUSTICES. It i.s 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, BYRON R. WHITE, Associate Justice. For the Ninth Circuit, WILLIAM 0. DouGLAS, Associate Justice. For the Tenth Circuit. BYRON R. WHITE, Associate Justice. April 16, 1962. (For next previous allotment, see 369 U.S., p. v.) IV TRIBUTE TO MR. JUSTICE BLACK. SUPREME COURT OF THE UNITED STATES. MONDAY, JUNE 25, 1962. Present: MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, MR. JusTICE DouGLAs, MR. JusTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART and MR. JusTICE WHITE. Mr. Solicitor General Cox addressed the Court as follows: Mr. Chief Justice and may it please the Court: As the current Term closes, Mr. Justice Black will have completed 25 full Terms as an Associate Justice of this Court. This is a rare event in the Court's history. Although h would be inappropriate to speak at length, the members of the Bar would wish me to call attention to the event and to mention Mr. Justice Black's extraordinarily great contributions during those 25 Terms to the country, to the law, and to the Court. May I add two other things on behalf of the entire Bar: first, that we have always enjoyed, and will always value, the opportunity to appear before him and thus join in the common enterprise of administering justice for all; second, that we wish him health and good fortune to serve for many Terms to come. THE CHIEF JUSTICE said: Mr. Solicitor General: This is, indeed, a significant event in the life of the Court, and it is highly appropriate that you, Mr. Solicitor General, as a leader of the Bar, should initiate its recordation in today's proceedings. V v1 TRIBUTE TO MR. JUSTICE BLACK. We share to the fullest extent your appreciation of the great service Mr. Justice Black has rendered to our Nation, and we join your felicitous words concerning his continued service and his future happiness. Of the 97 Justices who have been appointed to this Court, only 16 have served as long as Mr. Justice Black and none with greater fidelity or singleness of purpose. His unflagging devotion has been to the Constitution of the United States. The importance of any period of time depends always upon its relation to other things. Abstractly, a quarter of a century in history is little more than a grain of sand in the hourglass of time, but, measured in terms of the service of one man to the well-being of a young and dynamic country such as our own, it is a long and important period of time. It is with such a measuring stick and with affectionate regard that we measure and record in our proceedings the 25 years of service of Mr. Justice Black to this Court and our Nation. 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. PngP Abbrescia v. United States................................ 925 Adams v. Myers......................................... 959 Adkins v. United States.................................. 954 Aetna Casualty & Surety Co., Porter v.................... 159 Alabama, Cofield v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Alabama, Patterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Alamance Industries v. Triumph Hosiery Mills. . . . . . . . . . . . . . 924 Alaska, Oyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960 Alaska Market v. Moe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916 Ali v. United States...................................... 723 Allegheny County Court of Common Pleas, Koaches v. . . . . . . 933 Allen v. Bannan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725 Alvarez v. Puerto Rico................................... 904 Anchor Line, Ltd., v. Federal Maritime Comm'n............. 922 Anderson v. Knox....................................... 915 Anderson, Lawrenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Anderson v. Wiman..................................... 963 Andrews v. Langlois..................................... 960 Appleby v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Arizona v. California ................................... 906,930 Arkansas, Mode v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Armour & Co., Freeman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920 Arrington v. United States................................ 955 Art National Mfrs. Distrib. Co. v. Federal Trade Comm'n.... 939 Asaro v. Parisi.......................................... 904 Asia Development Corp. v. United States................... 938 Association. For labor union, see name of trade. Association of Western Railways, Riss & Co. v.............. 916 Atkinson v. Dallas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939 Atkinson v. Sinclair Refining Co........................... 238 Atkinson, Sinclair Refining Co. v.......................... 195 Atkinson, Vaughan t'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965 Attorney General, N. V. Handelsbureau La Mola v. . . . . . . . . . 940 VH vm TABLE OF CASES REPORTED. I'nge Attorney General, Von Der Heydt v....................... 916 August v. Board of Education of Philadelphia..... . . . . . . . . . 904 Automobile Workers, Kohler Co. v........................ 911 Avent v. North Carolina................................. 934 Avondale Shipyards, Donovan v.......................... 114 Bagley v. Wilson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Bailey v. Sacks......................................... 925 Bakery Workers, Drake Bakeries Inc. v.................... 254 Balkcom, Whitus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728 Ballenger Paving Co. v. Goldberg.......................... 922 Baltimore & Ohio R. Co. v. Boston & ;\foine R. Co.......... 914 Banks v. :Madigan ..................................... 905, 965 Banks v. Warden........................................ 962 Bannan, Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725 Bannan, Crawford v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913 Bannan, Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Bantam Books, Inc., v. Sullivan. . . . . . . . . . . . . . . . . . . . . . . . . . . 933 Bantz v. Klinger... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 Barber v. United States.................................. 962 Barker v. Supreme Court of Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . 933 Barnett v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 Baugh, Inc., v. Little Lake Lumber Co..................... 909 Baumgarten v. United States............................. 917 Beard v. Stahr... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Beck v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919 Beck v. Washington..................................... 965 Beebe v. Rhay.......................................... 954 Bennett, Cummings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929 Berry v. State Board of Parole of Colo..................... 927 Bicks, Idlewild Ron Voyage Liquor Corp. v.......... . . . . . . 713 Birmingham, Gober v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934 Birmingham, Shuttlesworth v............................. 934 Risno v. United States................... . . . . . . . ......... 952 Black v. United States................................... 932 Blocker v. California..................................... 962 Board of Education of Memphis v. Northcross............. 944 Board of Education of Phila., August v. . . . . . . . . . . . . . . . . . . . 904 Board of Education of Phila., Soler v. . . . . . . . . . . . . . . . . . . . . . . 919 Board of School Directors of Milwaukee, Wasilewski v....... 720 Board of Trustees, Chenu v............................... 910 Bobcik, Homestead Hospital v............................ 901 Bob Seidel's Restaurant, Gager v. . . . . . . . . . . . . . . . . . . . . . . . . 959 Boland Construction Co. v. United States.................. 911 TABLE OF CASES REPORTED. ix Page Boldt v. United States................................... 948 Boles, Booth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Boles, Foster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 Boles v. Heard.......................................... 926 Boles, l\tliller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Bomar, Dawson v....................................... 962 Bomar, Wooten v........................................ 932 Booth v. Boles.......................................... 951 Borden Co., United States v.............................. 460 Bosco v. New York...................................... 945 Bostic v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90~ Boston & Maine R. Co., Baltimore & Ohio R. Co. v.......... 914 Boston & Maine R. Co., Interstate Commerce Comm'n v..... 914 Boston & Maine R. Co., Maryland Port Authority v......... 914 Bouchard, Milutin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Boyes v. United States.................................. 948 Boyle v. l\Iissouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95:1 Bradey v. Ribicoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Brinson, In re........................................... 956 Bronson v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Brooks v. Rhay......................................... 951 BrothPrhood. For labor union, see name of trade. Broughton v. New York.................................. 92i Brown v. La Vallee...................................... 956 Brown v. New York..................................... 961 Brown v. Purcell........................................ 95i Brown v. United States.................................. 95i Brown Shoe Co. v. United States.......................... 294 Brunson v. New York.................................... 953 Buchkoe, Patskan v..................................... 290 l3uchkoe, Ryan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Buffalo Savings Bank, United States v.................... 915 Burell v. North Carolina................................. 961 Burton v. Florida ...................................... 905,965 Busby v. Harris........................................ 48 Busch v. California...................................... 913 Cain v. United States.................................... 902 Calbeck v. Travelers Insurance Co......................... 114 Caldwell v. Wilkins...................................... 945 California, Arizona v . .................................. 906, 930 California, Barnett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 California, Blocker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 California, Busch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913 X TABLE OF CASES REPORTED. California, Douglas v . .................................. . California, Garner v . ................................... . California, Harden v .................................... . California, Hassett v .................................... . California, Jackson v . .................................. . California, LaCrue v .................................... . California, Marion v .................................... . California, McLean v . .................................. . California, Morgan v . .................................. . California, Neal v ...................................... . California, Pierre v . .................................... . California, Robinson v . ................................. . California, Ruiz v . ..................................... . California, Tucker v ......... ........................... . California, Tyler v . ..................................... . California, Van Pelt v . ................................. . California, Wilborn v . .................................. . California State Legislature, Gensburg v ................... . Cameron Iron Works v. Machinists ....................... . Canadian National R. Co. v. Taylor ...................... . Carter, Duncan v . ..................................... . Carter Estate v. Commissioner ........................... . Case v. North Carolina ................................. . Castle, Watts v ........................................ . Cavell, Fletcher v ...................................... . Cedillo v. Texas ........................................ . Central R. Co. v. Pennsylvania ........................... . Cepero v. Puerto Rico .................................. . Chapin v. Rhay ........................................ . Chappelle v. Sharp ..................................... . Chauffeurs v. Yellow Transit Freight Lines ................ . Chenu v. Board of Trustees .............................. . Chicago, R. I. & P.R. Co. v. Switchmen's Union ............ . Chief Justice of N. Mex. Supreme Court, Webb v .......... . Circuit Judge, Watts v .................................. . City. See also name of city. Page 930 929 956 956 964 960 961 958 965 921 932 660 954 951 905 932 932 920 920 938 952 910 961 933 960 958 607 289 955 903 711 910 936 933 933 City Center Motel, Inc., v. Florida Hotel Comm'n........... 720 Civil Service Comm'n Chairman, O'Leary v................ 953 Clawans, In re.......................................... 905 Cleveland Bar Assn., Fleck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914 Cochran, Gideon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908, 932 Cochran, Jackson v.......................... . ........... 944 Cochran, Willis v........................................ 955 Cofield v. Alabama.. . . .. . . . . . . . . . . . . . . . . . .. . . .. .. . . . . .. . 952 TABLE OF CASES REPORTED. x1 Pnge Colorado, Gallegos v . ................................... 49, 965 Colorado Board of Parole, Berry v. . . . . . . . . . . . . . . . . . . . . . . . . 927 Commissioner, Appleby v................................. 910 Commissioner, Carter Estate v............................ 910 Commissioner, H. B. Ives Co. v........................... 904 Commissioner, Miller v................................... 923 Commissioner, Schlude v................................. 902 Commissioner of Internal Revenue. See Commissioner. Commissioner of Motor Vehicles, Finocchairo v............. 912 Commissioner of Patents, Larsen v........................ 936 Committee on Character and Fitness, Willner v. . . . . . . . . . . . . 934 Communications Commission. See Fed. Com. Comm'n. Compton, Webb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933 Connecticut Com. Against Pay TV v. Fed. Com. Comm'n.. . 931 Continental Ore Co. v. Union Carbide & Carbon Corp...... 690 Coronado v. United States................................ 955 Court of Common Pleas of Allegheny County, Roaches v. . . . 933 Cowen, Gaudet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Cox, French v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921 Crawford v. Bannan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913 Creek Nation v. United States............................ 157 Criswell v. Heinze....................................... 951 Crown Zellerbach Corp. v. Federal Trade Comm'n.......... 937 Cruz v. Texas........................................... 953 Cummings v. Bennett.................................... 929 Cunningham, Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958 Dallas, Atkinson v....................................... 939 Daniel Distillery v. Hoffman Distilling Co.................. 939 Daugherty v. Tinsley .... •. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921 Davis v. Government Employees Insurance Co............. 956 Davis v. United States................................... 65 Davis, United States v................................... 65 Davison v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 Dawson v. Bomar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 Day, Manual Enterprises, Inc., v.......................... 478 Dearhart v. Virginia..................................... 953 DeBarr v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 DeClara v. New York.................................... 959 Delano-Earlimart Irrigation Dist. v. Rank. . . . . . . . . . . . . . . . 936 Della Universita v. United States......................... 950 Democratic Executive Committee Chairman of Ga. v. Sanders. 921 Department of Highways, Ouachita Parish School Board v. . . 916 Deputy Comm'r of Employees Comp. v. Avondale Shipyards.. 114 Deputy Comm'r of Employees Comp. v. Travelers Ins. Co... 114 xn TABLE OF CASES REPORTED. Pni:P DeVine v. Nrw York.................................... 952 Di Donato v . United States.......... . . . . . . . . . . . . . . . . . . . . . 9li Dirrrtor of Immigration. See Immigration Dirertor. Director of Internal Il<'venue. See Commissiorn.•r; District Director of Intrrnal Rrvenu<'. Di~trict Court of Iowa, :\filler v . ................. . ....... . Distrirt Dirertor of Immigration. See Immigration Director. Di.otrirt Dirrrtor of Int. Rev., Thomas v ................... . District Dirertor of Int Rev. v. Williams Packing Co ....... . District Judgr Seer S. Di,trirt Judg<' Donovan v. Avondale Shipyards ......................... . Doran v. l 1nited State.o .................................. . Douglas v. California ................................... . DrakC' Bakeries Inc. v. Bakery Workers ................... . Dra))<'r V. wa~hington .................................. . Dukes v. Sain .......................................... . Duncan v. Carter ....................................... . Eid~on v. United States ................................. . Ekhuk v. Crnte Fireman's Fund Insurance Co., Wilburn Boat Co. v. . . . . . . . . . 925 Firemen v. Pacific Maritime Assn......................... 924 Fleck v. Cleveland Bar Assn............................... 914 Fletcher v. Cavell....................................... 960 Fletcher v. Raines....................................... 949 Flores v. Texas......................................... 918 Florida, Burton v . .................................... 905, 965 Florida Hotel & Restaurant Comm'n, City Center Motel v... 720 Fong v. United States.................................... 938 Foster v. Boles.......................................... 926 F. P. Baugh, Inc., v. Little Lake Lumber Co............... 909 Frascone v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Freeman v. Armour & Co................................ 920 French v. Cox........................................... 921 Frost v. United States................................... 946 Fuller Brush Co. v. Fuller Products Co.................... 923 Fuller Products Co., Fuller Brush Co. v. . . . . . . . . . . . . . . . . . . . 923 Funkhouser v. United States.............................. 939 Gagrr v. Seidel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Gallegos v. Colorado .................................... 49,965 Galveston, 1\-Iorales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 65 Gamble v. Sacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 Garcia v. Turner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Garner v. California..................................... 929 Gaudet v. Cowen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Gavin, Geagan v ...................................... 903,065 Geagan v. Gavin ...................................... 903,965 Gekas, Sarelas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Gekas, Skontos v........................................ 912 Geller v. Holland-America Line............................ 909 General Motors Corp., Woodard v......................... 965 Gens burg v. California State Legislature. . . . . . . . . . . . . . . . . . . 920 George v. Randolph...................................... 949 Georgia, Wood v........................................ 375 Georgia, Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935 Georgia Democratic Committee Chairman v. Sanders........ 921 Georgia Ports Authority, Longshoremen's Assn. v..... . . . . . . . 922 Gerald v. United States.................................. 958 Gideon v. Cochran ..................................... 908,932 Gilbrrt v. United States.................................. 650 Gilliam v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727 Gladden, Nelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Glidden Co. v. Zdanok.................................... 530 Gober v. Birmingham.................................... 934 xiv TABLE OF CASES REPORTED. Page Goldberg, Ballenger Paving Co. v. . . . . . . . . . . . . . . . . . . . . . . . . 922 Goldberg, Teamsters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938 Gondeck v. Pan American World Airways.................. 918 Goodson v. Virginia...................................... 961 Go,·ernrnent Employees Insurance Co., Davis v. . . . . . . . . . . . 956 Governor. See name of State. Graves v. Maryland..................................... 956 Gray v. Sanders......................................... 921 Greenville, Peterson v................................... 935 Grieco v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925 Griffin v. Maryland...................................... 935 Griffin v. United States................................... 949 Grubbs v. New York.................................... 956 Grumman v. United States............................... 288 Gulf Power Co. v. Shahid................................. 923 Hall v. Cunningham..................................... 958 Hall v. Heard........................................... 291 Hall v. Illinois......................... . . . . . . . . . . . . . . . . . . 951 Halun v. Jones.......................................... 904 Hamilton v. New York................................... 958 Hammond v. Langlois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Handelsbureau La Mola v. Kennedy. . . . . . . . . . . . . . . . . . . . . . . 940 Harden v. California..................................... 956 Hardy v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 Hare, Scholle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Harris, Busby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Hartford v. Wick....................................... 932 Hartman v. United States................................ 724 Hassett v. California.................................... 956 Hayes v. Maryland...................................... 931 Haynes v. Washington...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 H. B. Ives Co. v. Commissioner........... . . . . . . . . . . . . . . . . 904 Headley v. New York.................................... 962 Heard, Boles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 Heard, Hall v........................................... 291 Hecla Mining Co. v. United States......................... 918 Heinze, Criswell v....................................... 951 Heinze, lVIorgan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Heinze, Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Heritage, Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Herman Schwabe, Inc., v. United Shoe Machinery Corp...... 920 Hicks v. Michigan....................................... 921 Highways Dept. of La., Ouachita Parish School Board v...... 916 Hill v. Moe............................................. 916 TABLE OF CASES REPORTED. xv Pni:e Hoffman Distilling Co., Jack Daniel Distillery v. . . . . . . . . . . . . 939 Hoffman Disti1ling Co., Motlow v. . . . . . . . . . . . . . . . . . . . . . . . . 939 Hohensee v. News Syndicate, Inc......................... 920 Holden v. Pioneer Broadcasting Co....................... 157 Holland-America Line, Geller v............................ 909 Hollis v. Texas.......................................... 906 Holman & Co. v. Securities & Exchange Comm'n............ 911 Holscher v. Minnesota................................... 955 Homchak v. New York.................................. 957 Homestead Hospital v. Bobcik............................. 901 Honeywood v. Rockefeller................................ 931 Hooper, Watson v....................................... 933 Hot Shoppes, Inc., Williams v............................ 925 Huffman v. United States................................ 955 Hughes v. L. B. Smith, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Hughes Trailers v. L.B. Smith, Inc........................ 953 Hunt v. United States................................... 957 Hunter v. Myers........................................ 927 Hutcheson v. United States........................ . . . . . . . 965 Idewild Bon Voyage Liquor Corp. v. Bicks................. 713 Idlewild Bon Voyage Liquor Corp. v. Epstein.............. 713 Illinois, Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Illinois, Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Illinois, Kelley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 Illinois, Lynum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933 Illinois, 1IcTier v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955 Illinois, 11orrison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 Illinois, Owens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 Illinois, Parmer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921 Illinois, Paulson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Illinois, Slaughter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 Illinois, Woods v........................................ 910 Illinois Central R. Co., Long v. . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Immigration and Naturalization Service. See Immigration Director. Immigration Director, Milutin v. . . . . . . . . . . . . . . . . . . . . . . . . . 292 Immigration Director, Morgano v......................... 924 Indemnity Insurance Co., Litteral v. . . . . . . . . . . . . . . . . . . . . . . . 919 In re. See name of party. Interlake S. S. Co., Marine Engineers Beneficial Assn. v. . . . . . 173 Internal Revenue Service. See Commissioner; District Director of Internal Revenue. International. For labor union, see name of trade. Interstate Commerce Comm'n v. Boston & Maine R. Co..... 914 xv1 TABLE OF CASES REPORTED. Page Iowa District Court, Miller v............................. 963 Isbrandtsen Co., Universal Terminal & Stevedoring Corp. v. . . 912 Ives Co. v. Commissioner............................... 904 Jacek v. United States................................... 952 Jack Daniel Distillery v. Hoffman Distilling Co.. . . . . . . . . . . . . 939 Jackson v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964 Jackson v. Cochran...................................... 944 Jackson v. Illinois....................................... 956 Jackson, Shenandoah Corp. v............................ 909 Jamieson, Owings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 Jefferson Lake Sulphur Co. v. New Jersey.................. 158 Jenkins v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 Johnson v. New Jersey.......................... . ........ 928 Johnson v. United States ........................... 905,950,957 Johnson v. Zimmer....................................... 951 John V. Boland Construction Co. v. United States......... 911 Jones, Halun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Jones v. Missouri.................. . . . . . . . . . . . . . . . . . . . . . . 958 Jones v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913 Kane v. La Vallee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Kansas City Southern R. Co. v. Reily...................... 289 Kansas City Southern R. Co., Simmons v. . . . . . . . . . . . . . . . . . 917 Kansas Corp. Comm'n, Northern Nat. Gas Co. v. . . . . . . . . . . . 901 Kansas-Nebraska Nat. Gas Co., Pan American Corp. v ..... 901,937 Kelley v. Illinois......................................... 928 Kelly, Finocchairo v..................................... 912 Kennedy, N. V. Handelsbureau La Mola v..... .. ........... 940 Kennedy, Von der Heydt v............................... 916 Kenton, Farro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Kentucky, Lanham v.................................... 948 King v. McNeill......................................... 932 Klinger, Bantz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 Knight v. United States.................................. 923 Kniss, United States v................................... 719 Knox, Anderson v....................................... 915 Koaches v. Court of Common Pleas of Allegheny County...... 933 Kohler Co. v. Automobile Workers........................ 911 Koptik v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Kostal v. Stoner................ . . . . . . . . . . . . . . . . . . . . . . . . 920 Krawitz v. McShane..................................... 959 Labor Board v. Empresa Hondurena de Vapores............ 915 Labor Board, Philamon Laboratories v. . . . . . . . . . . . . . . . . . . . . 919 Labor Board v. Sociedad Nacional de Marineros de Honduras. 915 Labor Board, United States Pipe & Foundry Co. v........... 919 TABLE OF CASES REPORTED. xvn Pagf' Labor Board v. Washington Aluminum Co.................. 9 Labor Union. See name of trade. LaCrue v. California.................. . . . . . . . . . . . . . . . . . . . 960 Ladd, Larsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936 Langlois, Andrews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960 Langlois, Hammond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Lanham v. Kentucky.................................... 948 Lanza v. New York..................................... 139 Larsen v. Ladd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936 Larson, Warren v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920 La Vallee, Brown v...................................... 956 La Vallee, Kane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Lawrenson v. Anderson.................................. 932 Lawrenson v. Reid...................................... 962 Lawrenson v. United States............................... 947 Lawrenson v. United States Fidelity & Guaranty Co.. . . . . . . 913 L. B. Smith, Inc., Hughes v.............................. 953 Lee County District Court, Miller v. . . . . . . . . . . . . . . . . . . . . . . . 963 Lehigh Valley Cooperative Farmers, Inc., v. United States... 76 Lewis v. Michigan....................................... 960 Lieberman, Poss v....................................... 944 Link v. Wabash R. Co ................................. ,. 626 Linkletter v. Walker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 Litteral v. Indemnity Insurance Co....................... 919 Little Lake Lumber Co., F. P. Baugh, Inc., v............... 909 Local. For labor union, see name of trade. Locomotive Engineers v. Louisville & N. R. Co............ 908 Lodge. For labor union, see name of trade. Lombard v. Louisiana................ . . . . . . . . . . . . . . . . . . . . 935 Long v. Illinois Central R. Co........................... 906 Longshoremen's Assn. v. Georgia Ports Authority........... 922 Lopez v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Louisiana, Lombard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935 Louisiana, Ouachita Parish School Board v. . . . . . . . . . . . . . . . . 916 Louisiana, Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Louisiana, Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 965 Louisiana ex rel. Washington v. Walker. . . . . . . . . . . . . . . . . . . . 726 Louisiana Revenue Collector, Kansas City Southern R. Co. v. . 289 Louisville & N. R. Co., Locomotive Engineers v. . . . . . . . . . . . . 908 Lurk v. United States.................................... 530 Lusterino v. New York.................................. 962 Lynum v. Illinois........................................ 933 Lyons v. Ohio........................................... 926 Mac. See Mc. 663026 0-62-2 XVIII TABLE OF CASES REPORTED. Page Machinists, Cameron Iron Works v........................ 920 .i\'1acy, O'Leary v........................................ 953 Madigan, Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905, 965 Madigan, Simcox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964 Magnus, ln re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918 Main Line Theatres v. Paramount Film Corp............... 939 Mangum v. Randall..................................... 959 Manual Enterprises, Inc., v. Day........................... 478 Marakar v. United States................................. 723 Marine Engineers Beneficial Assn. v. Interlake S.S. Co....... 173 Marine Firemen v. Pacific Maritime Assn................... 924 Marion v. California....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 Maroney, Tillery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Marques-Arbona v. Secretary of Treasury of Puerto Rico.... 938 Marshall v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958 Martin v. West Virginia.................................. 959 lvlaryland, Graves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 l\'1aryland, Griffin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935 Maryland, Hayes v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931 Maryland Port Authority v. Boston & Maine R. Co........ 914 Mathis v. United States.................................. 947 McConnell, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 McCue v. United States.................................. 939 McCulloch v. Sociedad Nacional de Marineros de Honduras... 915 McDonald v. Oregon..................................... 903 McGann v. United States................................ 948 McLean v. California.................................... 958 McLeod v. Empresa Hondurena de Vapores................ 915 McNeill, King v........................................ 932 McShane, Krawitz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 McTier v. Illinois........................................ 955 Meikle v. New York................. . ................... 948 Memphis Board of Education v. Northcross................. 944 Michigan, DeBarr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Michigan, Hicks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921 Michigan, Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960 Michigan Secretary of State, Scholle v. . . . . . . . . . . . . . . . . . . . . 906 Middleton v. New York.................................. 946 Mid-Seven Transportation Co. v. United States............. 914 Miller v. Boles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Miller v. Commissioner................................... 923 Miller v. District Court of Iowa............. . . . . . . . . . . . . . . 963 Miller v. Miller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Miller v. Pleasure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964 TABLE OF CASES REPORTED. xix PRge Milutin v. Bouchard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Milwaukee Board of School Directors, Wasilewski v......... 720 Minnesota, Holscher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 955 Missouri, Boyle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 953 Missouri, Jones v..................... . .................. 958 Mitchell v. United States................................. 952 Mode v. Arkansas....................................... 909 Moe, Hill v............................................. 916 Montgomery v. Eyman.. . ................................ 949 Moore v. New York..................................... 913 Moore-McCormack Lines v. Richardson.................... 937 Moore-McCormack Lines, Richardson v.................... 965 Morales v. Galveston.................................... 165 Morgan v. California.................................... 965 Morgan v. Heinze. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • 959 Morgano v. Pilliod....................................... 924 Morrell v. United States.................................. 960 Morris v. Rousos........................................ 959 Morrison v. Illinois................. . . . . . . . . . . . . . . . . . . . • • 946 Morrison v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 Motion Picture Assn. of America, Young v................. 922 Motlow v. Hoffman Distilling Co.................. . ....... 939 Murphy, Phinney v...................................... 905 Murphy, Valentin v..................................... 928 Myers, Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Myers, Hunter v........................................ 927 Myers, Watters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 ·Myers, Woodson v...................................... 960 Nadile v. New York..................................... 960 Nash, Smith v............................... . ...... . ... 954 Nasser v. United States.................................. 923 National Biscuit Co. v. New York......................... 924 National Labor Relations Board. See Labor Board. National Maritime Union v. Empresa Hondurena de Vapores.. 915 Neal v. California........................... . ........... 921 Nelson v. Gladden....................................... 956 New Jersey, Fass v...................................... 47 New Jersey, Jefferson Lake Sulphur Co. v.................. 158 New Jersey, Johnson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 New Jersey v. New York, S. & W.R. Co.................... 933 New Jersey, Texas v..................................... 929 News Syndicate, Inc., Hohensee v......................... 920 New York, Bosco v............. . ........................ 945 New York, Broughton v.................. . .............. . 927 xx TABLE OF CASES REPORTED. Page New York, Brown v..................................... 961 New York, Brunson v.................................... 953 ::-{ew York, DeClara v.................................... 959 New York, De Vine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 New York, Everett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 New York, Grubbs v..................................... 956 ~ew York, Hamilton v................................... 958 :\'ew York, Headley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 New York, Homchak v.......................... . . . . . . . . . 957 New York, Lanza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 ~ew York, Lusterino v................................... 962 New York, Meikle v..................................... 948 New York, Middleton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 New York, Moore v..................................... 913 New York, Nadile v..................................... 960 New York, National Biscuit Co. v......................... 924 New York, Overby v.................................... 906 New York, Pelio v....................................... 926 New York, Pereira v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 New York, Sardo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955 New York, Smith v...................................... 953 New York, Weires v..................................... 954 X ew York, Williams v. . .. . . . .. . .. . . . . . . . . . . .. . . . . . . . .. . . 960 New York Central R. Co. v. United States.................. 902 New York Governor, Honeywood v....................... 931 New York Secretary of State, W. M. C. A., Inc., v........... 190 New York, S. & W.R. Co., New Jersey v................... 933 Noia, Fay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 North Carolina, A vent v. .. . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . 934 North Carolina, Burell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 North Carolina, Case v................................... 961 ::-forth Carolina, Puckett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 North Carolina, Rowland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Northcross, Board of Education of Memphis v.............. 944 Northern Natural Gas Co. v. Corp. Comm'n of Kansas...... 901 Nunes v. Pate.......................................... 961 N. V. Handelsbureau La Mola v. Kennedy................. 940 Ohio, Bostic v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Ohio, Lyons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 Ohio, Winters v......................................... 721 Ohio Supreme Court, Barker v............................ 933 O'Leary v. Macy. .. . .. . .. . . . .. . . . . . . . . . . . . .. . . . . . . . .. . .. 953 Olen v. Olen................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721 Oliver v. United States............. . . . . . . . . . . . . . . . . . . . . . . 960 TABLE OF CASES REPORTED. XXI Page Oregon, McDonald v..................................... 903 Oregon, Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Ouachita Parish School Board v. Louisiana................. 916 Overby v. New York..................................... 906 Overholser, Whittington v................... . ........... . 932 Owens v. Illinois........................................ 947 Owings v . .Jamieson...................................... 928 Oyler v. Alaska.......................................... 960 Pacific Coast Marine Firemen v. Pacific Maritime Assn...... 924 Pacific Maritime Assn., Pacific Coast Marine Firemen v. . . . . 924 Pacific Maritime Assn. v. Seafarers Int'l Union.............. 924 Pan American Petroleum Corp. v. Kansas-Nebraska Co .... 901,937 Pan American World Airways, Gondeck v.................. 918 Panarello v. Rhode Island................................ 947 Paramount Film Distributing Corp., Main Line Theatres v.. 939 Parisi, Asaro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Parmer v. Illinois........................................ 921 Parole Board of Colo., Berry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 Pate, Nunes v.............................. . ............ 961 Pate, nacinowski v...................................... 947 Pate, Snow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Pate v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 Patskan v. Buchkoe...................................... 290 Patterson v. Alabama.................................... 951 Patterson, Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 966 Paulson v. Illinois....................................... 954 Pawnee Indian Tribe of Okla. v. United States.............. 918 Pearlman v. Reliance Insurance Co........................ 930 Pelio v. New York...................................... 926 Pennsylvania, Central R. Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 607 Pereira v. New York.................................... 962 Peterson v. Greenville.................................... 935 Philadelphia Board of Education, August v... . . . . . . . . . . . . . 904 Philadelphia Board of Education, Soler v.................. 919 Philadelphia National Bank, United States v.. . ............ 931 Philamon Laboratories v. Labor Board..................... 919 Phinney v. Murphy..................................... 905 Pierre v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Pilliod, Morgano v. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924 Pioneer Broadcasting Co., Holden v.......... . ............ 157 Pleasure, Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964 Police Pension Fund, Chenu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Porter v. Aetna Casualty & Surety Co..................... 159 Poss v. Lieberman....................................... 944 XXII TABLE OF CASES REPORTED. Page Postmaster General, Manual Enterprises, Inc., v........... 478 Puckett v. North Carolina............................... 961 Puerto Rico, Alvarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Puerto Rico, Cepero v................................... 289 Puerto Rico Treasury Secretary, Marques-Arbona v. . . . . . . . . 938 Pugh v. Virginia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 Purcell, Brown v........................................ 957 Racinowski v. Pate...................................... 947 R. A. Holman & Co. v. Securities & Exchange Comm'n....... 911 Raines, Fletcher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Randall, Mangum v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Randolph, George v..................................... 949 Rank, Delano-Earlimart Irrigation Dist. v................. 936 Reed v. Rhay..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 Reed v. Sigler..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Heid, Lawrenson v...................................... 962 Reily, Kansas City Southern R. Co. v...................... 289 Reliance Insurance Co., Pearlman v....................... 930 Revenue Collector of La., Kansas City Southern R. Co. v..... 289 Rhay, Beebe v.......................................... 954 Rhay, Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951 Hhay, Chapin v......................................... 955 Rhay, Reed v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 Rhay, Spady v.......................................... 950 Rhay, Wright v ....................................... 947,948 Rhode Island, Panarello v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 Ribicoff, Bradey v.............................. . . . . . .. . . 951 Richardson v. Moore-McCormack Lines.................... 965 Richardson, Moore-McCormack Lines v................... 937 Richter v. Riedman....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Riedman, Richter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Riss & Co. v. Assn. of Western Railways.................... 916 Hoadhs v. Tinsley.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 Robinson v. California................................... 660 Rockefeller, Honeywood v................................ 931 Rogers v. Louisiana ..................... ,...... . . . . . . . . . . 963 Rousos, Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Rowland v. North Carolina........... . .. . ................ 953 Rudolph v. United States................................ 269 Ruiz v. California........... . ......................... . . 954 Hyan v. Buchkoe........................................ 932 Sacks, Bailey v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925 Sacks, Gamble v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 Sain, Dukes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920 TABLE OF CASES REPORTED. XXIII Page St. Mary Parish School Bd. v. Terrebonne Parish School Bd.. 916 Salem v. United States Lines Co ......................... 31,965 Sanchez v. United States................................. 913 Sanders, Gray v......................................... 921 Sanders v. United States................................. 936 Sardo v. New York...................................... 955 Sarelas v. Gekas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Sawyer v. United States.................................. 946 Schaefer v. United States................................. 917 Schlette, Ex parte....................................... 932 Schlude v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 Scholle v. Hare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Schumacher, Washington-Oregon Shippers Coop. Assn. v. . . . 937 Schwabe, Inc., v. United Shoe Machinery Corp............. 920 Scott v. Throsby.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Scott v. United States.................................... 956 Seafarers Int'! Union, Pacific Maritime Assn. v.............. 924 Secretary of Agriculture v. Armour & Co. . . . . . . . . . . . . . . . . . . 920 Secretary of Army, Beard v............................... 41 Secretary of Health, Education & Welfare, Bradey v......... 951 Secretary of Labor, Teamsters v. . . . . . . . . . . . . . . . . . . . . . . . . . . 938 Secretary of State of Michigan, Scholle v................... 906 Secretary of State of N. Y., W. M. C. A., Inc., v. . . . . . . . . . . . 190 Secretary of Treasury of Puerto Rico, Marques-Arbona v.... 938 Securities & Exchange Comm'n, R. A. Holman & Co. v...... 911 Seelig v. United States................................... 293 Seidel, Gager v.......................................... 959 Self v. Washington....................................... 929 Settle, Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926, 927 Shahid, Gulf Power Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923 Sharp, Chappelle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . gm Shenandoah Corp. v. Jackson............................. 909 Shields, In re............................................ 906 Shuttlesworth v. Birmingham............................. 934 Sigler, Reed v........................................... 951 Silber v. United States................................. . . 717 Silver Bow County Treasurer, Sullivan v................... 954 Simcox v. Madigan...................................... 964 Simmons v. Kansas City Southern R. Co................... 917 Simon, W. M. C. A., Inc., v............................... 190 Simpson v. United States ............................... 914,946 Sinclair Refining Co. v. Atkinson.......................... 195 Sinclair Refining Co., Atkinson v.......................... 238 Skontos v. Gekas........................................ 912 XXIV TABLE OF CASES REPORTED. ruge Skoundrianos v. Gekas................................... 912 Slaughter v. Illinois...................................... 927 Slavitt v. United States................................... 938 Smith, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 Smith v. Nash........................................... 954 Smith v. New York...................................... 953 Smith v. Settle ........................................ 926,927 Smith v. United States ............................. 925,950,955 Smith, Inc., Hughes 11.................................... 953 Snebold, In re........................................... 963 Snow v. Pate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 Soblen v. United States............. . . . . . . . . . . . . . . . . . . . . . . 944 Sociedad Nacional de Marineros de Honduras, McCulloch v.. 915 Soler v. Board of Education of Philadelphia................. 919 Soto v. Fay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958 Spady v. Rhay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Spanner v. Washington. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Specht v. Tinsley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 Stahr, Beard v.......................................... 41 Staley, United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 719 State. See also name of State. State Board of Insurance v. Todd Shipyards Corp........... 451 State Board of Parole of Colo., Berry v.......... . . . . . . . . . . 927 State Corp. Comm'n of Kans., Northern Nat. Gas Co. v..... 901 State Treasurer, Warren v................................ 920 Stone v. United States................................... 927 Stoner, Kost.al v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920 Strickland v. United States............................... 949 Sullivan, Bantam Books, Inc., v........................... 933 Sullivan v. Heinze....................................... 945 Sullivan v. Oregon....................................... 957 Sullivan v. Treasurer of Silver Bow County. . . . . . . . . . . . . . . . . 954 Sun v. United States..................................... 908 Sunkist Growers v. Winckler & Smith Citrus Prod. Co ...... 19,965 Sunkist Growers, Winckler & Smith Citrus Prod. Co. v. . . . . . 917 Supreme Court of Ohio, Barker v......................... 933 Switchmen's Union, Chicago, R. I. & P.R. Co. v............. 936 Tax Commissioners, Wash.-Ore. Assn. v............ . . . . . . . . 937 Taylor, Canadian National R. Co. v....................... 938 Taylor v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 965 Teamsters v. Goldberg................................... 938 Teamsters v. Yellow Transit Freight Lines................. 711 Tennessee Products Corp. v. United States................. 911 Terrebonne Parish School Bd., St. Mary Parish School Bd. v.. 916 TABLE OF CASES REPORTED. xxv T'nge Texas, Cedillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958 Texas, Cruz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Texas, Flores v.......................................... 918 Texas, Hollis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Texas, Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Texas v. New Jersey. . .. . . . . . . . .. . .. .. . .. . . . . . . . . . . . . . . . . . 929 Texas, \Vooten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965 Texas Board of Insurance v. Todd Shipyards Corp........... 451 Thomas v. Heritage...................................... 932 Thomas v. Patterson..................................... 966 Thomas v. Wiman....................................... 947 Thompson v. Bannan.................................... 957 Thompson v. Washington................................. 945 Thornton v. United States................................ 946 Throsby, Scott v......................................... 954 Tillery v. Maroney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Tinsley, Daugherty v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921 Tinsley, Roadhs v.................... . . . . . . . . . . . . . . . . . . . . 947 Tinsley, Specht v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 Tinsley, Titmus v....................................... 964 Tinsley, Trueblood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929 Titmus v. Tinsley....................................... 964 Todd Shipyards Corp., State Board of Insurance v. . . . . . . . . . 451 Trade Commission. See Federal Trade Comm'n. Travelers Insurance Co., Calbeck v........................ 114 Treasurer of Silver Bow County, Sullivan v............... 954 Triumph Hosiery Mills, Alamance Industries v. . . . . . . . . . . . . . 924 Trueblood v. Tinsley..................................... 929 Tucker v. California..................................... 951 Turberville v. United States.............................. 916 Turner, Garcia v........................................ 950 Tyler v. California....................................... 905 Union. For labor union, see name of trade. Union Carbide & Carbon Corp., Continental Ore Co. v..... 690 United. For labor union, see name of trade. United Shoe Machinery Corp., Herman Schwabe, Inc., v.... 920 U nitcd States, Abbrescia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925 United States, Adkins v.................................. 954 United States, Ali v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 United States, Arrington v............................... 955 United States, Asia Development Corp. v................. 938 United States, Barber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 United States, Baumgarten v............................. 917 United States, Beck v.................................... 919 XXVI TABLE OF CASES REPORTED. Page United States, Bisno v................................... 952 United States, Black v................................... 932 United States, Boland Construction Co. v.. . . . . . . . . . . . . . . . . 911 United States, Boldt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 United States v. Borden Co............................... 460 United States, Boyes v................................... 948 United States, Bronson v............ . . . . . . . . . . . . . . . . . . . . . 951 United States, Brown v.................................. 957 United States, Brown Shoe Co. v.......................... 294 United States v. Buffalo Savings Bank. . . . . . . . . . . . . . . . . . . . . 915 United States, Cain v.................................... 902 United States, Coronado v................................ 955 United States, Creek Nation v............................ 157 United States v. Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 United States, Davis v................................... 65 United States, Davison v................................. 912 United States, Della Universita v. . . . . . . . . . . . . . . . . . . . . . . . . 950 United States, DiDonato v............................... 917 United States, Doran v................................... 925 United States, Eidson v.................................. 912 United States, Elchuk v.................................. 722 United States, Ellis Research Laboratories v................ 918 United States v. Evans.................................. 909 United States, Feldman v................................ 910 United States, Fong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938 United States, Frascone v................................ 910 United States, Frost v................................... 946 United States, Funkhouser v.................... . . . . . . . . . . 939 United States, Gerald v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958 United States, Gilbert v.............. . . . . . . . . . . . . . . . . . . . . 650 United States, Gilliam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727 United States, Grieco v.................................. 925 United States, Griffin v.................................. 949 United States, Grumman v............................... 288 United States, Hardy v.................................. 912 United States, Hartman v................................ 724 United States, Hecla Mining Co. v......................... 918 United States, Huffman v................................. 955 United States, Hunt v................................... 957 United States, Hutcheson v............ . . . . . . . . . . . . . . . . . . . 965 United States, Jacek v................................... 952 United States, Jenkins v................................. 928 United States, Johnson v ........................... 905,950,957 United States, John V. Boland Construction Co. v.......... 911 TABLE OF CASES REPORTED. XXVII Pogp United States, Jones v................................... 913 United States, Knight v.................................. 923 United States v. Kniss................................... 711) United States, Koptik v.................................. 957 United States, Lawrenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 United States, Lehigh Valley Cooperative Farmers, Inc., v... 76 United States, Lurk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530 United States, :vlarakar v. . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . 723 United States, Marshall v................................ 958 United States, Mathis v.................................. 947 United States, McCue v.................................. 939 United States, McGann v................................. 948 United States, Mid-Seven Transportation Co. v. . . . . . . . . . . . 914 United States, Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 United States, Morrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960 United States, Morrison v................................ 948 United States, Nasser v.................................. 923 United States, New York Central R. Co. v.................. 902 United States, Oliver v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960 United States, Pate v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 United States, Pawnee Indian Tribe of Okla. v.............. 918 United States v. Philadelphia National Bank................ 931 United States, Rudolph v................................. 269 United States, Sanchez v............... . . . . . . . . . . . . . . . . . 913 United States, Sanders v................................. 936 United States, Sawyer v.................................. 946 United States, Schaefer v. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 917 United States, Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 United States, Seelig v................................... 293 United States, Silber v. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 717 United States, Simpson v ............................... 914,946 United States, Slavitt v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938 United States, Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925, 950, 955 United States, Soblen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944 United States v. Staley................................... 719 United States, Stone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 United States, Strickland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 United States, Sun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908 United States, Tennessee Products Corp. v............ . . . . . . 911 United States, Thornton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 United States, Turberville v.............................. 946 United States, Verdon v.................................. 945 United States, Wallace v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923 United States, Washington v............................. 949 XXVIII TABLE OF CASES REPORTED. l'age United States, Whittington v.............................. 928 United States, Wilbur v.................................. 291 United States, Willems Industries v....................... 903 U nitetl States, Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 United States v. Wise.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 United States, Wong Sun v.............................. 908 United States, Wright v.................................. 958 United States, Yellin v................................... 931 United States, Young v................................... 953 U.S. Civil Service Comm'n Chairman, O'Leary v........... 953 U.S. District Judge, Busby v............................ 48 U.S. District Judge, Watson v............................ 933 U. S. District Judges, Idlewild Liquor Corp. v.......... . . . . 713 United States Fidelity & Guaranty Co., Lawrenson v........ 913 United States Lines Co., Salem v . ...... . ................. 31, 965 United States Lines Co. v. Van Carpals..................... 914 U.S. Marshal, Krawitz v..... . ........................... 959 United States Pipe & Foundry Co. v. Laber Board....... . . 9Hl Universal Terminal & Stevedoring Corp. v. lsbrantltsen Co... 912 Valentin v. Murphy..................................... 928 Valenzuela v. Eyman.................................... 290 Van Carpals, United States Lines Co. v... . . . . . . . . . . . . . . . . . 914 Van Pelt v. California................................... 932 Vaughan v. Atkinson..................................... 965 Verdon v. United States.................................. 945 Virginia, Dearhart v..................................... 953 Virginia, Goodson v...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961 Virginia, Pugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927 Vitale, Engel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 Von der Heydt v. Kennedy ........................ ,.. . . . . 916 Wabash R. Co., Link v.................................. 626 Walker, Linkletter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928 W a1ker, Louisiana v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726 Wallace v. United States............... . . . . . . . . . . . . . . . . . . 923 Warden, Banks v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 Warren v. Larson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920 Washington, Beck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965 Washington, Draper v................................... 935 Washington, Haynes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 Washington, Self v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929 Washington, Spanner v................................... 949 Washington, Thompson v................................. 945 Washington v. United States......................... . . . . 949 Washington v. Walker.................................... 726 TABLE OF CASES REPORTED. xx1x Page Washington Aluminum Co., Labor Board v................. 9 Washington-Oregon Shippers Coop. Assn. v. Schumacher. .... 937 Washington Tax Comm'rs, Wash.-Ore. Assn. v........ . ..... 937 Wasilewski v. Board of School Directors of Milwaukee . ....... 720 Watkins v. Wilson....................................... 46 Watson v. Hooper....................................... 933 Watters v. Myers.............................. . ......... 949 Watts v. Castle........................................ . . 933 Webb v. Compton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933 Weires v. New York..................................... 954 West Virginia, Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Whittington v. Overholser. . . . . . . . . . . . .. . . . . . . . . . .. . . . . . . . 932 Whittington v. United States............ . . . . . .. . .. . . .. . . . . 928 Whit us v. Balkcom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728 Wick, Hartford v................................. . ...... 932 Wilborn v. California.................................... 932 Wilbur v. United States................................ . . 291 Wilburn Boat Co. v. Fireman's Fund Insurance Co.......... 925 Wilkins, Caldwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Willems Industries v. United States....................... 903 Williams v. Hot Shoppes, Inc............................. 925 Williams v. New York................................... 960 Williams v. United States................................ 946 Williams Packing & Navigation Co., Enochs v .............. 1,965 Willis v. Cochran. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955 Willner v. Committee on Character and Fitness............. 934 Wilson, Bagley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Wilson, Watkins v....................................... 46 Wiman, Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Wiman, Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 Winckler & Smith Citrus Prod. Co. v. Sunkist Growers....... 917 Winckler & Smith Citrus Prod. Co., Sunkist Growers v ...... 19,965 Winters v. Ohio....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721 Wise, United States v.................................... 405 W. M. C. A., Inc., v. Simon......... . . . . . . . . . . . . . . . . . . . . . 190 Wong Sun v. United States.................... . ......... 908 Wood v. Georgia.............................. . ......... 375 Woodard v. General Motors Corp . . . . . . . . . . . . . . . . . . . . . . . . . 965 Woodard Motor Co. v. General Motors Corp............... 965 Woods v. Illinois......................................... 910 Woodson v. Myers....................................... 960 Wooten v. Bomar........................................ 932 Wooten v. Texas........................................ 965 Wright v. Georgia..................... . ................. 935 xxx TABLE OF CASES REPORTED. Page Wright v. Rhay ........................................ 947,948 Wright v. United States.................................. 958 Yeager, Ernst v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Yellin v. United States................................... 931 Yellow Transit Freight Lines, Teamsters v. . . . . . . . . . . . . . . . . . 711 Young v. Motion Picture Assn. of America................. 922 Young v. United States.................................. 953 Zdanok, Glidden Co. v................................... 530 Zimmer, Johnson v...................................... 951 TABLE OF CASES CITED l'nge Abbate v. United States, 359 u. s. 187 723 Adams Mfg. Co. v. Storen, 304 U. S. 307 618 Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 574 A. G. Spalding & Bros. v. Federal Trade Comm'n, 301 F. 2d 585 325,343 A.H. Bull S. S. Co. v. Marine Engineers, 250 F. 2d 332 184,188 A. H. Bull S. S. Co. v. Seafarers' Union, 250 F. 2d 326 199,205 Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752 42 Alabama State Federation v. l\foAdory, 325 U.S. 450 685 Alaska S. S. Co. v. Petterson, 347 U. S. 396 170 Alcoa S.S. Co. v. McMahon, 173 F. 2d 567 199 Allen v. Michigan, 364 U.S. 934 725 Allen v. Regents, 304 U. S. 439 3 Allgeyer v. Louisiana, 165 U.S. 578 453-457 Allied Stores of Ohio v. Bowers, 358 U. S. 522 618 American Banana Co. v. United Fruit Co., 213 U. S. 347 704,705 American Construction Co. v. Jacksonville, T. & K. W.R. Co., 148 U.S. 372 536 American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F. Supp. 387, 259 F. 2d 524 325,336 American Fire & Casualty Co. v. Finn, 341 U.S. 6 305 American Ins. Co. v. Canter, 1 Pet. 511 544, 547, 548, 598, 599 l'ugt> American Nat. Bank & Trust Co. v. United States, 142 F. 2d 571 631 American Refrigerator Transit Co. v. Hall, 174 U. S. 70 615 American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 512 American Tobacco Co. v. United States, 328 U. S. 781 707 American Tobacco Co. v. United States, 147 F. 2d 93 415,699 Amos v. United States, 255 U. S. 313 143 Anderson Nat. Bank v. Luckett, 321 U. S. 233 632 Anonymous, 1 Fed. Cas. 1024 501 Apollon, The, 9 Wheat. 362 620 Arant v. Lane, 245 U. S. 166 307,363 Arrow-Hart & Hegeman Electric Co. v. Federal Trade Comm'n, 291 U. S. 587 313 Ashcraft v. Tennessee, 322 U. S. 143 51, 52, 63 Associated Press v. United States, 326 U. S. 1 307 Atchley v. California, 366 U.S. 207 148 Atkins v. Moore, 212 U. S. 285 576 Atkinson v. Sinclair Refining Co., 370 U. S. 238 198, 228, 255-257, 264 Atlanta Newspapers v. Stat~, 216 Ga. 399 385 Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355 170 XXXI XXXII TABLE OF CASES CITED. Palate Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F. 2d 950 697 Automatic Canteen Co. v. Federal Trade Comm'n, 346 u. s. 61 468 Automobile Club of Michigan v. Commissioner, 353 u. s. 180 127 Auto Workers v. Benton Harbor Indus., 242 F. 2d 536 242,264 Avondale Marine Wavs v. Henderson, 346 U. s: 366 129 Avondale Shipyards v. Donovan, 293 F. 2d 51 116 Ayrshire Collieries Corp. v. United States, 331 U. S. 132 535 Bachtel v. Wilson, 204 U. S. 36 152 Bailey v. Patterson, 369 u. s. 31 716 Bailey Farm Dairy Co. v. Anderson, 157 F. 2d 87 105 Baizlcy Iron Works v. Span, 281 U. S. 222 116 Bakelite Corp., Ex parte, 279 U.S. 438 531,534,540-543,548- 550, 556-561, 579,583- 588, 591-593, 596, 600 Baker v. Carr, 369 U. S. 186 191,193,194 Baldwin v. Missouri, 281 U.S. 586 621 Baldwin Co. v. Howard Co., 256 U. S. 35 576 Ball v. United States, 140 U.S. 118 535 Balzac v. Porto Rico, 258 U.S.298 545,547 Barber v. Barber, 21 How. 582 545 Barr v. United States, 324 U.S. 83 575 Bates :\Ifg. Co. v. United States, 303 U. S. 567 565 Batter Bldg. :\lats. Co. v. Kirschner, 142 Conn. 1 262 Battery Patents Corp. v. Chicago Cycle Supply Co., 111 F. 2d 861 577 Pugc, Beacon Theatres v. Westover, 359 U. S. 500 306 Beaston v. Farmers' Bank of Del., 12 Pet. 102 408 Beck v. Washington, 369 U.S. 541 398 Beilan v. Board of Education, 357 U. S. 399 43 Bell v. Hood, 327 U. S. 678 247 Benner v. Porter, 9 How. 235 545,546 Benz v. New York Thruway Authority, 369 U. S. 147 148,153 Beres v. Beres, 52 Del. 133 70 Bernhardt v. Polygraphic Co., 350 U.S. 198 244,266 Bethlehem Steel Co. v. State Board, 330 U. S. 767 456 Betts v. Brady, 316 U. S. 455 908 Bigelow v. RKO Radio Pictures, 327 U. S. 251 697 Bi-Metallic Co. , •. Colorado, 239 u. s. 441 599 Blackstone v. Miller, 188 U. S. 189 621 Blake v. United States, 103 U.S. 227 43 Bland v. Connally, 110 U.S. App. D. C. 375 44 Boone v. Eyre, 1 Bl. H. 273 264 Booth v. United States, 291 u. s. 339 584,589 Booth Fisheries v. Industrial Comm'n v. 271 U.S. 208 99 Bordonaro Bros. Theatres v. Paramount Pictures, 176 F. 2d 594 697 Bottomley v. Bottomley, 104 U. S. App. D. C. 311 581 Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336 170 Boynton v. Virginia, 364 U.S. 454 156 Bradley v. State, 111 Ga. 168 385 Bram v. United States, 168 u. s. 532 52 Branch v. Federal Trade Comm'n, 141 F. 2d 31 704 TABLE OF CASES CITED. XXXIII Pag~ Braniff Airways v. Nebraska Board of Equalization, 347 u. s. 590 611, 614, 617, 620, 624 Brasfield v. United States, 272 U.S. 448 718 Bridges v. California, 314 U. S. 252 383-389, 393-402 Brinegar v. United States, 338 u. s. 160 143 Brotherhood. • F o r 1 a b o r union, see name of trade. Brown v. Allen, 344 U. S. 443 568 Brown v. :Mississippi, 297 U.S. 278 51, 63 Brown Shoe Co. v. United States, 370 U. S. 294 477 Buchanan v. Warley, 245 U.S.60 156 Bull S. S. Co. v. Marine Engineers, 250 F. 2d 332 184, 188 Bull S. 8. Co. v. Seafarers' Union, 250 F. 2d 326 199,205 Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 543 Butler v. Michigan, 352 U.S. 380 488 Butler Y. Pennsylvania, 10 H ow. 402 534 Byers v. t lcAnley, 149 U.S. 608 581 Cafeteria Workers v. }.lc- Elroy, 367 U. S. 886 43 Cage v. Cage, 74 F. 2d 377 631 Calmar S. S. Corp. v. Taylor, 303 U. S. 525 38 Canada Southern R . Co. v. Gebhard, 109 U. S. 527 408 Cantwell v. Connrcticut, 310 U.S. 296 491 Capron v. Van Xoorden, 2 Cranch 126 305 Carnegie National Bank v. Wolf Point, 110 F. 2d 569 631 Carolene Products Co. v. United Statrs, 323 U. S. 18 409 Carondelet Canal Co. v. Louisiana, 233 U. S. 362 308,361 Carpenters v. United States, 330 U. S. 395 718 663026 0-62-3 l'uge Carrier v. Bryant, 306 U. S. 545 161,163 Carroll v. United States, 267 U.S. 132 Cary v. Curtis, 3 How. 143 236 549,552 Cates v. Haderlein, 342 U.S. 804 516 Catlin v. United States, 324 U. S. 229 309, 361 Causby v. United States, 104 Ct. Cl. 342 557 Chambers v. Florida, 309 u. s. 227 50,51,62,386,389,675 Chaunt v. United States, 364 U.S. 350 578 Cherokee Nation v. Georgia, 5 Pet. I Cherokee Nation v. United 55 States, 270 U. S. 476 566 Chicago, Duluth & G. B. Transit Co. v. Nims, 252 F. 2d 317 715 Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U. S. 103 582 Chrysler Corp. v. United States, 316 U. S. 556 310 City. See name of city. Clearfield Trust Co. v. United States, 318 U. S. 363 556 Clinton v. Englebrecht, 13 Wall. 434 545, 546 Cobbledick v. United States, 309 u. s. 323 306,309 Coe v. Errol, 116 U.S. 517 620 Coffey v. Commissioner, 21 B. T. A. 1242 277 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 306,308,360 Cohens Y. Virginia, 6 Wheat. 264 564 Colgate v. U nited States, 280 U. S. 43 566 Collins v. :\filler, 252 U. S. 364 306 Commissioner v. Duberstein, 363 u. s. 278 270,273 Commissioner v. Glensha.w Glass Co., 348 U. S. 426 273,274 XXXIV TABLE OF CASES CITED. Page Commissioner v. Halliwell, 13i F. 2d 642 66--68 Commissioner v. Hansen, 360 u. s. 446 73 Commissioner v. Jackson, 265 N. Y. 440 153 Commissioner v. LoBue, 351 U.S. 243 273 Commissioner v. Marshman, 279 F. 2d 27 66, 68 Commissioner v. Mesta, 123 F. 2d 986 66--68 Commissioner v. Smith, 324 u. s. 177 273 Commissioner v. Wemyss, 324 U. S. 303 69 Commissioner of Internal Revenue. S e e Commissioner. Commonwealth v. American Dredging Co., 122 Pa. 386 608 Commonwealth v. Delaware, L. & W. R. Co., 145 Pa. 96 609 Commonwealth v. Demuth, 12 S. & R. 389 418 Commonwealth v. Ohio P.R. Co., 1 Grant 329 418 Commonwealth v. Standard Oil Co., 101 Pa. 119 608 Commonwealth v. Union Shipbuilding Co., 271 Pa. 403 608 Comstock v. Institutional Investors, 335 U. S. 211 271 Congress Bldg. Corp. v. Loew's, Inc., 246 F. 2d 587 699 Connecticut General Life Ins. Co. v. Johnson, 303 U. S. 77 453-456 Continental Insurance Co. v. United States, 259 U. S. 156 310 Coplon v. United States, 89 U. S. App. D. C. 103 144 Coppedge v. United States, 369 U. s. 438 293, 727 Corn Products Refining Co. v. Federal Trade Comm'n, 324 u. s. 726 312,414 Costello v. United States, 365 U. S. 265 146 Page Coughlin v. Commissioner, 203 F. 2d 307 277 Covington v. Covington First Nat. Bank, 185 U.S. 270 361 Cowley v. People, 83 N. Y. 464 418 Craig, Ex parte, 150 Tex. Cr. 598 387 Craig v. Harney, 331 U. S. 367 385- 389, 393, 397, 401, 402 Crenshaw v. United States, 134 U. S. 99 534 Cross v. Burke, 146 U. S. 82 363 Crumady v. The J. H. Fisser, 358 U. S. 423 170 Culombe v. Connecticut, 367 U.S. 568 60 Cuneo Press v. Kokomo Union, 235 F. 2d 108 264 Davis v. Dept. of Labor, 317 U.S. 249 128, 136-138, 457 Davis v. United States, 328 U.S. 582 143 De Bardeleben Coal Corp. v. Henderson, 142 F. 2d 481 129 De Groot v. United States, 5 Wall. 419 554 De Jonge v. Oregon, 299 U.S. 353 383 De la Rama v. De la Rama, 201 U.S. 303 545 Delaware, L. & W. R. Co. v. Pennsylvania, 198 U.S. 341 609,620 De Lima v. Bidwell, 182 U.S. 1 575 Dermott v. Jones, 23 How. 220 264 Des Moines Union R. Co. v. District Court, 170 Iowa 568 631 Dexter Horton Xat. Bank v. United States Fidelity & Guaranty Co., 149 Wash. 343 657 DiBella v. United States, 369 U. S. 121 306 District 0f Columbia v. Eslin, 183 U. S. 62 567 TABLE OF CASES CITED. XXXV Page Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U. S. 72 613 Donegan v. Dyson, 269 U.S. 49 538,561 Door v. Donaldson, 90 U.S. App. D. C. 188 516 Dorr v. United States, 195 U. S. 138 547 Douds v. Seafarers' Union, 148 F. Supp. 953 183 Doughty v. Terminal R. Assn., 291 S. W. 2d 119 631 Dowd Box Co. v. Courtney, 368 u. s. 502 226,265 Downes v. Bidwell, 182 U.S. 244 547 Dows v. Chicago, 11 Wall. 1~ 6 Drake Bakeries v. Bakery Workers, 370 U. S. 254 242,245 Dreyer v. Illinois, 187 U. S. 71 M6 Duncan v. Commissioner, 30 T. C. 386 277 Eastern R. Presidents Conf. v. Noerr Motor Freight, 365 u. s. 127 707,708 Eastman Kodak Co. v. Southern Photo Materials, 273 U. S. 359 697 Edwards v. California, 314 U.S. 160 664 Egan v. Teets, 251 F. 2d 571 634, 644, 645 Electrical Workers v. Labor Board, 366 U.S. 667 177 Electrical Workers v. Miller Metal Prods., 215 F. 2d 221 264 Elkins v. United States, 364 U.S. 206 142 Ellis v. Burnet, 60 App. D. C. 193 277 Ellis v. United States, 356 u. s. 674 293 Elsberry v. State, 52 Ala. 8 418 Enterprise Irrigation District v. Farmers Canal Co., 243 U.S. 157 148 Erie R. Co. v. Tompkins, 304 U.S. 64 538 Page Erie Sand & Gravel Co. v. Federal Trade Comm'n, 291 F. 2d 279 336 Estate. See name of estate. Evans v. Gore, 253 U. S. 245 555,556 Everson v. Board of Education, 330 U.S. 1 428,443 Ex parte. See name of party. Farid-Es-Sultaneh v. Commissioner, 160 F. 2d 812 69 Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 2M ~1 Fatovic v. Nederlandsch- Ameridaansche S t o o m - vaart, 275 F. 2d 188 34 Federal Crop Ins. Corp. v. Merrill, 332 U. S. 380 556 Federal Housing Adm'n v. Darlington, Inc., 358 U. S. 84 414,541 Federal Radio Comm'n v. General Electric Co., 281 U.S. 464 539,580,590 Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266 580,590 Federal Trade Comm'n v. l\finnea polis - Honeywell Hegulntor Co., 344 U. S. 206 306 Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37 312,414,467 Federal Trade Comm'n v. Sinclair Refining Co., 261 U.S. 463 330 Federal Trade Comm'n v. Travelers Health Assn., 362 U. S. 293 457 Federal Trade Comm'n v. Western Meat Co., 272 u. s. 554 313 Feiner v. New York, 340 U. S. 315 400 First National Bank v. l\faine, 284 U. S. 312 621 Fisher v. Pace, 336 U.S. 155 237 Fiske v. Kansas, 274 U. S. 380 386 Five Per Cent. Discount Cases, 243 U. S. 97 575,587 XXXVI TABLE OF CASES CITED. Page Flying Eagle Publications v. United States, 273 F. 2d 799 484 Fogarty v. United States, 340 u. s. 8 411 Ford Motor Co. v. United States, 335 U. S. 303 310 Forgay v. Conrad, 6 How. 201 308,360,361 Fox Film Corp. v. l'viuller, 296 u. 8. 207 153 Frad v. Kelly, 302 U. 8. 312 535 Francis v. Resweber, 329 U. S. 459 666,675, 676 Frasch v. Moore, 211 U. S. 1 576 French v. Shoemaker, 12 Wall. 86 359 Frischer & Co., In re, 16 Ct.. Cust. App. 191 588 Frothingham v. Mellon, 262 U.S. 447 441 Frytez v. Gruchacz, 125 N. ,T. L. 630 631 Furniture Workers v. Colonial Hardwood Co., 168 F. 2d 33 264 Gainesville v. Brown-Crummer Investment Co., 277 u. 8. 54 537 Gambino v. United States, 275 U. S. 310 143 Garner v. Louisiana, 368 U. S. 157 156 Gates v. State, 73 Ga. App. 824 397 Gayle v. Browder, 352 U. S. 903 156 Gemsco, Inc., v. Walling, 324 U.S. 244 411 Georgia v. Pennsylvania R. Co., 324 U. S. 439 707 Gitlow v. New York, 268 U. S. 652 383,391 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 620 Gonsalves v. Morse Dry Dock Co., 266 U. S. 171 116, 119, 134 Gordon v. United States, 2 Wall. 561 554 Gordon v. United States, 117 U.S. 697 568,569 Pnge Gouled v. United States, 255 u. s. 298 143 Graham v. Locomotive Firemen, 338 U. S. 232 21 i Grand Trunk R. Co. v. Richardson, 91 U. S. 454 37 Grant v. Phoenix Ins. Co., 106 u. s. 429 360 Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 11~ 119,12~134, 138 Grays Harbor Logging Co. v. Coats-Fordney Co., 243 U. S. 251 308 Greathouse v. United States, 170 F. 2d 512 657, 658 Great Lakes Dredge Co. v. Huffman, 319 U. S. 293 8 Great Lakes Dredge Co. v. Kierejewski, 261 U. S. 479 116, 119, 134 Greely's Administrator v. Burgess, 18 How. 413 575 Greene v. McElroy, 360 u. s. 474 43 Griffin v. Illinois, 351 U. S. 12 721 Grove Press v. Christenberry, 276 F. 2d 433 488,498 Grove Press v. Christenberry, 175 F. Supp. 488 498 Gulf Coast 8hrimpers v. United States, 236 F. 2d 658 4 Gunning v. Cooley, 281 U.S. 90 696 Gwin, White & Prince, Inc., v. Henneford, 305 U. 8. 434 618 Hahn v. Ross Island Sand Co., 358 U. S. 272 137 Hale v. Henkel, 201 U. S. 43 390 Haley v. Ohio, 332 U.S. 596 52,53,56,63,64 Hall, In re, 167 U. S. 38 567 Hall v. Commissioner, 9 T. C. 53 67 Halliwell v. Commissioner, 44 B. T. A. 740 67 Hannegan v. Esquire, Inc., 327 u. s. 146 480,499,504,519 TABLE OF CASES CITED. XXXVII Pnge Hansen v. United States, 1 Ct. Cust. App. 1 559 Harmon v. Brucker, 355 U.S.579 44 Harris v. Commissioner, 340 U.S. 106 69 Hartford Accident & Indemnity Co. v. Sorrells, 50 Ariz. 90 631 Hawkins v. Illcakly, 243 U.S. 210 117 Hayburn's Case, 2 Dall. 409 582 Hays v. Pacific Mail S. S. Co., 17 How. 596 620 Helvering v. Hallock, 309 U.S. 106 70 Helvering v. Safe Deposit & Trust Co., 316 U. S. 56 73 Henry v. United States, 361 U.S. 98 143 Herb v. Pitcairn, 324 U. S. 117 148 Heyman v. Darwins, Ltd., [1942] A. C. 356 262 Hibbs, Ex parte, 26 F. 421 658 Hicks v. Bekins Moving & Storage Co., 115 F. 2d 406 631 Higginbotham's Executrix v. Commonwealth, 25 Gratt. 627 563 Hill v. Wallace, 259 U. S. 44 3 Hirabayashi v. U nit e d States, 320 U. S. 81 151 Hobart Mfg. Co. v. Landers, Frary & Clark, 26 F. Supp. 198 577 Hoeninghaus v. U n i t e d States, 172 U. S. 622 575 Holmes v. Atlanta, 350 U.S. 879 156 Honeyman v. Hanan, 300 u. s. 14 153 Honeyman v. Hanan, 302 U. S. 375 Hood & Sons, Inc., v. Du 153 Mand, 336 U. S. 525 621 Hoopi>ston Canning Co. v. Cullen, 318 U. S. 313 452, 453 Hooven & Allison Co. v. Evatt, 324 U. S. 652 386 Hoover v. Co(', 325 U. S. 79 576 Page Hoover Express Co. v. Teamsters, 217 F. 2d 49 242 Hope v. People, 83 N. Y. 418 151 Hornbuckle v. Toombs, 18 Wall. 648 546 H. P. Hood & Sons v. Du l\Iond, 336 U.S. 525 621 Hudgings, Ex parte, 249 U. S. 378 234,237 Iasigi v. The Collector, 1 Wall. 375 575 Indians of California v. United States, 98 Ct. Cl. 583 566 Inland Steel Co. v. United States, 306 U. S. 153 111 In re. See name of party. Internal Revenue Servict'. See Commissioner. International. For I ab o r union, see name of trade. International Boxing Club v. United States, 358 U. S. 242 359 International Fr e ighti ng Corp. v. Commissioner, 135 F . 2d 310 72 International Harvester Co. v. United States, 248 U.S. 587, 274 U. S. 693 310 International Salt Co. v. United States, 332 U. S. 392 330 International Shoe Co. v. Federal Trade Comm'n, 280 u. s. 291 331 I n t e r s t a t e Commerce Comm'n v. Brimson, 154 U. S. 447 588 Irvin v. Dowd, 366 U. S. 717 396, 400 Irvine V. c~lifo rnia, 347 U. S. 128 142 Jacobson v. Massachusetts, 197 U. S. 11 665 James v. United States, 366 u. s. 213 273 J . D. Adams llifg. Co. v. Storen, 304 U. S. 307 618 Jerrold Electronics Corp. v. United States, 365 U. S. 567 310,311 XXXVIII TABLE OF CASES CITED. Page Johnson Oil Refining Co. v. Oklahoma, 290 U. S. 158 611-613 Joins, Ex parte, 191 U.S. 93 547 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 43 Jones v. United States, 362 u. s. 257 143, 144 June T., Inc., v. King, 290 F. 2d 404 37 Jureidini v. Nat. Br. & Ir. Ins. Co., [1915] A. C. 499 262 Kansas City Star Co. v. United States, 240 F. 2d 643 710 Kass v. Brannan, 196 F. 2d 791 78, 83, 88, 97, 98, 105 Kaufman v. Societe Internationale, 343 U. S. 156 943 Keller v. Potomac Electric Power Co., 261 U. S. 428 580,590 Kemmler, In re, 136 U. S. 436 675 Kendall v. United States, 12 Pet.524 581 Kennair v. :\Iississippi Shipping Co., 197 F. 2d 605 37 Kent v. Dulles, 357 U. S. 116 499 Kesler v. Dept. of Public Safety, 369 U.S. 153 306 Kessler v. Strecker, 307 U.S. 22 718 I{idd v. Alabama, 188 U. S. 730 618 King v. Commis..~ioner, 31 T. C. 108 68 Kingsley Books v. Brown, 354 U. S. 436 497 Kline v. Burke Construction Co., 260 U.S. 226 552 Klor's, Inc., v. Broadway- Hale Stores, 359 U. S. 207 231,700,708 Knauer v. United States, 328 U.S. 654 578 Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 118, 12~128, 133 Koon v. Barmettler, Colo. 221 134 Koshkonong v. Burton, 104 Page 631 u. s. 668 414 Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F. 2d 978 262 Kwong Hai Chew v. Rogers, 103 U.S. App. D. C. 228 43 La Abra Silver Mining Co. v. United States, 175 U.S. 423 571 Labor Board v. Brown & Sharpe Co., 169 F. 2d 331 179 Labor Board v. Draper Corp., 145 F. 2d 199 246 Labor Board v. Edward G. Budd Co., 169 F. 2d 571 179,180 Labor Board v. Electrical Workers, 346 U. S. 464 17 Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240 Labor Board v. Jones & Laughlin Corp., 301 U. S. 1 Labor Board v. Mackay 17 17 Radio Co., 304 U. S. 333 16 Labor Board v. Quincy Steel Co., 200 F. 2d 293 Labor Board v. Rockaway 179 News Co., 345 U. S. 71 246 Labor Board v. Sands Mfg. Co., 306 U.S. 332 17,246 Labor Board v. Swift & Co., 292 F. 2d 561 Labor Board v. Walton Mfg. 179 Co., 369 U. S. 404 526 Labor Union. See name of trade. Lamar v. United States, 241 U.S. 103 536 Lane, Ltd., v. Larus & Bro. Co., 243 F. 2d 364 267 Langford v. United States, 101 U. S. 341 569 Langnes v. Green, 282 U. S. 531 635 Lanza v. N. Y. S. Joint Legis. Comm., 3 N. Y. 2d 92 144, 149 TABLE OF CASES CITED. XXXIX Page Lanza v. N. Y. S. Joint Legis. Comm., 3 App. Div. 2d 531 149 Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 557 Lauf v. E.G. Shinner & Co., 303 U. S. 323 202,557 Lawlor v. Loewe, 235 U. S. 522 248 Lawrence v. Shaw, 300 U.S. 245 161-164 Lawson .'.\.lilk Co. v. Benson, 187 F. Supp. 66 113 Leedom v. Kyne, 358 U. S. 184 181 Levindale Lead & Zinc .'.\.lining Co. v. Coleman, 241 u. s. 432 414 Levine v. United States, 362 U. S. 610 397 Lewis v. Benedict Coal Corp., 361 U.S. 459 249 Lewis Publishing Co. v. Morgan, 229 U. S. 288 504 Leyra v. Denno, 347 U. S. 556 51, 62, 145 Linder v. United States, 268 U.S. 5 667 Local. For labor union, see name of trade. Lockerty v. Phillips, 319 U.S. 182 561 Loewe v. Lawlor, 208 U. S. 274 248 Loewe v. Savings Bank of Danbury, 236 F. 444 248 Loew's, Inc., v. United States, 339 U. S. 974 307,310 Long:,horemen's Union v. Juneau Spruce Corp., 342 U.S. 237 545 Lorain Journal v. United States, 342 U.S. 143 307, 709 Lottawanna, The, 21 Wall. 558 604 Louisa v. Levi, 140 F. 2d 512 360 Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385 620 Louisville Trust Co. v. Knott, 191 U. S. 225 363 Page Lovell v. Griffin, 303 U. S. 444 388 Lovett v. United States, 104 Ct. Cl. 557 557 Lustig v. United States, 338 U. S. 74 143 Lynch v. Overholser, 369 U. S. 705 676 Machinists v. Cameron Iron Works, 257 F. 2d 467 265 l\fachinists v. Street, 367 u. s. 740 219 Mahler v. Eby, 264 U. S. 32 718 Mahnich v. Southern S. S. Co., 321 U. S. 96 170 '.vialinski v. New York, 324 U. S. 401 52, 63 Malone v. Bowdoin, 369 U.S. 643 557 ~landel v. Pennsylvania R. Co., 291 F. 2d 433 39 Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379 537 Mapp v. Ohio, 367 U.S. 643 142,145 Marbury v. :Madison, 1 Cranch 137 554, 602 .\Iarcus v. Search Warrant, 367U.S.717 497,518 .'.\.Iarkel Electric Products v. Electrical Workers, 202 F. 2d 435 264 l\Iarket Street R. Co. v. Railroad Comm'n, 324 U.S. 548 306 Marshall v. United States, 360 U.S. 310 400 Marshman v. Commissioner, 31 T. C. 269 68 Marteney v. United States, 216 F. 2d 760 657,658 Martin v. Herzog, 228 N. Y. 164 697 Martin v. Hunter's Lessee, 1 Wheat. 304 545 '.Hartin v. United Fruit Co 272 F. 2d 347 ., 34 Marye v. Baltimore & 0. R. Co., 127 U. S. 117 613 Maryland v. Baldwin, 112 U.S. 490 30 XL TABLE OF CASES CITED. Pnge ::Vlaryland v. B a 1 t i m o r e Radio Show, 338 U. S. 912 402 '.\Iaryland & Virginia Milk Producers v. United States, 362 U. S. 458 30,310,311, 70!) '.\Iassachusetts Bonding Co. v. Lawson, 149 F. 2d 853 131 ).!asters, Mates & Pilots v. Labor Board, 48 L. R. R. ).11. 2624 180, 184 '.\lastro Plastics Corp. v. Labor Board, 350 U. S. 270 246,265 '.\Iatthews v. Rodgers, 284 U. S. 521 6 l\lattox v. Sacks, 3G9 U. S. 656 725 :.\Iayor & City Council of Baltimore v. Dawson, 350 u. s. 877 156 l\IcAllister v. United States, 141 U.S. 174 534,548 '.\IcAllister v. United States, 348 U. S. 19 168 '.\IcCardle, Ex parte, 7 Wall. 506 567,568,605 '.\IcCarroll v. Los Angeles County Council, 49 Cal. 2d 45 226 l\IcCollum v. Board of Education, 333 U. S. 203 439 l\IcCulloch v. Maryland, 4 \Vheat. 316 562 :!\IcDowell v. United States, 159 U. S. 596 535, 536 '.\foElrath v. United States, 102 u. s. 426 572,600 '.\IcGill v. State, 209 Ga. 500 385 McGinnis v. United States, 227 F. 2d 598 142 l\lcGowan v. l\laryland, 366 U.S. 420 443 l\foad, Inc., v. Teamsters, 217 F. 2d 6 Hl9, 205 Medley, 134 U. S. 160 675 Meeker v. Lehigh Valley n. Co., 236 U. S. 434 5g7 Merrill v. Fahs, 324 U. S. 308 69 l\Iesta v. Commissioner, 42 B. T. A. 933 67 Pa~~ Metlakatla Indian Community v. Egan, 363 U. S. M5 5~ :VIichael, In re, 326 U.S. 224 234,237 ::Vliles v. Graham, 268 U. S. 501 555,556 ).'lilk Wagon Drivers v. Lake \'alley Farm Prods., 311 U.S. 91 203 Miller v. Standard Margarine Co., 284 U. S. 498 2, 5-7 ).Iillers' Indemnity Underwriters v. Braud, 270 U. S. 59 119 :\Iilwaukee Publishing Co. v. Burleson, 255 U. S. 407 480,499,504,518,524 Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469 37 .Milwaukee Towne Corp. v. Loew's, Inc., 190 F. 2d 561 699 Mine Workers v. Labor Board, 103 U. S. App. D. C. 207 265 1\-finneapolis & St. L. n. Co. v. Bombolis, 241 U.S. 211 572 MinnC'sota v. Hitchcock, 185 u. s. 373 564 Minnesota v. National Tea Co., 309 U. S. 551 152 Missouri, K. & T. R. Co. v. Williams, 103 TC'x. 228 37 Mitchell v. Trawler Racer, Inc., 362 U. S. 539 166, 168, 169, 172 Monaco v. Mississippi, 292 U.S. 313 564 l\fonongahela Nav. Co. v. United States, 148 F. S. 312 549 Monroe v. Pape, 365 U. S. 167 457 :.\fontague & Co. v. Lowry, 193 U. S. 38 699 Mookini v. United States, 303 U. S. 201 548 Moore v. Dempsey, 261 U.S. 86 389 :'.\Ioore v. MC'ad's Fine Bread Co., 348 U. S. 115 475 Moore v. State, 48 ::Vliss. 147 418 Morgan v. Parham, 16 Wa:l. 471 620 TABLE OF CASES CITED. XLI l'ai:<> '.\Iorgan v. UnitC'd States, ;304 U.S. I 99,112 :.\lorgan v. Virginia, 328 U.S. 373 619 :.\lorgan Drive Away v. Teamsters, 166 F. Supp. 885 247 :\losh:rnnon Nat. Bank v. Iron Mountain Ranch Co., 45 Wyo. 265 631 '.\lounce v. Unitf•d States, 355 U. s. 180 490 :\fountain Timber Co. v. Washington, 243 U.S. 219 117 Murdock v. :Vlemphis, 20 Wall. 590 148 :VIurray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 538,550,551,554 '.\foskrat v. United States, 219 U.S. 346 587,602 Nardone v. United States, 308 U. S. 338 145 Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 571 National Cored Forgings Co. v. United States, 132 Ct. Cl. 11 566 ~ational Ins. Co. v. Tidewater Co., 337 U. S. 582 600 National Labor Relations Board. See Labor Board. National Leather Co. v. l\lassachusetts, 277 U. S. 413 289 Xational Illarine Engineers v. Labor Board, 274 F. 2d 167 180, 181, 183, 184, 188, 189 Near v . '.\Iinnesota, 283 U.S. 697 3S:3, 504 Nebbia v. New York, 291 U. S. 502 102 Xew v. Oklahoma, 195 U.S. 252 36.3 Xew Orleans Park Assn. v. Detiegc, 358 U.S. 54 156 Xewport Xews Shipbuilding Co. , •. O'Hearne, 192 F. 2d 968 132 Xew York Central & H. R. R. Co. v. United State:;, 212 U. S. 481 408 Pllg<' New York Central R. Co. v. '.\Iiller, 202 U. S. 584 611, 612,622-6:.?4 New York Central R. Co. v. White, 243 U. S. 188 117 New York, P. & ~. R. Co. v. Peninsula Exchange, 240 U. S. 34 541 Xorris v. Alabama, 294 U.S. 587 386 Northwest Airlines v. l\Iinnesota, 322 U. S. 292 611,612,618 Nueslein v. District. of Columbia, 73 App. D. C. 85 142 Nye v. United States, 313 U.S. 33 233 O'Donoghue v. United States, 289 U. S. 516 536,539,542,543,548, 558, 580, 590, 599, 605 Offutt v. United States, 348 U.S. 11 233,237 Ogden v. Blackledge, 2 Cranch 272 414 Ohio ex rel. Popovici v. Agler, 280 U.S. 379 581 Ohio Power Co. v. Labor Board, 176 F. 2d 385 179 Oil Workers Unions v. Missouri, 361 U. S. 363 685 Olesen v. Stanard, 227 F. 2d 785 498 Olsen v. Smith, 195 U. S. 332 706 O'}1alley v. Woodrough, 307 U. S. 277 555 593 O'Neil v. Vermont, 144 U. s.' 323 676 One, Inc., v. Olesen, 355 U.S. 371 496 Osborn v. Bank of United States, 9 Wheat. 738 556,588 Osborn v. Ozlin, 310 U. S. 53 452,453 Osceola, The, 189 U. S. 158 604 Ott v. :\Iississippi Valley Barge Line Co., 336 U. S. 169 611-613,617,622-624 Packard Motor Co. v. Labor Board, 330 U.S. 485 179 187 Pahlberg Petition, In re, 131' F. 2d 968 262 XLII TABLE OF CASES CITED. Pnge Parker v. Brown, 317 U. S. 341 706 Parker v. Motor Boat Sales, 314 U. S. 244 127, 138 Parmelee v. United States, 72 App. D. C. 203 490 Pasadena Investment Co. v. Peerless Casualty Co., 132 Cal. App. 2d 328 657 Patino v. Commissioner, 13 T. C. 816 68 Patterson v. Colorado, 205 U.S. 454 396 Patterson v. Thomas, 289 F. 2d 108 272,273,276,277 Pawling v. United States, 4 Cranch 219 696 Payne v. Arkansas, 356 U.S. 560 55 Penello v. Seafare1!l' Union, 40 L. R. R. M. 2180 183 Penhallow v. Doane's Adm'r, 3 Dall. 54 55 Pennekamp v. Florida, 328 U.S. 331 384-393, 397, 401, 402 Penn Mutual Life Ins. Co. v. Lederer, 252 U. S. 523 414 Pennsylvania Greyhound Lines v. Amalgamated Assn., 98 F. Supp. 789 262 People v. Ackles, 147 Cal. App. 2d 40 687 People \'. Bastio, 55 Cal. App. 2d 615 687 People v. Bendit, 111 Cal. 274 657 People v. Cummins, 209 N.Y.283 151 People v. Davis, 56 N. Y. 95 151 People v. Faden, 271 N. Y. 435 151 People v. Garcia, 122 Cal. App. 2d 962 687 People v. Jaurequi, 142 Cal. App. 2d 555 684 People v. Lanza, IO App. Div. 2d 315 149 People v. Megladdery, 40 Cal. App. 2d 748 687 People v. Richmond County News, 9 N. Y. 2d 578 489 PngP People v. Thompson, 144 Cal. App. 2d 854 687 People v. Williams, 164 Cal. App. 2d 858 687 People's Bank v. Calhoun, 102 u. s. 256 305 Petite v. United States, 361 U. S. 529 723 Philadelphia Fire Assn. v. New York, 119 U.S. 110 409 Philadelphia Park Co. v. United States, 130 Ct. Cl. 100 n Pierre v. Louisiana, 306 U.S. 354 389 Pitts v. Peak, 60 App. D. C. 195 580 Plimpton v. Spiller, 6 Ch. D. 412 37 Po c on o Pines Assembly Hotels Co. v. United States, 73 Ct. Cl. 447 568 Poe v. Seaborn, 282 U. S. 101 71 Poignant v. United States, 225 F. 2d 595 37 Poller v. Columbia Broadcasting System, 368 U. S. 464 697 Pope v. United States, 323 U. S. 1 543, 545,567,584,598 Pope v. United States, 100 Ct. Cl. 375 584 Pope & Talbot v. Hawn, 346 u. s. 406 168, 170 Popovici v. Agler, 280 U. S. 379 581 Poss v. Christenberry, 179 F. Supp. 411 491 Post.um Cereal Co. v. California Fig Nut Co., 272 U. S. 693 576-580, 590,605 Prentis v. Atlantic Coast Line, 211 U.S. 210 590 Prudential Ins. Co. v. Benjamin, 328 U.S.408 452,456 Public Utilities Comm'n v. Pollak, 343 U. S. 451 580 Public Workers v. Mitchell, 330 u. s. 75 395 Publishers Assn., In re, 8 N. Y. 2d 414 265 TABLE OF CASES CITED. XLIII Pagf> Pullman's Car Co. v. Pennsylvania, 141 U. S. 18 613,620,623 Pure Oil Co. v. Snipes, 293 F. 2d 60 37 Quick Service Box Co. v. St. Paul Mercury Indemnity Co., 95 F. 2d 15 658 Radiant Burners v. Peoples Gas Light Co., 364 U. S. 656 231 Hadio Station WOW v. Johnson, 326 U. S. 120 308,309,361 Radovich v. National Football League, 352 U. S. 445 231 Rahrer, In re, 140 U. S. 545 456 Railroad Co. v. Jackso11, 7 Wall. 262 620 Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330 211,212 Railroad Trainmen v. Chicago River & I. R. Co., 353 U.S. 30 210, 211, 215, 217-219 Rainwater v. United States, 356 u. s. 590 414 Ray v. Law, 3 Cranch 179 359 Redfield v. Ystalyfera Iron Co., 110 U.S. 174 631 Reed v. Commissioner, 35 T. C. 199 277 Reed v. First Nat. Bank, 194 Ore. 45 631 Reeside v. Walker, 11 How. 272 570 Rt:'gina v. Close, [1948] Viet. L. R. 445 485 Regina v. Great North of England R. Co., [1845] 9 Q. B. 315 417 Regina v. Hicklin, [1868] L. R. 3 Q. B. 360 484, 485, 487 Regina v. White, 2 Car. & K. 404 655-657 Reid v. Richmond, 295 F. 2d 83 634, 644 Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62 306,308 PUKP Reuter, In re, 4 App. Div. 2d 252 144, 149 Rex v. Medley, 6 Car. & P. 292 417 Reynolds v. United States, 98 U. S. 145 545 Rhode Island v. )lfossachusetts, 12 Pet. 657 563 Rice v. Ames, 180 U.S. 371 539 Rice v. Santa Fe Elevator Corp., 331 U. S. 218 456 Rice v. Sioux City Cemetery, 349 U. S. 70 270 Rios v. United States, 364 U. S. 253 143 Riss & Co. v. United States, 341 u. s. 907 516 Rittenour v. District of Columbia, 163 A. 2d 558 43 Robins Dry Dock Co. v. Dahl, 266 U. S. 449 116, 119, 134 Rochin v. California, 342 u. s. 165 145 Rogers v. United States Lines, 347 U.S. 984 170 Rosenzweig v. Boutin, 369 U.S. 818 561 Ross, In re, 140 U. S. 453 547 Roth v. Goldman, 172 F. 2d 788 498 Roth v. United States, 354 u. s. 476 480-491, 504,518 Royster Drive-In Thratres v. American Broadcasting- Paramount Theatres, 268 F. 2d 246 699 Ruppert v. Egelhofer, 3 N. Y. 2d 576 260 Russell v. United States, 369 U.S. 749 288,717,718,724 Russian Volunteer Fleet v. United States, 282 U. S. 481 943 Safe Deposit & Trust Co. v. \'irginia, 280 U. S. 83 621 St ..J oseph & G. I. R. Co. v. :'.\-Ioore, 243 U. S. 311 36 St. Louis v. Ferry Co., 11 Wall. 423 620 St. Louis Cotton Compre8S Co. v. Arkansas, 260 U. S. 346 453-456 XLIV TABLE OF CASES CITED. Page Sanborn, In re, 148 U. S. 222 579 San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 174- 177,182,184,185,245 Sawyer, In re, 360 U. S. 622 386,395 Schad v. Twentieth Centurv- Fox Film Corp., 136 F. 2d 991 696 Schauffier v. Marine Engineers, 180 F. Supp. 932 183,185,188 Schechter v. United States, 295 U. S. 495 91 Sehine Chain Theatres v. United States, 329 U. S. 686, 334 U. S. 110 307 Schmidt, Ex parte, 2 Tex. App. Hl6 418 Schneider v. State, 308 U.S. 147 383 Schneiderman v. United States, 320 U. S. 118 578 Scholle v. Hare, 369 U. S. 429 191,192 Schwegmann Bros. v. Calvert Distillers Corp., 341 lT. S. 384 312,414 Seas Shipping Co. v. Sieracki, 328 U. S. 85 168, 170 Securities & Ex c h a n g e Comm'n v. Chenery Corp., 318 U. S. 80 635 Selvidge v. United States, 290 F. 2d 894 652, 657 Shanferoke Coal Corp. v. Westchester Corp., 70 F. 2d 297 262,267 Shapiro v. United States, 107 Ct. Cl. 650 557 Sheldon v. Sill, 8 How. 441 552 Shotkin v. Westinghouse Elec. & Mfg. Co., 169 F. 2d 825 631 Shutter v. Commissioner, 2 B. T. A. 23 277 Siebold, Ex parte, 100 U. S. 371 539,581 Signal-Stat Corp. v. Electric- al Workers, 235 F. 2d 298 265 Page Silber v. United States, 370 u. s. 717 724 Silverman v. United States, 365 U. S. 505 143 Silverthorne Lumbf'r Co. v. United States, 251 U. S. 385 142,143 Simms v. Simms, 175 U. S. 162 545 Sinclair Refining Co. v. Atkinson, 370 "C. S. 195 240, 711, 712 Sinking-Fund Cases, 99 U.S. 700 408 Sioux Tribe v. United States, 316 U.S. 317 414 Slavitt v. Meader, 278 F. 2d 276 631 Slick Airways v. American Airlines, 107 F. Supp. 199 i07 Smith v. Allwright, 321 U.S. 649 457 Smith v. Ayer, 101 U.S. 320 634 Smith v. California, 361 U. S. 147 480, 492,493,497,525,664 Smith v. Ellerman Lines, 247 F. 2d 761 39 Smith v. Reimmer Oil Transport, 256 F. 2d 646 696 Smith v. Texas, 311 U. S. 128 389 Snow v. United States, 118 u. s. 346 363 Snyder v. }larks, 109 U. S. 189 8 Societe Internationale v. Rogers, 357 U.S. 197 636 Soderman v. Stone Bar Associates, 208 :Misc. 864 15;{ South Dakota v. North Carolina, 192 U.S. 286 571 Southern Pacific Co. v. Jensen, 244 U. S. 205 117, 118, 120, 124. 126- 128, 133-135, 457 Southern Pacific Co. v. Kentucky, 222 U. S. 63 611,612 Southern S. S. Co. v. Labor Board, 316 U. S. 31 17 Spalding & Bros. v. Federal Trade Comm'n, 301 F. 2d 585 325,343 TABLE OF CASES CITED. XLV Page Spano v. Kew York, 360 u. s. 315 52, 63,145,400 Speiser v. Randall, 357 U. S. 513 504 Spokane & Inland E. R. Co. Y. United States, 241 U.S. 344 35 36 Spring Co. v. Edgar, 99 U.S. ' 645 35 Square D Co. v. Electrical Workers, 123 F. Supp. 776 247 Stainback v. :\Io Hock Kl' Lok Po, 336 U. S. 368 307,363 Stanard v. Olesen, 74 S. Ct. 768 498,512 Standard Oil Co. v. Moore, 251 F. 2d 188 699 Standard Oil Co. v. Peck, 342 U. S. 382 609-617,623,624 Standard Oil Co. v. United States, 221 U. S. 1 710 Standard Oil Co. v. United States, 337 U.S. 293 320,321, 324,330,338,341,372 Stark v. Wickard, 321 U. S. 288 88 State v. Great \Yorks '.\lilling & l\,J fg. Co., 20 .Me. 41 417 State v. Lamb, 198 N. C. 423 657 State v. '.\Iorris & E. R. Co., 23 N. J. L. 360 417 State v. Parsons, 12 Mo. App. 205 418 State v. Patton, 26 N. C. 16 417 State Comm'n v. Nordenholt Corp., 259 U. S. 263 119, 12:3, 129 State Tax Comm'n v. Aldrich, 316 U. S. 174 621 State Tax on Foreign-Hl'l35 Ward, Ex partr, 17:3 F. S. 452 589 Washington v. Dawson & Co., 264 U. S 219 11~, 120,126--128,133, 134 Wwrns v. l'nitC'd States, 217 u. s. 349 718 Westrrn Boat Building Co. v. O'Leary, Hl8 F. 2d 409 132 Western Fuel Co. v. Gareia, 2s7 r. s. 233 us, 133 West Virginia Bd. of Edueation v. Barnette, 319 U.S. 624 445 Whipple v. Martinson, 256 F. s. 41 664 WhitfiPld v. Ohio, 297 F. S. 431 146,152 Whitney v. California, 274 u. s. 357 389 391 Wieman v. Updrgraff, 344' l:. s. 183 43 \Viener v. United States, 357 l'. S. 349 Wilkerson v. lTtah, 99 F. S. 43 130 67f, 663026 0-62-4 Pai:~ Willenbroek v. Rogers, 255 F. 2d 236 942 Williams v. United States, 2S9 C. S. 553 531,534,542, 543,548--551, 558,561- 564, 583-586, 592, 597 Williams ,·. Zuckert, 369 C'. s. 884 44 Wilmington Star ;\lining Co. \'. Fulton, 205 U. S. 60 39 Winans v. )l°ew York & E. H. Co., 21 How. 88 37 Wisconsin Bankers v. Hobrrt,,: on, 111 r. S. App. D. C. b5 15;3 Wisconsin Liquor Co. v. Park & Tilford Distillers Corp., 267 F. 2d 928 697 W. L. Mead, Inc., v. Teamsters, 217 F. 2d 6 199,205 "'olf v. Colorado, 338 l1. S. 25 142 Womack v. United States, 111 U. S. App. D. C. 8 4[)4,528 Wong Yang Sung v. Me- Grath, 339 U. S 33 411,516 Wood v. Georgia, 103 Ga. App. 305 383,391,399,403 Wood v. Hoy, 266 F. 2d 825 43 Wri,1?ht v. l'nited States, 172 F. 2d 310 658 Wy1mdotte v. Corrigan, 35 Kan. 21 418 Yale & Towne Co. v. Machinists, 299 F. 2d 882 242,265 Yeager v. Fnite, §§ 11-306, 21-308, 31-101 ............ 530 Code, 1961, Georgia. Tit. 11, C. 5 ...... 530 § 22-2901 . . . . . . . . 530 § 43-705 . . . . . . . . . 530 Code Ann., §§ 24-105, 24--2813, 34-1907, 34- 9907, 59-302 ........ 375 Louisiana. Rev. Stat, 1950, § 14: 103.1 ......... 154 Compensation Act ..... 114 New York. Const., 1894 .......... 190 New York-Continued. Const., Art. V, § 4 .... 421 Correction Law, § 500-c. 139 Education Law, §§ 101, 120 et seq., 202, 214-- 219, 224, 245 et seq., 704, 801 et seq. . . . . . 421 27 McKinney's Consol. Laws, § 213. . . . . . . . . 269 WcKinney's 1958 Session Laws, p. 1837 ... 139 Penal Law, Art. 73 ........... 139 §§ 381, 584, 1330, 2447 .. .. . .. . .. 139 Alcoholic Beverage Control Law ........... 713 Compensation Act ..... 114 Workmen's Compensation Act ........... 114 Pennsylvania. Purdon's Stat. Ann., 1949, Tit. 72, §§ 1871, Hi~ti, 1901 .......... till7 Texas. 14 Vernon's Civ. Stat., 1952 {Cum. Supp. 1961),Art.21.38,§2. 451 Virginia. 12 Hening, Statutes of Virginia (1823), 84 .. 421 LVI TABLE OF STATUTES CITED. (C) INTERNATIONAL AGREEMENTS. 1942, July 8 (Mutual Aid Agreement brtween the United States and the Netherlands), 56 Stat. Page 1945, April 30 (Mutual Aid Agreement between the United States and the Netherlands), ,59 Stat. Page 1554 .................. 940 1627 .................. 940 (D) FOREIGN STATUTES. England. 13 & 14 Car. II, c. 4 ... 2 & 3 Edw. VI, c. 1. .. 3 & 4 Edw. VI, c. 10 .. . 5 & 6 Edw. VI, c. 1. .. . 1 Eliz., c. 2 .......... . 421 421 421 421 421 England-Continued. 3 & 4 Geo. 5, c. 27, § 1. . 1 Mary, c. 2 ......... . 24 & 25 Viet., c. 98, §24. Forgery Act, 1861 .... . Forgery Act, 1913 .... . 650 421 650 650 650 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1961. ENOCHS, DISTRICT DIRECTOR OF INTERN AL REVENUE, v. WILLIAMS PACKING & NAVIGATION CO., INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 493. Argued April 18, 1962.-Decided May 28, 1962. Respondent, which is in the business of providing fishing trawlers to commercial fishermen, sued in a Federal District Court to enjoin the collection of social security and unemployment taxes claimed by petitioner to be past due. Although petitioner adduced evidence in support of his claim that there was an employment relationship, the District Court found that such taxes were not, in fact, payable and that their collection would destroy respondent's business; and it permanently enjoined their collection. Held: The suit for injunction was barred by§ 7421 (a) of the Internal Revenue Code of 1954, and a judgment sustaining the injunction is reversed. Miller v. Standard Nut Margarine Co., 284 U.S. 498, distinguished. Pp. 1-8. 291 F. 2d 402, reversed. Assistant Attorney General Oberdorfer argued the cause for petitioner. With him on the briefs were Solicitor General Cox, Acting Assistant Attorney General Jones, Meyer Rothwacks and George F. Lynch. 1 2 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. George E. Morse argued the cause for respondent. With him on the briefs was W. E. Morse. MR. CHIEF JusTICE WARREN delivered the opinion of the Court. Fearing that the District Director of Internal Revenue for Mississippi would attempt to collect allegedly past due social security and unemployment taxes for the years 1953, 1954 and 1955, respondent, in late 1957, brought suit in the District Court, maintaining that it was not liable for the exactions and seeking an injunction prohibiting their collection. The District Director, petitioner herein, made no objection to the issuance of a preliminary restraining order but resisted a permanent injunction, asserting that the provisions of § 7421 (a) of the Internal Revenue Code of 1954 barred any such injunctive proceeding. That section provides: "Except as provided in sections 6212 (a) and (c), and 6213 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." The exception for Tax Court proceedings created by § § 6212 (a) and ( c) and 6213 (a) was not applicable because that body is without jurisdiction over taxes of the sort here in issue. Nevertheless, on July 14, 1959, the court, relying upon Miller v. Standard Nut Margarine Co., 284 U.S. 498, permanently enjoined collection of the taxes on the ground that they were not, in fact, payable and because collection would destroy respondent's business. 176 F. Supp. 168. On June 14, 1961, the Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 291 F. 2d 402. We granted certiorari to determine whether the case came within the scope of this Court's holding in Nut Margarine which indicated that§ 7421 (a) was not, in the "special and extraordinary facts and cirENOCHS v. WILLIAMS PACKING CO. 3 Opinion of the Court. cumstances" of that case,1 intended to apply.2 368 U.S. 937. Respondent corporation (hereinafter referred to as Williams) is engaged in the business of providing trawlers to fishermen who take shrimp, oysters and fish off the Louisiana and Mississippi coasts. It is the Government's position that these fishermen are the corporation's employees within the meaning of §§ 1426 (d)(2) and 1607 (i) of the Internal Revenue Code of 1939, 26 U. S. C. (1952 ed.), and §§ 3121 (d) (2) and 3306 (i) of the Internal Revenue Code of 1954. These sections specifically adopt the common-law test for ascertaining the existence of the employer-employee relationship. As stated in United States v. Silk, 331 U.S. 704, 716, "degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required ... are important for decision [ under these statutes]." If, under the involved circumstances of this case, the fishermen were employees, respondent Williams is admittedly liable for social security and unemployment taxes for the years in question.3 The following facts, material to the question of the existence of the employment relationship, were established. Williams provided its boats to captains which it selected; they employed their own crews and could fire them at will, but the relationship between respondent cor- 1 284 U. S., at 511. 2 See also Hill v. Wallace, 259 U.S. 44, 62; Allen v. Regents, 304 u. s. 439, 449. 3 See § 1410, 1939 Code, and § 3111, 1954 Code (social security taxes); § 1600, 1939 Code, and § 3301, 1954 Code (unemployment taxes). Presumably the exceptions for fishing operations created by §§1426(b)(l5) and 1607 (c)(17) of the 1939 Code and by §3306 (c) (17) of the 1954 Code do not apply because the vessels here involved were of more than 10 net tons. 4 OCTOBER TERM, 1961. Opimon of the Court. 370 U.S. poration and the fishermen was not ordinarily of short duration. The catch was generally sold to Williams which in turn resold it to the DeJean Packing Co., a partnership closely allied to Williams both by reason of integrated operation and substantially identical ownership. The proceeds, after the deduction of expenses, were divided among the captain, the crew and the boat. Williams received an additional share if it supplied the nets and rigging. It extended credit to the captains and made it possible for them to obtain credit elsewhere, and if a trip was unsuccessful and if the captain or crew members no longer continued to operate a boat, Williams absorbed the loss. With respect to the existence of a recognized right of control by the employer, as might be expected, the testimony was in conflict. Petitioner introduced evidence to show that Williams could effectively refuse ice to boats and thus determine whether they would go out, that the boats' times of return were sometimes directed by the respondent corporation, that it could dictate the nature of the catch, and that permission was needed to sell the catch to someone other than respondent. And petitioner pointed out that both respondent and its fishermen had for other purposes represented that an employer-employee relationship existed.4 On the other hand, the District Court here found, and the respondent now asserts, that the corporation was wholly without any right of control. 4 For instance, during World War II, respondent represented that the fishermen were employees for the purpose of securing occupational deferments for them. And in the course of a prior antitrust litigation, instituted against a union to which respondent's fishermen belonged, the union defended against the charge of price fixing on the ground that its members were employees. The Government, curiously, successfully maintained that an employment relationship did not exist. See Gulf Coast Shrimpers & Oystermans Assn. v. United States, 236 F. 2d 658 (C. A. 5th Cir. 1956). ENOCHS v. WILLIAMS PACKING CO. 5 1 Opinion of the Court. Attempting to establish a basis for equitable jurisdiction, the corporation maintains that it will be thrown into bankruptcy if required to pay the entire assessment of $41,568.57. It is undisputed that Williams itself is without available funds in this amount, but the Government suggests that respondent has denuded itself of assets in anticipation of its tax liability, that DeJean's assets should be considered as belonging to respondent, and that, in any event, the respondent corporation may pay the assessment for a single quarter and then sue for a refund. The object of § 7421 (a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. In MiUer v. Standard Nut Margarine Co., supra, this Court was confronted with the question whether a manufacturer of "Southern Nut Product" could enjoin the collection of federal oleomargarine taxes on its goods. Prior to the assessment in issue three lower federal court cases had held that similar products were nontaxable and, by letter, the collector had informed the manufacturer that "Southern Nut Product" was not subject to the tax. This Court found that "[a] valid oleomargarine tax could by no legal possibility have been assessed against . . . [ the manufacturer], and therefore the reasons underlying ... [§ 7421 (a)] apply, if at all, with little force." 5 5 Id., at 510. The product in issue was made only with vegetable oils. The pertinent taxing statute defined "oleomargarine" as " [ a] II substances heretofore known as oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine-oil, butterine, la.rdine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef-fat, suet, lard, lard-oil, vegetable-oil annotto [a coloring material], and other coloring matter, intestinal fat, and offal fat made in imitation or semblance of butter, or when so made, calculated or intended to be sold as butter or for butter." 24 Stat. 209. The assessment was based on the argument that the statutory 6 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. Noting that collection of the tax "would destroy its business, ruin it financially and inflict loss for which it would have no remedy at law," the Com't held that an injunction could properly issue. Id., at 510-511. The courts below seem to have found that Nut Margarine decides that§ 7421 (a) does not bar suit for an injunction against the collection of taxes not due if the legal remedy is inadequate. We cannot agree. The enactment of the comparable Tax Injunction Act of 1937, 50 Stat. 738, now, as amended, 28 U.S. C. § 1341, forbidding the federal courts to entertain suits to enjoin collection of state taxes "where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State," throws light on the proper construction to be given § 7421 (a). It indicates that if Congress had desired to make the availability of the injunctive remedy against the collection of federal taxes not lawfully due depend upon the adequacy of the legal remedy, it would have said so explicitly. Its failure to do so shows that such a suit may not be entertained merely because collection would cause an irreparable injury, such as the ruination of the taxpayer's enterprise. This is not to say, of course, that inadequacy of the legal remedy need not be established if § 7421 (a) is inapplicable; indeed, the contrary rule is well established. See, e.g., Matthews v. Rodgers, 284 U.S. 521; Miller v. Standard Nut Margarine Co., supra; Dows v. Chicago, 11 Wall. 108. However, since we conclude that § 7421 (a) bars any suit for an injunction in this case, we need not determine whether reference to "vegetable-oil annot.to" was meant to bring products made with vegetable oil within the definition. The Court held that the Act was obviously designed to include only vegetable-oil coloring used in conjunction with animal-fat products; in fact, after the tax year involved, the statute had been amended to bring vegetable-oil products within the definition. See 46 Stat. 1022. ENOCHS v. WILLIAMS PACKING CO. 7 1 Opinion of the Court. the taxpayer would suffer irreparable injury if co11ection were effected. The manifest purpose of § 7421 (a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue.6 Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose' of the Act is inapplicable and, under the Nut Margarine case, the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in "the guise of a tax." Id., at 509. We believe that the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed. To require more than good faith on the nart of the Government would unduly interfere with a collateral 6 Compare S. Rep. No. 1035, 75th Cong., 1st Sess. 2, concerning 28 U.S. C. § 1341: "The existing practice of the Federal courts in entertaining taxinjunction suits against State officers makes it possible for foreign corporations doing business in such States to withhold from them and their governmental subdivisions, taxes in such vast amounts and for such long periods of time as to seriously disrupt State and county finances. The pressing needs of these States for this tax money is so great that in many instances they have been compelled to compromise these suits, as a result of which substantial portions of the tax have been lost to the States without a judicial examination into the real merits of the controversy." 8 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. objective of the Act-protection of the collector from litigation pending a suit for refund. And to permit even the maintenance of a suit in which an injunction could issue only after the taxpayer's nonliability had been conclusively established might "in every practical sense operate to suspend collection of the ... taxes until the litigation is ended." Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, 299. Thus, in general, the Act prohibits suits for injunctions barring the collection of federal taxes when the collecting officers have made the assessment and claim that it is valid. Snyder v. Marks, 109 u. s. 189, 194. The record before us clearly reveals that the Government's claim of liability was not without foundation. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the District Court with directions to dismiss the complaint. Reversed. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. LABOR BD. v. WASHINGTON ALUMINUM CO. 9 Syllabus. NATIONAL LABOR RELATIONS BOARD v. WASHINGTON ALUMINUM CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 464. Argued April 10, 1962.-Decided May 28, 1962. Respondent is a manufacturer subject to the National Labor Relations Act. After several of the eight nonunion employees in its machine shop had complained individually about the coldness of the shop during the winter, seven of them walked out together on an extraordinarily cold day, saying that it was "too cold to work." Respondent discharged them for violating a rule forbidding any employee to leave without permission of the foreman. The National Labor Relations Board found that they had acted in concert in protest against respondent's failure to provide adequate heat in their place of work and that their discharge violated § 8 (a)(l) of the Act by interfering with their right under § 7 to act in concert for mutual aid or protection, and it ordered respondent to reinstate them with back pay. Held: The Board correctly interpreted and applied the Act to the circumstances of this case, and the Court of Appeals should have enforced its order. Pp. 10-18. (a) These employees did not lose their right under § 7 to engage in concerted activities merely because they did not present a specific demand upon their employer to remedy a condition they found objectionable. Pp. 14-15. (b) The walkout involved here grew out of a "labor dispute" within the meaning of § 2 (a) of the Act. Pp. 15-16. (c) The fact that respondent had an established rule forbidding employees to leave their work without permission of the foreman was not justifiable "cause" for their discharge within the meaning of§ 10 (c). Pp. 16-17. 291 F. 2d 869, reversed. Dominick L. M anoli argued the cause for petitioner. With him on the briefs were Solicitor General Cox, Stuart Rothman, Norton J. Come and Samuel M. Singer. Robert R. Bair argued the cause and fi1ed briefs for respondent. 663026 O-62-, 10 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. MR. JUSTICE BLACK delivered the opinion of the Court. The Court of Appeals for the Fourth Circuit, with Chief Judge Sobeloff dissenting, refused to enforce an order of the National Labor Relations Board directing the respondent Washington Aluminum Company to reinstate and make whole seven employees whom the company had discharged for leaving their work in the machine shop without permission on claims that the shop was too cold to work in.1 Because that decision raises important questions affecting the proper administration of the National Labor Relations Act,2 we granted certiorari.3 The Board's order, as shown by the record and its findings, rested upon these facts and circumstances. The respondent company is engaged in the fabrication of aluminum products in Baltimore, Maryland, a business having interstate aspects that subject it to regulation under the National Labor Relations Act. The machine shop in which the seven discharged employees worked was not insulated and had a number of doors to the outside that had to be opened frequently. An oil furnace located in an adjoining building was the chief source of heat for the shop, although there were two gas-fired space heaters that contributed heat to a lesser extent. The heat pro- 1 291 F. 2d 869. The Court of Appeals also refused to enforce another Board order requiring the respondent company to bargain collectively with the Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, as the certified bargaining representative of its employees. Since the Union's status as majority bargaining representative turns on the ballots cast in the Board election by four of the seven discharged employees, the enforceability of that order depends upon the validity of the discharges being challenged in the principal part of the case. Our decision on the discharge question will therefore also govern the refusal-to-bargain issue. 249 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. 3 368 U. S. 924. LABOR BD. v. WASHINGTON ALUMINUM CO. 11 g Opinion of the Court. duced by these units was not always satisfactory and, even prior to the day of the walkout involved here, several of the eight machinists who made up the day shift at the shop had complained from time to time to the company's foreman "over the cold working conditions."• January 5, 1959, was an extraordinarily cold day for Baltimore, with unusually high winds and a low temperature of 11 degrees followed by a high of 22. When the employees on the day shift came to work that morning, they found the shop bitterly cold, due not only to the unusually harsh weather, but also to the fact that the large oil furnace had broken down the night before and had not as yet been put back into operation. As the workers gathered in the shop just before the starting hour of 7:30, one of them, a Mr. Caron, went into the office of Mr. Jarvis, the foreman, hoping to warm himself but, instead, found the foreman's quarters as uncomfortable as the rest of the shop. As Caron and Jarvis sat in Jarvis' office discussing how bitingly cold the building was, some of the other machinists walked by the office window "huddled" together in a fashion that caused Jarvis to exclaim that "[i]f those fellows had any guts at all, they would go home." When the starting buzzer sounded a few moments later, Caron walked back to his working place in the shop and found all the other machinists "huddled there, shaking a little, cold." Caron then said to these workers, " ... Dave [Jarvis] told me if we had any guts, we would go home. . . . I am going home, it is too damned cold to work." Caron asked the other • The Board made a specific finding on this issue: "We rely, inter alia, upon ... the credited testimony of employees Heinlein, Caron, and George as to previous complaints made to the Respondent's foremen over the cold working conditions, and to the effect that the men left on the morning of January 5 in protest of the coldness at the plant ... . " 126 N. L. R. B. 1410, 1411. 12 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. workers what they were going to do and, after some discussion among themselves, they decided to leave with him. One of these workers, testifying before the Board, summarized their entire discussion this way: "And we had all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way." 5 As they started to leave, Jarvis approached and persuaded one of the workers to remain at the job. But Caron and the other six workers on the day shift left practically in a body in a matter of minutes after the 7:30 buzzer. When the company's general foreman arrived between 7:45 and 8 that morning, Jarvis promptly informed him that all but one of the employees had left because the shop was too cold. The company's president came in at approximately 8:20 a. m. and, upon learning of the walkout, immediately said to the foreman, " ... if they have all gone, we are going to terminate them." After discussion "at great length" between the general foreman and the company president as to what might be the effect of the walkout on employee discipline and plant production, the president formalized his discharge of the workers who had walked out by giving orders at 9 a. m. that the affected workers should be notified about their discharge immediately, either by telephone, telegram or personally. This was done. On these facts the Board found that the conduct of the workers was a concerted activity to protest the company's failure to supply adequate heat in its machine shop, that such conduct is protected under the provision of § 7 of the National Labor Relations Act which guarantees that "Employees shall have the right ... to engage in . . . concerted activities for the purpose of collective 5 The Trial Examiner expressly credited this testimony and the Board expressly relied upon it. 126 N. L. R. B., at 1411. LABOR BD. v. WASHING TON ALUMINUM CO. 13 9 Opinion of the Court. bargaining or other mutual aid or protection," 6 and that the discharge of these workers by the company amounted to an unfair labor practice under § 8 (a) (1) of the Act, which forbids employers "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." 7 Acting under the authority of § 10 (c) of the Act, which provides that wh·en an employer has been guilty of an unfair labor practice the Board can "take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act," 8 the Board then ordered the company to reinstate the discharged workers to their previous positions and to make them whole for losses resulting from what the Board found to have been the unlawful termination of their employment. In denying enforcement of this order, the majority of the Court of Appeals took the position that because the workers simply "summarily left their place of employment" without affording the company an "opportunity to avoid the work stoppage by granting a concession to a demand," their walkout did not amount to a concerted activity protected by § 7 of the Act.9 On this basis, they 6 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S. C. § 157. Section 7 in full is as follows: "Employees shall have the right to self-organization, to form, ioin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3) ." 7 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S. C. § 158 (a)(l). 8 49 Stat. 453-454, as amended, 61 Stat. 146-147, 29 U. S. C. §160(c). 9 291 F. 2d, at 877. 14 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. held that there was no justification for the conduct of the workers in violating the established rules of the plant by leaving their jobs without permission and that the Board had therefore exceeded its power in issuing the order involved here because § 10 (c) declares that the Board shall not require reinstatement or back pay for an employee whom an employer has suspended or discharged "for cause." 10 We cannot agree that employees necessarily lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the restricted fashion suggested by the respondent here would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions. Indeed, as indicated by this very case, such an interpretation of § 7 might place burdens upon employees so great that it would effectively nullify the right to engage in concerted activities which that section protects. The seven employees here were part of a small group of employees who were wholly unorganized. They had no bargaining representative and, in fact, no representative of any kind to present their grievances to their employer. Under these circumstances, they had to speak for themselves as best they could. As pointed out above, prior to the day they left the shop, several of them had repeatedly complained to company officials about the cold working 10 "No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause." 49 Stat. 453-454, as amended, 61 Stat. 146-147, 29 U. S. C. § 160 (c). LABOR BD. v. WASHING TON ALUMINUM CO. 15 !} Opinion of the Court. conditions in the shop. These had been more or less spontaneous individual pleas, unsupported by any threat of concerted protest, to which the company apparently gave little consideration and which it now says the Board should have treated as nothing more than "the same sort of gripes as the gripes made about the heat in the summertime." The bitter cold of January 5, however, finally brought these workers' individual complaints into concert so that some more effective action could be considered. Having no bargaining representative and no established procedure by which they could take full advantage of their unanimity of opinion in negotiations with the company, the men took the most direct course to let the company know that they wanted a warmer place in which to work. So, after talking among themselves, they walked out together in the hope that this action might spotlight their complaint and bring about some improvement in what they considered to be the "miserable" conditions of their employment. This we think was enough to justify the Board's holding that they were not required to make any more specific demand than they did to be entitled to the protection of§ 7. Although the company contends to the contrary, we think that the walkout involved here did grow out of a "labor dispute" within the plain meaning of the definition of that term in § 2 (9) of the Act, which declares that it includes "any controversy concerning terms, tenure or conditions of employment .... " 11 The findings of the Board, which are supported by substantial evidence and which were not disturbed below, show a running dispute between the machine shop employees and the company over the heating of the shop on cold days-- a dispute which culminated in the decision of the 11 49 Stat. 450, as amended, 61 Stat. 137-138, 29 U.S. C. § 152 (9). (Emphasis supplied.) 16 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. employees to act concertedly in an effort to force the company to improve that condition of their employment. The fact that the company was already making every effort to repair the furnace and bring heat into the shop that morning does not change the nature of the controversy that caused the walkout. At the very most, that fact might tend to indicate that the conduct of the men in leaving was unnecessary and unwise, and it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not.12 Moreover, the evidence here shows that the conduct of these workers was far from unjustified under the circumstances. The company's own foreman expressed the opinion that the shop was so cold that the men should go home. This statement by the foreman but emphasizes the obviousthat is, that the conditions of coldness about which complaint had been made before had been so aggravated on the day of the walkout that the concerted action of the men in leaving their jobs seemed like a perfectly natural and reasonable thing to do. Nor can we accept the company's contention that because it admittedly had an established plant rule which forbade employees to leave their work without permission of the foreman, there was justifiable "cause" for discharging these employees, wholly separate and apart from any concerted activities in which they engaged in protest against the poorly heated plant. Section 10 ( c) of the Act does authorize an employer to discharge employees for "cause" and our cases have long recognized this right 12 "The wisdom or unwisdom of the men, their justification or lack of it, in attributing to respondent an unreasonable or arbitrary attitude in connection with the negotiations, cannot determine whether, when they struck, they did so as a consequence of or in connection with a current labor dispute." Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 344. LABOR BD. v. WASHING TON ALUMINUM CO. 17 9 Opinion of the Court. on the part of an employer.13 But this, of course, cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which § 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that for it would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the permission of the company's foreman was obtained. It is of course true that § 7 does not protect all concerted activities, but that aspect of the section is not involved in this case. The activities engaged in here do not fall ,vithin the normal categories of unprotected concerted activities such as those that are unlawful,14 violent 15 or in breach of con tract.10 Nor can they be brought under this Court's more recent pronouncement which denied the protection of § 7 to activities characterized as "indefensible" because they were there found to show a disloyalty to the workers' employer which this Court deemed unnecessary to carry on the workers' legitimate concerted activities.11 The activities of these seven employees cannot be classified as "indefensible" by any recognized standard of conduct. Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as the testimony and Board findings showed them to be in this case are unquestionably activities to correct conditions which modern labor-management legislation treats as too bad to have to be tolerated in a humane and civmzed society like ours. 13 See, e. g., Labor Board v. Jones & Laughlin Steel Corp., 301 u. s. 1, 45. 14 Southern Steamship Co. v. Labor Board, 316 U. S. 31. 15 Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240. 16 Labor Board v. Sands Manufacturing Co., 306 U.S. 332. 17 Labor Board v. Local Union No. 1229, International Brotherhood of Electrical Workers, 346 U. S. 464, 477. 18 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. We hold therefore that the Board correctly interpreted and applied the Act to the circumstances of this case and it was error for the Court of Appeals to refuse to enforce its order. The judgment of the Court of Appeals is reversed and the cause is remanded to that court with directions to enforce the order in its entirety. Reversed and remanded. MR. JusTICE FRANKFURTER and MR. JusTICE WHITE took no part in the consideration or decision of this case. SUNKIST v. WINCKLER & SMITH CO. 19 Syllabus. SUNKIST GROWERS, INC., ET AL. v. WINCKLER & SMITH CITRUS PRODUCTS co. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 241. Argued March 21-22, 1962.-Decided May 28, 1962. A group of citrus fruit growers in California and Arizona organized local cooperative associations which joined together for the purpose of collectively marketing their fruit through the agency of an areawide marketing cooperative and two processing cooperatives. Respondents sued petitioners, the areawide cooperative and one of the processing cooperatives, for treble damages under § 4 of the Clayton Act, claiming that they had conspired with the other processing cooperative and two privately owned processing corporations to restrain a.nd monopolize interstate trade in citrus fruit and by-products and had actually monopolized the same, in violation of §§ 1 and 2 of the Sherman Act. Held: In view of the exemption from the antitrust laws accorded to agricultural cooperatives by§ 6 of the Clayton Act and § 1 of the Capper-Volstead Act, 7 U. S. C. § 291, a judgment based on a general verdict against petitioners, which may have rested on a finding of an unlawful conspiracy among the three cooperatives, must be reversed. Pp. 20--30. {a) The instructions in this case left it open for the jury to base its verdict on a finding of a conspiracy among the marketing cooperative and the two processing cooperatives. Pp. 25-26. {b) On the record in this case it cannot be said that petitioners waived their objection to these instructions. Pp. 26-27. {c) In view of the provisions of § 6 of the Clayton Act and § 1 of the Capper-Volstead Act, the three legal entities formed by these growers for the purpose of processing and marketing their agricultural products cooperatively cannot be considered independent parties for the purposes of the conspiracy provisions of §§ 1 and 2 of the Sherman Act. Pp. 27-29. {d) Where one of several theories submitted to a jury is held erroneous, a general verdict must be reversed, as it may have rested on the erroneous theory. Pp. 29-30. 284 F. 2d 1, reversed and cause remanded. 20 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. Herman F. Selvin argued the cause for petitioners. With him on the briefs was Ross C. Fisher. William C. Dixon argued the cause for respondents. With him on the briefs was Holmes Baldridge. MR. JuSTICE CLARK delivered the opinion of the Court. This is a treble damage suit brought under § 4 of the Clayton Act. 38 Stat. 731, 15 U.S. C. § 15, charging petitioners, Sunkist Growers, Incorporated, and The Exchange Orange Products Company, with conspiracy to restrain and monopolize interstate trade and commerce in citrus fruits and by-products and with actual monopolization thereof in violation of § § 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1, 2, as amended. The petitioners are each agricultural cooperative organizations, Exchange Orange being a wholly owned subsidiary of Sunkist. Petitioners contend the case was submitted under instructions permitting the jury to find an illegal conspiracy among them and Exchange Lemon Products Company, a cooperative processing association owned and operated exclusively by a number of lemon-grower associations all of which are members of Sunkist Growers, Inc. They say that under the exemptions from the antitrust laws granted agricultural associations by § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17, and § 1 of the Capper- Volstead Act, 42 Stat. 388, 7 U.S. C. § 291, Sunkist, Exchange Orange, and Exchange Lemon, being made up of the same growers and associations, cannot be charged with conspiracy among themselves. The trial court overruled this contention, among others, and the jury returned a verdict of $500,000. Judgment for treble this amount and attorney fees, less some minor offsets, was entered. The Court of Appeals, accepting petitioners' view of the instructions, held that the exemption claimed did not apply here and affirmed the judgment as to liability but SUNKIST v. WINCKLER & SMITH CO. 21 19 Opinion of the Court. reversed as to the amount of damages. 284 F. 2d 1. We granted certiorari limited to the issue of the immunity of interorganizational dealings among the three cooperatives from the conspiracy provisions of the antitrust laws. 368 U. S. 813. We have concluded that the case was submitted to the jury on the theory claimed by petitioners and that this was erroneous. Thus we reverse the judgment. Sunkist Growers, Inc., has at its base 12,000 growers of citrus fruits in California and Arizona. These growers are organized into local associations which operate packing houses. The associations in turn are grouped into district exchanges, and representatives from these exchanges make up the governing board of Sunkist, a nonstock membership corporation. Sunkist serves the members as an organization for marketing their fresh fruit and fruit products 1 through its field, advertising, sales, and traffic departments. All of its net revenues are distributed to the members. In 1915 several member associations of Sunkist undertook to develop by-products for lemons in order to create a market for produce not salable as fresh fruit. Because this was a new, untried field the entire cooperative did not participate. Rather a separate cooperative-Exchange Lemon, a nonprofit stock corporation-was formed for this venture by the interested associations. Since that time Exchange Lemon has retained its separate identity although it is made up exclusively of lemon-grower associations which are also members of Sunkist. Its function now is primarily one of processing, and the resultant products are marketed for the owners by Sunkist through its products department, which is jointly managed by directors of Exchange Lemon and Exchange Orange. 1 These include juices, concentrates, oil, pectin, pharmaceuticals, and cattle feed. 22 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. One year after the organization of Exchange Lemon a similar association was formed to develop by-products for oranges. This organization, Exchange Orange, was comprised of a number of Sunkist member associations until 1931. At that time the Sunkist directors decided to make the processing facilities of Exchange Orange available to all of its member associations by purchasing it and operating it as a wholly owned subsidiary. In sum, the individual growers involved each belong to a local grower association. Fruit which is to be sold fresh is packed by the associations and marketed by Sunkist, a nonstock membership corporation comprised of district exchanges to which the associations belong. Most fruit which is to be processed into by-products is handled by Exchange Orange, a subsidiary of Sunkist, or by Exchange Lemon, a separate organization comprised of a number of Sunkist member associations.2 It is then marketed by the products department of Sunkist which is managed by directors of Exchange Orange and Exchange Lemon. Competing with the three cooperatives in the California- Arizona area in the business of processing and selling canned orange juice were four independent processors, which were primarily dependent upon Sunkist for their supply of by-product oranges.3 In 1951 two of these concerns, TreeSweet Products Company and E. A. Silzle Corporation, had process-and-purchase contracts with Exchange Orange. Under its contract TreeSweet agreed to process at cost an undetermined amount of oranges provided by Exchange Orange and to purchase the resultant orange juice at the then current price of Sunkist. The average net price for the oranges under this contract was 2 Some by-product fruit is sold to or processed by independent processors. 3 Sunkist also sold by-product oranges to additional companies for processing into by-products other than canned orange juice. SUNKIST v. WINCKLER & SMITH CO. 23 19 Opinion of the Court. alleged to have been $25.10 per ton.4 The contract with Silzle provided that it would process a stated amount of oranges for Exchange Orange and purchase the juice at a stated price less its processing cost alleged to have netted $17.66 per ton.5 The third producer, Case-Swayne Company, allegedly declined Sunkist's offer of a similar contract. Respondent Winckler & Smith Citrus Products Company, the final processor, was offered oranges only at the list price of $40 to $44 per ton, depending upon content of soluble solids, and was refused the processand- purchase arrangements described above. Respondents brought this suit on the theory that Sunkist and Exchange Orange controlled the supply of byproduct oranges available in the California-Arizona area to independent processors; that they combined and conspired with Exchange Lemon, TreeSweet, and Silzle to restrain and to monopolize interstate trade and commerce in 1951 in the processing and sale of citrus fruit juices, particularly canned orange juice; that they in fact monopolized such trade and commerce; and that the purpose or effect thereof was the elimination of Winckler as a competitor in the sale of such juices. Respondents relied on six specific acts and contracts which allegedly furthered the conspiracy, namely: (1) the processing of oranges at cost by Exchange Lemon for Exchange Orange during 1951; (2) the processing of lemons at cost by Exchange Orange for Exchange Lemon during 1951; (3) the establishment by Sunkist and Exchange Orange of a price to independent processors alleged to be too high to enable purchasers to compete, i. e., the $40-$44 per ton list price; ( 4) the contract between Exchange Orange and TreeSweet in 1951; (5) the contract between Ex- • The soluble solids content of the oranges processed by TreeSweet under this contract averaged 131-6 pounds per ton. 5 The soluble solids content of these oranges averaged 120 pounds per ton. 24 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. change Orange and Silzle in 1951; (6) the refusal to sign a comparable contract with respondent Winckler. After a lengthy trial producing a 4,000-page transcript, the case went to the jury under a necessarily complicated charge. As to the parties the jury might find to have participated in an illegal conspiracy, the court gave several instructions. One, given early in the charge, was that: "a parent corporation and its wholly-owned subsidiary can be guilty of combining or conspiring together to violate the antitrust laws. The defendants Sunkist Growers, Inc., and its wholly-owned subsidiary Exchange Orange Products Company, can accordingly combine or conspire together or with others to violate Sections 1 and 2 of the Sherman Act as charged in the first and second causes of action, subject to other instructions concerning the Capper- Volstead Act, and Section 6 of the Clayton Act, and the exemptions contained therein." The instructions on the Clayton and Capper-Volstead Acts merely stated that the cooperatives could lawfully have a monopoly of the fruit and products in which they dealt. Later references to the alleged conspiracy often mentioned only petitioners and the two independent processors, e. g., "If you find that either or both of the defendants [Sunkist and Exchange Orange, petitioners here] combined with TreeSweet or Silzle to eliminate the competition of the plaintiff .... " However, the court's concluding instructions on the subject could well have been taken by the jury as permitting them to find an illegal conspiracy solely among the three cooperatives: "Unless you find, therefore, from the preponderance of the evidence, that Sunkist or Exchange Orange or either of them, combined or conspired with either TreeSweet, or Silzle, or ELP [Exchange Lemon Prod19 SUNKIST v. WINCKLER & SMITH CO. 25 Opinion of the Court. ucts], and in 1951 did one or more of the specific acts charged .... " ... Unless you find from the preponderance of the evidence that defendants Sunkist and Exchange Orange, or either of them, and one or more of the alleged co-conspirators [one of which was Exchange Lemon], combined and conspired, and pursuant to such combination or conspiracy .... "Those are summary instructions which sort of sum up what is charged and what the plaintiff must prove." And in a final addendum after consultation with counsel the court instructed that: "I also am told that I spoke about how the defendants had conspired on one occasion. The charge is not that the defendants conspired. The charge is that the defendants and co-conspirators conspired. "However, as a matter of fact, you may find that nobody conspired, or you may pick out and decide that some number less than the total conspired." On the question now before us, the Court of Appeals held that any objection to at least one of the cbnspiracy instructions was waived; that in any event different agricultural cooperatives combining together are not entitled to claim a total immunity for acts which they might do unilaterally and individually; and that the common ownership of Sunkist, Exchange Orange, and Exchange Lemon did not prevent the finding of an illegal conspiracy among them. We believe the instructions quite plainly left it open for the jury to base their verdict upon a finding of a conspiracy among petitioners and Exchange Lemon." At the outset 6 It could be argued that the instructions also permitted the jury to find an illegal conspiracy solely between petitioners. Our holding renders unnecessary an evaluation of this interpretation of the charge. 663026 0-62-6 26 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. the court instructed that a conspiracy could be found between Sunkist and its wholly owned subsidiary Exchange Orange. Thereafter the charge advised the jury that a finding of conspiracy between "Sunkist or Exchange Orange or either of them ... [and] either TreeSweet, or Silzle, or ELP" was sufficient basis for a judgment against petitioners. From this it is entirely probable that the jury's verdict against both petitioners was based on their finding of a conspiracy among Sunkist, Exchange Orange, and Exchange Lemon. There is no question that Exchange Lemon was identified in the complaint and throughout the trial as an alleged co-conspirator. In no fewer than five instances did the trial court refer to the alleged conspiracy as being among petitioners and the "co-conspirators" or petitioners and Exchange Lemon, TreeSweet, or Silzle. The final summarization on conspiracy was in terms of finding that petitioners combined or conspired with either TreeSweet or Silzle or Exchange Lemon, and the addendum instructions emphasized that the jury could find either or both petitioners had illegally conspired with any one of the alleged co-conspirators. It is true that in some instances the court's conspiracy instructions mentioned only TreeSweet and Silzle as coconspira tors. Conjecture as to the reasons for this would not be fruitful. For it is clear that the court never limited the jury to a consideration of those parties as the sole co-conspirators. And other instructions, including the summarization, allowed the jury to base their verdict upon a finding of an illegal conspiracy solely among Sunkist, Exchange Orange, and Exchange Lemon. It is suggested by respondents and the court below that petitioners waived their objection to thesti instructions. This is based on petitioners' acquiescence in the additional instructions, including references to the conspiracy, given the jury after the general charge. But petitioners' actions SUNKIST v. WINCKLER & SMITH CO. 27 19 Opinion of the Court. here must be viewed in context. Prior to the general charge, conferences of counsel and the trial court were held to discuss the instructions. At each point counsel for petitioners objected to instructions which suggested that the three cooperatives might be found to have illegally conspired among themselves and requested instructions that would have limited a finding of an unlawful conspiracy in this case to one among petitioners and TreeSweet or Silzle. The trial court consistently ruled adversely to petitioners on this point. After the charge was delivered, counsel were told that all prior objections would be preserved and asked if they had any additional objections. In light of this assurance and petitioners' prior objections and requests, we believe the acquiescence in the added instructions could not be considered a waiver. We are squarely presented, then, with the question of whether Sunkist, Exchange Orange, and Exchange Lemon-the three legal entities formed by these 12,t:JOO growers-can be considered in de pendent parties for the purposes of the conspiracy provisions of § § 1 and 2 of the Sherman Act. We conclude not. Section 6 of the Clayton Act provides, inter alia, that agricultural organizations instituted for the purposes of mutual help shall not be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws.7 7 "Sec. 6. That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws." 28 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. The Capper-Volstead Act sets out this immunity in greater specificity: "That persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes .... "" There can be no doubt that under these statutes the 12,000 California-Arizona citrus growers ultimately involved could join together into one organization for the collective processing and marketing of their fruit and fruit products without the business decisions of their officers being held combinations or conspiracies. The language of the Capper-Volstead Act is specific in permitting concerted efforts by farmers in the processing, preparing for market, and marketing of their products. And the legislative history of the Act reveals several references to the Sunkist organization-then called the California Fruit Growers Exchange and numbering 11,000 members- including a suggestion by Senator Capper that this was the type of cooperative that would find "definite legalization" under the legislation.9 Although we cannot draw from these references a knowing approval of the 8 The Act has certain organizational requisites which are not in issue here. 9 61 Cong. Rec. 1036 (1921) {remarks of Representative Black); 62 Cong. Rec. 2052 (1922) (Senator Kellogg); 62 Cong. Rec. 2061 (1922) (Senator Capper); 62 Cong. Rec. 2277 (1922) (Senator Walsh). SUNKIST v. WINCKLER & SMITH CO. 29 19 Opinion of the Court. tripartite legal organization of the 11,000 growers, they do indicate that a cooperative of such size and general activities was contemplated by the Act. Instead of a single cooperative, these growers through local associations first formed one area-wide organization (Sunkist) for marketing purposes. When it was decided to perform research and processing on a joint basis, separate organizations were formed by the interested associations for reasons outlined above. At a later date one of these (Exchange Orange) was acquired by the Sunkist organization and is presently held as a subsidiary. The other (Exchange Lemon) is still owned by the lemongrower associations, all of whom are also member associations of Sunkist. With due respect to the contrary opinions of the Court of Appeals and District Court, we feel that the 12,000 growers here involved are in practical effect and in the contemplation of the statutes one "organization" or "association" even though they have formally organized themselves into three separate legal entities. To hold otherwise would be to impose \grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. There is no indication that the use of separate corporations had economic significance in itself or that outsiders considered and dealt with the three entities as independent organizations. That the packing is done by local associations, the advertising, sales, and traffic by divisions of the area association, and the processing by separate organizations does not in our opinion preclude these growers from being considered one organization or association for purposes of the Clayton and Capper- Volstead Acts. Since we hold erroneous one theory of liability upon which the general verdict may have rested-a conspiracy 30 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. among petitioners and Exchange Lemon-it is unnecessary for us to explore the legality of the other theories. As was stated of a general verdict in Maryland v. Baldwin, 112 U.S. 490,493 (1884), "[!]ts generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence, or in the charge of the court, the verdict cannot be upheld . . . ." Suffice it to say that our decision in no way detracts from earlier cases holding agricultural cooperatives liable for conspiracies with outside groups, United States v. Borden Co., 308 U.S. 188 (1939), and for monopolization, Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458 (1960). Reversed and remanded. MR. JusTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. SALEM v. UNITED STATES LINES CO. 31 Opinion of the Court. SALEM v. UNITED STATES LINES CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 283. Argued March 19, 1962.-Decided May 28, 1962. 1. In this suit under the Jones Act based on unseaworthiness and negligence, seeking damages for personal injuries sustained by a seaman who fell as he went to his post in the crow's nest, held: It was error for the Court of Appeals to order a new trial on the ground that a jury could not determine, in the absence of supporting testimony by an expert in naval architecture, a claim that the shipowner had failed to equip the ship with necessary and feasible safety devices to prevent such a mishap. Pp. 31- 37. 2. The evidence in this record provides no support for the trial court's award to the seaman of future maintenance for three years. Pp. 37-38. 293 F. 2d 121, affirmed in part and reversed in part. Robert Klonsky argued the cause for petitioner. With him on the briefs was Philip F. Di Costanzo. Walter X. Connor argued the cause and filed briefs for respondent. MR. JusTICE BRENNAN delivered the opinion of the Court. The first question to be decided in this seaman's personal injury suit for damages on the grounds of unseaworthiness and negligence under the Jones Act 1 is whether the jury should have been allowed to determine, in the absence of supporting testimony by an expert in naval architecture, a claim that the shipowner failed to equip his ship with necessary and feasible safety devices to prevent the mishap which befell the seaman. The trial judge submitted for the jury's determination various bases of respondent's alleged liability, including 1 41 Stat. 1007, 46 U. S. C. § 688. 32 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. the claim resting on the failure to provide certain safety devices. Because the jury returned a general verdict for the seaman, it cannot be said what basis of liability the jury found to exist. The Court of Appeals for the Second Circuit, Judge Smith dissenting, reversed and remanded for a new trial, holding that in the absence of expert evidence, it was error to have allowed the jury to consider the failure to provide safety devices. 293 F. 2d 121, 123-124. Since the question whether supporting expert testimony is needed is important in litigation of this type, we granted certiorari. 368 U. S. 811. We hold that the Court of Appeals erred. Petitioner was a lookout on the S. S. United States. He was injured as he moved from a ladder to a platform leading to his post in the crow's-nest. The crow's-nest was housed in a "bubble" half way up a hollow aluminum radar tower which rose 65 feet from the bridge deck. The ladder extended the full height of the tower along the inside of its after side. At various levels inside the tower were horizontal platforms, at the after ends of which were access openings slightly larger than manholes, through which the ladder passed straight up. The tower was more than six feet from fore to aft at the crow's-nest level, and tapered from four to three feet in width. There was only a narrow ledge around three-quarters of the opening in the platform at that level; the platform proper was toward the bow, and led to the door in the crow's-nest. As a seaman climbed the ladder to the crow's-nest, he faced astern until his feet were approximately level with the platform. To get from the ladder to the platform proper, he had to pivot, putting one foot on the starboard or port ledge, follow it with the other foot, complete his pivot and step forward along the ledge to the platform proper. Although the respondent describes the crow's-nest anq its approach as "purposely constructed SALEM v. UNITED STATES LINES CO. 33 31 Opinion of the Court. so as to provide maximum protection and safety for members of the crew having to use it," there were no devices intended to facilitate safe maneuvering from ladder to platform; for support during this maneuver, the seaman could grasp one of the thin vertical beams located at intervals along the port and starboard sides, or a vertical, bulky rectangular pipe enclosing a radar cable and near the starboard side, or a horizontal stiffener or !edging that ran at shoulder-height around the tower. Respondent argues that the seaman also could simply spread his arms to brace himself against the sides of the tower. On the night of February 15-16, 1958, as the United States went at high speed and rolled in rough seas, the tower was plunged into darkness, just as the petitioner was executing the movement to the crow's-nest platform from the ladder. Illumination within the tower was provided by five electric lights at various levels, but these burned out frequently. Two had been out for a long period and two others had gone out a few hours before the accident, leaving as the only light that which was at the crow's-nest platform. At some point after petitioner had begun the maneuver from ladder to platform, but before he reached a place on the platform proper and away from the access opening, that last light went out. An instant later petitioner fell backwards across the opening and struck his head against the ladder and his lower back against the fore edge of the opening, leaving his body suspended in the opening. He grasped the ladder rungs and called for help from the lookout on duty in the crow's-nest. With the lookout's aid he was able to seat himself on the starboard ledge with his legs hanging down through the opening and his right arm aroued the cable pipe. The lookout returned to the crow's-nest to phone the bridge for help. In his absence the petitioner became dizzy and fell through the opening to a place eight feet below the platform. 34 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. The only issue before us on this phase of the case is whether the trial judge erred in instructing the jury that they might find the respondent liable for unseaworthiness or negligence for having failed to provide "railings or other safety devices" at the crow's-nest platform. The Court of Appeals held that it was error to submit that question to the jury because "There was no expert testimony that proper marine architecture required the additional provision of railings or other safety devices on such a ladder or platform enclosed within a tower leading to a crow's nest. Should the jury, under these conditions, have been permitted to decide whether proper marine architecture required railings or other safety devices? In two recent cases, this court has held that a jury should not be permitted to speculate on such matters in the absence of expert evidence." 2 293 F. 2d, at 123. There was evidence, in the form of testimony and photographs, from which the jury might clearly see the construction at the 2 The majority quoted from Martin v. United Fruit Co., 272 F. 2d 347, as follows: "'Finally, we reject the plaintiff's contention that the trial court committed error in not permitting the jury to determine whether the placement of the hinge at the bottom of the deadlight was an improper method of ship construction so as to make the vessel unseaworthy. Surely this is a technical matter in which an expert knowledge of nautical architecture is required in order to form an intelligent judgment. Since no expert testimony was introduced, it was correct to exclude this matter from the jury's consideration.' " 293 F. 2d, at 123. The majority also quoted from Fatovic v. Nederlandsch- Ameridaansche Stoomvaart, Maatschappij, 275 F. 2d 188, in which the question was whether a stopping arrangement could feasibly be made part of a ten-and-a-half boom to keep it from swinging freely: "'In any event, the question was one of nautical architecture about which jurors lack the knowledge to form an intelligent judgment in the absence of expert testimony. Martin . . . . Since there was no expert testimony on the matter, it should not have been submitted to the jury.'" 293 F. 2d, at 123-124. Whatever may have required that the jury have the aid of expert testimony in those cases, no showing is made of the necessity here. SALEM v. UNITED ST ATES LINES CO. 35 31 Opinion of the Court. crow's-nest level which we have described. If the holding of the Court of Appeals is only that in this case there are peculiar fact circumstances which made it impossible for a jury to decide intelligently, we are not told what those circumstances are, and our examination of the record discloses none.3 If the holding is that claims which might be said to touch upon naval architecture can never succeed ,vithout expert evidence, neither the Court of Appeals nor the respondent refers us to authority or reason for any such broad proposition. This is not one of the rare causes of action in which the law predicates recovery upon expert testimony. See Wigmore, Evidence (3d ed. 1940), §§ 2090, 2090a. Rather, the general rule is as stated by Mr. Justice Van Devanter, when circuit judge, that expert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge "if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation .... " United States Smelting Co. v. Parry, 166 F. 407, 411, 415. :Furthermore, the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous. Spring Co. v. Edgar, 99 U. S. 645, 658. This Court has held, in a factual context similar to this, that there was no error, let alone manifest error, in having a jury decide without the aid of experts. Spokane & Inland Empire R. Co. v. United States, 241 U. S. 344, 3 Compare Texas & Pacific R. Co. v. Watson, 190 U.S. 287, 290, in which there may have been peculiar difficulties impeding installation of any truly effective safety device. 36 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. was an action by the United States to recover penalties for violation of the Safety Appliance Act provision requiring handholds or grab-irons to be placed on the ends of railroad cars used in interstate commerce.' The defendant railroad offered expert testimony to establish that the substitutes provided on its cars would accomplish the statute's purposes. The jury had inspected the cars, and the expert evidence was excluded when the United States objected that this "was a matter of c~mmon knowledge." We held that "the court was clearly right in holding that the question was not one for experts and that the jury after hearing the testimony and inspecting the [cars] were competent to determine the issue .... " 241 U.S., at 351.5 In sum, we agree with Judge Smith in dissent below: "There was before the jury sufficient evidence, both from oral testimony and from photographs, for it to visualize the platform on and from which plaintiff fell and to determine whether some railing or hand hold in addition to the structures present was reasonably necessary for the protection of a seaman passing from the ladder to the platform in the swaying mast. " ... [There is no] blanket proposition that any and all theories of negligence and/ or unseaworthiness which might touch on the broad field of 'naval architecture' may be properly submitted to a jury only if supported by expert testimony. Here the potential danger was fairly obvious and a jury should be perfectly competent to decide whether the handholds furnished were sufficient to discharge the owner's 4 27 Stat. 531, 45 U. S. C. § 4. 5 Although it was later held that the Safety Appliance Act has no room for the doctrine of equivalent, substitute devices, St. Joseph & Grand Island R. Co. v. Moore, 243 U.S. 311, the authority of Spokane on jury competence is unimpaired. 31 SALEM v. UNITED STATES LINES CO. 37 Opinion of the Court. duty to provide his seamen with a safe place to work. Such a determination hardly requires expert knowledge of naval architecture .... " 293 F. 2d, at 126. Indeed, "if there was a reason hidden from the ordinary mind why this condition of things must have existed, those facts called upon the defendant to make that reason known." Missouri, K. & T. R. Co. v. Williams, 103 Tex. 228, 231, 125 S. W. 881, 882; and see Poignant v. United States, 225 F. 2d 595, 602 ( concurring opinion) .6 There is another question to be decided. The petitioner also sought maintenance and cure. The trial judge awarded past maintenance, which the respondent has not disputed, and also future maintenance for three years. The Court of Appeals set aside the award of future maintenance, saying: "There does not appear to be any sufficient basis, by opinion evidence or otherwise, for the finding that three years is the period reasonably to be 6 The value of an expert's testimony to explain what the best safety device might be is clear, but the question here is simply whether some such device should have been provided. Zinnel v. United States Shipping Board Emergency Fleet Corp., 10 F. 2d 47, 48. Nor would expert testimony about customary equippage be essential, Pure Oil Co. v. Snipes, 293 F. 2d 60, 71; nor, even if offered, would it have concluded the questions of unseaworthiness or negligence. Wabash R. Co. v. McDaniels, 107 U. S. 454, 460--461; Grand Trunk R. Co. v. Richardson, 91 U.S. 454, 469-470; The T. J. Hooper, 60 F. 2d 737; Kennair v. M~sissippi Shipping Co., 197 F. 2d 605; June T., Inc., v. King, 290 F. 2d 404. Although the law favors the aid of experts if the problem is not one "upon which the lay or uneducated mind is capable of forming a judgment," Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 472, if the matter is only arguably beyond common experience, expert testimony will be admitted with care. The rule reflects the consideration of avoidance of unnecessarily prolonged trials and attendant expense and confusion. Winans v. New York & Erie R. Co., 21 How. 88, 100--101; and see Thorn v. Worthing Skating Rink Co. (1876), reported in Plimpton v. Spiller, 6 Ch. D. 412, footnote at 415-418 (1877). 38 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 u. s. expected for Salem to reach maximum improvement." 293 F. 2d, at 125. The trial judge made no findings. We have therefore examined the evidence on the question in the light of what was said in Calmar S. S. Corp. v. Taylor, 303 U. S. 525, 531-532: " ... [A]mounts [for future maintenance should be such] as may be needful in the immediate future for the maintenance and cure of a kind and for a period which can be definitely ascertained." We agree that the evidence provides no support under that test for the award of three years' future maintenance. \Ve affirm as respect.s maintenance but otherwise reverse the judgment of the Court of Appeals. Since other grounds of reversal urged by the respondent were not reached by that court, the case is remanded to it for further proceedings in conformity with this opinion. lt is so ordered. MR. JusTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. MR. JusTICE HARLAN, dissenting in part and concurring in part. I do not read the Court of Appeals' opinion either as holding that, because of "peculiar fact circumstances" petitioner's claims respecting the alleged faulty construction of the radar tower required "supporting expert testimony" (ante, pp. 35, 32) (emphasis added), or as establishing a general proposition that such testimony is needed in every instance where a seaman claims to have been injured because of his employer's failure to equip a ship with safety devices. SALEM v. UNITED STATES LINES CO. 39 31 Opinion of HARLAN, J. Taking its opinion in light of the record, I think it apparent that the Court of Appeals held no more than that reversal was required because "there was no evidence of any kind in the record to support the view that railings or other safety devices could feasibly be constructed, or that failure to provide them constituted negligence or made the ship unseaworthy." 293 F. 2d, at 123. (Emphasis added.) To me it seems clear that the court referred to expert testimony simply as an example of the kind of evidence that the petitioner might have offered on this score. Consequently, the District Court's charge that the jury could find the respondent negligent "in failing to provide railings or other safety devices" had injected into the case a theory of liability which had not been presented to the jury by the evidence introduced at the trial. This has uniformly been held to constitute reversible error. E. g., Mandel v. Pennsylvani,a R. Co., 291 F. 2d 433; Smith v. Ellerman Lines, Ltd., 247 F. 2d 761, 766; see Wilmington Star Mining Co. v. Fulton, 205 u. s. 60, 78-79. The trial transcript, insofar as it has been reproduced in the record before this Court, bears out the conclusion of the Court of Appeals that evidence with respect to the alleged failure to maintain appropriate safety devices was entirely lacking. Petitioner's evidence, apart from medical testimony concerning the extent of his injuries, related almost entirely to the alleged slippery condition of the platform leading to the crow's-nest, the inadequate and defective lighting, and the negligence of the. lookout. Petitioner himself did testify that there was no "grip" or "handrails" at the crow's-nest level, and photographs that were introduced into evidence confirmed this undisputed assertion. With nothing more before the jury than this, the trial court's instruction certainly left the jury entirely at large 40 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. to reach an uninformed conclusion as to what would have constituted reasonable conduct on the part of the respondent with respect to the equipping of this part of the ship. No evidence of any kind was introduced to show whether radar towers on vessels of this sort ordinarily were equipped with safety devices or whether seamen assigned thereto had need of such equipment in the ordinary course of their activities. Expert testimony would have served this purpose, as would any other evidence bearing probatively on the reasonableness of respondent's conduct in failing to equip its vessel with these devices. In the absence of any such evidence the Court of Appeals was entirely justified in holding that the District Court's instruction amounted to reversible error. I agree with this Court's holding as to future maintenance. I would affirm. BEARD v. STAHR. Per Curiam. BEARD v. STAHR, SECRETARY OF THE ARMY, ET AL. 41 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. No. 648. Decided May 28, 1962. After administrative proceedings by an Army Board of Inquiry and a Board of Review under 10 U.S. C. (Supp. II) §§ 3792 and 3793 had resulted in a recommendation that the Secretary of the Army remove appellant, a commissioned officer in the Regular Army, from the active list and award him a general discharge, but before the Secretary had taken any action under § 3794, appellant sued in a Federal District Court to enjoin the Secretary from determining whether he should be removed. He claimed that the administrative proceedings were unconstitutional because they deprived him of his office and retirement benefits without due process of law. The District Court sustained the constitutionality of the statute and the administrative proceedings and dismissed the complaint. Held: The judgment is vacated with directions to dismiss the complaint as premature. Application for a stay is denied. Pp. 41-42. Reported below: 200 F. Supp. 766. Frederick Bernays Wiener for appellant. Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr. for appellees. PER CuRIAM. The judgment of the District Court is vacated and the cause is remanded with directions to dismiss the complaint. The action is premature. The appellant will not be removed from the active list of the Regular Army unless the Secretary of the Army exercises the discretionary authority to remove him conferred by 10 U. S. C. § 3794. The Secretary has not stated that he will so exercise his discretion as to remove appellant. If the Secretary does not remove the appellant it will be unnecessary 663026 0-62-7 42 OCTOBER TERM, 1961. DouGLAS, J., dissenting. 370U.S. to pass on the constitutional objections which have been urged. If appellant is removed, the Court is satisfied that adequate procedures for seeking redress will be open to him. Compare Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752, 772-773. Accordingly, the application for a stay is denied. THE CHIEF JUSTICE is of the opinion that further considemtion of the question of jurisdiction should be postponed to the hearing of the case on the merits and would grant the application for a stay. MR. JusTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE DouGLAS, with whom MR. JUSTICE BLACK concurs, dissenting. Appellant is a Major in the Regular Army and has the temporary rank of Lieutenant Colonel. He served in World War II and received the Bronze Star Medal. He at present has had over 19 years of active federal service and will be eligible for retirement in November 1962. But for the present charge against him his military record reflects exemplary conduct and high efficiency ratings. These years of faithful service have now gone largely for naught under a decision of an Army Board of Review recommending that he be given a general discharge. Whatever the merits may be, I believe that the procedure used at his hearing violated our standards of fairness. Under the statute here in question, 10 U. S. C. § 3792 (c), an officer faced with a charge carries the burden of proof that "he should be retained on the active list." The District Court held that there was no constitutional objection to placing this burden of proof on the officer. 200 F. Supp. 766, 775. It reasoned that since BEARD v. STAHR. 43 41 DouGLAS, J., dissenting. the President could dismiss an officer summarily,* Congress could place on the one removed "the onus of convincing his superiors that he should not be eliminated." Ibid. Dismissal is one thing; dismissal with stigma, as here, is quite another. Dismissal with stigma is a severe penalty. In comparable situations, the Government has been required to carry the burden of proof. Kwong Hai Chew v. Rogers, 103 U.S. App. D. C. 228,257 F. 2d 606; Wood v. Hoy, 266 F. 2d 825, 830. Unless this burden is meticulously maintained, discharge for race, for religion, for political opinion, or for beliefs may masquerade under unproved charges. This right, like the right to be heard, is basic to our society. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (concurring opinion); Beilan v. Board of Education, 357 U. S. 399, 421-423 (dissenting opinion); Wieman v. Updegraff, 344 u. s. 183, 191. There is a second reason why we should remand this case for a new hearing. The one witness whose testimony was critical to the case was not called. Confrontation and cross-examination are, as I understand the law, vital when one's employment rights are involved (see Greene v. McElroy, 360 U. S. 474, 496)-the factor that distinguishes Cafeter-ia Workers v. McElroy, 367 U. S. 886, where the only question was access to a military base. Perhaps the missing accuser-whose activities were described in uncomplimentary terms in Rittenour v. District of Columbia, 163 A. 2d 558-would have made such an unbecoming witness that the Board would have dismissed the charges. Faceless informers are of ten effective if they need not take the stand. A fair hearing requires the production of the accuser so that cross-examination can test his character and reliability. That question is very close *Which, of course, is a mistaken premise. See Wiener v. United States, 357 U.S. 349; Blake v. United States, 103 U.S. 227,231. 44 OCTOBER TERM, 1961. DouGLAS, J., dissenting. 370 U.S. to the one involved in No. 1123, Misc., Williams v. Zuckert, in which we granted certiorari only the other day. 369 U. S. 884. This case should be heard with that one. I think the present case is ripe for review. Once the Secretary of the Army approves the decision now challenged, appellant will be severed from military service with less than an honorable discharge. If a wrong was committed, I assume tha.t he could recover a judgment that restores any loss of salary or pension. More than dollars, however, are involved: at stake is a man's professional standing, his character, and his claim to an honorable discharge. Where the Army departs from the statutory standard which prescribes the basis on which discharges will be issued, the federal courts can intervene. See Harmon v. Brucker, 355 U. S. 579. Though the Court's opinion may be read as indicating that a collateral proceeding to set aside one discharge and to direct that an honorable one be granted may lie, we should nonetheless halt this irregular procedure in limine. For we are dealing here with the charge of "conduct unbecoming an officer," a charge that carries a heavy stigma. As Winthrop said: "Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents." Military Law and Precedents (2d ed. 1896) 1104. If declaratory relief will be accorded, as it certainly could be (Bland v. Connally, 110 U.S. App. D. C. 375, 293 F. 2d 852), this action for an injunction is timely to prevent an injustice. As recently stated: "We think it must be conceded that any discharge characterized as less than honorable will result in serious injury. It not only means BEARD v. STAHR. 45 41 DouGLAS, J., dissenting. the loss of numerous benefits in both the federal and state systems, but it also results in an unmistakable social stigma which greatly limits the opportunities for both public and private civilian employment." 110 U.S. App. D. C. 375, 381, 293 F. 2d 852, 858. I would reverse the judgment below and direct that appellant be accorded a hearing that comports with the requirements of due process. 46 OCTOBER TERM, 1961. Per Curiam. 370U.S. WATKINS v. CITY OF WILSON ET AL. APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. No. 789. Decided May 28, 1962. Appeal dismissed and certiorari denied. Reported below: 255 N. C. 510, 121 S. E. 2d 861. Romallus 0. Murphy and Samuel S. Mitchell for appellant. John F. Doyle for appellees. PER CuRIAM. 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. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. FASS v. NEW JERSEY. 370U.S. Per Curiam. FASS v. NEW JERSEY. APPEAL FROM THE SUPREME COURT OF NEW JERSEY. No. 824. Decided May 28, 1962. Appeal dismissed and certiorari denied. Reported below: 36 N. J. 102, 175 A. 2d 193. Joseph L. Freiman for appellant. 47 Arthur J. Sills, Attorney General of Xew Jersey, Theodore I. Botter, Assistant Attorney General, and Herman D. Ringle for appellee. PER CuRIAM. 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. MR. JUSTICE DouGLAS dissents. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. 48 OCTOBER TERM, 1961. Per Curiam. 370 U.S. BUSBY ET AL. v. HARRIS, JUDGE, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 728, Misc. Decided May 28, 1962. Certiorari granted; judgment of Court of Appeals vacated and case remanded to that court with directions to dismiss the proceedings as moot. Petitioners pro se. Solicitor General Cox, Assistant Attorney Gener.al Marshall, Harold H. Greene and Howard A. Glickstein for respondents. PER CURIAM. Upon the Solicitor General's suggestion of mootness and upon an examination of the entire record, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court with directions to dismiss the proceedings upon the ground that the case is moot. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. GALLEGOS v. COLORADO. Opinion of the Court. GALLEGOS v. COLORADO. CERTIORARI TO THE SUPREME COURT OF COLORADO. No. 475. Argued April 9, 1962.-Decided June 4, 1962. 49 Petitioner, a 14-year-old boy, and another juvenile followed an elderly man to a hotel, got into his room on a ruse, assaulted and overpowered him, stole $13 from his pockets and fled. Picked up 12 days later by police, petitioner immediately admitted the assault and robbery. Over two weeks later, he was convicted in a juveniir court of "assault to injure" and was committed· to the State Industrial School for an indeterminate period. Subsequently the victim died, and petitioner was charged with first degree murder. At his trial in a state court, a jury found him guilty. The crucial evidence introduced at the trial was a formal confession which petitioner had signed before his victim died, before petitioner had bern brought before a judge, and after he had been held for five days without seeing a lawyer, parent, or other friendly adult, although his mother had attempted to see him. Held: On the totality of the circumstances in this case, the formal confession on which pt>titioner's conviction may have rested was obtained in violation of due process, and the judgment sustaining his conviction is reversed. Pp. 49-55. 145 Colo. 53, 358 P. 2d 1028, reversed. Charles S. Vigil argued the cause and filed briefs for petitioner. J. F. Brauer, Jr., Assistant Attorney General of Colorado, argued the cause for respondent. With him on the brief were Duke W. Dunbar, Attorney General, and Frank E. Hickey, Deputy Attorney General. MR. JusTICE DouGLAS delivered the opm10n of the Court. Petitioner, a child of 14, and another juvenile followed an elderly man to a hotel, got into his room on a ruse, assaulted him, overpowered him, stole $13 from his pockets, and fled. All this happened on December 20, 50 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. 1958. Petitioner was picked up by the police on January 1, 1959, and immediately admitted the assault and robbery. At that time, however, the victim of the robbery was still alive, though hospitalized. He died on Januuary 26, 1959, and forthwith an information charging first degree murder was returned against petitioner. A jury found him guilty, the crucial evidence introduced at the trial being a formal confession which he signed on January 7, 1959, after he had been held for five days during which time he saw no lawyer, parent, or other friendly adult. The Supreme Cou.rt of Colorado affirmed the judgment of conviction. 145 Colo. 53, 358 P. 2d 1028. We granted the petition for certiorari, 368 U.S. 815. After petitioner's arrest on January 1, the following events took place. His mother tried to see him on Friday, January 2, but permission was denied, the reason given being that visiting hours were from 7 p. m. to 8 p. m. on Monday and Thursday. From January 1 through January 7, petitioner was in Juvenile Hall, where he was kept in security, though he was allowed to eat with the other inmates. He was examined by the police in Juvenile Hall January 2, and made a confession which an officer recorded in longhand. On January 3, 1959, a complaint was filed against him in the Juvenile Court by the investigating detectives. The State in its brief calls this preliminary procedure in Juvenile Hall being "booked in." As noted, petitioner signed a full and formal confession on January 7. The trial in the Juvenile Court took place January 16 on a petition dated January 13 containing a charge of "assault to injure." He was committed to the State Industrial School for an indeterminate period. Thereafter, as noted above, the victim of the robbery died and the murder trial was held. Confessions obtained by "secret inquisitorial processes" (Chambers v. Florida, 309 U. S. 227, 237) are suspect, GALLEGOS v. COLORADO. 51 49 Opinion of the Court. since such procedures are conducive to the use of physical and psychological pressures. Chambers v. Florida, supra; Leyra v. Denno, 347 U. S. 556. The reason that due process, as used in the Fourteenth Amendment, condemns the obtaining of confessions in that manner is a compound of two influences. First is the procedural requirement stated in Chambers v. Florida, supra, 236-237: "From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve 'the blessings of liberty,' wrote into its basic law the ·requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed." We emphasized this point in Ashcraft v. Tennessee, 322 U. S. 143, 152, where we said that "always evidence concerning the inner details of secret inquisitions is weighted against an accused . . . ." Second is the element of compulsion which is condemned by the Fifth Amendment. Chief Justice Hughes in Brown v. Mississippi, 297 U. S. 278, 285, emphasized that ingredient of due process. After noting that the Court had held that the exemption from compulsory selfincrimination in the courts of the States is not guaranteed by the Due Process Clause of the Fourteenth Amendment, he went on to say: "But the question of the right of the State to withdraw the privilege against self-incrimination is not 52 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter." And see Brennan, The Bill of Rights and the States, 36 N. Y. U. L. Rev. 761. We reiterated that view in Ashcraft v. Tennessee, supra, where we held that the principle of Bram v. United States, 168 U. S. 532, 562-563, was applicable to state proceedmgs. 322 U. S., at 154, n. 9. We said: "We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross-examination for thirty-six hours without rest or sleep in an effort to extract a 'voluntary' confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room." 322 U. S., at 154. (Italics added.) The application of these principles involves close scrutiny of the facts of individual cases. The length of the questioning (Spano v. New York, 360 U.S. 315), the use of fear to break a suspect (Malinski v. New York, 324 U.S. 401), the youth of the accused (Haley v. Ohio, 332 U. S. 596) are illustrative of the circumstances on which GALLEGOS v. COLORADO. 53 49 Opinion of the Court. cases of this kind turn. The youth of the suspect was the crucial factor in Haley v. Ohio, supra, at 599-600: "What transpired would make us pause for careful inquiry if a mature man were involved. And when. as here, a mere child-an easy victim of the law-is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a. m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning. A photographer was admitted once this lad broke and confessed. But not even a gesture towards getting a lawyer for him was ever made." The fact that petitioner was only 14 years old puts this case on the same footing as Haley v. Ohio, supra. There 54 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. was here no evidence of prolonged questioning. But the five-day detention-during which time the boy's mother unsuccessfully tried to see him and he was cut off from contact with any lawyer or adult advisor-gives the case an ominous cast. The prosecution says that the boy was advised of his right to counsel, but that he did not ask either for a lawyer or for his parents. But a 14-yearold boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights. The prosecution says that the youth and immaturity of the petitioner and the five-day detention are irrelevant, because the basic ingredients of the confession came tumbling out as soon as he was arrested. But if we took that position, it would, with all deference, be in callous disregard of this boy's constitutional rights. He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights--from someone concerned with securing him those rights--and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To GALLEGOS v. COLORADO. 55 49 CLARK, J., dissenting. allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights. There is no guide to the decision of cases such as this, except the totality of circumstances that bear on the two factors we have mentioned. The youth of the petitioner, the long detention, the failure to send for his parents, the failure immediately to bring him before the judge of the Juvenile Court, the failure to see to it that he had the advice of a lawyer or a friend-all these combine to make us conclude that the formal confession on which this conviction may have rested (see Payne v. Arkansas, 356 U. S. 560, 568) was obtained in violation of due process. Reversed. MR. JusTICE FRANKFURTER and MR. JusTICE WHITE took no part in the consideration or decision of this case. MR. JusTICE CLARK, with whom MR. JusTICE HARLAN and MR. JusTICE STEWART join, dissenting. As Chief Justice John Marshall said a century and a quarter ago, "[i]f courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined." Cherokee Nation v. Georgia, 5 Pet. 1, 15 (1831). A 14-year-old boy stands convicted of murder and has been sentenced to imprisonment for life. But, as Mr. Justice Paterson said in Penhallow v. Doane's Admr., 3 Dall. 54, 88-89 (1795), "motives of commiseration, from whatever source they flow, must not mingle in the administration of justice." The Court sets aside the conviction here on due process grounds, finding that the formal confession made by petitioner on January 7 was obtained by "secret inquisitorial processes" and other forms of compulsion. In so doing it turns its back on the spontaneous oral admissions made 56 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 U.S. by petitioner at the time of arrest on January 1, as well as a detailed confession made the next day, all long before the formal confession was given five days later. Moreover, I find nothing in the record that suggests any "secret inquisitorial processes" were used or any compulsion was exerted upon petitioner even during that longer period. With due deference I cannot see how the Court concludes from the record that petitioner was "cut off from contact with any lawyer or adult advisor" and "made accessible only to the police," that there was a failure to bring him before the juvenile judge in the manner required in juvenile delinquency cases, or that Gallegos' case is in anywise on the same footing with Haley v. Ohio, 332 U.S. 596 (1948), or the other cases cited by the majority. As the Court says, "the totality of circumstances" is the only guide we have in confession cases. However, in view of the hop, skip, and jump fashion in which the Court deals with them here, I believe it is first necessary to detail the facts. The record through the testimony of Officer Chism, a special juvenile officer, shows that on Thursday evening, January 1, he was investigating the assault on Mr. Smith,' an 80-year-old man, when he noticed three boys who appeared to fit the description furnished him of the ones involved. The three, who were sitting on the curb outside of Dutchman's Inn, were the Gallegos brothers: petitioner Robert (14), Charles (12), and Richard (8). The officer, who was alone and in street clothes, stopped his car across the street from the inn. He approached the boys, told them he was a police officer, and asked them to come over and sit in his car. They did so and the officer asked them about the Smith assault. Richard orally confessed, and the petitioner "admitted he had a 'At this time Smith was still alive. He died on January 26, and the murder prosecution here at issue followed. GALLEGOS v. COLORADO. 57 49 CLARK, J., dissenting. part in it." Officer Chism then took the boys to Juvenile Hall where the petitioner again admitted his participation, as did his youngest brother, Richard. Both stated that the third brother, Charles, had nothing to do with the matter, but that their cousin, Eddie Martinez, had accompanied them. Charles, having been cleared of any involvement in the assault, was taken home that very evening by Officer Chism, who told Mrs. Gallegos that the petitioner and Richard were being held at Juvenile Hall and that visiting hours were on Monday and Thursday evenings. He also informed her of her sons' right to counsel. The next evening, January 2, Officer Chism talked to the petitioner, Richard, and Martinez, who by this time was also at Juvenile Hall. As the officer took notes,2 petitioner again described his participation in the assault on Mr. Smith in the following manner as narrated by Officer Chism at the trial: "[After his participation in an assault on a Mr. Kruhd,] he proceeded down to 18th and Curtis Street where he was shining shoes . . . . [U] pon seeing an old man, who was later identified as Robert F. Smith, he followed him to a hotel on 18th street .... [H]e ... was with his younger brother, Richard, and one Eddie Martinez .... They followed the old man to the hotel and Richard stayed downstairs and watched out for cops. He and Eddie went upstairs and they lost track of the old man; they asked several if they had seen his grandfather come in, that he had just come in and was drunk ... [and] a man told ... [them] he just went down the hallway, and upon knocking on the door a man opened the door and he told him he was looking for his grandfather, that he was drunk, and the man told 2 These notes were signed by petitioner. 663026 0-62-8 58 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 u. s. him the old man next door had just come in. He said upon knocking on the other door someone told him to come in, that he opened the door and he seen it was the man he was looking for. . . . [A] t that time Eddie Martinez asked the old man for a drink of water and when the old man brought the water Eddie grabbed him and he, Robert, hit the old man about the head and face with a shoe brush; that when the old man fell to the floor he took a knife and held it to the old man's throat and took his billfold out [ of] his back pocket. . . . [T]hey all left then and went to the Twenty-third Street Viaduct where he gave Eddie $3.00 and he kept $10.00 to split between him and Richard and they then went home . . . ." That same evening, January 2, at 11: 30 p. m., Mrs. Gallegos attempted to visit her two sons at Juvenile Hall but was again informed that visiting hours were 7 p. m. to 8 p. m. on Mondays and Thursdays. At the trial she testified that she made no effort to see her sons on the next visiting day, which was Monday, but waited until Thursday, January 8. The record shows that on January 3 the officer filed in the juvenile court a detailed report of the arrest and petitioner's confessions together with a petition charging petitioner with juvenile delinquency. This was supplemented on the 5th by the report of the Kruhd assault and Kruhd's identification of petitioner and the other boys. The officer followed, as he was obliged to do, the juvenile court law of Colorado which provides for commitment in Juvenile Hall, report to the juvenile judge who supervises the Hall and its inmates, and the filing of a delinquency petition. For the first few days at Juvenile Hall petitioner was placed in "security," which meant that he did not participate in the school program. The uncontradicted testiGALLEGOS v. COLORADO. 59 49 CLARK, J., dissenting. mony of the Hall Superintendent was that the decision to keep the petitioner out of the program was made by his unit supervisor in order to size up the boy, who had been charged with a serious crime, before placing him in the regular activities with the others. During this time he had all his meals with the other boy!> and conversed with his younger brother who was held in another ward. Although the petitioner did not testify at the trial in the presence of the jury, he admitted at a hearing held to determine the admissibility of the formal confession that he was only questioned three times between January 1 and January 7 and that no threats or physical coercion was used at any time. On January 7 the police department sent a man over to formalize the earlier confessions. Officer Miller, who took the confession, testified that he told petitioner of the possibility of a murder charge, warned him that he did not have to make a statement, and told him that he could have his parents and an attorney present if he desired. Petitioner indicated that he did not so desire, and a formal confession was taken which was substantially identical to the statement given on January 2, as related by Officer Chism in his testimony. The confession was typed, and Officer Chism took it over to Juvenile Hall for petitioner to sign. He testified that petitioner read it aloud before signing it. Above his signature was the admission that the confession was made voluntarily and upon warning that it could be used against him. On January 16 the three assailants were committed to the Industrial School by the juvenile court. Upon the death of Mr. Smith, petitioner on information was tried for murder. As noted above, the evidence included testimony of his admissions upon arrest and his confession on January 2, as well as the formal confession of January 7. These were admitted after independent findings of 60 OCTOBER TERM, 1961. CLARK, J., dissenting. 370U.S. voluntariness by the trial judge and jury. The latter was instructed that in determining whether petitioner freely and voluntarily made the confessions it was to take into account "the age, maturity, physical and mental condition of the defendant, the length of his confinement, his opportunity or lack of opportunity to seek friendly or professional aid, the advice or lack of advice given him as to his constitutional rights, and all other facts and circumstances surrounding such confession." Before discussing the admissibility of the formal confession of January 7, I must first comment on the Court's treatment of the earlier confessions, viz., those of January 1 and 2. Although the Court carefully refrains from holding these confessions inadmissible under due process standards, its innuendo that they were acquired "in callous disregard of this boy's constitutional rights" cannot pass unexposed. In regard to these confessions, the test of voluntariness as evidenced by the "totality of circumstances" leads the Court not to question them. Here there were no "secret inquisitorial processes" or compulsion of any kind as the Court envisions in relation to the confession of January 7. The Court's only criticism is that petitioner "would have no way of knowing what the consequences of his confession were without advice as to his rights .... " 3 The truth of the matter is that the singular circumstance pointed out by the Court has never been thought to render a confession inadmissible. See Cuiombe v. Connecticut, 367 U. S. 568, 577-602 (1961) (opinion of MR. JUSTICE FRANKFURTER). 3 There is no basis for the Court's suggestion that the officers improperly failed to bring petitioner before the juvenile judge when they first arrested him. The procedure used in Denver of filing a report with the juvenile judge and temporarily placing the offender in Juvenile HaJI pending a hearing is in keeping with advanced procedures being followed with reference to juvenile offenders throughout the United States. GALLEGOS v. COLORADO. 61 49 CLARK, J., dissenting. The Court is overturning petitioner's conviction because it flows in part from the formal confession of January 7. I cannot draw from this record a conclusion that this confession was involuntary. Petitioner freely admitted in testimony before the trial judge that he was not threatened or physically coerced in any way and that he was not intensively questioned. Moreover, prior to the formal confession he was told that he did not have to make a statement and warned of the possibility of a murder charge, as well as informed that he could have an attorney and his parents present. Officer Chism's testimony as to this matter was documented by the confession itself which recites that it was voluntary and given after notice that it could be used against him. Petitioner was never placed in solitary confinement, as might be implied from the Court's opinion, hut was merely kept out of the organized activities until the unit supervisor could determine whether his full-time participation would have an adverse effect on others. And even under this schedule he had all his meals with the other boys and conversed freely with them. Nor was petitioner "cut off" from contact with lawyers or adults and "made accessible only to the police." His mother made no effort to obtain an attorney although informed of the right to do so.4 And she was not prevented from seeing him but was merely asked to comply with reasonable visiting regulations. She was informed on t\\'O occasions that she could see him Monday, January 5, two days before the formal confession which the Court finds invalid, but she did not attempt to do so. And petitioner himself passed up the offer to confer with his parents and an attorney before making this confession. In support of the above factors indicating that the confession of January 7 was voluntary is the undeniable fact 4 Indeed, no attorney was obtained for petitioner's trial in the juvenile court. 62 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 U.S. that petitioner admitted on January 1 his participation in the assault and confessed in detail thereto on January 2. Both of these statements occurred prior to the events which the Court finds to have coerced the confession of January 7. I am hard pressed to understand how one could conclude that the police found it expedient to coerce the January 7 confession or that the events discussed by the Court rendered it involuntary when five days earlier a substantially identical confession was made in the absence of the "coercive" events. As I have noted, in light of these facts I cannot conclude that this confession was involuntary. A fortiori, I could not determine, as the Court must, that so clear a case of coercion was made out that three prior findings that the confession was voluntary-including one by the jury which was specifically instructed to consider each of the factors relied on by the majority-can be reversed. I have carefully examined the cases upon which the Court relies and can find not one among them which in the least is apposite. There were no "secret inquisitorial processes" as in Chambers v. Florida, 309 U.S. 227 (1940). There Chambers, a Negro, for a week after arrest was kept incommunicado, moved from one jail to another, constantly questioned, and was finally subjected to around-the-clock interrogation by a relay of from 4 to 10 persons. Nor does Leyra v. Denno, 347 U. S. 556 (1954), in any way resemble this case. There the accused had requested a doctor in order to get relief from a painful sinus attack. The police brought in a psychiatrist who by subtle means induced him to confess after an hour or two of questioning. The state court found this confession invalid because of mental coercion. However, at the second trial subsequent confessions were admitted in evidence. This Court held that the psychiatric inducement used to extract the first confession poisoned and invalidated the subsequent ones. Likewise, the reference of the Court to Chief J usGALLEGOS v. COLORADO. 63 49 CLARK, J., dissenting. tice Hughes' statement in Brown v. Mississippi, 297 U.S. 278, 285 ( 1936), concerning the "element of compulsion which is condemned by the Fifth Amendment," is misleading and inapposite. "The question in this case," he said in Brown with his usual conciseness, "is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States." Id., at 279. Brown and the other suspects, the Chief Justice pointed out, had been stripped, laid over chairs and beaten with a leather strap with buckles until their backs were cut to pieces and they confessed. Nor does the holding in Ashcraft v. Tennessee, 322 U. S. 143 (1944), have any bearing on this case. It also involved "prosecutors serving in relays" keeping a person under continuous cross-examination for 36 hours without rest or sleep. Nor can it, in my view, be said that Spano v. New York, 360 U. S. 315 (1959), has any weight under the facts here. In that case continuous, all-night cross-examination by four officers, the refusal of repeated requests to consult his counsel, together with the use of an old friend who was a fledgling police officer as bait to break down the accused, led us to invalidate the confession. And in Malinski v. New York, 324 U.S. 401 (1945), the accused was stripped of his clothing and his request for counsel ignored while he remained in solitary confinement and without food until, led to believe that he was going to get a "shellacking," he confessed from apparent fear of his jailors. Finally, I see no similarity in Haley v. Ohio, 332 U.S. 596 (1948), the last case cited by the Court. There a 15-year-old boy never before in trouble was questioned "through the dead of night" by five to six policemen in relays of one or two each and then only was led to confess by being shown alleged statements of two confederates incriminating him. 64 OCTOBER TERM, 1961. CLARK, J., dissenting. 370U.S. Haley does not indicate that youth alone is sufficient to render a juvenile's confession inadmissible. Here we do not have any of the factors which led to the comment: "What transpired would make us pause for careful inquiry if a mature man were involved." Id., at 599. I regret that without support from prior cases and on the basis of inference and conjecture not supported in the record the Court upsets this conviction. UNITED STATES v. DAVIS. 65 Syllabus. UNITED STATES v. PAVIS ET AL. CERTIORARI TO THE COURT OF CLAIMS. No. 190. Argued March 28, 1962.-Decided .June 4, 1962.* Pursuant to a property settlement agreement later incorporated in a divorce decree, a taxpayer in Delaware transferred to his former wife, in return for the release of her marital claims, certain shares of stock which had appreciated in market value and which werP solely his property subject to certain inchoate marital rights of the wife, including a right of intestate succession and a right upon divorce to a "reasonable" share of the husband's property. He also paid the fees of her attorney for advice given to her about the tax consequences of the property settlement. Held: 1. In these circumstances and in view of pertinent provisions of Delaware law, this transfer of stock is to be considered under the Internal Revenue Code of 1954 not a nontaxable division of property between co-owners but a taxable transfer of property in satisfaction of a legal obligation. Pp. 68-71. 2. On the record in this case, the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown to be erroneous. Pp. 71-74. 3. The amount paid by the husband to his former wife's attorney as a fee for advice given to her about the tax consequences of the property settlement was not deductible by the husband under § 212 (3) of the Internal Revenue Code of 1954. Pp. 74--75. 152 Ct. Cl. 805, 287 F. 2d 168, affirmed in part and reversed in part. I. Henry Kutz and Harold C. Wilkenfeld argued the cause for the United States in both cases. With them on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, Wayne G. Barnett, Meyer Rothwacks and Arthur I. Gould. Converse Murdoch argued the cause and filed briefs for the respondents in No. 190 and petitioners in No. 268. *Together with No. 268, Davis et al. v. United States, also on certiorari to the same Court. 66 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. MR. JUSTICE CLARK delivered the opinion of the Court. These cases involve the tax consequences of a transfer of appreciated property by Thomas Crawley Davis 1 to his former wife pursuant to a property settlement agreement executed prior to divorce, as well as the deductibility of his payment of her legal expenses in connection therewith. The Court of Claims upset the Commissioner's determination that there was taxable gain on the transfer but upheld his ruling that the fees paid the wife's attorney were not deductible. 152 Ct. CL 805, 287 F. 2d 168. We granted certiorari on a conflict in the Court of Appeals and the Court of Claims on the taxability of such transfers.2 368 U. S. 813. We have decided that the taxpayer did have a taxable gain on the transfer and that the wife's attorney's fees were not deductible. In 1954 the taxpayer and his then wife made a voluntary property settlement and separation agreement calling for support payments to the wife and minor child in addition to the transfer of certain personal property to the wife. Under Delaware law all the property transferred was that of the taxpayer, subject to certain statutory marital rights of the wife including a right of intestate succession and a right upon divorce to a share of the husband's property.3 Specifically as a "division in settlement of their property" the taxpayer agreed to transfer to his wife, inter alia, 1,000 shares of stock in the E. I. du Pont de Nemours & Co. The then Mrs. Davis agreed to 1 Davis' present wife, Grace Ethel Davis, is also a party to these proceedings because a joint return was filed in the tax year in question. 2 The holding in the instant case is in accord with Commissioner v. Marshman, 279 F. 2d 27 (C. A. 6th Cir. 1960), but is contra to the holdings in Commissioner v. Halliwell, 131 F. 2d 642 (C. A. 2d Cir. 1942), and Commissioner v. Mesta, 123 F. 2d 986 (C. A. 3d Cir. 1941). 3 12 Del. Code Ann. (Supp. 1960) § 512; 13 Del. Code Ann. § 1531. In the case of realty, the wife in addition to the above has rights of dower. 12 Del. Code Ann. §§ 502, 901, 904, 905. UNITED STATES v. DAVIS. 67 65 Opinion of the Court. accept this division "in full settlement and satisfaction of any and all claims and rights against the husband whatsoever (including but not by way of limitation, dower and all rights under the laws of testacy and intestacy) .... " Pursuant to the above agreement which had been incorporated into the divorce decree, one-half of this stock was delivered in the tax year involved, 1955, and the balance thereafter. Davis' cost basis for the 1955 transfer was $74,775.37, and the fair market value of the 500 shares there transferred was $82,250.- The taxpayer also agreed orally to pay the wife's legal expenses, and in 1955 he made payments to the wife's attorney, including $2,500 for services concerning tax matters relative to the property settlement. I. The determination of the income tax consequences of the stock transfer described above is basically a two-step analysis: ( 1) Was the transaction a taxable event? (2) If so, how much taxable gain resulted therefrom? Originally the Tax Court (at that time the Board of Tax Appeals) held that the accretion to property transferred pursuant to a divorce settlement could not be taxed as capital gain to the transferor because the amount realized by the satisfaction of the husband's marital obligations was indeterminable and because, even if such benefit were ascertainable, the transaction was a nontaxable division of property. Mesta v. Commissioner, 42 B. T. A. 933 (1940); Halliwell v. Commissioner, 44 B. T. A. 740 (1941). However, upon being reversed in quick succession by the Courts of Appeals of the Third and Second Circuits, Commissioner v. Mesta, 123 F. 2d 986 (C. A. 3d Cir. 1941); Commissioner v. Halliwell, 131 F. 2d 642 (C. A. 2d Cir. 1942), the Tax Court accepted the position of these courts and has continued to apply these views in appropriate cases since that time, Hall v. Commisswner, 68 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. 9 T. C. 53 (1947); Patino v. Commi,ssioner, 13 T. C. 816 (1949); Estate of Stouffer v. Commissioner, 30 T. C. 1244 (1958); King v. Commissioner, 31 T. C. 108 (1958); Marshman v. Commissioner, 31 T. C. 269 (1958). In Mesta and Halliwell the Courts of Appeals reasoned that the accretion to the property was "realized" by the transfer and that this gain could be measured on the assumption that the relinquished marital rights were equal in value to the property transferred. The matter was considered settled until the Court of Appeals for the Sixth Circuit, in reversing the Tax Court, ruled that, although such a transfer might be a taxable event, the gain realized thereby could not be determined because of the impossibility of evaluating the fair market value of the wife's marital rights. Commi,ssioner v. Marshman, 279 F. 2d 27 ( 1960). In so holding that court specifically rejected the argument that these rights could be presumed to be equal in value to the property transferred for their release. This is essentia11y the position taken by the Court of Claims in the instant case. II. We now turn to the threshold question of whether the transfer in issue was an appropriate occasion for taxing the accretion to the stock. There can be no doubt that Congress, as evidenced by its inclusive definition of income subject to taxation, i. e., "all income from whatever source derived, including ... [g] ains derived from dealings in property,"• intended that the economic growth of this stock be taxed. The problem confronting us is simply when is such accretion to be taxed. Should the economic gain be presently assessed against taxpayer, or should this assessment await a subsequent transfer of the property by the wife? The controlling 4 Internal Revenue Code of 1954 § 61 (a). UNITED STATES v. DAVIS. 69 65 Opinion of the Court. statutory language, which provides that gains from dealings in property are to be taxed upon "~ale or other disposition," 5 is too general to include or exclude conclusively the transaction presently in issue. Recognizing this, the Government and the taxpayer argue by analogy with transactions more easily classified as within or without the ambient of taxable events. The taxpayer asserts that the present disposition is comparable to a nontaxable division of property between two co-owners,6 while the Government contends it more resembles a taxable transfer of property in exchange for the release of an independent legal obligation. Neither disputes the validity of the other's starting point. In support of his analogy the taxpayer argues that to draw a distinction between a wife's interest in the property of her husband in a common-law jurisdiction such as Delaware and the property interest of a wife in a typical community property jurisdiction would commit a double sin; for such differentiation would depend upon "elusive 5 Internal Revenue Code of 1954 §§ 1001, 1002. 6 Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released. not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem discussed in Part III, infra, p. 71. Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on thr premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. .Merrill v. Fahs, 324 U. S. 308 (1945); Commissioner v. Wemyss, 324 U.S. 303 (1945); see Harris v. Commissioner, 340 U.S. 106 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid- Es-Sultaneh v. Commissioner, 160 F. 2d 812 (C. A. 2d Cir. 1947). 70 OCTOBER TERM, 1961. Opinion of the Court. 370U. S. and subtle casuistries which ... possess no relevance for tax purposes," Helvering v. Hallock, 309 U. S. 106, 118 (1940), and would create disparities between common- law and community property jurisdictions in contradiction to Congress' general policy of equality between the two. The taxpayer's analogy, however, stumbles on its own premise, for the inchoate rights granted a wife in her husband's property by the Delaware law do not even remotely reach the dignity of co-ownership. The wife has no interest-passive or active-over the management or disposition of her husband's personal property. Her rights are not descendable, and she must survive him to share in his intestate estate. Upon dissolution of the marriage she shares in the property only to such extent as the court deems "reasonable." 13 Del. Code Ann. § 1531 (a). What is "reasonable" might be ascertained independently of the extent of the husband's property by such criteria as the wife's financial condition, her needs in relation to her accustomed station in life, her age and health, the number of children and their ages, and the earning capacity of tb.e husband. See, e.g., Beres v. Beres, 52 Del. 133, 154 A. 2d 384 (1959). This is not to say it would be completely illogical to consider the shearing off of the wife's rights in her husband's property as a division of that property, but we believe the contrary to be the more reasonable construction. Regardless of the tags, Delaware seems only to place a burden on the husband's property rather than to make the wife a part owner thereof. In the present context the rights of succession and reasonable share do not differ significantly from the husband's obligations of support and alimony. They all partake more of a personal liability of the husband than a property interest of the wife. The effectuation of these marital rights may ultimately result in the ownership of some of the husband's UNITED STATES v. DAVIS. 71 65 Opinion of the Court. property as it did here, but certainly this happenstance does not equate the transaction with a division of property by co-owners. Although admittedly such a view may permit different tax treatment among the several States, this Court in the past has not ignored the differing effects on the federal taxing scheme of substantive differences between community property and common-law systems. E. g., Poe v. Seaborn, 282 U.S. 101 (1930). To be sure Congress has seen fit to alleviate this disparity in many areas, e. g., Revenue Act of 1948, 62 Stat. 110, but in other areas the facts of life are still with us. Our interpretation of the general statutory language is fortified by the long-standing administrative practice as sounded and formalized by the settled state of law in the lower courts. The Commissioner's position was adopted in the early 40's by the Second and Third Circuits and by 1947 the Tax Court had acquiesced in this view. This settled rule was not disturbed by the Court of Appeals for the Sixth Circuit in 1960 or the Court of Claims in the instant case, for these latter courts in holding the gain indeterminable assumed that the transaction was otherwise a taxable event. Such unanimity of views in support of a position representing a reasonable construction of an ambiguous statute will not lightly be put aside. It is quite possible that this notorious construction was relied upon by numerous taxpayers as well as the Congress itself, which not only refrained from making any changes in the statutory language during more than a score of years but re-enacted this same language in 1954. III. Having determined that the transaction was a taxable event, we now turn to the point on which the Court of Claims balked, viz., the measurement of the taxable gain realized by the taxpayer. The Code defines the taxable 72 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. gain from the sale or disposition of property as being the "excess of the amount realized therefrom over the adjusted basis .... " I. R. C. (1954) § 1001 (a). The "amount realized" is further defined as "the sum of any money received plus the fair market value of the property ( other than money) received." I. R. C. (1954) § 1001 (b). In the instant case the "property received" was the release of the wife's inchoate marital rights. The Court of Claims, following the Court of Appeals for the Sixth Circuit, found that there was no way to compute the fair market value of these marital rights and that it was thus impossible to determine the taxable gain realized by the taxpayer. We believe this conclusion was erroneous. It must be assumed, we think, that the parties acted at arm's length and that they judged the marital rights to be equal in value to the property for which they were exchanged. There was no evidence to the contrary here. Absent a readily ascertainable value it is accepted practice where property is exchanged to hold, as did the Court of Claims in Philadelphia Park Amusement Co. v. United States, 130 Ct. Cl. 166, 172, 126 F. Supp. 184, 189 (1954), that the values "of the two properties exchanged in an arms-length transaction are either equal in fact, or arc presumed to be equal." Accord, United States v. General Shoe Corp., 282 F. 2d 9 (C. A. 6th Cir. 1960); International Freighting Corp. v. Commi,ssioner, 135 F. 2d 310 (C. A. 2d Cir. 1943). To be sure there is much to be said of the argument that such an assumption is weakened by the emotion, tension and practical necessities involved in divorce negotiations and the property settlements arising therefrom. However, once it is recognized that the transfer was a taxable event, it is more consistent with the general purpose and scheme of the taxing statutes to make a rough approximation of the gain realized thereby than to ignore altogether its tax UNITED STATES v. DAVIS. 73 65 Opinion of the Court. consequences. Cf. Helvering v. Safe Deposit & Trust Co., 316 U. S. 56, 67 (1942). Moreover, if the transaction is to be considered a taxable event as to the husband, the Court of Claims' position leaves up in the air the wife's basis for the property received. In the context of a taxable transfer by the husband, 7 all indicia point to a "cost" basis for this property in the hands of the wife. 8 Yet under the Court of Claims' position her cost for this property, i. e., the value of the marital rights relinquished therefor, would be indeterminable, and on subsequent disposition of the property she might suffer inordinately over the Commissioner's assessment which she would have the burden of proving erroneous, Commi.ssioner v. Hansen, 360 U. S. 446, 468 (1959). Our present holding that the value of these rights is ascertainable eliminates this problem; for the same calculation that determines the amount received by the husband fixes the amount given up by the wife, and this figure, i. e., the market value of the property transferred by the husband, will be taken by her as her tax basis for the property received. Finally, it must be noted that here, as well as in relation to the question of whether the event is taxable, we 7 Under the present administrative practice, the release of marital rights in exchange for property or other consideration is not considered a taxable event as to the wife. For a discussion of the difficulties confronting a wife under a contrary approach, see Taylor and Schwartz, Tax Aspects of Marital Property Agreements, 7 Tax L. Rev. 19, 30 (1951); Comment, The Lump Sum Divorce Settlement as a Taxable Exchange, 8 U. C. L. A. L. Rev. 593, 601-602 (1961). 8 Section 1012 of the Internal Revenue Code of 1954 provides that: "The basis of property shall be the cost of such property, except as otherwise provided in this subchapter and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P ( relating to capital gains and losses). . . " 663026 0-62-9 74 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. draw support from the prior administrative practice and judicial approval of that practice. See p. 71, supra. We therefore conclude that the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown erroneous.9 IV. The attorney-fee question is much simpler. It is the customary practice in Delaware for the husband to pay both his own and his wife's legal expenses incurred in the divorce and the property settlement. Here petitioner paid $5,000 of such fees in the taxable year 1955 earmarked for tax advice in relation to the property settlement. One-half of this sum went to the wife's attorney. The taxpayer claimed that under § 212 (3) of the 1954 Code, which allows a deduction for the "ordinary and necessary expenses paid . . . in connection with the determination, collection, or refund of any tax," he was entitled to deduct the entire $5,000. The Court of Claims allowed the $2,500 paid taxpayer's own attorney but denied the like amount paid the wife's attorney. The sole question here is the deductibility of the latter fee; the Government did not seek review of the amount taxpayer paid his own attorney, and we intimate no decision on that point. As to the deduction of the wife's fees, we read the statute, if applicable to this type of tax expense, to include only the expenses of the taxpayer himself and not those of his wife. Here the fees paid her attorney do not appear to be "in connection with the determination, collection, or refund" of any tax of the taxpayer. As the Court of Claims found, the wife's attorney "considered the problems from the standpoint of his client alone. Cer- 9 We do not pass on the soundness of the taxpayer's other attacks upon this determination, for these contentions were not presented to the Commissioner or the Court of Claims. UNITED STATES v. DAVIS. 75 65 Opinion of the Court. tainly then it cannot be said that ... [his] advice was directed to plaintiff's tax problems .... " 152 Ct. Cl., at 805, 287 F. 2d, at 171. We therefore conclude, as did the Court of Claims, that those fees were not a deductible item to the taxpayer. Reversed in part and affirmed in part. MR. JUSTICE FRANKFURTER took no part in the decision of these cases. MR. JusTICE WHITE took no part in the consideration or decision of these cases. 76 OCTOBER TERM, 1961. Syllabus. 3i0 U.S. LEHIGH VALLEY COOPERATIVE FARMERR, I~C., ET AL. v. UNITED STATES ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 79. Argued January 17-18, 1962.-Decidrd June 4, 1962. Under § 8c of the Agricultural Adjustment Act, as amended and re-enacted by the Agricultural Marketing Agreement Act of 1937, the Secretary of Agriculture issued orders regulating the marketing of milk in the New York-New Jersey region. To protect the prices received by milk producers in that region, he includrd in the orders a provision in effect requiring those who buy milk el8ewherc and bring it into the region for sale as fluid milk to pay to the producers who regularly supply the region a "compensatory payment" equal to the difference between the minimum price set by the Market Administrator for fluid milk and the minimum price for surplus milk in the region. Held: This requirement is invalid, because it conflicts with § 8c (5) (G) of the Act, which, as 8hown by its legislative history, was intended by Congress to prevent the Secretary from setting up trade barriers to the importation of milk from other production areas in the United States. Pp. 77-100. 287 F. 2d 726, reversed. Willis F. Daniels argued the cause for petitioners. With him on the briefs was Donn L. Snyder. Alan S. Rosenthal argued the cause for the United States and the Secretary of Agriculture. With him on the briefs were Solicitor General Cox, Assistant Attorney General Orrick, Neil Brooks and Pauline B. Heller. Briefs of amici curiae, urging affirmance, were filed by Frederic P. Lee, John A. Cardon, Leslie H. Deming, Frederick U. Conard, Jr., Thomas 0. Berryhill, George M. St. Peter and Reuben Hall for the Dairymen's League Cooperative Assn., Inc., et al.; Louis J. Lefkowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Robert G. Blabey for the State of New York; Thomas Debevoise, Attorney General of Vermont, Albert LEHIGH VALLEY COOP. v. UNITED STATES. 77 76 Opinion of the Court. L. Coles, Attorney General of Connecticut, and Reuben Hall for the States of Vermont and Connecticut; and David D. Furman, Attorney General of New Jersey, and William L. Boyan, Deputy Attorney General, for Floyd R. Hoffman, Director of the Office of Milk Industry of New Jersey. Briefs urging reversal were filed by Walter F. Mondale, Attorney General, and Sydney Berde, Deputy Attorney General, for the State of Minnesota, as amicus curiae. MR. JusTICE HARLAN delivered the opinion of the Court. Petitioners, operating milk processing plants in Pennsylvania, challenge the validity of certain "compensatory payment" provisions included in milk marketing orders affecting the New York-New Jersey area, which were promulgated by the Secretary of Agriculture under the authority granted him by § 8c of the Agricultural Marketing Agreement Act of 1937, 7 U. S. C. § 608c. That section permits the Secretary to issue regional regulations governing, in various enumerated respects, the marketing of certain agricultural commodities, among which is milk. This provision in question requires those who buy milk elsewhere and bring it into the region for sale as fluid milk to pay to the farmers who supply the region a fixed amount as a "compensatory payment." This amount is measured by the difference between the minimum price set by the Market Administrator for fluid milk and the minimum price for surplus milk. The judgment of the Court of Appeals for the Third Circuit, 287 F. 2d 726, upholding the validity of the "compensatory payment" provision here under attack,1 conflicted with an earlier 1 The petitioners instituted this action challenging the validity of the compensatory payment provision by filing administrative petitions with the Secretary of Agriculture pursuant to § 8c (15) (A) of the Agricultural Marketing Agreement Act of 1937, 7 U. S. C. § 608c (15) (A). The Hearing Examiner sustained the petitioners' 78 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. decision rendered by the Court of Appeals for the Second Circuit, Kass v. Brannan, 196 F. 2d 791. To resolve this conflict we granted certiorari. 366 U. S. 957. I. THE GENERAL SCHEME OF MILK REGULATION. The order around which the present controversy centers, now titled Milk Marketing Order No. 2, 7 CFR §§ 1002.l et seq.,2 though somewhat more complex than others, is in its general outline representative of the pattern of regulation established by the Secretary for the promotion of orderly marketing conditions in the milk industry and the preservation of minimum prices for farmers. Pursuant to the authority granted by § 8c (5)(A),3 the Order classifies milk that is sold within contentions on the authority of Kass v. Brannan, 196 F. 2d 791, but the Judicial Officer, acting on behalf of the Secretary of Agriculture, dismissed the petitions. Petitioners then sought review of the Secretary's ruling in the District Court under § 8c (15) (B) of the Act. The review proceedings were consolidated with enforcement actions brought by the Government pursuant to § 8a (6) of the Act. The District Court, relying on Kass v. Brannan, supra, held that the payment provision was invalid. 183 F. Supp. 80. It was this decision that was reversed by the Court of Appeals. 287 F. 2d 726. 2 A general reorganization of Chapter IX of Title 7 of the Code of Federal Regulations during the past year has resulted in redesignation of most of the milk marketing orders. The New York-New Jersey Order had previously been designated as Milk Marketing Order No. 27 and had been found at 7 CFR § 927. The section references and the contents of the regulations as quoted throughout this opinion are as they were in effect on January 1, 1962. 3 Section 8c (5) (A} provides: "(5) Milk and its products; terms and conditions of orders. "In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and condiLEHIGH VALLEY COOP. v. UNITED STATES. 79 76 Opinion of the Court. the New York-New Jersey marketing area "in accordance with the form in which or the purpose for which it is used." Milk that contains 3% to 5% butterfat-the usual proportion in ordinary liquid milk-and is sold for fluid consumption is assigned to Class I. Milk that is used for cream (sweet and sour), half and half, or milk drinks containing less than 3% or more than 5% butterfat is classified in Class II. The remainder-milk that is to be stored for a substantial period and used for dairy products such as butter and cheese-is grouped in Class III. 7 CFR § 1002.37. This classification reflects the relative prices usually commanded by the different forms of milk. Thus, highest prices are paid for milk used for fluid consumption, and the lowest for milk which is to be processed into butter and cheese. Since the supply of milk is always greater than the demands of the fluid-milk market, the excess must be channeled to the less desirable, lower-priced outlets. It is in order to avoid destructive competition among milk producers for the premium outlets that the statute authorizes the Secretary to devise a method whereby uniform prices are paid by milk handlers to producers for all milk received, regardless of the form in which tions, and (except as provided in subsection (7) of this section) no others: "(A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers." 7 U. S. C. § 608c (5)(A). 80 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. it leaves the plant and its ultimate use. Adjustments are then made among the handlers so that each eventually pays out-of-pocket an amount equal to the actual utilization value of the milk he has bought. Under the Marketing Order here in question it is primarily the handlers whose plants are located within the marketing area and who regularly supply that area with fluid milk who are regulated. All handlers who receive or distribute milk within the area are required to submit monthly reports to the Market Administrator, listing the quantity of milk they have handled and the use for which it was sold. But only the handlers operating "pool plants"-i. e., plants which meet certain standards set out in 7 CFR §§ 1002.25-1002.29 •-must pay the producers from whom they buy the uniform price set by the Administrator. This price is calculated each month on the basis of the reports that are submitted. After determining the minimum prices for each use classification pursuant to formulas set out in 7 CFR § 1002.40, the Administrator computes an average price for the "pool" milk handled during that month. This figure is reached by first multiplying the "pool" milk disposed of in each class by the established minimum price for that class, and then adding the products to the "compensatory payments" made for non pool milk. After certain minor adjustments are made, this sum is divided by the total quantity of "pool" milk sold in the market during the month. The quotient is a "blend price." With some adjustments to reflect transportation expenses, this uniform price must be paid to producers by all handlers maintaining "pool" plants. 7 CFR § 1002.66. 4 These provisions establish certain performance requirements aimed at insuring that the plant continues to provide fluid milk to the marketing area even in periods of short supply. Thus, it is primarily the handlers whose main concern is the marketing area who qualify for the "pool." LEHIGH VALLEY COOP. v. UNITED STATES. 81 76 Opinion of the Court. Adjustments among handlers are made by way of a "Producer Settlement Fund," into which each handler contributes the excess of his "use value" 5 over the uniform price paid by him to his producer. Handlers whose "use value" of the milk they purchase is less than the "blend price" they are required to pay may withdraw the difference from the fund. The net effect is that each handler pays for his milk at the price he would have paid had it been earmarked at the outset for the use to which it was ultimately put. But the farmer who produces the milk is protected from the effects of competition for premium outlets since he is automatically allotted a proportional share of each of the different "use" markets. II. THE COMPENSATORY PAYMENT PROVISION. It will thus be seen that this system of regulation contemplates economic controls only over "pool-handler" plants since only such handlers are required to pay the "blend price" to their producers and to account to the Producer Settlement Fund. If limited to the provisions recounted above, the regulatory scheme would not affect milk brought into the New York-New Jersey marketing area by handlers who are primarily engaged in supplying some other market and whose producers are not located within the New York-New Jersey area. Some of the regional orders now in effect do not undertake any economic regulation of "outside" or "other source" milk.6 But it is quite obvious that under certain circumstances some regulation of such milk may be necessary. Accord- 5 "Use value" is the price the handler would have had to pay, at prevailing minimum rates, had he purchased his milk at a price reflecting its ultimate disposition. 6 See 7 CFR §§ 1034 (Dayton-Springfield), 1037 (North Central Ohio), 1038 (Rockford-Freeport), 1074 (Southwest Kansas). 82 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. ingly, § 8c (7)(D) of the Act, 7 U.S. C. § 608c (7)(D), authorizes the Secretary to include in his regulating orders conditions that are incidental to terms expressly authorized by the statute, and that are "necessary to effectuate the other provisions of such order." A handler who brings outside milk into a marketing area may disrupt the regulatory scheme in at least two respects: (1) Pool handlers in the marketing area who are required to pay the minimum class prices for their milk may find their selling prices undercut by those of nonpool handlers dealing in outside milk purchased at an unregulated price. ( 2) Producers in the marketing area, whose "blend price" depends on how much of the relatively constant fluid-milk demand they supply in a given month, may find the outside milk occupying a portion of the premium market, thus displacing the "pool" milk and forcing it into the less rewarding surplus uses, with the ultimate effect of diminishing the "blend price" payable to producers. In an effort to cope with these disruptive economic forces, the Secretary devised his "compensatory payment" plan. In essence the plan imposes special monetary exactions on handlers introducing "outside" milk for fluid consumption into a marketing area in months when there is a substantial surplus of milk on the market.1 Of the 68 regional milk orders which establish marketwide pools,8 64 contain "compensatory payment" provi- 7 The payment provision of 7 CFR § 1002.83 applies only in those months when the volume of milk sold for Class III use exceeds 15% of the total pool milk reported in the marketing area. 8 The Act authorizes the establishment of either marketwide pools or individual handler pools. Since the latter require only that each handler pay uniform prices to all the producers from which he buys, but does not impose a uniformity requirement among the various LEHIGH VALLEY COOP. v. UNITED STATES. 83 76 Opinion of the Court. sions of one kind or another. The Order now before us is typical of 23 of these orders.9 The Order provides that a handler who brings "outside" milk into the New York- New Jersey area and sells it for fluid use must pay to the pool's producers, through the Producer Settlement Fund, an amount equal to the difference between the minimum prices for the highest and for the lowest use classifications prevailing in that area. In other words, for each hundredweight of nonpool milk sold for Class I use in the New York-New Jersey area, a payment equal to the difference between Class I and Class III prices must be made by the se1Ier to the Producer Settlement Fund. III. THE PURPOSE AND EFFECT OF THE COMPENSATORY PAYMENT. After the Court of Appeals for the Second Circuit had held the compensatory payment requirement in the New York-New Jersey Milk Marketing Order (then Order No. 27) to be a "penalty," Kass v. Brannan, 196 F. 2d handlers, there is no need for adjustments among handlers. Consequently, no compensatory payment provision is included in orders establishing individual handler pools. See 7 CFR §§ 1004 (Philadelphia), 1005 (Tri-State), 1010 (Wilmington), 1039 (Milwaukee), 1041 (Toledo), 1044 (Michigan Upper Peninsula), 1078 (North Central Iowa), 1096 (Northern Louisiana), 1097 (Memphis), 1102 (Fort Smith), 1129 (Austin-Waco), 1130 (Corpus Christi), 1134 (Western Colorado). 9 Compare 7 CFR §§ 1001.65 (Greater Boston), 1003.62 (Washington, D. C.), 1006.65 (Springfield, Mass.), 1007.65 (Worcester), 1008.54 (Wheeling), 1009.54 (Clarksburg, W. Va.), 1011.62 (Appalachian), 1014.46 (Southeastern New England), 1015.46 (Connecticut), 1016.62 (Upper Chesapeake Bay), 1030.61 (Chicago), 1031.70 (b) (South Bend-La Porte-Elkhart), 1036.84 (b) (Northeastern Ohio), 1048.54 (Greater Youngstown-Warren), 1061.54 (St. Joseph), 1068.70 (b) (Minneapolis-St. Paul), 1071.62 (b) (Neosho Valley), 1072.55 (Sioux Falls-Mitchell), 1106.55 (Oklahoma), 1125.70 (Puget Sound), 1126.70 (d) (North Texas), 1133.70 (b) (Inland Empire). 84 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. 791, 795, the Secretary of Agriculture conducted extensive hearings to determine whether it should be retained. His findings, which appear at 18 Fed. Reg. 8444-8454, explain this requirement as the most satisfactory means of imposing "a suitable charge on such unpriced milk in an amount sufficient to neutralize, compensate for and eliminate the artificial economic advantage for non-pool milk which necessarily is created by the classified pricing and pooling of pool milk under the order." Id., at 8448. There seems little doubt that an assessment equal to the Class I-Class III differential would, in all but rare instances, nullify any competitive advantage that nonpool milk could have: only if the sum of the purchase price of the outside milk and the cost of its transportation to market were less than the Class III price would a handler find it profitable to bring such milk into the marketing area. But it must be obvious that this payment is wholly or partially "compensatory"-i. e., puts pool and nonpool milk "on substantially similar competitive positions at source" ( ibid. )-only if the milk has been purchased at not more than the Class III price. If the purchase price of the nonpool milk exceeds the Class III price within the area, the effect of the fixed compensatory payment is to make it economically unfeasible for a handler to bring such milk into the marketing area. The Secretary of Agriculture's determination that the Class I-Class III differential was the most suitable compensatory figure rested upon what was, in effect, an irrebuttable presumption that the nonpool milk was purchased at a rate commensurate with the value of "surplus" (Class III) milk. See 18 Fed. Reg., at 8448.10 10 "As stated earlier herein, all milk which is established to be primarily associated with the New York milk marketing area under the standards prescribed by the order is included in the New York pool. Conversely, the non-pool milk which enters the marketing area for fluid use originates from plants which are not sufficiently associated LEHIGH VALLEY COOP. v. UNITED STATES. 85 76 Opinion of the Court. That presumption was based in turn on the supposition that the nonpool milk could not have been worth more than the Class III price where purchased since it could not be shipped elsewhere for Class I use. But it must with the New York market to have their milk in the pool. Such plants have their primary interests in other fluid markets or specialized manufacturing uses and frequently have more milk than is required for these primary purposes. It is this surplus milk at nonpool plants which can be 'dumped' into the New York market for fluid use, provided only that the plant and the milk [have] marketing area health approval. The operator of such a non-pool plant has a choice of using the excess milk for surplus uses (ordinarily in the manufacture of various milk products) or of sending it to the New York marketing area for fluid uses. In making this decision he will compare the rnspective net returns to him for this surplus milk and will naturally select the fluid alternative, for it will yield the greater return. In the absence of classified pricing, his cost, at source, for the excess milk remains exactly the same whether he uses it for surplus disposition or for fluid use. The pool plant operator on the other hand has no such advantage for he pays a higher classified price, at source, if he sells the milk in the market area for fluid use (Class I-A or II) than if he disposes of it for surplus manufacturing uses (Class III). "If this artificial advantage in favor of surplus non-pool milk at the plant of origin is to be effectively removed, as it must be, the milk must be treated and evaluated for ,vhat it actually is, namely surplus milk in the milkshed. If New York marketing area disposition were not available for this surplus, the non-pool handler could derive from it only its surplus value. This surplus value is its true value or 'opportunity cost' and such surplus value should be used as th(> subtrahend in the formula for compensation payments on non-pool milk from plants not subject to a Federal order. "The Class III price under the New York order is the class pric'=' which is payable, at source, for pool milk under the New York order when used for most surplus uses. It is expressly designed to fix a proper classified value, at source, for surplus milk. The Class UI price closely approximates the amount paid in the Northeast to farmers not under the New York order for so much of their milk as is used for general manufacture. "It is therefore a dependable indicator of the value of surplus milk at source. If a non-pool handler, for his own reasons, chooses to pay 86 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. be apparent that it is only if the milk is denied access to other marketing areas or if a prohibitive payment is assessed on its use elsewhere that it will depreciate in value to Class III levels. For if the milk can be freely shipped elsewhere for fluid use or if it is purchased in an area where prices paid to producers are regulated, it will command a higher price. Indeed, the facts of the case now before us demonstrate the shortcomings of the Secretary's reasoning. One of the petitioners, Suncrest Farms, Inc., purchases its milk in Pennsylvania under regulations established by the Pennsylvania Milk Control Commission. In September 1957, which was one of the months during which it sought to sell its milk in the New York-New Jersey Marketing Area, Suncrest was required to pay $6.40 per cwt. for the milk it purchased from dairy farmers in Pennsylvania. The Class I-Class III differential in the New York-New Jersey Marketing Area during that month was $2.78 per cwt. Thus, if the "compensatory payment" were assessed, Suncrest would actually be forced to pay $9.18 per cwt. for fluid milk sold in the area, while the handlers maintaining pool plants in the area would pay only the Class I price, which was $6.23 in August 1957.11 If competitive parity among handlers of pool and nonpool milk were the only objective of the Secretary's "compensatory" regulation, other marketing orders of the Secretary show that this result has been achieved without imposing unnecessary hardships, virtually "trade more than its true market value, at source, for surplus milk which he sends to the New York area, the pool should not underwrite this unnecessary cost, particularly since the premium can be used to outbid pool handlers for milk, as previously shown." 11 The fact that petitioners were paying more for their milk than the Class I price in the New York-New Jersey Marketing Area leaves no room for any suggestion that they will be receiving a "windfall" if it is ultimately adjudged that they are entitled to have returned the full amount of their compensatory payments. LEHIGH VALLEY COOP. v. UNITED STATES. 87 76 Opinion of the Court. barriers" as in the instance just given,12 on the nonpool milk.13 It is in considering the effect of the present compensatory payment provision on the pool producers, however, 12 The total amount of the compensatory payments involved in this litigation, embracing a period of approximately four years, was some $617,000 as to Lehigh Valley and $108,000 as to Suncrest. 13 Several of the marketing orders make the compensatory payment equal the difference between the Class I price in the marketing area and the actual cost of the nonpool milk. See 7 CFR §§ 1042.60 (Muskegon), 1128.62 (b) (Central West Texas). In some marketing areas the handler who deals in nonpool milk is permitted to elect each month between paying the fluid milk-surplus use differential and paying the difference between his actual cost and the minimum regional price for Class I milk. See 7 CFR §§ 1013.62 (Southeastern Florida), 1033.61 (Greater Cincinnati), 1035.63 (Columbus, Ohio), 1040.66 (Southern Michigan), 1043.84 (Upstate Michigan), 1045.83 (Northeastern Wisconsin), 1047.62 (Fort Wayne), 1064.61 (Greater Kansas City), 1065.62 (Nebraska-Western Iowa), 1067.61 (Ozarks), 1069.62 (Duluth-Superior), 1073.62 (Wichita), 1094.62 (New Orleans), 1098.92 (Nash ville), 1103.62 (Central Mississippi), 1105.62 (Mississippi Delta), 1107 .61 (Mississippi Gulf Coast), 1131.62 (Central Arizona), 1135.62 (Colorado Springs-Pueblo), 1136.62 (Great Basin), 1137.62 (Eastern Colorado). Other marketing orders, applicable in some areas, assess a compensatory payment equal to the difference between the "blend price" paid in the area for pool milk and the Class I price, thus treating the handler of nonpool milk as if he were a member of the pool with respect to such milk as he introduced into the marketing area. Where this differential is accepted as the measure of the compensatory payment it is done only in those months when the surplus is lowest. In the spring and summer months the fluid milk-surplus use differential is exacted. See 7 CFR §§ 1032.55 (b) (Suburban St. Louis, August-February), 1046.55 (b) (Ohio Valley, August-March), 1049.55 (b) (Indianapolis, August-March), 1062.55 (b) (St. Louis, August- February), 1063.63 (b) (Quad Cities-Dubuque, July- November), 1066.57 (a) (Sioux City, August-February), 1070.63 (b) (Cedar Rapids-Iowa City, July- November), 1075.63 (b) (Black Hills, July- March), 1076.63 (b) (Eastern South Dakota, July-February), 1079.63 (b) (Des Moines, July-March), 1090.54 (b) (Chattanooga, August-February), 1095.70 (e) (2) (Louisville-Lexington, October-De88 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. that the principal concern of the Secretary becomes quite apparent. As has been noted (p. 82, supra), the sale for fluid use of nonpool milk in the marketing area displaces pool milk that might otherwise be used for this premium outlet. Since the market area's "blend price" is computed only with reference to the pool milk, the effect of the entry of nonpool milk is to drive down the price that cember), 1099.62 (a) (Paducah, August-March), 1101.93 (b) (Knoxville, August-February), 1104.53 (b) (Red River Valley, August-January), 1108.54 (b) (Central Arkansas, August-February), 1127.65 (b) (San Antonio, January and August), 1132.63 (b) (Texas Panhandle, July-February). The latter method treats the handler of nonpool milk who buys at a price in excess of the blend price as if he were a member of the pool since a handler in the pool may, if he chooses, pay his producer more than the "blend price" set by the Market Administrator, see Stark v. Wickard, 321 U. S. 288, 291, but must still account to the Producer Settlement Fund as if he had paid only the "blend price." By treating nonpool milk in the same manner, the Secretary might be able to justify a compensatory payment equal to the difference between the nonpool milk's "use value" and the "blend price," though we do not decide the question. See generally Hutt, Restrictions on the Free Movement of Fluid Milk Under Federal Milk Marketing Orders, 37 U. Det. L. J. 525, 564-577 (1960). The suggestion that a nonpool handler would be given a competitive advantage under either of these methods because, in the words of the Judicial Officer, he does not have "to equalize his utilization" as do pool handlers is demonstrably unsound. Insofar as the handlers' sale of milk is concerned, neither pool nor nonpool handlers are required to share or "equalize" their proceeds with others. To the extent that this contention relates to the handlers' purchase of milk and is meant to suggest that nonpool handlers will find it easier to buy milk because they will be able to pay higher prices to their producers, the exaction of a Class I-blend price payment would effectively discourage purchases in excess of the blend price (which is what the pool's producers are paid). And the assertion that the pool "carries the surplus burden for outside handlers" is based on the same mistaken reasoning as underlies the Secretary's determination to retain the Class I-Class III payment after Kass v. Brannan, supra. See pp. 84-86, s1Lpra. LEHIGH VALLEY COOP. v. UNITED STATES. 89 76 Opinion of the Court. is paid to producers in the area. A close examination of the workings of the present compensatory payment provision reveals that its effect is to preserve for the benefit of the area's producers the blend price that they would receive if all outside milk were physically excluded and they alone would supply the fluid-milk needs of the area. For every cwt. of pool milk that is forced into "surplus" use by the entry of nonpool milk, the handler introducing the outside milk is required to pay for the benefit of the area's producers the difference between the value the pool milk would have had if the nonpool milk had never entered and the value it has once the nonpool milk is sold for fluid use.14 In effect, therefore, the nonpool milk is HA highly simplified illustration serves to clarify this effect: If the Class I price on a given date is $6 per cwt. and the Class III price is $3 per cwt., and if 2,000 cwt. are consumed as fluid milk and another 2,000 cwt. are produced by the dairy farmers in the area and utilized for surplus uses, the computation of the blend price would be as follows: Table A. Class I. . . . . . . . . . . . . . . . . . . . . . 2,000 x 6.00 equals 12,000 Class III... . . . . . . . . . . . . . . . . . 2,000 x 3.00 equals 6,000 Totals .................. 4,000 at 18,000 Blend Price ........................ $4.50 If 500 cwt. are then brought in from the outside as nonpool milk and sold for Class I use, 500 cwt. of the pool milk will drop into Class III (since the fluid milk demand remains relatively constant): Table B. Class I....... . . . . . . . . . . . . . . . 1,500 x 6.00 equals 9,000 Class III.... . . . . . . . . . . . . . . . . 2,500 x 3.00 equals 7,500 Totals .................. 4,000 at 16,500 Blend Price ...................... . $4.125 The producers in the pool would thereby be receiving $.375 less per cwt. than had the nonpool milk stayed out altogether. By distributing to them (through the exaction made of nonpool handlers) the difference between Class I and Class III prices multiplied by the 663026 0 - 62-10 90 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. forced to subsidize the pool milk and insulate the pool milk from the competitive impact caused by the entry of outside milk. This was recognized by the Court of Appeals which held that such a compensatory payment amount of nonpool milk sold in the area as Class I, that deficit is restored. Thus, Table C. (Nonpool milk sold as Class I) x (Class I minus Class III) equals (Loss to pool by displacement of Class I outlet) or 500 x 3.00 equals 1,500 1,500 divided by 4,000 cwt. equals .375 per cwt. The Secretary's formula, therefore, precisely accomplishes the restoring to the pool's producers whatever they have lost by reason of the occupation of their Class I outlet by the nonpool milk. It should be noted that the actual computation of the blend price, as set out in 7 CFR § 1002.66, achieves this same result in an indirect fashion. Instead of computing the blend price without reference to any nonpool milk, the Secretary's formula includes the compensatory payments within the list of minimum-price obligations that are added in determining the total proceeds for milk sold within the area. 7 CFR § 1002.66 ( c). But the blend price is then computed by dividing this sum by the amount of "milk delivered by producers," i. e., pool milk. Consequently, the actual computation of the uniform price under the above illustration would be as follows: Table D. Class I...................... 1,500 x 6.00 equals 9,000 Class III.... . . . . . . . . . . . . . . . . 2,500 x 3.00 equals 7,500 Compensatory payments (nonpool milk)............ . . . . 500 x 3.00 equals 1,500 Totals (pool milk)..... . . 4,000 at 18,000 Blend Price. . . . . . . . . . . . . . . . . . . . . . . . $4.50 The funds paid into the Producer Settlement Fund by the handlers dealing in nonpool milk are then available to the pool handlers, whose credits from the Fund will be larger to the extent that they have been forced to pay a higher blend price. LEHIGH VALLEY COOP. v. UNITED STATES. 91 76 Opinion of the Court. was "designed to compensate the pool for the loss of the Class I fluid milk utilization and ... protect the uniform blend price in the marketing area." 287 F. 2d, at 730. It is only if the Secretary has been authorized by the statute to impose such economic trade barriers on the entry of milk into an area so as to protect the prices received by the pool producers that the present compensatory payment plan can be sustained as "necessary to effectuate" the expressly authorized provisions of this Order. IV. SECTION 8c (5)(G). Section 8c (5)(G) of the Act, however, taken in light of i~s legislative history, indicates that the regulation here imposed by the Secretary was of the sort that Congress intended to forbid. Section 8c ( 5) ( G) provides: "No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States." This provision was first enacted into law as part of the Agricultural Adjustment Act of 1935, 49 Stat. 750, amending the Agricultural Adjustment Act of 1933, 48 Stat. 31. It was re-enacted as part of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, which reaffirmed the marketing order provisions of the 1935 Act after the processing tax had been struck down as unconstitutional in United States v. Butler, 297 U. S. 1. Along with enumerating the powers granted to the Secretary of Agriculture so as to avoid the "delegation" problems brought to light by the then recent decision in Schechter v. United States, 295 U. S. 495, the Congress 92 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. sought in 1935 to limit the Secretary's powers so as to prevent him from establishing "trade barriers." Midwestern legislators were particularly concerned over this possibility. When the reported bill which contained no provision like the present § Sc (5)(G) came to the floor of the House of Representatives, Representative Andresen of Minnesota suggested that the Secretary might use his powers to "stop the free flow in commerce . . . of dairy products." He received an assurance from Representative Jones, the Chairman of the House Committee on Agriculture, that the Secretary was not authorized to require anything more of milk coming into a marketing area than that it "comply with the same conditions which the farmers and distributors comply with in that region." 79 Cong. Rec. 9462.15 An amendment to the bill clarifying this position was then offered by Representative 15 "Mr. ANDRESEN. Is there anything in the milk section of the bill which gives the Secretary authority to set up trade barriers and stop the free flow in commerce throughout the United States of dairy products? "Mr. JONES. No. There is nothing in the bill that would authorize that. The Secretary may require that in crossing from one region to another that they comply with the same conditions which the farmers and distributors comply with in that region. "Mr. ANDRESEN. That is, sanitary regulations? "Mr . .TONES. Sanitary and other uniform regulations; but he cannot set up any trade barriers which would keep them out. "Mr. ANDRESEN. A great many Members have inquired about that feature, and I just wanted the gentleman to bring that out. "i\fr. JONES. The amendments require a uniform price and uniform set of conditions and fair distribution. In the first place, I do not believe we could give authority to set up these barriers. In the second place, the bill does not do that. It simply enables them to have a _'.)rogram in one of these regions, and in developing these orders which the Secretary issues, he uses the word 'region' wherever possible. Those on the outside must come into that." (Emphasis added.) LEHIGH VALLEY COOP. v. UNITED STATES. 93 76 Opinion of the Court. Sauthoff of Wisconsin, 79 Cong. Rec. 9493,16 but no action was taken on that proposal. On the next day, Representative Andresen proposed from the floor of the House the forerunner to the present § Sc (S)(G). 79 Cong. Rec. 9572. His amendment took the following form: "(g) No marketing agreement or order applicable to milk and its products in any marketing area sha11 prohibit the marketing in that area of any milk or product thereof produced in any production area in the United States." There was no objection to the addition of this language, Representative Jones remarking that "[i] t is simply clarifying." Ibid. But when Representative Sauthoff sought to change the amendment by substituting the words "limit or tend to limit" for "prohibit," Representative Jones objected on the ground that necessary milk classification and minimum pricing for the protection of outside milk producers regularly supplying their own marketing area would "tend to limit" the introduction of their milk into other areas.17 Ibid. 16 The proposed amendment read: "Sec. - (b) No marketing agreement, order, or regulation shall contain any term or provision which will tend to result in preventing or hindering any agricultural commodity or product thereof produced in any region or area of the United States from being brought into or sold in any other such region or area, or shall have the effect of subsidizing the production or sale of any agricultural commodity or product thereof in any such region or area, in such a manner that such commodity or product thereof will tend to be sold in such other region or area at prices which will tend to depress prices therein of such commodity or product thereof." 17 "Mr. JONES. Mr. Chairman, the adoption of the amendment of the gentleman from Wisconsin would absolutely wreck the whole milk program. In order to get away from the terrific conditions that have prevailed in the milk industry there is provided in the bill 94 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. The House bill, with the language added by Representative Andresen's amendment, went to the Senate. Accompanying the bill to the floor was S. Rep. No. 1011, 74th Cong., 1st Sess., which stated, at p. 11: "To prevent assaults upon the price structure by the sporadic importation of milk from new producing areas, while permitting the orderly and natural expansion of the area supplying any market by the introduction of new producers or new producing areas, orders may provide that for the first 3 months authority to fix a minimum price to producers. That, at least in a mea,mre, would limit or tend to limit shipment, and yet the gentleman, I am sure, does not want to interfere with the price to producers. Then it is a universal custom in the marketing of milk to classify milk. This, in a way, is a limitation .... "Mr. BOILEAU. . .. Mr. Chairman, I should like to ask the distinguished chairman of the committee if in his opinion there is anything in this bill that gives to the Secretary of Agriculture or to anyone else any power to restrict the free flow of milk or any other commodity between the various States? "Mr. JONES. No; there is nothing in it that will do that. The only tendency is to make all sections comply with the same rules. "Mr. HULL. . .. Mr. Chairman, if there is nothing in this bill which would authorize the Secretary of Agriculture or any subordinate so to limit transportation or shipment of dairy products from one State into another, then the amendment of the gentleman from Minnesota as amended by the amendment of the gentleman from Wisconsin [Mr. Sauthoff] can do no harm. "The three States of Minnesota, Iowa, and Wisconsin, produce about 45 percent of the butter made in this country and we are interested in this matter of the shipment of dairy products to other States. "Mr. JONES. Mr. Chairman, will the gentleman yield? "Mr. HULL. I yield. "Mr. JONES. Would the gentleman object to the requirement that Chicago dealers pay the Wisconsin producer a minimum price? "Mr. HULL. Not at all. "Mr. JONES. That certainly would tend to limit." LEHIGH VALLEY COOP. v. UNITED STATES. 95 76 Opinion of the Court. of regular delivery, payments shall be made to producers not theretofore selling milk in the area covered by the order at the price fixed for the lowest use classification. This is the only limitation upon the entry of new producers-wherever located-into a market, and it can remain effective only for the specified 3-month period." (Emphasis added.) 18 In the Senate § 8c (5)(G) was amended, without objection, 79 Cong. Rec. 11655, to read: "(G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, except as provided for milk only in subsection ( d), the marketing in that area of any milk or product thereof produced in any production area in the United States." 19 Section Sc ( 5) ( G) emerged from conference in its present form. The conference report explained how the differences between the House and Senate versions were resolved (H. R. Rep. No. 1757, 74th Cong., 1st Sess. 21): " ... The conference agreement retains the House provision with respect to prohibitions on marketing of both milk and products of milk. The conference agreement also denies the authority to limit in any manner the marketing in any area of milk products (butter, cheese, cream, etc.) produced anywhere in the United States. The language adopted by the conference agreement does not refer to milk, and so does not negative the applicability to milk, for use in fluid form or for manufacturing purposes, of the pro- 1 • The "3-month period" provision here referred to is the present § 8c (5) (D) which authorizes the Secretary to set the surplus-use price as the price to be paid to any new producer who enters the pool. In the final version of the Act the introductory period was reduced to two months. 19 "Subsection (d)" is § 8c (5) (D). See note 18, supra. 96 OCTOBER TER:\1, 1961. Opinion of the Court. 370 U.S. visions of the bill relating to milk, such as the provisions on price fixing, price adjustment, payments for milk, etc." When the conference agreement came to the floor of the House, Representative Jones again explained what § 8c (5)(G), when taken together with § 8c (5)(D), meant (79 Cong. Rec. 13022): "Mr. SNELL. . .. I do not understand exactly what this means, 'No marketing agreement or order applicable to milk and its products,' and so forth. "Mr. JONES. That simply applies to fluid milk. You cannot make any limitation at all on the amount of butter or cheese or milk products that are shipped from any one area to another, and the limitation that may be applied on milk is only such limitation as puts each area on an equality with the other areas after a certain period of about 2-1/2 months. ":\Ir. SNELL. How does that change the situation from the present law? "Mr. JONES. The provisions of this particular bill would enable that area to be protected from being swamped with fluid milk from the outside, bought at any old price. For instance, if you do not have the protection of this bill they would run into the same trouble they ran into in the New York milk cases, where they went into New Hampshire and bought milk at a lower price and came in and broke down your milk agreements. Under the provisions of this bi1l if a price were fixed in this particular area in New York, then if anyone bought milk from an outside area and brought it in he would be compelled to pay the producer the same price that was being paid the producers within the area and comply with LEHIGH VALLEY COOP. v. UNITED STATES. 97 76 Opinion of the Court. all regulations and requirements of that area. For the first 2 months he would be required to take the manufacturer's price." (Emphasis added.) This history discloses that rather than being confined, as Judge Learned Hand suggested in Kass v. Brannan, 196 F. 2d, at 800, to practices aimed at the exclusion of cheese and other milk products from eastern markets, § 8c ( 5) ( G) was compendiously intended to prevent the Secretary from setting up, under the guise of price-fixing regulation, any kind of economic trade barriers, whether relating to milk or its products. \Vhenever there was an attempt to broaden the language of subsection ( G) to encompass "limitations" as well as "prohibitions," those opposing it pointed only to the fact that "limit" might be read as including the type of price fixing covered by subsection (D)-i. e., allowing new pool producers only manufacturing-use prices for a limited period~or other attempts to put outside milk on an equal footing with pool milk. Although the words of § 8c ( 5) ( G), "in any manner limit," must be taken, in the context of their legislative history, as referring only to milk products, that history likewise makes it clear that as regards milk the word "prohibit" refers not merely to absolute or quota physical restrictions, but also encompasses economic trade barriers of the kind effected by the subsidies called for by this "compensatory payment" provision. V. THE INVALIDITY OF THE PRESENT COMPENSATORY p A YMENT PROVISION. In light of the legislative history of § 8c ( 5) (G) we conclude that the compensatory payment provision of the New York-New Jersey Milk Marketing Order must fall as inconsistent with the policy expressed by Congress in 98 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. that section.20 Because it conflicts with§ Sc (5)(G), the payment provision cannot be justified under the general terms of § Sc (7) (D), which prevents the inclusion of conditions that are inconsistent with express statutory provisions. Nor is the compensatory payment clause saved by the circumstance that in some instances it may also fortuitously operate to put the handlers of pool and nonpool milk on a competitive par. As has been pointed out ( note 13, supra), there are other means available to the Secretary for achieving this result, while affording protection to pool producers, without imposing almost insuperable trade restrictions on the entry of nonpool milk into a marketing area. The Government contends that the effect of§ 8c (5) (G) may not be considered by this Court since that provision was not cited by the petitioners in the administrative proceeding in the Department of Agriculture. But even on the Government's premise that an unauthorized regulation should be upheld by this Court merely because the provision prohibiting it was not cited in the administrative proceeding in which it was attacked, this case presents no such instance. The administrative petition filed with the Department of Agriculture alleged that the effect of the compensatory payment clause amounted "to establishing tariffs or barriers interfering with the free flow of milk across state lines," an obvious reference to the prohibition of§ 8c (5)(G). In addition, the Government contends that the petitioners had the choice of joining the market-wide pool, in which case they would not have been subject to the compensatory payment provisions. Their election to stay 20 While we need not reach the point, we would have difficulty in concluding, as did the Court of Appeals for the Second Circuit in Kass v. Brannan, supra, that the provisions of§ 8c (5) (A) precluded, in themselves, the promulgation of the present compensatory payment provision. LEHIGH VALLEY COOP. v. UNITED ST ATES. 99 76 Opinion of the Court. out of the pool, it is argued, bars any attack on the consequences of their choice. However, such an "election" is surely illusory. The consequences of joining the pool would have been that petitioners would have been forced to pay the "blend price" to all their producers wherever located and account to the Producer Settlement Fund for all milk wherever sold. In these circumstances the election was not voluntary as in Booth Fisheries v. Industri,a,l Comm'n, 271 U.S. 208,211. It was coercive and, indeed, no election at all. Whether full regulation of the petitioners would be permissible under the Act is a question which we need not reach in this case. If the Secretary chooses to impose such regulation as a consequence of a handler's introducing any milk into a marketing area, the validity of such a provision would involve considerations different from those now before us. With respect to these petitioners, however, and with regard to the regulation here in issue, we conclude that the action of the Secretary of Agriculture exceeded the powers entrusted to him by Congress. The Secretary of course remains free to protect, in any manner consistent with the provisions of the statute, the "blend price" in this or any other marketing area against economic consequences resulting from the introduction of outside milk. We do not now decide whether or not any new regulation directed to that end could be made to apply retrospectively, or whether, if it could be validly so applied, the presently impounded funds could be resorted to pro tanto in its effectuation. Cf. United States v. Morgan, 307 U. S. 183. "What further proceedings the Secretary may see fit to take in the light of our decision, or what determinations may be made by the District Court in relation to any such proceedings, are not matters which we should attempt to forecast or hypothetically to decide." Morgan v. United States, 304 U. S. 1, 23, 26. 100 OCTOBER TERM, 1961. BLACK, J., dissenting. 370U.S. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. 1\1R. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JusTICE WHITE took no part in the consideration or decision of this case. MR. JusTICE BLACK, dissenting. I find it impossible to agree with the Court's holding or opm10n. In 1936, in United States v. Butler,1 this Court temporarily paralyzed the national farm recovery program by holding important parts of the Agricultural Adjustment Act of 1933 unconstitutional and by casting grave doubts upon the remainder of that Act which had been passed at the bottom of the Great Depression for the express purpose of alleviating the desperate economic plight of the American farmer. Following that decision Congress, in 1937, with unusual promptness adopted another national farm program reaffirming the broad and comprehensive powers it had previously given the Secretary of Agriculture to develop agricultural marketing plans for the purpose of raising the income of farmers.2 The philosophy of this later Act was not competition as in the Sherman Act but governmental price fixing as in the original 1933 Agricultural Adjustment Act, the National Industrial Recovery Act, and a host of other contemporaneous Acts, all of which were designed to raise the income and purchasing power of workers and farmers. Today some 26 years after the Butler decision this Court 1 297 u. s. 1. 2 50 Stat. 246, 7 U. S. C. § 601 et seq. LEHIGH VALLEY COOP. v. UNITED STATES. 101 76 BLACK, J., dissenting. again projects itself across the path of the national farm program by reading Congress' 1937 re-enactment as designed to encourage competition rather than to help farmers by governmental price fixing, and on this basis strikes down a vital element of many of the milk marketing orders set up under the 1937 Act while raising clouds of confusion and uncertainty as to the validity of many others. Although the blow to the present farm program is not so devastating as the one inflicted on the original Act by the Butler decision, I think that in ultimate effect the harmful consequences of the two decisions will differ only in degree. It is my belief that the order of the Secretary which the Court strikes down was set up in faithful adherence to the Act's purpose to raise the prices that farmers receive for their products and that the Court's action will tend to have precisely the opposite effect of depressing those prices. I have no doubt but that the Court's decision will enable some handlers to reap greater profits but I regret to say that this is bound to be at the expense of the farmers themselves-for whose benefit the national program was primarily passed. Certainly this is true of the more than $700,000 which the Court's decision today will allow the two handlers here to be paid which of necessity must come out of the pockets of the dairy farmers where this milk was sold. The basic features of the Act under which the Secretary promulgated the regulation which the Court today strikes down were first enacted in 1935 3 when the dairy industry was near the bottom of its depression and dairy farmers in many parts of the country were not even receiving the actual cost of producing the milk they sold. These 1935 provisions were themselves amendments to the original 1933 Agricultural Adjustment Act, and were designed to spell out more clearly and to some extent add a 49 Stat. 750. 102 OCTOBER TERM, 1961. BLACK, J., dissenting. 370 u. s. to the broad powers which the original 1933 Act had given the Secretary to correct the "severe and increasing disparity between the prices of agricultural and other commodities" by raising "the purchasing power of farmers" and stabilizing the value of the "agricultural assets supporting the national credit structure." 4 The causes of the low prices to dairy farmers which led Congress to grant these broad powers were, like the details of the operation of the milk business itself, incredibly complex. In the main, however, these low prices were widely attributed to a vicious and destructive competition among dairy farmers for fluid milk sales which brought farmers higher prices than did sales as surplus milk for manufacturing butter, cheese and other milk products.5 In order to bring an end to this competition which was pushing farmers to the wall, the 1935 Act gave the Secretary specific power to set up regional marketing areas within which he could, for the Government, fix minimum prices handlers would have to pay to farmers for the various uses of milk, require that those minimum prices be paid to a pool for the area and distribute the proceeds of the pool so that each farmer selling milk through the pool would ultimately be paid at the same uniform rate or "blend price" regardless of the use to which his particular milk was put.6 In the original 1935 Act the Secretary was directed to fix prices at "parity" -a level designed by Congress to insure that farmers generally would receive a higher price for their products than they could get in an open, competitive rnarket.7 The 1937 reenactment went beyond even this, however, and gave the Secretary power to fix prices above this parity level in order to 4 48 Stat. 31. 5 See Nebbia v. New York, 291 U. S. 502, 515-518, 530; United States v. Rock Royal Co-operative, Inc., 307 U. S. 533, 548--550. 6 50 Stat. 246, as amended, 7 U. S. C. § 608c. ' 49 Stat. 750. LEHIGH VALLEY COOP. v. UNITED ST ATES. 103 76 BLACK, J., dissenting. insure that dairy farmers in particular would receive a high enough price for their products.8 In order to make sure that the Secretary had enough power to raise prices above the competitive level the Secretary was also authorized to issue orders "Incidental ... and necessary to effectuate" the specific price-fixing and other powers given to him.• Thus it can be seen that the general scheme of the Act was to raise prices to farmers by governmental fixing of minimum prices for dairy products within specific regional areas, thereby abandoning to that extent the system of price fixing by competition. In accordance with this general plan and under the authority of the Act, the Secretary has proceeded after full hearings within the various regions to set up a number of regional milk marketing pools, one of which is the New York-Northern New Jersey pool whose operation is jeopardized by the Court's decision today.10 The Secretary has also chosen to leave a number of areas unregulated. Obviously in a system including both large unregulated areas and regulated regional pools in which prices may be fixed at different levels, there will be significant and complicated problems involved in milk sales and purchases that do not take place wholly within a single pool. Among the most serious of these prob- 8 50 Stat. 247, 7 U.S. C. § 608c (18). 9 49 Stat. 757, 7 U.S. C. §608c (7)(D). 1° Congress specifically provided in § Sc (11) (C) of the Act that the Secretary's price-fixing powers were to be exercised on a regional basis rather than a national basis whenever practicable: "All orders issued under this section which are applicable to the same commodity or product thereof shall, so far as practicable, prescribe such different terms, applicable to different production areas and marketing areas, as the Secretary finds necessary to give due recognition to the differences in production and marketing of such commodity or product in such areas." 49 Stat. 759, 7 U. S. C. § 608c (11) (C). See also § Sc (11) (A). 49 Stat. 759, 7 U.S. C. § 60Sc (11) (A). 104 OCTOBER TERM, 1961. BLACK, J., dissenting. 370U. S. lems is that handlers from outside a pool can, if left unregulated, get the advantages of selling milk in that pool area without bearing any of the burdens that members of that pool have to bear. And as shown by the record in this case such sales can reduce the net price received by the farmers within the pool area. In an obvious effort to prevent any such harmful effects on the prices received by farmers in the New York-Northern New Jersey pool, the Secretary, properly I think, acting under his authority to issue orders "Incidental ... and necessary to effectuate" his specific price-fixing powers, provided that nonpool handlers who sold fluid milk in that pool area at times wheR there was surplus fluid milk in the pool should make a payment to compensate pool farmers for the displacement of fluid sales they otherwise would have made, compensate for the reduction of the regional pool fund which this would cause and to compensate for the consequent diminution of the blend price that would be paid to pool farmers. It is this key regulatory feature which the Court strikes down as a "trade barrier" prohibited by § 8c (5)(G) of the Act because it limits the ability of outside handlers to se11 milk within the pool area at a profit. It is no doubt true that the Secretary's requirement that nonpool handlers make compensatory payments in order to sell fluid milk within the New York-Northern New Jersey pool area does limit to some extent the ability of handlers whose major business is outside the pool to dump their surplus milk into the pool at highly profitable fluid milk prices, and if this is a trade barrier the Secretary's regulation can properly be called a "trade barrier." But § 8c (5)(G) says nothing at all about prohibiting "trade barriers" or guaranteeing high profits to handlers, and if it had it would have been at cross purposes with the basic aim of the Act to have government rather than comLEHIGH VALLEY COOP. v. UNITED STATES. 105 76 BLACK, J., dissenting. petition fix the minimum prices that farmers in designated regional areas must be paid for their milk. It says only: "No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States." 11 This language contains no words or arrangement of words of any kind that would prohibit the Secretary from limiting the marketing of milk in any regional area where necessary to protect the prices fixed for that regional area. The Court, however, goes to great lengths to try to show on the basis of legislative history that Congress really meant the no-limitation clause to apply to milk as well as to milk products. • In other words the Court wants to read the statute as if Congress had said "No order shall prohibit or limit the marketing in that area of any milk or product thereof." But Congress simply did not say that. And the whole legislative history persuades me that Congress knew exactly what it was saying and that, while it intended to forbid the Secretary from making blanket prohibitions against outside milk, it also meant to leave the Secretary fr.ee to establish whatever regulations were necessary to guarantee that farmers in a price-fixing region received the regional prices he was authorized to fix even though those regulations might limit sales by outside handlers by making them unprofitable.12 Outside the language of§ Sc (5) (G) itself the clearest indication that this is the proper interpretation of the leg- 11 49 Stat. 755, 7 U. S. C. § 608c (5) (G). (Emphasis supplied.) 12 See Bailey Farm Dairy Co. v. Anderson, 15i F. 2d 87, 96; Kass v. Brannan, 196 F. 2d 791,800 (L. Hand, J., dissenting). 663026 0-62-11 106 OCTOBER TERM, 1961. BLACK, J., dissenting. 370 u. s. islative history of the Act is that an amendment which would have made the no-limitation clause applicable to milk as well as milk products was defeated on the floor of the House and that an amendment to the same effect which passed the Senate was deleted in Conference.13 The arguments of the Chairman of the House Committee on Agriculture, one of the principal architects of the program, 13 The amendment adopted by the Senate but rejected by the Conference is indicated in italics: "No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, except as provided for milk only in subsection (d), the marketing in that area of any milk or product thereof produced in any production area in the United States." 79 Cong. Rec. 11655. The wording of this amendment shows that the Court's attempted explanation of why "in any manner limit" was omitted from the final language of § 8c (5) (G) does not bear analysis. The Court's explanation is that someone might construe "limit" as prohibiting "the type of price fixing [limitation] covered by subsection (D) ." But it seems very clear that the wording of the Senate amendment was expressly designed to prevent such a construction while at the same time making "in any manner limit" applicable to milk. Consequently it seems apparent that in rejecting the Senate amendment the Conference was not refusing to apply "in any manner limit" to milk because to do so would interfere with the operation of subsection (D), but was in fact omitting that language because, to be effective, price fixing itself necessarily required limitations on the selling of outside milk within the area. This is clearly shown by the Conference Report, H. R. Rep. No. 1757, 74th Cong., 1st Sess. 21: "The Senate amendment extended this provision [ § 8c ( 5) ( G)] so that no marketing agreement or order so applicable could limit in any manner the marketing in the marketing area of milk or its products produced anywhere except that certain limitations on the marketing of milk were specifically permitted. . . . The conference agreement also denies the authority to limit in any manner the marketing in any area of milk products ... [but] does not refer to milk, and so does not negative the applicability to milk, for use in fluid form or for manufacturing purposes, of the provisions of the bill relating to milk such as the provisions on 1_Jrice fixing, price adjustment, payments for milk, etc." (Emphasis supplied.) LEHIGH VALLEY COOP. v. UNITED STATES. 107 76 BLACK, J., dissenting. against the amendment in the House show, almost conclusively, a general understanding that regional price fixing necessarily required sales from out of the region to be limited if the price fixing were to be successful: "Mr. JONES. Mr. Chairman, the adoption of the amendment of the gentleman from Wisconsin would absolutely wreck the whole milk program. In order to get away from the terriffic conditions that have prevailed in the milk industry there is provided in the bill authority to fix a minimum price to producers. That, at least in a measure, would limit or tend to limit shipment, and yet the gentleman, I am sure, does not want to interfere with the price to producers. Then it is a universal custom in the marketing of milk to classify milk. This, in a way, is a limitation. "I am perfectly willing to adopt the first amendment suggested [ the present § Sc ( 5 )( G)], because that simply treats all areas alike, for you could not prohibit someone from an outside area coming in so long as he complied with the conditions prescribed for that area; but if you said that no restrictions or limitations could be required, it would wreck the program, it would destroy every vestige of a program we have for milk." u After the Senate amendment had been rejected by the Conference and while the Conference Report was being considered in the House of Representatives, a discussion took place on the floor between Representative Hope, a member of the House Committee on Agriculture and one of the conferees, and the Chairman of the Committee who was also a conferee. This discussion shows the same understanding that the Secretary was to be left free to "79 Cong. Rec. 9572. (Emphasis supplied.) 108 OCTOBER TERM, 1961. BLACK, J., dissenting. 370 u. s. impose whatever limitations were necessary to protect the regional prices he was authorized to fix: "Mr. JONES. But the original amendments did not permit any orders governing the price to the producers? "Mr. HOPE. No; but otherwise the Secretary could make orders which would regulate the bringing in of milk from the outside into any particular milkshed, but under the amendments we are now considering the Secretary's power is limited. He cannot prohibit milk from coming in? "Mr. JONES. That is correct. "Mr. HOPE. But he can prescribe some limitations? "Mr. JONES. Yes; and he cannot prohibit the products of milk being brought into any area. "Mr. HOPE. No; but he can prescribe limitations on the importation of fluid milk. "Mr. SNELL. Then, as far as fiuid milk is concerned, it is protected in certain markets, but, as far as the other products are concerned, they are not protected. "Mr. JONES. That is correct." 1 5 These were the last comments made on the floor of the House concerning milk before the Conference Report was finally adopted. In the light of this legislative history and the Act's language itself, I cannot possibly read § 8c ( 5 )( G) or any other part of the Act to insure profitable operations to outside handlers who desire to dump surplus milk into a regional price-fixing area or to say that the Secretary lacks the power to protect by appropriate regulations the integrity of the regional prices which Congress authorized him to fix. I simply cannot believe that Congress intended to 15 79 Cong. Rec. 13022. (Emphasis supplied.) LEHIGH VALLEY COOP. v. UNITED STATES. 109 76 BLACK, J., dissenting. take away with one hand the high fixed price for milk which it gave with the other. The net result of the Court's action is to leave the farmers in the New York-Northern New Jersey pool, and those in 22 other pools containing the provisions which the Court strikes down today,16 completely defenseless against an onslaught of outside milk that is highly discriminatory because the outside milk bears none of the burdens of pool milk. I say completely defenseless despite the fact that the Court intimates that the Secretary might possibly devise some alternative compensatory payment plan that would satisfy the exacting standards which it lays down today. My first reason for saying this is that I do not see how any formula that the Secretary could devise under the Court's expanded interpretation of the word "prohibit" in § 8c ( 5 )( G) would protect pool members from unfair competition by outside handlers who are by the Court's decision given the advantages but not required to bear the burdens of the pool.11 16 See note 9 of the Court's opinion. At least 18 other pools apply a compensatory payment provision like the one in this case for at least part of the year. See note 13 of the Court's opinion. 17 Certainly neither of the formulas which the Court in its note 13 intimates might be proper would protect the farmers in the pool, for neither of these formulas evf'n goes so far as to wipe out the discriminatory advantage that unregulated outside milk has over pool milk. In sustaining the Secretary's regulation in this case the Judicial Officer relied in part on the following reasons: "[T]he marketwide pool existing under Order No. 27, as amended, carries the long-time and seasonal reserves of milk for numerous secondary markets in Pennsylvania and the Northeastern States. The New York-New Jersey market carries the surplus burden for outside handlers who distribute some milk in the marketing area. These handlers usually have a relatively high percentage of their milk in fluid milk utilization and this utilization is considerably higher than the average for the market regulated by Order No. 27. This higher utilization, 0f course, results in a competitive advantage in milk procurement to the outside handler as against the regulated handler and llO OCTOBER TERM, 1961. BLACK, J., dissenting. 370U.S. Secondly, even if such a formula were possible I doubt that a single member of this Court has the technical knowledge about the complicated workings of the milk industry to formulate a sound substitute for the compensatory payment plan which the Court strikes down-a regulatory plan which represents more than a quarter century of daily practical experience in administering the congressional farm plan. Thirdly, in any event the Court's vague intimations that some compensatory payment plan might be valid are hardly sufficient to furnish the Secretary with any guidance at all as to what formula if any the Court would permit him to use to protect the farmers in this pool from the effects of being compelled to compete with outside "free riders." I think that if the Court really does believe that the Secretary has any power at all to prevent pool farmers from being subjected to discriminatory competition from outside "free riders" it should state in clear and precise outside and regulated handlers draw on the same production area for supplies. Furthermore, the regulated handler has to equalize his utilization with other handlers and his producers are paid on the basis of a uniform price reflecting the utilization in the market as a whole rather than his individual utilization." Thus, a compensatory payment, such as the Court suggests, based on the difference between the fluid price and the blend price obviously would do nothing at all to wipe out the advantage that the outside handler has because of his higher fluid-surplus ratio which is due, as shown above, to (1) the fact that the pool carries part of his area's surplus and (2) the fact that he does not have to equalize his own utilization as do pool handlers. Only a compensatory payment which gives the outside handler less for his surplus milk than the pool farmer gets will narrow the competitive advantage which outside milk has. A compensatory payment based on the difference between the fluid price and actual cost, the other alternative suggested by the Court, would obviously be even more subject to this same defect than the fluid-blend price compensatory payment. See also Hutt, Restrictions on the Free lvlovement of Fluid Milk Under Federal Milk Marketing Orders, 37 U. Det. L. J. 525, 573-576, particularly at note 220. LEHIGH VALLEY COOP. v. UNITED STATES. 111 76 BLACK, J., dissenting. terms what those powers are and inform the Secretary how he can meet this Court's requirements. The Court should then remand this case to allow the Secretary to take the action which it will approve, permit him to determine the amount that he could properly under its standards have required these handlers to pay and direct that the District Court pay over that amount to the Secretary out of the funds now in its possession. This plan would at least offer the farmers in this pool some protection against having to pay out all of the more than $700,000 in compensatory payments which has already been collected from these handlers. Such a plan was followed in United States v. Morgan,18 and there is every reason in equity and good conscience why it should be followed here. In that case the District Court enjoined an order of the Secretary but required the party challenging the order to pay into court sufficient funds to effect compliance with the order if it should ultimately be found valid. This Court found the order defective but nevertheless ordered the District Court not to return the fund, which then contained over a half million dollars. On the contrary, over strong dissents urging that the Secretary only had power to issue a new order for the future, this Court commanded that the fund be retained until the Secretary could make new findings and enter a new order so that the fund could be disposed of under a proper determination of the Secretary, stating that: "Due regard for the discharge of the court's own responsibility to the litigants and to the public and the appropriate exercise of its discretion in such manner as to effectuate the policy of the Act and facilitate administration of the system which it has set up, require retention of the fund by the district court 18 307 U. S. 183. Cf. Inland Steel Co. v. United States, 306 U. S. 153. 112 OCTOBER TERM, 1961. BLACK, J ., dissenting. 370 u. s. until such time as the Secretary, proceeding with due expedition, shall have entered a final order in the proceedings pending before him." 19 Following this decision the Secretary held new hearings, made new findings and entered a new order, according to which this Court in a later United States v. Morgan 20 ordered the more than one-half-million-dollar fund distributed. Despite the fact that the Court purports not to pass either on the validity of requiring all handlers to bear the full burdens of pool membership or upon the ability of the Secretary to apply against these handlers any future scheme of regulation which meets the Court's standards for the period here in question,21 it seems clear that in failing to follow the Morgan procedure the Court in effect rules against the Secretary on both these questions. This is because the Court's refusal to pass specifically on these questions leaves standing the District Court's holding that the Secretary cannot require these handlers to bear the full burdens of pool membership for the period during which the compensatory payments struck down here were made. The regulation under which the Secretary claims that these handlers are subject to the full burdens of pool membership is a part of the same section 22 as the one under which the handlers made the compensatory payments of which they com- 19 307 U.S., at 198. 20 313 U. S. 409. 21 The Court's citation of Morgan v. United States, 304 U. S. 1, 23, as purported justification for its avoidance of this issue is particularly appropriate, and I fear prophetic. For m large part due to this Court's avoidance of a similar issue in the Morgan case, that case wandered through the courts for almost eight years, including four trips to this Court. 22 7 CFR § 1002.29 (d). LEHIGH VALLEY COOP. v. UNITED STATES. 113 76 BLACK, J., dissenting. plain. That section provides that all handlers like petitioners are pool handlers and required to bear all the burdens of pool membership unless they elect to be nonpool handlers and make compensatory payments. The Secretary's contention is that once the part of the regulation which provides for the compensatory payment is struck down, as the Court does here, the remainder of the regulation which requires all handlers to be pool handlers applies. By remanding this case to the District Court which has already ruled adversely on this claim the Court without so much as saying a single word on this point effectively prevents the Secretary from trying to protect pool farmers from free-riding outside milk by treating these handlers as pool members for the period here in dispute. The full effect of the Court's failure to follow the Morgan procedure and decide whether the Secretary's provisions for full regulation of these handlers are valid, or just what the Secretary could do to protect the prices he has fixed, is in my opinion likely to be a wholly unjust and inequitable windfall of over $700,000 to the handlers, since it will ultimately have to come out of the pockets of the farmers who bear the burdens of this pool. How many more such windfalls to other handlers involving how many countless thousands of dollars in this and the other 22 similarly situated pools the Court's action will bring one can only guess.23 One familiar with the Act and its history need not guess, however, about the fact that such a result would have been abhorrent to the Congress which passed this Act for the benefit of farmers. I would affirm the decision of the court below which upheld the Secretary. 23 A suit involving the provision of the Cleveland order similar to the one struck down here has already found its way into court. See Lawson Milk Co. v. Benson, 187 F. Supp. 66, appeal pending. 114 OCTOBER TERM, 1961. Syllabus. 370U.S. CALBECK, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES' COMPENSATION, v. TRAVELERS INSURANCE co. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 532. Argued April 23, 1962.-Decided June 4, 1962.* 1. Injuries sustained by employees working on new vessels under construction and afloat upon navigable waters are not excluded from the coverage of the Longshoremen's and Harbor Workers' Compensation Act by § 3 (a) thereof although recovery for such injuries may validly be had under a state workmen's compensation law. Pp. 115-131. 2. Acceptance by such an employee of payments under a state workmen's compensation law does not constitute an election of the remedy under the state law which precludes recovery under the Longshoremen's Act. Pp. 131-132. 293 F. 2d 51, 52, reversed. Solicitor General Cox argued the cause for petitioners. With him on the briefs were Assistant Attorney General Orr·ick, Bruce J. Terris, Morton Hollander and David L. Rose. Louis V. Nelson argued the cause for Travelers Insurance Co. et al., respondents. With him on the briefs was Ewell Strong. Charles Kohlmeyer, Jr. argued the cause and filed a brief for Avondale Shipyards, Inc., respondent. Briefs of amici curiae, urging reversal, were filed by Raymond H. Kierr and Samuel C. Gainsburgh for Minus Aizen, and by Herman Wright for McGuyer's widow and children. *Together with Donovan, Deputy Commissioner, v. Avondale Shipyards, Inc. CALBECK v. TRAVELERS INSURANCE CO. 115 114 Opinion of the Court. MR. JUSTICE BRENNAN delivered the opinion of the Court. Section 3 (a) of the Longshoremen's and Harbor Workers' Compensation Act provides that compensation shall be paid only for injuries occurring on navigable waters "and if recovery . . . through workmen's compensation proceedings may not validly be provided by State law." 1 In each of these cases the petitioner is a Deputy Commissioner who based an award of compensation under the Act on findings that the employee was engaged at the time of his injury in the work of completing the construction of a vessel afloat on navigable waters.2 1 The Act, 44 Stat. 1424, as amended, is comprised in 33 U. S. C. §§ 901-950. Section 3 (a), 33 U.S. C. § 903 (a), reads: "(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of- " (1) A master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or "(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof." 2 In the Calbeck case the employee, Roger McGuyer, was a welder in the employ of the Levingston Shipbuilding Company which owns and operates a shipyard on the navigable Sabine River, between Orange, Texas, and Calcasieu Parish, Louisiana. McGuyer worked both on the repair of completed vessels and on vessels under construction. He was injured while working on an uncompleted drilling barge which had been launched and was floating on the Sabine River while its superstructure was under construction. In the Donovan case the employee, Minus Aizen, was also a welder. His employer was Avondale Marine Ways, Inc., which operated two shipyards near New Orleans. Aizen had worked only on new construction although fellow employees worked both on new construe116 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Before the Longshoremen's Act was passed, this Court had sustained the validity of a state workmen's compensation statute as applied to injuries suffered by an employee engaged in the completion of a launched vessel under construction on navigable waters, Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, but had made clear that state compensation statutes could not, constitutionally, be applied to injuries to employees engaged in repair work on completed vessels on navigable waters.3 The court below interpreted § 3 (a) as adopting this distinction and so set aside both awards, thus holding that a shipyard worker's right to compensation under the Act, if his injury is incurred on a vessel, depends not only on whether the vessel is on navigable waters, but also on whether the vessel was under repair rather than under construction. Avondale Shipyards, Inc., v. Donovan, 293 F. 2d 51; Travelers Insurance Co. v. Calbeck, 293 F. 2d 52. We granted certiorari because of the importance of the interpretation of§ 3 (a) in the administration of the Act. 368 U.S. 946. We reverse the judgments of the Court of Appeals and affirm the judgments of the District Courts sustaining the awards. The Court of Appeals' interpretation of § 3 (a) would, if correct, have the effect of excepting from the Act's coverage not only the injuries suffered by employees while engaged in ship construction but also any other injurieseven though incurred on navigable waters and so within tion and on repair work. He was injured while welding on an oil drilling barge which had been launched and was floating on the navigable waters of the Mississippi River while her construction was being completed. 3 See Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479; Gonsalves v. Morse Dry Dock & Repair Co., 266 U.S. 171; Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449. See also Baizley Iron Works v. Span, 281 U.S. 222, 230-232. CALBECK v. TRAVELERS INSURANCE CO. 117 114 Opinion of the Court. the reach of Congress-for which a state law could, constitutionally, provide compensation. But the Court of Appeals' interpretation is incorrect. The history of the Act, and of § 3 (a) in particular, contravenes it; and our decisions construing § 3 (a) have rejected it. Our conclusion is that Congress invoked its constitutional power so as to provide compensation for a11 injuries sustained by employees on navigable waters 4 whether or not a particular injury might also have been within th_e constitutional reach of a state workmen's compensation law. The Longshoremen's Act was passed in 1927. The Congress which enacted it would have preferred to leave to state compensation laws the matter of injuries sustained by employees on navigable waters within state boundaries. However, in 1917 this Court had decided in Southern Pacific Co. v. Jensen, 244 U. S. 205, that the New York Compensation Act could not, constitutiona1ly, be applied to an injury sustained on a gangplank between a vessel and a wharf.5 It was held that the matter was outside state cognizance and exclusively within federal maritime jurisdiction, since to hold otherwise would impair the harmony and uniformity which the constitutional grant to the Federal Government of the admiralty power was meant to assure. While the Court acknowledged • Our use of the term "employees" throughout this opinion excludes those special categories described in subsections (1) and (2) of§ 3 (a), see note 1, supra; and assumes that they are employed by an "employer" as defined in § 2 (4), 33 U. S. C. § 902 (4), i. e., "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock)." 5 The constitutionality of the New York statute in other respects was sustained at the same Term. New York Central R. Co. v. White, 243 U.S. 188. The validity of the Washington and Iowa statutes was also upheld. Mountain Timber Co. v. Washington, 243 U. S. 219; Hawkins v. Bleakly, 243 U. S. 210. 118 OCTOBER TERM, 1961. Opinion of the Court. 370U. S. that "it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation," 244 U. S., at 216, the opinion appeared to foreclose the application of a state compensation remedy to any maritime injury. The Jensen decision deprived many thousands of employees of the benefits of workmen's compensation. Congress twice attempted to deal with the situation by legislation expressly allowing state compensation statutes to operate. Act of October 6, 1917, 40 Stat. 395; Act of June 10, 1922, 42 Stat. 634. But this Court struck down both statutes as unconstitutional delegations to the States of the legislative power of Congress, and as tending to defeat the purpose of the Constitution to achieve harmony and uniformity in the maritime law. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149; Washington v. Dawson & Co., 264 U. S. 219. Meanwhile the Court handed down a number of decisions which appeared to modify Jensen by permitting States to apply their statutes to some maritime injuries. But we must candidly acknowledge that the decisions between 1917 and 1926 produced no reliable determinant of valid state law coverage. In Western Fuel Co. v. Garcia, 257 U. S. 233, decided in 1921, the Court upheld the jurisdiction of a United States District Court to entertain a libel in admiralty for damages for the death of a longshoreman under a state wrongful death statute. The Court reasoned that while the subject was maritime it was "local in character" and that application of the state statute "will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations." 257 U. S., at 242. CALBECK v. TRAVELERS INSURANCE CO. 119 114 Opinion of the Court. Just a month later the Court decided Grant Smith- Porter Ship Co. v. Rohde, supra, where, as in the cases before us, a shipbuilder's employee was injured while at work on new construction afloat on navigable waters. He recovered a judgment under a libel in admiralty, although Oregon had a state workmen's compensation law which made the remedy thereunder exclusive of all other claims against the employer on account of the injury. This Court reversed that judgment, holding that the accident was among those "certain local matters regulation of which [by the States] would work no material prejudice to the general maritime law." 257 U.S., at 477. No dependable definition of the area-described as "maritime but local," or "of local concern"-where state laws could apply ever emerged from the many cases which dealt with the matter in this and the lower courts. The surest that could be said was that any particular injury might be within the area of "local concern," depending upon its peculiar facts. In numerous situations state acts were considered inapplicable because they were thought to work material prejudice to the characteristic features of the general maritime law, particularly in cases of employees engaged in repair work.6 On the other hand, awards under state compensation acts were sustained in situations wherein the effect on uniformity was often difficult to distinguish from those found to be outside the purview of state laws.7 Thus, the problem which confronted Congress in 1927 had two facets. One was that the failure of Congress' 6 See, e. g., Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479; Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171 ; Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449. 7 See, e. g., State Commission v. Nordenholt Corp., 259 U. S. 263; Millers' Indemnity Underwriters v. Braud, 270 U.S. 59. 120 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. attempts to shelter the employees under state compensation laws rendered it certain that for many maritime injuries no compensation remedy wa.s available. The other was that the course of judicial decision had created substantial working uncertainty in the administration of compensation. Congress turned to a uniform federal compensation law as an instrument for dealing with both facets. Indeed, the Court in Dawson had invited such consideration, saying: "Without doubt Congress has power to alter, amend or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enactment of a general employers' liability law or general provisions for compensating injured employees; but it may not be delegated to the several States." 264 U.S., at 227. The proposal of a uniform federal compensation act had the unqualified support of both employers and employee representatives. Workmen's compensation had gained wide acceptance throughout the country and State after State was enacting it.8 But hard battles were fought in committee and on the floor in both Houses of Congress over the form of the law. The bill introduced in the Senate, S. 3170, became the basis of the law. There emerges from the complete legislative history 9 a congressional desire for a statute which would provide federal compensation for all injuries to employees on navigable waters; in every case, that is, where Jensen 8 See 1 Larson, The Law of Workmen's Compensation,§§ 4.10-5.30. 9 Hearings before the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess.; Hearings before the House Judiciary Committee on S. 3170, 69th Cong., 1st Sess.; S. Rep. No. 973, 69th Cong., 1st Sess.; H. R. Rep. No. 1767, 69th Cong., 2d Sess. See also H. R. Rep. No. 1190, 69th Cong., 1st Sess. (accompanying H. R. 12063); Hearings before the House Judiciary Committee on H. R. 9498, 69th Cong., 1st Sess. CALBECK v. TRAVELERS INSURANCE CO. 121 114 Opinion of the Court. might have seemed to preclude state compensation. The statute's framers adopted this scheme in the Act because they meant to assure the existence of a compensation remedy for every such injury,10 without leav- 10 See S. Rep. No. 973, 69th Cong., 1st Sess., at 16: "The purpose of this bill is to provide for compensation, in the stead of liability, for a class of employees commonly known as 'longshoremen.' These men are mainly employed in loading, unloading, refitting, and repairing ships; but it should be remarked that injuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States. There are in the neighborhood of 300,000 men so employed in the entire country. "The committee deems it unnecessary to comment upon the modern change in the relation between employers and employees establishing systems of compensation as distinguished from liability. Nearly every State in the Union has a compensation law through which employees are compensated for injuries occurring in the course of their employment without regard to negligence on the part of the employer or contributory negligence on the part of the employee. If longshoremen could avail themselves of the benefits of State compensation laws, there would be no occasion for this legislation; but, unfortunately, they are excluded from these laws by reason of the character of their employment; and they are not only excluded but the Supreme Court has more than once held that Federal legislation can not, constitutionally, be enacted that will apply State laws to this occupation. (Southern Pacific Co. v. Jensen, 244 U. S. 205; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; Washington v. Dawson & Co., 264 U. S. 219.) "It thus appears that there is no way of giving to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation without enacting a uniform compensation statute." To like effect is H. R. Rep. No. 1190, 69th Cong., 1st Sess., at 1, 3: "This bill provides compensation for employees injured ... in certain maritime employments . . . . The principal wage earners provided for are longshoremen . . . . Next in importance are the ship repairmen-carpenters, painters, boiler makers, etc. Congressional action is necessary if these wage earners are to be given the benefits of workmen's compensation owing to the provisions of 663026 0-62-12 122 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. ing employees at the mercy of the uncertainty, expense, and delay of fighting out in litigation whether their particular cases fell within or without state acts under the "local concern" doctrine. The gravity of the problem of uncertainty was emphasized when § 3 of S. 3170 in its original form was under discussion at the Senate Hearings. That version of § 3 provided: "This act shall apply to any employment performed on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce; but shall not apply to employment as master or member of the crew of a vessel."· (Emphasis supplied.) The Chairman of the Senate Committee perceived that to create an exemption for "employment of local concern" threatened to perpetuate the very uncertainties of coverage that Congress wished to avoid.'1 The danger was the Constitution of the United States and the decisions of the Supreme Court thereunder. . . . The committee ... recommends that this humanitarian legislation be speedily enacted into law so that this class of workers, practically the only class without the benefit of workmen's compensation, may be afforded this protection, which has come to be almost universally recognized as necessary in the interest of social justice between employer and employee." H. R. Rep. No. 1767, 69th Cong., 2d Bess., at 20, makes clear that the House was desirous of legislation whereby Congress could "discharge its obligation to the maritime workers placed under their jurisdiction by the Constitution of the United States by providing for them a law whereby they may receive the benefits of workmen's compensation and thus afford them the same remedies that have been provided by legislation for those killed or injured in the course of their employment in nearly every State in the Union." 11 The following colloquy occurred between the Chairman, Senator Cummins, and an employer spokesman who was testifying: "The CHAIRMAN. That term [employment of local concern] was used in one of the decisions of the Supreme Court, probably, but, in its application, just what does it mean? [Footnote 11 continued on p. 123] CALBECK v. TRAVELERS INSURANCE CO. 123 114 Opinion of the Court. underlined by objections on behalf of two large employer groups. They not only expressed concern about the practical problems created by the line between new construction and repair, Senate Hearings, at 92-93, but also about the broader implications of the wording: "This provision is indefinite. The exception of 'employment of local concern and of no direct relation to navigation and commerce' is vague and will be the subject of continual litigation. Innumerable claims will become legal questions requiring determination by the courts." Senate Hearings, at 95. We are not privy to the Committee deliberations at which it was decided to drop the "local concern" language from § 3 and substitute the language now in the statute. We think it a reasonable inference that the Committee concluded that the exemption for "employment of local "Mr. BROWN. Unless there is something in connection with admiralty law which qualifies it, I should say it is a very vague thing, and we can not understand what it means. The phrase 'of no direct relation to navigation and commerce' is another questionable proposition, whether the coverage of this bill might not apply to a man on the docks. Some of my friends seem to think that it would not apply to the man on the docks, that the State law:;: now apply, and it was said in the same decision [ the witness referred to Rohde, supra, but the quoted language is found in Nordenholt, supra, note 7, at 276]: "There is no pertinent Federal statute and application of a local law will not work material prejudice to any characteristic feature of the maritime law. "The CHAIRMAN. We certainly can find some language that will describe these people that we intend to protect, but I am not sure whether this is the most accurate language that can be found. "Mr. BROWN. I think that is true. I think that you could not only find language that would prescribe the coverage accurately, but I think that language could be devised that would be eminently satisfactory to everybody in [an] act that would incorporate the purposes which are, perhaps, behind this." Senate Hearings, at 57. 124 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. concern" would defeat the objective of avoiding the uncertainty created by Jensen and its progeny. The action of the House Committee, when S. 3170 as revised in the Senate came before it, discloses similar preoccupations. The House Committee rewrote § 3 to omit both the original "local concern" language and the Senate sul:stitute.12 A parliamentary obstacle on an unrelated issue led to the House Committee's finally accepting the Senate version.la In sum, it appears that the Longshoremen's Act was designed to ensure that a compensation remedy existed for all injuries sustained by employees on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy. Section 3 (a) should, then, be construed to achieve these purposes. Plainly, the Court of Appeals' interpretation, fixing the boundaries of federal coverage where the outer limits of state competence had been left by the pre-1927 constitutional decisions, does not achieve them. In the first place, the contours of the "local concern" concept were and have remained necessarily vague and 12 Section 3 as redrafted by the House Committee, H. R. Rep. No. 1767, 69th Cong., 2d Sess., at 2, was as follows: "SEc. 3. This act shall apply to any maritime employment performed- " (a) Upon the navigable waters of the United States, including any dry dock; or "(b) As master or member of a crew of a barge, lighter, tug, dredge, vessel, or other ocean, lake, river, canal, harbor, or floating craft owned by a citizen of the United States." 13 The House Committee could not obtain a rule from the House Rules Committee until it amended the bill to exclude seamen from coverage. 68 Cong. Rec. 5410, 5412. Rather than rewrite§ 3 again the Committee adopted the Senate version. See id., 5403-5404, 5410, 5412, explaining that the effect was to exclude seamen from coverage. CALBECK v. TRAVELERS INSURANCE CO. 125 114 Opinion of the Court. uncertain. There has never been any method of staking them out except litigation in particular cases. In the second place, to conclude that federal coverage extends to the limits of navigable waters, except in those cases where a state compensation remedy "may" constitutionally be provided, would mean that, contrary to the congressional purpose, some injuries to employees on navigable waters might not be compensable under any statute. A vacuum would exist as to any injury which, although occurring within the constitutional domain of "local concern," was in fact not covered by any state statute. A restriction of federal coverage short of the limits of the maritime jurisdiction could have avoided defeating the objective of assuring a compensation remedy for every injury on navigable waters only if Congress had provided that federal compensation would reach any case not actually covered by a state statute. But in order to have accomplished this result, the statute would have had to withdraw federal coverage, not wherever a state compensation remedy "may be" validly provided, but only wherever a state compensation remedy "is" validly provided. Even if a court could properly read "may be" as meaning "is," such a reading would make federal coverage in the "local concern" area depend on whether or not a state legislature had taken certain action-an intention plainly not to be imputed to a Congress whose recent efforts to leave the matter entirely to the States had twice been struck down as unconstitutional delegations of congressional power. Finally, there would have been no imaginable purpose in carving the area of "local concern" out of the federal coverage except to leave the greatest possible number of cases exclusively to the States. The price of such an objective would have included the adoption of whatever seemingly anomalous distinctions the courts might have 126 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. developed in articulating the contours of "local concern," as well as the risk of a total failure of compensation in cases within the "local concern" realm for which no state compensation had been provided. And in any event, a congressional purpose to leave the maximum possible business exclusively to the States would negate the Court of Appeals' reading of the line of demarcation as a static one fixed at pre-1927 constitutional decisions. Such a purpose would require, rather, that federal coverage expand and recede in harness with developments in constitutional interpretation as to the scope of state power to compensate injuries on navigable waters. But that would mean that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies; and that each and every award of federal compensation would equally be a constitutionally premised denial of state competence in a like situation. We cannot conclude that Congress imposed such a burden on the administration of compensation by thus perpetuating the confusion generated by Jensen. To dispel that confusion was one of the chief purposes of the Longshoremen's Act. We conclude that Congress used the phrase "if recovery ... may not validly be provided by State law" in a sense consistent with the delineation of coverage as reaching injuries occurring on navigable waters. By that language Congress reiterated that the Act reached all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy." Congress brought under the coverage of the 14 The Committee reports, note 10, supra, make no reference to the "local concern" doctrine or the cases applying it. They explain CALBECK v. TRAVELERS INSURANCE CO. 127 114 Opinion of the Court. Act all such injuries whether or not a particular one was also within the constitutional reach of a state workmen's compensation law.15 Our previous decisions under the Act are entirely consistent with our conclusion. In Parker v. Motor Boat Sales, Inc., 314 U.S. 244, an employee of a seller of small boats, maritime supplies and outboard motors, hired primarily as a janitor and porter, was drowned when a boat in which he was riding capsized on the James River off Richmond, Virginia. The boat belonged to a customer of his employer and he and a fellow employee were testing one of the employer's outboard motors for which the boatowner was a prospective purchaser. The Court of Appeals for the Fourth Circuit had held that the employee's work was "so local in character" that Virginia could validly have included it under a state workmen's compensation act, and so had set aside an award to the employee's dependents under the Longshoremen's Act. This Court reversed. We noted that "it is not doubted that Congress could constitutionally have provided for recovery under a federal statute in this kind of situation. The question is whether Congress has so provided in this the problem in terms of the limitations on the availability of state remedies imposed by the Court's decisions in Jensen, Knickerbocker, and Dawson. 15 We attach no significance to Opinion No. 7, September 2, 1927, of the Employees' Compensation Commission {now the Bureau of Employees' Compensation) stating that the Commission "will take no action under the longshoremen's act against an employer engaged only in the construction of vessels who does not comply with the act, nor against any employer engaged in the construction and repair of vessels who secures payment of compensation to employees while employed on repair work on a vessel in a dry dock or on marine ways." The Department was not foreclosed in the instant cases from changing an interpretation of the statute which was clear error. Automobile Club of Michigan v. Commissioner, 353 U. S. 180. 128 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. statute" in the light of § 3 (a). 314 U. S., at 248. The Court held that § 3 (a) did not exclude coverage under the Act, saying: "There can be no doubt that the purpose of the Act was to provide for federal compensation in the area which the specific decisions referred to [in the Senate Report- Jensen, Knickerbocker, and Dawson-] placed beyond the reach of the states. The proviso permitting recovery only where compensation 'may not validly be provided by State law' cannot be read in a manner that would defeat this purpose." 314 U. S., at 249-250. We thus held that whatever may be § 3 (a)'s "subtraction from the scope of the Act," id., at 249, the Act's adoption of the Jensen line between admiralty and state jurisdiction as the limit of federal coverage included no exception for matters of "local concern." In Davis v. Department of Labor, 317 U. S. 249, a structural steel worker engaged in dismantling a bridge across a navigable river was cutting and stowing dismantled steel in a barge when he fell into the river from the barge and was drowned. His dependents sought compensation under the state act and this Court held that it could be applied. The result was not predicated on the ground that the employment was "maritime but local," and so outside the coverage of the Longshoremen's Act. Rather the Court viewed the case as in a "twilight zone" where the applicability of state law was "extremely difficult" to determine, and resolved the doubt, of course, in favor of the constitutionality of the application of state law. At the same time, the Court indicated that compensation might also have been sought under the Longshoremen's Act and that an award under that Act in the very same circumstances would have been supportable, pointing out that the Act adopts "the Jensen line of demarcation." 317 U.S., at 256. The conclusion that the Longshoremen's Act might have applied without regard CALBECK v. TRAVELERS INSURANCE CO. 129 114 Opinion of the Court. to whether the situation might be "maritime but local" plainly implies a rejection of any reading of § 3 (a) to exclude coverage in such situation. The issue in Avondale Marine Ways, Inc., v. Henderson, 346 U. S. 366, was whether compensation was available under the Longshoremen's Act for the death of an employee killed while engaged in the repair of a vessel which was then physically located on land, but on a marine railway. Since a marine railway was considered to be a "dry dock," the injury satisfied § 3 (a)'s requirement that it occur "upon ... navigable waters," defined in § 3 as "including any dry dock." At the same time, since the injury did, in a physical sense, occur on land, there is little doubt that a state compensation act could validly have been applied to it. See State Commission v. Nordenholt Corp., 259 U. S. 263. Nevertheless, this Court affirmed an award of compensation under the Federal Act in a per curiam opinion. The legislative history and our decisions had been read consistently with the views expressed herein by the Court of Appeals for the Fifth Circuit before the decisions in the present cases. Judge Hutcheson said for the court in De Bardeleben Coal Corp. v. Henderson, 142 F. 2d 481, 483-484: "Before the Parker case ,vas decided ... this court, in Continental Casualty Co. v. Lawson, 5 Cir., 64 F. 2d 802,804, announced the view that the federal compensation laws should be liberally construed to cover every case where the injury occurred on navigable waters and where within the rule of [Jensen] ... the action would have been in admiralty. In that case we said: " 'The question whether jurisdiction over a maritime tort could be asserted under the compensation 130 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. laws of the states, or existed exclusively in admiralty, was an important one when the decisions were rendered in the Rohde . . . and other similar cases . . . but since the passage of this act ( the Federal Workmen's Compensation Act) the importance of that question has largely disappeared. . . . The elaborate provisions of the Act, viewed in the light of prior Congressional legislation as interpreted by the Supreme Court, leaves no room for doubt, as it appears to us, that Congress intended to exercise to the fullest extent all the power and jurisdiction it had over the subject-matter. . . .' "The Parker case, supra, substantially adopts this view . . . . As the Parker case pointed out, it is not at aH necessary now to redetermine the correctness vel non of the Jensen case or of any of [its] brood . . . . It is sufficient to say that Congress intended the compensation act to have a coverage co-extensive with the limits of its authority and that the provision 'if recovery . . . may not validly be provided by State law' was placed in the act not as a relinquishment of any part of the field which Congress could validly occupy but only to save the act from judicial condemnation, by making it clear that it did not intend to legislate beyond its constitutional powers. . . . In the application of the act, therefore, the broadest ground it permits of should be taken. No ground should be yielded to state jurisdiction in cases falling within the principle of the Jensen case merely because the Supreme Court, before the Federal Compensation Law went into effect, did here a little, there a little, chip and whittle Jensen down in the mass of conflicting and contradictory decisions in which it advanced and applied the 'local concern' doctrine to save to employees CALBECK v. TRAVELERS INSURANCE CO. 131 114 Opinion of the Court. injured on navigable waters, and otherwise remediless, the remedies state compensation laws afforded them. . . . This is what we held in the Lawson case, what the Supreme Court held in the Parker case, supra .... " We turn finally to a question raised only in Donovan v. Avondale Shipyards. The employer contends that the employee accepted benefits under the Louisiana State Compensation Act and that this constitutes an election of remedies which bars prosecution of his claim under the Longshoremen's Act. Compensation payments may be made under the Louisiana Compensation Act without a prior administrative proceeding. Before the federal claim was filed Avondale made payments to the employee for some two years and three months at the maximum rate provided by the Louisiana statute. The employee accepted the checks which bore a notation on their face that they were payments of compensation under the state act. In addition Avondale advanced a substantial sum to the employee to be credited against future compensation payments. Avondale also paid medical expenses for the employee's account in excess of the maximum liability imposed by the Louisiana statute. In the compensation order entered by Deputy Commissioner Donovan under the Longshoremen's Act the full amount of all payments made by the employer was credited against the award, and no impermissible double recovery is possible. We hold that the acceptance of the payments does not constitute an election of the remedy under state law precluding recovery under the Longshoremen's Act. Nothing in the statute requires a contrary result. And we agree that the circumstances do not support a finding of a binding election to look solely to the state law for recovery. Massachusetts Bonding & Insurance Co. v. Lawson, 149 132 OCTOBER TERM, 1961. STEWART, J., dissenting. 370 u. s. F. 2d 853; Newport News Shipbuilding & Dry Dock Co. v. O'Hearne, 192 F. 2d 968; Western Boat Building Co. v. O'Leary, 198 F. 2d 409.16 The judgments of the Court of Appeals are reversed and the judgments of the District Courts are affirmed. It is so ordered. MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE STEWART, whom MR. JUSTICE HARLAN joins, dissenting. In the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. §§ 901-950, Congress carefully provided for the recovery of benefits only "if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law." 33 U.S. C. § 903 (a). Now, thirty-five years later, the Court concludes that Congress did not really mean what it said. I cannot join in this exercise in judicial legerdemain. I think the statute still means what it says, and what it has always been thought to mean-namely, that there can be no recovery under the Act in cases where the State may constitutionally confer a workmen's compensation remedy. While the result reached today may be a desirable one, it is simply not what the law provides. I seriously doubt whether statutory language as clear as that in 33 U. S. C. § 903 (a) could ever be ignored in the name of effectuating the supposed "Congressional desire." Be that as it may, this particular statutory Ian- 16 Section 5 of the Longshoremen's Act, 33 U. S. C. § 905, which makes liability under the Act "exclusive . . . of all other liability . . . to the employee, his legal representative ... and anyone otherwise entitled to recover damages ... at law or in admiralty ... " is not involved in this case. CALBECK v. TRAVELERS INSURANCE CO. 133 ll4 STEWART, J., dissenting. guage does in fact reflect the purpose of Congress, which was only to provide compensation for those whom this Court's decisions had barred from the benefits of state workmen's compensation laws. And at the time of the passage of this federal law the Court had squarely held, as Congress well knew, that state workmen's compensation remedies were constitutionally available to workers who, as in the present cases, were engaged in new ship construction on navigable waters. The Longshoremen's and Harbor \Vorkers' Compensation Act was the culmination of a series of events beginning with this Court's decision in Southern Pacific Co. v. Jensen, 244 U. S. 205, which held that the New York Workmen's Compensation Act could not constitutionally be applied to a stevedore unloading a vessel on navigable waters, because to do so would impair the uniformity of the general maritime law. Within five months after the Jensen decision Congress passed legislation which attempted to give injured maritime employees "the rights and remedies under the workmen's compensation law of any State." 40 Stat. 395. This legislation was declared unconstitutional as an invalid attempt to delegate federal power to the States. Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. A second statute, 42 Stat. 634, similar in approach to the first, was declared invalid in Washington v. Dawson & Co., 264 U. S. 219. Meanwhile, the Court was backing away somewhat from Jensen by recognizing that where the general employment and particular activities connected with an injury or death were local in character, though maritime in nature, state law could provide redress without disturbing the uniformity of the general maritime law. The maritime but local doctrine, first applied in connection with a state wrongful death statute, Western Fuel Co. v. Garcw, 257 U. S. 233, provided the basis for holding that a state compensation act could be applied to a worker 134 OCTOBER TERM, 1961. STEWART, J., dissenting. 370 u. s. engaged in the construction of a new vessel which, while uncompleted, was afloat on navigable waters. Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469.1 Against this background Congress made its third and ultimately successful attempt to provide compensation for maritime employees deprived by the Jensen rule of state compensation remedies. Seizing upon a suggestion made by the Court in Washing ton v. Dawson & Co., supra, Congress turned its attention in the direction of a uniform federal compensation act. The Longshoremen's and Harbor Workers' Compensation Act was the result. In the previous two attempts to circumvent Jensen Congress had indicated its belief that the compensation remedy could best be supplied by the States. It is obvious that in the new Act Congress did not depart from this basic approach, either by making federal law applicable where state law could apply, or by giving the injured employee a choice of remedies. Congress had simply been informed by decisions of this Court that a compensation remedy could be provided for certain maritime injuries only through a uniform federal law, and the federal legislation was enacted only to fill the gap created by those decisions. The legislative materials connected with the Act fully support this conclusion. It was repeatedly emphasized that the purpose of the Act was to provide a compensation remedy for those who could not obtain such relief under state law. "If longshoremen could avail themselves of the benefits of State compensation laws, there would be no occasion for this legislation; but, unfortu- 1 During this same period the Court consistently held that the principles of Jensen prohibited the application of state compensation laws to workers engaged in the repair of existing vessels. Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449; Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171; Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479. CALBECK v. TRAVELERS INSURANCE CO. 135 114 STEWART, J., dissenting. nately, they are excluded from these laws by reason of the character of their employment; and they are not only excluded but the Supreme Court has more than once held that Federal legislation can not, constitutionally, be enacted that will apply State laws to this occupation." S. Rep. No. 973, 69th Cong., 1st Sess., at 16. "The committee ... recommends that this humanitarian legislation be speedily enacted into law so that this class of workers, practically the only class without the benefit of workmen's compensation, may be afforded this protection .... " H. R. Rep. No. 1190, 69th Cong., 1st Sess., at 3. The chairman of the subcommittee conducting hearings on the bill categorically stated that "we are proceeding on the theory that these people can not be compensated under the New York compensation law or any other compensation law." Hearings before a Subcommittee of the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 84. Similar statements were made by those who spoke during the committee hearings on the proposed legislation. 2 Several witnesses pointed out that the statute applied to but two categories of workers, longshoremen and those involved in ship repair,3 the classes of employees denied relief under state compensation acts by the Jensen case and the decisions which followed it.• 2 Hearings before the House Judiciary Committee on H. R. 9498, 69th Cong., 1st Sess., at 39, 118; Hearings before a Subcommittee of the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 22, 25-27, 31, 38, 85. 3 Hearings before the House Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 141; Hearings before the House Judiciary Committee on H. R. 9498, 69th Cong., 1st Sess., at 44, 119; Hearings before a Subcommittee of the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 80. 4 The Court places heavy reliance on the deletion of the so-called "local concern" language from the original bill, pointing out that this language had been objected to as vague and uncertain. But it is apparent that the objections went to the possibility that the language 136 OCTOBER TERM, 1961. STEWART, J., dissenting. 370 U.S. The meaning of 33 U. S. C. § 903 (a) can hardly be deemed a question of first impression. In the thirty-five years since its enactment this provision has been before the Court many times. The Court has consistently said that the Act does not apply to injuries on navigable waters where a State can constitutionally provide a compensation remedy. All the commentators have agreed." And the administrators of the Act have so held, specifically with respect to new ship construction.6 In order to avoid the harsh results which the uncertainties of this statutory provision could sometimes produce, the Court in Davis v. Department of Labor, 317 U. S. 249, developed the theory of the twilight zone. There we reversed a decision of the Washington Supreme Court which had held that a State could not constitutionally make a compensation award to the widow of a workman drowned in a navigable river while dismantling a drawbridge. Relying on the language of § 903 (a) the Court pointed out that "Congress made clear its purpose to permit state compensation protection whenever possible .... " Id., at 252-253. The Court went on to note that harbor workers and longshoremen were clearly protected by the Federal Act but that "employees such as decedent "except employment of local concern and of no direct relation to navigation and commerce" might not accurately define the line beyond which state law could be applied-a difficulty which was easily removed by making the statute inapplicable where a remedy could "validly be provided by State law." 5 See Gilmore and Black, Admiralty, 346; Robinson, Admiralty, 110; Rodes, Workmen's Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harv. L. Rev. 637, 638-639; Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L. J. 472, 500; Comment, 67 Yale L. J. 1205, 1210-1211. 0 See Opinion No. 7, September 2, 1927, of the Employees' Compensation Commission, discussed in n. 15 of the Court's opinion, ante, p. 127. This ruling was followed until 1959, a span of thirty-two years. CALBECK v. TRAVELERS INSURANCE CO. 137 114 STEWART, J., dissenting. here, occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation." It was noted that both the Federal Act and the state compensation statute "show clearly that neither was intended to encroach on the field occupied by the other." Id., at 255. Since this "jurisdictional dilemma" made it difficult for an injured worker to determine on which side of the line his particular case fell, the result in some cases had been that he obtained no compensation at all. In this "twilight zone" where the facts of a given case might place an injured worker on either side of the line, the Court held that it would give great weight to the administrative findings in cases brought under the Federal Act, and to the presumption of constitutionality in cases arising under state statutes. Because of this presumption of constitutionality the claimant in Davis was allowed her state remedy: Whatever else may be said of the Davis decision, it thus clearly rested on a construction of the statute precisely opposite to that adopted by the Court today. Indeed, if today's decision is correct, then there was no reason for the "twilight zone" doctrine worked out with such travail in Davis. For the Court now holds that the problem which led to the Davis decision never really existed. Yet as recently as 1959 the Court began a per curiam opinion with this topic sentence: "By its terms, the Longshoremen's and Harbor Workers' Compensation Act does not apply 'if recovery for the disability or death through workmen's compensation proceedings may ... validly be provided by State law.'" Hahn v. Ross Iswnd 7 To achieve the result reached in Davis after today's decision would require the Court to ignore still another provision of the Federal Act-§ 905-which makes federal compensation the exclusive remedy when the Federal Act is clearly applicable. 663026 0-62-13 138 OCTOBER TERM, 1961. STEWART, J., dissenting. 370 U. 8. Sand & Gravel Co., 358 U. S. 272. Today the Court simply removes these "terms" from the Act.8 In my view the decision of the Court of Appeals in these cases was correct. For almost forty years it has been unequivocally recognized that for those employed on new ship construction recovery for disability or death through workmen's compensation may validly be provided by state law. Grant Smith-Porter Ship Co. v. Rohde, supra. In one of the cases before us the claimant has actually been paid benefits under the Louisiana Compensation Act. In the other a claim under the Texas Act is pending and would clearly be allowed. See Travelers Ins. Co. v. Gonzalez, 351 S. W. 2d 374. These cases, therefore, were not by any stretch of the imagination within the twHight zone. The Federal Act is thus by its terms inapplicable. I would affirm. 8 The Court's opinion places heavy reliance on Parker v. Motor Boat Sales, 314 U.S. 244. I cannot understand why. For in Parker the Court recognized that the proviso in § 903 (a) was "a subtraction from the scope of the Act." Id., at 249. The Court today holds to the contrary. Moreover, any possible doubt as to the basis of the Parker decision was resolved in Davis, where the Court explained Parker in terms of the twilight-zone rule. 317 U. S., at 257. LANZA v. NEW YORK. 139 Opinion of the Court. LANZA v. NEW YORK. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 236. Argued April 2, 1962.-Decided June 4, 1962. Petitioner was convicted in a state court of violating a state statute by willfully refusing to answer pertinent questions of a duly constituted legislative committee conducting an authorized legislative investigation, after he had been given immunity from prosecution. In this Court, he contended that his conviction violated the Due Process Clause of the Fourteenth Amendment because a conversation which he had with his brother in a public jail, where the latter was confined, was intercepted without their knowledge by state officials through an electronic listening device and a transcript of the conversation was used by the legislative committee in interrogating petitioner. The State's highest court certified that it had passed upon this claim and held that petitioner's constitutional rights were not violated. However, the record showed that at least two of the questions which petitioner was convicted of refusing to answer were not related in any way to the intercepted conversation, and refusal to answer either of these questions was sufficient to support the judgment. Held: The constitutional claim asserted by petitioner is not tendered by the record in this case, and the judgment is affirmed. Pp. 139-147. 9 N. Y. 2d 895, 175 N. E. 2d 833, affirmed. Leo Pfeffer and Jacob D. Fuchsberg argued the cause and filed briefs for petitioner. H. Richard Uvil"ler argued the cause for respondent. With him on the briefs was Frank S. Hogan. MR. JUSTICE STEWART delivered the opinion of the Court. On February 13, 1957, the petitioner paid a visit to his brother, who was then confined in a New York jail. The two conversed in a room at the jail set aside for such visits. Six days later the petitioner's brother was released from custody by order of one member of the State Parole 140 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. Commission, under rather unusual circumstances.1 This prompted a committee of the New York Legislature to hold an investigation of possible corruption in the state parole system.2 During the course of the committee's investigation, the petitioner was called to testify. He appeared, accompanied by counsel. After granting the petitioner immunity from prosecution, as permitted by state law,3 the committee directed him to answer several questions. For refusing to answer these questions the petitioner was indicted, tried and convicted under a provision of the criminal law of New York.4 His conviction was affirmed on review by the New York courts.5 We granted certio- 1 Four parole officers had concurred in a report finding that the petitioner's brother was "not a fit subject for restoration to parole." This report had been endorsed by three superiors in the Division of Parole. Shortly after receiving these recommendations a member of the Commission ordered the petitioner's brother released. 2 The committee was the Joint Legislative Committee on Government Operations, created by the New York Legislature in 1955. This committee was endowed with "full power and authority to investigate, inquire into and examine the management and affairs of any department, board, bureau, commission ... of the state, and all questions in relation thereto .... " The committee was specifically authorized to investigate "the administration of state and local laws and the detection and prevention of unsound, improper or corrupt practices in connection therewith." 3 New York Penal Law §§ 381, 584, 2447. 4 New York Penal Law§ 1330: "A person who being present before either house of the legislature or any committee thereof authorized to summon witnesses, wilfully refuses to be sworn or affirmed, or to answer any material and proper question, or to produce upon reasonable notice any material and proper books, papers, or documents in his possession or under his control, is guilty of a misdemeanor." 5 The Appellate Division modified the judgment by directing that the terms imposed on the several counts of the indictment be served concurrently. 10 App. Div. 2d 315, 199 N. Y. S. 2d 598. The New York Court of Appeals modified the judgment further, holding that LANZA v. NEW YORK. 141 139 Opinion of the Court. rari, 368 U. S. 918, to consider the petitioner's claim that he could not constitutionally be punished for refusing to answer the questions put to him by the state legislative committee, because the conversation he had had with his brother in jail had been electronically intercepted and recorded by officials of the State, and a transcript of that conversation had furnished the basis of the committee's questions. For the reasons which follow, we hold that this constitutional claim is not valid, and we accordingly affirm the judgment before us. The record does not make clear the precise circumstances under which the conversation in the jail between the petitioner and his brother was overheard and transcribed. The State concedes, however, that an electronic device was installed in the room at the Westchester County Jail where the two conversed on February 13, 1957, that without their knowledge their conversation was thereby overheard and transcribed by jail officials, and that a transcript of the conversation was in the hands of the legislative committee when the petitioner was summoned to testify. The petitioner has not questioned the power of the state legislative committee to conduct an investigation into whether the state parole system was being administered honestly and evenhandedly, nor has he questioned the good faith or propriety of the particular investigation which gave rise to the present case. His argument is simply that the interception of the jail conversation was a violation of those principles of the Fourth Amendment which have found recognition in the Due Process Clause of the Fourteenth, that it was accordingly impermissible for the state legislative committee to make use of the transcript of that conversation in interrogating him, and the petitioner had committed but a single crime in refusing to answer the various questions put to him by the committee. 9 N. Y. 2d 895, 216 N. Y. S. 2d 706, 175 N. E. 2d 833. 142 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. that New York therefore denied him due process of law by convicting him for refusing to answer the committee's questions.6 The Fourth Amendment specifically insures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," by federal officers. We may take it as settled that the Fourteenth Amendment gives to the people like protection against the conduct of the officials of any State. Mapp v. Ohio, 367 U. S. 643; Elkins v. United States, 364 U.S. 206; Wolf v. Co"lorado, 338 U.S. 25. The petitioner's argument thus necessarily begins with two assumptions: that the visitors' room of a public jail is a constitutionally protected area, and that surreptitious electronic eavesdropping under certain circumstances may amount to an unreasonable search or seizure. As to the second there can be no doubt. This Court through the years has not taken a literal or mechanical approach to the question of what may constitute a search or seizure.7 And as recently as last Term we specifically held that electronic eavesdropping by federal officers, accomplished by physical intrusion into the wall of a house, violated the 6 The New York Court of Appeals made clear that it had passed upon this federal constitutional claim, and that its judgment was not based upon an independent state ground. Its amended remittitur was as follows: "Upon the appeal herein there was presented and necessarily passed upon a questio~ under the Constitution of the United States, viz.: Defendant argued that the imposition of penal sanctions for his refusal to answer certain questions deprived him of liberty without due process of law in violation of the Fourteenth Amendment. The Court of Appeals held that defendant's constitutional rights were not violated." 7 Silverthorne Lumber Co. v. United States, 251 U. S. 385; Zap v. United States, 328 U. S. 624; cf. Irvine v. California, 347 U. S. 128, 132; see also Nueslein v. District of Columbia, 73 App. D. C. 85, 115 F. 2d 690; McGinni,s v. United States, 227 F. 2d 598. LANZA v. NEW YORK. 143 139 Opinion of the Court. Fourth Amendment rights of the occupants. Silverman v. United States, 365 U. S. 505. But to say that a public jail is the equivalent of a man's "house" or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area,8 and so may be a store.9 A hotel room, in the eyes of the Fourth Amendment, may become a person's "house," 10 and so, of course, may an apartment.11 An automobile may not be unreasonably searched.12 Neither may an occupied taxicab.13 Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.14 Though it may be assumed that even s Silverthorne Lumber Co. v. United States, 251 U.S. 385; Gouled v. United States, 255 U. S. 298. 9 Amos v. United States, 255 U.S. 313; Davis v. United States, 328 u. s. 582. 10 Lustig v. United States, 338 U.S. 74; United States v. Jeffers, 342 u. s. 48. 11 Jones v. United States, 362 U.S. 257. 12 Gambino v. United Sta~es, 275 U. S. 310; Carroll v. United States, 267 U.S. 132; Brinegar v. United States, 338 U.S. 160; Henry v. United States, 361 U.S. 98. 13 Rios v. United States, 364 U. S. 253. 14 N. Y. Correction Law § 500-c provides, in part: "Convicts under sentence shall not be allowed to converse with any other person, except in the presence of a keeper." The N. Y. State Commission of Correction, Regulations for Management of County Jails (Revised 1953 ed.), provide, in part: "All parts of the jail should be frequently searched for contraband. [Footnote 14 continued on p. 144] 144 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection,15 there is no claimed violation of any such special relationship here. But even if we accept the premise that the room at the jail where the petitioner and his brother conversed was an area immunized by the Constitution from unreasonable search and seizure, and even though we put to one side questions as to the petitioner's standing to complain,16 "A thorough search should be made of all packages to prevent forbidden articles being smuggled into the jail. The number of articles permitted to be taken into the jail should be kept to a minimum. Saws have been secreted in bananas, in the soles of shoes, under the peaks of caps, and drugs may be secreted in cap visors, under postage stamps on letters, in cigars and various other ways. Constant vigilance is necessary if your jail is to be kept safe. "Cells should be systematically searched for materials which would serve as a weapon or medium of self-destruction or escape. Razor blades are small and easily concealed. "The law requires that visitors be carefully supervised to prevent passing in of weapons, tools, drugs, liquor and other contraband. "In jails where a visitors' booth is provided, the safe-keeping of prisoners, especially those held for serious crimes, will be best insured if the booths are used for visits. Where there are no booths, and where prisoners are permitted to receive visitors in the corridors or jailer's office, visits should be closely supervised. Experience has shown that laxity in supervising visitors and searching packages has resulted in escapes,assaults on officers and serious breaches of discipline." 15 Cf. Lanza v. N. Y. S. Joint Legi_$. Comm., 3 N. Y. 2d 92, 164 N. Y. S. 2d 9, 143 N. E. 2d 772, affirming 3 App. Div. 2d 531, 162 N. Y. S. 2d 467; Matter of Reuter, 4 App. Div. 2d 252, 164 N. Y. S. 2d 534; see Coplon v. United States, 89 U.S. App. D. C. 103, 191 F. 2d 749. 16 See Jones v. United States, 362 U.S. 257. LANZA v. NEW YORK. 145 139 Opinion of the Court. the petitioner's argument would still carry far beyond any decision which this Court has yet rendered. The case before us bears no resemblance to such cases as Leyra v. Denno, 347 U. S. 556, where a State attempted to use as evidence in a criminal trial a confession which had been elicited by trickery from the defendant while he was in jail. See also Spano v. New York, 360 U. S. 315. We do not have here the introduction into a state criminal trial of evidence which is claimed to have been unconstitutionally seized, as in Mapp v. Ohio, 367 U.S. 643. See Rochin v. California, 342 U. S. 165. Nor is this a case where it is claimed that the evidence actually offered at a trial was procured through knowledge gained from what had been unlawfully obtained-the "fruit of the poisonous tree." Cf. Nardone v. United States, 308 U.S. 338. Here no such evidence was ever introduced in a prosecution against the petitioner. Rather, the petitioner was convicted for willfully refusing to answer the pertinent questions of a duly constituted legislative committee in the conduct of an authorized legislative investigation, after having been given immunity from prosecution. To hold that the petitioner could not constitutionally be convicted for refusing to answer such questions simply because they related to a conversation which had been unlawfully overheard by other state officials would thus be a completely unprecedented step. The ultimate disposition of this case, however, does not demand consideration of whether such a step might ever be constitutionally required. For even if all the other doubtful issues should be resolved in the petitioner's favor, the record conclusively shows that at least t\vo of the questions which the committee asked him were not related in any way to the intercepted conversation. The petitioner was asked to whom he had talked in February, 146 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. 1957, about releasing his brother on parole.11 He was asked to describe the efforts he had made to assist in obtaining his brother's release.18 Not only is it apparent on their face that these questions were not dependent upon the conversation overheard at the jail, but committee counsel unequivocally so testified at the petitioner's trial.19 Costello v. United States, 365 U. S. 265, 279-280. Refusal to answer either of these questions fully supports the judgment as modified by the New York courts.20 Whitfield v. Ohio, 297 U. S. 431, 438. Moreover, the record contains no basis for supposing that the committee would not have called the petitioner to testify, had it not been in possession of a transcript of the recorded jail conversation-assuming, arguendo, that such an attenuated connection would help the petitioner's case. See Costello v. United States, supra. Indeed, it is reasonable to infer that the petitioner would have been interrogated even if the transcript of the conversation had not existed. The committee knew of the suspicious circumstances surrounding the release of the petitioner's brother.21 The committee knew that the petitioner had been one of the three visitors the brother had had during 17 "Mr. Lanza, please tell the committee the name of anybody with whom you spoke during the month of February 1957 about the restoration to parole of your brother Joseph Lanza." 18 "On February 5, 1957, your brother Joseph Lanza was arrested and returned to prison charged with a violation of parole. Tell the committee, please, any and all efforts extended by you to assist in obtaining the release of your brother Joseph Lanza on parole or his restoration to parole." 19 "Q. You say that you did not gather any material from the tapes upon which to predicate that question, Mr. Bauman? A. I have said and I say, Mr. Direnzo, that that question as well as the previous one was not based upon any material in the tapes. "Q. You are sure about that? A. Yes." 20 See note 5. 21 See note 1. LANZA v. NEW YORK. 147 139 Opinion of WARREN, C. J. his stay in jail.22 And the record shows that the committee had other independent information which could have occasioned the petitioner's interrogation. In short, we conclude that the ultimate constitutional claim asserted in this case, whatever its merits, is simply not tendered by this record. Affirmed. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. MR. JUSTICE HARLAN, concurring. I do not understand anything in the Court's opinion to suggest either that the Fourteenth Amendment "incorporates" the provisions of the Fourth, or that the "lib~rty" assured by the Fourteenth Amendment is, with respect to "privacy," necessarily coextensive with the protections afforded by the Fourth. On that premise, I join the Court's opinion. Memorandum opinion of MR. CHIEF JUSTICE WARREN. I agree with MR. JusTICE BRENNAN that the decision of the New York courts comes to us resting firmly upon an independent state ground and I therefore join his memorandum opinion. However, because the opinion of the Court departs from our practice of refusing to reach constitutional questions not necessary for decision, I deem it appropriate to add a few words. Unquestionably, all that the Court's opinion decides is that since two of the questions asked petitioner by 22 The others were the brother's wife and his lawyer. 148 OCTOBER TERM, 1961. Opinion of WARREN, C. J. 370 U.S. the Committee were not in any way related to the intercepted conversation, the refusal to answer those questions alone "fully supports the judgment as modified by the New York courts." Ante, p. 146. Despite the fact that this holding deprives the Court of jurisdiction to intimate views on the other, more serious problems of constitutional dimension presented by the record, Herb v. Pitcairn, 324 U. S. 117; Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157; Murdock v. Memphis, 20 Wall. 590, and would warrant dismissing the writ as improvidently granted, Benz v. New York State Thruway Authority, 369 U. S. 147; Atchley v. California, 366 U. S. 207, the opinion undertakes, as MR. Jus- TICE BRENNAN characterizes it, a "gratuitous exposition" upon those more difficult constitutional problems originally thought presented for decision. These expressions of dicta are in a form which can only lead to misunderstanding and confusion in future cases. Such dicta, when written into our decisions, have an unfortunate way of turning up in digests and decisions of lower courts; they are often quoted as evidencing the considered opinion of this Court, and this is so even though such intention is denied by the writer. I am expressing my views separately because I believe that for several reasons it is particularly regrettable for the Court to depart from its normal practice in this case. The New York Court of Appeals, the highest court of the State, split 4-3 on the result reached below. And, because that court did not write a full opinion in announcing its decision, we cannot tell whether it intended to decide the constitutional issues or whether it even considered them. Its remittitur is unconvincing in determining whether its judgment was intended to rest on an independent state ground. See Benz v. New York State Thruway Authority, supra. What makes this Court's action singularly unfortunate is that the state courts, state offiLANZA v. NEW YORK. 149 139 Opinion of WARREN, C. J. cials and the people of New York State, have uniformly condemned the eavesdropping in this case as deplorable. The New York Appellate Division termed the action at the jail "reprehensible and offensive," Peop"le v. Lanza, 10 App. Div. 2d 315, 318, 199 N. Y. S. 2d 598, 601; earlier the court had called it "atrocious and inexcusable," Lanza v. New York State Joint Legislative Committee, 3 App. Div. 2d 531, 533, 162 N. Y. S. 2d 467, 470; also "flagrant and unprecedented," Matter of Reuter, 4 App. Div. 2d 252, 255, 164 N. Y. S. 2d 534, 538. In the Court of Appeals it was characterized as a "gross wrong," Lanza v. New York State Joint Legislative Committee, 3 N. Y. 2d 92, 101, 164 N. Y. S. 2d 9, 16, 143 N. E. 2d 772, 777 (dissenting opinion), and counsel for the Joint Committee made no effort to justify or excuse the action, but on the contrary himself called it "repulsive and repugnant," ibid. The Governor of New York termed unchecked eavesdropping "unwholesome and dangerous," McKinney's 1958 Session Laws of New York, 1837; and the Chairman of the New York Joint Legislative Committee on Privacy of Communications called the incident "deplorable" and reported that it had "brought forth a storm of protest from lawyers, some of whom had not previously been audibly concerned [ with] ... efforts to protect the people's right of privacy." Report of the New York Joint Legislative Committee on Privacy of Communications, Legislative Document (1958) No. 9, 25. It has been reported that a New York trial court judge found it necessary to release a prisoner without bail so that he would be able to consult his attorney, the judge not being able to feel confident after this incident that there was any jail in the State where the prisoner and his lawyers could be secure against electronic eavesdropping. Comment, 27 Fordham L. Rev. 390, 394, n. 35. The most striking indication of the degree to which the people of the State of New York were shocked by the 150 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370U.S. incident was the enactment of Article 73 of the Penal Law of New York, making it a felony to do what the officials in this case did. And finally the Appellate Division of the Supreme Court, affirmed by the New York Court of Appeals, reduced the bizarre and unprecedented sentence of ten years for contempt of court to one year. It seems to me that when this Court puts its imprimatur upon conduct so universally reproached by every branch of the government of the State in which the case arose, we invite official lawlessness which, in the long run, can be far more harmful to our society than individual contumacy. MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN concur in this opinion. MR. JusTICE BRENNAN, with whom THE CHIEF JusTICE and MR. JUSTICE DOUGLAS join. I must protest the Court's gratuitous exposition of several grave constitutional issues confessedly not before us for decision in this case. The tenor of the Court's wholly unnecessary comments is sufficiently ominous to justify the strongest emphasis that of the abbreviated Court of seven who participate in the decision, fewer than five will even intimate views that the constitutional protections against invasion of privacy do not operate for the benefit of persons--whether inmates or visitors--inside a jail, or that the petitioner lacks standing to challenge secret electronic interception of his conversations because he has not a sufficient possessory interest in the premises, or that the Fourth Amendment cannot be applied to protect against testimonial compulsion imposed solely as a result of an unconstitutional search or seizure. The petitioner was convicted on several counts for failure to answer each of a number of questions put to him by LANZA v. NEW YORK. 151 139 Opinion of BRENNAN, J. a state legislative committee. On appeal, the judgment, which had imposed 10 identical sentences to run consecutively, was modified by the Appellate Division to provide that the sentences on each count should run concurrently. The record shows, affirmatively and without rebuttal, that at least two of the questions were conceived and propounded independently of the search and seizure which the petitioner claims infringed his constitutional rights; and there is nothing which supports his contention that he would not have been questioned at all but for that claimed infringement. Under these circumstances, it is apparent that the judgment of the Court of Appeals of New York can be adequately supported by an independent ground of state law. It is the settled law of that court that there is no occasion to review a conviction on one count of an indictment or information if the judgment and sentence are sufficiently sustained by another count.1 Since this Court is thus able to see that the judgment of the court below-which is unelucidated by any opinion-is maintainable on an 1 See People v. Faden, 271 N. Y. 435, 3 N. E. 2d 584; People v. Cummim, 209 N. Y. 283, 103 N. E. 169; Hope v. People, 83 N. Y. 418; People v. Davi$, 56 N. Y. 95. That is also the federal rule, see Hirabayashi v. United States, 320 U. S. 81, 85. In affirming the conviction, the Appellate Division found it unnecessary to pass on the petitioner's contention that he could be convicted of only a single crime because, the judgment having been modified to cause the sentences to run concurrently, "the conviction on any one count is sufficient to sustain the sentence . . . . (People v. Faden, 271 N. Y. 435, 444-445.)" 10 App. Div. 2d 315, 319, 199 N. Y. S. 2d 598, 603. The Court of Appeals, which in affirming without opinion modified the judgment to make clear that only a single crime had been committed, found no occasion to re-examine the sentence because "It is clear . . . that the number of crimes of which the defendant was found guilty did not enter into the duration of the sentence imposed." 9 N. Y. 2d 895, 897, 175 N. E. 2d 833. 152 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 u. s. adequate, independent state ground, it should forbear from any further review of the case; for, in light of the clearly established New York law, a decision by this Court on the federal questions sought to be tendered here would be but an exercise in futility.2 In any event, historic principles demand that any consideration of constitutional issues at least abide a clarification from the court below as to the basis for its judgment, in order "that this Court not indulge in needless dissertations on constitutional law." Minnesota v. National Tea Co., 309 U.S. 551, 557. I do not mean, however, that I would seek clarification in this case. It taxes credulity to suppose that the court below would disagree with the majority here that two of the counts are free of any taint, or depart from its own settled doctrine that even one such count requires affirmance. And even if this Court were somehow free to disregard the law of New York, the Court has in the past limited its review of a state conviction in accordance with "the rule, frequently stated by this court, that a judgment upon an indictment containing several counts, with a verdict of guilty upon each, will be sustained if any count is good, and sufficient in itself to support the judgment." Whitfield v. Ohio, 297 U. S. 431, 438. While the Court does ultimately rest its disposition of the case on this ground, it does so by way of affirmance. 2 Compare Bachtel v. Wilson, 204 U. S. 36, in which the Court dismissed a writ of error to the Supreme Court of Ohio, which had written no opinion. The Court said, at p. 40: "Before we can pronounce [ the judgment of the court below] in conflict with the Federal Constitution it must be made to appear that its decision was one necessarily in conflict therewith and not that possibly, or even probably, it was. . . . We do not decide [that the state statute is to be given a construction which would render it constitutional], but we do hold that in view of the silence of the Supreme Court we are not justified in assuming that it [did not so construe the statute]." LANZA v. NEW YORK. 153 139 Opinion of BRENNAN, J. It is at least arguable that the proper disposition is to dismiss the case because certiorari was improvidently granted. Benz v. New York State Thruway Authority, 369 U.S. 147; 3 Fox Film Corp. v. Muller, 296 U.S. 207. But in no event is it arguable that any of the constitutional questions the Court reaches are before it. 3 In Benz, as here, the Court of Appeals had granted the petitioner an amended remittitur reciting that it had necessarily passed upon a federal constitutional question, to wit: "Whether plaintiff was deprived of just compensation in violation of the due process clause of the Fourteenth Amendment." Notwithstanding that representation, we concluded that the Court of Appeals had "decided no more than" a question relating to state court jurisdiction. That action was entirely consistent with Honeyman v. Hanan, 300 U.S. 14, 18---19: "A certificate or statement by the state court that a federal question has been presented to it and necessarily passed upon is not controlling. While such a certificate or statement may aid this Court in the examination of the record, it cannot avail to foreclose the inquiry which it is our duty to make or to import into the record a federal question which otherwise the record wholly fails to present." Indeed, as Honeyman v. Hanan, supra, and Honeyman v. Hanan, 302 U.S. 375, illustrate, proper pursuit of the matter when suspicions are aroused may disclose that a state court's certificate simply did not mean what it appeared, at first glance, to say. The remittitur in this case recited: "Defendant argued that the imposition of penal sanctions for his refusal to answer certain questions deprived him of liberty without due process of law in violation of the Fourteenth Amendment. The Court of Appeals held that defendant's constitutional rights were not violated." The Court of Appeals wrote no opinion, and it is understood in New York that "affirmance without opinion is merely an adoption of the result reached by the Appellate Division, the reasoning of which is not necessarily adopted." Carmody's New York Practice (7th ed. 1956) 678. See Commissioner v. Jackson, 265 N. Y. 440,441, 193 N. E. 262; Soderman v. Stone Bar Associates, Inc., 208 Misc. 864, 867, 146 N. Y. S. 2d 233, 236. For all we can tell, the Court of Appeals concluded that the petitioner's "constitutional rights were not violated" by reasoning that the two untainted questions supported the conviction. 663026 0-62-14 154 OCTOBER TERM, 1961. Per Curiam. 370U.S. TAYLOR ET AL. v. LOUISIANA. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF LOUISIANA. No. 773. Decided June 4, 1962. Six Negroes were convicted in a state court of violating Louisiana's breach-of-the-peace statute and were fined and sentenced to jail. Four of them went into a waiting room customarily reserved for white people at a bus depot and, when requested by police to leave, they refused to do so, claiming that they were interstate passengers. The other two were arrested while sitting nearby in the automobile which had brought the six to the bus station. There was no evidence of violence; but the trial court said that the mere presence of Negroes in a white waiting room was likely to give rise to a breach of the peace and was sufficient evidence of guilt. It held that four had violated the breach-of-the-peace statute and that the other two had counseled and procured them to do so. Held: Since the only evidence to support the charge was that the defendants were violating a custom that segregated people in waiting rooms according to their race, a practice not allowed by federal law in interstate transportation facilities, the judgments are reversed. Pp. 154-156. Reversed. Carl Rachlin and Judith P. Vladeck for petitioners. Jack P. F. Gremillion, Attorney General of Louisiana, and M. E. Culligan, Assistant Attorney General, for respondent. PER CURIAM. Petitioners, six Negroes, were convicted of violating Louisiana's breach-of-the-peace statute, La. Rev. Stat., 1950, § 14:103.1,1 and were given fines and jail terms by 1 In relevant part, § 14:103.1 provides: "A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (I) crowds or congregates with others . . . in or upon . . . any . . . public place or TAYLOR v. LOUISIANA. 155 154 Per Curiam. the state court. The Louisiana Supreme Court declined t.o review their convictions, and the case is here on petition for a writ of certiorari which we have granted. Four of the six petitioners went into the waiting room customarily reserved for white people at the Trailways Bus Depot in Shreveport, Louisiana, in order to take a bus to Jackson, Mississippi. The Chief of Police of Shreveport approached the four and asked them why they were in the station. They t.old him they were interstate passengers and wished to purchase tickets and obtain travel information. The Chief told them they could do this in the colored waiting room and ordered them to move on. When the four refused to leave, stating again that they were interstate passengers and asserting their rights under federal law, they were ordered to leave or be arrested. The spokesman of the group then said, "We have no choice; go ahead and arrest us." The police thereupon arrested the four of them. The other two petitioners were then arrested, while sitting nearby in the automobile which had brought the six to the bus station. At the trial there was testimony that immediately upon petitioners' entry into the waiting room many of the people therein became restless and that some onlookers climbed onto seats to get a better view. Nevertheless, respondent admits these persons moved on when ordered t.o do so by the police. There was no evidence of violence. The record shows that the petitioners were quiet, orderly, and polite. The trial court said, however, that the mere presence of Negroes in a white waiting room was likely to give rise to a breach of the peace. It held the mere presence of the Negroes in the waiting room, as part building ... and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality ... in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana ... shall be guilty of disturbing the peace." 156 OCTOBER TERM, 1961. Per Curiam. 370 u. s. of a preconceived plan, was sufficient evidence of guilt. It accordingly held that the four had violated the state breach-of-the-peace statute and that the other two had counseled and procured the others to commit the crime. Here, as in Garner v. Louisiana, 368 U. S. 157, the only evidence to support the charge was that petitioners were violating a custom that segregated people in waiting rooms according to their race, a practice not allowed in interstate transportation facilities by reason of federal law.2 Boynton v. Virginia, 364 U. S. 454, 459-460. And see Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (public beaches); Holmes v. City of Atlanta, 350 U. S. 879 (municipal golf courses); Gayle v. Browder, 352 U. S. 903 (bus); New Orleans Park Assn. v. Detiege, 358 U.S. 54 (municipal golf course and park). The judgments of conviction must therefore be Reversed. MR. JUSTICE HARLAN would grant certiorari and set the case for argument. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. 2 "That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges." Buchanan v. Warley, 245 U.S. 60, 80-81. DECISIONS PER CURIAM. 370U.S. June 4, 1962. CREEK NATION v. UNITED STATES. CERTIORARI TO THE COURT OF CLAIMS. No. 124. Argued April 24, 1962.-Decided June 4, 1962 . .Judgment affirmed by an equally divided Court. Reported below: 152 Ct. CL 747. 157 Paul M. Niebell argued the cause and filed briefs for petitioner. Ralph A. Barney argued the cause for the United States. With him on the briefs were Solicitor General Cox, Richard J. Medalie, Roger P. Marquis and Hugh Nugent. PER CURIAM. The judgment is affirmed by an equally divided Court. Ma. JusTICE FRANKFURTER took no part in the consideration or decision of this case. HOLDEN V. PIONEER BROADCASTING CO. ET AL. APPEAL FROM THE SUPREME COURT OF OREGON. No. 1092, Misc. Decided June 4, 1962. Appeal dismissed and certiorari denied. Reported below: 228 Ore. 405, 365 P. 2d 845. Dale A. Rader and Robert F. Maguire for appellant. Clarence J. Young for appellees. PER CURIAM. 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. Ma. JusTICE FRANKFURTER took no part in the consideration or decision of this case. 158 OCTOBER TERM, 1961. Per Curiam. 370U.S. JEFFERSON LAKE SULPHUR CO. v. NEW JERSEY. APPEAL FROM THE SUPREME COURT OF NEW JERSEY. No. 861. Decided June 4, 1962. Appeal dismissed and certiorari denied. Reported below: 36 N. J. 577, 178 A. 2d 329. Eberhard P. Deutsch, Rene H. Himel, Jr. and Arthur C. Dwyer for appellant. Arthur J. Sills, Attorney General of New Jersey, Theodore I. Batter, First Assistant Attorney General, and Charles J. Kehoe, Deputy Attorney General, for appellee. PER CuRIAM. 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. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. PORTER v. AETNA CASUALTY CO. 159 Opinion of the Court. PORTER v. AETNA CASUALTY & SURETY CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 604. Argued April 25, 1962.-Decided June 11, 1962. Disability benefits paid by the United States to an incompetent veteran and deposited by his committee or guardian in an account in a federal savings and loan association are exempted from attachment by 38 U. S. C. § 3101 (a) when the deposits are readily available as needed for support and maintenance, actually retain the qualities of money and are not permanent investments. Pp. 159- 162. 111 U. S. App. D. C. 267, 296 F. 2d 389, reversed. Ethelbert B. Frey argued the cause and filed a brief for petitioner. John L. Laskey argued the cause for respondent. With him on the brief was Richard Whittington Whitlock. John G. Laughlin, Jr. argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick and Herbert E. Morris. MR. JusTICE CLARK delivered the opinion of the Court. This case raises the question of whether benefits paid by the United States Veterans' Administration retain their exempt status under 38 U. S. C. § 3101 (a) 1 after being 1 "(a) Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. The preceding sentence shall not apply to claims of the United States 160 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. deposited in an account in a federal savings and loan association. Petitioner, an incompetent Air Force veteran, had suffered a judgment at the hands of respondent. The latter in an effort to satisfy its judgment attached a checking account and two accounts in local federal savings and loan associations, all of which had been established by petitioner's Committee with funds received from the Veterans' Administration as disability compensation due the petitioner. The District Court, on motion, held all three of the accounts exempt under the statute. 185 F. Supp. 302. Respondent appealed as to the savings and loan association accounts, and the Court of Appeals for the District of Columbia reversed in a divided opinion. 111 U. S. App. D. C. 267, 296 F. 2d 389. Certiorari was granted in view of the importance of the question in the administration of the Act. 368 U. S. 937. We agree with the District Court that the funds involved here are exempt under the statute; therefore we reverse the judgment below. Since 1873 it has been the policy of the Congress to exempt veterans' benefits from creditor actions as well as from taxation.2 In 1933 in Trotter v. Tennessee, 290 U.S. 354, the Court had occasion to pass upon the exemptive provision of the World War Veterans' Act of 1924, 43 Stat. 607, 613. It held that the exemption spent its force when the benefit funds "lost the quality of moneys" and were converted into "permanent investments." This distinction was adopted by the Congress when the Act was arising under such laws nor shall the exemption therein contained as to taxation extend to any property purchased in part or wholly out of such payments. The provisions of this section shall not be construed to prohibit the assignment of insurance otherwise authorized under chapter 19 of this title, or of servicemen's indemnity." 2 Act of Mar. 3, 1873, R. S. § 4747 (1878); World War Veterans' Act of 1924, c. 320, § 22, 43 Stat. 607, 613; Act of Aug. 12, 1935, c. 510, § 3, 49 Stat. 607, 609. PORTER v. AETNA CASUALTY CO. 161 159 Opinion of the Court. amended in 1935, 49 Stat. 607, 609, to provide, inter alia, that such payments shall be exempt "either before or after receipt by the beneficiary" but that the exemption shall not "extend to any property purchased in part or wholly out of such payments." 3 Thereafter in Lawrence v. Shaw, 300 U.S. 245 (1937), the Court held that bank credits derived from veterans' benefits were within the exemption, the test being whether as so deposited the benefits remained subject to demand and use as the needs of the veteran for support and maintenance required. It was noted that the allowance of interest on such deposits would not destroy the exemption. Two years later the Court held that negotiable notes and United States bonds purchased with veterans' benefits and "held as investments" had no federal statutory immunity. Carrier v. Bryant, 306 U. S. 545 (1939). The Act was again amended in 1958, but no significant changes were made in the exemption provision. As so written it is here at issue. It appehrs that the practices and procedures vary as to withdrawal of funds from federal savings and loan associations. Under the law the depositor is a shareholder rather than a creditor, and his deposits are subject to withdrawal only after a 30-day demand. However, the District Court found that a withdrawal from the accounts here involved could be made "as quickly as a withdrawal from a checking account .... " In addition, the integrity of the deposits was assured by federal supervision of the associations plus federal insurance of the accounts. Under such conditions the funds were subject to imme- 3 The statutory language reads only that the exemption "as to taxation" shall not extend to property purchased with benefits. However, in Carrier v. Bryant, 306 U.S. 545 (1939), the Court held that benefits invested in property were also nonexempt from creditor actions, since they were not "payments of benefits due or to become due" and thus did not fall within the initial immunizing language. 162 OCTOBER TERM, 1961. Opinion of DOUGLAS, J. 370U. S. diate and certain access and thus plainly had "the quality of moneys." As to whether the deposits were "permanent investments," we note they were not of a speculative character nor were they time deposits at interest. Moreover, it affirmatively appears that at times petitioner drew moneys from the savings and loan fund for his support and maintenance requirements and that no other funds whatever are now available to him, his disability payments having been cut off. It therefore appears clear to us that the savings and loan deposits here, rather than being investments, are the only funds presently available to meet petitioner's needs. Since legislation of this type should be liberally construed, see Trotter v. Tennessee, supra, at 356, to protect funds granted by the Congress for the maintenance and support of the beneficiaries thereof, Lawrence v. Shaw, supra, at 250, we feel that deposits such as are involved here should remain inviolate. The Congress, we believe, intended that veterans in the safekeeping of their benefits should be able to utilize those normal modes adopted by the community for that purpose-provided the benefit funds, regardless of the technicalities of title and other formalities, are readily available as needed for support and maintenance, actually retain the qualities of moneys, and have not been converted into permanent investments. Reversed. THE CHIEF JuSTICE and MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JUSTICE DOUGLAS. Heretofore the test of exemption under this Act has been whether the funds had taken the form of "permanent investments," on the one hand (Trotter v. Tennessee, 290 U. S. 354, 357), or on the other were "subject to PORTER v. AETNA CASUALTY CO. 163 159 Opinion of DouGLAS, J. draft upon demand," as in the case of checking accounts. Lawrence v. Shaw, 300 U.S. 245, 250. Negotiable notes and United States bonds were held to be nonexempt in Carrier v. Bryant, 306 U.S. 545. Yet so far as we know, those notes and bonds may have had the same or a comparable degree of liquidity as the present share account in the federal savings and loan association enjoys. Today, however, we hold these accounts exempt. Stocks and bonds cannot, of course, be fractionalized and converted into cash in small amounts, such as may be done with savings accounts and checking accounts. But stocks and bonds may be so liquid as to be tantamount to cash in hand and therefore serve, as well as any bank deposit, the needs of the veteran. By the standards announced in the earlier decisions share accounts in federal savings and loan associations are "investments." See Wisconsin Bankers Assn. v. Robertson, 111 U.S. App. D. C. 85,294 F. 2d 714. They can be withdrawn only after 30 days' notice. The owner of a share account is a voting member of the association which, as the Court of Appeals noted, makes him "more nearly comparable to a stockholder of a bank than one of its depositors." 111 U.S. App. D. C. 267,270,296 F. 2d 389, 392. Moreover, the Home Owners' Loan Act, under which this federal association was created, makes clear that its purpose is "to provide local mutual thrift institutions in which people may invest their funds." 12 U. S. C. § 1464 (a). (Italics added.) Its capital 1 is in "shares" ( 12 U.S. C. § 1464 (b)) such as are involved here. 1 "Capital" means "the aggregate of the payments on savings accounts," plus earnings, less deductions. See 12 CFR § 541.3. "Savings account," such as we have here, is "the monetary interest of the holder" in the "capital" of the association. Id., § 541.4. The account book evidences "the ownership of the account and the interest of the holder thereof in the capital" of the association. 12 CFR § 545.2 (b). 164 OCTOBER TER~I, 1961. Opinion of DouGLAS, J. 370 U.S. The holders of savings accounts who apply for a withdrawal of funds do not thereby become "creditors." 2 In some States these share accounts may not be as liquid as checking accounts or even as liquid as stocks and bonds listed on an exchange or actively traded overthe- counter. The true test seems to me to be liquiditythat is to say, whether or not the moneys are kept in a form in which they are usable, if need be, "for the maintenance and support of the veteran," as Chief Justice Hughes said in Lawrence v. Shaw, supra, at 250. 2 "Holders of savings accounts for which application for withdrawal has been made shall remain holders of savings accounts until paid and shall not become creditors." 12 CFR § 544.l (a) par. 6. MORALES v. CITY OF GALVESTON. 165 Syllabus. MORALES ET AL. v. CITY OF GALVESTON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 480. Argued April 23-24, 1962.-Decided June 11, 1962. Petitioners were longshoremen engaged in "trimming" wheat as it was being loaded by means of a spout directly from a pierside grain elevator owned and operated by the City of Galveston, Texas, into the hold of a ship berthed at the pier. A last "shot" of grain called for and released into the bin had been treated with a chemical insecticide, and petitioners were injured by fumes from the chemical made noxious by concentration in the closely confined area where they were working. They sued the City and the shipowner to recover for their injuries, claiming that the City and the shipowner had been negligent and that the ship was unseaworthy. Held: A judgment for the defendants is affirmed. Pp. 166-171. (a) On the issue of negligence, a finding by the District Court, affirmed by the Court of Appeals, that the City had not itself applied the fumigant to the grain and that neither of the defendants knew, or in the exercise of reasonable care should have known, that the grain had been improperly fumigated by someone else at an inland point, was based upon substantial evidence, and this Court cannot say that it was clearly erroneous. Pp. 167-168. (b) The District Court found, upon substantial evidence and under proper criteria, that the absence of a forced ventilation system in the hold did not make the ship unseaworthy and that the ship was not in any manner unfit for the service to which she was to be put; that finding was affirmed by the Court of Appeals; and this Court cannot say that it was wrong. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, distinguished. Pp. 168-171. 291 F. 2d 97, affirmed. Arthur J. Mandell argued the cause and filed a brief for petitioners. Preston Shirley argued the cause and filed briefs for the City of Galveston. Edward W. Watson argued the cause for the Cardigan Shipping Co., Ltd., respondent. On the briefs with Mr. Watson was Clarence S. Eastham. 166 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. MR. JUSTICE STEWART delivered the opinion of the Court. On the afternoon of March 14, 1957, the S. S. Grelmarion was berthed at Galveston, Texas, taking on a cargo of wheat from a pierside grain elevator owned and operated by the city. The wheat was being loaded directly from the elevator into the ship by means of a spout. The petitioners were longshoremen engaged in "trimming" the wheat as it was received in the offshore bin of the vessel's No. 2 hold, which was then about threequarters full. A last "shot" of grain was called for and was released into the bin. The grain in this last shot had been treated with a chemical insecticide, and the petitioners were injured by fumes from the chemical, made noxious by concentration in the closely confined area where they were working. The petitioners brought the present suit against the City of Galveston and the owner of the vessel to recover for their injuries.1 Their claim was predicated upon the negligence of the City and the shipowner, and upon the unseaworthiness of the ship. After an extended trial, the District Court entered judgment for the respondents, based upon detailed findings of fact, 181 F. Supp. 202, and the Court of Appeals affirmed, 275 F. 2d 191. On certiorari (364 U. S. 295) we vacated the judgment and remanded the case to the Court of Appeals for consideration in the light of Mitchell v. Trawler Racer, Inc., 362 U. S. 539, which had been decided in the interim. That court, one judge dissenting, was of the view that Mitchell was inapplicable to the facts of the present case, and again affirmed the District Court's judgment, 291 F. 2d 1 Petitioners of course received compensation and medical treatment under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. § 901 et seq. 181 F. Supp., at 207. MORALES v. CITY OF GALVESTON. 167 165 Opinion of the Court. 97. We granted certiorari to consider a seemingly significant question of admiralty law. 368 U. S. 816. The factual issues bearing upon the alleged negligence of the City and shipowner were determined in their favor by the District Court. Specifically, the court found that the City had not itself applied the fumigant to the grain in question, and that neither of the respondents knew, or in the exercise of reasonable care should have known, that the grain had been improperly fumigated at an inland point by someone else.2 Even a cursory examination of 2 "14. I find that neither of the respondents knew, or in the exercise of reasonable care should have known, that this quantity of grain, which had been improperly treated with an excessive amount of fumigant, was in the elevator or loaded aboard the Grelmarion; and that (for all the evidence shows here) the respondent city, in the operation of its elevator, had never received knowledge of a prior instance where chloropicrin or other fumigants applied at inland elevators had adhered to the grain sufficiently long as to present danger after receipt by the elevator. "15. I find that the respondent city was not negligent in failing to know or learn of the presence of this quantity of grain within its elevator, in failing to make some additional inspection therefor, or in any other particular. The record shows without dispute that carrful and painstaking inspections and examinations were made under governmental authority when the grain was received, and again as it was disbursed by the elevator, which in the present instance failed to detect the presence of the remaining traces of fumigant in this quantity of grain. I find that had additional inspections been made by the respondent city, there is no reason to believe that such inspections would have been more successful. "17. I find that the Grelmarion's cargo spaces were of customary design and construction; that they were clean, and in all respects ready to receive the wheat; and had been surveyed and approved prior to loading. No fumigation for weevils was made aboard the vessel, and none was necessary. . . . I find ... that her Captain, crew, agent, or other representatives were not negligent in any particular." 181 F. Supp. 202, at 205-207. 168 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. the lengthy record shows that these findings were based upon substantial evidence. They were re-examined and affirmed on appeal.3 We cannot say that they were clearly erroneous. McAllister v. United States, 348 U.S. 19, 20-21. Of greater significance in this litigation is the issue which prompted our remand to the Court of Appeals for reconsideration. Briefly stated, the question is whether, upon the facts as found by the District Court, it was error to hold that the Grelmarion was seaworthy at the time the petitioners were injured! In the Mitchell case, supra, we reversed a judgment for the defendant, because the District Court and the Court of Appeals had mistakenly imported concepts of common-law negligence into an action for unseaworthiness. There the jury had erroneously been instructed that liability for unseaworthiness could attach only if the alleged unseaworthy condition was "there for a reasonably long period of time so that a shipowner ought to have seen that it was removed." 5 The Court of Appeals had affirmed on the theory that, at least as to an unseaworthy condition that arises during the progress of the voyage, the shipowner's obligation "is merely to see that 3 "Careful consideration of, and reflection on, the claims and arguments of the opposing parties, in the light of the record and the controlling authorities, leaves us in no doubt that, as to the charges of negligence, there is no basis whatever for the attack here upon the findings as deary erroneous. Indeed, we are convinced that, under an impartial and disinterested view of the evidence as a whole, the findings are well supported and wholly reasonable." 275 F. 2d, at 193. 4 The District Court and the Court of Appeals, without discussion, proceeded upon the assumption that the petitioners belonged to the class to whom the respondent shipowner owed the duty of providing a seaworthy vessel. This was correct. Seas Shipping Co. v. Sieracki, 328 U. 8. 85; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406. 5 362 U. 8., at 540-541, n. 2. MORALES v. CITY OF GALVESTON. 169 165 Opinion of the Court. reasonable care is used under the circumstances incident to the correction of the newly arisen defect." " It was alleged in that case that a ship's rail which was habitually used as a means of egress to the dock was rendered unseaworthy by the presence of slime and gurry. We did not decide the issue, but reversed for a new trial under proper criteria, holding that the shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability, and that he has an absolute duty "to furnish a vessel and appurtenances reasonably fit for their intended use." 362 U. S., at 550. In the present case the Court of Appeals was of the view that the trial judge's determination of the Grelmarion's seaworthiness at the time the petitioners were injured was in no way inconsistent with our decision in the Mitchell case. We agree. The District Judge did not, as in Mitchell, hold that unseaworthiness liability depends upon the shipowner's actual or constructive knowledge. He did not, as in Mitchell, indicate that liability may be excused if an unseaworthy condition is merely temporary. Rather, as the Court of Appeals pointed out, the trier of the facts found, upon substantial evidence, that "the cause of the injury was not any defect in the ship but the fact that the last shot of grain which was being loaded was contaminated .... " 291 F. 2d, at 98. The trial court found, upon substantial evidence, that what happened was an unexpected, isolated occurrence. Several years before there had been three, or perhaps four, incidents involving injury to longshoremen from grain which had been fumigated by the city itself. But at the time the present case arose the city had adopted a series of safety and inspection measures which made completely innocuous the grain which it fumigated, and 6 265 F. 2d 426, 432. 663026 0-62-1' 170 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. "vast quantities of wheat and other grains had been loaded through the elevator, some eight to ten percent of which had been fumigated by the city, without similar incident in recent years." 1 The court found that the fumes in the present case came from "chloropicrin, an insecticide which had never been used by the respondent city." 8 The petitioners question none of these findings here. Under these circumstances we cannot say that it was error for the court to rule that the absence of a forced ventilation system in the hold did not constitute unseaworthiness.9 A vessel's unseaworthiness might arise from any number of individualized circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The method of loading her cargo, or the manner of its stowage, might be improper. Mahnich v. Southern S.S. Co., 321 U.S. 96; Seas Shipping Co. v. Sieracki, 328 U.S. 85; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406; Alaska Steamship Co. v. Petterson, 347 U. S. 396; Rogers v. United States Lines, 347 U. S. 984; Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336; Crumady v. The J. H. Fisser, 358 U. S. 423; Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U. S. 355. For any or all of these reasons, or others, a vessel might not be reasonably fit 7 181 F. Supp., at 205. 8 Ibid. 9 ". • • While the Grelmarion's cargo spaces Were not equipped with forced ventilation systems, I find that only very rarely is this the case on grain vessels, and that it is not necessary or customary .... " "The finding heretofore has been made that the noxious gases and fumes were introduced into the bin with the last 'shot' of grain, and resulted from a fumigant that had been improperly applied, and that had adhered to the grain an unusually long period of time. Under these circumstances, I find that the admission thereof into the bin of the vessel did not cause the Grelmarion to become unseaworthy, the vessel and all its appurtenances being entirely adequate and suitable in every respect." 181 F. Supp., at 206-207. MORALES v. CITY OF GALVESTON. 171 165 DouGLAs, J., dissenting. for her intended service. What caused injury in the present case, however, was not the ship, its appurtenances, or its crew, but the isolated and completely unforeseeable introduction of a noxious agent from without. The trier of the facts ruled, under proper criteria, that the Grelmarion was not in any manner unfit for the service to which she was to be put, and we cannot say that his determination was wrong. Affirmed. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE DouGLAS, with whom THE CHIEF JusTICE and MR. JusTICE BLACK concur, dissenting. The District Court found that the libellants were injured in 1957 as a result of a release into the hold of a "shot" of grain that completely closed the hatch opening, which was the only source of ventilation for the hold in which they were working. This grain had been treated by chemicals for weevil infestation; and the noxious fumes from those chemicals injured libellants. The vessel's cargo spaces were not equipped· with a forced ventilation system. Grain vessels, the District Court found, rarely are so equipped; and it concluded that forced ventilation is "not necessary or customary." If this were an isolated instance of fumigated grain releasing noxious gases, no claim of unseaworthiness could be maintained. But this was not an isolated instance. Of the wheat loaded through this elevator, some 8 to 10% was fumigated by the city. Wheat is commonly fumigated either in the elevators or in railroad cars. When the fumigant is properly applied, the gases and fumes are dissipated so as not to be dangerous or harmful after 24 to 48 hours. The District Court found, however, that to the knowledge of the owners of the vessel several recent 172 OCTOBER TERM, 1961. DouGLAs, J ., dissenting. 370 u. s. incidents like that in the present case had occurred in Galveston, causing injury to longshoremen-one in 1949, one in 1950, two in 1953. A vessel without a forced ventilation system would be seaworthy if this injury were an unexpected, isolated occurrence. But I agree with Judge Rives of the Court of Appeals that the vessel and her appurtenances were not "reasonably fit for their intended use" (291 F. 2d 97, 99), where up to l0'7o of the grain loaded from this elevator was fumigated and where the owners had knowledge of like accidents. One "intended service" of this vessel was, therefore, the loading of fumigated grain which in the past had given off noxious fumes. Unseaworthiness by reason of the absence of a forced ventilation system is clearer here than it was in Mitchell v. Trawler Racer, Inc., 362 U. S. 539, where temporary slime and gurry on the ship's rail rendered it unseaworthy. The unseaworthy condition in the present case had no such temporary span. What happened here shows that the vessel was unseaworthy whenever fumigated grain was being loaded. MARINE ENGINEERS v. INTERLAKE CO. 173 Syllabus. MARINE ENGINEERS BENEFICIAL ASSOCIATION ET AL. v. INTERLAKE STEAMSHIP co. ET AL. CERTIORARI TO THE SUPREME COURT OF MINNESOTA. No. 166. Argued April 16, 1962.-Decided June 11, 1962. The two petitioner labor unions represented marine engineers employed on the Great Lakes and elsewhere. Respondents owned and operated a fleet of bulk cargo vessels on the Great Lakes, and the marine engineers employed by them were not represented by any union. In a suit brought by respondents, a State Court enjoined peaceful picketing and other activities by the petitioner unions of a kind arguably prohibited by § 8 (b) of the National Labor Relations Act, as amended, if the petitioner unions were "labor organizations" within the contemplation of § 8 (b). Although it was shown from recent decisions of the National Labor Relations Board involving these unions that the Board was of the opinion that they were such "labor organizations," the State Court held that they were not, on the ground that only "supervisory" personnel were involved in the dispute. Held: The dispute was arguably within the jurisdiction of the National Labor Relations Board, and, therefore, the State Court was precluded from exercising jurisdiction. San Diego Building Trades Council v. Garmon, 3/i9 U.S. 236. Pp. 174-185. (a) The principles of San Diego Building Trades Council v. Garmon confined the State Court to deciding only whether the evidence in this case was sufficient to show that either of the petitioner unions was arguably a "labor organization" within the contemplation of § 8 (b). Pp. 177-182. (b) The evidence in this case, including recent decisions of the National Labor Relations Board, was sufficient to deprive the State Court of jurisdiction over this controversy. Pp. 182-183. (c) Evidence having been introduced to show that the petitioner unions were arguably "labor organizations" for the purposes of § 8 (b), it was the duty of the State Court to defer to the Board's determination, in the absence of a showing that this position had been authoritatively rejected by the courts or abandoned by the Board. P. 184. 260 Minn. 1, 108 N. W. 2d 627, reversed. 174 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Lee Pressman argued the cause for petitioners. With him on the briefs was Richard H. Markowitz. Raymond T. Jackson argued the cause for respondents. With him on the briefs was James P. Garner. MR. JusTICE STEWART delivered the opinion of the Court. In San Diego Building Trades Council v. Garmon, 359 U. S. 236, this Court held that the proper administration of the federal labor law requires state courts to relinquish jurisdiction not only over those controversies actually found to be within the jurisdiction of the National Labor Relations Board, but also over litigation arising from activities which might arguably be subject to that agency's cognizance. Only such a rule, the Court held, will preserve for the Labor Board its congressionally delegated function of deciding what is and what is not within its domain.1 In the present case the Supreme Court of Minnesota held that the petitioners, Marine Engineers Beneficial Association (MEBA) and its Local 101, were not "labor organizations" within the meaning of § 8 (b) of the Labor Management Relations Act, 29 U. S. C. § 158 (b), and therefore not subject to the unfair labor practice provisions of that section of the statute. Accordingly, the court held that a state trial court had not erred in assuming jurisdiction over a labor dispute involving MEBA and Local 101, and in permanently enjoining them 1 "At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court's authority cannot remain within a State's power and state jurisdiction too must yield to the exclusive primary competence of the Board." 359 U. S., at 244-245. MARINE ENGINEERS v. INTERLAKE CO. 175 173 Opinion of the Court. from picketing found to be in violation of state law. 260 Minn. 1, 108 N. W. 2d 627. We granted certiorari, 368 U. S. 811, to consider an asserted conflict between the Minnesota court's decision and our holding in the Garmon case. The essential facts which gave rise to this controversy are not in dispute. The respondents owned and operated a fleet of bulk cargo vessels on the Great Lakes. MEBA and Local 101 were unions which represented marine engineers employed on the Great Lakes and elsewhere.2 The marine engineers employed by the respondents were not represented by MEBA or any other union. On November 11, 1959, the respondents' vessel, Samuel Mather, arrived at the dock of the Carnegie Dock and Fuel Company in Duluth, Minnesota. The following morning several members of Local 101 began to picket at the only entrance road to the Carnegie dock. They carried signs which read: "Pickands Mather Unfair to Organized Labor. This Dispute Only Involves P-M. M. E. B. A. Loe. 101 AFL-CIO." and "M. E. B. A. Loe. 101. AFL-CIO. Request P-M Engineers to Join with Organized Labor to Better Working Conditions. This Dispute Only Involves P-M." When the pickets appeared, employees of the Carnegie Dock and Fuel Company refused to continue unloading the Samuel Mather. As a result, the ship was forced to remain at the dock, and another of the respondents' steamers, the Pickands, was compelled to ride at anchor outside the harbor for a number of days, because the Carnegie dock could accommodate but one vessel at a time. 2 The record shows that Local 101 was hardly a "local" in the conventional sense of that term. It had branch offices not only throughout the Great Lakes area, but also in Brooklyn, San Francisco, and Houston, among other places, and there were "approximately 35 to 40 locals-in 101; some are very small, some are very large." 176 OCTOBER TERM, 1961. Opinion of the Court. 370U. S. Upon learning of the picket line, the respondents filed a complaint in the state court charging the union with several violations of state law. The complaint alleged, among other things, that the petitioners had induced Carnegie's employees to refuse to perform services, and that the petitioners had thus caused Carnegie to breach its contract with the respondents. The petitioners filed a motion to dismiss the complaint, claiming that the dispute was arguably subject to the jurisdiction of the National Labor Relations Board and thus, under the Garmon doctrine, beyond the state court's cognizance.3 Evidence was taken concerning the nature and effect of the picketing, the employment status of respondents' marine engineers, and, to a limited extent, the characteristics of MEBA and Local 101. The trial court concluded that the dispute was within its jurisdiction, and, finding the picketing to be in violation of Minnesota law, it issued a temporary injunction prohibiting the petitioners from picketing at or near any site where the respondents' vessels were loading or unloading, from inducing other employees or other firms not to perform services for the respondents, and from interfering in other specified ways with the respondents' operations. The injunction was later made permanent on the basis of the same record, and the court's judgment was affirmed on review by the Supreme Court of Minnesota. The Garmon case dealt with rules of conduct-whether certain activities were protected by § 7 or prohibited by § 8 of the Act. In the present case it has hardly been disputed, nor could it be, that the petitioners' conduct was of a kind arguably prohibited by § 8 ( b) ( 4 )(A) of the Act and thus within the primary jurisdiction of the Board, if MEBA and Local 101 were "labor organizations" 3 Potential NLRB jurisdiction under § 8 (b) is the only basis upon which the petitioners have claimed preemption of state court jurisdiction. See note 4, infra. MARINE ENGINEERS v. INTERLAKE CO. 177 173 Opinion of the Court. within the contemplation of § 8 (b) generally.4 The Minnesota courts determined, however, that those whom the petitioners represented and sought to enlist were "supervisors," that consequently neither of the petitioners was a "labor organization," and therefore that nothing in the Garmon doctrine precluded a state court from assuming jurisdiction. It is the petitioners' contention that the issue to be determined in this case is not whether the state courts correctly decided their "labor organization" status, but whether the state courts were free to finally decide that issue at all. The petitioners contend that the principles of the Garmon decision confined the state court to deciding 4 On November 12, 1959, the day the picketing began, § 8 (b) ( 4) (A) provided as follows: "It shall be an unfair labor practice for a labor organization or its agents- " ( 4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person .... " 29 U. S. C. § 158 (b)(4) (A). Shortly thereafter the amendments made by the Labor-Management Reporting and Disclosure Act became effective, and § 8 (b) (4) (A) became § 8 (b) ( 4) (B), 29 U. S. C. (Supp. II) § 158 (b) ( 4)(B). The here-pertinent language of the amended sections remained virtually the same. . We express no opinion on the ultimate applicability of these provisions. Compare Sailors' Union of the Pacific (Moore Dry Dock Co.), 92 N. L. R. B. 547, with National Maritime Union (Standard Oil Co.), 121 N. L. R. B. 208, enforced, 274 F. 2d 167. See generally, Local, 761, Electrical Workers v. Labor Board, 366 U. S. 667. 178 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. only whether the evidence in this case was sufficient to show that either of them was arguably a "labor organization" within the contemplation of § 8 (b). We agree, and hold that the evidence was sufficient to deprive the Minnesota courts of jurisdiction over this controversy. We see no reason to assume that the task of interpreting and applying the statutory definition of a "labor organization" does not call for the same adjudicatory expertise that the Board must bring to bear when it determines the applicability of §§ 7 and 8 of the Act to substantive conduct. Indeed, analysis of the problem makes clear that the process of defining the term "labor organization" is one which may often require the full range of Board competence. The term "labor organization" is defined by § 2 ( 5) of the Act, which says: "The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists fot' the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." 29 U.S. C. § 152 (5). The part of that definition at issue in the present case is the requirement that "employees participate" in the organization. As defined by § 2 (3) of the Act, "[t]he term 'employee' . . . shall not include . . . any individual employed as a supervisor .... " 29 U. S. C. § 152 (3).5 "Supervisor" is defined in turn by § 2 (11) of the Act to mean: " ... any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, • The decision of Congress to forego regulation of labor relations between employers and their supervisory personnel was the product MARINE ENGINEERS v. INTERLAKE CO. 179 173 Opinion of the Court. recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U. S. C. § 152 (11). The statutory definition of the term "supervisor" has been the subject of considerable litigation before the NLRB and in the federal courts.6 It is immediately apparent, moreover, that the phrase "organization ... in which employees participate" is far from self-explanatory. Several recurring questions stem from the fact that naof experience under the National Labor Relations Act of 1935. The Board's assumption of jurisdiction over supervisors under the 1935 Act was approved by this Court in Packard Motor Car Co. v. Labor Board, 330 U. S. 485. Congress passed the 1947 Act shortly thereafter, explicitly stating its purpose to free employers from compulsion to treat supervisory personnel as employees for the purpose of collective bargaining or organizational activity. S. Rep. No. 105, 80th Cong., 1st Sess., pp. 3-5, 28; H. R. Rep. No. 245, 80th Cong., 1st Sess., pp. 13-17. 6 Compare, e. g., Globe Steamship Co. (Great Lakes Engineers Brotherhood), 85 N. L. R. B. 475, with National Maritime Union (Standard Oil Co.), 121 N. L. R. B., at 209-210, and Graham Transp. Co. (Brotherhood of Marine Engineers), 124 N. L. R. B. 960. See generally, Labor Board v. Brown & Sharpe Mfg. Co., 169 F. 2d 331; Labor Board v. Edward G. Budd Mfg. Co., 169 F. 2d 571; Ohio Power Co. v. Labor Board, 176 F. 2d 385; Labor Board v. Quincy Steel Casting Co., 200 F. 2d 293. Summarizing the many federal court deciEions in this area, the Court of Appeals for the First Circuit recently said," ... the gradations of authority 'responsibly to direct' the work of others from that of general manager or other top executive to 'straw boss' are so infinite and subtle that of necessity a large measure of informed discretion is involved in the exercise by the Board of its primary function to determine those who as a practical matter fall within the statutory definition of a 'supervisor.'" Labor Board v. Swift & Co., 292 F. 2d 561, 563. 180 OCTOBER TERM, 1961. Opinion of the Court. 370 U. 8. tional or even local unions may represent both "employees" and "supervisors." 1 For example, is employee participation in any part of a defendant national or local union sufficient, or must "employees" be involved in the immediate labor dispute? 8 What percentage or degree of employee participation in the relevant unit is required? 9 If an organization is open to "employees" or solicits their membership, must there be a showing that there are actually employee members? And, if a local union is not itself a "labor organization," are there conditions under which it may become subject to § 8 (b) as an agent of some other organization which is? 10 The considerations involved in answering these questions are largely of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole. The term "labor organization" appears in a number of sections of the Act. Section 8 (a) (2), for example, forbids employers to "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it .... " 29 U.S. C. § 158 (a) (2). Section 8 (a) (3) makes it an unfair labor practice for an employer, by certain discriminatory conduct, "to encourage or discourage membership in any labor organization .... " 29 U. S. C. § 158 (a) ( 3). Section 9 ( c), dealing with the largely 1 See Labor Board v. Edward G. Budd Mfg. Co., supra, n. 6; International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N. L. R. B. 720, enforced, 89 U.S. App. D. C. 155, 191 F. 2d 642. 8 See, e. g., National Marine Engineers Beneficial Assn. v. Labor Board, 274 F. 2d 167, 173; International Organization of Masters, Mates & Pilots (Chicago Calumet Stevedoring Co.), 125 N. L. R. B. 113, 131-132. 9 See, e. g., International Organization of Masters, Mates & Pilots v. Labor Board, 48 L. R. R. M. 2624 (C. A. D. C. Cir. 1960). 1° Compare International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N. L. R. B., at 721,743, with National Maritime Union (Standard Oil Co.), 121 N. L. R. B., at 210. MARINE ENGINEERS v. INTERLAKE CO. 181 173 Opinion of the Court. unreviewable area of representation elections,11 refers repeatedly to both "employees" and "labor organizations." The policy considerations underlying these and other sections of the Act, and the relationship of a particular definitional approach under § 8 (b) to the meaning of the same term in the various sections, must obviously be taken into account if the statute is to operate as a coherent whole.12 A centralized adjudicatory process is also essential in working out a consistent approach to the status of the many separate unions which may represent interrelated occupations in a single industry.13 Moreover, as the national agency charged with the administration of federal labor law, the Board should be free in the first instance to consider the whole spectrum of possible approaches to the question, ranging from a broad definition of "labor organization" in terms of an entire union to a narrow case-by-case consideration of the issue. Only the Board can knowledgeably weigh the effect of either choice upon the certainty and predictability of labor management relations, or assess the importance of simple administrative convenience in this area.14 11 See Leedom v. Kyne, 358 U.S. 184. 12 Cf. International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N. L. R. B., at 741. 13 Cf. Globe Steamship Co. (Great Lakes Engineers Brotherhood), 85 N. L. R. B., at 478, 480. 14 See National Marine Engineers Beneficial Assn. v. Labor Board, 274 F. 2d, at 175, where it was said: "We earnestly suggest to the Board that the issue whether these two unions, whose activities concern almost every ocean and inland port of the United States, are 'labor organizations' within the meaning of the National Labor Relations Act deserves more thorough treatment than it has had here. Such an investigation would not, of course, have to be performed in every case. Once the Board determined on the basis of a full inquiry that MEBA and MMP were or were not labor organizations, the Board could rely on this unless there was evidence of a change." 182 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. For these reasons we conclude that the task of determining what is a "labor organization" in the context of § 8 (b) must in any doubtful case begin with the National Labor Relations Board, and that the only workable way to assure this result is for the courts to concede that a union is a "labor organization" for § 8 (b) purposes whenever a reasonably arguable case is made to that effect. Such a case was made in the Minnesota courts. There persuasive evidence was introduced to show that all the marine engineers employed by the respondents were in fact supervisors.15 It was also shown that MEBA had steadfastly maintained in proceedings before the NLRB that it was not a labor organization subject to § 8 (b) of the Act.16 However, the petitioners introduced into the record two recent Board decisions, one holding 15 The trial court relied, in part, upon the 1949 Labor Board decision in Globe Steamship Co., supra, n. 6, which held that certain marine engineers employed on Great Lakes vessels, including those of respondents, were "supervisors" for the purpose of a§ 9 (c) election petition. 10 Respondents introduced an affidavit, filed by MEBA in a prior NLRB proceeding, in which the union claimed to represent only supervisors. This is the affidavit quoted in note 1 of the dissenting opinion, post, p. 185. But, as petitioners pointed out, the Board concluded then, and has continued of the view, that petitioners are "labor organizations" despite such assertions. The petitioners did not attempt to introduce specific evidence in the state court to prove that they actually represented employees who were not supervisors. Indeed, the record would seem to indicate that MEBA and Local 101 would ultimately prefer to be classified as supervisory unions outside the ambit of § 8 of the Federal Act. The actual assertion of NLRB jurisdiction over these unions, however, at the very time the state court action was pending, was more than sufficient to create an arguable case for NLRB jurisdiction under § 8. It would be entirely inconsistent with our holding in Garmon to require the unions affirmatively to abandon in the state court the position they wished to maintain before the NLRB. It would be equally inconsistent to give evidentiary weight to union affidavits dredged up from prior NLRB proceedings in which the Board rejected the union's self-characterizing claims. MARINE ENGINEERS v. INTERLAKE CO. 183 173 Opinion of the Court. that MEBA was subject to § 8 (b) and was guilty of an unfair labor practice for engaging in an activity similar to that involved in this case,11 and the other holding that marine engineers represented by a branch of Local 101 were "employees" for the purpose of a § 9 ( c) election.18 The Board's order in the first case was enforced by the Court of Appeals for the Second Circuit on January 13, 1960, during the pendency of the present litigation in the Minnesota trial court.'9 The state court's attention was expressly called to the Board's theory, subsequently adopted by the Court of Appeals for the Second Circuit, that the relevant unit of membership for determining what is a labor organization in a § 8 (b) context is the entire union, and to the holding that the known membership of a few "employees," provisions in the union's constitution making membership available to "employees," and previous conduct indicative of "employee" representation were sufficient to render the national union a "labor organization." See 121 N. L. R. B., at 209-210; 274 F. 2d, at 174-175. Three additional District Court decisions expressly holding that the Board had reasonable cause to believe that MEBA or Local 101 was subject to § 8 (b) had been decided before the issuance of the Minnesota trial court's judgment in the present litigation, although the record does not show that these were specifically brought to the court's attention.20 17 National Maritime Union (Standard Oil Co.), supra, n. 4. 18 Graham Transp. Co. (Brotherhood of Marine Engineers), supra, n. 6. An official of Local 101 testified on direct examination that the Brotherhood of Marine Engineers "was merged in our local" on May 29, 1959. 19 National Marine Engineers Beneficial Assn. v. Labor Board, supra, n. 8. 20 Schauf!ler v. Local 101, Marine Engineers Ben. Assn., 180 F. Supp. 932; Penello v. Seafarers' International Union, 40 L. R.R. M. 2180 (D. C. E. D. Va., 1957); Douds v. Seafarers' International Union, 148 F. Supp. 953. 184 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. This was a case, therefore, where a state court was shown not simply the arguable possibility of Labor Board jurisdiction over the controversy before it, but that the Board had actually determined the underlying issue upon which its jurisdiction depended, i. e., that MEBA was a "labor organization" for purposes of § 8 (b) of the Act. In the absence of a showing that this position had been authoritatively rejected by the courts,21 or abandoned by the Labor Board itself, we hold that it was the duty of the state court to defer to the Board's determination.22 21 The trial court noted that the Court of Appeals for the Second Circuit had determined that MEBA was not a "labor organization" within the meaning of§ 301 of the federal statute. A.H. Bull Steamship Co. v. National Marine Eng. B. Assn., 250 F. 2d 332. This case was subsequently distinguished by the Second Circuit in a case under §8 (b), National Marine Engineers Beneficial Assn. v. Labor Board, supra, n. 8, and in United States v. National Marine Engineers' Ben. Assn., 294 F. 2d 385. Subsequent to the trial court's decision in the present case the .Court of Appeals for the District of Columbia Circuit ordered the NLRB to take additional evidence and to reconsider its determination of a similar maritime union's status as a "labor organization." International Organization of Masters, Mates & Pilots v. Labor Board, supra, n. 9. At the most these court decisions would only serve to cast some doubt on the validity of the Board's determination. But even if the doubt were much more substantial, the Garmon doctrine would require a state court to decline jurisdiction of the controversy. 22 To distinguish the several NLRB decisions on the ground that each involved marine engineers whose jobs were unlike those of the respondents' engineers, as the Minnesota courts sought to do, is inconsistent with all that Garmon teaches. Such a distinction can be made only on the assumption that the relevant unit in determining what is a "labor organization" for purposes of § 8 (b) is no more than the group of employees involved in the then-pending dispute. The validity of this very assumption is currently being litigated before the Labor Board and reviewing courts. Far from having been authoritatively accepted, this limited view of the relevant unit has at least twice been expressly rejected. National Marine Engineers Be.neficial Assn. v. Labor Board, 274 F. 2d, at 173, enforcing 121 N. L. R. B. 208; International Organization of Masters, Mates & Pilots (Chicago MARINE ENGI~EERS v. INTERLAKE CO. 185 173 DouGLAS, J., dissenting. The need for protecting the exclusivity of NLRB jurisdiction is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the Board. While the Board's decision is not the last word, it must assuredly be the first. In addition, when the Board has actually undertaken to decide an issue, relitigation in a state court creates more than theoretical danger of actual conflict between state and federal regulation of the same controversy. 23 "Our concern" here, as it was in the Garmon case, 359 U. S., at 246, "is with delimiting areas ... which must be free from state regulation if national policy is to be left unhampered." Reversed. MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE DouGLAS, dissenting. While I agree with the principles announced by the Court, I disagree with the result that is reached on the facts of this case. The record contains an affidavit of the President of this union, the Marine Engineers Beneficial Association (MEBA), which states that all members of the union, including the local involved in this case, perform supervisory functions.1 Calumet Stevedoring Co.), 125 N. L. R. B., at 131-132, remanded for reconsideration on other grounds, 48 L. R. R. M. 2624 (C. A. D. C. Cir. 1960). 23 Illustrative of this danger is a recent Federal District Court decision granting an application by a Regional Director of the Board for a temporary injunction against Local 101 prohibiting organizational activity similar to that involved in the present case. Schauf!ler \', Local 101, Marine Engineers Ben. Assn., supra, n. 20. See also other cases cited, n. 20, supra. 1 "I can state most categorically that licensed marine engineers who comprise the entire members of 1\-IEBA, without a single exception in the nature of their work, have authority in the interests of the em- 663026 0-62-16 186 OCTOBER TERM, 1961. DOUGLAS, J., dissenting. 370 U.S. An officer of MEBA testified: "Local 101 of the Marine Engineers Beneficial Association is comprised of those men who are licensed as marine engineers by the United States Coast Guard, and those men who perform the engineering duties of engineers, whether or not they are licensed by the Coast Guard." The record makes clear that a licensed engineer has supervisory duties whenever there is someone working under him. That status is grounded in the historic distinction between licensed and unlicensed personnel and is shown by this record.2 A union of masters and mates ployer for whom they may be working to hire, transfer, suspend, lay off, recall, promote, discharge, fine, reward or discipline the unlicensed personnel who work in the engine department, over which the licensed engineers have supervision or responsibility to direct such unlicensed personnel in the engine department or adjust the grievances of the unlicensed personnel in the engine department, or to effectively recommend any such action. In furtherance of their duties, licensed engineers do not exercise the authority just described merely as a routine or clerical nature, but they must exercise the use of independent judgment. Every single member of MEBA performs work of the nature which I have just described. The type of marine personnel over whom the MEBA assumes jurisdiction and takes in as members, is precisely that which I have just described. We do not have any members who do not fall within such description, insofar as their duties and responsibilities are concerned." 2 The findings state: "All engineers and assistant engineers employed on Interlake vessels stand watches during which they are in charge of and responsible for the operation and condition of the vessel's propulsion mechanism and responsibly direct, control and supervise the work of the firemen, oilers and coal passers on duty during such watch; they hire, fire, transfer and change the status of and discipline the persons working under them and have authority to and do make effective recommendations respecting the employment and tenure of employment of the people working under them; they handle initially grievances of the employees who are subject- to their supervision; the exerMARINE ENGINEERS v. INTERLAKE CO. 187 173 DouGLAS, J., dissenting. would plainly be a union of supervisors and under present law not be qualified to represent ordinary seamen. If there are rare instances when an engineer on a tug, for example, is nothing more than an employee, that has not been shown in the record and is directly contrary to the affidavit of this union's president. The trial court in this case said that the record "does not show" that this MEBA Local "admits to membership any non-supervisory employee, and in any event it is clear that its membership is composed primarily and almost exclusively of supervisors." That finding is not challenged here. Petitioners, placing all their hopes on the words of the trial court that this local is composed "primarily and almost exclusively of supervisors," say it may therefore be arguably and reasonably contended that the local is a labor organization within the meaning of the Act. Section 2 ( 5) defines "labor organization" as any organization "in which employees participate" for the purpose "of dealing with employers concerning grievances," etc. The word "employee" was redefined by Congress 3 following our decision in Packard Co. v. Labor Board, 330 U. S. 485, so as to exclude "any individual employed as a supervisor." § 2 (3). And § 14 (a) provides that "Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining." cise of authority by the engineers and assistant engineers requires the use of independent judgment and discretion; and all such engineers are required to be licensed by the United States Coast Guard." 3 See H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 23; S. Rep. No. 105, 80th Cong., 1st Sess., p. 28. 188 OCTOBER TERM, 1961. DOUGLAS, J., dissenting. 370 U.S. There is not a shred of evidence in this record showing that any employee not a superv-isor is a member of this union. There is therefore not a shred of evidence to show that this local of MEBA is a "labor organization." Since there is not, it has made no showing that it is entitled to any of the protections of the Federal Act. Such a showing is within its power to make. It apparently claims to be a "labor organization" when it is to its advantage to do so and protests against being so labeled when that position serves its end.4 If it desires the protection of the Federal Act, it should be required to come forth with evidence showing who its members are. In absence of such a showing, we should not disturb the rulings of the Minnesota courts, which on this record were fully justified in enjoining the picketing. It was indeed conceded by counsel for MEBA at the trial that the purpose of the picketing was "to improve the wages, hours and working conditions" of the "licensed engineers," not the wages, hours and working conditions of those few undisclosed individuals who it is now intimated may have been members of the union. Since this local is not on this record a "labor organization," it does not come within the purview of § 8 (b) (2) or § 8 (b) ( 4), which makes certain practices, alleged to have taken place here, unfair labor practices. For § 14, quoted above, returned supervisors to the basis which they enjoyed prior to the Federal Act. Bull S. S. Co. v. National Marine Eng. B. Assn., 250 F. 2d 332. 4 Cf. with the decision below the contentions of MEBA in National Marine Engineers Ben. Assn. v. Labor Board, 274 F. 2d 167, 170 ("MEBA says its membership is composed exclusively of supervisors") and Schauffier v. Local 101, Marine Engineers Ben. Assn., 180 F. Supp. 932, 935 (where the local involved in the present case argued that it was not a labor organization within the meaning of the Act). In National Organization of Masters, Mates, and Pilots of America, et al., 116 N. L. R. B. 1787, MEBA admitted it was a "labor organization" within the meaning of the Act. MARINE ENGINEERS v. INTERLAKE CO. 189 173 DouGLAS, J., dissenting. It matters not that at other times this local or MEBA may have been a "labor organization" for purposes of the Federal Act.5 Apparently an engineer may at times be only an ordinary employee.6 So for one operation this local may have members doing the work of nonsupervisory employees. Whether its status would therefore change from day-to-day or week-to-week might be presented in some case. It is not presented here, for, on a record showing only supervisors among the membership list, the union has no claim to shelter under the Federal Act. 5 The finding of the Labor Board in National Marine Engineers Ben. Assn. v. Labor Board, 274 F. 2d 167, that MEBA was a "labor organization" turned on a narrow procedural point mentioned by the Court of Appeals: "MEBA and MMP know who their members are and, if they do not know what their members do, certainly they can find out. The Board could properly have thought that the matters placed in the record by the general counsel justified an inference that non-supervisors do participate in MEBA and MMP, and that this sufficed for the Board's finding to that effect unless they were rebutted by more convincing evidence than the unions offered here. We therefore cannot say the Board's finding that MEBA and MMP were labor organizations did not meet the standards laid down in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456." 274 F. 2d, at 175. 6 See National, Marine Engineers Ben. Assn. v. Labor Board, 274 F. 2d 167, 172-173: "The Board's general counsel did not dispute that two of the three engineers on the Franklin D. Roosevelt, the chief engineer and the relief chief engineer, were supervisors; but there was much argument whether the third should be so considered since he exercised supervisory duties only when neither the chief engineer nor the relief chief engineer was about. See N. L. R. B. v. Quincy Steel Casting Co., 1st Cir., 1952, 200 F. 2d 293. The general counsel claimed that at least one of the engineers on the Sandra Marie could not have been a supervisor since he had no one to supervise. See General Foods Corp., 110 N. L. R. B. 1088 (1954). MEBA disputed this, as well as the contention relating to the third engineer on the Franklin D. Roosevelt, claiming that these engineers were qualified and on these ships normally would have someone to supervise." 190 OCTOBER TERM, 1961. Per Curiam. 370U. S. W. M. C. A., INC., ET AL. v. SIMON, SECRETARY OF STATE OF NEW YORK, ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 836. Decided June 11, 1962. A three-judge Federal District Court dismissed a complaint under the Civil Rights Act and 28 U. S. C. § 1343 alleging violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment by New York State's constitutional and statutory provisions governing apportionment of State Senate and Assembly districts. Held: The judgment is vacated and the case is remanded for further consideration in the light of Baker v. Carr, 369 U.S. 186. Pp. 190-191. Reported below: 202 F. Supp. 741. Leonard B. Sand and Max Gross for appellants. Louis J. Lefkowitz, Attorney General of New York, Irving Galt, Assistant Solicitor General, George C. Mantzoros and Gretchen W. Oberman, Assistant Attorneys General, Sheldon Raab, Deputy Assistant Attorney General, Leo A. Larkin, Benjamin Offner, Bertram Harnett and Francis J. Morgan for appellees. PER CURIAM. On January 11, 1962, the three-judge District Court dismissed the complaint alleging violation of the Constitution of the United States by New York State's constitutional and statutory provisions governing apportionment of State Senate and Assembly Districts. 202 F. Supp. 741. The three judges filed separate opinions, no two of which supported the judgment of dismissal on identical grounds. One opinion expressed the view that the action should be dismissed for failure to state a claim, want of W. M. C. A., INC., v. SIMON. 191 190 HARLAN, J., dissenting. justiciability, and want of equity. 202 F. Supp., at 742. A second opinion expressed the view that since the apportionment was not alleged to effect a discrimination against any particular racial or religious group, but merely a geographical discrimination, jurisdiction should be exercised, but only to dismiss. 202 F. Supp., at 754. A third opinion rested on the ground that the action was not justiciable and expressed no view on the merits. 202 F. Supp., at 755. On March 26, 1962, we held in Baker v. Carr, 369 U.S. 186, that a justiciable federal constitutional cause of action is stated by a claim of arbitrary impairment of votes by means of invidiously discriminatory geographic classification. Our well-established practice of a remand for consideration in the light of a subsequent decision therefore applies. As in Scholle v. Hare, 369 U. S. 429, we believe that the court below should be the first to consider the merits of the federal constitutional claim, free from any doubts as to its justiciability and as to the merits of alleged arbitrary and invidious geographical discrimination. The judgment is vacated and the case is remanded for further consideration in the light of Baker v. Carr, supra. The motions to substitute Paul R. Screvane in the place of Abe Stark, and Eugene H. Nickerson in the place of A. Holly Patterson, as parties appellee, are granted. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE HARLAN, dissenting. For reasons given in my dissent in Scholle v. Hare, 369 U. S. 429, 430, I would affirm, or, failing that, note probable jurisdiction. The complaint in this case squarely tenders the issue as to whether the Equal Protection 192 OCTOBER TERM, 1961. HARLAN, J., dissenting. 370U.S. Clause of the Federal Constitution is violated by a state apportionment of seats in both its legislative chambers on other than a substantially proportional populational basis. As in Scholle, the lower court considered this claim on the merits and rejected it by holding that the existing distribution of New York State legislators (founded on principles embodied in the State Constitution since 1894) violated no federal constitutional right. I read the opinions below quite differently than does the Court. The first opinion is that of Judge Levet, which the Court states "expressed the view that the action should be dismissed for failure to state a claim, want of j usticiability, and want of equity." After first holding that the Court had jurisdiction over the action, Judge Levet held that "the complaint fails to state a claim upon which relief can be granted" (202 F. Supp., at 753), in that "[t]here is no authoritative indication that the relative weight accorded individual votes in elections for the state legislature, pursuant to the applicable provisions of the State Constitution, is protected by the equal protection clause of the Fourteenth Amendment. In fact, the contrary seems true." Id., at 749. (Emphasis added.) He then proceeded further: "If the insufficiency of the complaint be not adequate to require dismissal of the complaint, as I believe it is, then the want of equity in the relief sought, or, to view it slightly differently, want of justiciability, clearly demands dismissal." Id., at 753. The second opinion is that of Judge Ryan, described by the Court as expressing "the view that since the apportionment was not alleged to effect a discrimination against any particular racial or religious group, but merely a geographical discrimination, jurisdiction should be exercised, but only to dismiss." Actually, however, Judge Ryan agreed with Judge Levet, stating at the outset of his separate opinion: "I concur with Judge Levet and the conW. M. C. A., INC., v. SIMON. 193 190 HARLAN, J., dissenting. clusions he has reached that this Court has jurisdiction to entertain this suit and that the complaint should be dismissed on its merits." Id., at 754. (Emphasis added.) He went on to state: "The complaint is that the method of apportionment gives rise solely to territorial or purely geographical discrimination which grossly dilutes the vote of urban dwellers. Judicial interference by federal courts with the power of the state to create internal political or geographical boundaries affecting the right of suffrage can not be supported by mere territorial discrimination and nothing more._" Ibid. While this language, taken in connection with some of that which precedes it (ibid.), might lend itself to the view that Judge Ryan was thinking only in terms of "justiciability," I do not think it is properly so read. Judge Ryan nowhere suggests that he disagrees with Judge Levet's further, and distinctive, ground for dismissal, that the complaint failed to state a federal constitutional claim. The third opinion, that of Judge Waterman, did, as the Court says, turn only on "non-justiciability." Judge Waterman declined to "express any views with reference to whether the present legislative apportionment in the State of New York violates the Fourteenth Amendment to the United States Constitution," id., at 755, thereby evincing his understanding that his colleagues had also rested decision on a ground which he found unnecessary to reach. For me, it thus seems clear that two members of the three-judge court dismissed the action on two alternative grounds: (1) that the matter was not "justiciable"; (2) that the complaint stated no cause of action, in that the "territorial discrimination" existing under New York's legislative apportionment did not give rise to a claim cognizable under the Fourteenth Amendent. The latter ground was precisely the issue that was avoided in Baker 194 OCTOBER TERM, 1961. H.~RLAN, J., dissenting. 370 U.S. v. Carr, 369 U.S. 186, 330 (dissenting opinion); see also id., at 265 (concurring opinion). It is unfortunate that the Court, now for the second time, has remanded a case of this kind without first coming to grips itself with this basic constitutional issue, or even indicating any guidelines for decision in the lower courts. Baker v. Carr, supra, of course did neither. SINCLAIR REFINING CO. v. ATKINSON. 195 Syllabus. SINCLAIR REFINING CO. v. ATKINSON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 434. Argued April 18, 1962.-Decided June 18, 1962. This suit under § 301 (a) of the Labor Management Relations Act, 1947, was brought by an employer to enjoin work stoppages, strikes, peaceful picketing and similar activities by labor unions and their officers and members, allegedly in violation of a collective bargaining agreement containing a no-strike clause and providing a grievance procedure culminating in compulsory, final and binding arbitration of "any difference regarding wages, hours or working conditions." Held: Such an injunction was barred by § 4 of the Norris-La.Guardia Act, which, with exceptions not here material, bars federal courts from issuing injunctions "in any case involving or growing out of any labor dispute." Pp. 196-215. (a) This case involved a "labor dispute" within the meaning of the Norris-LaGuardia Act-even if the alleged work stoppages and strikes constituted breaches of a collective bargaining agreement. Pp. 199-203. (b) The subsequent enactment of § 301 of the Labor Management Relations Act, 1947, authorizing suits in federal courts "for violation of contracts between an employer and a labor organization" has not so narrowed the provisions of § 4 of the Norris- LaGuardia Act as to permit the injunctions originally proscribed thereby when such injunctions are sought as remedies for breaches of a collective bargaining agreement. Pp. 203-210. (c) Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30; Textile Workers v. Lincoln Mills, 353 U. S. 448; United Steelworkers v. American Mfg. Co., 363 U.S. 564; United Steelworkers v. Warrior & Gulf Navigati.on Co., 363 U.S. 574, and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, distinguished. Pp. 210-213. (d) Section 301 of the Labor Management Relations Act, 1947, presents no real conflict with the anti-injunction provisions of the Norris-LaGuardia Act. Pp. 213-215. 290 F. 2d 312, affirmed. 196 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. George B. Christensen argued the cause for petitioner. With him on the briefs were Fred H. Daugherty and Richard W. A us tin. Gilbert A. Cornfield argued the cause for respondents. With him on the briefs were Gilbert Feldman and William E. Rentfro. MR. JusTICE BLACK delivered the opinion of the Court. The question this case presents is whether § 301 of the Taft-Hartley Act, in giving federal courts jurisdiction of suits between employers and unions for breach of collective bargaining agreements,1 impliedly repealed § 4 of the pre-existing Norris-LaGuardia Act, which, with certain exceptions not here material, barred federal courts from issuing injunctions "in any case involving or growing out of any labor dispute." 2 1 "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." 61 Stat. 156, 29 U. S. C. § 185 (a). 2 "No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts: "(a) Ceasing or refusing to perform any work or to remain in any relation of employment; "(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence; "(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified " 47 Stat. 70, 29 U. S. C. § 104. SINCLAIR REFINING CO. v. ATKINSON. 197 195 Opinion of the Court. The complaint here was filed by the petitioner Sinclair Refining Company against the Oil, Chemical and Atomic Workers International Union and Local 7-210 of that union and al1eged: that the International Union, acting by and with the authority of the Local Union and its members, signed a written collective bargaining contract with Sinclair which provided for compulsory, final and binding arbitration of "any difference regarding wages, hours or working conditions between the parties hereto or between the Employer and an employee covered by this working agreement which might arise within any plant or within any region of operations"; that this contract also included express provisions by which the unions agreed that "there shall be no slowdowns for any reason whatsoever" and "no strikes or work stoppages . . . [f] or any cause which is or may be the subject of a grievance"; and that notwithstanding these promises in the collective bargaining contract the members of Local 7-210 had, over a period of some 19 months, engaged in work stoppages and strikes on nine separate occasions, each of which, the complaint charged, grew out of a grievance which could have been submitted to arbitration under the contract and therefore fell squarely within the unions' promises not to strike. This pattern of repeated, deliberate violations of the contract, Sinclair alleged, indicated a complete disregard on the part of the unions for their obligations under the contract and a probability that they would continue to "subvert the provisions of the ccntract" forbidding strikes over grievances in the future unless they were enjoined from doing so. In this situation, Sinclair claimed, there was no adequate remedy at law which would protect its contractual rights and the court should therefore enter orders enjoining the unions and their agents "preliminarily at first, and thereafter permanently, from aiding, abetting, fomenting, advising, participating in, ratifying, or condoning any strike, stoppage of work, 198 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. slowdown or any other disruption of, or interference with normal employment or normal operation or production by any employee within the bargaining unit at plaintiff's East Chicago, Indiana refinery covered by the contract between the parties dated August 8, 1957, in support of, or because of, any matter or thing which is, or could be, the subject of a grievance under the grievance procedure of the said contract, or any extension thereof, or any other contract between the parties which shall contain like or similar provisions." 3 The unions moved to dismiss this complaint on the ground that it sought injunctive relief which United States courts, by virtue of the Norris-LaGuardia Act, have no jurisdiction to give. The District Court first denied the motion, but subsequently, upon reconsideration after full oral argument, vacated its original order and granted the unions' motion to dismiss.• In reaching this conclusion, the District Court reasoned that the controversy between Sinclair and the unions was unquestionably a "labor dispute" within the meaning of the Norris-LaGuardia Act and that the complaint therefore came within the proscription of § 4 of that Act which "withdraws jurisdiction from the federal courts to issue injunctions to prohibit the refusal 'to perform work or remain in any relation of employment' in cases involving any labor dispute." 5 The Court of Appeals for the Seventh Circuit affirmed the order of dismissal for the same reasons.6 Because this decision presented a conflict with the deci- 3 The suit filed by Sinclair was in three counts, only one of which, Count 3, is involved in this case. Counts 1 and 2, upon which Sinclair prevailed below, are also before the Court in No. 430. See Atkinson v. Sinclair Refining Co., post, p. 238, decided today. • 187 F. Supp. 225. 5 Id., at 228. 6 290 F. 2d 312. SINCLAIR REFINING CO. v. ATKINSON. 199 195 Opinion of the Court. sion on this same important question by the Court of Appeals for the Tenth Circuit,7 we granted certiorari.8 We agree with the courts below that this case does involve a "labor dispute" within the meaning of the Norris-LaGuardia Act. Section 13 of that Act expressly defines a labor dispute as including "any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." 9 Sinclair's own complaint shows quite plainly that each of the alleged nine work stoppages and strikes arose out of a controversy which was unquestionably well within this definition.10 7 Chauffeurs, Team.~ters &: Helpers Local No. ?'95 v. Yellow Transit Freight Lines, 282 F. 2d 345. Both the First and the Second Circuits have also considered this question and both have taken the same position as that taken below. See W. L. Mead, Inc., v. Teamsters Local No. 25, 21i F. 2d 6; Alcoa S. S. Co. v. McMahon, 173 F. 2d 567; In re Third Ave. Transit Corp., 192 F. 2d 971; A.H. Bull Steamship Co. Y. Seafarers' International Union. 250 F. 2d 326. 8 368 u. s. 937. 0 47 Stat. 73, 29 U. S. C. § 113. 10 The allegations of the complaint with regard to the nine occurrences in question are as follows: "(a) On or about July 1, 1957, six employees assigned to the #810 Crude Still stopped work in support of an asserted grievance involving the removal of Shift Machinists from the # 810 Still area; "(b) On or about September 17, 1957, all employees employed in the Mason Department refused to work on any shift during the entire day; the entire Mechanical Department refused to work from approximately noon until midnight; the employees of the Barrel House refused to work from the middle of the afternoon until midnight; a picket line was created which prevented operators from reporting to work on the 4:00 P. M. to midnight shift, all in support of an asserted grievance on behalf of five apprentice masons for whom 200 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Nor does the circumstance that the alleged work stoppages and strikes may have constituted a breach of a collective bargaining agreement alter the plain fact that a "labor dispute" within the meaning of the Norris- LaGuardia Act is involved. Arguments to the contrary proceed from the premise that § 2 of that Act, which insufficient work was available to permit their retention at craft levels. "(c) On or about March 28, 1958, approximately 73 employees in the Rigging Department refused to work for approximately one hour in support of an asserted grievance that riggers were entitled to do certain work along with machinists. "(d) On or about May 20, 1958, approximately 24 employees in the Rigging Department refused to work for 1 ¾ hours in support of an asserted grievance that riggers were entitled to do certain work along with boilermakers. "(e) On or about September 11, 1958, approximately 24 employees in the Rigging Department refused to work for approximately two hours in support of an asserted grievance that pipefitters could not dismantle and remove certain pipe coils without riggers being employed on the said work also. "(f) On or about October 6 and 7, 1958, approximately 43 employees in the Cranes and Trucks Department refused to work for approximately eight hours in support of an asserted grievance concerning employment by the Company of an independent contractor to operate a contractor owned crane. "(g) On or about November 19, 1958, approximately 71 employees refused to work for approximately 3%, hours in the Boilermaking Department in support of an asserted grievance that burners and riggers would not dismantle a tank roof without employment of boilermakers at the said task. "(h) On or about November 21, 1958, in further pursuance of the asserted grievance referred to in subparagraph (g) preceding, the main entrance to the plant was picketed and barricaded, thereby preventing approximately 800 employees from reporting for work for an entire shift. "(i) On or about February 13 and 14, 1959, approximately 999 employees were induced to stop work over an asserted grievance on behalf of three riggers that they should not have been docked an aggregate of $2.19 in their pay for having reported late to work." SINCLAIR REFINING CO. v. ATKINSON. 201 195 Opinion of the Court. expresses the public policy upon which the specific antiinjunction provisions of the Act were based, contains language indicating that one primary concern of Congress was to insure workers the right "to exercise actual liberty of contract" and to protect "concerted activities for the purpose of collective bargaining." 11 From that premise, Sinclair argues that an interpretation of the term "labor dispute" so as to include a dispute arising out of a union's refusal to abide by the terms of a co1Iective agreement to which it freely acceded is to apply the Norris-LaGuardia Act in a way that defeats one of the purposes for which it was enacted. But this argument, though forcefully urged both here and in much current commentary on this question,12 rests more upon considerations of what many 11 "In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows: "Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to orgamze in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in selforganization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are enacted." 47 Stat. 70, 29 U. S. C. § 102. 12 One of the most forthright arguments for judicial re-evaluation of the wisdom of the anti-injunction provisions of the Norris-LaGuardia Act and judicial rather than congressional revision of the meaning and scope of these provisions as applied to conduct in breach of a collec- 663026 0-62-17 202 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. commentators think would be the more desirable industrial and labor policy in view of their understanding as to the prevailing circumstances of contemporary labormanagement relations than upon what is a correct judicial interpretation of the language of the Act as it was written by Congress. In the first place, even the general policy declarations of § 2 of the Norris-LaGuardia Act, which are the foundation of this whole argument, do not support the conclusion urged. That section does not purport to limit the Act to the protection of collective bargaining but, instead, expressly recognizes the need of the anti-injunction provisions to insure the right of workers to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Moreover, the language of the specific provisions of the Act is so broad and inclusive that it leaves not the slightest opening for reading in any exceptions beyond those clearly written into it by Congress itself .13 tive bargaining agreement is presented in Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635. That author, in urging that a strike in breach of a collective agreement should not now be held to involve or grow out of a "labor dispute" within the meaning of the Norris-LaGuardia Act, states: "After all, 1932 was a long time ago and conditions have changed drastically. Judges who still confuse violations of collective agreements with § 13 labor disputes and § 4 conduct have, in my opinion, lost contact with reality. The passage of time has operated as a function of many other types of judicial output at the highest level. I do not see why it should not do so in this instance, as well." Id., at 645-646, n. 39. See also Stewart, No-Strike Clauses in the Federal Courts, 59 Mich. L. Rev. 673, especially at 683; Rice, A Paradox of our National Labor Law, 34 Marg. L. Rev. 233. 13 Thus we conclude here precisely as we did in Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330: "We find nothing in the declarations of policy which narrows the definition of a labor dispute as found in the statutes. The rights of the parties and the jurisdiction of the federal courts are to be determined according to the express provisions applicable to labor disputes as so defined." SINCLAIR REFINING CO. v. ATKINSON. 203 195 Opinion of the Court. We cannot ignore the plain import of a congressional enactment, particularly one which, as we have repeatedly said, was deliberately drafted in the broadest of terms in order to avoid the danger that it would be narrowed by judicial construction.14 Since we hold that the present case does grow out of a "labor dispute," the injunction sought here runs squarely counter to the proscription of injunctions against strikes contained in § 4 (a) of the Norris-LaGuardia Act, to the proscription of injunctions against peaceful picketing contained in § 4 (e) and to the proscription of injunctions prohibiting the advising of such activities contained in § 4 (i).15 For these reasons, the Norris-LaGuardia Act deprives the courts of the United States of jurisdiction to enter that injunction unless, as is contended here, the scope of that Act has been so narrowed by the subsequent enactment of § 301 of the Taft-Hartley Act that it no longer prohibits even the injunctions specifically described in § 4 where such injunctions are sought as a remedy for breach of a collective bargaining agreement. Upon consideration, we cannot agree with that view and agree instead with the view expressed by the courts below and supported by the Courts of Appeals for the First and Second Circuits that § 301 was not intended to have any such partially repealing effect upon such a long-standing, carefully thought out and highly significant part of this country's labor legislation as the Norris-LaGuardia Act.16 14 United States v. Hutcheson, 312 U. S. 219, 234, and cases cited therein. 15 See note 2, supra. 16 We need not here again go into the history of the Norris- LaGuardia Act nor the abuses which brought it into being for that has been amply discussed on several occasions. See Frankfurter and Greene, The Labor Injunction. And see e. g., United States v. Hutcheson, 312 U. S. 219, 235-236; Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc., 311 U. S. 91, 102-103. It is 204 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. The language of § 301 itself seems to us almost if not entirely conclusive of this question. It is especially significant that the section contains no language that could by any stretch of the imagination be interpreted to constitute an explicit repeal of the anti-.injunction provisions of the Norris-LaGuardia Act in view of the fact that the section does expressly repeal another provision of the Norris-LaGuardia Act dealing with union responsibility for the acts of agents.17 If Congress had intended that § 301 suits should also not be subject to the anti-injunction provisions of the Norris-LaGuardia Act, it certainly seems likely that it would have made its intent known in this same express manner. That is indeed precisely what Congress did do in § 101, amending § 10 (h) of the National Labor Relations Act, and§ 208 (b) of the Taft- Hartley Act, by permitting injunctions to be obtained, not by private litigants, but only at the instance of the National Labor Relations Board and the Attorney Gensufficient here to note that the reasons which led to the passage of the Act were substantial and that the Act has been an important part of the pattern of legislation under which unions have functioned for nearly 30 years. 11 Section 301 ( e) of the Act, 61 Stat. 156, 29 U. S. C. § 185 ( e), provides: "For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." This, of course, was designed to and did repeal for purposes of suits under § 301 the previously controlling provisions of § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U.S. C. § 106: "No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof." SINCLAIR REFINING CO. v. ATKINSON. 205 195 Opinion of the Court. eral,18 and in § 302 (e), by permitting private litigants to obtain injunctions in order to protect the integrity of employees' collective bargaining representatives in carrying out their responsibilities.19 Thus the failure of Congress to include a provision in § 301 expressly repealing the anti-injunction provisions of the N orris-LaGuardia Act must be evaluated in the context of a statutory pattern that indicates not only that Congress was completely familiar with those provisions but also that it regarded an express declaration of inapplicability as the normal and proper manner of repealing them in situations where such repeal seemed desirable. When the inquiry is carried beyond the language of § 301 into its legislative history, whatever small doubts as to the congressional purpose could have survived consideration of the bare language of the section should be wholly dissipated. For the legislative history of § 301 shows that Congress actually considered the advisability of repealing the Norris-LaGuardia Act insofar as suits based upon breach of collective bargaining agreements are concerned and deliberately chose not to do so.2° The 18 61 Stat. 146, 155, as amended, 29 U.S. C. §§ 160 (h), 178 (b). 19 61 Stat. 157, 29 U. S. C. § 186 (e). That this section, which stands alone in expressly permitting suits for injunctions previously proscribed by the Norris-LaGuardia Act to be brought in the federal courts by private litigants under the Taft-Hartley Act, deals with an unusually sensitive and important problem is shown by the fact that § 186 makes the conduct so enjoinable a crime punishable by both fine and imprisonment. 20 This fact was expressly recognized by the Court of Appeals for the Second Circuit in A. H. Bull Steamship Co. v. Seafarers' International Union, 250 F. 2d 326, 331-332. See also T-V. L. Mead, Inc., v. Teamsters Local No. 25, 217 F. 2d 6, 9-10; Comment, Labor Injunctions and Judge-Made Labor Law: The Contemporary Role of Norris- LaGuardia, 70 Yale L. J. 70, 97-99. Another commentator, though urging his own belief that a strike in breach of a collective agreement is not a "labor dispute" within the Norris-LaGuardia Act, nevertheless admits that Congress thought it was and deliberately 206 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. section as eventually enacted was the product of a conference between Committees of the House and Senate, selected to resolve the differences between conflicting provisions of the respective bills each had passed. Prior to this conference, the House bill had provided for federal jurisdiction of suits for breach of collective bargaining contracts and had expressly declared that the Norris- LaGuardia Act's anti-injunction provisions would not apply to such suits.21 The bill passed by the Senate, like the House bill, granted federal courts jurisdiction over suits for breach of such agreements but it did not, like the House bill, make the Norris-LaGuardia Act's prohibition against injunctions inapplicable to such suits.22 Instead it made breach of a collective agreement an unfair labor practice.23 Under the Senate version, therefore, a breach decided to leave the anti-injunction provisions of that Act applicable to § 301 suits. See Rice, A Paradox of our National Labor Law, 34 Marq. L. Rev. 233, 235. 21 H. R. 3020, 80th Cong., 1st Sess., as it passed the House, provided: "SEc. 302. (a) Any action for or proceeding involving a violation of an agreement between an employer and a labor organization or other representative of employees may be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such agreement affects commerce, or the court otherwise has jurisdiction of the cause. "(e) In actions and proceedings involving violations of agreements between an employer and a labor organization or other representative of employees, the provisions of the Act of March 23, 1932, entitled 'An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity and for other purposes,' shall not have any application in respect of either party." I Legislative History of the Labor Management Relations Act, 1947, 221-222. 22 This is true both of the original Senate bill, S. 1126, as reported and of the amended House bill, H. R. 3020, as passed by the Senate. I Leg. Hist. 151-152; I Leg. Hist. 279-280. 23 I Leg. Hist. 111-112, 114, 239, 241-242. SINCLAIR REFINING CO. v. ATKINSON. 207 195 Opinion of the Court. of a collective bargaining agreement, like any unfair labor practice, could have been enjoined by a suit brought by the National Labor Relations Board,24 but no provision of the Senate version would have permitted the issuance of an injunction in a labor dispute at the suit of a private party. At the conference the provision of the House bill expressly repealing the anti-injunction provisions of the Norris-LaGuardia Act, as well as the provision of the bill passed by the Senate declaring the breach of a collective agreement to be an unfair labor practice, was dropped and never became law. Instead, the conferees, as indicated by the provision which came out of the conference and eventually became § 301, agreed that suits for breach of such agreements should remain wholly private and "be left to the usual processes of the law" 25 and that, in view of the fact that these suits would be at the instance of private parties rather than at the instance of the Labor Board, no change in the existing anti-injunction provisions of the Norris-LaGuardia Act should be made. The House Conference Report expressly recognized that the House provision for repeal in contract actions of the antiinjunction prohibitions of the Norris-LaGuardia Act had been eliminated in Conference: "Section 302 ( e) of the House bill made the Norris-LaGuardia Act inapplicable in actions and proceedings involving violations of agreements between an employer and a labor organization. Only part of this provision is included in the conference agreement. Section 6 of the Norris-LaGuardia Act provides that no employer or labor organization " In such a situation, suit for injunction could be brought by the Board and, by virtue of§ 10 (h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 146, 29 U. S. C. § 160 (h), the Norris-LaGuardia Act would not apply. 25 H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess., pp. 41-42, I Leg. Hist. 545-546. 208 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. participating or interested in a labor dispute shall be held responsible for the unlawful acts of their agents except upon clear proof of actual authorization of such acts, or ratification of such acts after actual knowledge thereof. This provision in the Norris- LaGuardia Act was made inapplicable under the House bill. Section 301 ( e) of the conference agreement provides that for the purposes of section 301 in determining whether any person is acting as an agent of another so as to make such other person responsible for his actions, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." 26 And Senator Taft, Chairman of the Conference Committee and one of the authors of this legislation that bore his name, was no less explicit in explaining the results of the Conference to the Senate: "The conferees rejected the repeal of the N orris-LaGuardia Act." 27 26 H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess., p. 66, I Leg. Hist. 570. 27 93 Cong. Rec. 6445-6446, II Leg. Hist. 1544. Immediately prior to this remark, Senator Taft had inserted into the Record a written summary of his understanding as to the effect of the conference upon the bill passed by the Senate: "When the bill passed the Senate it also contained a sixth paragraph in this subsection [8 (a)] which made it an unfair labor practice for an employer to violate the terms of a collective- bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration. The Hoμse conferees objected to this provision on the ground that it would have the effect of making the terms of every collective agreement subject to interpretation and determination by the Board, rather than by the courts. The Senate conferees ultimately agreed to its elimination as well as the deletion of a similar provision contained in subsection 8 (b) (5) of the Senate amendment which made it an unfair labor practice for a labor organization to violate the terms of collective-bargaining agreements. The provisions of the Senate amendment which conferred a right of action for damages upon a party aggrieved by breach of a collectiveSINCLAIR REFINING CO. v. ATKINSON. 209 195 Opinion of the Court. We cannot accept the startling argument made here that even though Congress did not itself want to repeal the Norris-LaGuardia Act, it was willing to confer a power upon the courts to "accommodate" that Act out of existence whenever they might find it expedient to do so in furtherance of some policy they had fashioned under § 301. The unequivocal statements in the House Conference Report and by Senator Taft on the floor of the Senate could only have been accepted by the Congressmen and Senators who read or heard them as assurances that they could vote in favor of § 301 without altering, reducing or impairing in any manner the anti-injunction provisions of the Norris-LaGuardia Act. This is particularly true of the statement of Senator Taft, a man generally regarded in the Senate as a very able lawyer and one upon whom the Senate could rely for accurate, forthright explanations of legislation with which he was connected. Senator Taft was of course entirely familiar with the prohibitions of the N orris-LaGuardia Act and the impact those prohibitions would have upon the enforcement under § 301 of all related contractual provisions, including contractual provisions dealing with arbitration. If, as this argument suggests, the intention of Congress in enacting § 301 was to clear the way for judicial obliteration of that Act under the soft euphemism of "accommodation," Senator Taft's flat statement that the Conference had rejected the repeal of the Norris- LaGuardia Act could only be regarded as disingenuous. We cannot impute any such intention to him. Moreover, we think that the idea that § 301 sanctions piecemeal judicial repeal of the Norris-LaGuardia Act requires acceptance of a wholly unrealistic view of the manner in which Congress handles its business. The bargaining contract, however, were retained in the conference agreement (section 301)." 93 Cong. Rec. 6443, II Leg. Hist. 1539. (Emphasis supplied.) 210 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. question of whether existing statutes should be continued in force or repealed is, under our system of government, one which is wholly within the domain of Congress. When the repeal of a highly significant law is urged upon that body and that repeal is rejected after careful consideration and discussion, the normal expectation is that courts will be faithful to their trust and abide by that decision. This is especially so where the fact of the controversy over repeal and the resolution of that controversy in Congress plainly appears in the formal legislative history of its proceedings.28 Indeed, not a single instance has been called to our attention in which a carefully considered and rejected proposal for repeal has been revived and adopted by this Court under the guise of "accommodation" or any other pseudonym. Nor have we found anything else in the previous decisions of this Court that would indicate that we should disregard all this overwhelming evidence of a congressional intent to retain completely intact the anti-injunction prohibitions of the Norris-LaGuardia Act in suits brought under § 301. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co.,29 upon which Sinclair places 28 The legislative history of the Taft-Hartley Act shows that Congress actually considered and relied upon this normal functioning of the judicial power as insuring thitt no unintended repeal of the antiinjunction provisions of the Norris-LaGuardia Act would be declared. Thus Senator Taft, when pressed by Senator Morse with regard to the possibility that a provision inserted in § 303 (a) declaring secondary boycotts unlawful might be held to justify an injunction previously forbidden by the Norris-LaGuardia Act, stated: "Let me say in reply to the Senator or anyone else who makes the same argument, that that is not the intention of the author of the amendment. It is not his belief as to the effect of it. It is not the advice of counsel to the committee. Under those circumstances, I do not believe that any court would construe the amendment along the lines suggested by the Senator from Oregon." 93 Cong. Rec. 4872, II Leg. Hist. 1396. 29 353 u. s. 30. SINCLAIR REFINING CO. v. ATKINSON. 211 195 Opinion of the Court. its primary reliance, is distinguishable on several grounds. There we were dealing with a strike called by the union in defiance of an affirmative duty, imposed upon the union by the Railway Labor Act itself, compelling unions to settle disputes as to the interpretation of an existing collective bargaining agreement, not by collective union pressures on the railroad but by submitting them to the Railroad Adjustment Board as the exclusive means of final determination of such "minor" disputes.30 Here, on the other hand, we are dealing with a suit under a quite different law which does not itself compel a particular, exclusive method for settling disputes nor impose any requirement, either upon unions or employers, or upon the courts, that is in any way inconsistent with a continuation of the N orris-LaGuardia Act's proscription of federal labor injunctions against strikes and peaceful picketing. In addition, in Chicago River we were dealing with a statute that had a far different legislative history than the one now before us. Thus there was no indication in the legislative history of the Railway Labor Act, as there is in the history of § 301, that Congress had, after full debate and careful consideration by both Houses and in Joint Conference, specifically rejected proposals to make the prohibitions of the Norris-LaGuardia Act inapplicable. Indeed, the Court was able to conclude in Chicago River "that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field." 31 And certainly no one could 30 The Court in Chicago River expressly recognized and rested its decision upon the differences between provisions for the settlement of disputes under the Railway Labor Act and the Taft-Hartley Act. Id., at 31-32, n. 2. See also Order of Railroad Telegraphers v. Chicago & North Western R. Co., 362 U.S. 330, 338-340. 31 353 U.S. 30, at 39. 212 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. contend that§ 301 was intended to set up any such system of "compulsory arbitration" as the exclusive method for settling grievances under the Taft-Hartley Act. Textile Workers Union v. Lincoln MiUs,82 upon which some lesser reliance is placed, is equally distinguishable. There the Court held merely that it did not violate the anti-injunction provisions of the Norris-LaGuardia Act to compel the parties to a collective bargaining agreement to submit a dispute which had arisen under that agreement to arbitration where the agreement itself required arbitration of the dispute. In upholding the jurisdiction of the federal courts to issue such an order against a challenge based upon the Norris-LaGuardia Act, the Court pointed out that the equitable relief granted in that case-a mandatory injunction to carry out an agreement to arbitrate-did not enjoin any one of the kinds of conduct which the specific prohibitions of the Norris- LaGuardia Act withdrew from the injunctive powers of United States courts.33 An injunction against work stoppages, peaceful picketing or the nonfraudulent encouraging of those activities would, however, prohibit the precise kinds of conduct which subsections (a), (e) and (i) of§ 4 of the Norris-LaGuardia Act unequivocally say cannot be prohibited.34 32 353 u. s. 448. 33 Id., at 458. See also Order of Railroad Telegraphers v. Chicago & North Western R. Co., 362 U.S. 330, 338-339, where Lincoln Mills and other cases not involving an injunction against activity protected by§ 4 of the Norris-LaGuardia Act were distinguished on this ground. H An injunction against a strike or peaceful picketing in breach of a collective agreement "would require strong judicial creativity in the face of the plain meaning of Section 4," Cox, Current Problems in the Law of Grievance Arbitration, 30 Rocky Mt. L. Rev. 247, 256, for, indeed, such an injunction "would fly in the face of the plain words of Section 4 of the Norris-LaGuardia Act, the historical purpose of which was to make peaceful concerted activities unenjoinable without rega.rd to the nature of the labor dispute." Id., at 253. SINCLAIR REFINING CO. v. ATKINSON. 213 195 Opinion of the Court. Nor can we agree with the argument made in this Court that the decision in Lincoln Mills, as implemented by the subsequent decisions in United Steelworkers v. American Manufacturing Co.,35 United Steelworkers v. Warrior & Gulf Navigation Co.,36 and United Steelworkers v. Enterprise Wheel & Car Corp.,31 requires us to reconsider and overrule the action of Congress in refusing to repeal or modify the controlling commands of the Norris-LaGuardia Act. To the extent that those cases relied upon the proposition that the arbitration process is "a kingpin of federal labor policy," we think that proposition was founded not upon the policy predilections of this Court but upon what Congress said and did when it enacted § 301. Certainly we cannot accept any suggestion which would undermine those cases by implying that the Court went beyond its proper power and itself "forged ... a kingpin of federal labor policy" inconsistent with that section and its purpose. Consequently, we do not see how cases implementing the purpose of § 301 can be said to have freed this Court from its duty to give effect to the plainly expressed congressional purpose with regard to the continued application of the anti-injunction provisions of the Norris-LaGuardia Act. The argument to the contrary seems to rest upon the notion that injunctions against peaceful strikes are necessary to make the arbitration process effective. But whatever might be said about the merits of this argument, Congress has itself rejected it. In doing so, it set the limit to which it was willing to go in permitting courts to effectuate the congressional policy favoring arbitration and it is not this Court's business to review the wisdom of that decision. The plain fact is that§ 301, as passed by Congress, presents no conflict at all with the anti-injunction provisions of the Norris-LaGuardia Act. Obedience to the congres- 35 363 u. s. 564. 36 363 u. s. 574. 37 363 U. S. 593. 214 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. sional commands of the Norris-LaGuardia Act does not directly affect the "congressional policy in favor of the enforcement of agreements to arbitrate grievance disputes" 38 at all for it does not impair the right of an employer to obtain an order compelling arbitration of any dispute that may have been made arbitrable by the provisions of an effective collective bargaining agreement. At the most, what is involved is the question of whether the employer is to be allowed to enjoy the benefits of an injunction along with the right which Congress gave him in § 301 to sue for breach of a collective agreement. And as we have already pointed out, Congress was not willing to insure that enjoyment to an employer at the cost of putting the federal courts back into the business of enjoining strikes and other related peaceful union activities. It is doubtless true, as argued, that the right to sue which § 301 gives employers would be worth more to them if they could also get a federal court injunction to bar a breach of their collective bargaining agreements. Strong arguments are made to us that it is highly desirable that the Norris-LaGuardia Act be changed in the public interest. If that is so, Congress itself might see fit to change that law and repeal the anti-injunction provisions of the Act insofar as suits for violation of collective agreements are concerned, as the House bill under consideration originally provided. It might, on the other hand, decide that if injunctions are necessary, the whole idea of enforcement of these agreements by private suits should be discarded in favor of enforcement through the administrative machinery of the Labor Board, as Senator Taft provided in his Senate bill. Or it might decide that neither of these methods is entirely satisfactory and turn instead to a completely new approach. The question of what 88 Textile Workers Union v. Lincoln Muls, 353 U.S. 448, at 458-459. SINCLAIR REFINING CO. v. ATKINSON. 215 195 BRENNAN, J., dissenting. change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress-it is a question for lawmakers, not law interpreters. Our task is the more limited one of interpreting the law as it now stands. In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible-and here it seems crystal clear-we must give effect to that intent.s• The District Court was correct in dismissing Count 3 of petitioner's complaint for lack of jurisdiction under the Norris-LaGuardia Act. The judgment of the Court of Appeals affirming that order is therefore Affirmed. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE BRENNAN, with whom MR. JUSTICE DouGLAS and MR. JusTICE HARLAN join, dissenting. I believe that the Court has reached the wrong result because it has answered only the first of the questions which must bf; answered to decide this case. Of course § 301 of the Taft-Hartley Act did not, for purposes of 39 We have not ignored Sinclair's argument that to apply the Norris-LaGuardia Act here would deprive it of its constitutional right to equal protection of the law, both because of an allegedly unlawful discrimination between Taft-Hartley Act employers and Railway Labor Act employers by virtue of the decision in Chicago River, and because of an allegedly unlawful discrimination between Taft-Hartley Act employers and unions by virtue of the decision in Lincoln Mills. We deem it sufficient to say that we do not find either of these arguments compelling. 216 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370 u. s. actions brought under it, "repeal" § 4 of the Norris- LaGuardia Act. But the two provisions do coexist, and it is clear beyond dispute that they apply to the case before us in apparently conflicting senses. Our duty, therefore, is to seek out that accommodation of the two which will give the fullest possible effect to the central purposes of both. Since such accommodation is possible, the Court's failure to follow that path leads it to a resultnot justified by either the language or history of § 301- which is wholly at odds with our earlier handling of directly analogous situations and which cannot be woven intelligibly into the broader fabric of related decisions. I. Section 301 of the Taft-Hartley Act, enacted in 1947, authorizes Federal District Courts to entertain "[s] uits for violation of contracts between an employer and a labor organization .... " It does not in terms address itself to the question of remedies. As we have construed§ 301, it casts upon the District Courts a special responsibility to carry out contractual schemes for arbitration, by holding parties to that favored process for settlement when it has been contracted for, and by then regarding its result as conclusive.1 At the same time, § 4 of the Norris- LaGuardia Act, enacted in 1932, proscribes the issuance by federal courts of injunctions against various concerted activities "in any case involving or growing out of any labor dispute." But the enjoining of a strike over an arbitrable grievance may be indispensable to the effective enforcement of an arbitration scheme in a collective agreement; thus the power to grant that injunctive remedy may be essential to the uncrippled performance of the Court's 1 Textile Workers v. Lincoln Mills, 353 U. S. 448; Steelworkers v. American Mfg. Co., 363 U.S. 564; Steelworkers v. Warrior & Gulf Co., 363 U. S. 574; Steelworkers v. Enterprise Corp., 363 U. S. 593. SINCLAIR REFINING CO. v. ATKINSON. 217 195 BRENNAN, J., dissenting. function under § 301.2 Therefore, to hold that § 301 did not repeal § 4 is only a beginning. Having so held, the Court should-but does not-go on to consider how it is to deal with the surface conflict between the two statutory commands. The Court has long acted upon the premise that the Norris-LaGuardia Act does not stand in isolation. It is one of several statutes which, taken together, shape the national labor policy. Accordingly, the Court has recognized that Norris-LaGuardia does not invariably bar injunctive relief when necessary to achieve an important objective of some other statute in the pattern of labor laws. See Brotherhood of Railroad Trainmen v. Chicago River R. Co., 353 U. S. 30; Graham v. Brotherhood of Locomotive Firemen, 338 U. S. 232; Virginian R. Co. v. System Federation, 300 U. S. 515, 562-563. In Chicago River we insisted that there "must be an accommodation of [the Norris-LaGuardia Act] and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved." 3 These decisions refusing inflexible application of Norris- LaGuardia point to the necessity of a careful inquiry whether the surface conflict between § 301 and § 4 is irreconcilable in the setting before us: a strike over a 2 In Teamsters Local v. Lucas Flour Co., 369 U. S. 95, we held that a strike over a dispute which a contract provides shall be settled exclusively by binding arbitration is a breach of contract despite the absence of a no-strike clause, saying, at p. 105: "To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbitral process as a substitute for economic warfare." And in Brotherhood of Railroad Trainmen v. Chicago River R. Co., 353 U. S. 30, 39, we recognized that allowing a strike over an arbitrable dispute would effectively "defeat the jurisdiction" of the arbitrator. 3 353 U. S., at 40. 663026 0-62- 18 218 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370U. S. grievance which both parties have agreed to settle by binding arbitration. I think that there is nothing in either the language of § 301 or its history to prevent § 4's here being accommodated with it, just as § 4 was accommodated with the Railway Labor Act. II. It cannot be denied that the availability of the injunctive remedy in this setting is far more necessary to the accomplishment of the purposes of § 301 than it would be detrimental to those of Norris-LaGuardia. Chicago River makes this plain. We there held that the federal courts, notwithstanding Norris-LaGuardia, may enjoin strikes over disputes as to the interpretation of an existing collective agreement, since such strikes flout the duty imposed on the union by the Railway Labor Act to settle such "minor disputes" by submission to the National Railroad Adjustment Board rather than by concerted economic pressures. We so held, even though the Railway Labor Act contains no express prohibition of strikes over "minor disputes," because we found it essential to the meaningful enforcement of that Act--and because the existence of mandatory arbitration eliminated one of the problems to which Norris-LaGuardia was chiefly addressed, namely, that "the injunction strips labor of its primary weapon without substituting any reasonable alternative." 4 That reasoning is applicable with equal force to an injunction under § 301 to enforce a union's contractual duty, also binding on the employer, to submit certain disputes to terminal arbitration and to refrain from striking over them. The federal law embodied in § 301 stresses the effective enforcement of such arbitra- 4 Id., at 41. SINCLAIR REFINING CO. v. ATKINSON. 219 195 BRENNAN, J., dissenting. tion agreements. When one of them is about to be sabotaged by a strike, § 301 has as strong a claim upon an accommodating interpretation of § 4 as does the compulsory arbitration law of the Railway Labor Act. It is equally true in both cases that "[an injunction] alone can effectively guard the plaintiff's right," Machinists v. Street, 367 U.S. 740, 773. It is equally true in both cases that the employer's specifically enforceable obligation to arbitrate provides a "reasonable alternative" to the strike weapon. It is equally true in both cases that a major contributing cause for the enactment of Norris- LaGuardia-the at-largeness of federal judges in enjoining activities thought to seek "unlawful ends" or to constitute "unlawful means" 5-is not involved. Indeed, there is in this case a factor weighing in favor of the issuance of an injunction which was not present in Chicago River: 6 the express contractual commitment of the union to refrain from striking, viewed in light of the overriding purpose of § 301 to assist the enforcement of collective agreements. In any event, I should have thought that the question was settled by Textile Workers v. Lincoln Mills, 353 U. S. 448. In th.at case, the Court held that the procedural requirements of Norris-LaGuardia's § 7, although in terms fully applicable, would not apply so as to frustrate a federal court's effective enforcement under § 301 of an employer's obligation to arbitrate. It is strange, I think, that § 7 of the Norris-LaGuardia Act need not be read, in the face of § 301, to impose inapt procedural restrictions upon the specific enforcement of an employer's 5 See, e.g., S. Rep. No. 163, 72d Cong., 1st Sess., p. 18; Frankfurter and Greene, The Labor Injunction, pp. 24-46, 200, 202. 6 It is worth repeating that the Railway Labor Act incorporates no express prohibition of strikes over "minor disputes." 220 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370 u. s. contractual duty to arbitrate; but that § 4 must be read, despite § 301, to preclude absolutely the issuance of an injunction against a strike which ignores a union's identical duty. III. The legislative history of § 301 affords the Court no refuge from the compelling effect of our prior decisions. That history shows that Congress considered and rejected "the advisability of repealing the Norris-LaGuardia Act insofar as suits based upon breach of collective bargaining agreements are concerned .... " 7 But congressional rejection of outright repeal certainly does not imply hostility to an attempt by the courts to accommodate all statutes pertinent to the decision of cases before them. Again, the Court's conclusion stems from putting the wrong question. When it is appreciated that there is no question here of "repeal," but rather one of how the Court is to apply the whole statutory complex to the case before it, it becomes clear that the legislative history does not support the Court's conclusion. First, however, it seems appropriate to discuss, as the Court has done, the language of § 301 considered in light of other provisions of the statute. There is nothing in the words of§ 301 which so much as intimates any limitation to damage remedies when the asserted breach of contract consists of concerted activity. The section simply authorizes the District Courts to entertain and decide suits for violation of collective contracts. Taking the language alone, the irresistible implication would be that the District Courts were to employ their regular arsenal of remedies appropriately to the situation. That would mean, of course, that injunctive relief could be afforded when damages would not be an adequate remedy. This much, surely, is settled by Lin- 7 Ante, p. 205. SINCLAIR REFINING CO. v. ATKINSON. 221 195 BRENNAN, J., dissenting. coln Mills. But the Court reasons that the failure of § 301 explicitly to repeal § 4 of Norris-LaGuardia completely negates the availability of injunctive relief in any case where that provision-in the absence of § 301-would apply. That reasoning stems from attaching undue significance to the fact that express repeal of Norris- LaGuardia provisions may be found in certain other sections of the Taft-Hartley Act-from which the Court concludes "not only that Congress was completely familiar with those provisions but also that it regarded an express declaration of inapplicability as the normal and proper manner of repealing them in situations where such repeal seemed desirable." 8 Even on this analysis the most that can be deduced from such a comparative reading is that while repeal of Norris-LaGuardia seemed desirable to Congress in certain other contexts, repeal did not seem desirable in connection with § 301. Sound reasons explain why repeal of Norris-LaGuardia provisions, acceptable in other settings, might have been found ill-suited for the purpose of § 301. And those reasons fall far short of a design to preclude absolutely the issuance under § 301 of any injunction against an activity included in § 4 of Norris-LaGuardia. Section 10 (h) of the Act 9 simply lifts the § 4 barrier in connection with proceedings brought by the National Labor Relations Board-in the Courts of Appeals for enforcement of Board cease-and-desist orders against unfair labor practices, and in the District Courts for interlocutory relief against activities being prosecuted before the Board as unfair labor practices. This repeal in aid of government litigation to enforce carefully drafted prohibitions already in the Act as unfair labor practices was, obviously, entirely 8 Ante, p. 205. (Emphasis added.) 9 National Labor Relations Act,§ 10 (h), 61 Stat. 149, 29 U.S. C. §160(h). 222 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370 U.S. appropriate, definitely limited in scope, predictable in effect, and devoid of any risk of abuse or misunderstanding. Much the same is true of § 208 (b) of Taft-Hartley, 10 which simply repeals Norris-LaGuardia in a case where the Attorney General seeks an injunction at the direction of the President, who must be of the opinionafter having been advised by a board of inquiry-that continuation of the strike in question would imperil the national health and safety. Only in § 302 ( e) of Taft-Hartley 11 is there found a repeal of Norris-LaGuardia's anti-injunction provisions in favor of a suit by a private litigant.12 The District Courts are there authorized to restrain the payment by employers and the acceptance by employee representatives of unauthorized payments in the nature of bribes. Not only is the problem thus dealt with "unusually sensitive and important," as the Court notes,13 but the repeal of N orris-LaGuardia is clearly, predictably, and narrowly confined to one kind of suit over one kind of injury; and obviously it presents no possible threat to the important purposes of that Act. How different was the problem posed by § 301, which broadly authorized District Courts to decide suits for breach of contract. The Congress understandably may not have felt able to predict what provisions would crop up in coUective bargaining agreements, to foresee the settings in which these would become subjects of litiga- 10 61 Stat. 155, 29 U.S. C. § 178. 11 61 Stat. 158, 29 U.S. C. § 186 (e). 12 Section 301 (e), 61 Stat. 157, 29 U.S. C. § 185 (e), also mentioned by the Court, has no bearing on injunction problems. It repeals, for its purposes, § 6 of the Norris-LaGuardia Act, which deals with agency responsibility for concerted activities. Its only relevance here is in showing what is clear anyway: That§ 301 effected no repeal of the anti-injunction provisions of Norris-LaGuardia. 13 Ante, p. 205, n. 19. SINCLAIR REFINING CO. v. ATKINSON. 223 195 BRENNAN, J., dissenting. tion, or to forecast the rules of law which the courts would apply. The consequences of repealing the anti-injunction provisions in this context would have been completely unknowable, and outright repeal, therefore, might well have seemed unthinkable. Congress, clearly, had no intention of abandoning wholesale the Norris-LaGuardia policies in contract suits; but it does not follow that§ 301 is not the equal of § 4 in cases which implicate both provisions. Indeed, it might with as much force be said that Congress knew well how to limit remedies against employee activities to damages when that was what it intended, as that Congress knew how to repeal Norris-LaGuardia when that was what it intended. Section 303 of Taft-Hartley 14 authorizes private actions for damages resulting from certain concerted employee activities. When that section was introduced on the Senate floor, it provided for injunctive relief as well. Extended debate revealed strong sentiment against the injunction feature, which incorporated a repeal of Norris-LaGuardia. The section's supporters, therefore, proposed a different version which provided for damages only. In this form, the section was adopted by the Senate-and later by the Conference and the House.15 Certainly, after this experience Congress would have used language confining § 301 to damage remedies when it was invoked against concerted activity, if such had been the intention. The statutory language thus fails to support the Court's position. The inference is at least as strong that Congress was content to rely upon the courts to resolve any seeming conflicts between § 301 and § 4 as they arose in the relatively manageable setting of particular cases, as that Congress intended to limit to damages the reme- 14 29 U. S. C. § 187. 15 See II Leg. Hist. 1323-1400; I Leg. Hist. 571. 224 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370U.S. dies courts could afford against concerted activities under § 301. The Court then should so exercise its judgment as best to effect the most important purposes of each statute. It should not be bound by inscrutable congressional silence. to a wooden preference for one statute over the other. Nor does the legislative history of § 301 suggest any different conclusion. As the Court notes, the House version would have repealed Norris-LaGuardia in suits brought under the new section.16 The Senate version of § 301, like the section as enacted, did not deal with Norris-LaGuardia, but neither did it limit the remedies available against concerted activity.17 Thus any attempt to ascertain the Senate's intention would face the same choices as those I have suggested in dealing with the language of § 301 as finally enacted. It follows that to construe the Conference Committee's elimination of the House repeal as leaving open the possibility of judicial accommodation is at least as reasonable as to conclude that Congress, by its silence, was directing the courts to disregard § 301 whenever opposition from § 4 was encoun tered.18 I emphasize that the question in this case is not whether the basic policy embodied in N orris-LaGuardia against the injunction of activities of labor unions has been abandoned in actions under § 301; the question is simply whether injunctions are barred against strikes over griev- 16 I Leg. Hist. 221-222. 17 I Leg. Hist. 279-280. 18 There is nothing in any Committee Report, or in any floor debate, which even intimates a confinement of § 301 remedies to damages in cases involving concerted activities. The only bit of legislative history which could is the statement of Senator Taft, quoted by the Court at note 27 of its opinion, which he inserted into the Congressional Record. What little significance that isolated insertion might have had has, of course, been laid to rest by Lincoln Mills. SINCLAIR REFINING CO. v. ATKINSON. 225 195 BRENNAN, J., dissenting. ances which have been routed to arbitration by a contract specifically enforceable against both the union and the employer. Enforced adherence to such arbitration commitments has emerged as a dominant motif in the developing federal law of collective bargaining agreements. But there is no general federal anti-strike policy; and although a suit may be brought under § 301 against strikes which, while they are breaches of private contracts, do not threaten any additional public policy, in such cases the anti-injunction policy of Norris-LaGuardia should prevail. Insistence upon strict application of Norris- LaGuardia to a strike over a dispute which both parties are bound by contract to arbitrate threatens a leading policy of our labor relations law. But there may be no such threat if the union has made no binding agreement to arbitrate; and if the employer cannot be compelled to arbitrate, restraining the strike would cut deep into the core of Norris-LaGuardia. Therefore, unless both parties are so bound, limiting an employer's remedy to damages might well be appropriate. The susceptibility of particular concrete situations to this sort of analysis shows that rejection of an outright repeal of§ 4 was wholly consistent with acceptance of a technique of accommodation which would lead, in some cases, to the granting of injunctions against concerted activity. Accommodation requires only that the anti-injunction policy of Norris- LaGuardia not intrude into areas, not vital to its ends, where injunctive relief is vital to a purpose of § 301; it does not require unconditional surrender. IV. Today's decision cannot be fitted harmoniously into the pattern of prior decisions on analogous and related matters. Considered in their light, the decision leads inescapably to results consistent neither with any imaginable legislative purpose nor with sound judicial administration. 226 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370 u. s. We have held that uniform doctrines of federal labor law are to be fashioned judicially in suits brought under § 301, Textile Workers v. Lincoln Mills, 353 U. S. 448; that actions based on collective agreements remain cognizable in state as well as federal courts, Dowd Box Co. v. Courtney, 368 U. S. 502; and that state courts must apply federal law in such actions, Teamsters Local v. Lucas Flour Co., 369 U. S. 95. The question arises whether today's prohibition of injunctive relief is to be carried over to state courts as a part of the federal law governing collective agreements. If so, § 301, a provision plainly designed to enhance the responsibility of unions to their contracts, will have had the opposite effect of depriving employers of a state remedy they enjoyed prior to its enactment. On the other hand if, as today's literal reading suggests 19 and as a leading state decision holds,2° States remain free to apply their injunctive remedies against concerted activities in breach of contract, the development of a uniform body of federal contract law is in for hard times. So long as state courts remain free to grant the injunctions unavailable in federal courts, suits seeking relief against concerted activities in breach of contract will be channeled to the States whenever possible. Ironically, state rather than federal courts will be the preferred instruments to protect the integrity of the arbitration process, which Lincoln Mills and the Steelworkers decisions forged into a kingpin of federal labor policy. Enunciation of uniform doctrines applicable in such cases will be severely impeded. Moreover, the type of relief available in a particular instance will turn on fortuities 19 Section 4 commences: "No court of the United States shall have jurisdiction to issue any restraining order .... " 20 M cCarroll v. Los Angeles County District Council, 49 Cal. 2d 45, 315 P. 2d 322. SINCLAIR REFINING CO. v. ATKINSON. 227 195 BRENNAN, J., dissenting. of locale and susceptibility to process--depending upon which States have anti-injunction statutes and how they construe them. I have not overlooked the possibility that removal of the state suit to the federal court might provide the answer to these difficulties. But if § 4 is to be read literally, removal will not be allowed.21 And if it is allowed, the result once again is that§ 301 will have had the strange consequence of taking away a contract remedy available before its enactment. V. The decision deals a crippling blow to the cause of grievance arbitration itself. Arbitration is so highly regarded as a proved technique for industrial peace that even the Norris-LaGuardia Act fosters its use.22 But since unions cannot be enjoined by a federal court from striking in open defiance of their undertakings to arbitrate, employers will pause long before committing themselves to obligations enforceable against them but not against their unions. The Court does not deny the desirability, indeed, necessity, for injunctive relief against a strike over an arbitrable grievance.23 The Court says only that federal courts may not grant such relief, that Congress must amend § 4 if those courts are to give substance to the congressional plan of encouraging peaceable settlements of grievances through arbitration. 21 Compare note 19, supra, with the language of the removal statute, 28 U. S. C. § 1441, allowing removal in cases "of which the district courts of the United States have original jurisdiction." 22 See Norris-LaGuardia Act, § 8, 47 Stat. 72, 29 U. S. C. § 108. 23 The Court acknowledges, of course, that an employer may obtain an order directing a union to comply with its contract to arbitrate. Consistently with what we said in Lucas, supra, note 2, a strike in the face of such an order would risk a charge of contempt. 228 OCTOBER TERM, 1961. BRENNAN, J., dissenting. 370 U.S. VI. A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris- LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity-whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance. In the case before us, the union enjoys the contractual right to make the employer submit to final and binding arbitration of any employee grievance. At the same time, the union agrees that "[T]here shall be no strikes ... for any cause which is or may be the subject of a grievance." 24 The complaint alleged that the union had, over the past several months, repeatedly engaged in "quickie" strikes over arbitrable grievances. Under the contract and the complaint, then, the District Court might conclude that there have occurred and will continue to occur breaches of contract of a type to which the principle of accommodation applies. It follows that rather than dismissing the complaint's request for an injunction, the •• See Atkinson v. Sinclair Rfg. Co., decided this day, post, p. 238. SINCLAIR REFINING CO. v. ATKINSON. 229 195 BRENNAN, J., dissenting. Court should remand the case to the District Court with directions to consider whether to grant the relief sought-- an injunction against future repetitions. This would entail a weighing of the employer's need for such an injunction against the harm that might be inflicted upon legitimate employee activity. It would call into question the feasibility of setting up in futuro contempt sanctions against the union (for striking) and against the employer (for refusing to arbitrate) in regard to prospective disputes which might fall more or less clearly into the adjudicated category of arbitrable grievances. In short, the District Court will have to consider with great care whether it is possible to draft a decree which would deal equitably with all the interests at stake. I would reverse the Court of Appeals and remand to the District Court for further proceedings consistent with this dissenting opinion. 230 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. IN RE McCONNELL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 498. Argued April 10, 1962.-Decided June 18, 1962. Under 18 U. S. C. § 401 and Federal Rule of Criminal Procedure 42 (a), petitioner was summarily tried and convicted by the trial judge of criminal contempt for conduct during a trial in which petitioner represented the plaintiff in a suit under the Clayton Act for treble damages for an alleged conspiracy to destroy the plaintiff's business by restraining and monopolizing trade. At the very outset of the trial, the judge had ruled erroneously that the plaintiff's counsel could not try to prove the conspiracy charge; but, in order to comply with Federal Rule of Civil Procedure 43 (c) and thus preserve his client's rights on appeal, petitioner in the presence of the jury persisted in asking questions intended to lay the proper foundation for offers of proof of conspiracy. The judge ordered petitioner to stop doing so; but petitioner insisted that he had a right to do so and said he would continue to do so "unless some bailiff stops us." However, a recess was then called and thereafter petitioner asked no more of the forbidden questions. Held: There was nothing in this conduct sufficiently disruptive of the trial court's business to "obstruct the administration of justice," within the meaning of 18 U. S. C. § 401, and a judgment sustaining the conviction is reversed. Pp. 230-236. 294 F. 2d 310, reversed. Thomas C. McConnell, petitioner, argued the cause and filed briefs pro se. Philip R. Monahan argued the cause for the United States. With him on the brief were Solicitor General Cox and Assistant Attorney General Miller. MR. JusTICE BLACK delivered the opinion of the Court. The petitioner Thomas C. McConnell, a lawyer, was summarily found guilty of contempt of court for statements made while representing the Parmelee Transportation Company in an antitrust suit for treble damages IN RE McCONNELL. 231 230 Opinion of the Court. and an injunction. The complaint charged that a number of defendants had unlawfully conspired to destroy Parmelee's business by restraining and monopolizing trade in violation of the Sherman Act.1 Petitioner and his co-counsel, Lee A. Freeman, had done extensive pretrial preparation on the issue of conspiracy which was the heart of their case. At the very outset of the trial, however, the district judge on his own motion refused to permit counsel to try to prove their conspiracy charge, holding that they must first prove in a wholly separate trial that defendants' actions had resulted in an economic injury to the public-an erroneous holding since we have held that the right of recovery of a plaintiff in a treble damage antitrust case does not depend at all on proving an economic injury to the public.2 Cut off by the judge's erroneous ruling from trial of the basic issue of conspiracy and wishing to provide a record which would allow this ruling to be reviewed by the Court of Appeals, counsel for Parmelee asked counsel for defendants to stipulate that plaintiff would have introduced certain evidence of conspiracy had it been allowed to do so. Defense counsel refused to stipulate, however, insisting that Parmelee's counsel prepare their record by following the procedure set out in Rule 43 (c) of the Federal Rules of Civil Procedure, which requires that before an offer of proof is made questions upon which the offer is based must first be asked in the presence of the jury.3 1 This action was brought under the Clayton Act, §§ 4 and 16, 38 Stat. 731, 737, 15 U.S. C. §§ 15, 26, and charged violations of§§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2. 2 Radiant Burners, Inc., v. Peoples Gas Light & Coke Co., 364 U.S. 656,660; Klor's, Inc., v. Broadway-Hale Stores, Inc., 359 U.S. 207. See aso Radovich v. National Football League, 352 U.S. 445. 3 Rule 43 (c) provides in part: "In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attor232 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. Unwilling to risk dismissal of their appeal for failure to follow Rule 43 (c), Parmelee's counsel proceeded to produce and question witnesses in the presence of the jury in order to lay the proper foundation for their offers of proof of conspiracy. But during the process of this questioning the judge ordered it stopped and directed that any further offers of proof be made without first having asked questions of witnesses in the presence of the jury. This ruling placed Parmelee's counsel in quite a dilemma because defense counsel was still insisting that all offers of proof be made in strict compliance with Rule 43 (c) and there was no way of knowing with certainty whether the Court of Appeals would treat the trial court's order to dispense with questions before the jury as an excuse for failure to comply with the Rule. Petitioner therefore not only sought to make clear to the court that he thought defense counsel's objection was "right" 4 but also repeatedly insisted that he be allowed to make his offers of proof in compliance with the Rule.5 Following the trial the judge charged petitioner and his co-counsel Freeman in a number of specifications with being guilty of con tempney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon .... " 4 Since our disposition of this case does not turn on whether petitioner was correct in thinking that Rule 43 (c) absolutely requires that all offers of proof in jury trials be based on questions before the jury, we express no opinion on that question. 5 The district judge did not change his ruling and ultimately gave judgment for defendants on the grounds that plaintiff had not proved public economic injury and that the facts alleged in the complaint and the proof offered at the trial did not constitute a violation of the antitrust laws. 186 F. Supp. 533. The Court of Appeals for the Seventh Circuit affirmed the decision on this latter ground. 292 F. 2d 794. IN RE McCONNELL. 233 230 Opinion of the Court. tuous conduct during the course of the trial. After separate hearings both lawyers were summarily found guilty by the trial judge on all specifications. Both appealed to the Court of Appeals, which reversed all of Freeman's convictions,6 reversed two of petitioner McConnell's convictions, but, with Judge Duffy dissenting, sustained the conviction of petitioner on Specification 6--the specification based on petitioner's insistence that he be allowed to make offers of proof in compliance with Rule 43 (c).1 Even as to this conviction, however, the Court of Appeals held that the jail sentence imposed by the trial judge should be reduced to a fine of $100. As in Offutt v. United States,8 the "importance of assuring alert self-restraint in the exercise by district judges of the summary power for punishing contempt" prompted us to bring the case here.9 The statute under which petitioner was summarily convicted of contempt is 18 U. S. C. § 401, which provides that: "A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-- " ( 1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice .... " This section is based on an Act passed in 1831 10 in order to correct serious abuses of the summary contempt power that had grown up and was intended as a "drastic delimitation . . . of the broad undefined power of the inferior federal courts under the Act of 1789," 11 revealing "a Con- 6 292 F. 2d 806. 7 294 F. 2d 310. 8 348 u. s. 11, 13. 9 368 U.S. 936. 10 4 Stat. 487. The present wording of § 401 comes from the 1948 revision and codification of Title 18. 62 Stat. 701. 11 Nye v. United States, 313 U.S. 33, 45. 663026 0-62--19 234 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. gressional intent to safeguard Constitutional procedures by limiting courts, as Congress is limited in contempt cases, to 'the least possible power adequate to the end proposed.' " 12 "The exercise by federal courts of any broader contempt power than this," we have said, "would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury." 13 And we held long ago, in Ex parte Hudgings,14 that while this statute undoubtedly shows a purpose to give courts summary powers to protect the administration of justice against immediate interruption of court business, it also means that before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice: "An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted .... " Thus the question in this case comes down to whether it can "clearly be shown" on this record that the petitioner's statements while attempting to make his offers of proof actually obstructed the district judge in "the performance of judicial duty." The Court of Appeals answered this question by sustaining Specification 6 only on the basis of petitioner's 12 In re Michael, 326 U. S. 224, 227. 13 Jbid. 14 249 U. s. 378, 383. IN RE McCONNELL. 235 230 Opinion of the Court. last sentence in the colloquy set out in the specification. That specification reads: "On April 27, 1960, in the presence and hearing of the jury, after the Court had instructed the attorneys for plaintiff to refrain from repeatedly asking questions on subjects which the Court had ruled [were] not admissible, in the presence of the jury as distinguished from an offer of proof outside the presence of the jury, the following occurred: "'By Mr. McConnell: Now you are trying to tell us we can't ask these questions. We have a right to ask these questions, and until we are stopped from asking these questions we are going to ask them, because it is in our prerogative in doing it. "'By the Court: I am now stopping you from asking the questions about conversations with Mr. Cross, because I have ruled specifically, definitely and completely that it is not an issue in this case. "'By Mr. McConnell: We have a right to ask them. " 'By the Court: You can offer proof on it. "'By Mr. McConnell: We have a right to ask questions which we off er on this issue, and Your Honor can sustain their objection to them. We don't have a right to read the answers, but we have a right to ask the questions, and we propose to do so unless some bailiff stops us.'" (Emphasis added.) The record shows that after this colloquy petitioner's co-counsel asked for a short recess, that following this recess petitioner did not continue to ask questions which the judge had forbidden and that in fact he did not ask any more such questions again throughoat the remainder of the trial. We agree with Judge Duffy who dissented below that there was nothing in petitioner's conduct suffi236 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. ciently disruptive of the trial court's business to be an obstruction of justice. It is true that petitioner stated that counsel had a right to ask questions that the judge did not want asked and that "we propose to do so unless some bailiff stops us." The fact remains, however, that the bailiff never had to interrupt the trial by arresting petitioner, for the simple reason that after this statement petitioner never did ask any more questions along the line which the judge had forbidden. And we cannot agree that a mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him can amount to an obstruction of justice that can be punished under the limited powers of summary contempt which Congress has granted to the federal courts. The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here. While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients' cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice, and we think that that power did not extend to this case. Reversed. MR. JusTICE FRANKFURTER and MR. JUSTICE WHITE took no part in the consideration or decision of this case. IN RE McCONNELL. 237 230 HARLAN, J., dissenting. MR. JusTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting. With respect to the contempt count that was sustained by the Court of Appeals, this case involves nothing more than an ordinary exercise of the District Court's contempt power in aid of maintaining discipline and decorum in the courtroom. The most, I think, that could appropriately be said of the conviction on this count is that petitioner's unlawyer-like conduct did not merit a jail sentence. The Court of Appeals has removed all basis for criticism on that score by reducing the sentence to a $100 fine. In other respects its opinion displays an alert regard for the undoubted fact that the contempt power should always be exercised circumspectly and dispassionately, particularly when called into play by the conduct of an attorney in the course of sharply contested litigation. I can hardly believe that the Court intends its opinion to mean that only a physical obstruction of pending judicial proceedings is punishable under 18 U. S. C. § 401. For a court's power to punish summarily for contempt has always been available as a sanction against the use of abusive and insulting language in a courtroom. See, e. g., Offutt v. United States, 348 U. S. 11; Fisher v. Pace, 336 U. S. 155, 159-160; Ex parte Terry, 128 U. S. 289, 307-309. And it can scarcely be supposed that Congress' enactment of 18 U. S. C. § 401 was intended to abrogate this power, even as the forerunner to that section was construed in In re Michael, 326 U. S. 224, 228. Cf. Ex parte Hudgings, 249 U. S. 378, 383. This routine intracircuit affair presents nothing calling for the exercise of this Court's supervisory power, and the case would have been much better left with the Court of Appeals by a denial of certiorari. I would affirm. 238 OCTOBER TERM, 1961. Syllabus. 370U.S. ATKINSON ET AL. v. SINCLAIR REFINING co. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 430. Argued April 18, 1962.-Decided June 18, 1962. 1. Under § 301 of the Labor Management Relations Act, 1947, an employer sued an international union and its local union in a Federal District Court for damages for a strike or work stoppage caused by them in violation of a collective bargaining agreement. The agreement provided for grievance procedures culminating, if requested by the union, in compulsory, final and binding arbitration of employee grievances regarding wages, hours and working conditions, and the union promised not to strike over such matters. The defendants moved to dismiss the complaint on various grounds and to stay the action, for the reasons that (1) all of the issues in the suit were referable to arbitration under the contract, and (2) important issues in the suit were also involved in certain grievances filed by employees and said to be in arbitration under the contract. Held: This count of the complaint should not be dismissed or stayed. Pp. 241-245. (a) This count of the complaint properly states a cause of action under § 301 and is to be governed by federal law. P. 241. (b) The contract here involved is not susceptible to a construction binding the employer to arbitrate its claim for damages against the union for breach of the undertaking not to strike. Pp. 241-243. (c) It does not appear from the record that the arbitrator's award on pending employee grievances would determine any significant issue in the damage suit. Pp. 243-245. 2. Basing jurisdiction on diversity of citizenship, the employer, in another count of the same complaint, also sought damages for the same strike or work stoppage from 24 individual employees, each of whom was alleged to have been an agent of the union and to have been acting in a representative capacity when he allegedly fomented or assisted and participated in the strike or work stoppage in violation of the collective bargaining contract. Held: Under § 301, this count of the complaint was governed by federal, not state, law and it was properly dismissed for failure to state a claim for which relief could be granted, since it actually was based ATKINSON v. SINCLAIR REFINING CO. 239 238 Opinion of the Court. on the union's breach of its contract, and a union's officers or members cannot be held personally liable for the union's actions. Pp. 245--249. 290 F. 2d 312, affirmed in part and reversed in part. Gilbert A. Cornfield argued the cause for petitioners. With him on the briefs were Gilbert Feldman and William E. Rentfro. George B. Christensen argued the cause for respondent. With him on the briefs were Fred H. Daugherty and Richard W. Austin. J. Albert Woll, Theodore J. St. Antoine and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal. MR. JuSTICE WHITE delivered the opinion of the Court. The respondent company employs at its refinery in East Chicago, Indiana, approximately 1,700 men, for whom the petitioning international union and its local are bargaining agents, and 24 of whom are also petitioners here. In early February 1959, the respondent company docked three of its employees at the East Chicago refinery a total of $2.19. On February 13 and 14, 999 of the 1,700 employees participated in a strike or work stoppage, or so the complaint alleges. On March 12, the company filed this suit for damages and an injunction, naming the international and its local as defendants, together with 24 individual union member-employees. Count I of the complaint, which was in three counts, stated a cause of action under § 301 of the Taft-Hartley Act (29 U. S. C. § 185) against the international and its local. It alleged an existing collective bargaining agreement between the international and the company containing, among other matters, a promise by the union not to strike over any cause which could be the subject of a grievance under other provisions of the contract. It was 240 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. alleged that the international and the local caused the strike or work stoppage occurring on February 13 and 14 and that the strike was over the pay claims of three employees in the amount of $2.19, which claims were properly subject to the grievance procedure provided by the contract. The complaint asked for damages in the amount of $12,500 from the international and the local. Count II of the complaint purported to invoke the diversity jurisdiction of the District Court. It asked judgment in the same amount against 24 individual employees, each of whom was alleged to be a committeeman of the local union and an agent of the international, and responsible for representing the international, the local, and their members. The complaint asserted that on February 13 and 14, the individuals, "contrary to their duty to plaintiff to abide by said contract, and maliciously confederating and conspiring together to cause the plaintiff expense and damage, and to induce breaches of the said contract, and to interfere with performance thereof by the said labor organizations and the affected employees, and to cause breaches thereof, individually and as officers, committeemen and agents of the said labor organizations, fomented, assisted and participated in a strike or work stoppage . . .. " Count III of the complaint asked for an injunction but that matter need not concern us here since it is disposed of in Sinc/,air Refining Co. v. Atkinson, ante, p. 195, decided this day. The defendants filed a motion to dismiss the complaint on various grounds and a motion to stay the action for the reasons (1) that all of the issues in the suit were referable to arbitration under the collective bargaining contract and (2) that important issues in the suit were also involved in certain grievances filed by employees and said to be in arbitration under the contract. The District Court denied the motion to dismiss Count I, dismissed Count II, and denied the motion to stay (187 F. Supp. ATKINSON v. SINCLAIR REFINING CO. 241 238 Opinion of the Court. 225). The Court of Appeals upheld the refusal to dismiss or stay Count I, but reversed the dismissal of Count II (290 F. 2d 312), and this Court granted certiorari (368 u. s. 937). I. We have concluded that Count I should not be dismissed or stayed. Count I properly states a cause of action under § 301 and is to be governed by federal law. Local 174 v. Lucas Flour Co., 369 U.S. 95, 102-104; Textile Workers Union v. Lincoln MiUs, 353 U.S. 448. Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties. "The Congress ... has by§ 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582. See also United Steelworkers v. American Mfg. Co., 363 U. S. 564, 570- 571 (concurring opinion). We think it unquestionably clear that the contract here involved is not susceptible to a construction that the company was bound to arbitrate its claim for damages against the union for breach of the undertaking not to strike. While it is quite obvious from other provisions of the contract 1 that the parties did not intend to commit all 1 The no-strike clause (Article III) provides that "[TJhere shall be no strikes ... (1) For any cause which is or may be the subject of a grievance ... or (2) For any other cause, except upon written notice by Union to Employer .... " Article XXVII, covering "general disputes," provides that disputes which are general in character or which affect a large number of employees are to be negotiated between the parties; there is no provision for arbitration. Moreover, the management- prerogative clause (Article XXXI) recognizes that "opera242 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. of their possible disputes and the whole scope of their relationship to the grievance and arbitration procedures established in Article XXVI,2 that article itself is determinative of the issue in this case since it precludes arbitration boards from considering any matters other than employee grievances.3 After defining a grievance as "any difference regarding wages, hours or working conditions between the parties hereto or between the Employer and an employee covered by this working agreement," Article XXVI provides that the parties desire to settle employee grievances fairly and quickly and that therefore a stated procedure "must be followed." The individual employee is required to present his grievance to his foreman, and if not satisfied there, he may take his grievance to the plant superintendent who is to render a written decision. There tion of the Employer's facilities and the direction of the working forces, including the right to hire, suspend or discharge for good and sufficient cause and pursuant to the seniority Article of this agreement, the right to relieve employees from duties because of lack of work, are among the sole prerogatives of the Employer; provided, however, that ... such suspensions and discharges shall be subject to the grievance and arbitration clause . . . ." 2 Article XXVI is set out in full infra, at p. 250, as an Appendix. 3 We do not need to reach, therefore, the question of whether, under the contract involved here, breaches of the no-strike clause are "grievances," i. e., "difference[s] regarding wages, hours or working conditions," or are "grievances" in the more general sense of the term. See Hoover Express Co. v. Teamsters Local, No. 327, 217 F. 2d 49 (C. A. 6th Cir.). The present decision does not approve or disapprove the doctrine of the Hoover case or the Sixth Circuit cases following it (e. g., Vulcan-Cincinnati, Inc., v. United Steelworkers, 289 F. 2d 103; United Auto Workers v. Benton Harbor Indus., 242 F. 2d 536). See also cases collected in Yale & Towne Mfg. Co. v. Local Lodge No. 1717, 299 F. 2d 882, 883-884 n. 5, 6 (C. A. 3d Cir.). In Drake Bakeries, Inc., v. Local 50, post, p. 254, decided this day, the question of arbitrability of a damages claim for breach of a no-strike clause is considered and resolved in favor of arbitration in the presence of an agreement to arbitrate "all wmplaints, disputes or grievances arising between them [i. e., the parties] involving any act or conduct or relation between the parties." ATKINSON v. SINCLAIR REFINING CO. 243 238 Opinion of the Court. is also provision for so-called Workmen's Committees to present grievances to the local management. If the local superintendent's decision is not acceptable, the matter is to be referred for discussion between the President of the International and the Director of Industrial Relations for the company (or their representatives), and for decision by the Director alone. If the Director's decision is disputed, then "upon request of the President or any District Director" of the international, a local arbitration board may be convened and the matter finally decided by this board. Article XXVI then imposes the critical limitation. It is provided that local arbitration boards "shall consider only individual or local employee or local committee grievances arising under the application of the currently existing agreement." There is not a word in the grievance and arbitration article providing for the submission of grievances by the company. Instead, there is the express, flat limitation that arbitration boards should consider only employee grievances. Furthermore, the article expressly provides that arbitration may be invoked only at the option of the union. At no place in the contract does the union agree to arbitrate at the behest of the company. The company is to take its claims elsewhere, which it has now done. The union makes a further argument for a stay. Following the strike, and both before and after the company filed its suit, 14 of the 24 individual defendants filed grievances claiming reimbursement for pay withheld by the employer. The union argues that even though the company need not arbitrate its claim for damages, it is bound to arbitrate these grievances; and the arbitrator, in the process of determining the grievants' right to reimbursement, will consider and determine issues which also underlie the company's claim for damages. Therefore, it is said that a stay of the court action is appropriate. We are not satisfied from the record now before us, however, that any significant issue in the damage suit 244 OCTOBER TERM, 1961. Opiruon of the Court. 370 u. s. will be presented to and decided by an arbitrator. The grievances filed simply claimed reimbursement for pay due employees for time spent at regular work or processing grievances. Although the record is a good deal less than clear and although no answer has been filed in this case, it would appear from the affidavits of the parties presented in connection with the motion to stay that the grievants claimed to have been disciplined as a result of the work stoppage and that they were challenging this disciplinary action. The company sharply denies in its brief in this Court that any employee was disciplined. In any event, precisely what discipline was imposed, upon what grounds it is being attacked by the grievants, and the circumstances surrounding the withholding of pay from the employees are unexplained in the record. The union's brief here states that the important issue underlying the arbitration and the suit for damages is whether the grievants instigated or participated in a work stoppage contrary to the collective bargaining contract. This the company denies and it asserts that no issue in the damage suit will be settled by arbitrating the grievances. The District Court must decide whether the company is entitled to damages from the union for breach of contract. The arbitrator, if arbitration occurs, must award or deny reimbursement in whole or in part to all or some of the 14 employees. His award, standing alone, obviously would determine no issue in the damage suit. If he awarded reimbursement to the employees and if it could be ascertained with any assurance 4 that one of his subsidiary findings was that the 14 men had not participated in a forbidden work stoppage-the critical issue according to the union's brief-the company would nevertheless not be foreclosed in court since, even if it were 4 Arbitrators generally have no obligation to give their reasons for an award. United Steelworkers v. Enterprise Corp., 363 U. S. 593, 598; Bernhardt v. Polygraphic Co., 350 U.S. 198, 203. The record of their proceedings is not as complete as it is in a court trial. Ibid. ATKINSON v. SINCLAIR REFINING CO. 245 238 Opinion of the Court. bound by such a subsidiary finding made by the arbitrator, it would be free to prove its case in court through the conduct of other agents of the union. In this state of the record, the union has not made out its case for a stay.5 For the foregoing reasons, the lower courts properly denied the union's motion to dismiss Count I or stay it pending arbitration of the employer's damage claim. IL We turn now to Count II of the complaint, which charged 24 individual officers and agents of the union with breach of the collective bargaining contract and tortious interference with contractual relations. The District Court held that under § 301 union officers or members cannot be held personally liable for union actions, and that therefore "suits of the nature alleged in Count II are no longer cognizable in state or federal courts." The Court of Appeals reversed, however, ruling that "Count II stated a cause of action cognizable in the courts of Indiana and, by diversity, maintainable in the District Court." We are unable to agree with the Court of Appeals, for we are convinced that Count II is controlled by federal law and that it must be dismissed on the merits for failure to state a claim upon which relief can be granted. 5 The union also argues that the preemptive doctrine of cases such as San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, is applicable and prevents the courts from asserting jurisdiction. Since this is a § 301 suit, that doctrine is inapplicable. Local, 17 4 v. Lucas Flour Co., 369 U. S. 95, 101 n. 9. We put aside, since it is unnecessary to reach them, the questions of whether the employer was excused from arbitrating the damage claim because it was over breach of the no-strike clause (see Drake Bakeries, Inc., v. Local 50, post, p. 254, decided this day) and whether the underlying factual or legal determination, made by an arbitrator in the process of awarding or denying reimbursement to 14 employees, would bind either the union or the company in the latter's action for damages against the union in the District Court. 246 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Under § 301 a suit for violation of the collective bargaining contract in either a federal or state court is governed by federal law (Local 17 4 v. Lucas Flour Co., 369 U. S. 95, 102-104; Textile Workers Union v. Lincoln Mills, 353 U. S. 448), and Count II on its face charges the individual defendants with a violation of the no-strike clause. After quoting verbatim the no-strike clause, Count II alleges that the 24 individual defendants "contrary to their duty to plaintiff to abide by" the contract fomented and participated in a work stoppage in violation of the no-strike clause. The union itself does not quarrel with the proposition that the relationship of the members of the bargaining unit to the employer is "governed by" the bargaining agreement entered into on their behalf by the union. It is universally accepted that the nostrike clause in a collective agreement at, the very least establishes a rule of conduct or condition of employment the violation of which by employees justifies discipline or discharge (Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 280 & n. 10; Labor Board v. Rockaway News Co., 345 U. S. 71, 80; Labor Board v. Sands Mfg. Co., 306 U. S. 332; Labor Board v. Draper Corp., 145 F. 2d 199 (C. A. 4th Cir.); United Biscuit Co. v. Labor Board, 128 F. 2d 771 (C. A. 7th Cir.); see R. R. Donnelley & Sons Co., 5 Lab. Arb. 16; Ford Motor Co., 1 Lab. Arb. 439). The conduct charged in Count II is therefore within the scope of a "violation" of the collective agreement. As well as charging a violation of the no-strike clause by the individual defendants, Count II necessarily charges a violation of the clause by the union itself. The work stoppage alleged is the identical work stoppage for which the union is sued under Count I and the same damage is alleged as is alleged in Count I. Count II states that the individual defendants acted "as officers, committeemen and agents of the said labor organizations" in breaching ATKINSON v. SINCLAIR REFINING CO. 247 238 Opinion of the Court. and inducing others to breach the collective bargaining contract. Count I charges the principal, and Count II charges the agents for acting on behalf of the principal. Whatever individual liability Count II alleges for the 24 individual defendants. it necessarily restates the liability of the union which is charged under Count I, since under § 301 (b) the union is liable for the acts of its agents, under familiar principles of the law of agency (see also § 301 (e)). Proof of the allegations of Count II in its present form would inevitably prove a violation of the no-strike clause by the union itself. Count II, like Count I, is thus a suit based on the union's breach of its collective bargaining contract with the employer, and therefore comes within § 301 (a). When a union breach of contract is alleged, that the plaintiff seeks to hold the agents liable instead of the principal does not bring the action outside the scope of § 301.6 Under any theory, therefore, the company's action is governed by the national labor relations law which Congress commanded this Court to fashion under § 301 (a). We hold that this law requires the dismissal of Count II for failure to state a claim for which relief can be granted-whether the contract violation charged is that of the union or that of the union plus the union officers and agents. When Congress passed § 301, it declared its view that only the union was to be made to respond for union 6 Swift & Co. v. United Packinghouse Workers, 177 F. Supp. 511 (D. Colo.). Contra, Square D Co. v. United E., R. & M. Wkrs., 123 F. Supp. 776, 779-781 (E. D. Mich.). See also Morgan Drive Away, Inc., v. Teamsters Union, 166 F. Supp. 885 (S. D. Ind.), concluding, as we do, that the complaint should be dismissed because of§§ 301 (b) and 301 (e), but for want of jurisdiction rather than on the merits. Our holding, however, is that the suit is a§ 301 suit; whether there is a claim upon which relief can be granted is a separate question. See Bell v. Hood, 327 U. S. 678. 248 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. wrongs, and that the union members were not to be subject to levy. Section 301 (b) has three clauses. One makes unions suable in the courts of the United States. Another makes unions bound by the acts of their agents according to conventional principles of agency law ( cf. § 301 (e)). At the same time, however, the remaining clause exempts agents and members from personal liability for judgments against the union (apparently even when the union is without assets to pay the judgment). The legislative history of § 301 (b) makes it clear that this third clause was a deeply felt congressional reaction against the Danbury Hatters case (Loewe v. Lawlor, 208 U.S. 274; Lawlor v. Loewe, 235 U.S. 522), and an expression of legislative determination that the aftermath (Loewe v. Savings Bank of Danbury, 236 F. 444 (C. A. 2d Cir.)) of that decision was not to be permitted to recur. In that case, an antitrust treble damage action was brought against a large number of union members, including union officers and agents, to recover from them the employer's losses in a nationwide, union-directed boycott of his hats. The union was not named as a party, nor was judgment entered against it. A large money judgment was entered, instead, against the individual defendants for participating in the plan "emanating from headquarters" (235 U.S., at 534), by knowingly authorizing and delegating authority to the union officers to do the acts involved. In the debates, Senator Ball, one of the Act's sponsors, declared that § 301, "by providing that the union may sue and be sued as a legal entity, for a violation of contract, and that liability for damages will lie against union assets only, will prevent a repetition of the Danbury Hatters case, in which many members lost their homes" (93 Cong. Rec. 5014). See also 93 Cong. Rec. 3839, 6283; S. Rep. No. 105, 80th Cong., 1st Sess. 16. Consequently, in discharging the duty Congress imposed on us to formulate the federal law to govern ATKINSON v. SINCLAIR REFINING CO. 249 238 Opinion of the Court. § 301 (a) suits, we are strongly guided by and do not give a niggardly reading to§ 301 (b). "We would undercut the Act and defeat its policy if we read § 301 narrowly" (Lincoln Mills, 353 U. S., at 456). We have already said in another context that § 301 (b) at least evidences "a congressional intention that the union as an entity, like a corporation, should in the absence of agreement be the sole source of recovery for injury inflicted by it" (Lewis v. Benedict Coal Corp., 361 U.S. 459,470). This policy cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, or both, in a separate count or in a separate action for damages for violation of a collective bargaining contract for which damages the union itself is liable. The national labor policy requires and we hold that when a union is liable for damages for violation of the no-strike clause, its officers and members are not liable for these damages. Here, Count II, as we have said, necessarily alleges union liability but prays for damages from the union agents. Where the union has inflicted the injury it alone must pay. Count II must be dismissed.7 The case is remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. 7 In reaching this conclusion, we have not ignored the argument that Count II was drafted in order to anticipate the possible union defense under Count I that the work stoppage was unauthorized by the union, and was a wildcat strike led by the 24 individual defendants acting not in behalf of the union but in their personal and nonunion capacity. The language of Count II contradicts the argument, however, and we therefore do not reach the question of whether the count would state a proper § 301 (a) claim if it charged unauthorized, individual action. 663026 0-62-20 250 OCTOBER TERM, 1961. Appendix to Opinion of the Court. 370 u. s. APPENDIX TO OPINION OF THE COURT. Article XXVI provides: "GRIEVANCE AND ARBITRATION PROCEDURE "Definition "l. A grievance is defined to be any difference regarding wages, hours or working conditions between the parties hereto or between the Employer and an employee covered by this working agreement which might arise within any plant or within any region of operations. "Grievance Procedure "It is the sincere desire of both parties that employee grievances be settled as fairly and as quickly as possible. Therefore, when a grievance arises, the following procedure must be followed: "2. For the purpose of adjusting employee grievances and disputes as defined above, it is agreed that any employee, individually or accompanied by his committeeman, if desired shall: "(a) Seek direct adjustment of any grievance or dispute with the foreman under whom he is employed. Such meeting will be without loss of time to the employee and/or his committeeman during regular working hours for time spent in conference with the foreman. The foreman shall reply to said employee within three (3) working days (Saturday, Sunday and Holidays excluded) from the date on which the grievance was first presented to him; "(b) If the question is not then settled, the employee may submit his grievance in writing, on forms supplied by Union, to a committee selected as hereinafter provided for the particular plant or region in which such employee is employed. Such committee shall investigate said complaint and if in its' opinion the grievance has merit it shall have the right to meet with the local company superintendent or his representative, who shall receive the committee for this purpose. Written decisions shall be made by the local superintendent or his representative within ten (10) days after meeting with the committee, provided that prior to the time of or at the meeting with the committee such complaint or grievance has been submitted in writing to the local superintendent or his representative. "(c) In exceptional cases, Workmen's Committees shall have the right to institute grievances concerning any alleged violation of this Agreement by filing written complaint with the official locally in charge. ATKINSON v. SINCLAIR REFINING CO. 251 238 Appendix to Opinion of the Court. "(d) Any grievance filed with or by the local Workmen's Committee can only be withdrawn with the Workmen's Committee's consent. "3. No complaint or grievance shall be considered hereunder unless it is presented to the superintendent or official locally in charge within sixty (60) days from the date on which the complaint or grievance arose, or from the date on which the employee or employees concerned first learned of the cause of complaint. "4. The committee above mentioned shall be selected from among and by employees of the Employer who are members of the Union. No official, foreman, or employee having authority to hire or discharge men shall serve on the committee. "5. In case of discharge or lay-off, employees who may desire to file complaints must present such complaints within one (1) week after the effective date of discharge or lay-off to the committee mentioned in this Article. Before any such employee is to be discharged for cause, other than flagrant violation of rules, or is to be laid off, he shall be given a written notice, dated and signed by his foreman or other representative of the Employer, setting forth the reason for such discharge or lay-off. In the event an employee has been discharged for a flagrant violation of a company rule, he shall subsequently, upon request, be given a written notice, dated and signed by his foreman or other representative of the Employer setting forth the reason for such discharge. The Workmen's Committee will be furnished with a copy of the statement furnished to the employee, both where the discharge or lay-off is for cause or for flagrant violation of a Company rule. Any grievance to be filed under this section must be filed within forty (40) days from the effective date of the discharge or lay-off. "6. In the event the decision of the superintendent or his representative shall not be satisfactory to the committee, it is agreed that the President of the Oil, Chemical and Atomic Workers International Union, AFL-CIO, or someone designated by him, shall, not later than forty-five (45) days after such decision, have the right to confer with the Director of Industrial Relations for the Sinclair Companies, or someone designated by him, for the purpose of discussing grievances or disputes and of obtaining decisions thereon. It is agreed that the Director of Industrial Relations for the Sinclair Companies, or someone designated by him, shall render a decision to the President of the Oil, Chemical and Atomic Workers International Union, AFL-CIO, within twenty (20) days after grievances or disputes have been so submitted to him in writing. 252 OCTOBER TERM, 1961. Appendix to Opinion of the Court. 370 U.S. "7. If such decision is not satisfactory, then, upon request of the President or any District Director of the Oil, Chemical and Atomic Workers International Union, AFL-CIO and within sixty (60) days from the posting date of the final appeal answer, there shall be set up a local Arbitration Board, and such grievances and disputes submitted to it within ten (10) days after formation of such Board. Such local boards may be set up at each refinery to deal with cases arising therefrom; cases arising from Sinclair Oil & Gas Company shall be heard and determined at Tulsa, Oklahoma; Fort Worth, Texas; Midland, Texas; or Casper, Wyoming; cases arising from Sinclair Pipe Line Company shall be heard and determined at the cities previously named or at Kansas City, Missouri; Toledo, Ohio; Houston, Texas; Chicago, Illinois; Philadelphia, Pennsylvania; or Independence, Kansas. These local Arbitration Boards shall consider only individual or local employee or local committee grievances arising under the application of the currently existing agreement, or supplements thereto, and local wage and classification disputes submitted on the initiative of the President or any District Director of the Oil, Chemical and Atomic Workers International Union, AFLCIO. In this connection, Employer agrees to give consideration to local classification rate inequity complaints existing by reason of a comparison with the average of competitive rates of pay for like jobs having comparable duties and responsibilities being paid by agreedupon major competitive companies in the local area. Such requests for adjustments of classification rate inequities, if any, shall be made not more frequently than twice annually, to be effective on February 1st and August 1st. Such requests to be submitted at least thirty (30) days prior to such semi-annual dates. "8. The above mentioned local Arbitration Board shall be composed of one person designated by Employer and one designated by the President or District Director of the Oil, Chemical and Atomic Workers International Union, AFL-CIO. The board shall be requested by both parties to render a decision within seven (7) days from date of submission. Should the two members of the board selected as above provided, be unable to agree within seven (7) days, or to mutually agree upon an impartial third arbitrator, an impartial third member shall be selected within seven (7) days thereafter by the employer or employee member of the Arbitration Board, or such two parties jointly, requesting the Federal Mediation and Conciliation Service to submit a panel of arbitrators from which the third member of the board will be selected in accordance with the procedure of such Federal Mediation and Conciliation Service. ATKINSON v. SINCLAIR REFINING CO. 253 238 Appendix to Opimon of the Court. "9. The decision of the Board aforesaid, as provided in Section 8 hereof, shall be final. However, if the rules and conditions existing at the time a given case originated are subsequently changed, it is understood that the arbitration award rendered under former rules and conditions shall not act to prohibit consideration of a complaint originating under the changed rules and conditions. "10. Cases arising from the Gasoline Plants shall be considered as corning within the Producing Divi~ion in which they are !orated. "11. The fee and expense of the impartial arbitrator selected as above provided shall be divided equally between the parties to such arbitration. The Parties agree to attempt to hold the arbitrator's fees to a reasonable basis." 254 OCTOBER TERM, 1961. Syllabus. 370 u. s. DRAKE BAKERIES INCORPORATED v. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 598. Argued April 18, 1962.-Decided June 18, 1962. Under § 301 of the Labor Management Relations Act, 1947, an employer sued a union for damages alleged to have resulted from the union's action in encouraging its members to strike or not to report for work on a certain day in violation of a no-strike clause contained in a collective bargaining agreement between the employer and the union. The contract provided for compulsory, final and binding arbitration, at the request of either party, of "all complaints, disputes or grievances arising between [the parties] involving questions of interpretation or application of any clause or matter covered by this contract or any act or conduct or relation between the parties hereto, directly or indirectly." The union moved that the suit be stayed pending arbitration of the dispute, and it supported this motion by an affidavit denying that it had instigated a strike or encouraged its members not to work on the day in question. Held: The District Court properly stayed the action pending completion of arbitration. The contract here involved obligates the employer to arbitrate its claim for damages for forbidden strikes by the union, and there are no circumstances in this record which would justify relieving the employer of its duty to arbitrate the consequences of this one-day strike, intertwined as it is with the union's denials that there was any strike or any breach of contract. Pp. 255-267. (a) The employer's claim against the union for damages for an alleged strike in violation of the contract is clearly within the scope of the arbitration provisions of the contract here involved. Atkinson v. Sinclair Refining Co., ante, p. 238, distinguished. Pp. 256-260. (b) In the circumstances of this case, the alleged one-day strike was not such a breach or repudiation of the arbitration clause by the union that the employer was excused from arbitrating its claim for damages resulting therefrom. Pp. 260--266. DRAKE BAKERIES v. BAKERY WORKERS. 255 254 Opinion of the Court. (c) On the record in this case, it cannot be said that the union is not entitled to a stay because it did not proceed with sufficient dispatch in seeking arbitration of the employer's damage claim against it. Pp. 266-267. 294 F. 2d 399, affirmed. Robert Abelow argued the cause for petitioner. With him on the briefs were Horace S. Manges and Marshall C. Berger. Howard N. Meyer argued the cause for respondents. With him on the briefs was Paul O'Dwyer. Edward Maguire filed a brief for the New York State AFL-CIO, as amicus curiae, urging affirmance. MR. JusTICE WHITE delivered the opinion of the Court. The petitioning company brought this action for damages in the District Court under§ 301 (a) of the Taft- Hartley Act, alleging that the respondent union had violated the no-strike clause of the collective bargaining contract between the union and the company. The sole question in the case is whether the District Court was correct in holding that the employer's claim was an arbitrable matter under the contract and in ordering a stay of the action pending completion of arbitration. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court by an equally divided vote.' This Court granted certiorari (368 U.S. 975), and set the cause for argument immediately following Atkinson v. Sinclair Refining Co., ante, p. 238, decided this day. 1 The Court of Appeals originally heard the appeal before a threejudge panel, which reversed the judgment below (287 F. 2d 155). But rehearing was ordered before the active judges of the court, who divided 3-3 on the merits, and by a 4-2 vote withdrew the panel decision and affirmed the judgment below (294 F. 2d 399). The propriety of this procedure was questioned in the petition for certiorari, but later petitioner abandoned the question. 256 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. The company's business is baking and selling cakes and other bakery products. On December 16, 1959, the company notified the union and its employees that because Christmas and New Year's would fall on Fridays and because it was desirable to have fresh bakery products to sell on the Mondays following the holidays, employees would not work on the Thursdays before Christmas and New Year's but would work on the Saturdays following those holidays. Meetings between the union and the company on December 18 and December 22 ensued, the company's position being that it was exercising management's prerogative in rescheduling work, the union's that the proposed work schedule violated the collective bargaining contract and that the employees were not obligated to work on December 26 or January 2. A compromise arrangement was worked out for December 26, and 80 out of 190 employees reported on that day, a sufficient number to allow production to proceed. Further conversations on December 28 were not fruitful, however, and on Saturday, January 2, the company was unable to produce its goods because only 26 employees reported for work. The company promptly filed this damage action on January 4, 1960, alleging that the union instigated and encouraged its members to strike or not to report for work on January 2, all in violation of the no-strike clause contained in the collective bargaining contract. No answer has been filed by the union but the union's affidavit in support of the motion for stay stated what its answer would contain and specifically denied that the union had instigated a strike or encouraged its members not to work on January 2. As was true in Atkinson, supra, the issue of arbitrability is a question for the courts and is to be determined by the contract entered into by the parties. " . . . [A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United SteelDRAKE BAKERIES v. BAKERY WORKERS. 257 254 Opinion of the Court. workers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582. But the contract here is much different from the agreement in Atkinson. Under Article V 2 of the contract: "The parties agree that they will promptly attempt to adjust all complaints, disputes or grievances arising between them involving questions of interpretation or application of any clause or matter covered by this contract or any act or conduct or relation between the parties hereto, directly or indirectly." This is broad language, indeed, and the procedure thereafter provided in Article V does not, as it did in Atkinson, exclude claims or complaints of the employer. It is provided that in the first instance the union will be represented by a committee and the shop chairman, and the employer by the shop manager. Failing adjustment at this stage, the issue is required to be submitted in writing by "the party claiming to be aggrieved to the other party," 2 "Article V-Grievance Procedure "(a) The parties agree that they will promptly attempt to adjust all complaints, disputes or grievances arising between them involving questions of interpretation or application of any clause or matter covered by this contract or any act or conduct or relation between the parties hereto, directly or indirectly. "In the adjustment of such matters the Union shall be represented in the first instance by the duly designated committee and the Shop Chairman and the Employer shall be represented by the Shop Management. It is agreed that in the handling of grievances there shall be no interference with the conduct of the business. '' (b) If the Committee and the Shop Management are unable to effect an adjustment, then the issue involved shall be submitted in writing by the party claiming to be aggrieved to the other party. The matter shall then be taken up for adjustment between the Union and the Plant :!\fanager or other representative designated by management for the purpose. If no mutually satisfactory adjustment is reached by this means, or in any event within seven (7) days after the submission of the issue in writing as provided above, then either party shall have the right to refer the matter to arbitration as herein provided." 258 OCTOBER TERM, 1961. Opinion of the Court. 370U. S. whereupon the union and the plant manager are to attempt to reach a satisfactory agreement. If agreement is not reached within seven days from the time the issue is submitted in writing, either party "shall have the right to ref er the matter to arbitration .... " Article V does not stop with disputes "involving questions of interpretation or application of any clause or matter" covered by the contract. The adjustment and arbitration procedures are to apply to all complaints, all disputes and all grievances involving any act of either party, or any conduct of either party, or any relation between the parties, directly or indirectly. The company asserts that there was a strike by the union in violation of the no-strike clause. It therefore has a "complaint" against the union concerning the "acts" or "conduct" of the union. There is also involved a "dispute" between the union and the company, for the union denies that there was a strike at all, denies that it precipitated any strike, denies that the employees were obligated under the contract to work on that January 2, and itself claims that the employer breached the contract in scheduling work for the holidays.3 Article V on its face easily reaches the employer's claim against the union for damages caused by an alleged strike in violation of the contract. The company earnestly contends that the parties cannot have intended to arbitrate so fundamental a matter as a union strike in breach of contract, and that only an 3 Immediately before the Christmas weekend in 1959, petitioner and respondent exchanged telegrams, in the course of which exchange respondent charged: "We have informed you that we did not agree with, or accept your proposal to amend or alter past practice concerning holiday weekends. Your proposed schedule and your threats of disciplinary penalties violates contract and practice . . . . If you do not retract position we shall demand arbitration." DRAKE BAKERIES v. BAKERY WORKERS. 259 254 Opinion of the Court. express inclusion of a damage claim by the employer would suffice to require arbitration. But it appears more reasonable to us to expect such a matter, if it is indeed so fundamental and so basic to the company under the contract, to have been excluded from the comprehensive language of Article V if the parties so intended. In Article VII,4 which contains the no-strike provisions, the parties prohibited strikes, insulated tpe union, its officers and members from damages for strikes which the union did not authorize, and agreed that, even in the case of unauthorized strikes, the company would arbitrate disciplinary action taken against the strikers. In the face 4 "Article VII-No Strikes "(a) There shall be no strike, boycott, interruption of work, stoppage, temporary walk-out or lock-out for any rea.son during the terms of this contract except that if either party shall fail to abide by the decision of the Arbitrator, after receipt of such decision, under Article 6 of this contract, then the other party shall not be bound by this provision. "(b) The parties agree as part of the consideration of this agreement that neither the International Union, the Local Union, or any of its officers, agents or members, shall be liable for damages for unauthorized stoppage, strikes, intentional slowdowns or suspensions of work if: " (a) The Union gives written notice to the Company within twenty-four (24) hours of such action, copies of which shall be posted immediately by the Union on the bulletin board that it has not authorized the stoppage, strike, slowdown or suspension of work, and "(b) if the Union further cooperates with the Company in getting the employees to return and remain at work. "It is recognized that the Company has the right to take disciplinary action, including discharge, against any employee who engages in any unauthorized strike or work stoppage, subject to the Union's right to submit to arbitration in accordance with the agreement the question of whether or not the employee did engage in any unauthorized strike or work stoppage." 260 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. of the comprehensive language of Article V, it would have been most appropriate at this point for the parties to have excluded from the arbitration procedures the company's claim for strike damages, if they had intended to do so. Instead, the inclusive coverage of Article V was left intact. Of significance also are certain events which occurred in August 1959. At that time the company took issue with union conduct in connection with overtime work. Labeling this conduct an "overtime strike" and a "breach of contract," the company wrote a letter to the State Mediation Board of New York saying that the contract with the union provided for arbitration of disputes before an arbitrator appointed by the Board and requesting the appointment of an arbitrator to "determine the question of breach of contract and damages suffered by" the company as a result of the strike. An award of damages against the union was requested, as was injunctive relief against a continuance of the overtime strike.5 It would appear, then, that the company, just four months earlier in 1959, considered that the fundamental matter of a union-led strike was a dispute to be arbitrated under the provisions of the contract.6 The company further asserts that even if it agreed in the contract to arbitrate union violations of the no-strike clause, it is excused by the union's breach from pursuing the post-breach remedies called for in the contract. The 5 Apparently the employer's thought was that the federal law should borrow the New York rule which is that an arbitrator may award relief in the nature of an injunction, enforceable in the courts regardless of the New York statute similar to the N orris-LaGuardia Act. Ruppert v. Egelhofer, 3 N. Y. 2d 576, 148 N. E. 2d 129. 6 The union opposed arbitration of this dispute, claiming that there was no arbitrable controversy as to the claimed existence of an obligation to work overtime. The parties settled the controversy without conclusive determination of the arbitrability dispute. DRAKE BAKERIES v. BAKERY WORKERS. 261 254 Opinion of the Court. company does not deny that grievance and arbitration procedures under this contract-as is true generally (United Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 584)-contemplate as a matter of course the arbitration of many alleged breaches of contract. Indeed, central to the company's position is its assertion that the union was bound to arbitrate, rather than strike over, its claim that the company breached the contract by scheduling Saturday work. But in its view, the union's violation of the no-strike clause is sui generis and so basic to what the employer bargained for in the contract and so inherently and "fundamentally inconsistent with" the grievance and arbitration procedures that the faithful observance of the no-strike clause by the union is a condition precedent to the employer's duty to arbitrate (even though he has promised to do so), or that the union must be deemed to have waived, or to be estopped from asserting, its right to arbitrate. However, this Court has prescribed no such inflexible rule rigidly linking no-strike and arbitration clauses of every collective bargaining contract in every situation.7 The company has not attempted, or claimed the right, either to terminate the entire contract or to extinguish permanently its obligations under the arbitration provisions. Instead, it has sued for damages for an alleged strike and, as far as this record reveals, the contract continued in effect, as did the promises of the parties to arbitrate and the promise of the union not to strike. Moreover, in this 7 We do not understand the opinions in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, or United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, to enunciate a flat and general rule that these two clauses are properly to be regarded as exact counterweights in every industrial setting, or to justify either party to the contract in wrenching them from their context in the collective agreement on the ground that they are mutua.lly dependent covenants which are severable from the other promises between the parties. 262 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. case, under this contract, by agreeing to arbitrate all claims without excluding the case where the union struck over an arbitrable matter, the parties have negatived any intention to condition the duty to arbitrate upon the absence of strikes. They have thus cut the ground from under the argument that an alleged strike, automatically and regardless of the circumstances, is such a breach or repudiation of the arbitration clause by the union that the company is excused from arbitrating, upon theories of waiver, estoppel, or otherwise.8 Arbitration provisions, which themselves have not been repudiated, are meant to survive breaches of contract, in many contexts, even total breach; 9 and in determining whether one party has so repudiated his promise to arbitrate that the other party is excused the circumstances of the claimed repudia- 8 In Local 174 v. Lucas Flour Co., 369 U.S. 95, 105-106, it was held that a clause requiring the parties to submit disputes to final determination by arbitration implied an obligation not to strike over such disputes. Accordingly, the Court upheld an employer's § 301 breach of contract suit against the union for strike damages due to a walkout over an arbitrable dispute. In that case, unlike the present one, the union conceded that there had been a strike over a grievance which the union had agreed to submit to arbitration. The only question in dispute was liability vel non. The union did not contend that, and the Court did not consider whether, the employer's damage claim should have been taken to an arbitrator. And, of course, the Court did not consider whether the union's breach of the no-strike clause constituted a repudiation or waiver of arbitration of the damage claim. 9 See In re Pahlberg Petition, 131 F. 2d 968 (C. A. 2d Cir.i; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F. 2d 9-18 (C. A. 2d Cir.); Pennsylvania Greyhound Lines v. Amalgamated Assn., 98 F. Supp. 789 (W. D. Pa.), rev'd on other ground&, 193 F. 2d 327 (C. A. 3d Cir.); Batter Bldg. Mats. Co. v. Kirschner, 142 Conn. 1, 110 A. 2d 464; Heyman v. Darwins, Ltd., [1942] A. C. 356 (H. L.) (disapproving Jureidini v. National Br. & Ir. Ins. Co., [1915] A. C. 499, 505 (H. L.)). See also Shanferoke Coal Corp. v. Westchester Serv. Corp., 70 F. 2d 297, 299 (C. A. 2d Cir.), aff'd, 293 u. s. 449, 453-454. DRAKE BAKERIES v. BAKERY WORKERS. 263 254 Opinion of the Court. tion are critically important.10 In this case the union denies having repudiated in any respect its promise to arbitrate, denies that there was a strike, denies that the employees were bound to work on January 2 and asserts that it was the company itself which ignored the adjustment and arbitration provisions by scheduling holiday work. In passing§ 301, Congress was interested in the enforcement of collective bargaining contracts since it would "promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace" (S. Rep. No. 105, 80th Cong., 1st Sess. 17). It was particularly interested in placing "sanctions behind agreements to arbitrate grievance disputes" (Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 456). The preferred method for settling disputes was declared by Congress to be "[f]inal adjustment by a method agreed upon by the parties" (§ 203 ( d) of the Act, 29 U.S. C. § 173 (d)). "That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play" ( United Steelworkers v. American Mfg. Co., 363 U.S. 564, 566). Under our federal labor policy, therefore, we have every reason to preserve the stabilizing influence of the 10 6 Corbin, Contracts § 1443 (1961 Supp., n. 34, pp. 192-193) states: "The effect of a repudiation upon the repudiator's right to arbitration should depend on the character of his so-called 'repudiation' and the reasons given for it. One who flatly repudiates the provision for arbitration itself should have no right to the stay of a court action brought by the other party. But mere nonperformance, even though unjustified, is not per se a 'repudiation.' One who asserts in good faith that the facts justify him in refusing performance of other provisions in the contract should not thereby lose his right to arbitration that he would otherwise have had. There is no inconsistency in his demanding arbitration at the same time that he asserts his legal privilege not to proceed with performance." 264 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. collective bargaining contract in a situation such as this. We could enforce only the no-strike clause by refusing a stay in the suit for damages in the District Court. We can enforce both the no-strike clause and the agreement to arbitrate by granting a stay until the claim for damages is arbitrated. This we prefer to do.11 Petitioner relies upon decisions by various Courts of Appeals denying stays of damage suits for breach of nostrike clauses for want of arbitrability of the dispute.12 Most of them, however, involved far more narrowly drawn arbitration clauses than that which is involved here.13 And in at least two Court of Appeals decisions involving clauses of comparable breadth to that of the instant case, violations of no-strike clauses have been held to be arbi- 11 Cf. BooM v. Eyre, 1 Bl. H. 273, 126 Eng. Rep. 160 (K. B. 1777) (L. Mansfield): " ... [W]here mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent." See also Dermott v. Jones, 23 How. 220, 231. 12 These cases are collected in the withdrawn decision of the threejudge panel of the Court of Appeals, 287 F. 2d 155, 158 n. 4. See also Vulcan-Cincinnati, Inc., v. United Steelworkers, 289 F. 2d 103 (C. A. 6th Cir.). 13 E. g., United Furniture Workers v. Colonial Hardwood Co., 168 F. 2d 33 (C. A. 4th Cir.), where arbitration was limited to employee grievances over wages, hours, or working conditions, as in Atkinson v. Sinclair Refining Co., ante, p. 238; and United Automobile Workers v. Benton Harbor Indus., 242 F. 2d 536 (C. A. 6th Cir.); CuMo Press, Inc., v. Kokomo Union, 235 F. 2d 108 (C. A. 7th Cir.), where arbitration was limited to employee grievances. But see United E., R. & M. Wkrs. v. Miller Metal Prods., Inc., 215 F. 2d 221 (C. A. 4th Cir.) ("[a]ll differences, disputes and grievances that may arise between the parties to this contract with respect to the matters covered in this agreement"); Markel Elec. Prods., Inc., v. United E., R. & M. Wkrs., 202 F. 2d 435 (C. A. 2d Cir.) ("differences ... as to the meaning and application of the provisions of this agreement, or ... any trouble of any kind ... in the plant"). DRAKE BAKERIES v. BAKERY WORKERS. 265 254 Opinion of the Court. trable and suits for damages have been stayed pending arbitration.14 This Court held in Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, that the employer did not have the right to replace employees who had struck over employer unfair labor practices, in the face of an absolute no-strike clause. It was said that, despite the broad prohibition of strikes in the contract, the parties could not have intended to waive the employees' right to strike over a flagrant unfair labor practice, absent an express statement in the contract to that effect. The company urges that Mastro precludes the result we have reached in this case. Mastro, however, involved a flagrant unfair labor practice by the company threatening the very existence of the union itself. A strike in violation of contract is not per se an unfair labor practice 15 and there is no suggestion in this record that the one-day strike involved here was of that nature. We do not decide in this case that in no circumstances would a strike in violation of the no-strike clause contained in this or other contracts entitle the employer to rescind or abandon the entire contract or to declare its promise to arbitrate forever discharged or to refuse to arbitrate its damage claims against the union. We do decide and hold that Article V of this contract obligates the company to arbitrate its claims for damages from forbidden strikes by the union and that there are no circumstances in this record which justify relieving 14 Signal-Stat Corp. v. Local 475, 235 F. 2d 298 (C. A. 2d Cir.); Yale & Towne Mfg. Co. v. Local 1717, 299 F. 2d 882 (C. A. 3d Cir.). See id., at 883-884 n. 5, collecting authorities from lower courts. Under New York law, broad arbitration clauses permit arbitrators to award damages. See In re Publishers Assn., 8 N. Y. 2d 414, 171 N. E. 2d 323. 15 United Mine Workers v. Labor Board, 103 U.S. App. D. C. 207, 257 F. 2d 211; Lodge No. 12 v. Cameron Iron Works, Inc./257 F. 2d 467, 473 (C. A. 5th Cir.); see Dowd Box Co. v. Courtney, 368 U.S. 502,513; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 41-42. 663026 0-62-21 266 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. the company of its duty to arbitrate the consequences of this one-day strike, intertwined as it is with the union's denials that there was any strike or any breach of contract at all. If the union did strike in violation of the contract, the company is entitled to its damages; by staying this action, pending arbitration, we have no intention of depriving it of those damages. We simply remit the company to the forum it agreed to use for processing its strike damage claims. That forum, it is true, may be very different from a courtroom,1° but we are not persuaded that the remedy there will be inadequate. Whether the damages to be awarded by the arbitrator would not normally be expected to serve as an "effective" deterrent to future strikes, which the company urges, is not a questiqn to be answered in the abstract or in general terms. This question, as well as what result will best promote industrial peace, can only be answered in the factual context of particular cases. Here, the union claims it did not call a strike and that the men were not bound to work on January 2, basing its claim upon years of past practice under the contract. The dispute which this record presents appears to us to be one particularly suited for arbitration, if the parties have agreed to arbitrate. We hold that they did so agree and will hold the company to its bargain. A final matter is the company's suggestion that the union is not entitled to a stay because it has not proceeded with dispatch in seeking arbitration. The District Court held that the union was not in default, and we agree. If the company had a claim for damages, the contract provided for the company's attempting to adjust its claim by consulting with the union. Failing this, either party could take the matter to arbitration. The company's claim arose out of events which occurred on 16 Bernhardt v. Polygraphic Co., 350 U. S. 198, 203. DRAKE BAKERIES v. BAKERY WORKERS. 267 254 HARLAN, J., dissenting. January 2. This case was filed on January 4. This was the first occasion for the union to insist upon its right to arbitrate the employer's claim for damages. This it promptly did by moving for a stay in the District Court.11 As its conduct shows in a previous situation, the employer was aware of the procedure to be followed.18 It should have followed it here. For the foregoing reasons, the judgment affirming the opinion of the District Court was correct, and, on the merits, the panel decision properly withdrawn. Affirmed. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE HARLAN, dissenting. The question presented in this case is whether the parties to this collective bargaining agreement intended that a court, rather than an arbitrator, should decide the employer's claim that the union had violated the no-strike clause of the agreement. Whether a strike in breach of contract has occurred and, if so, what damages have been suffered, are matters with respect to which a court of law can hardly be deemed less competent, as an adjudicator, than an arbitrator. There is no special reason to suppose that the parties preferred to submit this kind of a dispute to an arbitrator whose expertise is more likely to be in the area of employees' grievance claims, as in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580-582; United Steelworkers v. Enterprise Wheel & 17 Compare Shanferoke Coal Corp. v. Westchester Serv. Corp., 70 F. 2d 297,299 (C. A. 2d Cir., L. Hand, J.), aff'd, 293 U.S. 449, 453- 454, with Lane, Ltd. v. Larus & Bro. Co., 243 F. 2d 364 (C. A. 2d Cir.). 18 See text accompanying notes 5-6, supra. 268 OCTOBER TERM, 1961. HARLAN, J., di;;;;enting. 370 U.S. Car Corp., 363 U. S. 593, 597-598. The les.s so, from the standpoint of the employer, when it is recognized that any damages awarded by an arbitrator would not be self-enforcing. It would require more persuasive evidence than either this co1lective agreement or record affords to persuade me that it was contemplated that the employer would forego his statutory remedy under § 301 respecting alleged violations of the no-strike clause of the collective agreement. I would reverse the judgment below substantially for the reasons given in the panel opinion of the Court of Appeals, 287 F. 2d 155. RUDOLPH v. UNITED STATES. 269 Per Curiam. RUDOLPH ET ux. v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 396. Argued April 3, 1962.-Decided June 18, 1962. An insurance company paid the expenses of a group of its agents and their wives, including petitioners, to New York City to attend an annual convention, and the Commissioner assessed the value of the trip to petitioners as taxable income. In a suit for refund, the District Court found that the trip was provided by the company primarily for the purpose of affording a pleasure trip in the nature of a bonus, reward, and compensation for a job well done and that, from the point of view of petitioners, it was primarily a pleasure trip and that, therefore, the value of the trip was income and the costs were personal and nondeductible. The Court of Appeals approved these findings. Held: Since the ultimate facts are subject to the "clearly erroneous" rule and their review would be of no importance save to the litigants themselves, the writ of certiorari is dismissed as improvidently granted. Pp. 269-270. Reported beow: 291 F. 2d 841. Richard A. Freling argued the cause for petitioners. With him on the briefs was Felix Atwood. John B. Jones, Jr. argued the cause for the United States. With him on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, Wayne G. Barnett, I. Henry Kutz and Norman H. Wolfe. Charles W. Merritt filed a brief for the American Hotel Association, as amicus curiae, urging reversal. PER CuarAM. The petition for certiorari in this case was granted because it was thought to present important questions involving the definition of "income" and "ordinary and necessary" business expenses under the Internal Revenue Code. 368 U. S. 913. An insurance company provided 270 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370U. S. a trip from its home office in Dallas, Texas, to New York City for a group of its agents and their wives. Rudolph and his wife were among the beneficiaries of this trip, and the Commissioner assessed its value to them as taxable income.* It appears to be agreed between the parties that the tax consequences of the trip turn upon the Rudolphs' "dominant motive and purpose" in taking the trip and the company's in offering it. In this regard the District Court, on a suit for a refund, found that the trip was provided by the company for "the primary purpose of affording a pleasure trip ... in the nature of a bonus, reward, and compensation for a job well done" and that from the point of view of the Rudolphs it "was primarily a pleasure trip in the nature of a vacation ... . " 189 F. Supp. 2, 4-5. The Court of Appeals approved these findings. 291 F. 2d 841. Such ultimate facts are subject to the "clearly erroneous" rule, cf. Commissioner v. Duberstein, 363 U.S. 278, 289-291 (1960), and their review would be of no importance save to the litigants themselves. The appropriate disposition in such a situation is to dismiss the writ as improvidently granted. See Rice v. Sioux City Memori. al Park Cemetery, 349 U. S. 70, 78 n. 2 (1955). MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JusTICE WHITE took no part in the consideration or decision of this case. Separate opinion of MR. JusTICE HARLAN. Although the reasons given by the Court for dismissing the writ as improvidently granted should have been persuasive against granting certiorari, now that the case is here I think it better to decide it, two members of the Court having dissented on the merits. * A joint return had been filed. RUDOLPH v. UNITED STATES. 271 269 Opinion of HARLAN, J. The courts below concluded (1) that the value of this "all expense" trip to the company-sponsored insurance convention constituted "gross income" to the petitioners within the meaning of § 61 of the Internal Revenue Code of 1954, and (2) that the amount reflected was not deductible as an "ordinary and necessary" business expense under § 162 of the Code.1 Both conclusions are, in my opinion, unassailable unless the findings of fact on which they rested are to be impeached by us as clearly erroneous. I do not think they can be on this record, especially in light of the "seasoned and wise rule of this Court" which "makes concurrent findings of two courts below final here in the absence of very exceptional showing of error." Comstock v. Group of Institutional Investors, 335 U. S. 211, 214. The basic facts, found by the District Court, are as follows. Petitioners, husband and wife, reside in Dallas, Texas, where the home office of the husband's employer, the Southland Life Insurance Company, is located. By having sold a predetermined amount of insurance, the husband qualified to attend the company's convention in New York City in 1956 and, in line with company policy, to bring his wife with him. The petitioners, together with 150 other employees and officers of the insurance company and 141 wives, traveled to and from New York City on special trains, and were housed in a single hotel during their two-and-one-half-day visit. One morning was devoted to a "business meeting" and group luncheon, the rest of the time in New York City to "travel, sightseeing, entertainment, fellowship or free time." The entire trip lasted one week. 1 As I see this case, there is no need to explore whether the proper reporting procedure for a deductible expense is not to include it in income in the first place, cf. Treas. Reg. § 1.162- 17 (b), or to "run it through" the taxpayer's income with an offsetting deduction in the same amount. 272 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 u. s. The company paid all the expenses of the conventiontrip which amounted to $80,000; petitioners' allocable share being $560. When petitioners did not include the latter amount in their joint income tax return, the Commissioner assessed a deficiency which was sustained by the District Court, 189 F. Supp. 2, and also by the Court of Appeals, one judge dissenting, in a per curi.am opinion, 291 F. 2d 841, citing its recent decision in Patterson v. Thomas, 289 F. 2d 108, where the same result had been reached. The District Court held that the value of the trip being "in the nature of a bonus, reward, and compensation for a job well done," was income to Rudolph, but being "primarily a pleasure trip in the nature of a vacation," the costs were personal and nondeductible. I. Under § 61 of the 1954 Code was the value of the trip to the taxpayer-husband properly includible in gross income? That section defines gross income as "all income from whatever source derived," including, among other items, "compensation for services." Certain sections of the 1954 Code enumerate particular receipts which are included in the concept of "gross income," 2 including prizes and awards ( with certain exceptions) ; • 2 E. g., § 71 (Alimony and separate maintenance payments), § 72 (Annuities; certain proceeds of endowment and life insurance contracts), § 73 (Services of child). 3 § 74: "(a) GENERAL RULE.-Except as provided in subsection (b) and in section 117 (relating to scholarships and fellowship grants), gross income includes amounts received as prizes and awards. "(b) ExcEPTION .-Gross income does not include amounts received as prizes and awards made primarily in recognition of religious, charitable, scientific, educational, artistic, literary, or civic achievement, but only if- " (1) the recipient was selected without any action on his part to enter the contest or proceeding; and "(2) the recipient is not required to render substantial future services as a condition to receiving the prize or award." RUDOLPH v. UNITED STATES. 273 269 Opinion of HARLAN, J. while other sections, §§ 101-121, specifically exclude certain receipts from "gross income," including, for example, gifts and inheritances• (see Commissioner v. Duberstein, 363 U. S. 278), and meals or lodgings furnished for the convenience of the employer.5 The Treasury Regulations emphasize the inclusiveness of the concept of "gross income." 6 In light of the sweeping scope of § 61 taxing "all gains except those specifically exempted," Commissioner v. Glenshaw Glass Co., 348 U.S. 426,430; see Commissioner v. LoBue, 351 U. S. 243, 246; James v. United States, 366 U.S. 213,219, and its purpose to include as taxable income "any economic or financial benefit conferred on the employee as compensation, whatever the form or mode by which it is effected," Commissioner v. Smith, 324 U. S. 177, 181, it seems clear that the District Court's findings, if sustainable, bring the value of the trip within the reach of the statute. Petitioners do not claim that the value of the trip is within one of the statutory exclusions from "gross income" (see notes 4 and 5, supra) as did the taxpayer in Patterson v. Thomas, 289 F. 2d 108, 111-112; rather they characterize the amount as a "fringe benefit" not specifically 4 § 102. 5 § 119. Some of the other exclusions are§ 101 (Certain death payments), § 103 (Interest on certain governmental obligations), § 104 (Compensation for injuries or sickness), § 105 (Amounts received under accident and health plans), § 113 (Mustering-out payments for members of the Armed Forces), § 117 (Scholarship and fellowship grants). 6 Treas. Reg. § 1.61-1 (a) provides: "Gross income means all income from whatever source derived, unless excluded by law. Gross income includes income realized in any form, whether in money, property, or services. Income may be realized, therefore, in the form of services, meals, accommodations, stock, or other property, as well as in cash." See also Treas. Reg. § 1.61-2 (a) (1), (d) and § 1.74-1 (a). ,, 274 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. excluded from § 61 by other sections of the statute, yet not intended to be encompassed by its reach. Conceding that the statutory exclusions from "gross income" are not exhaustive, as the Government seems to recognize is so under Glenshaw, it is not now necessary to explore the extent of any such nonstatutory exclusions.7 For it was surely within the Commissioner's competence to consider as "gross income" a "reward, or a bonus given to ... employees for excellence in service," which the District Court found was the employer's primary purpose in arranging this trip. I cannot say that this finding, confirmed as it has been by the Court of Appeals, is inadequately supported by this record.8 7 Petitioners rely on § 3401 of the 1954 Code, relating to withholding taxes, and more especially on Treas. Reg.§ 31.3401 (a)-1 (b) (10) providing that certain fringe benefits are not considered "wages" subject to withholding. The Government admits that not all "fringe benefits" have been taxed as income, but it is enough to point out here that the withholding tax analogy is not perfect, for payments to laid-off employees from company-financed supplemental unemployment benefit plans are "taxable income" to the employees although not "wages" subject to withholding. R~v. Rul. 56-249, 1956-1 Cum. Bull. 488, as amplified by Rev. Rul. 60-330, 1960-2 Cum. Bull. 46. 8 The District Court said (189 F. Supp., at 4-5): "All of the evidence considered, we think it irrefutably leads to this conclusion: That the insurance company was just doing a gracious magnanimous thing of awarding those leading agents a trip just as much as if it had awarded them an automobile, or suit of clothes .... " ... [W]e conclude, that the trip was earned by ... Rudolph, and was in the nature of a bonus, reward, and compensation for a job well done." It is pertinent to note that in addition to the facts referred to on p. 271, supra, the record shows that company-sponsored conventions of the same kind have in recent years been held in Canada, Mexico City, Havana, Colorado and California, places well known for their appeal to tourists, and far removed from the home office in Dallas. While this factor alone does not render the expenses nondeductible, see I. R. S. News Rel. No. IR- 394, August 3, 1961, it certainly was a relevant circumstance for the District Court to consider. RUDOLPH v. UNITED STATES. 275 269 Opinion of HARLAN, J. II. There remains the question whether, though income, this outlay for transportation, meals, and lodging was deductible by petitioners as an "ordinary and necessary" business expense under § 162.9 The relevant factors on this branch of the case are found in Treas. Reg.§ 1.162-2.10 In summary, the regulation in pertinent part provides: Traveling expenses, including meals, lodgings and other incidentals, reasonable and necessary in the conduct of the taxpayer's business and directly attributable to it are deductible, but expenses of a trip 9 " (a) IN GENERAL.-There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including- "(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business .... " No question is raised in this case as to whether the $80,000 paid by the company for the total convention expense is deductible by the corporation. There is no need to explore the lack of symmetry in certain "income" and "deductibility" areas in the 1954 Code permitting employers to provide certain "fringe benefits" to employees-such as parking facilities, swimming pools, medical services-which have not generally been considered income to the employee, but which, if paid for by the employee with his own funds, would not be a deductible expense. The practicalities of a tax system do not demand hypothetical or theoretical perfection, and these workaday problems are properly the concern of the Commissioner, not of the Courts. 10 Although this Regulation is part of those promulgated on April 3, 1958, it is applicable to this 1956 transaction. The power to make the Regulations prospective only, Int. Rev. Code of 1954, § 7805 (b), was not exercised, and they were made applicable to taxable years beginning after December 31, 1953. T. D. 6291, 1958-1 Cum. Bull. 63. Moreover, the result here would not be different under the prior comparable Regulation. Treas. Reg. 118, § 39.23 (a)-2 (a). 276 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. "undertaken for other than business purposes" are "personal expenses" and the meals and lodgings are "living expenses." Treas. Reg. § 1.162-2 (a). If a taxpayer who travels to a destination engages in both "business and personal activities," the traveling expenses are deductible only if the trip is "related primarily" to the taxpayer's business; if "primarily personal," the traveling expenses are not deductible even though the taxpayer engages in some business there; yet expenses allocable to the taxpayer's trade or business there are deductible even though the travel expenses to and fro are not.11 Id., § 1.162-2 (b)(l). Whether a trip is related primarily to the taxpayer's business or is primarily personal in nature "depends on the facts and circumstances in each case." Id., § 1.162-2 (b)(2); so too with expenses paid or incurred in attending a convention. Id., § 1.162-2 (d). Finally, the deductibility of the explmses of a taxpayer's wife who accompanies her husband depends, first, on whether his trip is a "business trip." Id., § 1.162-2 (c); ifso,itmustfurtherbeshown that the wife's presence on the trip also had a bona fide business purpose. Ibid. Where, as here,. it may be arguable that the trip was both for business and personal reasons, the crucial question is whether, under all the facts and circumstances of the case, the purpose of the trip was "related primarily to business" or was, rather, "primarily personal in nature." 11 No claim has been made by the husband in this case that specific business expenses which may have been incurred at the convention in New York are deductible. The only issue is the deductibility of the entire trip expense. Compare Patterson v. Thomas, 289 F. 2d 108, 114 and n. 13. RUDOLPH v. UNITED STATES. 277 269 Opinion of HARLAN, J. That other trips to other conventions or meetings by other taxpayers were held to be primarily related to business is of no relevance here; that certain doctors, lawyers, clergymen, insurance agents or others 12 have or have not been permitted similar deductions only shows that in the circumstances of those cases, the courts thought that the expenses were or were not deductible as "related primarily to business." The husband places great emphasis on the fact that he is an entrapped "organization man," required to attend such conventions, and that his future promotions depend on his presence. Suffice it to say that the District Court did not find any element of compulsion; to the contrary, it found that the petitioners regarded the convention in New York City as a pleasure trip in the nature of a vacation. Again, I cannot say that these findings are without adequate evidentiary support. Supra, pp. 273- 274. The trip not having been primarily a business trip, the wife's expenses are not deductible. It is not necessary, therefore, to examine whether they would or would not be deductible if, to the contrary, the husband's trip was related primarily to business. Where, as here, two courts below have resolved the determinative factual issues against the taxpayers, according to the rules of law set forth in the statute and regu- 12 Deductions allowed: Coffey v. Commissioner, 21 B. T. A. 1242 (doctor); Coughlin v. Commissioner, 203 F. 2d 307 (lawyer); Shutter v. Commissioner, 2 B. T. A. 23 (clergyman); Callinan v. Commissioner, 12 T. C. M. 170 (legal secretary); see Rev. Rul. 59-316, 1959-2 Cum. Bull. 57; Rev. Rul. 60-16, 1960-1 Cum. Bull. 58. Deductions not allowed: Duncan " · Commissioner, 30 T. C. 386 (doctor); Ellis v. Burnet, 60 App. D. C. 193, 50 F. 2d 343 (lawyer); Reed v. Commissioner, 35 T. C. 199 (lawyer); Patterson v. Thomas, 289 F. 2d 108 (insurance agent); Russell v. Commissioner, 11 T. C. M. 334 (railroad fireman). 278 OCTOBER TERM, 1961. DouGLAS, J., dissenting. 370 u. s. lations, it is not for this Court to re-examine the evidence, and disturb their findings, unless "clearly erroneous." That is not the situation here. I would affirm. Ma. JUSTICE DouGLAS, with whom MR. JUSTICE BLACK joins, dissenting. I. It could not, I think, be seriously contended that a professional man, say a Senator or a Congressman, who attends a convention to read a paper or conduct a seminar with all expenses paid has received "income" within the meaning of the Internal Revenue Code. Nor would it matter, I assume, that he took his wife and that her expenses were also paid. Income has the connotation of something other than the mere payment of expenses. The statute, 26 U. S. C. § 61, speaks in terms of financial gain, of compensation for services, "including fees, commissions, and similar items." The form of payment for services covers a wide range. Treasury Regulations § 1.61-1 provide: "Gross income includes income realized in any form, whether in money, property, or services. Income may be realized, therefore, in the form of services, meals, accommodations, stock, or other property, as well as in cash." The formula "all expenses paid" might be the disguise whereby compensation "for services" is paid. Yet it would be a rare case indeed where one could conclude that a person who gets only his expenses for attendance at one convention gets "income" in the statutory sense. If this arrangement were regular and frequent or if it had the earmarks of a sham device as a cloak for remuneration, there would be room for fact-finders to conclude that RUDOLPH v. UNITED STATES. 279 269 DOUGLAS, J., dissenting. it was evasive. But isolated engagements of the kind here in question have no rational connection with compensation "for services" rendered. It is true that petitioner was an employee and that the expenses for attending the convention were paid by his employer. He qualified to attend the convention by selling an amount of insurance that met a quota set by the company. Other salesmen also qualified, some attending and some not attending. They went from Dallas, Texas, to New York City, where they stayed two and a half days. One day was given to a business session and a luncheon; the rest of the time was left for social events. On this record there is no room for a finding of fact that the "expenses paid" were "for services" rendered. They were apparently a proper income tax deduction for the employer. The record is replete with evidence that from management's point of view it was good business to spend money on a convention for its leading agents-a convention that not only kept the group together in New York City, but in transit as well, giving ample time for group discussions, exchanges of experience, and educational training. It was the exigencies of the employment that gave rise to the convention. There was nothing dishonest, illegitimate, or unethical about this transaction. No services were rendered. New York City may or may not have been attractive to the agents and their wives. Whether a person enjoys or dislikes the trip that he makes "with all expenses paid" has no more to do with whether the expenses paid were compensation "for services" rendered than does his attitude toward his job. In popular understanding a trip to a convention "with all expenses paid" may be an award. Yet the tax laws are filled with exemptions for "awards" which are not considered to be income. The exemption of gifts is one example. Others are the exemptions of the proceeds 280 OCTOBER TERM, 1961. DouGLAS, J ., dissenting. 370 U.S. of life insurance payable at death, disability benefits. the rental values of parsonages, scholarship and fellowship grants, allowances of U. S. employees abroad, musteringout payments to members of the Armed Forces, etc. Employees may receive from their employers many fringe benefits that are not income. Treasury Regulations § 31.3401 (a)-1 (b)(lO) provide: "Ordinarily, facilities or privileges (such as entertainment, medical services, or so-called 'courtesy' discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as wages subject to withholding if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as a means of promoting the health, good will, contentment, or efficiency of his employees." The fringe benefits of this one convention trip are less obviously income than the fringe benefits listed in the Regulations. For the latter are constantly recurringday after day, week after week. Moreover, on this record the convention promotes the "efficiency" of the agents as much as the other fringe benefits enumerated in the Regulations. II. The expenses, if "income," are plainly deductible. The Government, however, says that our problem is to determine "whether it is consistent with the ends of an equitable and workable tax system" to make them such. The problem of designing an "equitable" tax system is, however, for Congress, not for the Court. The test of deductibility to be applied here is whether the expenses are "ordinary and necessary" in the carrying on of petitioner's business. The Act is explicit in permitting the deduction of traveling expenses (including the RUDOLPH v. UNITED STATES. 281 269 Douous, J., dissenting. entire amount expended for meals and lodging) while away from home in the "pursuit of a trade or business," 26 U. S. C. § 162 (a) (2). The Regulations are even more explicit. Section 1.162- 2 (b)(l) provides: "If a taxpayer travels to a destination and while at such destination engages in both business and personal activities, traveling expenses to and from such destination are deductible only if the trip is related primarily to the taxpayer's trade or business. If the trip is primarily personal in nature, the traveling expenses to and from the destination are not deductible even though the taxpayer engages in business activities while at such destination." (Italics added.) Thus, by the very terms of the Regulations a taxpayer who combines business and pleasure may deduct all "traveling expenses," provided the business purpose 1s dominant. Section 1.162-2 (b)(2) of the Regulations states: "Whether a trip is related primarily to the taxpayer's trade or business or is primarily personal in nature depends on the facts and circumstances in each case. The amount of time during the period of the trip which is spent on personal activity compared to the amount of time spent on activities directly relating to the taxpayer's trade or business is an important factor in determining whether the trip is primarily personal. If, for example, a taxpayer spends one week while at a destination on activities which are directly related to his trade or business and subsequently spends an additional five weeks for vacation or other personal activities, the trip will be considered primarily personal in nature in the absence of a clear showing to the contrary." 663026 0-62-22 282 OCTOBER TERM, 1961. DouGLAS, J., dissenting. 370 U.S. Where, as here, at least one-half of the time is spent on mundane "business" activities,1 the case is nowhere near the colorable transaction described in § 1.162-2 (b) (2). I see no reason to take this case out of the main stream of precedents and establish a special rule for insurance conventions. Judge Brown, dissenting in the Court of Appeals, shows how discriminatory this decision is: "Deductions have been allowed as 'ordinary and necessary' to clergymen attending a church convention; to expenses of an employee attending conventions of a related business group; to a lawyer attending a meeting of the American Bar Association; to a legal secretary attending the national convention of the National Association; to physicians attending medical conventions; to certified public accountants attending conventions; to university teachers in attending conventions or scientific meetings; to professional cartoonists attending political conventions; to persons attending the Red Cross Convention; to school teachers attending summer school; to attorneys attending an institute on Federal taxation; to employees sent to refresher courses to become more acquainted with new processes in the industry; to a furniture store sending its buyers to the annual furniture mart; to representatives to annual conventions of trade associations; and to an insurance agent away from home on business." 291 F. 2d 841, 844-845. Insurance conventions go back at least to 1924 (Report No. 15, Life Insurance Sales Research Bureau, Nov. 1924) and are premised on the idea that agents and companies 1 The travel to and from the convention was in a group, so arranged as to develop solidarity among the agents, and to provide a continuing seminar. RUDOLPH v. UNITED STATES. 283 269 DouGLAS, J., dissenting. benefit from the knowledge and increase in morale which result from them.2 Why they should be treated differently from other conventions is a mystery. It cannot be, as the district judge thought and as the Government seems to argue, because going to New York City is, as a matter of law, a "pleasure trip." If we are in the field of judicial notice, I would think that some might conclude that the weekend in New York City was a chore and that those who went sacrificed valuable time that might better have 2 "One of the chief things to be accomplished by a convention is to secure unanimous understanding of the principles underlying the company's sales operations and the rules which experience has proved to be essential in carrying out those principles. There is no sales organization anywhere which has a complete and unanimous grasp of these matters but a convention can do more to give the men that grasp than anything else. Home Offices are constantly under the necessity of formulating principles and rules, and they are similarly in a constant state of disappointment because they are not understood. The convention is the place above all others where this can be accomplished. "The extent to which the Home Office arranges for transportation depends largely upon the situation of the convention city. If it is centrally located with many lines of approach, it would be impracticable to arrange for many men to meet on their way to the convention ·. But if the convention is to be held in an isolated spot, or one at considerable distance from the home of the majority of the members attending, then specific plans may be made for assembling at some nearer location and proceeding together to the destination. If this latter is at all feasible, it is desirable for several reasons. It gives the men a peculiar feeling of satisfaction to travel on a 'special' train or on 'special' cars, it encourages a friendlier feeling than is generally present at conventions at which the men arrive as strangers, it makes the men more anxious to get down' to the real work of the convention when they arrive a.t their destination, and, above all, it has a decided educational value in its contacts and ever present business discussions." Report No. 15, Life Insurance Sales Research Bureau, Nov. 1924, pp. 13, 17-18. 284 OCTOBER TERM, 1961. DouGLAS, J., dissenting. 370 U.S. been spent on the farm, in the woods, or along the seashore. Moreover, federal revenue agents attending their convention are given a deduction for the expenses they incur. We are advised that " ... the Commissioner has recently withdrawn his objections in two Tax Court cases to the deduction of convention expenses incurred by two IRS employees in attending conventions of the National Association of Internal Revenue Employees. "No explanation has been given publicly for the Tax Court action of the Commissioner, it being generally presumed that the IRS employees met the tests of Reg. § 1.162-2 ( d) by showing a sufficient relationship between the trade or business of being an IRS employee and attendance at conventions of the NAIRE. The National Association of Internal Revenue Employees has hailed the Commissioner's actions as setting a precedent which can be cited by IRS employees when taking deductions for expenses incurred in attending NAIRE conventions." CCH Standard Federal Tax Reports No. 23, April 19, 1961, pt. 1, p. 2. It is odd, indeed, that revenue agents need make no accounting of the movies they saw or the nightclubs they attended, in order to get the deduction, while insurance agents must. III. The wife's expenses 3 are, on this record, also deductible. The Treasury Regulations state in § 1.162-2 ( c): "Where a taxpayer's wife accompanies him on a business trip, expenses attributable to her travel are 3 For reasons not germane to the problems of the federal income tax, the New York Superintendent of Insurance has ruled that the payment of a wife's expenses in sttending an insurance convention 269 RUDOLPH v. UNITED STATES. 285 DouGLAS, J., dissenting. not deductible unless it can be adequately shown that the wife's presence on the trip has a bona fide business purpose. The wife's performance of some incidental service does not cause her expenses to qualify as deductible business expenses. The same rules apply to any other members of the taxpayer's family who accompany him on such a trip." The civil law philosophy, expressed in the community property concept, attributes half of the husband's earnings to the wife-an equitable idea that at long last was reflected in the idea of income splitting under the federal income tax law.4 The wife's contribution to the business productivity of the husband in at least some activities is well known. It was specially recognized in the insurance field long before the issue of deductibility of her expenses arose under the federal income tax.5 Business reasons is not permissible. N. Y. Ins. Dept. Rulings (1953), Oct. 6, 1953. And see 27 McKinney's Con. Laws of N. Y., § 213, subdivisions 7 and 8, regulating insurance agents' competitions. 4 See H. R. Rep. No. 1274, 80th Cong., 2d Sess., pp. 1, 47. s "Today an ever increasing number of wives take a real interest in what their husbands do, and this interest is frequently referred to by men as being of very great value to them. In fact, it has been said that a wife can not usually be so wholly lacking in contact with her husband's work as to have no influence at all upon it. "In many cases, this influence is negative rather than positive, and this is particularly true in the careers of many life insurance agents because their work frequently involves evening appointments-a condition usually resented by a wife. Many a wife has thoroughly discouraged her husband because the only thing which she ever knew about his work was that he had to go out at night or that he had failed to 'write that ten' which would give her a new dress. She knew nothing about the bigger things which life insurance accomplishes and of which her husband was or could be a part. The recognition of the very great desirability of 'selling' the wife on her husband's job has spread rapidly in recent years, and today many husbands are helped over the rough spots of their career by the enthusiasm and vision of their wives, much of which can be aroused or increased at a convention." Report No. 15, supra note 2, pp. 25-26. 286 OCTOBER TERM, 1961. DouGLAB, J ., dissenting. 370U. S. motivated the inclusion of wives in this particular insurance convention. An insurance executive testified at this trial: "Q. I hand you Plaintiff's Exhibit 15, and you will notice it is a letter addressed to 'John Doe'; also a bulletin entitled 'A New Partner Has Been Formed.' "Will you tell us what that consists of? "A. This is a letter addressed to the wife of an agent, a new agent, as we make the contract with him. This letter is sent to his wife within a few days after the contract, enclosing this booklet explaining to her how she can help her husband in the life insurance business. "Q. Please tell us, as briefly as you can and yet in detail, how you as agency director for Southland attempt to integrate the wives' performance with the performance of agents in the life insurance business. "A. One of the important functions we have in mind is the attendance at these conventions. In addition to that communication, occasionally there are letters that will be written to the wife concerning any special sales effort that might be desired or promoted. The company has a monthly publication for the agents and employees that is mailed to their homes so the wife will have a convenient opportunity to see the magazine and read it. "At most of our convention program[s], we have some specific reference to the wife's work, and in quite a few of the convention programs we have had wives appear on the program. "Q. Suppose you didn't have the wives and didn't seek to require their attendance at a convention would there be some danger that your meetings' 269 RUDOLPH v. UNITED STATES. 287 DouGLAB, J., dissenting. and conventions would kind of degenerate into stag affairs, where the whole purpose of the meeting would be lost? "A. I think that would definitely be a tendency." I would reverse the judgments below and leave insurance conventions in the same category as conventions of revenue agents, lawyers, doctors, business men, accountants, nurses, clergymen and all others, until and unless Congress decides otherwise. 288 OCTOBER TERM, 1961. Per Curiam. 370 u. s. GRUMMAN v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 436. Argued April 19, 1962.-Decided June 18, 1962. Judgment reversed on the authority of Russell v. United States, 369 U.S. 749. Reported below: 111 U.S. App. D. C. 79, 294 F. 2d 708. David Rein argued the cause for petitioner. With him on the briefs was Joseph Forer. Bruce J. Terris argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Yeagl,ey and Kevin T. Maroney. PER CuRIAM. The judgment is reversed. Russell v. United States, 369 U. S. 749. MR. JUSTICE CLARK and MR. JusTICE HARLAN dissent for the reasons stated in their dissenting opinions m Russell v. United States, 369 U. S. 749, 779, 781. Mn. JusTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JUSTICE WHITE took no part in the decision of this case. DECISIONS PER CURIAM. 289 370U. S. June 18, 1962. KANSAS CITY SOUTHERN RAILWAY CO. v. REILY, COLLECTOR OF REVENUE OF LOUISIANA. APPEAL FROM THE SUPREME COURT OF LOUISIANA. No. 918. Decided June 18, 1962. Appeal dismissed for want of a substantial federal question. Reported below: 242 La. 235, 135 So. 2d 915. W. Scott Wilkinson, Milton W. Schober and Pike Hall, Jr. for appellant. Emmett E. Batson for appellee. PER CuaIAM. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. See National Leather Co. v. Massachusetts, 277 U.S. 413. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. CEPERO v. PUERTO RICO ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 1336, Misc. Decided June 18, 1962. PER CuRIAM. The appeal is dismissed. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. 290 OCTOBER TERM, 1961. Per Curiam. 370U.S. VALENZUELA v. EYMAN, WARDEN, ET AL. APP1>;AL FROM THE SUPREME COURT OF ARIZOXA. No. 1144, Misc. Decided June 18, 1962. Appeal dismissed and certiorari denied. PER CuRIAM. The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. PATSKAN v. BUCHKOE, WARDEN, ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 1262, Misc. Decided June 18, 1962. Appeal dismissed. Reported below: 296 F. 2d 724. PER CuRIAM. The appeal is dismissed. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. DECISIONS PER CURIAM. 291 370 U.S. June 18, 1962. HALL v. HEARD, ACTING CORRECTIONS DIRECTOR. APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 1269, Misc. Decided June 18, 1962 Appeal dismissed and certiorari denied. PER CuRIAM. The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. WILBUR v. l.JNITED STATES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. No. 1383, Misc. Decided June 18, 1962. Appeal dismissed. Appellant pro se. Solicitor General Cox for the United States. PER CuRIAM. The motion to dismiss 1s granted and the appeal is dismissed. MR. JusTrCE FRANKFURTER took no part in the consideration or decision of this case. 292 OCTOBER TERM, 1961. Per Curiam. 370 u. s. MILUTIN v. BOUCHARD, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 782. Decided June 18, 1962. Certiorari granted; judgment of the Court of Appeals vacated; case remanded to the District Court with instructions. Reported below: 299 F. 2d 50. Alfred W. Charles for petitioner. Solicitor General Cox for respondent. PER CuRrAM. The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Third Circuit is vacated and the case is remanded to the United States District Court for the District of New Jersey with instructions to remand it to the Immigration and Naturalization Service with directions to reopen the proceeding and to afford petitioner an opportunity to seek relief under§ 243 (h) of the Immigration and Nationality Act of 1952 pursuant to the procedures established by the currently applicable regulations as suggested by the Solicitor General. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. SEELIG v. UNITED STATES. 293 370 u. s. Per Curiam. SEELIG v. UNITED STATES. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 841, Misc. Decided June 18, 1962. Certiorari granted; judgment vacated and case remanded for reconsideration in the light of Ellis v. United States, 356 U. S. 674, and Coppedge v. United States, 369 U. S. 438. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and Howard A. Gli,ckstein for the United .States. PER CuRIAM. In accordance with the suggestion of the Solicitor General and upon consideration of the entire record, the motion for leave to proceed in f orma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for reconsideration in the light of Ellis v. United States, 356 U. S. 674, and Coppedge v. United States, 369 U. S. 438. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. 294 OCTOBER TERM, 1961. Syllabus. 370 U.S. BROWN SHOE CO., INC., v. UNITED STATES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI. No. 4. Argued December 6, 1961.-Decided June 25, 1962. The Government brought suit to enjoin consummation of a mergrr of two corporations, on the ground that its effect might be substantially to lessen competition or to tend to create a monopoly in the production, distribution and sale of shoes, in violation of § 7 of the Clayton Act, as amended in 1950. The District Court found that the merger would increase concentration in the shoe industry, both in manufacturing and retailing, eliminate one of the corporations as a substantial competitor in the retail field, and establish a manufacturer-retailer relationship which would deprive all but the top firms in the industry of a fair opportunity to compete, and that, therefore, it probably would result in a further substanti:il lessening of competition and an increased tendency toward monopoly. It enjoined appellant from having or acquiring any further interest in the business, stock, or assets of the other corporation, required full divestiture by appellant of the other corporation's stock and assets, and ordered appellant to propose in the immediate future a plan for carrying into effect the Court's order of divestiture. Held: The judgment is affirmed. Pp. 296-346. 1. The District Court's judgment was a "final" judgment within the meaning of § 2 of the Expediting Act, and this Court has juriRdiction of this direct appeal under that Act. Pp. 304-311. 2. The legislative history of the 1950 amendments to § 7 of thr Clayton Act indicates that Congress provided no definite quantitative or qualitative tests by which enforcement agencies were to gauge the effects of a given merger, but rather that Congress intended that a variety of economic and other factors be considered in determining whether the merger was consistent with maintaining competition in the industry in which the merging companies operated. Pp. 311-323. 3. The record supports the District Court's findings and its conclusion that the shoe industry is being subjected to a cumulative series of vertical mergers which, if left unchecked, may substantially lessen competition, within the meaning of § 7, as amended. Pp. 323-334. BROWN SHOE CO. v. UNITED STATES. 295 294 Syllabus. (a) The record in this case supports the District Court's finding that the relevant lines of commerce are men's, women's and children's shoes. Pp. 325-326. (b) The District Court properly found that the predominantly medium-priced shoes which appellant manufactures do not occupy a product market different from the predominantly low-priced shoes which the other corporation sells. P. 326. (c) In defining the product market, the District Court was not required to employ finer "price/quality" or "age/sex" distinctions than those recognized by its classifications of "men's," "women's" and "children's" shoes. Pp. 326-328. (d) Insofar as the vertical aspect of this mergrr is concerned, the relevant geographic market is the entire Nation, and the anticompetitive effects of the merger are to be measured within that range of distribution. P. 328. (e) The trend toward vertical integration in the shoe industry, when combined with appellant's avowed policy of forcing its own shoes upon its retail subsidiaries, seems likely to foreclose competition from a substantial share of the markets for men's, women's and children's shoes, without producing any countervailing competitive, economic or social advantages. Pp. 328- 334. 4. The District Court was correct in concluding that this merger may tend to lessen competition substantially in the retail sale of men's, women's and children's shoes in the overwhelming majority of the cities and their environs in which both corporations sell through owned or controlled outlets. Pp. 334-346. (a) The District Court correctly defined men's, women's and children's shoes as the relevant lines of commerce in which to analyze the horizontal aspects of the merger. P. 336. (b) The District Court properly defined the relevant geographic markets in which to analyze the horizontal aspects of this merger as those cities with populations exceeding 10,000 and their environs in which both corporations retailed shoes through their own or controlled outlets. Pp. 336-339. (c) The evidence is adequate to support the finding of the District Court that, as a result of the merger, competition in the retailing of men's, womf'n's and children's shoes may be lessened substantially in those cities. Pp. 339-346. 179 F. Supp. 721, affirmed. 296 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Arthur H. Dean argued the cause for appellant. With him on the briefs were Robert H. M cRoberts, Henry N. Ess III and Dennis C. Mahoney. Solicitor General Cox argued the cause for the United States. With him on the brief were Assistant Attorney General Loevinger, J. William Doolittle, Richard A. Solomon, Philip Marcus and James J. Coyle. MR. CHIEF JusTICE WARREN delivered the opinion of the Court. I. This suit was initiated in November 1955 when the Government filed a civil action in the United States District Court for the Eastern District of Missouri alleging that a contemplated merger between the G. R. Kinney Company, Inc. (Kinney), and the Brown Shoe Company, Inc. (Brown), through an exchange of Kinney for Brown stock, would violate § 7 of the Clayton Act, 15 U. S. C. § 18. The Act, as amended, provides in pertinent part: "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital ... of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." The complaint sought injunctive relief under § 15 of the Clayton Act, 15 U. S. C. § 25, to restrain consummation of the merger. A motion by the Government for a preliminary injunction pendente lite was denied, and the companies were permitted to merge provided, however, that their businesses be operated separately and that their assets be kept separately identifiable. The merger was then effected on May 1, 1956. BROWN SHOE CO. v. UNITED STATES. 297 294 Opinion of the Court. In the District Court, the Government contended that the effect of the merger of Brown-the third largest seller of shoes by dollar volume in the United States, a leading manufacturer of men's, women's, and children's shoes, and a retailer with over 1,230 owned, operated or controlled retail outlets 1-and Kinney-the eighth largest company, by dollar volume, among those primarily engaged in selling shoes, itself a large manufacturer of shoes, and a retailer with over 350 retail outlets---"may be substantially to lessen competition or to tend to create a monopoly" by eliminating actual or potential competition in the production of shoes for the national wholesale shoe market and in the sale of shoes at retail in the Nation, by foreclosing competition from "a market represented by Kinney's retail outlets whose annual sales exceed $42,000,000," and by enhancing Brown's competitive advantage over other producers, distributors and sellers of shoes. The Government argued that the "line of commerce" affected by this merger is "footwear," or alternatively, that the "line[s]" are "men's," "women's," and "children's" shoes, separately considered, and that the "section of the country," within which the anticompetitive effect of the merger is to be judged, is the Nation as a whole, or alternatively, each separate city or city and its 1 Of these over 1,230 outlets under Brown's control at the time of the filing of the complaint, Brown owned and operated over 470, while over 570 were independently owned stores operating under the Brown "Franchise Program" and over 190 were independently owned outlets operating under the "Wohl Plan." A store operating under the Franchise Program agrees not to carry competing lines of shoes of other manufacturers in return for certain aid from Brown; a store under the Wohl Plan similarly agrees to concentrate its purchases on lines which Brown sells through Wohl in return for credit and merchandising aid. See note 66, infra. In addition, Brown shoes were sold through numerous retailers operating entirely independently of Brown. 663026 0-62-23 298 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. immediate surrounding area in which the parties sell shoes at retail. In the District Court, Brown contended that the merger would be shown not to endanger competition if the "line[s] of commerce" and the "section[s] of the country" were properly determined. Brown urged that not only were the age and sex of the intended customers to be considered in determining the relevant line of commerce, but that differences in grade of material, quality of workmanship, price, and customer use of shoes resulted in establishing different lines of commerce. While agreeing with the Government that, with regard to manufacturing, the relevant geographic market for assessing the effect of the merger upon competition is the country as a whole, Brown contended that with regard to retailing, the market must vary with economic reality from the central business district of a large city to a "standard metropolitan area" 2 for a smaller community. Brown further contended that, both at the manufacturing level and at the retail level, the shoe industry enjoyed healthy competition and that the vigor of this competition would not, in any event, be diminished by the proposed merger because Kinney manufactured less than 0.5% and retailed less than 2% of the Nation's shoes. The District Court rejected the broadest contentions of both parties. The District Court found that "there is one group of classifications which is understood and recog- 2 "The general concept adopted in defining a standard metropolitan area [is] that of an integrated economic area with a large volume of daily travel and communication between a central city of 50,000 inhabitants or more and the outlying parts of the area. . . . Each area (except in New England) consists of one or more entire counties. In New England, metropolitan areas have been defined on a town basis rather than a county basis." II U. S. Bureau of the Census, United States Census of Business: 1954, p. 3. BROWN SHOE CO. v. UNITED STATES. 299 294 Opinion of the Court. nized by the entire industry and the public-the classification into 'men's,' 'women's' and 'children's' shoes separately and independently." On the other hand, "[t]o classify shoes as a whole could be unfair and unjust; to classify them further would be impractical, unwarranted and unrealistic." Realizing that "the areas of effective competition for retailing purposes cannot be fixed with mathematical precision," the District Court found that "when determined by economic reality, for retailing, a 'section of the country' is a city of 10,000 or more population and its immediate and contiguous surrounding area, regardless of name designation, and in which a Kinney store and a Brown ( operated, franchise, or plan) [3] store are located." The District Court rejected the Government's contention that the combining of the manufacturing facilities of Brown and Kinney would substantially lessen competition in the production of men's, women's, or children's shoes for the national wholesale market. However, the District Court did find that the likely foreclosure of other manufacturers from the market represented by Kinney's retail outlets may substantially lessen competition in the manufacturers' distribution of "men's," "women's," and "children's" shoes, considered separately, throughout the Nation. The District Court also found that the merger may substantially lessen competition in retailing alone in "men's," "women's," and "children's" shoes, considered separately, in every city of 10,000 or more population and its immediate surrounding area in which both a Kinney and a Brown store are located. Brown's contentions here differ only slightly from those made before the District Court. In order fully to understand and appraise these assertions, it is necessary to set 3 See note 1, supra. 300 OCTOBER TERM, 1961. Opinion of the Court. 370 u. 8. out in some detail the District Court's findings concerning the nature of the shoe industry and the place of Brown and Kinney within that industry. The Industry. The District Court found that although domestic shoe production was scattered among a large number of manufacturers, a small number of large companies occupied a commanding position. Thus, while the 24 largest manufacturers produced about 35% of the Nation's shoes, the top 4---International, Endicott-Johnson, Brown (including Kinney) and General Shoe-alone produced approximately 23% of the Nation's shoes or 65% of the production of the top 24. In 1955, domestic production of nonrubber shoes was 509.2 million pairs, of which about 103.6 million pairs were men's shoes, about 271 million pairs were women's shoes, and about 134.6 million pairs were children's shoes.• The District Court found that men's, women's, and children's shoes are normally produced in separate factories. The public buys these shoes through about 70,000 retail outlets, only 22,000 of which, however, derive 50% or more of their gross receipts from the sale of shoes and are classified as "shoe stores" by the Census Bureau.5 These • U. S. Bureau of Census, Facts for Industry, Production, by Kind of Footwear: 1956 and 1955, Table l, Production Series M31A-06, introduced as Defendant's Exhibit MM. The term "nonrubber shoes" includes leather shoes, sandals and play shoes, but excludes canvas-upper, rubber-soled shoes, athletic shoes and slippers. Ibid. 5 These figures are based on the 1954 Census of Business. For that enumeration, the Census Bureau classification "shoe stores" included separately operated leased shoe departments of general stores, as distinguished from the shoe departments of general stores operated only as sections of the latter's general business. U. S. Bureau of Census, Retail Trade, Single Units and Multiunits, BC58-RS3, p. I. As described, infra, Brown operated numerous leased shoe departments in general stores which would be included in the Census Bureau's total of "shoe stores." BROWN SHOE CO. v. UNITED STATES. 301 294 Opinion of the Court. 22,000 shoe stores were found generally to sell ( 1) men's shoes only, (2) women's shoes only, (3) women's and children's shoes, or ( 4) men's, women's, and children's shoes. The District Court found a "definite trend" among shoe manufacturers to acquire retail outlets. For example, International Shoe Company had no retail outlets in 1945, but by 1956 had acquired 130; General Shoe Company had only 80 retail outlets in 1945 but had 526 by 1956; Shoe Corporation of America, in the same period, increased its retail holdings from 301 to 842; Melville Shoe Company from 536 to 947; and Endicott-Johnson from 488 to 540. Brown, itself, with no retail outlets of its own prior to 1951, had acquired 845 such outlets by 1956. Moreover, between 1950 and 1956 nine independent shoe store chains, operating 1,114 retail shoe stores, were found to have become subsidiaries of these large firms and to have ceased their independent operations. And once the manufacturers acquired retail outlets, the District Court found there was a "definite trend" for the parent-manufacturers to supply an ever increasing percentage of the retail outlets' needs, thereby foreclosing other manufacturers from effectively competing for the retail accounts. Manufacturer-dominated stores were found to be "drying up" the available outlets for independent producers. Another "definite trend" found to exist in the shoe industry was a decrease in the number of plants manufacturing shoes. And there appears to have been a concomitant decrease in the number of firms manufacturing shoes. In 1947, there were 1,077 independent manufacturers of shoes, but by 1954 their number had decreased about 10% to 970.6 6 U. S. Bureau of the Census, 1958 Census of Manufacturers, MC 58(2)-31A-6. By 1958, the number of independent manufacturers had decreased by another 10% to 872. Ibid. 302 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Brown Shoe. Brown Shoe was found not only to have been a participant, but also a moving factor, in these industry trends. Although Brown had experimented several times with operating its own retail outlets, by 1945 it had disposed of them all. However, in 1951, Brown again began to seek retail outlets by acquiring the Nation's largest operator of leased shoe departments, Wohl Shoe Company (Wohl), which operated 250 shoe departments in department stores throughout the United States. Between 1952 and 1955 Brown made a number of smaller acquisitions: Wetherby-Kayser Shoe Company (three retail stores), Barnes & Company (two stores), Reilly Shoe Company (two leased shoe departments), Richardson Shoe Store (one store), and Wohl Shoe Company of Dallas (not connected with Wohl) (leased shoe departments in Dallas). In 1954, Brown made another major acquisition: Regal Shoe Corporation which, at the time, operated one manufacturing plant producing men's shoes and 110 retail outlets. The acquisition of these corporations was found to lead to increased sales by Brown to the acquired companies. Thus although prior to Brown's acquisition of Wohl in 1951, Wohl bought from Brown only 12.8% of its total purchases of shoes, it subsequently increased its purchases to 21.4% in 1952 and to 32.6% in 1955. Wetherby- Kayser's purchases from Brown increased from 10.4% before acquisition to over 50% after. Regal, which had previously sold no shoes to Wohl and shoes worth only $89,000 to Brown, in 1956 sold shoes worth $265,000 to Wohl and $744,000 to Brown. During the same period of time, Brown also acquired the stock or assets of seven companies engaged solely in shoe manufacturing. As a result, in 1955, Brown was the BROWN SHOE CO. v. UNITED STATES. 303 294 Opinion of the Court. fourth largest shoe manufacturer· in the country, producing about 25.6 million pairs of shoes or about 4% of the Nation's total footwear production. Kinney. Kinney is principally engaged in operating the largest family-style shoe store chain in the United States. At the time of trial, Kinney was found to be operating over 400 such stores in more than 270 cities. These stores were found to make about 1.2% of all national retail shoe sales by dollar volume. Moreover, in 1955 the Kinney stores sold approximately 8 million pairs of nonrubber shoes or about 1.6 % of the national pairage sales of such shoes. Of these sales, approximately 1.1 million pairs were of men's shoes or about 1 % of the national pairage sales of men's shoes; approximately 4.2 million pairs were of women's shoes or about 1.5% of the national pairage sales of women's shoes; and approximately 2.7 million pairs were of children's shoes or about 2% of the national pairage sales of children's shoes.7 In addition to this extensive retail activity, Kinney owned and operated four plants which manufactured men's, women's, and children's shoes and whose combined output was 0.5% of the national shoe production in 1955, making Kinney the twelfth largest shoe manufacturer in the /United States. Kinney stores were found to obtain about 20% of their shoes from Kinney's own manufacturing plants. At the time of the merger, Kinney bought no shoes from Brown; 7 Kinney's pairage sales of men's, women's, and children's shoes were extracted from exhibits submitted to the Government in response to its interrogatories. See GX 6, R. 48--53. These statistics are virtually identical to those cited in appellant's brief, with but one exception. In its internal operations, appellant classifies certain shoes as "growing girls' " shoes while the cited figures follow the Census Bureau's treatment of such shoes as "women's" shoes. 304 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. however, in line with Brown's conceded reasons 8 for acquiring Kinney, Brown had, by 1957, become the largest outside supplier of Kinney's shoes, supplying 7.9% of all Kinney's needs. It is in this setting that the merger was considered and held to violate § 7 of the Clayton Act. The District Court ordered Brown to divest itself completely of all stock, share capital, assets or other interests it held in Kinney, to operate Kinney to the greatest degree possible as an independent concern pending complete divestiture, to refrain thereafter from acquiring or having any interest in Kinney's business or assets, and to file with the court within 90 days a plan for carrying into effect the divestiture decreed. The District Court also stated it would retain jurisdiction over the cause to enable the parties to apply for such further relief as might be necessary to enforce and apply the judgment. Prior to its submission of a divestiture plan, Brown filed a notice of appeal in the District Court. It then filed a jurisdictional statement in this Court, seeking review of the judgment below as entered. II. JURISDICTION. Appellant's jurisdictional statement cites as the basis of our jurisdiction over this appeal § 2 of the Expediting 8 As stated in the testimony of Clark R. Gamble, President of Brown Shoe Company; "It was our feeling, in addition to getting a distribution into the field of prices which we were not covering, it was also the feeling that as Kinney moved into the shopping centers in these free standing stores, they were going into a higher income neighborhood and they would probably find the necessity of up-grading and adding additional lines to their very successful operation· that they had been doing and it would give us an opportunity we hoped to be able to sell them in that category. Besides that, it was a very successful operation and would give us a good diversified investment to stabilize our earnings." T. 1323. BROWN SHOE CO. v. UNITED STATES. 305 294 Opinion of the Court. Act of February 11, 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29. In a civil antitrust action in which the United States is the complainant that Act provides for a direct appeal to this Court from "the final judgment of the district court." 9 (Emphasis supplied.) The Government does not contest appellant's claim of jurisdiction; on the contrary, it moved to have the judgment below summarily affirmed, conceding our present jurisdiction to review the merits of that judgment. We deferred ruling on the Government's motion for summary affirmance and noted probable jurisdiction over the appeal. 363 U. S. 825.10 It was suggested from the bench during the oral argument that, since the judgment of the District Court does not include a specific plan for the dissolution of the Brown-Kinney merger, but reserves such a ruling pending the filing of suggested plans for implementing divestiture, the judgment below is not "final" as contemplated by the Expediting Act. In response to that suggestion, both parties have filed briefs contending that we do have jurisdiction to dispose of the case on the merits in its present posture. However, the mere consent of the parties to the Court's consideration and decision of the case cannot, by itself, confer jurisdiction on the Court. See American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17-18; People's Bank v. Calhoun, 102 U. S. 256, 260-261; Capron v. Van Noorden, 2 Cranch 126, 127. Therefore, a review of the sources of the Court's jurisdiction is a threshold 9 Congress thus limited the right of review in such cases to an appeal from a decree which disposed of all matters, and it precluded the possibility of an appeal either to this Court or to a Court of Appeals from an interlocutory decree. United States v. California Cooperative Canneries, 279 U. S. 553, 558. 10 After probable jurisdiction had been noted, a joint motion of the parties to postpone oral argument on the appeal to the present Term of the Court was granted. 365 U. S. 825. 306 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. inquiry appropriate to the disposition of every case that comes before us. Revised Rules of the Supreme Court, 15 ( 1 )(b), 23 ( 1) (b); Kesler v. Department of Public Safety, 369 U. S. 153; Collins v. Miller, 252 U. S. 364; United States v. More, 3 Cranch 159. The requirement that a final judgment shall have been entered in a case by a lower court before a right of appeal attaches has an ancient history in federal practice, first appearing in the Judiciary Act of 1789.11 With occasional modifications, the requirement has remained a cornerstone of the structure of appeals in the federal courts.12 The Court has adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered "final." See, e.g., Cobbledick v. United States, 309 U. S. 323, 326; Market Street R. Co. v. Railroad Comm'n, 324 U.S. 548, 552; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 69; Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546; DiBeUa v. United States, 369 U. S. 121, 124, 129; cf. Federal Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206, 212; United States v. Schaefer Brewing Co., 356 U.S. 227,232. A pragmatic approach to the question of finality has been considered essential to the achievement of the "just, speedy, and inexpensive determination of every action": 13 the touchstones of federal procedure. In most cases in which the Expediting Act has been cited as the basis of this Court's jurisdiction, the issue of "finality" has not been raised or discussed by the parties or the Court. On but few occasions have particular 11 Section 22, 1 Stat. 84, in its present form, 28 U.S. C. § 1291. 12 Cf. 28 U.S. C. § 1292; Fed. Rules Civ. Proc., 54 (b); 28 U.S. C. § 1651; Ex parte United States, 226 U.S. 420; United States v. United States District Court, 334 U.S. 258; Beacon Theatres, Inc., v. Westover, 359 U. S. 500. 13 Fed. Rules Civ. Proc., 1. BROWN SHOE CO. v. UNITED STATES. 307 294 Opinion of the Court. orders in suits to which that Act is applicable been considered in the light of claims that they were insufficiently "final" so as to preclude appeal to this Court. Compare Schine Chain Theatres v. United States, 329 U. S. 686, with Schine Chain Theatres v. United States, 334 U. S. 110. The question has generally been passed over without comment in adjudications on the merits. While we are not bound by previous exercises of jurisdiction in cases in which our power to act was not questioned but was passed sub silentio, United States v. Tucker Truck Lines, 344 U. S. 33, 38; United States ex rel. Arant v. Lane, 245 U. S. 166, 170, neither should we disregard the implications of an exercise of judicial authority assumed to be proper for over 40 years." Cf. Stainback v. Mo 14 See, e. g., United States v. Reading Co., 226 F. 229, 286 (D. C. E. D. Pa.), 1 Decrees & Judgments in Civil Federal Antitrust Cases (hereinafter cited "D. & J.") 575, 576-577, affirmed in pertinent part, 253 U. S. 26; United States v. National Lead Co., 63 F. Supp. 513, 534-535 (D. C. S. D. N. Y.), 4 D. & J. 2846, 2851, affirmed, 332 U.S. 319; United States v. Timken Roller Bearing Co., 83 F. Supp. 284, 318 (D. C. N. D. Ohio) [relevant portions of the decree reprinted at 341 U.S. 593,602 n.1], modified, 341 U.S. 593; United States v. United Shoe Machinery Corp., 110 F. Supp. 295, 352-353, 354 (D. C. D. Mass.), affirmed, 347 U. S. 521; United States v. Maryland & Virginia Milk Producers Assn., 167 F. Supp. 799, 809 (D. C. D. C.), affirmed, 362 U. S. 458. The Court has also approved the practice of District Courts of retaining jurisdiction in such cases for future modifications of their decrees, a practice which has also not been considered inconsistent with the finality of the original decrees. See Associated Press v. United States, 326 U.S. 1, 22-23; Lorain Journal Co. v. United States, 342 U. S. 143, 157. But cf. United States v. Schine Chain Theatres, 63 F. Supp. 229, 241-242 (D. C. W. D. N. Y.), 2 D. &. J. 1815, modified, 334 U.S. 110; United States v. Paramount Pictures, 70 F. Supp. 53, 72, 75 (D. C. S. D. N. Y.), 2 D. & J. 1682, modified, 334 U. S. 131, revised in accordance with this Court's mandate, 85 F. Supp. 881, 898-901, 2 D. & J. 1690, affirmed sub nom. Loew's, Inc., v. United States, 339 U. S. 974, in which review did await the entry of specific and detailed provisions for disposition of the defendants' assets. 308 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. Hock Ke Lok Po, 336 U. S. 368, 379-380; Radio Station WOW v. Johnson, 326 U. S. 120, 125-126. We think the decree of the District Court in this case had sufficient indicia of finality for us to hold that the judgment is properly appealable at this time. We note, first, that the District Court disposed of the entire complaint filed by the Government. Every prayer for relief was passed upon. Full divestiture by Brown of Kinney's stock and assets was expressly required. Appellant was permanently enjoined from acquiring or having any further interest in the business, stock or assets of the other defendant in the suit. The single provision of the judgment by which its finality may be questioned is the one requiring appellant to propose in the immediate future a plan for carrying into effect the court's order of divestiture. However, when we reach the merits of, and affirm, the judgment below, the sole remaining task for the District Court will be its acceptance of a plan for full divestiture, and the supervision of the plan so accepted. Further rulings of the District Court in administering its decree, facilitated by the fact that the defendants below have been required to maintain separate books pendente lite, are sufficiently independent of, and subordinate to, the issues presented by this appeal to make the case in its present posture a proper one for review now.'5 Appellant here does not attack the full divestiture ordered by the District Court as such; it is appellant's contention that 15 Cf. Forgay v. Conrad, 6 How. 201; Carondelet Canal Co. v. Louisiana, 233 U.S. 362; Radio Station WOW v. Johnson, 326 U.S. 120; Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541. The details of the divestiture which the District Court will approve cannot affect the outcome of the basic litigation in this case, as the details of an eminent domain settlement might moot the claims of the condemnee in that type of suit. See Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62; Grays Harbor Logging Co. v. Coats-Fordney Co., 243 U.S. 251. BROWN SHOE CO. v. UNITED ST ATES. 309 294 Opinion of the Court. under the facts of the case, as alleged and proved by the Government, no order of divestiture could have been proper. The propriety of divestiture was considered below and is disputed here on an "all or nothing" basis. It is ripe for review now, and will, thereafter, be foreclosed. Repetitive judicial consideration of the same question in a single suit will not occur here. Cf. Radio Station WOW v. Johnson, supra, at 127; Catlin v. United States, 324 U. S. 229, 233-234; Cobbledick v. United States, supra, at 325, 330. A second consideration supporting our view is the character of the decree still to be entered in this suit. It will be an order of full divestiture. Such an order requires careful, and often extended, negotiation and formulation. This process does not take place in a vacuum, but, rather, in a changing market place, in which buyers and bankers must be found to accomplish the order of forced sale. The unsettling influence of uncertainty as to the affi.rmance of the initial, underlying decision compelling divestiture would only make still more difficult the task of assuring expeditious enforcement of the antitrust laws. The delay in withholding review of any of the issues in the case until the details of a divestiture had been approved by the District Court and reviewed here could well mean a change in market conditions sufficiently pronounced to render impractical or otherwise unenforceable the very plan of asset disposition for which the litigation was held. The public interest, as well as that of the parties, would lose by such procedure. Lastly, holding the decree of the District Court in the instant case less than "final" and, thus, not appealable, would require a departure from a settled course of the Court's practice. It has consistently reviewed antitrust decrees contemplating either future divestiture or other comparable remedial action prior to the formulation and 310 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. en try of the precise details of the relief ordered. No instance has been found in which the Court has reviewed a case following a divestiture decree such as the one we are asked to consider here, in which the party subject to that decree has later brought the case back to this Court with claims of error in the details of the divestiture finally approved.16 And only two years ago, we were unanimous in accepting jurisdiction, and in affirming the judgment of a District Court similar to the one entered here, in the only case under amended § 7 of the Clayton Act brought before us at a juncture comparable to the instant litigation. See Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 472-473.11 A fear of piecemeal appeals because of our adherence to existing procedure can find no support in history. Thus, the substantial body 16 The Court has, of course, occasionally reviewed varying facets of single antitrust cases on separate appeals. However, such cases are distinguishable from the situation at bar. Thus, one group includes cases in which the Government first sought appellate review from dismissals of its complaints, whereafter the Court considered the orders entered on remand. E.g., United States v. Terminal R. Assn. of St. Louis, 224 U.S. 383; 236 U.S. 194; United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586; 366 U.S. 316. Another group includes cases in which the Government appealed from what it considered to be inadequate decrees, in which the Court later considered the further relief ordered on remand. E. g., United States v. Reading Co., 253 U. S. 26, later considered sub nom. Continental lmurance Co. v. United States, 259 U.S. 156; United States v. Paramount Pictures, 334 U. S. 131, later considered sub nom. Loew's, Inc., v. United States, 339 U.S. 974. And appeals in which the details of a divestiture were made a primary issue have followed the entry of such orders upon the filing of consent decrees, in which the underlying requirements of divestiture were never previously presented. E. g., Swift & Co. v. United States, 276 U.S. 311; United States v. Swift & Co., 286 U.S. 106; Chrysler Corp. v. United States, 316 U. S. 556; Ford Motor Co. v. United States, 335 U. S. 303. Cf. International Harvester Co. v. United States, 248 U.S. 587; 274 U.S. 693. 17 Cf. Jerrold Electronics Corp. v. United States, 365 U. S. 567, affirming 187 F. Supp. 545, 563-567 (D. C. E. D. Pa.). BROWN SHOE CO. v. UNITED STATES. 311 294 Opinion of the Court. of precedent for accepting jurisdiction over this case in its present posture supports the practical considerations previously discussed. We believe a contrary result would be inconsistent with the very purposes for which the Expediting Act was passed and that gave it its name. III. LEGISLATIVE HISTORY. This case is one of the first to come before us in which the Government's complaint is based upon allegations that the appellant has violated § 7 of the Clayton Act, as that section was amended in 1950.18 The amendments adopted in 1950 culminated extensive efforts over a number of years, on the parts of both the Federal Trade Commission and some members of Congress, to secure revision of a section of the antitrust laws considered by many observers to be ineffective in its then existing form. Sixteen bills to amend § 7 during the period 1943 to 1949 18 Material in italics was added by the amendments; material in brackets was deleted. "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be [to] substantially to lessen competition [between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community], or to tend to create a monopoly [ of any line of commerce]." Other paragraphs of § i were also amended in details not relevant to this case. The only other cases to reach this Court, in which the Government's complaints were based, in part, on amended § 7, were Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, and Jerrold Electronics Corp. v. United States, 365 U.S. 567. However, a detailed analysis of the scope and purposes of the 1950 amendments was unnecessary to our disposition of the issues raised in those cases. 312 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. alone were introduced for consideration by the Congress, and full public hearings on proposed amendments were held in three separate sessions.10 In the light of this extensive legislative attention to tlie measure, and the broad, general language finally selected by Congress for the expression of its will, we think it appropriate to review the history of the amended Act in determining whether the judgment of the court below was consistent with the intent of the legislature. See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 591-592; Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 390-395; Federal Trade Comm'n v. Morton Salt Co., 334 U. S. 37, 43-46, 49; Corn Products Refining Co. v. Federal Trade Comm'n, 324 U. S. 726, 734-737. As enacted in 1914, § 7 of the original Clayton Act prohibited the acquisition by one corporation of the stock of another corporation when such acquisition would result in a substantial lessening of competition between the acquiring and the acquired companies, or tend to 19 S. 2277, 67th Cong., 1st Sess. (1921); H. R. 7371, S. 2549, 75th Cong., 1st Sess. (1937); H. R. 10176, S. 3345, 75th Cong., 2d Sess. (1938); H. R. 1517, S. 577, 78th Cong., 1st Sess. (1943); H. R. 2357, H. R. 4519, H. R. 4810, S. 615, 79th Cong., 1st Sess. (1945); H. R. 5535, 79th Cong., 2d Sess. (1946); H. R. 515, H. R. 3736, S. 104, 80th Cong., 1st Sess. (1947); H. R. 7024, 80th Cong., 2d Sess. (1948); H. R. 988, H. R. 1240, H. R. 2006, H. R. 2734, S. 56, 81st Cong., 1st Sess. (1949). Public hearings were held on H. R. 2357, 79th Cong., 1st Sess. (1945); S. 104, 80th Cong., 1st Sess. (1947); H. R. 515, 80th Cong., 1st Sess. (1947), and H. R. 2734, 81st Cong., 1st Bess. (1949-1950). For reviews of the legislative history of the amendments, see N ates, 52 Col. L. Rev. 766 (1952); 46 Ill. L. Rev. 444 (1951); Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226, 233- 238 (1960); Handler and Robinson, A Decade of Administration of the Celler-Kefauver Antimerger Act, 61 Col. L. Rev. 629, 652-674 (1961); Martin, Mergers and the Clayton Act 221-310 (1959). BROWN SHOE CO. v. UNITED STATES. 313 294 Opinion of the Court. create a monopoly in any line of commerce. The Act did not, by its explicit terms, or as construed by this Court, bar the acquisition by one corporation of the assets of another.20 Nor did it appear to preclude the acquisition of stock in any corporation other than a direct competitor.21 Although proponents of the 1950 amendments to the Act suggested that the terminology employed in these provisions was the result of accident or an unawareness that the acquisition of assets could be as inimical to competition as stock acquisition, a review of the legislative history of the original Clayton Act fails to support such views.22 The possibility of asset acquisition was discussed,23 but was not considered impor- 20 See Arrow-Hart & Hegeman Electric Co. v. Federal Trade Comm'n, 291 U.S. 587; Federal Trade Com.m'n v. Western Meat Co .. 272 U. S. 554. See also United States v. Celanese Corp., 91 F. Supp. 14 (D. C. S. D. N. Y.); 1 F. T. C. 541-542; 33 Op. Atty. Gen. 225,241. 21 This was the manner in which the Federal Trade Commission had viewed the prohibitions of original § 7. See F. T. C. Ann. Rep. 6-7 (1929); Statement by General Counsel Kelley in Hearings before Subcommittee 3 of the House Committee on the Judiciary on H. R. 2734, 81st Cong., 1st Sess. (hereinafter cited as H. R. Hearings on H. R. 2734) 38. However, we have held, since the adoption of the 1950 amendments, that such a construction of § 7 was incorrert. United States v. E. /. du Pont de Nemours & Co., 353 U.S. 586. 22 For expressions of this questionable view of the background of the original Act see F. T. C., The Merger Movement: A Summary Report 2 ( 1948); testimony of then Representative Kefauver, in Hearings before Subcommittee 2 of the House Committee on the Judiciary on H. R. 515, 80th Cong., 1st Sess. (hereinafter cited as Hearings on H. R. 515) 4-5; remarks of Senator O'Mahoney, 96 Cong. Rec. 16443; H. R. Rep. No. 1191, 81st Cong., 1st Sess. 4-5. For a critique of this understanding of the Act see United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 613-615 (dissent), and reviews cited in note 19, supra. 23 See 51 Cong. Rec. 14255, 14316, 14456-14457 (remarks of Senators Chilton, Cummins, Colt, Reed). An amendment offered durmg the Senate's floor debate by Senator Cummins would have precluded the acquisition by one corporation of the stock "or any other means 663026 0-62-24 314 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. tant to an Act then conceived to be directed primarily at the development of holding companies and at the secret acquisition of competitors through the purchase of all or parts of such competitors' stock.2 ' It was, however, not long before the Federal Trade Commission recognized deficiencies in the Act as first enacted. Its Annual Reports frequently suggested amendments, principally along two lines: first, to "plug the loophole" exempting asset acquisitions from coverage under the Act, and second, to require companies proposing a merger to give the Commission prior notification of their plans.25 The Final Report of the Temporary National Economic Committee also recommended changes focusing on these two proposals.26 Hearings were held on some bills incorporating either or both of these changes but, prior to the amendments adopted in 1950, none reached the floor of Congress for plenary consideration. Although the bill that was eventually to become amended § 7 was confined to embracing within the Act's terms the of control or participation in the control" of two or more other corporations carrying on business of the same kind or competitive in character. The amendment was not directed at asset acquisitions specifically and was, in any event, overwhelmingly defeated. 51 Cong. Rec. 14315, 14473-14476. 24 See 51 Cong. Rec. 9073-9074, 9271, 14226, 14254, 14316, 14420, 14465-14466 (remarks of Representatives Webb and Carlin and Senators Reed, Cummins and Poindexter); H. R. Rep. No. 627, 63d Cong., 2d Sess. 17; S. Rep. No. 698, 63d Cong., 2d Sess. 13. 25 See F. T. C. Ann. Rep. for 1928, 19; id. for 1929, at 6, 59; id. for 1930, at 50-51; id. for 1935, at 16, 48; id. for 1936, at 48; id. for 1937, at 15; id. for 1938, at 11, 19, 29; id. for 1939, at 14, 16; id. for 1940, at 12-13; id. for 1941, at 19-20; id. for 1942, at 9; id. for 1943, at 9; id. for 1944, at 8; id. for 1945, at 8--9; id. for 1946, at 12; id. for 1947, at 12; id. for 1948, at 11, 16. The Commission has continued unsuccessfully to urge adoption of the prior notification provision. See id. for 1958, at 7; id. for 1960, at 12. 26 Temporary National Economic Committee, Final Report and Recommendations, S. Doc. No. 35, 77th Cong., 1st Sess. 38-40 (1941). BROWN SHOE CO. v. UNITED STATES. 315 294 Opinion of the Court. acquisition of assets as well as stock, in the course of the hearings conducted in both the Eightieth and Eighty-first Congresses, a more far-reaching examination of the purposes and provisions of§ 7 was undertaken. A review of the legislative history of these amendments provides no unmistakably clear indication of the precise standards the Congress wished the Federal Trade Commission and the courts to apply in judging the legality of particular mergers. However, sufficient expressions of a consistent point of view may be found in the hearings, committee reports of both the House and Senate and in floor debate to provide those charged with enforcing the Act with a usable frame of reference within which to evaluate any given merger. The dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy. Apprehension in this regard was bolstered by the publication in 1948 of the Federal Trade Commission's study on corporate mergers. Statistics from this and other current studies were cited as evidence of the danger to the American economy in unchecked corporate expansions through mergers.21 Other considerations cited in support of the bill were the desir- 27 F. T. C., The Present Trend of Corporate Mergers and Acquisitions, reprinted in Hearings on H. R. 515, at 300-317; F. T. C., The Merger Movement: A Summary Report, passim; 95 Cong. Rec. 11500-11507; 96 Cong. Rec. 16433, 16444, 16457; S. Rep. No. 1775, 81st Cong., 2d Sess. 3. The House Report on the amendments summarized its view of the situation: "That the current merger movement [during the years 1940--1947] has had a significant effect on the economy is clearly revealed by the fact that the asset value of the companies which have disappeared through mergers amounts to 5.2 billion dollars, or no less than 5.5 percent of the total assets of all manufacturing corporations-a significant segment of the economy to be swallowed up in such a short period of time." H. R. Rep. No. 11911 81st Cong., 1st Sess. 3. 316 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. ability of retaining "local control" over industry and the protection of small businesses.28 Throughout the recorded discussion may be found examples of Congress' fear not only of accelerated concentration of economic power on economic grounds, but also of the threat to other values a trend toward concentration was thought to pose. What were some of the factors, relevant to a judgment as to the validity of a given merger, specifically discussed by Congress in redrafting § 7? First, there is no doubt that Congress did wish to "plug the loophole" and to include within the coverage of the Act the acquisition of assets no less than the acquisition of stock.29 28 See, e. g., 95 Cong. Rec. 11486, 11489, 11494-11495, 11498; 96 Cong. Rec. 16444, 16448, 16450, 16452, 16503 (remarks by the cosponsors of the amendments, Representative Celler and Senator Kefauver, and by Representatives Bryson, Keating and Patman and Senators Murray and Aiken). Cf. United States v. Aluminum Co. of America, 148 F. 2d 416, 429 (C. A. 2d Cir., per Learned Hand, J.): "Throughout the history of these [antitrust] statutes it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in :,mall units which can effectively compete with each other." 29 Virtually every member of Congress who spoke in support of the amendments, indicated that this aspect of the legislation was its salient characteristic. Representative Kefauver, one of the Act's sponsors, testified, "The bill is not complicated. It proposes simply to plug the loophole in sections 7 and 11 of the Clayton Act." Hearings on H. R. 515, at 4. The Senate Report on the measure finally adopted summarized the "Purpose" of the amendment with this single paragraph: "The purpose of the proposed legislation is to prevent corporations from acquiring another corporation by means of the acquisition of its assets, whereunder [sic] the present law it is prohibited from acquiring the stock of said corporation. Since the acquisition of stock is significant chiefly because it is likely to result in control of the underlying assets, failure to prohibit direct purchase of the same assets has been inconsistent. and paradoxical as to the over-all effect of existing law." S. Rep. No. 1775, 81st Cong., 2d Sess. 2. BROWN SHOE CO. v. UNITED STATES. 317 294 Opinion of the Court. Second, by the deletion of the "acquiring-acquired" language in the original text,30 it hoped to make plain that § 7 applied not only to mergers between actual competitors, but also to vertical and conglomerate mergers whose effect may tend to lessen competition in any line of commerce in any section of the country.31 Third, it is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration, was its provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power 30 The deletion of the "acquiring-acquired" test was the direct result of an amendment offered by the Federal Trade Commission. In presenting the proposed change, Commission Counsel Kelley made the following points: this Court's decisions had implied that the effect on competition between the parties to the merger was not the only test of the illegality of a stock merger; the Court had applied Sherman Act tests to Clayton Act cases and thus judged the effect of a merger on the industry as a whole; this incorporation of Sherman Act tests, with the accompanying "rule of reason," was inadequate for reaching some mergers which the Commission felt were not in the public interest; and the new amendment proposed a middle ground between what appeared to be an overly restrictive test insofar as mergers between competitors were concerned, and what appeared to the Commission to be an overly lenient test insofar as all other mergers were concerned. Congressman Kefauver supported this amendment and the Commission's proposal was then incorporated into the bill which was eventually adopted by the Congress. See Hearings on H. R. 515, at 23, 117-119, 238-240, 259; Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 2734, 81st Cong., 1st Sess. (hereinafter cited as S. Hearings on H. R. 2734) 147. 31 That § 7 was intended to apply to all mergers-horizontal, vertical or conglomerate-was specifically reiterated by the House Report on the final bill. H. R. Rep. No. 1191, 81st Cong., 1st Sess. 11. And see note 21, supra. 318 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. to brake this force at its outset and before it gathered momentum.32 Fourth, and closely related to the third, Congress rejected, as inappropriate to the problem it sought to remedy, the application to § 7 cases of the standards for judging the legality of business combinations adopted by the courts in dealing with cases arising under the Sherman Act, and which may have been applied to some early cases arising under original § 7.33 32 That § 7 of the Clayton Act was intended to reach incipient monopolies and trade restraints outside the scope of the Sherman Act was explicitly stated in the Senate Report on the original Act. S. Rep. No. 698, 63d Cong., 2d Sess. 1. See United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 589. This theme was reiterated in congressional consideration of the amendments adopted in 1950, and found expression in the final House and Senate Reports on the measure. H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8 ("Acquisitions of stock or assets have a cumulative effect, and control of the market . . . may be achieved not in a single acquisition but as the result of a series of acquisitions. The bill is intended to permit intervention in such a cumulative process when the effect of an acquisition may be a significant reduction in the vigor of competition."); S. Rep. No. 1775, 81st Cong., 2d Sess. 4--5 ("The intent here . . . is to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding."). And see F. T. C., The Merger Movement: A Summary Report 6--7. 33 The Report of the House Judiciary Committee on H. R. 515 recommended the adoption of tests more stringent than those in the Sherman Act. H. R. Rep. No. 596, 80th Cong., 1st Sess. 7. A vigorous minority thought no new legislation was needed. Id., at 11-18. Between the issuance of this Report and the Committee's subsequent consideration of H. R. 2734, this Court had decided United States v. Columbia Steel Co., 334 U. S. 495, which some understood to indicate that existing law might be inadequate to prevent mergers that had substantially lessened competition in a section of the country, but which, nevertheless, had not risen to the level of those restraints of trade or monopoly prohibited by the Sherman Act. See 96 Cong. Rec. 16502 (remarks of Senator Kefauver); BROWN SHOE CO. v. UNITED STATES. 319 294 Opinion of the Court. Fifth, at the same time that it sought to create an effective tool for preventing all mergers having demonstrable anticompetitive effects, Congress recognized the stimulation to competition that might flow from particular mergers. When concern as to the Act's breadth was expressed, supporters of the amendments indicated that it would not impede, for example, a merger between two small companies to enable the combination to compete more effectively with larger corporations dominating the relevant market, nor a merger between a corporation which is financially healthy and a failing one which no longer can be a vital competitive factor in the market.34 H. R. Rep. No. 1191, 81st Cong., 1st Sess. 10-11. Numerous other statements by Congressmen and Senators and by representatives of the Federal Trade Commission, the Department of Justice and the President's Council of Economic Advisors were made to the Congress suggesting that a standard of illegality stricter than that imposed by the Sherman Act was needed. See, e. g., H. R. Hearings on H. R. 2734, at 13, 29, 41, 117; S. Hearings on H. R. 2734, at 22, 23, 47, 66, 319. The House Judiciary Committee's 1949 Report supported this concept unanimously although five of the nine members who had dissented two years earlier in H. R. Rep. No. 596 were still serving on the Committee. H. R. Rep. No. 1191, 81st Cong., 1st Sess. 7-8. The Senate Report was explicit: "The committee wish to make it clear that the bill is not intended to revert to the Sherman Act test. The intent here ... is to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding. . . . [The] various additions and deletions- some strengthening and others weakening the bill-are not conflicting in purpose and effect. They merely are different steps toward the same objective, namely, that of framing a bill which, though dropping portions of the so-called Clayton Act test that have no economic significance [the reference would appear to be primarily to the "acquiring-acquired" standard of the original Act], reaches far beyond the Sherman Act." S. Rep. No. 1775, 81st Cong., 2d Sess. 4-5. 34 As to small company mergers, see H. R. Hearings on H. R. 2734, at 41, 117; S. Hearings on H. R. 2734, at 6, 51; 95 Cong. Rec. 11486, 11488, 11506; 96 Cong. Rec. 16436; H. R. Rep. No. 1191, 81st Cong., 320 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. The deletion of the word "community" in the original Act's description of the relevant geographic market is another illustration of Congress' desire to indicate that its concern was with the adverse effects of a given merger on competition only in an economically significant "section" of the country.35 Taken as a whole, the legislative history illuminates congressional concern with the protection of competition, not competitors, and its desire to restrain mergers only to the extent that such combinations may tend to lessen competition. Sixth, Congress neither adopted nor rejected specifically any particular tests for measuring the relevant markets, either as defined in terms of product or in terms of geographic locus of competition, within which the anti- 1st Sess. 6-8; S. Rep. No. 1775, 81st Cong., 2d Bess. 4. As to mergers with failing companies, see S. Hearings on H. R. 2734, at 115, 134- 135, 198; 96 Cong. Rec. 16435, 16444; H. R. Rep. No. 1191, supra, at 6; S. Rep. No. 1775, supra, at 7. 35 The Federal Trade Commission's amendment, see note 30, supra, included the phrase "where ... in any section, community, or trade area, there is reasonable probability that the effect of such acquisition may be to substantially lessen competition." Congressman Kefauver urged deletion of the word "community" on the ground that it might suggest, for example, that a merger between two small filling stations in a section of a city was proscribed. Hearings on H. R. 515, at 260. And see also 96 Cong. Rec. 16453. The fear of literal prohibition of all but de minimis mergers through the use of the word "community" was also cited by the Senate Report as the basis for its retention solely of the word "section." S. Rep. No. 1775, 81st Cong., 2d Sess. 4. The reference to "trade area" was deleted as redundant, when it became clear that the "section" of the country to which the Act was to apply, referred not to a definite geographic area of the country, but rather the geographic area of effective competition in the relevant line of commerce. See S. Hearings on H. R. 2734, at 38-52, 66--84, 101- 102, 132, 133, 144, 145; H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8; S. Rep. No. 1775, 81st Cong., 2d Sess. 4, 5-6. The Senate Report cited with approval the definition of the market employed by the Court in Standard Oil Co. of California v. United States, 337 U.S. 293, 299 n. 5. BROWN SHOE CO. v. UNITED STATES. 321 294 Opinion of the Court. competitive effects of a merger were to be judged. Nor did it adopt a definition of the word "substantially," whether in quantitative terms of sales or assets or market shares or in designated qualitative terms, by which a merger's effects on competition were to be measured.36 Seventh, while providing no definite quantitative or qualitative tests by which enforcement agencies could gauge the effects of a given merger to determine whether it may "substantially" lessen competition or tend toward monopoly, Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular 38 The House Report on H. R. 2734 stated that two tests of illegality were included in the proposed Act: whether the merger substantially lessened competition or tended to create a monopoly. It stated that such effects could be perceived through findings, for example, that a whole or material part of the competitive activity of an enterprise, which had been a substantial factor in competition, had been eliminated; that the relative size of the acquiring corporation had increased to such a point that its advantage over competitors threatened to be "decisive"; that an "undue" number of competing enterprises had been eliminated; or that buyers and sellers in the relevant market had established relationships depriving their rivals of a fair opportunity to compete. H. R. Rep. No. 1191, 81st Cong., 1st Bess. 8. Each of these standards, couched in general language, reflects a conscious avoidance of exclusively mathematical tests even though the case of Standard Oil Co. of California v. United States, 337 U. S. 293, said to have created a "quantitative substantiality" test for suits arising under § 3 of the Clayton Act, was decided while Congress was considering H. R. 2734. Some discussion of the applicability of this test to§ 7 cases ensued, see, e.g., S. Hearings on H. R. 2734, at 31-32, 169-172; S. Rep. No. 1775, 81st Cong., 2d Sess. 21; 96 Cong. Rec. 16443, but this aspect of the Standard Oil decision was neither specifically ~ndorsed nor impugned by the bill's supporters. However, the House Judiciary Committee's Report, issued two months after Standard Oil had been decided, remarked that the tests of illegality under the new Act were intended to be "similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act." H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. 322 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. industry.37 That is, whether the consolidation was to take place in an industry that was fragmented rather than concentrated, that had seen a recent trend toward domination by a few leaders or had remained fairly consistent in its distribution of market shares among the participating companies, that had experienced easy access to markets by suppliers and easy access to suppliers by buyers or had witnessed foreclosure of business, that had witnessed the ready entry of new competition or the erection of barriers to prospective entrants, all were aspects, varying in importance with the merger under consideration, which would properly be taken into account.38 87 A number of the supporters of the amendments voiced their concern that passage of the bill would amount to locking the barn door after most of the horses had been stolen, but urged approval of the measure to prevent the theft of those still in the barn. Which was to say that, if particular industries had not yet been subject to the congressionally perceived trend toward concentration, adoption of the amendments was urged as a way of preventing the trend from reaching those industries as yet unaffected. See, e. g., 95 Cong. Rec. 11489, 11494, 11498 (remarks of Representatives Keating, Yates, Patman); 96 Cong. Rec. 16444 (remarks of Senators O'Mahoney, Murray). 38 Subseqnent to the adoption of the 1950 amendments, both the Federal Trade Commission and the courts have, in the light of Congress' expressed intent, recognized the relevance and importance of economic data that places any given merger under consideration within an industry framework almost inevitably unique in every case. Statistics reflecting the shares of the market controlled by the industry leaders and the parties to the merger are, of course, the primary index of market power; but only a further examination of the particular marke~its structure, history and probable future--can provide the appropriate setting for judging the probable anticompetitive effect of the merger. See, e.g., Pillsbury Mills, Inc., 50 F. T. C. 555; United States v. Bethlehem Steel Corp., 168 F. Supp. 576 (D. C. S. D. N. Y.); United States v. Jerrold Electronics Corp., 187 F. Supp. 545 (D. C. E. D. Pa.), aff'd, 365 U. S. 567. And see U. S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 126 ( 1955). BROWN SHOE CO. v. UNITED STATES. 323 294 Opinion of the Court. Eighth, Congress used the words "may be substantially to lessen competition" ( emphasis supplied), to indicate that its concern was with probabilities, not certainties.39 Statutes existed for dealing with clear-cut menaces to competition; no statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed by this Act. It is against this background that we return to the case before us. IV. THE VERTICAL ASPECTS OF THE MERGER. Economic arrangements between companies standing in a supplier-customer relationship are characterized as "vertical." The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, 39 In the course of both the Committee hearings and floor debate, attention was occasionally focused on the issue of whether "possible," "probable" or "certain" anticompetitive effects of a proposed merger would have to be proven to establish a violation of the Act. Language was quoted from prior decisions of the Court in antitrust cases in which each of these interpretations of the word "may" was suggested as appropriate. H. R. Hearings on H. R. 2734, at 74; S. Hearings on H. R. 2734, at 32, 33, 160---168; 96 Cong. Rec. 16453, 16502. The final Senate Report on the question was explicit on the point: "The use of these words ["may be"] means that the bill, if enacted, would not apply to the mere possibility but only to the reasonable probability of the prescribed [sic] effect . . . . The words 'may be' have been in section 7 of the Clayton Act since 1914. The concept of reasonable probability conveyed by these words is a necessary element in any statute which seeks to arrest restraints of trade in their incipiency and before they develop into full-fledged restraints violative of the Sherman Act. A requirement of certainty and actuality of injury to competition is incompatible with any effort to supplement the Sherman Act by reaching incipient restraints." S. Rep. No. 1775, 81st Cong., 2d Sess. 6. See also 51 Cong. Rec. 14464 (remarks of Senator Reed). 324 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a "clog on competition," Standard Oil Co. of Califomia v. United States, 337 U. S. 293, 314, which "deprive[s] ... rivals of a fair opportunity to compete." 40 H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement. However, the Clayton Act does not render unlawful all such vertical arrangements, but forbids only those whose effect "may be substantially to lessen competition, or to tend to create a monopoly" "in any line of commerce in any section of the country." Thus, as we have previously noted, "[d]etermination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition 'within the area of effective competition.' Substantiality can be determined only in terms of the market affected." n The "area of effective competition" must be determined by reference to a product market ( the "line of commerce") and a geographic market (the "section of the country"). • 0 In addition, a vertical merger may disrupt and injure competition when those independent customers of the supplier who are in competition with the merging customer, are forced either to stop handling the supplier's lines, thereby jeopardizing the goodwill they have developed, or to retain the supplier's lines, thereby forcing them into competition with their own supplier. See United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 613 (D. C. S. D. N. Y.). See also GX 13, R. 215, a letter from Sam Sullivan, an independent shoe retailer, to Clark Gamble, President of Brown Shoe Co. 41 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593. BROWN SHOE CO. v. UNITED STATES. 325 294 Opinion of the Court. The Product Market. The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.{2 However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 593-595. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.43 Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition "in any line of commerce" ( emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed.4• 42 The cross-elasticity of production facilities may also be an important factor in defining a product market within which a vertical merger is to be viewed. Cf. United States v. Columbia Steel Co .. 334 U. S. 495, 510-511; United States v. Bethlehem Steel Corp., 168 F. Supp. 576,592 (D. C. S. D. N. Y.). However, the District Court made but limited findings concerning the feasibility of interchanging equipment in the manufacture of nonrubber footwear. At the same time, the record supports the court's conclusion that individual plants generally produced shoes in only one of the product lines the court found relevant. •a See generally Bock, Mergers and Markets, An Economic Analysis of Case Law 25-35 (1960). 44 United States v. E. l. du Pont de Nemours & Co., 353 U.S. 586, 592, 595; A.G. Spalding & Bros. v. Pederal Trade Comm'n, 301 F. 2d 585, 603 (C. A. 3d Cir.); American Crystal Sugar Co. v. Cuban326 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. Applying these considerations to the present case, we conclude that the record supports the District Court's finding that the relevant lines of commerce are men's, women's, and children's shoes. These product lines are recognized by the public; each line is manufactured in separate plants; each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed toward a distinct class of customers. Appellant, however, contends that the District Court's definitions fail to recognize sufficiently "price/quality" and "age/sex" distinctions in shoes. Brown argues that the predominantly medium-priced shoes which it manufactures occupy a product market different from the predominantly low-priced shoes which Kinney sells. But agreement with that argument would be equivalent to holding that medium-priced shoes do not compete with low-priced shoes. We think the District Court properly found the facts to be otherwise. It would be unrealistic to accept Brown's contention that, for example, men's shoes selling below $8.99 are in a different product market from those selling above $9.00. This is not to say, however, that "price/quality" differences, where they exist, are unimportant in analyzing a merger; they may be of importance in determining the likely effect of a merger. But the boundaries of the relevant market must be drawn with sufficient breadth to include the competing products of each of the merging companies and to recognize competition where, in fact, competition exists. Thus we agree with the District Court that in this case a further division of product lines based on "price/quality" differences would be "unrealistic." American Sugar Co., 259 F. 2d 524, 527 (C. A. 2d Cir.); United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 603 (D. C. S. D. N. Y.). See also note 39, supra. BROWN SHOE CO. v. UNITED STATES. 327 294 Opinion of the Court, Brown's contention that the District Court's product market definitions should have recognized further "age/sex" distinctions raises a different problem. Brown's sharpest criticism is directed at the District Court's finding that children's shoes constituted a single line of commerce. Brown argues, for example, that "a little boy does not wear a little girl's black patent leather pump" and that "[a] male baby cannot wear a growing boy's shoes." Thus Brown argues that "infants' and babies'" shoes, "misses' and children's" shoes and "youths' and boys' " shoes should each have been considered a separate line of commerce. Assuming, arguendo, that little boys' shoes, for example, do have sufficient peculiar characteristics to constitute one of the markets to be used in analyzing the effects of this merger, we do not think that in this case the District Court was required to employ finer "age/sex" distinctions than those recognized by its classifications of "men's," "women's," and "children's" shoes. Further division does not aid us in analyzing the effects of this merger. Brown manufactures about the same percentage of the Nation's children's shoes (5.8%) as it does of the Nation's youths' and boys' shoes (6.5%), of the Nation's misses' and children's shoes (6.0%) and of the Nation's infants' and babies' shoes ( 4.9% ). Similarly, Kinney sells about the same percentage of the Nation's children's shoes (2%) as it does of the Nation's youths' and boys' shoes (3.1 % ) , of the Nation's misses' and children's shoes ( 1.9%), and of the Nation's infants' and babies' shoes (l.5o/'d. Appellant can point to no advantage it would enjoy were finer divisions than those chosen by the District Court employed. Brown manufactures significant, comparable quantities of virtually every type of nonrubber men's, women's, and children's shoes, and Kinney sells such quantities of virtually every type of men's, women's, and children's shoes. Thus, whether considered separately or together, the picture •o f this 328 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. merger is the same. We, therefore, agree with the District Court's conclusion that in the setting of this case to subdivide the shoe market further on the basis of "age/sex" distinctions would be "impractical" and "unwarranted." The Geographic Market. We agree with the parties and the District Court that insofar as the vertical aspect of this merger is concerned, the relevant geographic market is the entire Nation. The relationships of product value, bulk, weight and consumer demand enable manufacturers to distribute their shoes on a nationwide basis, as Brown and Kinney, in fact, do. The anticompetitive effects of the merger are to be measured within this range of distribution. The Probable Effect of the Merger. Once the area of effective competition affected by a vertical arrangement has been defined, an analysis must be made to determine if the effect of the arrangement "may be substantially to lessen competition, or to tend to create a monopoly" in this market. Since the diminution of the vigor of competition which may stem from a vertical arrangement results primarily from a foreclosure of a share of the market otherwise open to competitors, an important consideration in determining whether the effect of a vertical arrangement "may be substantially to lessen competition, or to tend to create a monopoly" is the size of the share of the market foreclosed. However, this factor will seldom be determinative. If the share of the market foreclosed is so large that it approaches monopoly proportions, the Clayton Act will, of course, have been violated; but the arrangement will also have run afoul of the Sherman Act.45 And the legislative history of § 7 indicates clearly that the 45 15 U. S. C. §§ 1 and 2. See S. Rep. No. 1775, 81st Cong., 2d Sess. 4-5. BROWN SHOE CO. v. UNITED STATES. 329 294 Opinion of the Court. tests for measuring the legality of any particular economic arrangement under the Clayton Act are to be less stringent than those used in applying the Sherman Act.46 On the other hand, foreclosure of a de minimis share of the market will not tend "substantially to lessen competition." Between these extremes, in cases such as the one before us, in which the foreclosure is neither of monopoly nor de minimis proportions, the percentage of the market foreclosed by the vertical arrangement cannot itself be decisive. In such cases, it becomes necessary to undertake an examination of various economic and historical factors in order to determine whether the arrangement under review is of the type Congress sought to proscribe." A most important such factor to examine is the very nature and purpose of the arrangement.4" Congress not only indicated that "the tests of illegality [ under § 7] are intended to be similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act," 49 but also chose for § 7 language virtually identical to that of § 3 of the Clayton Act, 15 U.S. C. § 14, which had been interpreted by this Court to require an examination of the interdependence of the market share foreclosed by, and the economic purpose of, the vertical arrangement. Thus, for example, if a particular vertical arrangement, considered under § 3, appears to be a limited term exclusive-dealing contract, • 6 See note 33, supra. 47 See note 38, supra, and note 55, infra, and the accompanying text. • 9 Although it is "unnecessary for the Government to speculate as to what is in the 'back of the minds' of those who promote a merger," H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8, evidence indicating the purpose of the merging parties, where available, is an aid in predicting the probable future conduct of the parties and thus the probable effects of the merger. Swift & Co. v. United States, 196 U.S. 375, 396; United States v. Maryland & Virginia Milk Producers Assn., 167 F. Supp. 799, 804 (D. C. D. C.), aff'd, 362 U.S. 458. • 0 See H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. 663026 0-62-n 330 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. the market foreclosure must generally be significantly greater than if the arrangement is a tying contract before the arrangement will be held to have violated the Act. Compare Tampa Electric Co. v. Nashville Coal Co., 365 U. S. 320, and Standard Oil Co. of California v. United States, supra, with Internationq,l Salt Co. v. United States, 332 U.S. 392.50 The reason for this is readily discernible. The usual tying contract forces the customer to take a product or brand he does not necessarily want in order to secure one which he does desire. Because such an arrangement is inherently anticompetitive, we have held that its use by an established company is likely "substantially to lessen competition" although only a relatively small amount of commerce is affected. International Salt Co. v. United States, supra. Thus, unless the tying device is employed by a small company in an attempt to break into a market, cf. Harley-Davidson Motor Co., 50 F. T. C. 1047, 1066, the use of a tying device can rarely 51 be harmonized with the strictures of the antitrust laws, which are intended primarily to preserve and stimulate competition. See Standard Oil Co. of California v. United States, supra, at 305-306. On the other hand, requirement contracts are frequently negotiated at the behest of the customer who has chosen the particular supplier and his product upon the basis of competitive merit. See, e. g., Tampa Electric Co. v. Nashville Coal Co., supra. Of course, the fact that requirement contracts are not inherently anticompetitive will not save a particular agreement if, in fact, it is likely "substantially to lessen competition, or to tend to create a monopoly." E. g., Standard Oil Co. of California v. United States, supra. Yet a requirement contract may escape censure if only a 50 See also Comment, 59 Mich. L. Rev. 1236, 1239-1240 (1961). 51 Compare Standard Oil Co. of California v. United States, 337 U. S. 293, 306, with Federal Trade Comm'n v. Sinclair Refining Co., 261 u. s. 463. BROWN SHOE CO. v. UNITED STATES. 331 294 Opinion of the Court. small share of the market is involved, if the purpose of the agreement is to insure to the customer a sufficient supply of a commodity vital to the customer's trade or to insure to the supplier a market for his output and if there is no trend toward concentration in the industry. Tampa Electric Co. v. Nashville Coal Co., supra. Similar considerations are pertinent to a judgment under § 7 of the Act. The importance which Congress attached to economic purpose is further demonstrated by the Senate and House Reports on H. R. 2734, which evince an intention to preserve the "failing company" doctrine of International Shoe Co. v. Federal Trade Comm'n, 280 U.S. 291.52 Similarly, Congress foresaw that the merger of two large companies or a large and a small company might violate the Clayton Act while the merger of two small companies might not, although the share of the market foreclosed be identical, if the purpose of the small companies is to enable them in combination to compete with larger corporations dominating the market.53 The present merger involved neither small companies nor failing companies. In 1955, the date of this merger, Brown was the fourth largest manufacturer in the shoe industry with sales of approximately 25 million pairs of shoes and assets of over $72,000,000 while Kinney had sales of about 8 million pairs of shoes and assets of about $18,000,000. Not only was Brown one of the leading manufacturers of men's, women's, and children's shoes, but Kinney, with over 350 retail outlets, owned and operated the largest independent chain of family shoe stores in the Nation. Thus, in this industry, no merger between 52 H. R. Rep. No. 1191, 81st Cong., 1st Sess. 6; S. Rep. No. 1775, 81st Cong., 2d Sess. 7. 53 See note 34, supra. Compare Harley-Davidson Co., 50 F. T. C. 1047, 1066, and U. S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 143 (1955). 332 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. a manufacturer and an independent retailer could involve a larger potential market foreclosure. Moreover, it is apparent both from past behavior of Brown and from the testimony of Brown's President,5• that Brown would use its ownership of Kinney to force Brown shoes into Kinney stores. Thus, in operation this vertical arrangement would be quite analogous to one involving a tying clause.65 Another important factor to consider is the trend toward concentration in the industry.56 It is true, of course, that the statute prohibits a given merger only if the effect of that merger may be substantially to lessen competition.57 But the very wording of § 7 requires a prognosis of the probable future effect of the merger.58 The existence of a trend toward vertical integration, which the District Court found, is well substantiated by the record. Moreover, the court found a tendency of the acquiring manufacturers to become increasingly important sources of supply for their acquired outlets. The necessary corollary of these trends is the foreclosure of independent manufacturers from markets otherwise open to them. And because these trends are not the product of accident but are rather the result of deliberate policies of Brown and other leading shoe manufacturers, account must be taken of these facts in order to predict the prob- 54 See note 8, supra. 55 Moreover, ownership integration is a more permanent and irreversible tie than is contract integration. See Kessler and Stern, Competition, Contract, and Vertical Integration, 69 Yale L. J. 1, 78 (1959). 56 See generally Pillsbury Mills, Inc., 50 F. T. C. 555, 572-573; United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 606 (D. C. S. D. N. Y.); Stigler, Mergers and Preventive Antitrust Policy, 104 U. of Pa. L. Rev. 176, 180 (1955); U.S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 124 (1955). 57 See Handler and Robinson, A Decade of Administration of the Celler-Kefauver Antimerger Act, 61 Col. L. Rev. 629, 668 (1961). 58 See note 39, supra, and accompanying text. BROWN SHOE CO. v. UNITED STATES. 333 294 Opinion of the Court. able future consequences of this merger. It is against this background of continuing concentration that the present merger must be viewed. Brown argues, however, that the shoe industry is at present composed of a large number of manufacturers and retailers, and that the industry is dynamically competitive. But remaining vigor cannot immunize a merger if the trend in that industry is toward oligopoly. See Pillsbury Mills, Inc., 50 F. T. C. 555, 573. It is the probable effect of the merger upon the future as well as the present which the Clayton Act commands the courts and the Commission to examine.59 Moreover, as we have remarked above, not only must we consider the probable effects of the merger upon the economics of the particular markets affected but also we must consider its probable effects upon the economic way of life sought to be preserved by Congress.6° Congress was desirous of preventing the formation of further oligopolies with their attendant adverse effects upon local control of industry and upon small business. Where an industry was composed of numerous independent units, Congress appeared anxious to preserve this structure. The Senate Report, quoting with approval from the Federal Trade Commission's 1948 report on the merger movement, states explicitly that amended § 7 is addressed, inter alia, to the following problem: "Under the Sherman Act, an acquisition is unlawful if it creates a monopoly or constitutes an attempt to monopolize. Imminent monopoly may appear when one large concern acquires another, but it is unlikely to be perceived in a small acquisition by a large enterprise. As a large concern grows through a series of such small acquisitions, its accretions of 59 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 597. 60 See note 28, supra, and accompanying text. 334 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. power are individually so minute as to make it difficult to use the Sherman Act test against them. . . . "Where several large enterprises are extending their power by successive small acquisitions, the cumulative effect of their purchases may be to convert an industry from one of intense competition among many enterprises to one in which three or four large concerns produce the entire supply." S. Rep. No. 1775, 81st Cong., 2d Sess. 5.61 And see H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. The District Court's findings, and the record facts, many of them set forth in Part I of this opinion, convince us that the shoe industry is being subjected to just such a cumulative series of vertical mergers which, if left unchecked, will be likely "substantially to lessen competition." We reach this conclusion because the trend toward vertical integration in the shoe industry, when combined with Brown's avowed policy of forcing its own shoes upon its retail subsidiaries, may foreclose competition from a substantial share of the markets for men's, women's, and children's shoes, without producing any countervailing competitive, economic, or social advantages. V. THE HORIZONTAL ASPECTS OF THE MERGER. An economic arrangement between companies performing similar functions in the production or sale of comparable goods or services is characterized as "horizontal." The effect on competition of such an arrangement depends, of course, upon its character and scope. Thus, its validity in the face of the antitrust laws will depend upon such factors as: the relative size and number of the 61 See also Stigler, Mergers and Preventive Antitrust Policy, 104 U. of Pa. L. Rev. 176, 180 (1955). BROWN SHOE CO. v. UNITED STATES. 335 294 Opinion of the Court. parties to the arrangement; whether it allocates shares of the market among the parties; whether it fixes prices at which the parties will sell their product; or whether it absorbs or insulates competitors.62 Where the arrangement effects a horizontal merger between companies occupying the same product and geographic market, whatever competition previously may have existed in that market between the parties to the merger is eliminated. Section 7 of the Clayton Act, prior to its amendment, focused upon this aspect of horizontal combinations by proscribing acquisitions which might result in a lessening of competition between the acquiring and the acquired companies.63 The 1950 amendments made plain Congress' intent that the validity of such combinations was to be gauged on a broader scale: their effect on competition generally in an economically significant market. Thus, again, the proper definition of the market is a "necessary predicate" to an examination of the competition that may be affected by the horizontal aspects of the merger. The acquisition of Kinney by Brown resulted in a horizontal combination at both the manufacturing and retailing levels of their businesses. Although the District Court found that the merger of Brown's and Kinney's manufacturing facilities was economically too insignificant to come within the prohibitions of the Clayton Act, the Government has not appealed from this portion of the lower court's decision. Therefore, we have no occasion to express our views with respect to that finding. On the other hand, appellant does contest the District Court's finding that the merger of the companies' retail outlets may tend substantially to lessen competition. 62 See, e. g., United States v. Trenton Potteries Co., 273 U. S. 392; Sugar Institute, Inc., v. United States, 297 U.S. 553; United States v. Paramount Pictures, 334 U. S. 131; Timken Roller Bearing Co. v. United States, 341 U. S. 593. 63 See note 30, supra. 336 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. The Product Market. Shoes are sold in the United States in retail shoe stores and in shoe departments of general stores. These outlets sell: (1) men's shoes, (2) women's shoes, (3) women's or children's shoes, or ( 4) men's, women's or children's shoes. Prior to the merger, both Brown and Kinney sold their shoes in competition with one another through the enumerated kinds of outlets characteristic of the industry. In Part IV of this opinion we hold that the District Court correctly defined men's, women's, and children's shoes as the relevant lines of commerce in which to analyze the vertical aspects of the merger. For the reasons there stated we also hold that the same lines of commerce are appropriate for considering the horizontal aspects of the merger. The Geographic Market. The criteria to be used in determining the appropriate geographic market are essentially similar to those used to determine the relevant product market. See S. Rep. No. 1775, 81st Cong., 2d Sess. 5-6; United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 593. Moreover, just as a product submarket may have § 7 significance as the proper "line of commerce," so may a geographic submarket be considered the appropriate "section of the country." Erie Sand & Gravel Co. v. Federal Trade Comm'n, 291 F. 2d 279, 283 (C. A. 3d Cir.); United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 595- 603 (D. C. S. D. N. Y.). Congress prescribed a pragmatic, factual approach to the definition of the relevant market and not a formal, legalistic one. The geographic market selected must, therefore, both "correspond to the commercial realities" 64 of the industry and be economi- 6 ' American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F. Supp. 387, 398 (D. C. S. D. N. Y.), aff'd, 259 F. 2d 524 (C. A. 2d Cir.); S. Rep. No. 1775, 81st Cong., 2d Sess. 5-6. BROWN SHOE CO. v. UNITED STATES. 337 294 Opinion of the Court, cally significant. Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area. United States v. Columbia Pictures Corp., 189 F. Supp. 153, 193-194 (D. C. S. D. N. Y.); United States v. Maryl,and & Virginia Milk Producers Assn., 167 F. Supp. 799 (D. C. D. C.), affirmed, 362 U.S. 458. The fact that two merging firms have competed directly on the horizontal level in but a fraction of the geographic markets in which either has operated, does not, in itself, place their merger outside the scope of § 7. That section speaks of "any . . . section of the country," and if anticompetitive effects of a merger are probable in "any" significant market, the merger-at least to that extent-- is proscribed. 65 The parties do not dispute the findings of the District Court that the Nation as a whole is the relevant geographic market for measuring the anticompetitive effects of the merger viewed vertically or of the horizontal merger of Brown's and Kinney's manufacturing facilities. As to the retail level, however, they disagree. The District Court found that the effects of this aspect of the merger must be analyzed in every city with a population exceeding 10,000 and its immediate contiguous surrounding territory in which both Brown and Kinney sold shoes at retail through stores they either owned or controlled.66 By this definition of the geographic mar- 65 To illustrate: If two retailers, one operating primarily in the eastern half of the Nation, and the other operating largely in the West, competed in but two mid-Western cities, the fact that the latter outlets represented but a small share of each company's business would not immunize the merger in those markets in which competition might be adversely affected. On the other hand, that fact would, of course, be properly considered in determining the equitable relief to be decreed. Cf. United States v. Jerrold Electronics Corp., 187 F. Supp. 545 (D. C. E. D. Pa.), aff'd, 365 U.S. 567. 66 In describing the geographic market in which Brown and Kinney competed, the District Court included cities in which Brown "Fran338 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. ket, less than one-half of all the cities in which either Brown or Kinney sold shoes through such outlets are represented. The appellant recognizes that if the District Court's characterization of the relevant market is proper, the number of markets in which both Brown and Kinney have outlets is sufficiently numerous so that the validity of the entire merger is properly judged by testing its effects in those markets. However, it is appellant's contention that the areas of effective competition in shoe retailing were improperly defined by the District Court. It claims that such areas should, in some cases, be defined so as to include only the central business districts of large cities, and in others, so as to encompass the "standard metropolitan areas" within which smaller communities are found. It argues that any test failing to distinguish between these competitive situations is improper. We believe, however, that the record fully supports the District Court's findings that shoe stores in the outskirts of cities compete effectively with stores in central chise Plan" and "Wohl Plan" stores were located. Although such stores were not owned or directly controlled by Brown, did not sell Brown products exclusively and did not finance inventory through Brown, we believe there was adequate evidence before the District Court to support its finding that such stores were "Brown stores." To such stores Brown provided substantial assistance in the form of merchandising and advertising aids, reports on market and management research, loans, group life and fire insurance and centralized purchase of rubber footwear from manufacturers on Brown's credit. For these services, Brown required the retailer to deal almost exclusively in Brown's products in the price scale at which Brown shoes sold. Further, Brown reserved the power to terminate such franchise agreements on 30 days' notice. Since the retailer was required, under this plan, to invest his own resources and develop his good will to a substantial extent in the sale of Brown products, the flow of which Brown could readily terminate, Brown was able to exercise sufficient control over these stores and departments to warrant their characterization as "Brown" outlets for the purpose of measuring the share and effect of Brown's competition at the retail level. Cf. Standard Oil Co. of California v. United States, 337 U. S. 293. BROWN SHOE CO. v. UNITED ST ATES. 339 294 Opinion of the Court. downtown areas, and that while there is undoubtedly some commercial intercourse between smaller communities within a single "standard metropolitan area," the most intense and important competition in retail sales will be confined to stores within the particular communities in such an area and their immediate environs.67 We therefore agree that the District Court properly defined the relevant geographic markets in which to analyze this merger as those cities with a population exceeding 10,000 and their environs in which both Brown and Kinney retailed shoes through their own outlets. Such markets are large enough to include the downtown shops and suburban shopping centers in areas contiguous to the city, which are the important competitive factors, and yet are small enough to exclude stores beyond the immediate environs of the city, which are of little competitive significance. The Probable Effect of the Merger. Having delineated the product and geographic markets within which the effects of this merger are to be measured, we turn to an examination of the District Court's finding that as a result of the merger competition in the retailing of men's, women's and children's shoes may be lessened substantially in those cities in which both Brown and Kinney stores are located. We note, initially, that appellant challenges this finding on a number of grounds other than those discussed above and on grounds independent of the critical question of whether competition may, in fact, be lessened. Thus, Brown objects that the District Court did not examine the competitive picture in each line of commerce and each section of the country it had defined as appropriate. It says the Court erred in failing to enter findings with respect to each relevant city assessing 67 The District Court limited its findings to cities having a population of at least 10,000 persons, since Kinney operated only in such areas. 340 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. the anticompetitive effect of the merger on the retail sale of, for example, men's shoes in Council Bluffs, men's shoes in Texas City, women's shoes in Texas City and children's shoes in St. Paul. Even assuming a representative sample could properly be used, Brown also objects that the District Court's detailed analysis of competition in shoe retailing was limited to a single city-St. Louis-a city in which Kinney did not operate. The appellant says this analysis could not be sufficiently representative to establish a standard image of the shoe trade which could be applied to each of the more than 100 cities in which Brown and Kinney sold shoes, particularly as some of those cities were much smaller than St. Louis, others were larger, some were in different climates and others were in areas having different median per capita incomes. However, we believe the record is adequate to support the findings of the District Court. While it is true that the court concentrated its attention on the structure of competition in the city in which it sat and as to which detailed evidence was most readily available, it also heard witnesses from no less than 40 other cities in which the parties to the merger operated. The court was careful to point out that it was on the basis of all the evidence that it reached its conclusions concerning the boundaries of the relevant markets and the merger's effects on competition within them. We recognize that variations of size, climate and wealth as enumerated by Brown exist in the relevant markets. However, we agree with the court below that the markets with respect to which evidence was received provide a fair sampling of all the areas in which the impact of this merger is to be measured. The appellant has not shown how the variables it has mentioned could affect the structure of competition within any particular market so as to require a change in the conclusions drawn by the District Court. Each competitor within a given market is equally affected by these factors, even though the city in which he does busiBROWN SHOE CO. v. UNITED STATES. 341 294 Opinion of the Court. ness may differ from St. Louis in size, climate or wealth. Thus, we believe the District Court properly reached its conclusions on the basis of the evidence available to it. There is no reason to protract already complex antitrust litigation by detailed analyses of peripheral economic facts, if the basic issues of the case may be determined through study of a fair sample.68 In the case before us, not only was a fair sample used to demonstrate the soundness of the District Court's conclusions, but evidence of record fully substantiates those findings as to each relevant market. An analysis of undisputed statistics of sales of shoes in the cities in which both Brown and Kinney sell shoes at retail, separated into the appropriate lines of commerce, provides a persuasive factual foundation upon which the required prognosis of the merger's effects may be built. Although Brown objects to some details in the Government's computations used in drafting_t hese exhibits, appellant cannot deny the correctness of the more general picture they reveal."9 We have appended the exhibits to this opinion. 68 See Standard Oil Co. of California v. United States, 337 U. S. 293,313; U.S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 126 (1955): "While sufficient data to support a conclusion is required, sufficient data to give the enforcement agencies, the courts and business certainty as to competitive consequences would nullify the words 'Where the effect may be' in the Clayton Act and convert them into 'Where the effect is.'" And the Committee of the Judicial Conference of the United States on Procedure in Antitrust and Other Protracted Cases has also emphasized the need for limiting the mass of possibly relevant evidence in cases of this type in order to avoid confusion and its concomitant increased possibility of error. 13 F. R. D. 62, 64. 69 Brown objects, for example, to the fact that these exhibits are drafted on the basis of the cities concerning which census information was available, rather than on the basis of the cities and their environs-as the relevant markets were defined by the District Court. However, the record shows that the statistics of shoe sales in cities by and large conform to statistics of shoe sales in counties in which those cities are the principal metropolitan area. See Appendix D, 342 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. They show, for example, that during 1955 in 32 separate cities, ranging in size and location from Topeka, Kansas, to Batavia, New York, and Hobbs, New Mexico, the cominfra. Thus, we find no error in a conclusion drawn as to a slightly larger market from the available record of sales in cities alone. Brown also objects to the use of pairage sales, rather than dollar volume, as the basis for defining the size, and measuring Brown's shares, of the market. However, since Brown and Kinney sold shoes primarily in the low and medium price ranges, and in the light of the conceded spread in shoe prices, we agree that sales measured by pairage provide a more accurate picture of the Brown-Kinney shares of the market than do sales measured in dollars. Detailed statistics of shoe sales were available only in terms of dollar volume, however, and Brown objects to the method by which the Government has converted those figures into those reflecting sales in terms of pairage. The Government's conversion was, with some exceptions, based on national median income and national averages of shoe prices and the ratio of men, women and children in the population. The District Court accepted expert testimony offered by the Government to the effect that shoe price and population age, sex and income variations in the relevant cities produced, at most, a 6% error in the converted statistics, and that this error was as likely to favor Brown (by increasing the universe of sales against which Brown's shares were to be measured) as it was to disfavor it. We find no error in the District Court's acceptance of the Government's evidence as to the propriety of the accounting methods its experts employed. Lastly, Brown objects that the statistics concerning its own pairage sales were improperly derived since they included sales by its wholesale distributors to the retail outlets on its franchise plans in the same category as sales to ultimate consumers by its owned retail stores. Again, while recognizing a possible margin of error in statistics combining sa.Jes at two levels of distribution, we believe they provide an adequate basis upon which to gauge Brown sales through outlets it controlled. Particularly as the franchise stores were required to finance their own inventory, does it seem reasonable to conclude that most of their purchases from Brown's distributors were eventually resold. In summary, although appellant may point to technical flaws in the compilation of these statistics, we recognize that in cases of this type precision in detail is less important than the accuracy of the broad picture presented. We believe the picture as presented by the Government in this case is adequate for making the determination required by § 7: whether this merger may tend to lessen competition substantially in the relevant markets. BROWN SHOE CO. v. UNITED STATES. 343 294 Opinion of the Court. bined share of Brown and Kinney sales of women's shoes (by unit volume) exceeded 20%.10 In 31 cities-some the same as those used in measuring the effect of the merger in the women's line-the combined share of children's shoes sales exceeded 20%; in 6 cities their share exceeded 40%. In Dodge City, Kansas, their combined share of the market for women's shoes was over 57%; their share of the children's shoe market in that city was 49%. In the 7 cities in which Brown's and Kinney's combined shares of the market for women's shoes were greatest (ranging from 33% to 57%) each of the parties alone, prior to the merger, had captured substantial portions of those markets (ranging from 13% to 34%); the merger intensified this existing concentration. In 118 separate cities the combined shares of the market of Brown and Kinney in the sale of one of the relevant lines of commerce exceeded 5%. In 47 cities, their share exceeded 5 % in all three lines. The market share which companies may control by merging is one of the most important factors to be considered when determining the probable effects of the combination on effective competition in the relevant market.11 In an industry as fragmented as shoe retailing, the control of substantial shares of the trade in a city may have important effects on competition. If a merger achieving • 0 Although the sum of the parties' pre-existing shares of the market will normally equal their combined share of the immediate postmerger market, we recognize that this share need not remain stable in the future. Nevertheless, such statistics provide a graphic picture of the immediate impact of a merger, and, as such, also provide a meaningful base upon which to build cor.clusions of the probable future effects of the merger. 71 See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 595-596; A. G. Spaulding & Bros. v. Federal Trade Comm'n, 301 F. 2d 585, 612-615 (C. A. 3d Cir.); United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 603-611 (D. C. S. D. N. Y.). Cf. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226, 279, 308-311 (1960). 344 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. 5% control were now approved, we might be required to approve future merger efforts by Brown's competitors seeking similar market shares. The oligopoly Congress sought to avoid would then be furthered and it would be difficult to dissolve the combinations previously approved. Furthermore, in this fragmented industry, even if the combination controls but a small share of a particular market, the fact that this share is held by a large national chain can adversely affect competition. Testimony in the record from numerous independent retailers, based on their actual experience in the market, demonstrates that a strong, national chain of stores can insulate selected outlets from the vagaries of competition in particular locations and that the large chains can set and alter styles in footwear to an extent that renders the independents unable to maintain competitive inventories. A third significant aspect of this merger is that it creates a large national chain which is integrated with a manufacturing operation. The retail outlets of integrated companies, by eliminating wholesalers and by increasing the volume of purchases from the manufacturing division of the enterprise, can market their own brands at prices below those of competing independent retailers. Of course, some of the results of large integrated or chain operations are beneficial to consumers. Their expansion is not rendered unlawful by the mere fact that small independent stores may be adversely affected. It is competition, not competitors, which the Act protects. But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision. Other factors to be considered in evaluating the probable effects of a merger in the relevant market lend addiBROWN SHOE CO. v. UNITED STATES. 345 294 Opinion of the Court. tional support to the District Court's conclusion that this merger may substantially lessen competition. One such factor is the history of tendency toward concentration in the industry.72 As we have previously pointed out, the shoe industry has, in recent years, been a prime example of such a trend. Most combinations have been between manufacturers and retailers, as each of the larger producers has sought to capture an increasing number of assured outlets for its wares. Although these mergers have been primarily vertical in their aim and effect, to the extent that they have brought ever greater numbers of retail outlets within fewer and fewer hands, they have had an additional important impact on the horizontal plane. By the merger in this case, the largest single group of retail stores still independent of one of the large manufacturers was absorbed into an already substantial aggregation of more or less controlled retail outlets. As a result of this merger, Brown moved into second place nationally in terms of retail stores directly owned. Including the stores on its franchise plan, the merger placed under Brown's control almost 1,600 shoe outlets, or about 7.2% of the Nation's retail "shoe stores" as defined by the Census Bureau,73 and 2.3% of the Nation's total retail 72 See note 38, supra. A company's history of expansion through mergers presents a different economic picture than a history of expansion through unilateral growth. Internal expansion is more likely to be the result of increased demand for the company's products and is more likely to provide increased investment in plants, more jobs and greater output. Conversely, expansion through merger is more likely to reduce available consumer choice while providing no increase in industry capacity, jobs or output. It was for these reasons, among others, Congress expressed its disapproval of successive acquisitions. Section 7 was enacted to prevent even small mergers that added to concentration in an industry. See S. Rep. No. 1775, 81st Cong., 2d Sess. 5. Cf. United States v. Jerrold Electronu;s Corp., 187 F. Supp. 545, 566 (D. C. E. D. Pa.) aff'd, 365 U.S. 567; United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 606 (D. C. S. D. N. Y.). 73 See note 5, supra. 663026 0-62-26 346 OCTOBER TERM, 1961. Opinion of the Court. 370 U.S. shoe outlets.74 We cannot avoid the mandate of Congress that tendencies toward concentration in industry are to be curbed in their incipiency, particularly when those tendencies are being accelerated through giant steps striding across a hundred cities at a time. In the light of the trends in this industry we agree with the Government and the court below that this is an appropriate place at which to call a halt. At the same time appellant has presented no mitigating factors, such as the business failure or the inadequate resources of one of the parties that may have prevented it from maintaining its competitive position, nor a demonstrated need for combination to enable small companies to enter into a more meaningful competition with those dominating the relevant markets. On the basis of the record before us, we believe the Government sustained its burden of proof. We hold that the District Court was correct in concluding that this merger may tend to lessen competition substantially in the retail sale of men's, women's, and children's shoes in the overwhelming majority of those cities and their environs in which both Brown and Kinney sell through owned or controlled outlets. The judgment is Affirmed. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. 74 Although statistics concerning the degree of concentration and the rank of Brown-Kinney in terms of controlled retail stores in each of the relevant product and geographic markets would have been more helpful in analyzing the results of this merger, neither side has presented such statistics. The figures in the record, based on national rank, are, nevertheless, useful in depicting the trends in the industry. BROWN SHOE CO. v. UNITED STATES. 347 294 Appendix A to Opinion of the Court. APPENDIX A Sales of women's shoes by Brown and Kinney as a share of the total city sales in 8tlected areas (1955) Area Total sales Kinney (pairs) Shoe Store (%) Dodge City, Kans ............... . ... . . 31,400 23. 3 Texas City, Tex ............... ..... .. . 32,300 27. 8 Council Bluffs, Iowa .................. . 68,200 27.3 Marshalltown, Iowa ....... ........... . 72,600 21. 8 Uniontown, Pa ........ . . . ... ......... . 144,000 16. 3 Ardmore, Okla. ..... ....... ... ......... 62,600 14. 4 Keokuk, Iowa ...... ... ............... . 34,600 IS. 4 Ottumwa, Iowa _______________________ _ 67,200 28. 2 Pine Bluff, Ark ....................... . 63,100 21. 6 Lawton, Okla .............. ........ ... . 95,200 ~-2 Borger, Tex __________________________ _ 50, 100 15. 5 Roswell, N. Mexico ........ ......... . . . 80,900 11. 7 Topeka, Kans ...... ............ ...... . 224,000 11.7 Coatesville, Pa ....... .... . ............ . 46,200 17. 2 Hobbs, N. Mexico .................... . 50,800 22. 2 Iowa City, Iowa ........ ..... ... ...... . 72,200 15. 3 Dubuque, Iowa ..... . . .... ............ . 119, 000 14. 3 Carlisle, Pa ..... . ............... . ..... . 55, 500 17. 5 Texarkana, Ark ......... . . ...... ...... . 65,800 15. 9 Fort Dodge, Iowa ............ ... . . .... . 104,000 10. 8 Steubenville, Ohio. ......... ..... ...... ~7,200 14. 9 Mason City, Iowa .... . . ........ . . . . . . . 102,400 14. 4 Marion, Ohio. ..... .................... 91,600 6. 7 Pueblo, Colo ......... . . . ...... ........ . 152,400 14. 1 Hibbing, Minn ................. . ..... . 44,600 18. I Fargo, N. Dak .... ...... .............. . 162, 800 15. 3 Franklin, Pa .......................... . 32,100 14. 4 Corpus Christi, Tex. ... . . . . . . .. - .... . 331,500 2. 4 Batavia, N.Y _________________________ _ 75,300 13. 2 McAllen, Te, ............... .......... . 00, 200 13. 0 Concord, N .H .................. ...... . 57,300 15. 6 Sioux City, Iowa ................. - .. . 222,000 7.7 Muskogee, Okla. ...................... 68,100 7. 6 Rochester, Minn ..... . ... ............. . 130,100 11. 2 Bartlesville, Okla. .. . . ................ . 63,100 15. 8 Berwyn, 111. .......................... . 95,900 17.8 Clarksburg, W. Va ...... . . ........... . 134,600 15. 5 Davenport, Iowa ...... ......... ...... . 230,300 6. 4 Freeport, Ill. .................. ... .... . 88,000 10. 7 Grand Forks, N. Dale ................ . 121,100 12. 8 Muskegon, Mich ... ........ . ...... ... . 172,000 4. 0 Baton Rouge, La ........... .... .... . . . 398, 100 3. 8 Des Moines, Iowa .................... . 562,800 4. 9 Brown owned or controlled outlets (%}· 34. 4 20. 7 15. 4 13. 4 18. 8 ~.3 14. 8 4.3 9. 4 9.8 13. 8 15. 8 15. 8 10.0 5.0 JO. 7 11.5 5.9 7.5 12. 5 8.1 8.3 15. 7 7. 5 3.4 6. 2 7.1 19.0 8.1 8.3 4. 7 12.3 12.2 8.6 3. 9 1.9 3. 9 12. 8 8.3 6.1 14. 9 14.9 13.8 Combined Brown• Kinney share (%}· 57. 7 48. 5 42. 7 35. 2 35.1 34. 7 33. 2 32. 5 31.0 30.0 29.3 27.5 27.5 27. 2 27.2 26.0 25. 8 23. 4 23. 4 23.3 23. 0 22. 7 22. 4 21. 6 21. 5 21.5 21.5 21. 4 21.3 21.3 20.3 20.0 19.8 19.S 19. 7 19. 7 19.4 19. 2 19. 0 18. 9 18. 9 18. 7 18. 7 • The percentages in these rolumns reflect sales of Brown brand shoes throu~h Brown owned or controlled outlets. 348 OCTOBER TERM, 1961. Appendix A to Opinion of the Court. Women's shoes-Continued Area Springfield, Mo_. ___________ _____ ____ _ Laredo, Tex.------·.--·---···----___ . St. Cloud, Minn·----------············ Fort Smith, Ark·-······--·-··-·······- Klngsport, Tenn.·-·-···-·····-···-···· Gulfport, Miss..·-··-···-·····-········ Cortland, N,Y ........................ . Fremont, Nebr ....................... . Manito,voc, W!s •••• ·-·········--·---·- Sallna., KR.ns_ __ .............. ---.------- Mnncie, Ind . .•••••••••••••••• ·-··--··- Portsmoutb, Ohio.·-··············-··- Reading, Pa •• · ·-·-·--···-············. Greensburg, Pa.. ·-·--··--············- Llttle Rock, Ark ••• ·-····-·-··-········ Flint, Mich. ..· -···-··-···.-•·• •••••••• Wichita, Kans_·-···--···-·-···-······· Lubbock, Tex ············-······-···· Kingston, N.Y ···············-········· Em porla, Kans ....................... . Johnson City, Tenn .. ................ . Odessa, Tex ........................... . Bloomington, Ill ...................... . Elgin, Ill.. .............. -·····-········ Enid, Okla ················-········ Burlington, Iowa ••••• ·•··-···-··-····· South Bend, Ind ...................... . Galesburg, IIL .... . . ................ . A bllene, Tex.······-·········••·•·•·• •• Meridian, Miss ••• ·-··················· Toledo, Ohio •• ···········-······-····· Tulsa, Okla. •••••.••• ·--··············· Colorado Springs, Colo ............ . . .. . Williamsport, Pa ..................... . Mankato, Minn .... ........... ....... . Green Bay, Wis ...................... . Waterloo, Iowa ....................... . Sioux Falls, S. Dak . .................. . Glens Falls, N .Y . .................... . Kansas City, Kaas . ................. . Oklahoma City, Okla ................. . Hutchinson, Kans ... ....... ·········-· Kenosha, Wls ............ ·-·····--···-· Pottsville, Pa ......... ............ ···-· San Angelo, Te•·······-·············-· Wheeling, W. Va ..................... . Ithaca, N. Y ··-••····--·-·-··-··-······ Zanesvllle, Oblo •......... -·····-······ Mobile, Ala .......... -................ . • See footnote on p. 347. Total sales Kinney (pairs) Shoe Stora (%) 210,400 3. 7 166, 200 15. 3 88,400 9. 6 166, 200 11. 8 106, 200 13. 0 99,700 14. 2 55,300 12. 2 56,100 11. 8 60,800 13. 9 102, 800 13. 8 158,000 7. 9 141,200 9. 2 417,200 6. 0 117,800 8. 0 468,100 2. 7 628,300 2. 7 666,600 7. 6 305,500 3. 9 112, 100 11. 6 44,300 1'.3 75,800 12. 0 167,700 8.1 129,600 6. 2 126,900 6. 7 140, 400 10. 7 74,600 10. 7 434,500 1. 6 115, 600 12. 4 184, 300 12. 4 120,000 3. 7 821,800 l . 3 749,000 7. 0 225, 600 7. 6 153,400 4. 1 99,900 7. 9 220,000 7.5 224,100 10. 2 172,000 7. 4 115, 300 7. 6 181,300 8. 6 839,500 1. 8 156,400 9. 0 107, 700 7. 0 147,000 6. 0 113,800 6. 5 311,600 6. g 82,300 6. 8 138,800 9. 0 473,100 1.0 Brown owned or controlled outlets (%)• 14. g 3.2 8. g 6. 5 5.1 3. 7 5. 5 5. 6 3.5 3.3 9.0 7.2 10. 4 7. 9 13. 2 13.1 8.3 11. 7 3. 9 0. 8 3.1 7. 0 8.6 8. 0 •. 0 3. 9 13. 0 2.1 2. 0 10.6 12. 6 6. 9 6.1 9. 2 5. 3 5. 2 2. 3 4. g 4.6 3. 6 10. 4 2. 4 4.3 5.3 4.6 3.9 4. 7 1. 5 9.4 370U.S. Combined Brown- Kinney share (%)• 18. 6 18. 6 18. 6 18. 3 18. 1 17. 9 17. 7 17. 4 17.4 17.1 16. 9 16. 4 16. 4 15. 9 15. 9 16. 8 15. 8 15. 6 15. 5 Iii. I 15.1 15.1 14. 8 14. 7 14. 7 14.6 14.6 14.6 14.4 14.3 13.9 13. g 13. 6 13. 3 13. 2 12. 7 12. 5 12. 3 12. 2 12. 2 12.2 11.4 11. 3 11. 3 11. 1 10. 8 10. 5 lQ.5 10. 4 BROWN SHOE CO. v. UNITED STATES. 349 294 Appendix A to Opinion of the Court. Women's shoes-Continued Area York, Pa ---------------·------·----- Gary, Ind _________ . ------·--------·--- Decatur, 111--------------------- ______ _ Amarillo, Tex ________________________ _ M lnneapolls, Minn __________________ _ Fort Worth, TeX----·--·-·-----·------- W aco, Tex ____________________________ _ Altoona, Pa __________________________ _ Lancaster, Pa ________________________ _ Rock lord, IlJ __________________________ _ Saginaw, Mich_----··-----·-··-·····-· Grand Rapids, Mich _________________ _ Jacksonville, Fla _____________________ _ Col um bus, Ga _______________________ _ Evansville, Ind ___________________ ·--· St. Paul, Minn--·---··-·-·----··--·--· Montgomery, Ah•·-··-··-··-·····-·---· Peoria, Ill .................... -....... -. Springfield, Ill ••• • •••• ········-··---·-- Milwaukee, Wis.·--·······-··••·• ••••• San Antonio, Tex ............... ·-···-· Cedar Rapids, Iowa .................. . • See footnote on p. 347. Total sales (pairs) 344,200 414,400 221,800 334,100 1,900,900 1,002, 100 170,400 241,000 316,400 377,400 32jj,300 650,300 739,200 308,300 486,600 1,013,200 437,100 469,300 304,400 1,984,900 1,476,000 256,600 Kim1ey Shoe Store (%) 5.1 4.3 3. 9 5. 6 5.3 1. 4 5. 4 4.8 3. 9 6.0 2.1 5.8 0. 6 3. 4 3. I 3.1 I. 7 3. 6 5.1 5.9 1.0 3. 9 llrown owned or oontrolled outlets (%)• 4,9 5.3 5,5 3. 2 3.1 6.9 2.9 3.3 4.2 3.1 5.6 1. 6 6. 7 3.6 3. 6 3.5 4. 7 2.8 1. 3 0.3 4. 7 1.2 Combined Bro-wn- Kinney share (%)· 10.0 9.6 9.4 8,8 8.4 8.3 8.3 8.1 8.1 8.1 7.1 7. 4 7.3 6. 9 6. 7 6. 6 6. 4 6. 4 6. 4 6. 2 5. 7 5. 1 Source: GX 9, 214, R. 60-70, 1223-1227; DX RR, DDDD-1, DDDD-2, R.3892-4315, 4939- 6299, 5300-5652. 350 OCTOBER TERM, 1961. Appendix B to Opinion of the Court. 370U.S. APPENDIX B Sales of children's shoes by Brown and Kinney as a share of the total city sales in selected areas (1955) Area Coatesville, Pa .................. ...... . Dodge City, Kans .................... . Council Bluffs, Iowa .................. . Ardmore, Okla ........................ . Pueblo, Colo ................. ..... .... . Borger, Tex ___________________________ _ Berwyn, Ill ........................... . Batavia, N.Y-.---........ -.-..................... -. Ottumwa, Iowa _______ ....................... .. Carlisle, Pa ........................... . Manitowoc, Wis ....... . ... . ......... . Lawton, Okla ......................... . Franklin, Pa .......................... . OulCport, Miss ........ .............. .. . Fremont, Nebr ....................... . Bartlesville, Okla ..................... . Concord, N .H ........................ . Uniontown, Pa ....................... . Marshalltown, Iowa .................. . Cortland, N. Y ........................ . Kingsport, Tenn ...................... . McAllen, Tex ......................... . Topeka, Kans ........................ . Texarkana, Ark ........... ............ . Johnson City, Tenn .................. . Dubuque, Iowa ..................... .. . Emporia, Kans ....................... . Iowa City, Iowa .................. .... . Muskogee, Okla ...................... . Salina, Kans .......................... . Mason City, Iowa .................... . Enid, Okla ............. .............. . Kingston, N.Y ........................ . Rochester, Minn ...................... . Ithaca, N. Y .......................... . Hutchinson, Kans .. _________________ _ Baton Rouge, La ..................... . Grand Forks, N. Dak ................. . Sioux City, Iowa ...................... . Altoona, Pa.. .......................... . Elgin, Ill. .............................. Total sales (pairs) 20,900 14,200 30,900 28,400 69, 100 22,700 43,500 34.100 30,500 25,200 27,600 43,200 14,500 45,200 25,400 28,600 26,000 65,700 32,900 25,100 48, 100 40,000 101,600 29,800 34,300 53,900 20,100 32,700 30,000 46,600 46,400 63,700 50,800 59,100 37,300 70,900 180,400 54,900 100,600 109,300 57,500 Kinney Shoe Store (%) 20. 8 35. 5 36. 6 20. 7 25.4 24.8 31. 2 14.0 30. 4 21. 4 19. 2 18. 3 14.4 24. 5 14.3 20. 7 16. 3 18. 9 22.8 13.8 14. 8 17.0 15. 7 19.2 13. 0 17. 6 14. 5 1.,. 8 10. 7 12.5 16. 8 12.1 12. 8 7.5 5. 5 10. 9 8.0 12. 7 9. 8 12.5 13. l Brown owned or controlled outlets (%)• 31.0 13. 5 6.5 21.0 15. 8 16.1 3.4 19.3 2. 5 11. 3 12. l 12. 6 14. 9 4.5 14. 6 7. 8 11. 8 8. 3 4. 2 12. 4 10. 6 7.5 7. 2 3. 6 9.4 4. 5 7. 4 11.R 10. 9 8. 7 3. 4 6.9 5.1 9. 9 11. 8 6.0 8.6 3.4 5. 9 2. g 2.3 Combined Brown. Kinney share (%)• 51.8 49.0 43. l 41. 7 41.2 40. 9 34. 6 33.3 32. 9 32. 7 31. 3 30.9 29.3 29.0 28. 9 28. 5 28. I 27. 2 27. 0 26.2 25.4 24.5 22. 9 22. 8 22.4 22. l 21. 9 21.6 21. 6 21. 2 20.2 19.0 17. 9 17. 4 17.3 16. 9 16.6 16.1 Iii.? 15.4 15. 4 'The percentages in these columns reflect sales of Brown brand shoes through Brown owned or controlled outlets, with the single exception of Manitowoc, Wis., In which case they reflect the sale of Brown brand shoes through all outlets, regardless or ownership or control, and are, therefore, marginally too high. BROWN SHOE CO. v. UNITED STATES. 351 294 Appendix B to Opinion of the Court. Chiliiren's shoes-Continued Area Meridian, Miss ....................... . Wichita, Kans ........................ . Colorado Springs, Colo .......... ..... . Fort Smith, Ark ........... ........... . Fort Dodge, Iowa ..... ............ ... . . Zanesville, Ohio .................. .... . Muskegon, Mich ..................... . Stenbenville, Ohio ............ . . .... .. . Tulsa, Okla. .... ...... ................. Corpus Christi, Tex .................. . Davenport, Iows .. __________________ _ Fargo, N. Dak ............. ...... . .... . Wheeling, W. Va ..... . . ............ . . . Amarillo, Te:r. ......................... Lillie Rock, Ark ................ . . .... . South Bend, Ind ...................... . Greensbnrg, Pa . .............. ........ . Des Moines, Iowa .............. ...... . Glens Falls, N. Y ......... . ........... . Green Bay, Wis ...................... . Decatur, Ill ............ . . ..... ........ . Fort Worth, Tex ...................... . Mobile, Ala ....... ........ ............ . Gary, Ind ......... ........ . . . ·-······· Bloomington, rn ................ . ..... . Springfleld, Mo• •••• ••·······-····· Willamsport, Pa . . . ................... . Waco, Tex ___________________________ _ Lubbock, Tex• •• ··· ·-····- ········· Pottsville, Pa ....... ... ............... . Milwaukee, Wis . . ................... . . Lancaster , Pa ... .. .................... . Tampa, Fla ••••••••••• ·-·············· Oklahoma City, Okla ................. . Mankato, Minn ............ .......... . Minneapolis, Minn •••••••• ·--··· ··· Peoria, 111 .......... ... .......... ...... . Colnmbns, Ga .............. .......... . Reading, Pa• ••••••· -··············· Toledo, Ohio .......................... . Jacksonville, Fla• ••· -················· Spring!!eld, ru .... ......... . ........ .. . Montgomery, Ala ............. ........ . Brownsvllle, Tex ..... ..... . .......... . Saginaw, Mich ...... .. ................ . St. Paul, Minn ................. .... . Detroit, Mich ......................... . • See footnote on p. 350. Total sales (pairs) 54,400 302,200 102,300 74,900 47, 100 62,000 78,000 93,900 339,500 150,300 104,400 73,800 Hl,200 151,400 212,200 197,000 53,400 225,100 52,300 99,700 100,500 495,100 198,100 187,800 !i8, 800 95, 400 69,600 77,200 138,500 66, 600 899, 800 143,400 251, 600 380,600 45,300 865,800 212, 700 139, 700 189,100 372,500 335,100 558,500 164,500 100,500 147,900 459,300 2,483,900 Kinney Sboe Store (% ) 6. 7 9.6 8.0 12.1 12. 5 9. 7 7. 4 11. 4 8.6 4.4 8.4 9.0 8. 7 8.6 3.0 2. g 8. g 6. 5 10. 2 7. 3 6. 3 3.3 4. 5 7.0 6. 5 3.1 5.0 6.3 6.4 5.Q 8.3 6.2 4.5 2.6 8'9 6. 7 6. 7 6. 4 4. 4 1. 5 2. 0 5. 7 3.3 4.3 3. 5 2. 7 4.4 Brown owned or controlled outlets (%). 8.7 5.6 7.1 3. 0 2. 4 4. 8 6. 6 2. 4 5. 2 8.8 4. 8 3. 8 4. I 4.2 9.5 9.4 3.0 6.1 1. 2 3.8 4.4 7.4 6.2 3.6 4.0 6.5 4.5 3.2 2. 8 3.3 0.4 2. 3 4.0 5.8 1. I 1. 2 1.0 1.2 3. 1 5.3 4. 5 0. 7 2.9 1.8 2. 5 2.5 0.6 Combined Brown- Kinney share (%)" 15. 4 15. 2 15. 1 15. l 14. 9 14.5 14.0 13.8 13.8 13.2 13.2 12. 8 12. 8 12. 7 12. 5 12.3 11.9 11. 6 11. 4 11. 1 10. 7 10. 7 10. 7 10. 6 10. 5 9.6 9.5 9.5 9.2 9.2 8. 7 8. 5 8. 5 8.3 7.9 7.9 7. 7 7.6 7.5 6.8 6. 5 6. 4 6.2 6, I 6,0 5.2 5.0 Source: G X 9, 214, R. 60-70, 1228-1232; DX RR, DDDD-1, DDDD-2, R. 3892-4315, 4939-52119, 5300-5652. 352 OCTOBER TERM, 1961. Appendix C to Opinion of the Court. 370 u. 8. APPENDIX C Sales of men's shoes by Rrown and Kinney as a share of the total city sales in selected areas (1955) Area Dodge City, Kans ____________________ _ Ardmore, OkllL _____ ---- · ____________ . Batavia, N. Y------------·-----------__ Lawton, Okla _________________________ . Borger, Tex __________________________ _ P11eblu, Colo _________________________ _ Carlisle, P•-----------------------· Freruont, Nebr _______________________ _ Coatesville, Pa ________________ _____ _ Manitowoc, Wis _____ ---------·---·-·· Franlrlin, Pa_---·--·---·---·--·---·-·- Couocil Bluffs, Iowa_·---·_ _ .. _ _. .... Concord, N,H_ •••• ·----·············· Texarkana, Ark_ .... -..... ---------------- Corpus Christi, Tex_ •••••• ------·--··- Muskogee, Okla _________ ----·--···-- Emporia, Kans .._ . ...•••. ••. ·--··--· Kingsport, Ten!I _______ . ---·---··••·. .. nartlcnllle, Okla ____ ·--·-___________ _ Cortland, N.Y _ . _____________________ _ Dubuque, Iow1:L _________ ·------------- McAllen, Te,. ____ --·--._ ___ ·-·--·-·_ Jlerwyu, IJL ___________ . ___ --· ____ _ Salina, Kan•.---·-··--------·····---·-- Kingston, N .Y ·--·----·_ ______________ _ ~:lgln, Il] _____ -· ___ ·--___ ·-___________ _ Enid, Okla._------------------ _______ _ Uniontown, Pa ___ ---·-_----·-·-·----- Rochester, Minn __ ·------------- _____ . Fort Smith, Ark _____ . ________________ _ Topekn, Kans ___ . ____________________ _ Hutchinson. Kans.··-·-··-·--·-------- Johnson C'lty, Tenn _ ________________ _ Davenport, lows. ____________________ _ Ithaca, N. Y .. ___________________ ··--- Zanesville, Oblo _____________ .. _______ _ Muske~on, Mich.----·---- ·-______ . __ _ Steubenville, Ohio ___________________ _ Spriugrleld, :\-fo _____________________ -- Total sales (pairs) 12,00U 23,000 28. 700 36,300 19,100 58,100 21,200 21,400 17,600 23,200 12. 200 26. 000 21. 900 25. 100 12e, 500 26,000 16,900 40,500 24, 1()/) 21,100 ,15,400 34,400 36,000 39,200 42,800 48,400 53,600 .15. 300 49,600 63,000 85,500 59, 700 28,900 87,900 31,400 53. 000 65. 600 79,000 SO, 300 Kinney Shoe Store (%) 16. 4 8.1 8. 9 II. 3 II. 5 8. 6 14. 3 8.0 9.3 10. I 10. 5 14. 0 II. 0 12. I 2. 0 6. 5 7. 8 7. 2 8. 9 7. 6 10. 2 8. 4 9.1 7.2 6.9 10. I 5.9 7.3 4.3 5.2 9.0 5.1 7. 7 6.0 3.5 5.2 5. I 5. 7 3.6 Brown owned or controlled outlets (%)• 8.4 15. ., II. ;J 8.2 7. 8 10. 3 4. 2 10. 4 8. 2 7. 3 5.3 I.I 3. 7 2.6 12.3 7. 6 5. 7 ~- u 4. I 5.2 2.1 3.5 2.6 3.9 3. 7 0. 4 4.6 2.9 5. s 4.5 0.5 3. 7 1.0 I. 7 4.2 2. I I. 7 I.I 2. 8 Combined Brown- Kinney shart! (%)• 24.8 23. 6 20.2 19. 5 19. 3 1!1.9 IS. 5 18. 4 17.5 17. 4 15.8 15.1 14. 7 14. 7 14. 3 14. l 13.5 13.1 13.0 12.8 12. 3 II. 9 11. 7 11.1 10.6 10. 10.5 10.2 9.8 9. 7 9.5 8.8 8. 7 7. 7 7. 7 7. 3 6.8 6.8 6.4 'The percentages In these columns reflect sales or Brown brand shoes through Brown owned or controlled outlets, with the single exception of Concord, N .H., In which case they reflect the sale or Brown brand shoes through all outlets, regardless or ownership or control, and are, therefore, marginally too high. BROWN SHOE CO. v. UNITED STATES. 353 294 Appendix C to Opinion of the Court. Men's shoes-Continued Area Amarillo, Tex_------------------------ Asheville, N.C _______________________ _ Green Bay, Wis_---······-·--·--·----· Waco, Te:r_,.. _____ ... ------------------ Greensburg, Pa __________________ -- --- Peoria, Ill ____________________________ _ Reading, Pa ____ --------------------- Wichita, Kans ______________________ . . Colorado Springs, Colo ______________ _ • See footnote on p. 352. Total sales (palrs) 127. 400 80,900 83,000 65,000 44. 000 179,000 159,200 2!\4,300 86.100 Klnn~y Shoe Store (%) 4. 6 2.9 4.0 2.6 4. 4 4. 7 2. 7 4.3 4. 4 Brown owned or controlled outlets (%)• 1.3 2. 9 1.6 3.0 1.0 o. 7 2.6 o. g o. 7 Combined Brown- Kinney share (%)' 5. 9 5.8 5. 6 5.6 5. 4 5.4 5.3 5. 2 ,I, I Source: GX 9, 214, R. 60-70, 1219--1222; DX RR. DDDD-1, DDDD-2, R. 3892-4315, 493B-52!19, 5300-5652, 354 OCTOBER TERM, 1961. Appendix D to Opinion of the Court. 370U.S. APPENDIX D Comparison of Brown-Kinney percentage of industry shoe sales for select Pd cities, and counties or standard metropolitan area., [Appellant's percentages or 1054 dollar sales adjusted to include sales of llrown franchise anrt Wohl plan stores] City Texas Cit.y, TP.x _______ _ Coatesvill~., PR. ___ ______ _ Ottumws:t.. IowA. ________ _ Uninntnwn, Pa __ ______ _ Texarl,rn.n~ Arlr __ __ ___ __ _ Marshalltown, lnwn. ____ _ Council Rlnff~ Tnwa_ ___ _ Corpus Christi, T,x_ ___ _ ArdmnTP., Okla. _________ _ Iowa City, lnwA. _ ______ _ Muskng"P., OklR. _______ _ Steubenville, Ohio _____ _ Grand Fmkc;, N .. Da.k ... Masl'.\n t!ity, Tnwa _____ _ Topeka. Kans _________ _ Baton R<1ugiP., T,n _______ _ RocbPStPr, Minn . . ... ... . Dubuque., Towf\ _________ _ Fort ~mlth, Ari< ________ _ 1.ittle Rock, Ark _______ _ Fort nmlgP., Iowa. _ ___ _ Springfleln their lov'd home and the war's desolation! Blest with vict'ry and peace may the heav'n rescued land Praise the power that hath made and preserved us a nation! Then conquer we must when our cause it is just, And this be our motto-"In God is our trust." And the Star-Spangled Banner in triumph shall wave O'er the land of the free and the home of the brave.' "In view of these words in our national anthem, it is clear that 'In God we trust' has a strong claim as our national motto." S. Rep. No. 2703, 84th Cong., 2d Sess., p. 2. 0 The fact that taxpayers do not have standing in the federal courts to raise the issue (Frothingham v. Mellon, 262 U.S. 447) is of course no justification for drawing a line between what is done in New York on the one hand and on the other what we do and what Congress does in this matter of prayer. 663026 0-62-32 442 OCTOBER TER:'.\f, 1961. DouGLAS, J., concurring. 3i0 u. s. element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a "captive" audience. At the same time I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words.7 A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise it inserts a divisive influence into our communities.8 The :New York Court said that the prayer given does not conform to all of the tenets of the Jewish, Unitarian, and Ethical Culture groups. One of the petitioners is an agnostic. "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 l!. S. 306, 313. Under our Bill of Rights free play is given for 7 The Court analogizes the pre~ent caSt> to those involving the traditional Established Church. We once had an Established Church, the Anglican. All baptisms and marriages had to take place there. That church was supported by taxation. In these and other ways the Anglican Church was favored over the others. The First Amendment put an end to placing any one church in a preferred position. It ended support of any church or all churches by taxation. It went further and prevented secular sanction to any religious ceremony, dogma, or rite. Thus, it prevents civil penalties from being applied against recalcitrants or nonconformists. 9 Somr communities have a Christmas tree purchased with the taxpayers' money. The tree is sonwtimes decorated with the words "Peace on earth, goodwill to men." At other times the authorities draw from a different verfrnn of the Bible which says "Peace on earth to men of goodwill." Christmas, I suppose, is still a religious celebration, not merely a day put on the calendar for the benefit of merchants. ENGEL v. VITALE. 443 421 DouGLAs, J., concurring. making religion an active force in our lives.9 But "if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government." McGowan v. Maryland, 366 U. S. 420, 563 ( dissenting opinion). By reason of the First Amendment government is commanded "to have no interest in theology or ritual" ( id., at 564), for on those matters "government must be neutral." Ibid. The First Amendment leaves the Government in a position not of hostility to religion but of neutrality. The philosophy is that the atheist or agnostic-the nonbeliever- is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests. My problem today would be uncomplicated but for Everson v. Board of Education, 330 U. S. 1, 17, which allowed taxpayers' money to be used to pay "the bus fares of parochial school pupils as a part of a general program under which" the fares of pupils attending public and other schools were also paid. The Everson case seems in retrospect to be out of line with the First Amendment. Its result is appealing, as it allows aid to be given to needy children. Yet by the same token, public funds could be used to satisfy other needs of children in parochial schools-lunches, books, and tuition being obvious examples. Mr. Justice Rutledge stated in dissent what I think is durable First Amendment philosophy: "The reasons underlying the Amendment's policy have not vanished with time or diminished in force. 9 Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amend• ment, provided in Article III that "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 444 OCTOBER TERM, 1961. STEWART, J., dissenting. 370 U.S. Now as when it was adopted the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all will embroil the state in their dissensions. Id., Par. 11." Id., pp. 53-54. What New York does with this prayer is a break with that tradition. I.therefore join the Court in reversing the judgment below. MR. JuSTICE STEWART, dissenting. A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them ENGEL v. VITALE. 445 421 STEWART, J., dissenting. and upon their parents, their teachers, and their country. The Court today decides that in permitting this brief nondenominational prayer the school board has violated the Constitution of the United States. I think this decision 1s wrong. The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody's religion. For the state courts have made clear that those who object to reciting the prayer must be entirely free of any compulsion to do so, including any "embarrassments and pressures." Cf. West Virqinia State Board of Education v. Barnette, 319 U. S. 624. But the Court says that in permitting school children to say this simple prayer, the New York authorities have established "an official religion." With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an "official religion" is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation. The Court's historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation," a phrase nowhere to 446 OCTOBER TERM, 1961. STEWART, J., dissenting. 370 U.S. be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government. At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall our Crier has said, "God save the United States and this Honorable Court."• Both the Senate and the House of Representatives open their daily Sessions with prayer.2 Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God. 3 1 See Warren, The Supreme Court in United States History, Vol. 1, p. 469. 2 See Rule III, Senate Manual, S. Doc. No. 2, 87th Cong., 1st Sess. See Rule VII, Rules of the House of Representatives, H. R. Doc. No. 459, 86th Cong., 2d Sess. 3 For example: On April 30, 1789, President George Washington said: " . .. it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute with success the functions allotted to his charge. In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States .... "Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall ENGEL v. VITALE. 447 421 STEWART, J., dissenting. Footnote 3-Continued. take my present leave; but not without resorting once more to the benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend." On March 4, 1797, President John Adams said: "And may that Being who is supreme over all, the I'atron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence." On 21.farch 4, 1805, President Thomas Jefferson said: " ... I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations." On March 4, 1809, President James Madison said: "But the source to which I look . . . is in . . . my fellowcitizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will under every difficulty be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future." [Footnote 3 continued on p. 448] 448 OCTOBER TERM, 1961. STEWART, J., dissenting. 370U.S. Footnote 3-Continued. On March 4, 1865, President Abraham Lincoln said: ". . . Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.' "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations." On March 4, 1885, President Grover Cleveland said: " . .. And let us not trust to human effort alone, but humbly acknowledging the power and goodness of Almighty God, who presides over the destiny of nations, and who has at all times been revealed in our country's history, let us invoke His aid and His blessing upon our labors." On March 5, 1917, President Woodrow Wilson said: ". . . I pray God I may be given the wisdom and the prudence to do my duty in the true spirit of this great people." On March 4, 1933, President Franklin D. Roosevelt said: "In this dedication of a Nation we humbly ask the blessing of God. May He protect each and every one of us. May He guide me in the days to come." On January 21, 1957, President Dwight D. Eisenhower said: "Before all else, we seek, upon our common labor as a nation, the blessings of Almighty God. And the hopes in our hearts fashion the deepest prayers of our whole people." On January 20, 1961, President John F. Kennedy said: "The world is very different now. . . . And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe-the belief that the rights of man come ENGEL v. VITALE. 449 421 STEWART, J., diSSE'nting. The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion.4 One of the stanzas of "The Star-Spangled Banner," made our National Anthem by Act of Congress in 1931,5 contains these verses: "Blest with victory and peace, may the heav'n rescued land Praise the Pow'r that hath made and preserved us a nation! Then conquer we must, when our cause it is just, And this be our motto 'In God is our Trust.' " In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words "one Nation under God, indivisible, with liberty and justice for all." G In 1952 Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer.1 Rince 1865 the words "IN GOD WE TRUST" have been impressed on our coins.ij not from the generosity of the state but from the hand of God. "With a good conscience our only sure reward, with history th<' final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own." My brother DOUGLAS says that the only question before us is whether government "can constitutionally finance a religious exercise." The official chaplains of Congress arc paid with public money. So are military chaplains. So are state and federal prison chaplain~. 5 36 U.S. C. § 170. 6 36 U. S. C. § 172. 7 36 U. S. C. § 185. s 13 Stat. 517,518; 17 Stat. 427; 35 Stat. 164; 69 Stat. 290. Thr current provisions are embodied in 31 U.S. C. §§ 324, 324a. 450 OCTOBER TERM, 1961. STEWART, .T., dissenting. 370 U.S. Countless similar examples could be listed, but there is no need to belabor the obvious.9 It was all summed up by this Court just ten years ago in a single sentence: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306, 313. I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an "official religion" in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nationtraditions which come down to us from those who almost two hundred years ago avowed their "firm Reliance on the Protection of divine Providence" when they proclaimed the freedom and independence of this brave new world.10 I dissent. 9 I am at a loss to understand the Court's unsupported ipse dixit that these official expressions of religious faith in and reliance upon a Supreme Being "bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance." See ante, p. 435, n. 21. I can hardly think that the Court means to say that the First Amendment imposes a lesser restriction upon the Federal Government than does the Fourteenth Amendment upon the States. Or is the Court suggesting that the Constitution permits judges and Congressmen and Presidents to join in prayer, but prohibits school children from doing so? 10 The Declaration of Independence ends with this sentence: "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." ST A TE BD. OF INS. v. TODD SHIPYARDS. 451 Syllabus. STA TE BOARD OF INSURANCE ET AL. v. TODD SHIPYARDS CORP. CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME JUDICIAL DISTRICT. No. 144. Argued March 21, 1962.- Decided June 25, 1962. Respondent is incorporated and domiciled in New York; but it does business and owns real and personal property in Texas. It sued to recover taxes levied and collected by Texas on insurance cover• ing its property in Texas. All transactions pertaining to such insurance took place outside of Texas. The insurers were domi• ciled in London and were not licensed in Texas and did no business and had no office or agents in Texas. The insurance was bought and issued in New York and the premiums thereon and claims thereunder were payable in New York. Held: In the light of the history and provisions of the McCarran·Ferguson Act, 59 Stat. 33, the Texas tax on these wholly out•of-state transactions is invalid. Pp. 452--458. 340 S. W. 2d 339, affirmed. Bob E. Shannon and Fred B. Werkenthin, Assistant Attorneys General of Texas, argued the cause for petitioners. With them on the briefs were Will Wilson, Attorney General, C. K. Richards and Coleman Gay II I, Assistant Attorneys General. Charles R. Vickery, Jr. argued the cause for respondent. With him on the briefs was Frank A. Liddell. Cloyd Laporte and John Mason Harding filed a brief for the Church Fire Insurance Corp. et al., as amici curiae, urging affirmance. Jack P. F. Gremillion, Attorney General of Louisiana, filed a brief for the State of Louisiana, as amicus curiae, urging reversal. 452 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. MR. JUSTICE DouGLAS delivered the opinion of the Court. When we held in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, that the modern business of insurance was "interstate commerce," we put it in a category which Congress could regulate and which, if our prior decisions controlled, could not in some respects be regulated by the States, even in absence of federal regulation. See Frankfurter, The Commerce Clause (1937); Rutledge, A Declaration of Legal Faith (1947). Congress promptly passed the 1,1cCarran-Ferguson Act, 59 Stat. 33, 15 U. S. C. § 1011, which provided that the regulation and taxation of insurance should be left to the States, without restriction by reason of the Commerce Clause.1 Subsequently, by force of the McCarran-Ferguson Act, we upheld the continued taxation and regulation by the States of interstate insurance transactions. Prudential Ins. Co. v. Benjamin, 328 U. S. 408. Prior to the South-Eastern Underwriters decision, we had given broad scope to local regulation of the insurance business. Osborn v. Ozlin, 310 U. S. 53; Hoopeston Canning Co. v. Cullen, 318 U. S. 313. The Osborn case upheld a Virginia requirernent that insurance companies authorized to do business in that State must write policies through resident agents. The Hoopeston case, while it involved the making of out-of-state insurance 1 15 U. S. C. § 1011 provides: "Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such busine!;S by the several States." 15 U.S. C. § 1012 provides, so far as relevant here: "(a) The business of insurance, and every person engaged therem, shall be subject to the laws of the several States which relate to the regulation or taxation of such business." STATE BD. OF INS. v. TODD SHIPYARDS. 453 451 Opinion of the Court. contracts, also involved servicing of policies in New York, the regulating State. Here, unlike the Osborn and Hoopeston cases, the insurance companies carry on no activities within the State of Texas. Of course, the insured does business in Texas and the property insured is located there. It is earnestly argued that, unless the philosophy of the Osborn and Hoopeston decisions is to be restricted, the present Texas tax 2 on premiums paid out-of-state on out-of-state contracts should be sustained. We are urged to follow the approach of the Osborn and Hoopeston decisions, look to the aspects of the insurance transactions taken as a whole, and decide that there are sufficient contacts with Texas to justify this tax under the requirements of due process. Were the Osborn and Hoopeston cases and the bare bones of the McCarran-Ferguson Act our only criteria for decision, we would have presented the question whether three prior decisions-Allgeyer v. Loui,siana, 165 U. S. 578; St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346; Connecticut General Life Ins. Co. v. Johnson, 303 U. S. 77-have continuing vitality. The first two were distinguished in the Osborn (310 U.S., at 66-67) and Hoopeston (318 U.S., at 318-319) cases. The Allgeyer case held that Louisiana by reason of the Due Process Clause of the Fourt€enth Amendment could not make it a misdemeanor 2 14 Vernon's Tex. Civ. Stat., 1952 (Cum. Supp. 1961), Art. 21.38, § 2 (e) provides: "If any person, firm, association or corporation shall purchase from an insurer not licensed in the State of Texas a policy of insurance covering risks within this State in a manner other than through an insurance agent licensed as such under the laws of the State of Texas, such person, firm, association or corporation shall pay to the Board a tax of five per cent (5%) of the amount of the gross premiums paid by such insured for such insurance. Such tax shall be paid not later than thirty (30) days from the date on which such premium is paid to the unlicensed insurer." 454 OCTOBER TER:\1, 1961. Opinion of the Court. 370 C. S. to effect insurance on Louisiana risks with an insurance company not licensed to do business in Louisiana, where the insured through use of the mails contracted in ~ew York for the policy. The St. Lou-is Cotton Compress case held invalid under the Due Process Clause an Arkansas tax on the premiums paid for a policy on Arkansas risks, made with an out-of-state company havin~ no office or agents in Arkansas. The Connecticut General Life Insurance case held invalid under the Due Process Clause a California tax on premiums paid in Connecticut by one insurance company to another for reinsurance of life insurance policies written in California on California residents, even though both insurance companies were authorized to do business in California. The Court stated: "All that appellant did in effecting the reinsurance was done without the state and for its transaction no privilege or license by California was needful. The tax cannot be sustained either as laid on property, business done, or transactions carried on within the state, or as a tax on a privilege granted by the state." 303 U. S., at 82. The Trxas C'ourt of Civil Appeals, 340 R. W. 2d 339. and the Texas Supreme C'ourt. feeling bound hy these decisions, held the tax on premiums unconstitutional, 162 Tex. 8, 343 S. W. 2d 241. \Ve granted certiorari. 368 u. s. 810. The insurance transactions involved in the present litigation take place entirely outside Texas. The insurance, which is principally insurance against loss or liability arising from damage to property, is negotiated and paid for outside Texas. The policies are issued outsidr Texas. All losses arising under the policies are adjusted and paid outside Texas. The insurers are not licensed to do busiSTATE BD. OF INS. v. TODD SHIPYARDS. 455 451 Opinion of the Court. ness in Texas, have no office or place of business in Texas, do not solicit business in Texas, have no agents in Texas, and do not investigate risks or claims in Texas. The insured is not a domiciliary of Texas but a New York corporation doing business in Texas. Losses under the policies are payable not to Texas residents but to the insured at its principal office in New York City. The only connection between Texas and the insurance transactions is the fact that the property covered by the insurance is physically located in Texas. We need not decide de nova whether the results (and the reasons given) in the Allgeyer, St. Louis Cotton Compress, and Connecticut General Life Insurance decisions are sound and acceptable. For we have in the history of the McCarran-Ferguson Act an explicit, unequivocal statement that the Act was so designed as not to displace those three decisions. The House Report stated: "It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court, as, for instance, in Allgeyer v. Louisiana (165 U. S. 578), St. Louis Cotton Compress Co. v. Arkansas (260 U. S. 346), and Connecticut General Insurance Co. v. Johnson (303 U.S. 77), which hold, inter alia, that a State does not have power to tax contracts of insurance or reinsurance entered into outside its jurisdiction by individuals or corporations resident or 456 OCTOBER TERM, 1961. Opinion of the Court. 370U. S. domiciled therein covering risks within the State or to regulate such transactions in any way." H. R. Rep. No. 143, 79th Cong., 1st Sess., p. 3. Senator McCarran, after reading the foregoing part of the House Report during the Senate debate, stated," ... we give to the States no more powers than those they previously had, and we take none from them." 91 Cong. Rec. 1442. So, while Congress provided in 15 U. S. C. § 1012 (a) that the insurance business "shall be subject to the laws of the several States which relate to the regulation or taxation of such business," 3 it indicated without ambiguity that such state "regulation or taxation" should be kept within the limits set by the Allgeyer, St. Louis Cotton Compress, and Connecticut General Life Insurance decisions. The power of Congress to grant protection to interstate commerce against state regulation or taxation (Bethlehem Steel Co. v. State Board, 330 U. S. 767, 775- 776; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 235-236) or to withhold it (In re Rahrer, 140 U. S. 545, 560 et seq.; Prudential Ins. Co. v. Benjamin, supra) is so complete• tliat its ideas of policy should prevail. s Supra, note 1. 4 As we stated in Prudential Ins. Co. v. Benjamin, supra, at 434: "The power of Congress over commerce exercised entirely without reference to coordinated action of the states is not restricted, except as the Constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. Its plenary scope enables Congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons. That power does not run down a one-way street or one of narrowly fixed dimensions. Congress may keep the way open, confine it broadly or closely, or close it entirely, subject only to the restrictions placed upon its authority by other constitutional provisions and the requirement that it shall not invade the domains of action reserved exclusively for the states." ST ATE BD. OF INS. v. TODD SHIPYARDS. 457 451 Opinion of the Court. Congress, of course, does not have the final say as to what constitutes due process under the Fourteenth Amendment. And while Congress has authority by § 5 of that Amendment to enforce its provisions (Ex parte Virgini,a, 100 U.S. 339; Monroe v. Pape, 365 U.S. 167), the McCarran-Ferguson Act does not purport to do so. We have, of course, freedom to change our decisions on the constitutionality of laws. Smith v. Allwright, 321 U. S. 649, 665. But the policy announced by Congress in the McCarran-Ferguson Act was one on which the industry had reason to rely since 1897, when the Allgeyer decision was announced; and we are advised by an .amicus brief how severe the impact would be on small insurance companies should the old rule be changed. When, therefore, Congress has posited a regime of state regulation on the continuing validity of specific prior decisions (see Federal Trade Comm'n v. Travelers Health Assn., 362 U.S. 293, 301-302), we should be loath to change them. We have accepted the status quo in comparable situations. After this Court held in Southern Pacific Co. v. Jensen, 244 U. S. 205, that a State could not provide compensation to stevedores doing maritime work, Congress enacted the Longshoremen's Act. See S. Rep. No. 973, 69th Cong., 1st Sess., p. 16; H. R. Rep. No. 1767, 69th Cong., 2d Sess., p. 20. In Davis v. Department of Labor, 317 U. S. 249, we took note of the passage of laws which "accepted the Jensen line of demarcation between state and federal jurisdiction" (id., at 256), which line we also accepted in spite of the fact that the Jensen case had become in the eyes of some a derelict in the stream of the law. In Toolson v. New York Yankees, Inc., 346 U. S. 356, 357, we refused to re-examine a prior decision holding baseball not to be covered by the antitrust laws, stating that "[t]he business has thus been left for thirty years to develop, on the understanding that it was not sub- 663026 0-62- H 458 OCTOBER TERM, 1961. BLACK, J., dissenting. 370U.S. ject to existing antitrust legislation." In that case Congress had remained silent, not changing the law. Here Congress tailored the new regulations for the insurance business with specific reference to our prior decisions. Since these earlier decisions are part of the arch on which the new structure rests, we refrain from disturbing them lest we change the design that Congress fashioned. Affirmed. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. MR. JUSTICE BLACK, dissenting. In holding that the McCarran-Ferguson Act withdrew from the States the power to tax the ownership and use of insurance policies on property located within their borders merely because those policies were made by representatives of the insurer and the insured in another State, I think the Court places an unwarranted construction upon that Act which may seriously impair the capacity of Texas and other States to provide and enforce effective regulation of the insurance business. The Texas statute held invalid was enacted by the State Legislature in 1957 in order to protect the State's comprehensive supervision of insurance companies and their policies from being undercut by the practice of insuring Texas property with insurance companies not authorized to do business in that State. Prior to 1957, the whole cost of the Texas program had been placed upon those insurance companies which had subjected themselves to Texas regulation and taxation by qualifying to do business in the State. The 1957 statute was passed for the express purpose of equalizing that burden by placing a tax upon the purchasers of ST ATE BD. OF INS. v. TODD SHIPYARDS. 459 451 BLACK, J., dissenting. unregulated insurance roughly equal to that imposed directly upon regulated companies. In this way the State tried to protect its qualified and regulated companies from unfair competition by companies which could sell insurance on Texas property cheaper because they did not have to pay their part of the cost of the Texas insurance regulation program. The Court's construction of the McCarran-Ferguson Act bars Texas from providing this sort of protection to regulated companies. This holding seems to me to threaten the whole foundation of the Texas regulatory program for it plainly encourages Texas residents to insure their property with unregulated companies and discourages out-of-state companies from qualifying to do business in and subjecting themselves to regulation and taxation by the State of Texas. I cannot believe that an Act which was basically designed to leave the power to regulate and tax insurance companies to the States was intended to have any such effect. The McCarran-Ferguson Act "declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States"-a declaration which is not qualified by any other language of the Act. Nothing in the legislative history which the Court relies upon persuades me that we should read this Act in a way which so seriously impairs the power of the States to discharge their responsibilities under the Act to provide a comprehensive, effective, well-integrated program for regulating insurance on property within their borders. I think the McCarran-Ferguson Act left Texas with adequate power to place a tax on the ownership and use of insurance policies covering the vast properties owned and operated by this respondent in Texas, and I therefore dissent. 460 OCTOBER TERM, 1961. Syllabus. 370 u. s. UNITED STA TES v. BORDEN COMPANY ET AL. APPEAL FROM THE UNITED STATES DfSTRICT COURT FOR THE NORTHERN DISTRrCT OF ILLINOIS. No. 439. Argued April 24-25, 1962.-Decided June 25, 1962. The Government brought this suit to enjoin appellees from selling fluid milk in the Chicago area at prices which discriminate between independently owned grocery stores and grocery store chains, in violation of § 2 (a) of the Clayton Act. The District Court found that the pricing plan of each appellee was a prima facie violation of § 2 (a); but it concluded that these discriminatory prices were justified under the proviso of § 2 (a) which permits price differentials which make only "due allowance for differences in the cost of manufacture, sale, or delivery." In doing so, it relied upon a showing by appellees that the average cost of sales and deliveries to all chain stores was lower than the average cost of sales and deliveries to all independent stores. Held: The class cost justifications submitted to the District Court by appellees did not satisfy their burden under § 2 (b) of showing that their respective discriminatory pricing plans reflected only a "due allowance" for actual cost differences, since there was not a sufficient resemblance of the individual members of each class in the essential cost-determinative factors on which the classifications were based. Pp. 461-472. Reversed and remanded. Richard A. Solomon argued the cause for the United States. With him on the briefs were Solicitor General Cox, Assistant Attorney General Loevinger and Elliott H. Moyer. Stuart S. Ball argued the cause for The Borden Company, appellee. With him on the briefs was H. Blair White. John Paul Stevens argued the cause for Bowman Dairy Company, appellee. With him on the briefs was L. Edward Hart. UNITED STATES v. BORDEN CO. 461 460 Opinion of the Court. MR. JusTICE CLARK delivered the opinion of the Court. This is a direct appeal 1 from a judgment dismissing the Government's Section 2 (a) Clayton Act 2 suit in which it sought an injunction against the selling of fluid milk products by the appellees, The Borden Company and Bowman Dairy Company, at prices which discriminate between independently owned grocery stores and grocery store chains. The District Court in an unreported decision found the pricing plan of each dairy to be a prima facie violation of § 2 (a) but concluded that these discriminatory prices were legalized by the cost justification proviso of§ 2 (a), which permits price differentials as long as they "make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." To review the Government's contention that the District Court had improperly permitted cost justifications based on the average cost of dealing with broad groups of customers unrelated in 1 Jurisdiction is conferred under § 2 of the Expediting Act of February 11, 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29. 2 "SEc. 2. (a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, ... to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, ... and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered .... " 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. § 13 (a). 462 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. cost-saving factors,3 we noted probable jurisdiction, 368 U. S. 924, and directed the parties to brief and argue the case separately as to each appellee, 368 U. S. 963. However, finding the same problem at the root of the cost justifications of each appellee, we have dealt with both in this single opinion. We have concluded that the class cost justifications submitted to the District Court by the appellees did not satisfy their burden of showing that their respective discriminatory pricing plans reflected only a "due allowance" for cost differences. By way of background, we first point out that the present appeal is merely a glimpse of protracted litigation between the parties which began in 1951 and which has not yet seen its end. The original complaint charged violations of §§ 1 and 2 of the Sherman Act and § 2 (a) of the Clayton Act. The District Court dismissed the suit, holding that there was no proof of the alleged Sherman Act violations and that no equitable relief was necessary under the Clayton Act charge because appellees were already restrained by a consent decree entered in a private antitrust case. 111 F. Supp. 562. On direct appeal we affirmed the dismissal of the Sherman Act charges but held erroneous the refusal to grant an injunction on the Clayton Act claim solely because of the existence of the private decree. 347 U. S. 514. On remand the case was reopened and on its prima facie case the Government introduced recent general price schedules and illustrated their effect on sample stores to show that each appellee was still engaged in illegal price discrimina- 3 Bowman's contention that the Government by stipulation limited itself to specific objections which do not include the present one is without foundation in the record. At the time the stipulation was proposed, the trial court made it quite clear that the Government by so stipulating was not waiving its right to argue the legal sufficiency of the proffered cost studies. UNITED ST ATES v. BORDEN CO 463 460 Opinion of the Court. tions notwithstanding the consent decree. In defense the appellees each introduced voluminous cost studies in justification of their pricing systems. The entire case was submitted via stipulations, depositions, and briefs. There was no dispute as to the existence of price discrimination; the sole question was whether the differences in price reflected permissible allowances for variances in cost. In view of our disposition, we need not relate the facts in detail. Both appellees are major distributors of fluid milk products in metropolitan Chicago. The sales of both dairies to retail stores during the period in question ,vere handled under plans which gave most of their customers- the independently owned stores-percentage discounts off list price which increased with the volume of their purchases to a specified maximum while granting a few customers-the grocery store chains-a flat discount without reference to volume and substantially greater than the maximum discount available under the volume plan offered independent stores. These discounts were_ made effective through schedules which appeared to cover all stores; however, the schedules were modified by private letters to the grocery chains confirming their higher discounts! Although the two sets of discounts were never • Borden in June of 1954 issued the following discount schedull." to "be applied to all purchases of Borden's fresh milk": Percent of Average converted units per day: di.scounts 0- 24 ............................................ 0 :25- 74 ............................................ 2 75-149 ............................................ 3 150 and over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 At this same time, letters were sent to The Great Atlantic and Pacific Tea Company and The Jewel Food Stores granting them flat 8½% discounts. A few of the larger independents by special arrangement were given an additional 1½% discount, thereby raising their total discount to 5%%. [Footnote 4 continued on p. 464] 464 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. officially labeled ''independent" and "chain" prices, they were treated, called, and regarded as such throughout the record. To support their defense that the disparities in price between independents and chains were attributable to differences in the cost of dealing with the two types of In September 1955, Borden discontinued the above discount system and utilized a net price scheme which resulted in even greater disparities between chains and independents. Bowman in June of 1954 operated under the following "Resale Store Discount Schedule": Percent of Average converted points per day: discounts 0 to 10 .................................. 3.0 to 3.4 10 to 20 .................................. 3.4 to 3.8 20 to 30 .................................. 3.8 to 4.2 30 to 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 to 4.6 40 to 50 .................................. 4.6 to 5.0 50 to 60 .................................. 5.0 to 5.2 60 to 70 .................................. 5.2 to 5.4 70 to 80 .................................. 5.4 to 5.6 80 to 90 .................................. 5.6 to 5.8 90 to 100 .................................. 5.8 to 6.0 100 to 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 to 6.2 110 to 120 .................................. 6.2 to 6.4 120 to 130 .................................. 6.4 to 6.6 130 to 140 .................................. 6.6 to 6.8 140 to 150 .................................. 6.8 to 7.0 This schedule was modified in August by the addition of the following discounts: Percent of Average converted points per day: discounts 150 to 200 .................................. 7.0 to 8.0 Over 200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.0 During this same period Bowman by letter granted The Great Atlantic and Pacific Tea Company and The Kroger Company flat 11 % discounts. Goldblatt Bros., also a multi-store operation, was granted a flat 8½%- In 1955 and again in 1956 Bowman modified the brackets and percentages of its discount schedules, but not in a manner which reduced the disparity between independents and chains. UNITED STATES v. BORDEN CO. 465 460 Opinion of the Court. customers, the appellees introduced cost studies which will be described separately because of their differing content and analytical approach. The Borden pricing system produced two classes of customers. The two chains, A & P and Jewel, with their combined total of 254 stores constituted one class. The 1,322 independent stores, grouped in four brackets based on the volume of their purchases, made up the other. Borden's cost justification was built on comparisons of its average cost per $100 of sales to the chains in relation to the average cost of similar sales to each of the four groups of independents. The costs considered were personnel (including routemen, clerical and sales employees), truck expenses, and losses on bad debts and returned milk. Various methods of cost allocation were utilized: Drivers' time spent at each store was charged directly to that store; certain clerical expenses were allocated between the two general classes; costs not susceptible of either of the foregoing were charged to the various stores on a per stop, per store, or volume basis. Bowman's cost justification was based on differences in volume and methods of delivery. It relied heavily upon a study of the cost per minute of its routemen's time. It determined that substantial portions of this time were devoted to three operations, none of which were ever performed for the 163 stores operated by its two major chain customers.5 These added work steps arose from the method of collection, i. e., cash on delivery and the delayed collections connected therewith, and the performance of "optional customer services." The customer services, performed with varying frequency depending upon the circumstances, included "services that the driver may be requested to do, such as deliver the order inside, place the containers in a refrigerator, rearrange 5 The third chain, Goldblatt Bros., also did not take these services. 466 OCTOBER TERM, 1961. Opinion of the Court. 370U.S. containers so that any product remaining unsold from yesterday will be sold first today, leave cases of products at different spots in the store, etc." The experts conducting the study calculated as to these elements a "standard" cost per unit of product delivered: the aggregate time required to perform the services, as determined by sample time studies,-was divided by the total number of units of product delivered. In essence, the Bowman justification was merely a comparison of the cost of these services in relation to the disparity between the chain and independent prices. Although it was shown that the five sample independents in the Government's prima facie case received the added services," it was not shown or found that all 2,500 independents supplied by Bowman partook of them. On the basis of its studies Bowman estimated that about two-thirds of the independent stores received the "optional customer services" on a daily basis and that "most store customers pay the driver in cash daily." On these facts, stated here in rather summary fashion, the trial court held that appellees had met the requirements of the proviso of § 2 (a) on the theory that the general cost differences between chain stores as a class and independents as a class justified the disparities in price reflected in appellees' schedules. In so doing the trial court itself found "the studies ... imperfect in 6 The contention is made that the Government limited its prima facie case to a few stores on some routes and that therefore cost justification was only necessary as to them. This overlooks the fact that sampling has long been a recognized technique in price discrimination cases and that this offering was in support of the Government's position, found valid by the trial court, that the entire Chicago pricing scheme of each appellee, as evidenced by its published price lists, was in violation of § 2 (a). In addition, appellee's cost justifications were not limited to the Government's sample stores. UNITED STATES v. BORDEN CO. 467 460 Opinion of the Court. some respects " It noted the "seemingly arbitrary" nature of a classification resulting "in percentage discounts which do not bear a direct ratio to differences in volume of sales." But it found "this mode of classification is not wholly arbitrary-aft.er all, most chain stores do purchase larger volumes of milk than do most independent stores." 1 We believe it was erroneous for the trial court to permit cost justifications based upon such classifications. The burden, of course, was upon the appellees to prove that the illegal price discrimination, which the Government claimed and the trial court found present, was immunized by the cost justification proviso of § 2 (a). Such is the mandate of § 2 (b) as interpreted by this Court in Federal Trade Comm.'n v. Morton Salt Co., 334 U.S. 37, 44-45 (1948).8 There can be no doubt that the § 2 (a) proviso as amended by the Robinson-Patman Act contemplates, both in express wording and legislative history, a showing of actual cost differences resulting from the differing methods or quantities in which the commodities in question are sold or delivered.9 The only 7 Even the trial court was unwilling to give its "stamp of approval to all pricing policies and practices revealed by the evidence." But it concluded that to enjoin such practices would lead to regulation and would require the court continually "to pass judgment on the pricing practices of these defendants," a matter which might better be handled by proceedings before the Federal Trade Commission. • Sec. 2 (b). "Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the primafacie case thus made by showing justification shall be upon the person charged with a violation of this section .... " 49 Stat. 1526, 15 U.S. C. § 13 (b). 9 For a collection and discussion of the pertinent legislative history as well as the cases and treatises on the § 2 (a) proviso, see Rowe, Price Discrimination Under the Robinson-Patman Act, c. 10 (1962). 468 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. question before us is how accurate this showing must be in relation to each particular purchaser. Although the language of the proviso, with some support in the legislative history,10 is literally susceptible of a construction which would require any discrepancy in price between any two purchasers to be individually justified, the proviso has not been so construed by those charged with its enforcement. The Government candidly recognizes in its briefs filed in the instant case that "[a]s a matter of practical necessity ... when a seller deals with a very large number of customers, he cannot be required to establish different cost-reflecting prices for each customer." In this same vein, the practice of grouping customers for pricing purposes has long had the approval of the Federal Trade Commission.11 \Ve ourselves have noted the "elusiveness of cost data" in a Robinson- Patman Act proceeding. Automatic Canteen Co. v. Federal Trade Comm'n, 346 U. S. 61, 68 (1953). In short, to completely renounce class pricing as justified by class accounting would be to eliminate in practical effect the cost justification proviso as to sellers having a large number of purchasers, thereby preventing such sellers from passing on economies to their customers. It seems hardly necessary to say that such a result is at war with Congress' language and purpose. But this is not to say that price differentials can be justified on the basis of arbitrary classifications or even 1° For instance, the Chairman of the Conference on the Bill reported to the House: "The differential granted a particular customer must be traceable to some difference between him and other particular customers, either in the quantities purchased by them or in the methods by which they are purchased or their delivery taken." 80 Cong. Rec. 9417 (1936). 11 For a discussion of the Commissi9n's position in this regard, S('e Rowe, op. cit., supra, note 9, § 10.6. UNITED STATES v. BORDEN CO. 469 460 Opinion of the Court. classifications which are representative of a numerical majority of the individual members. At some point practical considerations shade into a circumvention of the proviso. A balance is struck by the use of classes for cost justification which are composed of members of such selfsameness as to make the averaging of the cost of dealing with the group a valid and reasonable indicium of the cost of dealing with any specific group member.12 High on the list of "musts" in the use of the average cost of customer groupings under the proviso of § 2 (a) is a close resemblance of the individual members of each group on the essential point or points which determine the costs considered. In this regard we do not find the classifications submitted by the appellees to have been shown to be of sufficient homogeneity. Certainly, the cost factors considered were not necessarily encompassed within the manner in which a customer is owned. Turning first to Borden's justification, we note that it not only failed to show that the economies relied upon were isolated within the favored class but affirmatively revealed that members of the classes utilized were substantially unlike in the cost saving aspects considered. For instance, the favorable cost comparisons between the chains and the larger independents were for the greater part controlled by the higher average volume of the chain stores in comparison to the average volume of the 80-member class to which these independents were relegated. The District Court allowed this manner of justification because "most chain stores do purchase larger volumes of milk than do most independent stores." However, such a grouping for cost justification purposes, composed as it is of some independents 12 Advisory Committee on Cost Justification, Report to the United States Federal Trade Commission ( 1956), p. 8. 470 OCTOBER TERM, 1961. Opinion of the Court. 370 u. s. having volumes comparable to, and in some cases larger than, that of the chain stores, created artificial disparities between the larger independents and the chain stores. It is like averaging one horse and one rabbit. As the Federal Trade Commission said in In the Matter of Champion Spark Plug Co., 50 F. T. C. 30, 43 (1953): "A cost justification based on the difference between an estimated average cost of selling to one or two large customers and an average cost of selling to all other customers cannot be accepted as a defense to a charge of price discrimination." This volume gap between the larger independents and the chain stores was further widened by grouping together the two chains, thereby raising the average volume of the stores of the smaller of the two chains in relation to the larger independents. Nor is the vice in the Borden class justification solely in the paper volumes relied upon, for it attributed to many independents cost factors which were not true indicia of the cost of dealing with those particular consumers. To illustrate, each independent was assigned a portion of the total expenses involved in daily cash collections, although it was not shown that all independents paid cash and in fact Borden admitted only that a "large majority" did so. Likewise the details of Bowman's cost study show a failure in classification. Only one additional point need be made. Its justification emphasized its costs for "optional customer service" and daily cash collection with the resulting "delay to collect." As shown by its study these elements were crucial to Bowman's cost justification. In the study the experts charged all independents and no chain store with these costs. Yet, it was not shown that all independents received these services daily or even on some lesser basis. Bowman's studies indicated only that a large majority of independents took these services on a daily basis. Under such circumstances UNITED STATES v. BORDEN CO. 471 460 Opinion of the Court. the use of these cost factors across the board in calcula ting independent store costs is not a permissible justification. for it possibly allocates costs to some independents whose mode of purchasing does not give rise to them. The burden was upon the profferer of the classification to negate this possibility, and this burden has not been met here. If these factors control the cost of dealing, then their presence or absence might with more justification be the password for admission into the various price categories. 13 The appellees argue in the alternative that their cost justifications can be sufficiently unscrambled to remove any taint the Court may find in them and still show a cost gap sufficient to justify the price disparity between the chains and any independent. This mass of underlying statistical data not considered by the trial court and now tied together by untried theories can best be evaluated on remand, and we therefore do not consider its sufficiency here. In sum, the record here shows that price discriminations have been permitted on the basis of cost differences between broad customer groupings, apparently based on the nature of ownership but in any event not shown to be so homogeneous as to permit the joining together of these purchasers for cost allocations purposes. If this is the only justification for appellees' pricing schemes, they are illegal. We do not believe that an appropriate decree would require the trial court continuously to "pass judgment on the pricing practices of these defendants." As to the issuance of an injunction, however, the case is now 13 Another suspect feature is that classifications based on services received by independents were apparently frozen-making it impossible for them to obtain larger discounts by electing not to receive the cost-determinative services-with no justifiable business reason offered in support of the practice. 472 OCTOBER TERM, 1961. DOUGLAS, J., concurring. 370 U.S. 11 years old and we have no way of knowing whether equitable relief is in order. Certainly a relevant factor in such consideration would be whether the practices described above are still being followed in any form. This the record here does not show. Such matters can only be ascertained upon the presently existing facts and the careful application of the principles we have enunciated. For that purpose the case is Reversed and remanded. MR. JusTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JusTICE DOUGLAS, concurring. This is not a case that involves problems of centralized purchasing by a large enterprise for all its constituent members, where the volume involved reduces the unit cost. We have here purchases by constituent members of chain stores of milk and milk products that will be sold at the particular store. The competitor is not a member of a competing chain or, if it is, the chain of which it is a part is a smaller one. The costs studies here involved have little, if any, relation to centralized management. They in the main pertain to two factors of cost. First, is the volume of sales of milk and milk products to the individual store and the method of payment. Second, the degree to which the store relieves the seller of milk and milk products from the costs of handling the product as it enters the store, of stacking or storing the products, and of returning the empty bottles or cartons. The changes in the Clayton Act made by the Robinson- Patman Act now before us were made to limit discounts as "instruments of favor and privilege and weapons of competitive oppression." S. Rep. No. 1502, 74th Cong., 2d Sess., p. 5; H. R. Rep. No. 2287, 74th Cong., 2d Sess., UNITED STATES v. BORDEN CO. 473 460 DouGLAS, J ., concurring. p. 9. The a11owance by § 2 (a) of "differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered" was explained as follows: "This limits the differences in cost which may justify price differentials strictly to those actual differences traceable to the particular buyer for and against whom the discrimination is granted, to the different methods of serving them, and to the different quantities in which they buy. "But such differentials whether they arise in operating or overhead cost must, as is plainly stated in the phrase quoted above, be those resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered. "This, in its plain meaning, permits differences in overhead where they can actually be shown as between the customers or classes of customers concerned, but it precludes differentials based on the imputation of overhead to particular customers, or the exemption of others from it, where such overhead represents facilities or activities inseparable from the seller's business as a whole and not attributable to the business of particular customers or of the particular customers concerned in the discrimination. It leaves open as a question of fact in each case whether the differences in cost urged in justification of a price differential-whether of operating or of overhead costs-is of one kind or the other. That is, whether or not it answers the above requirements as to differences resulting from differing methods or quantities in which such commodities are to such purchasers sold or delivered." H. R. Rep. No. 2287, supra, p. 10. (Italics added.) 663026 0-62-34 474 OCTOBER TERM, 1961. DouGLAS, J., concurring. 370U. S. While in some cases costs relevant to the issue of discrimination under the Robinson-Patman Act may be computed class by class, the only costs relevant here are those computed store by store. The question of cost of delivery to all stores in the favored chain is irrelevant, because overhead costs applicable to a business as a unit have no bearing on any of the cost formulae presented by this record. In the case of Bowman Dairy Co., as the Court points out, the company charged all independents for customer service rendered by Bowman's deliverymen whether the independents availed themselves of the service or not. Bowman also charged independents for the time and expense of daily cash collections and for the costs of delays in collecting. These items were charged to independents even though it was not shown that their system of payment was always in cash, rather than by central billings, the system used by the chains. In the Borden case an independent who purchased substantially larger quantities than the average chain store could not qualify for the discount the chain store obtained. This resulted because the independents were treated as one class, the chain stores as another class. As in Bowman the independents who did not make cash payments were treated as if they did; and they were not given the advantage which the chain stores enjoyed by reason of centralized billing even though they were on a credit basis. What was said in Champion Spark Plug Co., 50 F. T. C. 30, 43, is relevant here: "Respondent's cost of doing business undoubtedly varied as among its different customers. All of its selling expenses were not applicable on a proportionately equal basis to sales to all of its customers. However, in the absence of a sound basis for determining the actual cost of selling to particular cus460 UNITED STATES v. BORDEN CO. 475 DouaLAS, J., concurring. tomers, the sales to each customer must bear their proportionate share of the entire selling expense. A cost justification based on the difference between an estimated average cost of selling to one or two large customers and an average cost of selling to all other customers cannot be accepted as a defense to a charge of price discrimination." Where centralized purchasing for many stores takes place, the costs of dealing with the group as a class become relevant to the problem under § 2 (a). But where, as here, no centralized purchasing is involved, the store-by-store costs are the only criteria relevant to the § 2 (a) problem. Otherwise those with the most prestige get the largest discounts and the independent merchants are more and more forced to the wall. The case was argued as if the grant of discounts was a natural right and that the Act should be construed so as to make the granting of them easy. The Act reflects. however, a purpose to control practices that lead to monopoly and an impoverishment of our middle class. I would therefore read it in a way that preserves as much of our traditional free enterprise as possible. Free enterprise is not free when monopoly power is used to breed more monopoly. That is the case here unless store-bystore costs are used as the criteria for discounts. This case is thus kin to that in Moore v. Mead's Fine Bread Co., 348 U. S. 115, where the lush treasury of a chain was used to bring a local bakery to its knees. Here, as there, the chains obtain a "competitive advantage" not as a result "of their skills or efficiency" but as a consequence of other influences."' There price-cutting was *See Curtiss Candy Co., 44 F. T. C. 237, 267-268, 274; International Salt Co., 49 F. T. C. 138, 153-155, 157; Champion Spark Plug Co., 50 F. T. C. 30, 43. 476 OCTOBER TERM, 1961. HARLAN, J., dissenting. 370U.S. the weapon. Here it is the discount. Each leads to the same end-the aggrandizement of power by the chains and the ploughing under of the independents. The antitrust laws, of which the Robinson-Patman Act is a part, were designed to avert such an inquest on free enterprise. MR. JUSTICE HARLAN, dissenting. The Court treats this case as if the District Court had introduced novel and disruptive principles into the law of "cost justification" under § 2 (a) of the Clayton Act. Although I consider the respective cost studies much more adequate than the Court credits them with being, it is sufficient to say that, as I read the opinion below, the District Court judged their over-all adequacy in accordance with accepted principles of law in this field. The lower court indeed carefully refrained from giving unqualified approval to either set of cost studies, in substance merely holding (1) that the studies had been conscientiously prepared and prima facie appeared to justify generally the price discriminations arising from the appellees' discount practices ( and more particularly to justify those specifically relied on by the Government as "trial" samples); and (2) that, in light of the long-drawn-out history of this litigation, the appropriate disposition was to deny injunctive relief, allowing the Government to bring to the attention of the Federal Trade Commission any other specific price differentials which it believed not justifiable under these or other cost studies. This seems to me an eminently sensible and fair disposition of this stale litigation which has now been in the courts for nearly 12 years. I can see no point whatever in this Court sending the case back to the District Court for what will presumably amount to a third trial, especially when it is apparent that drastic changes in the UNITED STATES v. BORDEN CO. 477 460 HARLAN, J., dissenting. situation complained of by the Government have taken place since 1955. Had what the record now reveals been fully appreciated at the time the Jurisdictional Statement was considered, a summary disposition of the case would have been called for.* I would affirm. * The delays occasioned by the overcrowded docket of this Court as well as the nature of the issues in this litigation again point up the inadvisability of vesting sole appellate jurisdiction over this type of case in this Court. See Brown Shoe Co. v. United States, 370 U. S. 294, 357 ( dissenting and concurring opinion). 478 OCTOBER TERM, 1961. Syllabus. 370 u. s. MANUAL ENTERPRISES, INC., ET AL. v. DAY, POSTMASTER GENERAL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 123. Argued February 26-27, 1962.- Decided June 25, 1962. After an administrative hearing, the Judicial Officer of the Post Office Department issued a ruling barring a shipment of petitioners' magazines from the mails under 18 U.S. C. § 1461, on the grounds that (1) they were themselves "obscene," and (2) they gave information as to where "obscene" matter could be obtained. The magazines consisted largely of photographs of nude, or nearly nude, male models and gave the name of each model and each photographer and the latter's address. They also contained a number of advertisements by independent photographers offering for sale photographs of nude men. The Judicial Officer found that the magazines (1) were composed primarily, if not exclusively, for homosexuals and had no literary, scientific or other merit; (2) would appeal to the "prurient interest" of such sexual deviates, but would not have any interest for sexually normal individuals; (3) are read almost entirely by homosexuals, and possibly a few adolescent males; and (4) would not ordinarily be bought by normal male adults. In a suit by petitioners, the District Court sustained the administrative ruling and denied injunctive relief. The Court of Appeals affirmed. Held: The judgment is reversed. Pp. 479-519. 110 U. S. App. D. C. 78, 289 F. 2d 455, reversed. MR. JusTICE HARLAN, joined by MR. JUSTICE STEWART, concluded that: 1. These magazines are not "obscene" within the meaning of 18 U.S. C. § 1461, because, taken as a whole, they cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency. Pp. 481- 491. 2. The obscene-advertising proscription of § 1461 is not applicable unless the publisher knew that at least some of his advertisers MANUAL ENTERPRISES v. DAY. 479 478 Opinion of HARLAN, J. were offering to sell obscene material, and the evidence in this record is not sufficient to support a finding that petitioners had such knowledge. Pp. 491-495. MR. JosTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE DouGLAS, concluded that 18 U.S. C. § 1461 does not authorize the Postmaster General to employ any administrative process of his own to close the mails to matter which, in his view, falls within the ban of that section. Pp. 495--519. Stanley M. Dietz argued the cause for petitioners. With him on the brief was Edward J. Lynch. J. William Doolittle argued the cause for respondent. With him on the briefs were Solicitor General Cox, Assistant Attorney General Orrick, John G. Laughlin, Jr. and David L. Rose. MR. JUSTICE HARLAN announced the judgment of the Court and an opinion in which MR. JUSTICE STEWART joins. This case draws in question a ruling of the Post Office Department, sustained both by the District Court and the Court of Appeals, 110 U. S. App. D. C. 78, 289 F. 2d 455, barring from the mails a shipment of petitioners' magazines. That ruling was based on alternative determinations that the magazines ( 1) were themselves "obscene," and (2) gave information as to where obscene matter could be obtained, thus rendering them nonmailable under two separate provisions of 18 U. S. C. § 1461, known as the Comstock Act.' Certiorari was granted (368 1 Section 1461 of 18 U. S. C. provides in part: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and- "Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of 480 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 u. s. U. S. 809) to consider the claim that this ruling was inconsistent with the proper interpretation and application of § 1461, and with principles established in two of this Court's prior decisions. Roth v. United States, 354 U.S. 476; Smith v. California, 361 U. S. 147.2 Petitioners are three corporations respectively engaged in publishing magazines titled MANual, Trim, and Grecian Guild Pictorial. They have offices at the same address in Washington, D. C., and a common president, one Herman L. Womack. The magazines consist largely of photographs of nude, or near-nude, male models and give the names of each model and the photographer, such mentioned matters, articles, or things may be obtained or made .... "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. "Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years .... " 2 Because of our view of the case, we need not reach petitioners' third contention that, as applied in this instance, these Post Office procedures amounted to an unconstitutional "prior restraint" on the publication of these magazines. The petitioner in this case has not questioned the Post Office Department's general authority under § 1461 to withhold these magazines from the mails if they are obscene. If that question, discussed in the opinion of MR. JUSTICE BRENNAN, post, p. 495, may still be deemed open in this Court, see Milwaukee Publishing Co. v. Burleson, 255 U. S. 407, 421-422 (Brandeis, J., dissenting); cf. Hannegan v. Esquire, Inc., 327 U. S. 146, we do not think it should be decided except upon full-dress argument and briefing, which have not been afforded us here. MANUAL ENTERPRISES v. DAY. 481 478 Opinion of HARLAN, .J. together with the address of the latter. They also contain a number of advertisements by independent photographers offering nudist photographs for sale. On March 25, 1960, six parcels containing an aggregate of 405 copies of the three magazines, destined from Alexandria, Virginia, to Chicago, Illinois, were detained by the Alexandria postmaster, pending a ruling by his superiors at Washington as to whether the magazines were "nonmailable." After an eviden tiary hearing before the Judicial Officer of the Post Office Department there ensued the administrative and court decisions now under review. I. On the issue of obscenity, as distinguished from unlawful advertising, the case comes to us with the following administrative findings, which are supported by substantial evidence and which we, and indeed the parties, for the most part, themselves, accept: (1) the magazines are not, as asserted by petitioners, physical culture or "bodybuilding" publications, but are composed primarily, if not exclusively, for homosexuals, and have no literary. scientific or other merit; 3 (2) they would appeal to the "prurient interest" of such sexual deviates, but would not have any interest for sexually normal individuals; and (3) the magazines are read almost entirely by homosexuals, and possibly a few adolescent males; the ordinary male adult would not normally buy them. On these premises, the question whether these magazines are "obscene," as it was decided below and argued before us, was thought to depend solely on a determina- 3 The Judicial Officer found that "the publisher has admitted that the magazines are knowingly published to appeal to the male homosexual group," and that "The publisher of the issues here involved has deliberately planned these publications so that they would appeal to the male homosexual audience ... . " 482 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 u. s. tion as to the relevant "audience" in terms of which their "prurient interest" appeal should be judged. This view of the obscenity issue evidently stemmed from the belief that in Roth v. United States, 354 U. S. 476, 489, this Court established the following single test for determining whether challenged material is obscene: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (Footnote omitted.) On this basis the Court of Appeals, rejecting the petitioners' contention that the "prurient interest" appeal of the magazines should be judged in terms of their likely impact on the "average person," even though not a likely recipient of the magazines, held that the administrative finding respecting their impact on the "average homosexual" sufficed to establish the Government's case as to their obscenity. We do not reach the question thus thought below to be dispositive on this aspect of the case. For we find lacking in these magazines an element which, no less than "prurient interest," is essential to a valid determination of obscenity under § 1461, and to which neither the Post Office Department nor the Court of Appeals addressed itself at all: These magazines cannot be deemed so offensive on their face as to affront current community standards of decency-a quality that we shall hereafter refer to as "patent offensiveness" or "indecency." Lacking that quality, the magazines cannot be deemed legally "obscene," and we need not consider the question of the proper "audience" by which their "prurient interest" appeal should be judged. The words of § 1461, "obscene, lewd, lascivious, indecent, filthy or vile," connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the MANUAL ENTERPRISES v. DAY. 483 478 Opinion of HARLAN, J. words have different shades of meaning,' the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.5 Although the statute condemns such material irrespective of the effect it may 4 The words of the statute are defined in Webster's New International Dictionary (unabridged, 2d ed., 1956) as follows: obscene "l. Offensive to taste; foul; loathsome; disgusting. "2. a Offensive to chastity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity, and decency forbid to be exposed; lewd; indecent; as, obscene language, dances, images." lewd "4. Lustful; libidinous; lascivious; unchaste .. "Syn. - Licentious, lecherous, dissolute, sensual; debauched, impure; obscene, salacious, pornographic." lascivious "1. Wanton; lewd; lustful. "Syn. - Licentious, lecherous, libidinous, salacious." indecent "Not decent; specif.: a Unbecoming or unseemly; indecorous "Syn. - Immodest, impure; gross, obscene." filthy "1. Defiled with filth, whether material or moral; nasty; disgustingly dirty; polluting; foul; impure; obscene. "Syn. - Squalid, unclean, gross, licentious." vile "2. Morally contaminated; befouled by or as if by sin; morally base or impure; wicked; evil; sinful .... "3 .... unclean; filthy; repulsive; odious "Syn. - Cheap (despicable), debased; depraved; corrupt, sordid, vicious; disgusting, loathsome, foul." To the same effect see Webster's New International Dictionary (unabridged, 3d ed. 1961). 5 The first federal statute bearing on obscenity was the Tariff Act of 1842 which forbade the importation of "indecent and obscene" pie484 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed. Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, "taken as a whole appeals to prurient interest." This "effect" element, originally cast in somewhat different language from that of Roth (see 354 U.S., at 487, 489), was taken into federal obscenity law from the leading English case of Regina v. Hicklin, [1868] L. R. 3 Q. B. 360, of which a distinguished Australian judge has given the following illuminating analysis: "As soon as one reflects that the word 'obscene,' as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce to sinful thoughts, it becomes plain, I think, that Cockburn, C. J., in ... R. v. Hicklin ... torial matter and authorized confiscation. 5 Stat. 566--567. In 1865 the Congress passed the first Postal Act touching on the mailing of obscene matter, making it a crime to deposit an "obscene book ... or other publication of a vulgar and indecent character" in the mails. 13 Stat. 507. The reenactment of the 1865 Act in the codification of the postal laws in 1872 did not change the several adjectives describing the objectionable matter. 17 Stat. 302. The Comstock Act, 17 Stat. 598, added the descriptive terms "lewd" and "lascivious" so that the proscription then included any "obscene, lewd, or lascivious book ... or other publication of an indecent character," but this Court in Swearingen v. United States, 161 U. S. 446, 450, held that the words "obscene, lewd or lascivious" described a single offense. In 1909 the phrase "and every filthy" as well as the word "vile" were included in the provisions of the Comstock Act, 35 Stat. 1129. In 1955 the words were arranged in their present order. 69 Stat. 183. The Court of Appeals for the First Circuit noted that the words "indecent, filthy or vile" are limited in their meaning by the preceding words "obscene, lewd, lascivious," and that all have reference to matters of sex. Flying Eagle Publications, Inc. v. United States, 273 F. 2d 799, 803. 478 MANUAL ENTERPRISES v. DAY. 485 Opinion of HARLAN, J. was not propounding a logical definition of the word 'obscene,' but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. [6] The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal. It is at once an essential element in the crime and the justification for the intervention of the common law. But it is not the whole and sole test of what constitutes an obscene libel. There is no obscene libel unless what is published is both offensive according to current standards of decency and calculated or likely to have the effect described in R. v. Hicklin .... " 7 Regina v. Close, [1948] Viet. L. R. 445, 463, Judgment of Fullagar, J. (Emphasis in original.) The thoughtful studies of the American Law Institute reflect the same twofold concept of obscenity. Its earlier draft of a Model Penal Code contains the following definition of "obscene": "A thing is obscene if, considered as a whole, its predominant appeal is to 6 "Obscene libel" in English usage simply means obscene material, being derived from libellus, "little book." See St. J ohn-Stevas, Obscenity and the Law, 24. • The passage referred to in Regina v. Hicklin was the following: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character." [1868] L. R. 3 Q. B., at 371. The quotations from Regina v. Close and the Hicklin case are not intended to signify our approval of either the "tendency to deprave" or "sexual thoughts" test, but only to emphasize the two elements in the legal definition of "obscene." 486 OCTOBER TERM, 1961. Opinion of HARLAN. J. 370 U.S. prurient interest ... and if it goes substantially beyond customary limits of candor in description or representation of such matters." A. L. I., Model Penal Code, Tent. Draft No. 6 (1957), § 207.10 (2). (Emphasis added.) The same organization's currently proposed definition reads: "Material is obscene if, considered as a whole, its predominant appeal is to prurient interest ... and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters." A. L. I., Model Penal Code, Proposed Official Draft (May 4, 1962), § 251.4 (1). (Emphasis added.)• Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) "prurient interest" appeal. Both must conjoin before challenged material can be found "obscene" under § 1461. In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite "prurient interest" appeal. It is only in the unusual instance where, as here, the "prurient interest" appeal of the material is found limited to a particular class of persons that occasion arises for a truly independent inquiry into the question whether or not the material is patently offensive. The Court of Appeals was mistaken in considering that Roth made "prurient interest" appeal the sole test of obscenity.9 Reading that case as dispensing with the 8 This definition was approved by the Institute, as part of the "Proposed Official Draft," at its annual meeting in Washington, D. C., in May 1962. 9 lt is also evident that the Judicial Officer of the Post Office Department and its counsel entertained the same mistaken view of Roth. The Report of the Judicial Officer did not address itself directly to the inherent indecency aspect of the magazines, except to the extent that such factor was tangentially involved in the findings already summarized (supra, p. 481). The same is true of the expert testimony adduced by government counsel at the administrative hearing. MANUAL ENTERPRISES v. DAY. 487 478 Opinion of HARLAN, J. requisite of patently offensive portrayal would be not only inconsistent with § 1461 and its common-law background, but out of keeping with Roth's evident purpose to tighten obscenity standards. The Court there both rejected the "isolated excerpt" and "particularly susceptible persons" tests of the Hicklin case, 354 U. S., at 488- 489, and was at pains to point out that not all portrayals of sex could be reached by obscenity laws but only those treating that subject "in a manner appealing to prurient interest." 354 U. S., at 487. That, of course, was but a compendious way of embracing in the obscenity standard both the concept of patent offensiveness, manifested by the terms of§ 1461 itself, and the element of the likely corruptive effect of the challenged material, brought into federal law via Regina v. Hicklin. To consider that the "obscenity" exception in "the area of constitutionally protected speech or press," Roth, at 485, does not require any determination as to the patent offensiveness vel non of the material itself might well put the American public in jeopardy of being denied access to many worthwhile works in literature, science, or art. For one would not have to travel far even among the acknowledged masterpieces in any of these fields to find works whose "dominant theme" might, not beyond reason, be claimed to appeal to the "prurient interest" of the reader or observer. We decline to attribute to Congress any such quixotic and deadening purpose as would bar from the mails all material, not patently offensive, which stimulates impure desires relating to sex. Indeed such a construction of § 1461 would doubtless encounter constitutional barriers. Roth, at 487-489. Consequently we consider the power exercised by Congress in enacting § 1461 as no more embracing than the interdiction of "obscenity" as it had theretofore been understood. It is only material whose indecency is self-demonstrating and which, from the standpoint of its effect, may be said 488 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. predominantly to appeal to the prurient interest that Congress has chosen to bar from the mails by the force of § 1461. We come then to what we consider the dispositive question on this phase of the case. Are these magazines offensive on their face? Whether this question be deemed one of fact or of mixed fact and law, see Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 114- 115 (1960), we see no need of remanding the case for initial consideration by the Post Office Department or the Court of Appeals of this missing factor in their determinations. That issue, involving factual matters entangled in a constitutional claim, see Grove Press, Inc., v. Christenberry, 276 F. 2d 433,436, is ultimately one for this Court. The relevant materials being before us, we determine the issue for ourselves. There must first be decided the relevant "community" in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue 10 which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U. S. 380. As regards the standard for judging the element of "indecency," the Roth case gives little guidance beyond 10 The 1958 amendments to 18 U.S. C. § 1461, 72 Stat. 962, authorizing criminal prosecution at the place of delivery evince no purpose to make the standard less than national. MANUAL ENTERPRISES v. DAY. 489 478 Opinion of HARLAN, J. indicating that the standard is a constitutional one which, as with "prurient interest," requires taking the challenged material "as a whole." Roth, at 489. Being ultimately concerned only with the question whether the First and Fourteenth Amendments protect material that is admittedly obscene,11 the Court there had no occasion to explore the application of a particular obscenity standard. At least one important state court and some authoritative commentators have considered Roth and subsequent cases 12 to indicate that only "hard-core" pornography can constitutionally be reached under this or similar state obscenity statutes. See Peop"le v. Richmond County News, Inc., 9 N. Y. 2d 578, 175 N. E. 2d 681; Lockhart and McClure, supra, at 58-60. Whether "hard-core" pornography, or something less, be the proper test, we need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency. We cannot accept in full the Government's description of these magazines which, contrary to Roth (354 U. S., at 488-489), tends to emphasize and in some respects overdraw certain features in several of the photographs, at the expense of what the magazines fairly taken as a whole depict.13 Our own independent examination of 11 No issue was presented in Roth as to the obscenity of any of the materials involved. 354 U. S., at 481, n. 8. 12 See cases cited, infra, p. 490. 13 ''The magazines contained little textual material, with pictures of male models dominating almost every page . . . . The typical page consisted of a photograph, with the name of the model and the photographer and occasional references to the model's age (usually under 26), color of eyes, physical dimensions and occupation. The magazines contained little, either in text or pictures, that could be 663026 0-62-35 490 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. the magazines leads us to conclucj.e that the most that can be said of them is that they are dismally unpleasant, uncouth, and tawdry. But this is not enough to make them "obscene." Divorced from their "prurient interest" appeal to the unfortunate persons whose patronage they were aimed at capturing (a separate issue), these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates. Of course not every portrayal of male or female nudity is obscene. See Parmelee v. United States, 72 App. D. C. 203, 206-208, 113 F. 2d 729. 732-734; Sunshine Book Co. v. Summerfield, 355 U. S. 372; Mounce v. United States, 355 U.S. 180. Were we to hold that these magazines, although they do not transcend the prevailing bounds of decency, may be denied access to the mails by such undifferentiated legislation as that before us, we would be ignoring the admonition that "the door ... into this area [ the First Amendment] cannot be left ajar; it must be kept tightly closed and opened considered as relating in any way to weight lifting, muscle building or physical culture .... "Many of the photographs were of nude male models, usually posed with some object in front of their genitals ... ; a number were of nude or partially nude males with emphasis on their bare buttocks . . . . Although none of the pictures directly exposed the model's genitals, some showed his pubic hair and others suggested what appeared to be a semi-erect penis ... ; others showed male models reclining with their legs (and sometimes their arms as well) spread wide apart . . . . Many of the pictures showed models wearing only loin cloths, 'V gowns,' or posing straps . . . ; some showed the model apparently removing his clothing . . . . Two of the magazines had pictures of pairs of models posed together suggestively .... "Each of the magazines contained photographs of models with swords or other long pointed objects . . . . The magazines also contained photographs of virtually nude models wearing only shoes, boots, helmets or leather jackets . . . . There were also pictures of models posed with chains or of one model beating another while a third held his face in his hands as if weeping .... " MANUAL ENTERPRISES v. DAY. 491 478 Opinion of HARLAN, J. only the slightest crack necessary to prevent encroachment upon more important interests" (footnote omitted). Roth, at 488.14 '\Ve conclude that the administrative ruling respecting nonmailability is improvident insofar as it depends on a determination that these magazines are obscene. II. There remains the question of the advertising. It is not contended that the petitioners held themselves out as purveyors of obscene material, or that the advertisements, as distinguished from the other contents of the magazines, were obscene on their own account. The advertisements were all by independent third-party photographers. And, neither with respect to the advertisements nor the magazines themselves, do we understand the Government to suggest that the "advertising" provisions of § 1461 are violated if the mailed material merely "gives the leer that promises the customer some obscene pictures." United States v. Hornick, 229 F. 2d 120, 121. Such an approach to the statute could not withstand the underlying precepts of Roth. See Poss v. Christenberry, 179 F. Supp. 411,415; cf. United States v. Schillaci, 166 F. Supp. 303, 306. The claim on this branch of the case rests, then, on the fact that some of the third-party advertisers were found in possession of what undoubtedly may be regarded as "hard-core" photographs,15 and that postal ,. Since Congress has sought to bar from the mails only material that is "obscene, lewd, lascivious, indecent, filthy or vile," and it is within this statutory framework that we must judge the materials before us, we need not consider whether these magazines could constitutionally be reached under "a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger." Cantwell v. Connecticut, 310 U. S. 296, 311. 15 A number of such photographs were seized by the police, possessing search or arrest warrants, but knowledge that these advertisers were selling, or would sell, such photographs was never brought home to any of these petitioners. 492 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370U.S. officials, although not obtaining the names of the advertisers from the lists in petitioners' magazines, received somewhat less offensive material through the mails from certain studios which were advertising in petitioners' magazmes. A question of law must first be dealt with. Should the "obscene-advertising" proscription of § 1461 be construed as not requiring proof that the publisher knew that at least some of his advertisers were offering to sell obscene material? In other words, although the criminal provisions of§ 1461 do require scienter (note 1, supra), can the Post Office Department in civil proceedings under that section escape with a lesser burden of proof? We are constrained to a negative answer. First, Congress has required scienter in respect of one indicted for mailing material proscribed by the statute. In the constitutional climate in which this statute finds itself, we should hesitate to attribute to Congress a purpose to render a publisher civilly responsible for the innocuous advertisements of the materials of others, in the absence of any showing that he knew that the character of such materials was offensive. And with no express grant of authority to the Post Office Department to keep obscene matter from the mails (see note 2, supra), we should be slow to accept the suggestion that an element of proof expressly required in a criminal proceeding may be omitted in an altogether parallel civil proceeding. Second, this Court's ground of decision in Smith v. California, 361 U. S. 147, indicates that a substantial constitutional question would arise were we to construe § 1461 as not requiring proof of scienter in civil proceedings. For the power of the Post Office to bar a magazine from the mails, if exercised without proof of the publisher's knowledge of the character of the advertisements included in the magazine, would as effectively "impose a severe limitation on the public's MANUAL ENTERPRISES v. DAY. 493 478 Opinion of HARLAN, J. access to constitutionally protected matter," 361 U. S., at 153, as would a state obscenity statute which makes criminal the possession of obscene material without proof of scienter. Since publishers cannot practicably be expected to investigate each of their advertisers, and since the economic consequences of an order barring even a single issue of a periodical from the mails might entail heavy financial sacrifice, a magazine publisher might refrain from accepting advertisements from those whose own materials could conceivably be deemed objectionable by the Post Office Department. This would deprive such materials, which might otherwise be entitled to constitutional protection, of a legitimate and recognized avenue of access to the public. To be sure, the Court found it unnecessary in Smith to delineate the scope of scienter which would satisfy the Fourteenth Amendment. Yet it may safely be said that a federal statute which, as we construe it, requires the presence of that element is not satisfied, as the Government suggests it might be, merely by showing that a defendant did not make a "good faith effort" to ascertain the character of his advertiser's materials. On these premises we turn to the record in this case. Although postal officials had informed petitioners' president, Womack, that their Department was prosecuting several of his advertisers for sending obscene matter through the mails, there is no evidence that any of this material was shown to him. He thus was afforded no opportunity to judge for himself as to its alleged obscenity. Contrariwise, one of the government witnesses at the administrative hearing admitted that the petitioners had deleted the advertisements of several photographic studios after being informed by the Post Office that the proprietors had been convicted of mailing obscene mate494 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. rial.'" The record reveals that none of the postal officials who received allegedly obscene matter from some of the advertisers obtained their names from petitioners' magazines; this material was received as a result of independent test checks. Nor on the record before us can petitioners be linked with the material seized by the police. Note 15, supra. The only such asserted connection- that "hard core" matter was seized at the studio of one of petitioners' advertisers-falls short of an adequate showing that petitioners knew that the advertiser was offering for sale obscene matter. Womack's own conviction for sending obscene material through the mails, Womack v. United States, 111 U.S. App. D. C. 8, 294 F. 2d 204, is remote from proof of like conduct on the part of the advertisers. At that time he was acting as president of another studio; the vendee of the material, while an advertiser in petitioners' magazines, had closed his own studio before the present issues were published. Finally, the general testimony by one postal inspector to the effect that in his experience advertisers of this character, after first leading their customers on with borderline material, usually followed up with "hard-core" matter, can hardly be deemed of probative significance on the issue at hand. At best the Government's proof showed no more than that petitioners were chargeable with knowledge that these advertisers were offering photographs of the same character, and with the same purposes, as those reflected 16 Grecian Guild Pictorial carried a notice that it "does not knowingly use the work of any studio which takes or sells nude, undraped front or side view photographs. The photographers listed above do not offer such photographs." To be sure this magazine, as did the others, also carried a notation that the publisher was familiar with the work of the advertisers and urged the reader to support them; but this cannot well be taken as an admission of knowledge that the advertisers' works were obscene. MANUAL ENTERPRISES v. DAY. 495 478 Opinion of BRENNAN, J. in their own magazines. This is not enough to satisfy the Government's burden of proof on this score.11 In conclusion, nothing in this opinion of course remotely implies approval of the type of magazines published by these petitioners, still less of the sordid motives which prompted their publication. All we decide is that on this record these particular magazines are not subject to repression under § 1461. Reversed. MR. JusTICE BLACK concurs in the result. MR. JusTICE FRANKFURTER took no part in the decision of this case. MR. JusTICE WHITE took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom THE CHIEF JusTICE and MR. JusTICE DouGLAS join, concurring in the reversal. I agree that the judgment below must be reversed, though for a reason different from my Brother HARLAN'S. This is the first occasion on which the Court has given 17 We do not think it would be appropriate at this late stage to remand the case for further proceedings on the issue of scienter. Although suggesting that "[it] is arguable" that scienter is not a necessary element under this part of the statute, the Government undertakes to defend this aspect of the judgment primarily on the premise that it was. The record shows that at the administrative hearing government counsel sought to fasten the petitioners with knowledge that the third-party advertisers were selling "obscene" material. The Judicial Officer indeed rejected the petitioners' proposed findings that "the publisher8 of each of the magazines in evidence . . . had no personal knowledge of the material sold by the advertisers .... " To be sure, the record does not disclose whether this was because "knowledge" was deemed proved rather than that such element was not considered relevant. But on the cross motions for summary judgment, based upon the administrative record, the Government did not undertake to controvert petitioners' allegations that scienter was a necessary element under this part of the statute. 496 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. plenary review 1 to a Post Office Department order holding matter "nonmailable" because obscene. Petitioners, publishers of certain magazines, employ the mails in the distribution of about half of their claimed circulation of 25,000. On March 25, 1960, petitioners deposited 405 copies of their publications for transmission as second class mail from Alexandria, Virginia, to Chicago. However, the Alexandria postmaster, acting, apparently without notice to petitioners, on his belief that the magazines might be obscene and therefore "nonmailable" under 18 U.S. C. § 1461, withheld delivery and forwarded samples to the General Counsel of the Post Office Department. On April 5 and 7 that official notified petitioners not only that the magazines were being withheld from delivery because of his opinion that they were nonmailable, but also that no formal hearing would be held since an insufficient monetary value was involved. Shortly thereafter, on April 11, 1960, petitioners requested a Post Office hearing, and also sought injunctive relief in the District Court for the District of Columbia against this stoppage of their mailing. On the same day the Post Office Judicial Officer reversed the General Counsel and ordered a hearing, and thereafter the District Court refused temporary relief. On April 21, after pleadings had been filed, the hearing was begun before the Judicial Officer. On April 25 petitioners' injunction suit was dismissed on the condition that they might seek further relief if final administrative action was not forthcoming by April 28. On April 28, one month and three days after the mailing, the Judicial Officer handed down his opinion holding the magazines obscene and nonmailable, thus opening petitioners' way into court. On May 13, petitioners filed the complaint now before us, alleging that the magazines were not obscene, that 1 One, Inc., v. Olesen, 355 U. S. 371, and Sunshine Book Co. v. Summerfield, 355 U. S. 372, were decided summarily without argument. MANUAL ENTERPRISES v. DAY. 497 478 Opinion of BRENNAN, J. respondent's action in withholding them from the mails was "unlawful and inequitable ... calculated ... to censor and harass plaintiffs and ... a prior restraint designed to deprive the plaintiffs of their rights under the First Amendment ... ," and requesting temporary and permanent injunctive relief. Petitioners then moved for summary judgment, arguing, inter alia, that "the Post Office Department held a time-consuming hearing, the product of which was an Order contrary to the established law of the United States . . . . This amounts to the most obnoxious and unconstitutional censorship. The principal effect of the administrative hearing ... is to delay action of this Court. . . . Plaintiffs assert that the Post Office has conducted an ex parte administrative prior restraint treading upon an area of constitutional sensitivity apart from the substantive problems of determining whether or not the magazines are obscene. . . . Further, plaintiffs argue that the entire civil procedure followed by the Post Office based upon a criminal statute raises doubts of constitutionality." Respondent, too, moved for summary judgment. His motion was granted and the complaint dismissed without opinion. The Court of Appeals affirmed, holding the magazines obscene. In addition to the question whether the particular matter is obscene, the Post Office order raises insistent questions about the validity of the whole procedure which gave rise to it, vital to the orderly development of this body of law and its administration. We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged. Marcus v. Search Warrant, 367 U.S. 717; Kingsley Books, Inc., v. Brown, 354 U.S. 436; see also Smith v. California, 361 U. S. 147. Questions of procedural safeguards loom large in the wake of an order such as the one before us. Among them are: (a) whether Congress can close the 498 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. mails to obscenity by any means other than prosecution of its sender; (b) whether Congress, if it can authorize exclusion of mail, can provide that obscenity be determined in the first instance in any forum except a court, and (c) whether, even if Congress could so authorize administrative censorship, it has in fact conferred upon postal authorities any power to exclude matter from the mails upon their determination of its obscene character.2 Lower courts and judges have been troubled by these questions,3 but this Court has not had occasion to decide them. At least question ( c) is before us now! It surpasses in general significance even the important issue of the standards for judging this material's "mailability." Moreover, dealing with the case on this ground involves less constitutional difficulty than inheres in others. The conclusion that the Postmaster General is acting ultra vires because Congress has not granted the power which 2 There would also be the question, if (a), (b) and ( c) were answered affirmatively, of the validity of the particular procedures that the Post Office has employed. 3 See, e. g., Grove Press, Inc., v. Christenberry, 175 F. Supp. 488, 495, and 276 F. 2d 433, 435; Sunshine Book Co. v. Summerfield, 101 U. S. App. D. C. 358, 364-367, 249 F. 2d 114, 120-123 (dissenting opinion), reversed, see supra, n. 1. And cf. Roth v. Goldman, 172 F. 2d 788, 794-795 (concurring opinion). Compare Stanard v. Olesen, 74 S. Ct. 768 (opinion of MR. JUSTICE DouGLAs), Olesen v. Stanard, 227 F. 2d 785; Summerfield v. Sunshine Book Co., 95 U. S. App. D. C. 169, 221 F. 2d 42. • The Government argues that petitioners "complain generally of 'an unconstitutional prior restraint,' ... without specifying [where] the asserted vice lies . . . ." Insofar as petitioners challenge the constitutionality of § 1461 if read to impose civil restraints, their suit would be within the requirements for convening a three-judge court under 28 U.S. C. § 2282, and therefore that claim is not here. But insofar as their attack is grounded upon a claim that § 1461 is not to be construed as granting censorial power to the Post Office, § 2282 does not apply. MANUAL ENTERPRISES v. DAY. 499 478 Opinion of BRENNAN, J. he here asserts, while greatly influenced by constitutional doubts, does not require a decision as to whether any establishment of administrative censorship could be constitutional. Hannegan v. Esquire, Inc., 327 U. S. 146; Kent v. DuUes, 357 U. S. 116.5 Mr. Justice Holmes has said: "The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues, and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man." Milwaukee Publishing Co. v. Burleson, 255 U.S. 407,437 (dissenting opinion). 5 My Brother HARLAN states that no question is raised as to the Post Office Department's general authority under 18 U.S. C. § 1461 to withhold obscene matter from the mails. The Government asserts only that at the administrative level the petitioners made no objection to the procedure. The Government does not suggest that the challenge to the Post Office's power to act at all had to be made before the administrative body. That challenge presents a jurisdictional question and is open to the petitioners even if not initially asserted in the agency proceeding. See United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38. And although perhaps not artfully, the petitioners did challenge the authority of the Post Office in the District Court. In their motion for summary judgment petitioners stated: "[P]laintiffs argue that the entire civil procedure followed by the Post Office based upon a criminal statute raises doubts of constitutionality. The fragile foundation on which the Post Office action rests must be kept in mind, both in dealing with the substantive obscenity question involved and in determining the proper scope of judicial review. . . . There is lacking here the kind of specific legislative direction to the administrative agency that in certain circumstances justifies judicial deference to administrative determinations." The Court of Appeals did not discuss the issue, perhaps because it had held in Sunshine Book Co. v. Summerfield, supra, n. 3, that the questioned authority exists; the Government does not suggest that petitioners failed to make their argument there. And in this Court, petitioners continue their attack and the Government, without reservation, fully defends against it. 500 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. Whether Congress, by its enactment or amendment of 18 U. S. C. § 1461 (a part of the Criminal Code), has authorized the Postmaster General to censor obscenity, is our precise question. The Government relies upon no other provision to support the constitutionally questionable power of administrative censorship of this material. That power is inferred from the declaration that every item proscribed in § 1461 is "nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier." Even granting that these words on their face permit a construction allowing the Post Office the power it asserts, their use in a criminal statute, their legislative history, and the contrast with the words and history of other provisions dealing with similar problems, raise the most serious doubt that so important and sensitive a power was granted by so perfunctory a provision. The area of obscenity is honeycombed with hazards for First Amendment guaranties, and the grave constitutional questions which would be raised by the grant of such a power should not be decided when the relevant materials are so ambiguous as to whether any such grant exists. I. The origin of § 1461 is briefly told.6 It was the tag end of a bill drawn in 1865 to meet Post Office requests 6 There is no need to consider here the history before 1865, which was highlighted by the rejection by Congress in 1836, largely on constitutional grounds, of President Jackson's request for legislation to suppress mail distribution of "incendiary" abolitionist literature. See Rogers, The Postal Power of Congress (1916); Deutsch, Freedom of the Press and of the Mails, 36 Mich. L. Rev. 703 (1938). The 1865 Senate debates referred to such action as the kind for which power should be withheld. Cong. Globe, 38th Cong., 2d Bess. 661 (1865). The Post Office occasionally seized allegedly treasonable MANUAL ENTERPRISES v. DAY. 501 478 Opinion of BRENNAN, J. for various administrative changes. Its first version read: "That no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; but all such obscene publications deposited in or received at any post office, or discovered in the mails, shall be seized and destroyed, or otherwise disposed of, as the Postmaster General shall direct. And any person or persons who shall deposit or cause to be deposited in any post office or branch post office of the United States, for mailing or for delivery, an obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character, shall be deemed guilty of a misdemeanor, and, being duly convicted thereof, shall, for every such offense, be fined not more than $500, or imprisoned not more than one year, or both, according to the circumstances and aggravations of the offense." In offering this proposal, Chairman Collamer of the Senate Post Office Committee took pains to point out that it "may be liable to some objection. . . . I am not perhaps entirely satisfied with it," and Senator Reverdy newspapers despite its lack of authority. See H. R. Rep. No. 51, 37th Cong., 3d Sess., pp. 3, 10 (1863). The only noncriminal procedure authorized against obscene material before 1865 was a judicial proceeding for imported material's forfeiture. 5 Stat. 566; see United States v. Three Cases of Toys, 28 Fed. Cas. 112, No. 16,499; Anonymous, I Fed. Cas. 1024, No. 470. For a comprehensive discussion of the history and practice of censorship in the Post. Office and Bureau of Customs, see Paul and Schwartz, Federal Censorship: Obscenity in the Mail (1961), and Paul, The Post Office and Non-Mailability of Obscenity: An Historical Note, 8 U. C. L.A. L. Rev. 44 (1961). 502 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 u. s. Johnson, concerned about postmasters breaking seals, immediately took up Chairman Collamer's suggestion that only the penal provision be adopted. Chairman Collamer, agreeing that the nonpenal clause "might be made a precedent for undertaking to give [ a postmaster] a sort of censorship over the mails," said he would be as happy if it were dropped. Senator Johnson then moved to strike it: "[l]t would be establishing a very bad precedent to give authority to postmasters to take anything out of the mail." He acknowledged that much material is sent uncovered, but thought the penal provision sufficient to meet the evil. However, Senator Sherman observed: "I would much prefer, if the Senator would be satisfied, with simply striking out the second clause of the first [sentence]. I think the prohibition against publications of this character going into the mails ought to stand. We are well aware that many of these publications are sent all over the country from the city of New York with the names of the parties sending them on the backs, so that the postmasters without opening the mail matter may know that it is offensive matter, indecent and improper to be carried in the public mails. I think, therefore, the legislative prohibition against carrying such matter when it is known to the postmasters should be left. Probably the second clause allowing him to open mafl matter should be struck out .... " Senator Johnson acquiesced and the bill was then passed, reading: "That no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; any person or persons .... " Cong. Globe, 38th Cong., 2d Sess. 660--661 (1865); 13 Stat. 507. MANUAL ENTERPRISES v. DAY. 503 478 Opinion of BRENNAN, J. There are two possible constructions of § 1461 on the basis of this brief Senate discussion. One possibility is that short of breaking seals,1 the postmasters could remove matter which they thought from its face or the name of its sender to be obscene. The second construction is that postmasters could remove matter but only to turn it over to the appropriate authorities as the proposed subject of a criminal prosecution-and also of course after that material had been determined, in a criminal trial of its sender, to be obscene. Support for this second construction is found not only in the brief 1865 Senate consideration itself but also in an 1888 statute amending § 1461, and enacting a section banning material with obscene matter on its face and-unlike § 1461-explicitly providing that it "shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe." 8 The 1865 Senate discus.sion is not unambiguous, but I cannot suppose that Senator Johnson-who had already noted his awareness that much obscene material was discoverable without breaking seals, and even so, his determined opposition to its being stopped-would have accepted Senator Sherman's suggestion had he understood it to mean more than that the Post Office could stop obviously questionable matter for the purpose of transmitting it to prosecuting authorities, could stop matter already held obscene if it were sent again, and could investigate matter sent by persons previously convicted and, if the matter were found violative, could present it to the prosecuting authorities. I believe this is the correct 1 Congress in 1865 was undoubtedly against any power in the Post Office to break seals (see Cong. Globe, 38th Cong., 2d Sess. 660-661), and 23 years later made this explicit as to first class mail. 25 Stat. 496-497. But even that was a prohibition "out of abundant caution" and was not intended to imply any power to open mail of other classes. See 19 Cong. Rec. 8189 (1888). 8 25 Stat. 496, now 18 U. S. C. § 1463. 504 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 u. s. construction of the 1865 enactment. But at least it is arguably correct, and necessary if we are to avoid the section's probable constitutional infirmity 9 (see Near v. Minnesota, 283 U.S. 697; Summerfield v. Sunshine Book Co., 95 U. S. App. D. C. 169, 221 F. 2d 42) if construed as a provision allowing the Postmaster General to exclude all matter sent by a person who had previously sent violative matter. Such an exclusion by attaint could not be justified by the "hoary dogma ... that the use of the mails is a privilege on which the Government may impose such conditions as it chooses, [for that] has long since evaporated." Roth v. United States, 354 U. S. 476, 504 (dissenting opinion); Hannegan v. Esquire, Inc., 327 U. S., at 156; Speiser v. Randall, 357 U. S. 513, 518. Subsequent developments concerning the removal of matter from the mails reveal a nearly contemporaneous strong distaste for and awareness of constitutional doubts about nonjudicial censorship, such as reflects meaningfully on the ambiguity surrounding § l46l's enactment. That ambiguity has persisted throughout § 146l's history of amendment, reconsideration, and codification. In the concurrent history of Congress' handling of related problems, there has been in each instance either a clear grant of power to the Postmaster General or, for matters as inextricably intertwined with the First Amendment as obscenity, a provision for judicial rather than administrative process. Nothing is found to suggest that one should resolve the ambiguity in 1865 to find a grant of the power of administrative censorship. Compare Lewis Publishing Co. v. Morgan, 229 U. S. 288, 311. In 1868, in considering a provision making it unlawful to deposit letters or circulars concerning lotteries, House Conferees struck a Senate proposal which would have 9 See Milwaukee Publishing Co. v. Burleson, 255 U. S. 407, 423, 429--430 ( Brandeis, J ., dissenting) . MANUAL ENTERPRISES v. DAY. 505 478 Opinion of BRENNAN, J. authorized postmasters to remove from the mail and deposit in dead letter offices any letters or circulars thought to concern lotteries. House Postal Committee Chairman Farnsworth explained "We thought that was a dangerous power to confer upon postmasters, and therefore we have stricken it out. That section provides that it shall be unlawful to deposit in the mails . . . which we thought would be a wise provision. But we thought it would not be wise to give postmasters this extraordinary power to be exercised upon a mere suspicion." Cong. Globe, 40th Cong., 2d Sess. 4412 (1868). Opinions of the Attorney General advising as to the postmasters' authority under this lottery provision emphasized the necessity for explicit legislative authorization to warrant removal of material from the mails. Those opinions cited examples of provisions containing such express authorization but, significantly, did not include § 1461-an important omission in the light of the observation of the Attorney General that aside from the examples he gave "[i]f there are other provisions permitting a detention of letters by a postmaster, they have escaped my attention. It is believed that, at least, there are no others affecting the subject of the present inquiry." Furthermore, in describing the authorizations he did find, the Attorney General said: "It will be seen that none of these authorize what can properly be called a 'seizure' of any suspected letters by a postmaster, because, probably, he is not deemed the proper functionary to bring to trial and punishment those violating the postal laws." 10 In 1872, § 1461 was amended as part of a codification of postal legislation. The amendment added a proscription against the mailing of "any letter upon the envelope of which, or postal card upon which scurrilous epithets 10 16 Op. Atty. Gen. 5, 6 ( 1878); 12 id., 538 (1868); and see 12 id., 399, 401 (1868). 663026 0-62-36 506 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. may have been written or printed, or disloyal devices printed or engraved .... " 17 Stat. 302.11 The section was further revised when the Comstock Law was enacted in 1873. 17 Stat. 598. That statute established penalties for dealing in or in any way publishing obscenity or any article of an immoral nature in areas under federal jurisdiction, expanded the list of items not to be mailed to include matter intended to aid the procuring of abortion, and banned the importation of all such items. When the bill came to the floor, Senator Casserly objected to the provision allowing customs officers to seize prohibited items: "I do not know whether it can be left to officers of the custom-house to determine with safety what kind of literature or what sort of matter is to be admitted." Cong. Globe, 42d Cong., 3d Sess. 1436 (1873). The bill was accordingly changed to authorize customs officers simply to detain the items, and then proceed in a federal court to condemn them, if the federal judge were satisfied that they must be condemned. Id., at 1525. There is no suggestion that customs officers were thought to be less trustworthy than postal officers; 12 this insistence upon judicial proceedings shows plainly the congressional aversion to administrative censorship. The Comstock bill received but scant and hasty consideration. 13 As passed, its language was susceptible of a reading which would fail to penalize the mailing of 11 There was also a provision that any material "which may be seized or detained for violation of law shall be returned to the owner or sender of the same, or otherwise disposed of as the Postmaster- General may direct," 17 Stat. 323, but that only states what may be done with material which may be seized or detained, and our question is whether obscene material-except in the narrow circumstances already described-may be seized or detained at all. Compare pp. 511-512, infra. 12 But see Casserly's second statement, id., at 1436, which was a misunderstanding of the bill. 13 See Paul, supra, n. 6, at 51-57. MANUAL ENTERPRISES v. DAY. 507 478 Opinion of BRENNAN, J. obscene or indecent literature, and reach only actual abortifacients. Closing this inadvertent gap was the sole purpose 14 of an 1876 amendment, 19 Stat. 90, which made several language changes; among them, the substitution of the words of which the Government makes so much- "declared to be non-mailable matter, [which] shall not be conveyed in the mails, nor delivered from any postoffice nor by any letter-carrier"-for the more cursory "f which] shall [not] be carried in the mail." Moreover, the 1876 discussion evinces the understanding that the only obscene materials removable by the Post Office were those which were to be submitted as, or which already had been, the subject of a criminal prosecution. The manager of the amendment assured the House: "Nor, sir, does this bill give any right to any postmaster to open or to interfere with anybody's mail. It is like anything else, before you can convict, you must offer and make proof." During the debate a different speaker said: "Whenever a jury in any locality in the country shall find that a paper contains matter which may be devoted to a purpose which they deem immoral-not only indecent, but immoral-the jury may convict the man who sends H The bill's manager in the House said: "[T]he proposed bill in no wise changes the law as it now is except to provide a penalty for the circulation of obscene literature. By an oversight in drafting the original section the penalty applies only to the disposition of articles circulated or sold for the purpose of procuring abortion or preventing conception. Already this obscene class of matter spoken of in the other port.ion of the section is prohibited from passing through the mails, but no penalty is provided. . . . [I]t in no way changes the section as it now is. It makes nothing non-mailable that is not now non-mailable. It merely provides a penalty .... " 4 Cong. Rec. 695 (1876). "Section [1461] is perfected by the bill so as to provide a complete penalty for the mailing of all kinds of matter therein prohibited to pass through the mails." 4 Cong. Rec. 3656. The Senate did not discuss this change. See 4 Cong. Rec. 4261--4264. 508 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. the paper or the man who receives it by mail, and the postmaster is authorized to exclude that newspaper from the mail." A third speaker, in urging that the word "scurrilous" be removed, warned: "I do not object to the purification of the mails, but I would like the committee when they reconsider this bill not to go too far in giving postmasters discretion." Another Congressman feared that the severity of the penalties would make the law a dead letter, because judges and juries would be unwilling to convict. Thus the tenor of the entire debate reflected the premise that § 1461 had only a criminal application. No one suggested that it also authorized administrative censorship. 4 Cong. Rec. 695-696.15 And see 8 Cong. Rec. 697 ( 1879). 15 Discussion in the Senate included the first reference to the problem of standards of obscenity-it was hardly such as to afford guidelines for administrative action: "Mr. MORTON. Mr. President, in prohibiting the transmission of any matter through the mails there ought to be great care used and it ought to be particularly described and defined. All of that which is described in the beginning of the first section of this bill is eminently proper to prohibit from being transmitted through the mails; but there is a part of that section that I think is vague and susceptible of abuse. It prohibits the transmission through the mail of 'every article or thing intended or adapted for any indecent or immoral use.' What is an 'immoral use?' That question may be subject to very different opinions. The word 'obscene' is well defined; we can understand what that means; but when you prohibit everything that is for an immoral use, there would be wide differences of opinion on that point. "Mr. CONKLING. The same words are in the law now. "Mr. MORTON. That may be. I remember a time when certain newspapers and pamphlets were prohibited from going through the mails in certain States, because they were held to be of an immoral and seditious character--of 'an incendiary character,' as my friend from Ohio [Mr. SHERMAN] suggests. Public opinion has changed upon that point. But when we come to prohibit the transmission at any matter through the mails, we ought to understand pretty well what it is. There are many things that a portion of our people would conMANUAL ENTERPRISES v. DAY. 509 478 Opinion of BRENNAN, J. Especially significant in pointing up the purely penal application of § 1461 are the legislative events of 1888. An amendment of but a few months' duration changed the law on such postal crimes as counterfeiting money orders. It included a provision penalizing the mailing of any matter upon the envelope or outside cover of which was indecent, scurrilous, threatening, etc., language.16 The provision was promptly amended in the same session because "there was a suspicion that an implied power was given to postmasters to open letters. Of course there was no such intention, ai:id this [new] bill eliminates that objectionable feature .... " 19 Cong. Rec. 8189.17 But even more significantly, the new enactment transferred to a new section, § 1463, 25 Stat. 496, the ban of § 1461 which, in the 1876 version (19 Stat. 90), had reached "every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed''; and § 1463, instead of merely sider immoral that other portions would consider entirely moral. Some people might consider a pack of cards highly immoral; others might think they were entirely proper. Many other things might be enumerated." 4 Cong_ Rec. 4263. 10 "And all matter otherwise mailable by law upon the envelope or outside cover or wrapper of which, or postal card, upon which indecent, lewd, lascivious, obscene, libelous, scurrilous, or threatening delineations, epithets, terms, or language, or reflecting injuriously upon the character or conduct of another, may be written or printed, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier; and any person who shall knowingly deposit .... " 25 Stat. 188. The proscription of scurrilous epithets had been part of § 1461 as amended in 1873, 17 Stat. 599, but it was removed in 1876 when the word's breadth and vagueness were objected to. Its reenactment was largely aimed at a "blackmailing" process for the collection of debts. 19 Cong. Rec. 2206, 6734, 7662 (1888). 17 But see also id., at 6733-6734. 510 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 u. s. declaring that the listed matter was nonmailable and was not to be conveyed or delivered, provided that those items "shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe .... " It is strange, I think, that § 1461-amended at the same time as § 1463 was enacted-was not amended also to include an explicit provision for withdrawal from the mails, if authority for withdrawal had been Congress' intention. But Congress did not contemplate any general administrative censorship of obscenity. The House discussion expressed the agreement that besides the power to punish, there should be no more than the most limited Post Office power to stop mail-and § 1463 states that limitation; and the Senate debate, focusing almost entirely upon how severe the penalties should be, reinforced the restrictions upon the postmasters and underlined that § 1461 is exclusively penal. See 19 Cong. Rec. 7660-7662, 8189. The last congressional dealing with § 1461 which is pertinent to our inquiry occurred in 1909, when again that section was amended, this time to bar more abortifacients and "every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing." 18 Though committee reports are unenlightening, the House discussion makes plain that the changes were intended to reverse the limitations stated in Swearingen v. United States, 161 U. S. 446, that the statute applied only to "that form of immorality which has relation to sexual impurity," and that its words had "the same meaning as is given them at common law in prosecutions for obscene libel." 161 U. S., at 451; 42 Cong. Rec. 995-999, 43 Cong. Rec. 283-284.19 The two brief House discussions suggest that there were members who did believe that 18 35 Stat. 1129. 19 See United States v. Limehouse, 285 U. S. 424. MANUAL ENTERPRISES v. DAY. 511 478 Opinion of BRENNAN, J. the Post Office had some power to remove obscene mail, even apart from presenting it for criminal prosecution; it was analogized to fraudulent matter. But nothing characterizes the discussion so much as its ambiguity, and its concern lest the Post Office acquire powers whose exercise would amount to censorship. See 42 Cong. Rec. 995-998. And see 101 Cong. Rec. 3804, 7798, 8241-8242 ( 1955). II. Section 1463 is not the only statute which goes further than § 1461 towards authorizing Post Office censorship. Five other criminal statutes prohibiting the introduction of various matter into the mails either contain within themselves or have direct counterparts in the postal laws which contain explicit authorizations to the Postmaster General to remove or return such matter.2° In sharp 20 (1) 18 U.S. C. § 1718, the criminal provision against mailing of matter libelous on its face, explicitly empowers the Postmaster General to make regulations governing its withdrawal from the mails; (2) 18 U. S. C. §§ 1341 and 1302, the criminal mail fraud and lottery provisions, have a matching section in the postal laws empowering the Postmaster General, upon evidence satisfactory to him, to mark mail "fraudulent" or "lottery mail" and to return it to its sender, 39 U. S. C. (Supp. II) § 4005; (3) 18 U.S. C. § 1342, making it a crime to conduct a fraudulent scheme by using a false name or address, also has a counterpart civil section empowering the Postmaster General, upon evidence satisfactory to him, to require proof of identity or to send such mail to the dead letter office, 39 U. S. C. (Supp. II) § 4003; (4) 18 U.S. C. §§ 1715 and 1716, making criminal the mailing of firearms and injurious articles, explicitly state that the Postmaster General may make regulations governing their transmission; (5) 18 U. S. C. § 1717, making criminal the mailing of matter advocating treason, explicitly authorized employees of the dead letter office to open such mail. See 74 Stat. 708. And see 7 U. S. C. § 150cc and 33 Stat. 1270 (plant pests); 38 Stat. 1113 (plants and plant products); 22 U. S. C. § 618 (foreign agents' propaganda advocating violent disorder in any other American republic); compare 7 U.S. C. § 1575 (false advertising of seed); 15 U.S. C. §§ 77q (fraudulent mat512 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 u. s. contrast, § 1461-itself silent as to sanctions except for the provision of criminal penalties-has no counterpart in the postal laws. It is mentioned once in the recodification of 1960-in § 4001 (a), a section collecting the various provisions designating matter as nonmailable and which, the Committee Report indicates and the floor discussion and reviser's note assure, was not intended to change existing law 21-ambiguous throughout. The removal of obscene material has not been the Post Office's only weapon against it. In 1950, § 4006 was enacted granting special powers over the mail of any person found, to the Postmaster General's satisfaction, to be using the mails to obtain money for or to be providing information about any obscene or vile article or thing: Postmasters could mark mail sent to that person "unlawful" and return it to its sender; and they could forbid payment to that person of any money orders or postal notes, and return the funds to the senders.22 The clarity of the grant of these powers is no less noteworthy than their subsequent history. In 1956 the Postmaster General sought 23 and obtained the power to enter an order, pending the administrative proceeding to determine whether § 4006 should be invoked, under which all mail ter regarding securities), 80a-20 (solicitation of proxies), 80a-24 (sales literature regarding securities), 80b-3, S0b-5 and 80b-6 (investment advisers' materials); 50 U.S. C. § 789 (publications of registered Communist organizations). See American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 109. 21 H. R. Rep. No. 36, 86th Cong., 1st Sess. A44 (1959); 105 Cong. Rec. 3157 (1959) and 106 Cong. Rec. 15,667 (1960); and see supra, n. 11. 22 64 Stat. 451, now revised and codified as 39 U. S. C. (Supp. II) § 4006. See 74 Stat. 578,655. 23 It appears that between 1950 and 1956, the Postmaster General asserted, and some courts agreed, that he already had the power. See Stanard v. Olesen, supra, n. 3, at 771. MANUAL ENTERPRISES v. DAY. 513 478 Opinion of BRENNAN, J. addressed to the respondent could be impounded. The order was to expire at the end of 20 days unless the Postmaster General sought, in a Federal District Court, an order continuing the impounding. The 20-day order by the Postmaster General, and its extension by a court, were to issue only if "necessary to the effective enforcement of [§ 4006] ." 24 In 1959, extensive hearings were held in the House on the Post Office's request that the 20-day period be extended to 45 days, and that the standard of necessity be changed to "public interest." 25 Instead, what was enacted in 1960 stripped the Postmaster General of his power to issue an interim order for any period, and directed him to seek a temporary restraining order in a Federal District Court. 28 24 70 Stat. 699. 25 Hearings before House Subcommittee on Postal Operations of the Committee on Post Office and Civil Service on Obscene Matter Sent through the Mail, 86th Cong., 1st Sess. (1959). 26 74 Stat. 553. The codification of the postal laws, later in 1960, repealed 70 Stat. 699 (see 74 Stat. 708, 729) and not 74 Stat. 553, but the new § 4007 (74 Stat. 655) repeats the words of 70 Stat. 699. We need not now decide which is the governing provision. The Senate Report in 1956 had said this: "The committee recognizes that even in its present form the bill gives the Postmaster General extraordinary and summary powers to impose a substantial penalty by impounding a person's mail for up to 20 days in advance of any hearing or any review by the courts. Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. The Post Office Department has made its case for this legislation on the grounds that a temporary and summary procedure is required to deal with fly-by-night operators using the mails to defraud or to peddle pornography, who may go out of business-or change the name of their business or their business address-before normal legal procedures can be brought into operation. The Post Office Department has not recommended, nor does this committee approve, the use of the temporary impounding procedure under this bill as a substitute for the normal practice of an advance hearing or the bringing of an indict514 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. Congress gave full consideration to censorship of obscene material when it dealt with the Tariff Act of 1930. Prior to that year, the customs laws provided for the exclusion from the United States of obscene written matter, but required resort in the first instance to a Federal District Court for a determination of the matter's obscenity.21 In the course of their work on the bill, the House Ways and Means Committee added language to exclude seditious as well as obscene material, and also replaced the judicial procedure with the generally applicable procedures for seizure by the customs officers, entailing judicial review only at the instance of a would-be importer. See H. R. Rep. No. 7, 71st Cong., 1st Sess., at 160, 185, 190, 244-245. It was in this form that the bill passed the House, and was reported by the Senate Committee, see S. Rep. No. 37, 71st Cong., 1st Sess. 60; 71 Cong. Rec. 4458 (remarks of Senator Smoot), but on the Senate floor it ran into strong expressions against customs censorship: fears about administrative determinations were enhanced by felt difficulties in applying the ment for violation of the criminal code in all cases involving legitimate and well-established business operations. The committee would not approve the use of the extraordinary summary procedure under the bill against legitimate publishers of newspapers, magazines, or books in cases in which a Postmaster General might take objection to an article, an issue, or a volume." S. Rep. No. 2234, 84th Cong., 2d Sess. 2-3. 27 Section 305 of the Tariff Act of 1922, 42 Stat. 937, banned obscene and immoral matter, but subsection (c) provided: "That any district judge ... within the proper district ... [may issue upon probable cause, conformably to the Constitution], a warrant directed to [a marshal or customs officer], directing him to ... seize ... any article or thing mentioned in [§ 305], and to make due and immediate return thereof, to the end that the same may be condemned and destroyed by proceedings, which shall be conducted in the same manner as other proceedings in the case of municipal seizure, and with the same right of appeal or writ of error." And see supra, n. 6; supra, pp. 505-506. MANUAL ENTERPRISES v. DAY. 515 478 Opinion of BRENNAN, J. statute's proscriptions to particular material. Judicial review was thought insufficient, for that would leave the initiative for resort to the courts with the person subjected to the censorship: expense, inconvenience, and public embarrassment would, it was believed, result in unreviewed administrative exclusion. See generally 71 Cong. Rec. 4432-4439; 4445-4471. In support of the idea that the initial decision should be made by a court rather than a customs inspector, 72 Cong. Rec. 5417-5423, Senator Walsh of Montana said: "Everybody of right mind wants to prevent the circulation of such books as the Senator from Utah has in mind. That is not the point at all. Those immoral and obscene and indecent publications are printed in this country, as well as abroad .... How do we reach the situation? We make it a crime to circulate those books in this country, and we punish that offense the same as we punish every other offense, by proper prosecution. Likewise, we prohibit the circulation of material of that kind in the mails, and if anybody circulates it in the mails he becomes liable to indictment and prosecution. That is the way we endeavor to deal with that thing." 72 Cong. Rec. 5419. See also id., at 5425, 5430. But compare the remarks of Senators Copeland, Cutting, and Fletcher, 71 Cong. Rec., at 4435, 4450. He then offered an amendment to impose criminal sanctions for importing pr(?scribed matter, and to require the matter's detention by the customs for transmittal to the appropriate authorities to commence judicial forfeiture proceedings. Id., at 5421. However, there were misgivings about the criminal sanction; it was thought by some to jeopardize borderline activity too seriously. Id., at 5423-5431. The Senate passed a provision corresponding to Senator Walsh's amendment, but without 516 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. a criminal sanction, 72 Cong. Rec. 5501-5520, and this was enacted into law. Thus the House Committee's attempt to revert from judicial to administrative determinations in the initial phase of customs censorship was emphatically rebuffed. III. It is clear that the Post Office has long practiced administrative censorship of allegedly obscene mailings generally. However, the formal regulations prescribing a procedure are new.28 The practice was described in 1952 by the Solicitor of the Department when testifying before a congressional committee: "(W]e have an informal procedure, which, so far, hasn't been considered or tested out in the court, so we have gotten by with it so far. That is where a postmaster finds obscene matter at the point of entry of the mail into the post office, and if he is in doubt as to whether it is good or bad he will send it to the Solicitor's office for a ruling .... " He also said: "If we had to hold hearings on all of those, if any court should ever decide that those hearings also come under the Administrative Procedure Act, we are just hopelessly sunk, that is all; we are just lost. "They may, but they have never taken us into court on it. We just hope that we get by with it as long as we can." 29 28 These date from 1957. See 39 CFR §§ 14.4, 203 (1962). 29 See Wong Yang Sung v. McGrath, 339 U. S. 33; Riss & Co. v. United States, 341 U.S. 907; Cates v. Haderlein, 342 U. S. 804; Walker v. Popenoe, 80 U.S. App. D. C. 129, 149 F. 2d 511; Door v. Donaldson, 90 U.S. App. D. C. 188, 195 F. 2d 764. And see, supra, n. 23. MANUAL ENTERPRISES v. DAY. 517 478 Opinion of BRENNAN, J. And: "[S]ometimes you can get five people together, and you can give them five pieces of mail, and ask them to mark them, and you will get five different results, because in some cases it is just one of those things that depends on your own personal ideas and your own bringing up; it depends upon how strongly you feel about things, and there are some types of that material that you just can't get two people to agree on no matter how reasonably and how objectively they look upon it. It is just an honest difference of opm10n. We experience it all the time, so we have our conferences, and we decide what is going to be the best thing to do. . . . "We have no trouble with prosecutions on things that are definitely obscene, but it is this material that is this way and that way that is very, very difficult to prosecute." Hearings before the Select Committee on Current Pornographic Materials, House of Representatives, on Investigation of Litera~ ture Allegedly Containing Objectionable Material, 82d Cong., 2d Sess. 281, 282 (1952). It also is clear that this was not the first or last occasion on which Post Office practice has been brought to the attention of a congressional committee.30 But the report 30 See, e. g., Hearings before House Subcommittee No. 8 of the Committee on the Post Office and Post Roads on H. R. 5370, 74th Cong., 1st Sess (1935); and Hearings, supra, n. 25; S. Rep. No. 2179, 81st Cong., 2d Bess. (1950); S. Rep. No. 113, 84th Cong., 1st Sess. (1955); Attorney General's Committee on Administrative Procedure, Post Office Department (1940); 19 Op. Atty. Gen. 667 (1890) (upholding exclusion from the mails of allegedly obscene portions of Tolstoi's "Kreutzer Sonata"); 4 Op. Asst. Atty. Gen., Post-Office Dept. 741 (1908) (holding that § 1461 is a civil as well 518 OCTOBER TERM, 1961. Opinion of BRENNAN, J. 370 U.S. of the 1952 Select Committee, which listed § 1461 as a criminal statute, certainly did not dispel the continuing ambiguity surrounding that section. And the report said: "There are other means of handling this problem than by the ban of the censor, means which can be applied without danger of infringing on the freedom of the press .... " 31 But, in any event, testimony before committees, committee reports, and administrative usurpation, do not, either singly or collectively, suffice to establish authorization. IV. We have sustained the criminal sanctions of § 1461 against a challenge of unconstitutionality under the First Amendment. Roth v. United States, 354 U.S. 476. We have emphasized, however, that the necessity for safeguarding First Amendment protections for nonobscene materials means that Government "is not free to adopt whatever procedures it pleases for dealing with obscenity ... without regard to the possible consequences for constitutionally protected speech." Marcus v. Search Warrant, 367 U. S. 717, 731. I imply no doubt that as a criminal provision, and that the Post Office "in passing upon the mailability of matter under this statute . . . is not confined to the strict construction of the terms of the enactment which must be followed by a court in determining whether in a criminal case its provisions have been violated"). And see the sharp-and constitutionally colored-opposition to and rejection of a 1915 proposal that would have authorized the Postmaster General to close the mails to material sent by a person he had determined to be engaged in publishing obscene matter. Hearings before House Committee on the Post Office and Post Roads on Exclusion of Certain Publications from the Mails, 63d Cong., 3d Sess. (1915); Milwaukee Publishing Co. v. Burleson, 255 U.S. 407,424 (Brandeis, J., dissenting). 31 H. R. Rep. No. 2510, 82d Cong., 2d Sess. 5, 32. MANUAL ENTERPRISES v. DAY. 519 478 CLARK, J., dissenting. Congress could constitutionally authorize a noncriminal process in the nature of a judicial proceeding under closely defined procedural safeguards. But the suggestion that Congress may constitutionally authorize any process other than a fully judicial one immediately raises the gravest doubts. However, it is enough to dispose of this case that Congress has not, in § 1461, authorized the Postmaster General to employ any process of his own to close the mails to matter which, in his view, falls within the ban of that section. "The provisions ... would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country." Hannegan v. Esquire, Inc., 327 U.S., at 156. I, therefore, concur in the judgment of reversal. MR. JusTICE CLARK, dissenting. While those in the majority like ancient Gaul are split into three parts, the ultimate holding of the Court today, despite the clear congressional mandate found in § 1461, requires the United States Post Office to be the world's largest disseminator of smut and Grand Informer of the names and places where obscene material may be obtained. The Judicial Officer of the Post Office Department, the District Court, and the Court of Appeals have all found the magazines in issue to be nonmailable on the alternative grounds that they are obscene and that they contain information on where obscene material may be obtained. The Court, however, says that these magazines must go through the mails. Brother HARLAN, writing for himself and Brother STEWART, finds that the magazines themselves are unobjectionable because § 1461 is not so narrowly drawn as to prohibit the mailing of material "that incites immoral sexual conduct," and that the presence of information leading to obscene material does not taint 520 OCTOBER TERM, 1961. CLARK, J ., dissenting. 370 U.S. the magazines because their publishers were unaware of the true nature of this information. Brother BRENNAN, joined by THE CHIEF JusTICE and Brother DouGLAS, finds that § 1461 does not authorize the Postmaster General through administrative process to close the mails to matter included within its proscriptions. Since in my view the Postmaster General is required by § 1461 to reject nonmailable matter, I would affirm the judgment on the sole ground that the magazines contain information as to where obscene material can be obtained and thus are nonmailable. I, therefore, do not consider the question of whether the magazines as such are obscene. I. The procedures followed below can be described briefly. Petitioners deposited in the Post Office in Alexandria, Virginia, six parcels containing 405 copies of three magazines which they published. The parcels were directed to petitioners' agent in Chicago and marked as second class matter. Being unsealed and subject to inspection,1 the Postmaster noticed that the material appeared to be obscene. Under the regulations of the Post Office Department in effect since 1902, the Alexandria Postmaster notified the General Counsel of the Post Office Department in Washington and submitted samples of the material; the General Counsel determined the magazines to be nonmailable under § 1461 and notified petitioners' president. Petitioners sought injunctive relief against the Department in the District Court on the grounds that the magazines did not violate § 1461 and the procedure used amounted to an unconstitutional "ex parte administrative prior restraint," but the suit was dismissed for determination of the issue at an administrative hearing provided for by the Department's regulations. After a full 1 39 U.S. C. (Supp. II) § 4058. MANUAL ENTERPRISES v. DAY. 521 478 CLARK, J ., dissenting. hearing, at which petitioners did not dispute the congressional authorization to reject the six parcels for second class mailings, the Judicial Officer declared the material nonmailable. Petitioners contested this finding by judicial review in the District Court, where the action of the Judicial Officer was upheld. MR. JusTICE BRENNAN, as I have indicated, has reached the conclusion that when the Congress originally passed the Act in question some 97 years ago it granted no power to the Post Office to refuse to receive and carry matter declared by the Act to be nonmailable. Since this point was neither presented below nor argued here, I do not believe it to be properly before us. Brother BRENNAN, however, rests his concurring opinion on it and for that reason I shall discuss the issue. 2 Section 1461 explicitly provides that: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and ... [e]very written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained ... [i]s declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier." (Emphasis supplied.) Its genesis was in Section 16 of the Act of March 3, 1865, 13 Stat. 507, which when reported in the Senate had two parts: "[N]o obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; 2 I agree with the conclusion in that opinion that petitioners' constitutional claim cannot be considered here. 663026 0-62- 37 522 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 U.S. but all such obscene publications deposited in or received at any post office, or discovered in the mails, shall be seized and destroyed, or otherwise disposed of, as the Postmaster General shall direct." "[A]ny person or persons who shall deposit or cause to be deposited in any post office or branch post office of the United States, for mailing or for delivery, an obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character, shall be deemed guilty of a misdemeanor .... " Cong. Globe, 38th Cong., 2d Sess. 661. The sponsor of the bill advised the Senate that it had a twofold effect: "The first part of it provides that if such [obscene] publications are in the mails the postmasters may take them out; and the latter part provides a penalty and a punishment for those who put them into the mails." This explanation of the sponsor seems enough to undermine Brother BRENNAN'S contention, but there is even more. Senator Johnson of Maryland apparently feared that obscene matter might be mailed in sealed envelopes and that "the postmaster ... will break the seal." He moved to strike out the first part of the bill. Senator Sherman, however, objected, saying that "the leg-islative prohibition against carrying such matter when it -is known to the postmasters should be left. Probably the second clause allowing him to open mail matter should be struck out." Ibid. (Emphasis supplied.) Senator Johnson acquiesced in this suggestion, and thus the bill as finally passed clearly permitted postmasters to refuse matters which were known by them to be obscene, so long as seals were not broken.3 s The magazines here involved were second class matter and thus were unsealed and subject to inspection. 39 U. S. C. (Supp. II) § 4058. MANUAL ENTERPRISES v. DAY. 523 478 CLARK, J., dissenting. The 1873 postal regulations reflected this power to exclude obscene matter from the mails/ as have all succeeding ones, e. g., Postal Laws and Regulations ( 1893 ed.) § 335. In 1876 the Act was amended to substantially its present form. 19 Stat. 90. It not only declared certain material "to be non-mailable matter" but added that such "shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier." A single comment by the bill's sponsor in the House reflects the understanding that this section, both before and after amendment, authorized exclusion: "[T] he proposed bill in no wise changes the law as it now is except to provide a penalty for the circulation of obscene literature. By an oversight in drafting the original section the penalty applies only to the disposition of articles circulated or sold for the purpose of procuring abortion or preventing conception. Already this obscene class of matter spoken of in the other portion of the section is prohibited from passing through the mails, but no penalty is provided .... [ I] t in no way changes the section as it now is. It makes nothing non-mailable that is not now nonmailable. It merely provides a penalty .... " 4 Cong. Rec. 695 (1876). (Emphasis supplied.) Regulations establishing the procedure now used by the Department to determine questions of mailability were adopted in 1902. And in 1960 in a recodification the Congress included § 1461 within its collection of provisions which designate matter as nonmailable. 39 U.S. C. (Supp. II) § 4001 (a). • "All books, pamphlets, circulars, prints, &c., of an obscene, vulgar, or indecent character . . . must be withdrawn j rom the mails by postmasters at either the office of mailing or the office of delivery." Postal Laws and Regulations (1873 ed.) § 88. (Emphasis supplied.) 524 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 U.S. In light of the language of the statutes, the legislative history, the subsequent recodification and the consistent history of administrative interpretation, it stretches my imagination to understand how one could conclude that Congress did not authorize the Post Office Department to exclude nonmailable material. As Justice Brandeis said in Milwaukee Publ-ishing Co. v. Burleson, 255 U. S. 407, 418, 421 (1921) (dissenting opinion): "The scope of the Postmaster General's alleged authority is confessedly the same whether the reason for the nonmailable quality of the matter inserted in a newspaper is that it violates the Espionage Act, or the copyright laws, or that it is part of a scheme to defraud, or concerns lotteries, or is indecent, or is in any other respect matter which Congress has declared shall not be admitted to the mails. "As a matter of administration the Postmaster General, through his subordinates, rejects matter offered for mailing, or removes matter already in the mail, which in his judgment is unmailable. The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether in the individual case the power has been illegally exercised." II. Let us now turn to the opinion of Brother HARLAN and first take up the question whether magazines which indisputably contain information on where obscene material may be obtained can be considered nonmailable apart from the sender's scienter. Giving regard to the wording of § 1461, the interests involved, and the nature of the sanction imposed, I fail to see how the sender's scienter is anywise material to a determination of nonmailability. MANUAL ENTERPRISES v. DAY. 525 478 CLARK, J., dissenting. Section 1461 very explicitly demands that no information "be conveyed in the mails or delivered from any post office or by any letter carrier" if it in fact tells how obscene material can be obtained. This command running to those charged with the administration of the postal system is not conditioned by the words of the statute upon the sender's scienter or any remotely similar consideration. When it wants to inject a scienter requirement, the Congress well knows the words to use, as evidenced by the very next sentence in § 1461 establishing the criminal sanctions: "Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both .... " (Emphasis supplied.) Congress could not have made it more clear that the sender's knowledge of the material to be mailed did not determine its mailability but only his responsibility for mailing it. Nor is there any reason why Congress-in a civil actionshould have wanted it any other way. The sender's knowledge of the matter sought to be mailed is immaterial to the harm caused to the public by its dissemination. Finally, interpreting § 1461 to mean what it says would not give rise to the "serious constitutional question" envisioned. This fear is premised entirely on Smith v. Californi,a, 361 U. S. 147 (1959), which was a criminal case. Surely the prerequisites to criminal responsibility are quite different from the tests for the use of the mails. The present determination of nonmailability of bulk packages of magazines to newsstands rains no sanctions or incriminations upon the publishers of these magazines nor does it confiscate or impound the magazines. For these reasons, I believe the only possible interpretation of § 1461 is that the sender's scienter is immaterial in determining the mailability of information on where obscene material can be obtained. 526 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 U.S. In passing, it might be noted that a requirement of scienter gives rise to some interesting problems. For instance: Is the sender's scienter permanently fixed at the time the material is first unsuccessfully offered for mailing, or is his scienter to be re-evaluated when the material is again offered for mailing? How are equitable principles such as "clean hands" and "he who seeks equity must do equity" squared in a proceeding to enjoin an administrative non-mailable order with an insistence on mailing material which has been shown to contain information leading to obscene material? However, assuming that the knowledge of the sender is material in determining the mailability of these magazines, I submit the undisputed facts and findings compel as a matter of law the conclusion that the petitioners knew that materials published in their magazines informed their readers where obscene matter might be obtained. To say the least, these facts and findings are such that this Court ought not to set itself up as a fact-finder but should remand the case for a determination by those who have been entrusted initially with this responsibility.6 The content and direction of the magazines themselves are a tip-off as to the nature of the business of those who solicit through them. The magazines have no social, educational, or entertainment qualities but are designed solely as sex stimulants for homosexuals. They "consist almost entirely of photographs of young men in nude or practically nude poses handled in such a manner as to focus attention on their genitals or buttocks or to emphasize 5 If the express rejection by the Judicial Officer of petitioners' proposed finding that they had "no personal knowledge of the material sold by the advertisers" is taken as a finding to the contrary, then of course this is entitled to the deference accorded administrative findings, cf., e. g., Labor Board v. Walton Mfg. Co., 369 U. S. 404 (1962). MANUAL ENTERPRISES v. DAY. 527 478 CLARK, J., dissenting. these parts . " Because of this content the magazines do "not appeal to the ordinary male adult, ... [who] would have no interest in them and would not buy them under ordinary circumstances and . . . [therefore] the readers of these publications consist almost entirely of male homosexuals and possibly a few adolescent males .... " The publishers freely admit that the magazines are published to appeal to the male homosexual group. The advertisements and photographer lists in such magazines were quite naturally "designed so as to attract the male homosexual and to furnish him with names and addresses where nude male pictures in poses and conditions which would appeal to his prurient interest may be obtained." Moreover, the advertisements themselves could leave no more doubt in the publishers' minds than in those of the solicited purchasers. To illustrate: some captioned a picture of a nude or scantily attired young man with the legend "perfectly proportioned, handsome, male models, age 18-26." Others featured a photograph of a nude male with the area around the privates obviously retouched so as to cover the genitals and part of the pubic hair and offered to furnish an "original print of this photo." Finally, each magazine specifically endorsed its listed photographers and requested its readers to support them by purchasing their products. In addition, three of the four magazines involved expressly represented that they were familiar with the work of the photographers listed in their publications." Turning to Womack, the president and directing force of all three corporate publishers, it is even clearer that we are not dealing here with a "Jack and Jill" operation. Mr. Womack admitted that the magazines were planned for homosexuals, designed to appeal to and stim- 6 The magazines were offered in six bundles, apparently with copies of each of the four magazines intermingled among the bundles. 528 OCTOBER TERM, 1961. CLARK, J., dissenting. 370 U.S. ulate their erotic interests. To improve on this effect, he made suggestions to photographers as to the type of pictures he wanted. For example, he informed one of the studios listed in his publications that "physique fans want their 'truck driver types' already cleaned up, showered, and ready for bed ... [and] it is absolutely essential that the models have pretty faces and a personality not totally unrelated to sex appeal." Womack had also suggested to the photographers that they exchange customer names with the hope of compiling a master list of homosexuals. He himself had been convicted of selling obscene photographs via the mails. Womack v. United States, 111 U. S. App. D. C. 8, 294 F. 2d 204 (1961). More recently he has pleaded not guilty by reason of insanity to like charges. Washington Post, Feb. 1, 1962, p. D-3. Furthermore, he was warned in March, April, and July of 1959 that a number of his photographer advertisers were being prosecuted for mailing obscene matter and that he might be violating the law in transmitting through the mails their advertisements. However, he continued to disseminate such information through the mails, removing photographers from his lists only as they were convicted. Finally, through another controlled corporation not here involved, he filled orders for one of his advertisers sent in by the readers of his magazines. This material was found to be obscene and like all of the above facts and findings it is not contested here. The corporate petitioners are chargeable with the knowledge of what they do, as well as the knowledge of their president and leader. How one can fail to see the obvious in this record is beyond my comprehension. In the words of Milton: "0 dark, dark, dark amid the blaze of noon." For one to conclude that the above undisputed facts and findings are insufficient to show the required scienter, however stringently it may be defined, is in effect MANUAL ENTERPRISES v. DAY. 529 478 CLARK, J ., dissenting. to repeal the advertising provisions of § 1461. To condition nonmailability on proof that the sender actually saw the material being sold by his advertisers is to portray the Congress as the "mother" in the jingle, "Mother, may I go out to swim? Yes, my darling daughter. Hang your clothes on a hickory limb and don't go near the water." For these reasons I would affirm the decision below. 530 OCTOBER TERM, 1961. Syllabus. 370 u. s. GLIDDEN COMPANY v. ZDANOK ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, No. 242. Argued February 21, 26, 1962.-Decided June 25, 1962.* The Court of Claims and the Court of Customs and Patent Appeals are courts created under Article III of the Constitution; and their judges, including retired judges, may validly serve, by designation :md assignment by the Chief Justice of the United States under 28 U. S. C. §§ 293 (a) and 294 (d), on United States District Courts and Courts of Appeals. Pp. 531-589. 288 F. 2d 99; 111 U.S. App. D. C. 238,296 F. 2d 360, affirmed. Chester Bordeau argued the cause for petitioner in No. 242. With him on the briefs was William P. Smith. Morris Shapiro argued the cause for respondents in No. 242. With him on the briefs was Harry Katz. Solicitor General Cox argued the cause for the United States, as intervenor, in No. 242. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis and Philip R. Monahan. By special leave of Court, 368 U. S. 973, Francis M. Shea argued the cause in No. 242 for the Chief Judge and Associate Judges of the United States Court of Claims, as amici curiae, urging affirmance. With him on the briefs was Richard T. Conway. Briefs of amici curiae, in support of the petition in No. 242, were filed by William B. Barton for the Chamber of Commerce of the United States; John E. Branch for the Georgia State Chamber of Commerce; Henry E. Seyfarth for the Illinois State Chamber of Commerce; *Together with No. 481, Lurk v. United States, on certiorari to the United States Court of Appeals for the District of Columbia Circuit, argued February 21, 1962. GLIDDEN COMPANY v. ZDANOK. 531 530 Opinion of HARLAN, J. Edward C. First, Jr. and Gilbert Nurick for the Pennsylvania State Chamber of Commerce; Frank C. Heath for the Chamber of Commerce of the City of Cleveland, Ohio; Charles H. Tuttle for the American Spice Trade Association; Carl M. Gould for the California Manufacturers Association; Ashley Sellers and Jesse E. Baskette for the National Association of Margarine Manufacturers; and Daniel S. Ring for the National Paint, Varnish and Lacquer Association, Inc. Eugene Gressman argued the cause and filed briefs for petitioner in No. 481. Solicitor General Cox argued the cause for the United States in No. 481. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis, Beatrice Rosenberg and Philip R. Monahan. By special leave of Court, Roger Robb argued the cause and filed a brief in No. 481 for the Chief Judge and Associate Judges of the United States Court of Customs and Patent Appeals, as amici curiae, urging affirmance. MR. JusTICE HARLAN announced the judgment of the Court and an opinion joined by MR. JusTICE BRENNAN and MR. JusTICE STEWART. In Ex parte Bakelite Corp., 279 U.S. 438, and Williams v. United States, 289 U. S. 553, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independence by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that "such court is hereby declared to be a court established under article III of the Constitution of the United 532 OCTOBER TERM, 1961. Opinion of HARLAN, J. 370 U.S. States." 1 The petitioners in these cases invite us to reaffirm the authority of our earlier decisions, and thus hold for naught these congressional pronouncements, at least as sought to be applied to judges appointed prior to their enactment. No. 242 is a suit brought by individual employees in a New York state court to recover damages for breach of a col1ective bargaining agreement, and removed to the Federal District Court for the Southern District of New York by the defendant employer on the ground of diversity of citizenship. The employees' right to recover was sustained by a divided panel of the Court of Appeals, in an opinion by Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation of the Chief Justice of the United States under 28 U. S. C. § 293 (a).2 No. 481 is a criminal prosecution instituted in the United States District Court for the District of Columbia and resulting in a conviction for armed robbery. The trial was presided over by Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals sitting by similar designation.3 The petitioner's application for leave to appeal to the Court of Appeals 1 Act of July 28, 1953, § 1, 67 Stat. 226, added to 28 U. S. C. § 171 (Court of Claims); Act of August 25, 1958, § I, 72 Stat. 848, added to 28 U. S. C. § 211 (Court of Customs and Patent Appeals). See also Act of July 14, 1956, § 1, 70 Stat. 532, added to 28 U.S. C. § 251 (Customs Court). 2 "The Chief Justice of the United States may designate and assign temporarily any judge of the Court of Claims or the Court of Customs and Patent Appeals ... to perform judicial duties in any circuit, either in a court of appeals or district court, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises." 3 28 U. S. C. § 294 (d) authorizes assignment of a retired judge from either court to "perform such judicial duties as he is willing and able to undertake" in any circuit. GLIDDEN COMPANY v. ZDANOK. 533 530 Opinion of HARLAN, J. in forma pauperis, respecting the validity of this designation and alleged trial errors, was upheld by this Court last Term, 366 U. S. 712; we are now asked to review the Court of Appeals' affirmance of his conviction. Because of the significance of the "designation" issue for the federal judicial system, we granted certiorari in the two cases, 368 U. S. 814, 815, limited to the question whether the judgment in either was vitiated by the respective participation of the judges named.4 The claim advanced by the petitioners, that they were denied the protection of judges with tenure and compensation guaranteed by Article III, has nothing to do with the manner in which either of these judges conducted himself in these proceedings. No contention is made that either Judge Madden or Judge Jackson displayed a lack of appropriate judicial independence, or that either sought by his rulings to curry favor with Congress or the Executive. Both indeed enjoy statutory assurance of tenure and compensation,5 and were it not for the explicit provisions of Article III we should be quite unable to say that either judge's participation even colorably denied the petitioners independent judicial hearings. Article III, § 1, however, is explicit and gives the petitioners a basis for complaint without requiring them to point to particular instances of mistreatment in the record. It provides: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior 4 The petition in No. 481 sought certiorari only as to that issue. 5 10 Stat. 612 (1855), as amended, 28 U. S. C. § 173 (Court of Claims); 46 Stat. 590, 762 (1930), as amended, 28 U.S. C. §213 (Court of Customs and Patent Appeals). Judge Madden was appointed in 1941, Brief for Petitioner in No. 242, pp. 7-8, anN PRESS, INc., ET AL. v. FEDERAL TRADE COMMISSION. C. A. 2d Cir. Certiorari denied. Jules R. Teitler for petitioners. Solicitor General Cox, Assistant Attorney General Loevinger, Lionel Kestenbaurn, James Mel. Henderson and Jno. W. Carter, Jr. for respondent. Reported below: 295 F. 2d 869. No. 887. DIDONATO v. UNITED STATES. C. A. 2d Cir. Certiorari denied. James J. Hanrahan for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States. Reported below: 301 F. 2d 383. No. 914. BAUMGARTEN v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Daniel H. Greenberg for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 300 F. 2d 807. 918 OCTOBER TERM, 1961. June 11, 1962. 370 U.S. No. 902. HECLA Mrnrno Co. v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Valentine Brookes and Paul E. Anderson for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer, Lee A. Jackson and Harry Marselli for the United States. Reported below: 302 F. 2d 204. No. 912. PAWNEE INDIAN TRIBE OF OKLAHOMA v. UNITED STATES. Court of Claims. Certiorari denied. John M. Wheeler and John Wheeler, Jr. for petitioner. Solicitor General Cox, Roger P. Marquis, Ralph A. Barney and Hugh Nugent for the United States. Reported below: - Ct. Cl.-, 301 F. 2d 667. No. 915. FLORES v. TEXAS. Court of Criminal Appeals of Texas. Certiorari denied. Hume Cofer and John D. Cofer for petitioner. Reported below: - Tex. Cr. R. - , 353 S. W. 2d 852. No. 916. IN RE MAGNUS ET AL. C. A. 2d Cir. Certiorari denied. Boris Kostelanetz for petitioners. Solicitor General Cox, Assistant Attorney General Oberdorfer and Meyer Rothwacks for the United States. Reported below: 299 F. 2d 335. No. 919. GoNDECK v. PAN AMERICAN WoRLD ArnwAYs, INC., ET AL. C. A. 5th Cir. Certiorari denied. Arthur Roth and Norman Miller for petitioner. Leo M. Alpert for respondents. Reported below: 299 F. 2d 74. No. 929. ELLIS RESEARCH LABORATORIES, INc., ET AL. v. UNITED STATES. C. A. 7th Cir. Certiorari denied. Charles B. Cannon for petitioners. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and William W. Goodrich for the United States. ORDERS. 919 370 U.S. June 11, 1962. No. 909. PHILAMON LABORATORIES, INc., v. NATIONAL LABOR RELATIONS BoARD. C. A. 2d Cir. Certiorari denied. Sanford H. Markham for petitioner. Solicitor General Cox, Stuart Rothman, Dominick L. M anoli and Norton J. Come for respondent. Reported below: 298 F. 2d 176. No. 911. SOLER v. BoARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA. Supreme Court of Pennsylvania. Certiorari denied. Osmond K. Fraenkel and A. Harry Levitan for petitioner. Edward B. Soken for respondent. Reported below: 406 Pa. 168, 176 A. 2d 653. No. 921. UNITED STATES PIPE & FouNDRY Co. v. NATIONAL LABOR RELATIONS BOARD. C. A. 5th Cir. Certiorari denied. Douglas Arant, John J. Coleman, Jr. and E. L. All for petitioner. Solicitor General Cox, Stuart Rothman, Dominick L. M anoli and Norton J. Come for respondent. Reported below: 298 F. 2d 873. No. 927. BECK v. UNITED STATES. C. A. 9th Cir. Certiorari denied. MR. JusTICE WHITE took no part in the consideration or decision of this application. Charles S. Burdell for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorjer, Joseph M . Howard and Burt J. Abrams for the United States. Reported below: 298 F. 2d 622. No. 949. LITTERAL ET AL. v. INDEMNITY INSURANCE COMPANY OF NoRTH AMERICA. C. A. 7th Cir. Certiorari denied. C. E. Tate and John Alan Appleman for petitioners. Horace E. Gunn for respondent. Reported below: 300 F. 2d 340. 920 OCTOBER TERM, 1961. June 11, 1962. 370 u. s. No. 952. FREEMAN, SECRETARY OF AGRICULTURE, ET AL. v. ARMOUR & Co. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. THE CHIEF JusTICE and MR. JusTICE BLACK are of the opinion that certiorari should be granted. Solicitor General Cox, Assistant Attorney General Orrick, John G. Laughlin, Jr. and Sherman L. Cohn for petitioners. Herbert Brownell, Thomas F. Daly, Harry A. Inman and George E. Leonard for respondent. Rehearing Denied. No. 373, October Term, 1958. CAMERON IRON WoRKS, INc., v. LODGE No. 12, DISTRICT No. 37, INTERNATIONAL ASSOCIATION OF MACHINISTS, 358 u. s. 880. Motion for leave to file petition for rehearing denied. MR. JusTICE WHITE took no part in the consideration or decision of this application. No. 214. HoHENSEE v. NEws SYNDICATE, INc., 369 u. s. 659; No. 841. HERMAN SCHWABE, INC., v. UNITED SHOE MACHINERY CORP., 369 U.S. 865; No. 588, Misc. KoSTAL ET AL. v. STONER, JuDGE, ET AL., 369 U. S. 868; No. 870, Misc. GENSBURG v. CALIFORNIA STATE LEGISLATURE ET AL., 369 u. s. 875; and No. 1192, Misc. DUKES v. SAIN, SHERIFF, 369 U. S. 868. Petitions for rehearing denied. No. 920, Misc. WARREN v. LARSON, STATE TREASURER, 369 U. S. 427. Petition for rehearing denied. MR. Jus- TICE WHITE took no part in the consideration or decision of this application. ORDERS. 370U.S. June 18, 1962. JuNE 18, 1962.* Mi.sceUaneous Orders. 921 No. 1049, Misc. PARMER v. ILLINOIS. Motion for leave to file petition for writ of habeas corpus denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, for respondent. No. 1138, Misc. FRENCH v. Cox, WARDEN, ET AL.; No. 1246, Misc. NEAL v. CALIFORNIA; No. 1279, Misc. HICKS v. MrcHIGAN ET AL.; and No. 1292, Misc. DAUGHERTY v. TINSLEY, WARDEN. Motions for leave to file petitions for writs of habeas corpus denied. Probable Jurisdiction Noted. No. 959. GRAY, CHAIRMAN OF THE GEORGIA STATE DEMOCRATIC EXECUTIVE COMMITTEE, ET AL, v. SANDERS. Appeal from the United States District Court for the Northern District of Georgia. Probable jurisdiction noted. Motion to advance denied. MR. JUSTICE HARLAN would note probable jurisdiction and deny the motion to advance, with leave to the appellants to apply to this Court for a stay of the injunction order of the District Court pending determination of this appeal. Eugene Cook, Attorney General of Georgia, B. D. Jl-furphy and E. Freeman Leverett, Deputy Assistant Attorneys General, and Lamar W. Sizemore for appellants. Herman Heyman, Morris B. Abram and Robert E. Hicks for appellee. Reported below: 203 F. Supp. 158. *MR. JusTrcE FRANKFURTER took no part in the consideration or decision of cases in which orders were this day announced. 922 OCTOBER TERM, 1961. June 18, 1962. 370 U.S. Certiorari Granted. (See No. 7'82, ante, p. 292, and No. 841, Misc., ante, p. ~93.) Certiorari Denied. (See also No. 1141, Misc., ante, p. 290, and No. 1269, Misc., ante, p. 291.) No. 913. ANCHOR LINE, urn., ET AL. v. FEDERAL MARITIME COMMISSION ET AL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Ronald A. Capone, Cletus Keating and Elmer C. Maddy for petitioners. Solicitor General Cox, Assistant Attorney General Loevinger, Irwin A. Seibel, Robert E. Mitchell and Edward Schmeltzer for respondents. Reported below: 112 U.S. App. D. C. 40,299 F. 2d 124. No. 928. INTERNATIONAL LONGSHOREMEN's AssoCIATION ET AL. v. GEORGIA PoRTS AUTHORITY. Supreme Court of Georgia. Certiorari denied. Sewall Myer for petitioners. Eugene Cook, Attorney General of Georgia, and Anton F. Solms, Jr. for respondent. Reported below: 217 Ga. 712, 124 S. E. 2d 733. No. 935. BALLENGER PAVING Co., INc., v. GOLDBERG, SECRETARY OF LABOR. C. A. 5th Cir. Certiorari denied. John Izard, Jr. for petitioner. Solicitor General Cox, Charles Donahue, Jacob/. Karro and Isabelle R. Cappello for respondent. Reported below: 299 F. 2d 297. No. 948. YouNG ET AL. v. MoTION PICTURE AssoCIATION OF AMERICA ET AL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. David I. Shapiro, Ben Margolis, A. L. Wirin and Fred Okrand for petitioners. William P. Rogers for respondents. Reported below: 112 U. S. App. D. C. 35, 299 F. 2d 119. ORDERS. 923 370U.S. June 18, 1962. No. 926. GuLF PowER Co. v. SHAHID ET AL. C. A. 5th Cir. Certiorari denied. E. Dixie Beggs for petitioner. Reported below: 291 F. 2d 422; 298 F. 2d 793. No. 933. WALLACE v. UNITED STATES. C. A. 4th Cir. Certiorari denied. John J. Wilson and Philip S. Peyser for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorjer, Joseph M. Howard and John M. Brant for the United States. Reported below: 300 F. 2d 525. No. 934. MILLER v. COMMISSIONER OF INTERNAL REVENUE. C. A. 2d Cir. Certiorari denied. Mark H. Johnson for petitioner. Solicitor General Cox and Assistant Attorney General Oberdorjer for respondent. Reported below: 299 F. 2d 706. No. 939. KNIGHT ET AL. v. UNITED STATES. C. A. 5th Cir. Certiorari denied. Joseph H. Davis and J. Sewell Elliott for petitioners. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 297 F. 2d 675. No. 947. FULLER BRUSH Co. v. FULLER PRODUCTS Co. C. A. 7th Cir. Certiorari denied. W. Mahlon Dickerson and Harold Johnson for petitioner. Theodore W. Miller and Fleetwood M. McCoy for respondent. Reported below: 299 F. 2d 772. No. 951. NASSER -v. UNITED STATES. C. A. 7th Cir. Certiorari denied. N. George Nasser for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Giiinsky for the United States. Reported below: 301 F. 2d 243. 924 OCTOBER TERM, 1961. June 18, 1962. 370 U.S. N 0. 954. ALAMANCE INDUSTRIES, INC., ET AL. v. TRIUMPH HosIERY MILLS, INc., ET AL. C. A. 4th Cir. Certiorari denied. Jay H. Topkis for petitioners. Thornton H. Brooks, John W. Malley and Carl G. Love for respondents. Reported below: 299 F. 2d 793. No. 973. NATIONAL BISCUIT Co. v. NEW YoRK. Court of Appeals of New York. Certiorari denied. George R. Fearon for petitioner. Louis J. Lefkowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Julius L. Sackman for respondent. Reported below: 11 N. Y. 2d 743, 181 N. E. 2d 457. No. 1010. PACIFIC MARITIME AssocIATION v. SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, PACIFIC DISTRICT, ET AL.; and No. 1017. PACIFIC CoAsT MARINE FIREMEN, OILERS, W ATERTENDERS and WIPERS AssocIATION ET AL. v. PACIFIC MARITIME Assoc1ATION ET AL. C. A. 9th Cir. Certiorari denied. J. Paul St. Sure, Richard Ernst, Warner W. Gardner and Lawrence J. Lat to for Pacific Maritime Association. Duane B. Beeson for Pacific Coast Marine Firemen, Oilers, Watertenders and Wipers Association. Solicitor General Cox, Acting Assistant Attorney General Guilfoyle and Alan S. Rosenthal for the United States in opposition. Reported below: 304 F. 2d 437. No. 938. MORGANO v. PILLIOD, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. C. A. 7th Cir. Certiorari denied. MR. JuSTICE WHITE took no part in the consideration or decision of this petition. Anna R. Lavin and Richard E. Gorman for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome M. Feit for respondent. Reported below: 299 F. 2d 217. ORDERS. 370 u. s. June 18, 1962. No. 716. ABBRESCIA v. UNITED STATES; No. 895. DORAN v. UNITED STATES; and 925 No. 956. GRIECO v. UNITED STATES. C. A. 7th Cir. Certiorari denied. MR. JusTICE DouGLAS is of the opinion that certiorari should be granted. Julius Lucius Echeles for petitioners in Nos. 716 and 895. Frank W. Oliver for petitioner in No. 956. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 299 F. 2d 511. No. 885. WILLIAMS v. HoT SHOPPES, INC. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. MR. JusTICE DouGLAS is of the opinion that certiorari should be granted. Petitioner pro se. John J. Carmody, Charles J. Steele and John J. Carmody, Jr. for respondent. Reported below: See 110 U. S. App. D. C. 358, 293 F. 2d 835. No. 910. WILBURN BOAT Co. ET AL. v. FmEMAN's FuND INSURANCE Co. C. A. 5th Cir. Certiorari denied. MR. JuSTICE BLACK is of the opinion that certiorari should be granted. Hobert Price and T. G. Schirmeyer for petitioners. Edward B. Hayes and Joe A. Keith for respondent. Reported below: 300 F. 2d 631. No. 39, Misc. BAILEY v. SACKS, WARDEN, ET AL. Supreme Court of Ohio. Certiorari denied. Petitioner pro se. Mark McElroy, Attorney General of Ohio, and Aubrey A. Wendt, Assistant Attorney General, for respondents. No. 223, Misc. SMITH v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W . Patterson for the United States. 926 OCTOBER TERM, 1961. June 18, 1962. 370U.S. No. 267, Misc. FosTER v. BOLES, WARDEN. Supreme Court of Appeals of West Virginia. Certiorari denied. Petitioner pro se. C. Donald Robertson, Attorney General of West Virginia, George H. Mitchell and Simon M. Bailey, Assistant Attorneys General, for respondent. No. 294, Misc. IN RE SMITH. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States. No. 568, Misc. GAMBLE v. SACKS, WARDEN. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Mark McElroy, Attorney General of Ohio, and Aubrey A. Wendt, Assistant Attorney General, for respondent. No. 595, Misc. SMITH v. SETTLE, WARDEN, ET AL. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for respondents. No. 760, Misc. LYONS ET AL. v. OHIO. Supreme Court of Ohio. Certiorari denied. Petitioners pro se. Robert L. Marrs for respondent. No. 792, Misc. PELIO v. NEw YoRK. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Frank D. O'Connor and Benj. J. Jacobson for respondent. No. 1109, Misc. BOLES v. HEARD, CORRECTIONS DIRECTOR. Court of Criminal Appeals of Texas. Certiorari denied. Petitioner pro se. Will"Wilson, Attorney General of Texas, and Sam R. Wilson, Linward Shivers and Charles R. Lind, Assistant Attorneys General, for respondent. ORDERS. 927 370 u. s. June 18, 1962. No. 895, Misc. BROUGHTON v. NEw YoRK. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Frank S. Hogan and Harold Roland Shapiro for respondent. No. 903, Misc. SLAUGHTER v. ILLINOIS. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, for respondent. No. 974, Misc. SMITH v. SETTLE, WARDEN. C. A. 8th Cir. Certiorari denied . . Petitioner prose. Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and David Rubin for respondent. No. 1020, Misc. PUGH v. VIRGINIA. Supreme Court of Appeals of Virginia. Certiorari denied. Petitioner prose. Reno S. Harp III, Assistant Attorney General of Virginia, for respondent. No. 1074, Misc. STONE v. UNITED STATES. C. A. 4th Cir. Certiorari denied. Charles L. Abernethy, Jr. for petitioner. Solicitor General Cox, Ass-istant Attorney General Miller, Beatrice Rosenberg and J. F. B-ishop for the United States. Reported below: 298 F. 2d 441. No. 1112, Misc. BANTZ v. KLINGER, SuPERINTENDENT, CALIFORNIA MEN'S CoLONY, ET AL. C. A. 9th Cir. Certiorari denied. No. 1129, Misc. BERRY v. STATE BoARD OF PAROLE OF COLORADO. Supreme Court of Colorado. Certiorari denied. No. 1130, Misc. HUNTER v. MYERS, WARDEN. C. A. 3d Cir. Certiorari denied. 928 OCTOBER TERM, 1961. June 18, 1962. 370 u. s. No. 1128, Misc. PATE v. UNITED STATES. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. Reported below: 297 F. 2d 166. No. 1133, Misc. OWINGS v. JAMIESON, SHERIFF, ET AL. Supreme Court of New Jersey. Certiorari denied. Rudolph L. Zalowitz for petitioner. No. 1134, Misc. LINKLETTER v. WALKER, WARDEN, ET AL. Supreme Court of Louisiana. Certiorari denied. No. 1135, Misc. KELLEY v. ILLINOIS. Supreme Court of Illinois. Certiorari denied. Robert Wood Tullis for petitioner. Reported below: 23 Ill. 2d 193, 177 N. E. 2d 830. No. 1136, Misc. VALENTIN v. MURPHY, WARDEN. C. A. 2d Cir. Certiorari denied. No. 1137, Misc. JENKINS v. UNITED STATES. C. A. 5th Cir. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 293 F. 2d 96. No. 1145, Misc. WHITTINGTON v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. No. 1417, Misc. JOHNSON ET AL. v. NEW JERSEY. Supreme Court of New Jersey. Certiorari denied. M. Gene Haeberle, Stanford Shmukler and Curtis R. Reitz for petitioners. ORDERS. 929 370U.S. June 18, 25, 1962. No. 1132, Misc. TRUEBLOOD v. TINSLEY, WARDEN. Supreme Court of Colorado. Certiorari denied. Samuel D. Menin for petitioner. J. F. Brauer, Assistant Attorney General of Colorado, for respondent. Reported below: 148 Colo.-, 366 P. 2d 655. No. 1309, Misc. CUMMINGS v. BENNETT, WARDEN. C. A. 8th Cir. Certiorari denied. No. 1120, Misc. SELF v. WASHINGTON. Supreme Court of Washington. Certiorari denied. MR. JUSTICE DouGLAS is of the opinion that certiorari should be granted. John D. Blankenship for petitioner. Charles 0. Carroll and Joel A. C. Rindal for respondent. Reported below: 59 Wash. 2d 62, 366 P. 2d 193. No. 1172, Misc. GARNER v. CALIFORNIA. Supreme Court of California. Certiorari denied. MR. JUSTICE DouGLAS is of the opinion that certiorari should be granted. Gregory S. Stout for petitioner. Stanley Mask, Attorney General of California, William E. James, Assistant Attorney General, and Jack E. Goertzen, Deputy Attorney General, for respondent. Reported below: 57 Cal. 2d 135, 367 P. 2d 680. JUNE 25, 1962.* Miscellaneous Orders. No. 13, Original. TEXAS v. NEW JERSEY ET AL. In the light of the concessions that no State will proceed with any action, other than- discovery proceedings, the motion for temporary injunctions is denied. *MR. JusTICE FRANKFURTER took no part in the consideration or decision of cases in which orders were this day announced. 930 OCTOBER TERM, 1961. June 25, 1962. 370 u. s. No. 8, Original. ARIZONA v. CALIFORNIA ET AL. The petition of the Special Master for the payment of an additional fee is granted and the parties are ordered to make additional payments totaling $50,000 to Simon H. Rifkind, Esquire, Special Master, on account of the fee to be awarded by this Court as compensation for his services as Special Master. Such payments are to be made in the following proportions: Arizona, 28%; Califo~nia, 28%; United States, 28%; Nevada, 12%; New Mexico, 2%; and Utah, 2%. This order is subject to such further award, allowance or division of costs or fees as this Court may deem proper for his past or future services. THE CHIEF JusTICE took no part in the consideration or decision of this petition. [For earlier orders herein, see 344 u. s. 806,919; 345 u. s. 914,968; 347 u. s. 985,986; 348 U. S. 947; 350 U. S. 114, 812, 880,955; 351 U.S. 977; 354 U.S. 918; 357 U.S. 902; 364 U.S. 940; 368 U.S. 893,917, 950; ante, p. 906.] No. 476. DouGLAS ET AL. v. CALIFORNIA. Certiorari, 368 U. S. 815, to the Supreme Court of California. Argued April 17, 1962. This case is restored to the calendar for reargument. Burton Marks and Marvin M. Mitchelson argued the cause and filed a brief for petitioners. Jack Goertzen, Deputy Attorney General of California, and William E. James, Assistant Attorney General, argued the cause for respondent. With them on the brief was Stanley M osk, Attorney General. Reported below: See 187 Cal. App. 2d 802, 10 Cal. Rptr. 188. No. 771. PEARLMAN, TRUSTEE IN BANKRUPTCY, v. RELIANCE INSURANCE Co. Certiorari, 369 U. S. 847, to the United States Court of Appeals for the Second Circuit. The motion of John G. Street, Jr., for leave to file brief, as amicus curiae, is granted. Reported below: 298 F. 2d 655. ORDERS. 931 370 u. s. June 25, 1962. No. 477. YELLIN v. UNITED STATES. Certiorari, 368 U. S. 816, to the United States Court of Appeals for the Seventh Circuit. Argued April 18-19, 1962. This case is restored to the calendar for reargument. Victor Rabinowitz argued the cause for petitioner. With him on the briefs was Leonard B. Boudin. Bruce J. Terris argued the cause for the United States. With him on the briefs were Solicitor General Cox, Assistant Attorney General Yeagley, George B. Searls, Kevin T. Maroney and Lee B. Anderson. Reported below: 287 F. 2d 292. No. 799. UNITED STATES v. PHILADELPHIA NATIONAL BANK ET AL. Appeal from the United States District Court for the Eastern District of Pennsylvania (probable jurisdiction noted, 369 U. S. 883); and No. 1037. HoNEYWOOD ET AL. v. RocKEFELLER, Gov- ERNOR OF NEW YoRK, ET AL. Appeal from the United States District Court for the Eastern District of New York. The motions to advance are denied. No. 1018. CONNECTICUT COMMITTEE AGAINST PAY TV ET AL. v. FEDERAL COMMUNICATIONS COMMISSION. On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. The motion of RKO General Phonevision Company to be named a party respondent is granted. No. 928, Misc. HAYES v. MARYLAND. The motion for leave to file a petition for writ of habeas corpus is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted and the case is transferred to the United States District Court for the District of Maryland. Chaapel v. Cochran, 369 U. S. 869. Petitioner pro se. Thomas B. Finan, Attorney General of Maryland, and Robert F. Sweeney, Assistant Attorney General, for respondent. 932 OCTOBER TERM, 1961. June 25, 1962. 370U. S. No. 1011. GIDEON v. COCHRAN, CORRECTIONS DIRECTOR. Certiorari, ante, p. 908, to the Supreme Court of Florida. The motion for the appointment of counsel is granted and it is ordered that Abe Fortas, Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 1157, Misc. KANE v. LAVALLEE, WARDEN; No. 1206, Misc. WILBORN v. CALIFORNIA; No. 1287, Misc. VAN PELT v. CALIFORNIA ET AL.; No. 1334, Misc. WHITTINGTON v. OVERHOLSER, Hos- PITAL SUPERINTENDENT; No.1343, Misc. HARTFORDV. WicK,HosPITALDIRECTOR; No. 1408, Misc. THOMAS v. HERITAGE, WARDEN; No. 1430, Misc. Ex PARTE SCHLETTE; No. 1448, Misc. HAMMOND v. LANGLOIS, WARDEN, ET AL.; and No.1458,Misc. FARRO v. KENTON, WARDEN, ET AL. Motions for leave to file petitions for writs of habeas corpus denied. No. 1183, Misc. SNow v. PATE, WARDEN; No. 1184, Misc. KING v. McNEILL, HosPITAL DIRECTOR; No. 1341, Misc. BLACK v. UNITED STATES; No. 1432, Misc. LAWRENSON v. ANDERSON, JAIL Su- PERINTENDENT; and No. 1438, Misc. WooTE~ v. BoMAR, WARDEN. Motions for leave to file petitions for writs of habeas corpus denied. Treating the papers submitted as petitions for writs of certiorari, certiorari is denied. No.1140, Misc. RYAN v. BucHKOE, WARDEN; and No. 1429, Misc. PIERRE v. CALIFORNIA. Motions for leave to file petitions for habeas corpus and for other relief denied. ORDERS. 933 370 U.S. June 25, 1962. No. 997, Misc. KoACHES v. CouRT OF CoMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA; No. 1283, Misc. WATTS v. CASTLE, CIRCUIT JUDGE; No. 1296, Misc. WATSON v. HooPER, JunoE; No. 1376, Misc. WEBB v. COMPTON, CHIEF JUSTICE OF THE SuPREME CouRT OF NEW MExrco; and No. 1444, Misc. BARKER v. SuPREME CouRT OF OHIO. Motions for leave to file petitions for writs of mandamus denied. Probable Jurisdiction Noted. No. 937. NEw JERSEY ET AL. v. NEw YoRK, SusQUEHANNA & WESTERN RAILROAD Co. Appeal from the United States District Court for the District of New Jersey. Probable jurisdiction noted. Arthur J. Sills, Attorney General of New Jersey, and William Gural, Deputy Attorney General, for appellants. Vincent P. Biunno and Charles H. Hoens, Jr. for appellee. Reported below: 200 F. Supp. 860. No. 969. BANTAM BooKs, lNc., ET AL. v. SULLIVAN ET AL. Appeal from the Superior Court of Rhode Island. Probable jurisdiction noted. Horace S. Manges for appellants. Reported below: See - R. I. - , 176 A. 2d 393. Certiorari Granted. (See also No. 388, Misc., ante, p. 721; No. 447, Misc., ante, p. 724; No. 535, Misc., ante, p. 725; No. 928, Misc., supra; No. 965, Misc., ante, p. 722; Misc. Nos. 1191 and 1234, ante, p. 723; No. 1274, Misc., ante, p. 727; and No. 1357, Misc., ante, p. 728.) No. 80. LYNUM v. ILLINOIS. Supreme Court of Illinois. Certiorari granted. Jewel Stradford Rogers for petitioner. William G. Clark, Attorney General of Illinois, for respondent. Reported below: 21 Ill. 2d 63, 171 N. E. 2d 17. 934 OCTOBER TERM, 1961. June 25, 1962. 370 U.S. No. 995. WILLNER v. COMMITTEE ON CHARACTER AND FITNESS, APPELLATE DIVISION OF THE SuPREMf: CouRT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. Court of Appeals of New York. Certiorari granted. Henry Waldman for petitioner. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Daniel M. Cohen, Assistant Attorney General, for respondent. Reported below: See 11 N. Y. 2d 866, 182 N. E. 2d 288. No. 85. AVENT ET AL. v. NORTH CAROLINA. Supreme Court of North Carolina. Certiorari granted. Jack Greenberg, James M. Nabrit III, William A. Marsh, Jr., F. B. McKissick, C. 0. Pearson, M. Hugh Thompson, William T. Coleman, Jr., Louis H. Pollak, Charles A. Reich and Spottswood W. Robinson Ill for petitioners. T. W. Bruton, Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General, for respondent. Reported below: 253 N. C. 580, 118 S. E. 2d 47. No. 694. GoBER ET AL. v. CITY OF BIRMINGHAM. Court of Appeals of Alabama. Certiorari granted. Jack Greenberg, Constance Baker Motley, Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., Oscar W. Adams, Jr., James M. Nabrit III and Louis H. Pollak for petitioners. Earl McBee for respondent. Reported below: - Ala. App.-, 133 So. 2d 697. No. 721. SHUTTLESWORTH ET AL. v. CrTY OF BIRMINGHAM. Court of Appeals of Alabama. Certiorari granted. Jack Greenberg, Constance Baker Motley, Arthur D. Shores, Orzell Billingsley, Peter A. Hall, Oscar Adams and James M. Nabrit III for petitioners. Earl McBee for respondent. Reported below: -Ala. App.-, 134 So. 2d 213; - Ala. App. - , 134 So. 2d 214. ORDERS. 935 370 u. s. June 25, 1962. No. 287. GRIFFIN ET AL. v. MARYLAND. Court of Appeals of Maryland. Certiorari granted. Joseph L. Rauh, Jr., John Silard, Thurgood Marshall, Jack Greenberg and James M. Nabrit Ill for petitioners. Thomas B. Finan, Attorney General of Maryland, and Clayton A. Dietrich, Assistant Attorney General, for respondent. Reported below: 225 Md. 422, 171 A. 2d 717. No. 638. LOMBARD ET AL. v. LomsIANA. Supreme Court of Louisiana. Certiorari granted. Petitioners pro se. Jack P. F. Gremillion, Attorney General of Louisiana, M. E. Culligan, Assistant Attorney General, Richard A. Dowling and J. David McNeill for respondent. Reported below: 241 La. 958, 132 So. 2d 860. No. 750. PETERSON ET AL. v. CITY OF GREENVILLE. Supreme Court of South Carolina. Certiorari granted. Jack Greenberg, Constance Baker Motley, James M. Nabrit Ill, Matthew J. Perry, Lincoln C. Jenkins, Jr. and Willie T. Smith for petitioners. Thomas A. Wofford and Theodore A. Snyder, Jr. for respondent. Reported below: 239 S. C. 298, 122 S. E. 2d 826. No. 729. WRIGHT ET AL. v. GEORGIA. Supreme Court of Georgia. Certiorari granted. Jack Greenberg and Constance Baker M o{ley for petitioners. Eugene Cook, Attorney General of Georgia, G. Hughel Harr-ison, Assistant Attorney General, Andrew J. Ryan, Jr., Solicitor General, and Sylvan A. Garfunkel, Assistant Solicitor General, for respondent. Reported below: 217 Ga. 453, 122 S. E. 2d 737. No. 817, Misc. DRAPER ET AL. v. WASHINGTON ET AL. Motion for leave to proceed in forma pauper-is and petition for writ of certiorari to the Supreme Court of Washington granted. Case transferred to the appellate docket. Reported below: 58 Wash. 2d 830,365 P. 2d 31. 663026 0-62-54 936 OCTOBER TERM, 1961. June 25, 1962. 370 u. s. No. 966. DELANO-EARLIMART IRRIGATION DISTRICT ET AL. v. RANK ET AL. C. A. 9th Cir. Certiorari granted. THE CHIEF JusTICE took no part in the consideration or decision of this petition. Denver C. Peckinpah, Adolph Moskovitz, James K. Abercrombie, Irl Davis Brett and J. 0. Reavis for petitioners. John H. Lauten and Claude L. Rowe for respondents. Reported below: 293 F. 2d 340; 307 F. 2d 96. No. 996, Misc. SANDERS v. UNITED STATES. Motion for leave to proceed in f orma pauperis and petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit granted. Case transferred to the appellate docket. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Sidney M. Glazer for the United States. Re• ported below: 297 F. 2d 735. Certiorari Denied. (See also No. 1124, Misc., ante, p. 720; No. 1153, Misc., ante, p. 721; and Misc. Nos. 1183, 1184, 1341, 1432 and 1438, supra.) No. 237. CHICAGO, RocK ISLAND & PACIFIC RAILROAD Co. ET AL. v. SwITCHMEN's UNION OF NORTH AMERICA ET AL. C. A. 2d Cir. Certiorari denied. Kenneth F. Burgess for petitioners. Ruth Weyand for respondents. Reported below: 292 F. 2d 61. No. 671. LARSEN v. LADD, CoMMISSIONER OF PATENTS. United States Court of Customs and Patent Appeals. Certiorari denied. Dean Laurence and Herbert I. Sherman for petitioner. Solicitor General Cox, Assistant Attorney General Orrick and Morton Hollander for respondent. Reported below: 49 C. C. P.A. (Pat.) 711, 292 F. 2d 531. ORDERS. 937 370 u. s. June 25, 1962. No. 722. MooRE-McCORMACK LINES, INc., v. RICHARDSON, EXECUTRIX, ET AL. C. A. 2d Cir. Certiorari denied. Eugene Underwood for petitioner. Henry N. Longley, Benjamin H. Siff, Bernard Rolnick and Louis R. H arolds for respondents. Reported below: 295 F. 2d 583. No. 800. CROWN ZELLERBACH CoRP. v. FEDERAL TRADE COMMISSION. C. A. 9th Cir. Certiorari denied. Arthur H. Dean, Howard T. Milman and Philip S. Ehrlich for petitioner. Solicitor Gener.al Cox, Assistant Attorney General Loevinger, Lionel Kestenbaum and James Mel. Henderson for respondent. Reported below: 296 F. 2d 800. No. 823. PAN AMERICAN PETROLEUM CORP. v. KANSAS- NEBRASKA NATURAL GAs Co., INC. C. A. 8th Cir. Certiorari denied. William J. Grove, Carroll L. Gilliam, Byron M. Gray, W.W. Heard and Wm. H. Emerson for petitioner. Oscar Cox, Malcolm S. Langford, James D. Conway and Richard B. Berryman for respondent. Solicitor General Cox, Ralph S. Spritzer, Richard A. Solomon, Howard E. Wahrenbrock and Josephine H. Klein for the Federal Power Commission, and George D. Horning, Jr. for Western Natural Gas Co., amici curiae. Reported below: 297 F. 2d 561. No. 958. WASHINGTON-OREGON SHIPPERS CooPERATIVE ASSOCIATION, INC., v. SCHUMACHER ET AL., TAX COMMISSIONERS OF WASHINGTON. Supreme Court of Washington. Certiorari denied. Sam A. Wright for petitioner. John J. O'Connell, Attorney General of Washington, John W. Riley, Chief Assistant Attorney General, and Timothy R. Malone, Assistant Attorney General, for respondents. Reported below: 59 Wash. 2d 159, 367 P. 2d 112. 938 OCTOBER TERM, 1961. June 25, 1962. 370 u. s. No. 943. SLAVITT v. UNITED STATES. Court of Claims. Certiorari denied. Charlotte Slavitt pro se. Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr. for the United States. Reported below: -Ct.Cl.-. No. 955. FONG, TRADING AS ASIA DEVELOPMENT CORP., ET AL. v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Smith W. Brookhart, Ralph E. Becker, Benjamin H. Dorsey and F. Murray Cal"lahan for petitioners. Solicitor General Cox, Assistant Attorney General Orrick and Morton Hollander for the United States. Reported below: 300 F. 2d 400. No. 960. CANADIAN NATIONAL RAILWAY Co. v. TAYLOR. C. A. 2d Cir. Certiorari denied. H. H. Powers for petitioner. Joseph A. McNamara for respondent. Reported below: 301 F. 2d 1. No. 965. MARQUES-ARBONA v. SECRETARY OF THE TREASURY OF PUERTO Rico. Supreme Court of Puerto Rico. Certiorari denied. Santos P. Amadeo for petitioner. J. B. Fernandez Badillo, Solicitor General of Puerto Rico, for respondent. Reported below: - P.R. No. 1025. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA v. GOLDBERG, SECRETARY OF LABOR. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Edward Bennett Williams and Raymond W. Bergan for petitioner. Solicitor General Cox, Acting Assistant Attorney General Guilfoyle, A"lan S. Rosenthal and Charles Donahue for respondent. Reported below: 112 U. S. App. D. C. 391, 303 F. 2d 402. ORDERS. 939 370 U.S. June 25, 1962. No. 950. JACK DANIEL DISTILLERY, LEM MoTLOW, PRoP., INc., v. HOFFMAN DISTILLING Co. ET AL. C. A. 6th Cir. Certiorari denied. John J. Hooker, Joe E. Daniels and Chauncey P. Carter for petitioner. Charles B. Cannon, John K. Skaggs, Jr. and James E. Fahey for respondents. Reported below: 298 F. 2d 606. No. 964. MAIN LINE THEATRES, INC., ET AL. v. PARAMOUNT FILM DISTRIBUTING CoRP. ET AL. C. A. 3d Cir. Certiorari denied. Harry Norman Ball for petitioners. W. Bradley Ward, Samuel D. Slade, Louis J. Goffman and H. Francis DeLone for respondents. Reported below: 298 F. 2d 801. No. 974. ART NATIONAL MANUFACTURERS DISTRIBUTING Co. ET AL. v. FEDERAL TRADE CoMMISSION. C. A. 2d Cir. Certiorari denied. B. Pattl Noble for petitioners. Solicitor General Cox, Assuitant Attorney General Loevinger, James Mel. Henderson and Jno. W. Carter, Jr. for respondent. Reported below: 298 F. 2d 476. No. 977. FUNKHOUSER v. UNITED STATES. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Oberdorfer and Joseph M. Howard for the United States. Reported below: 299 F. 2d 940. No. 981. McCuE ET AL. v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Simon H. Rif kind, Samuel J. Silverman and George F. Lowman for petitioners. Solicitor General Cox, Acting Assistant Attorney Gener.al Jones and J. William Doolittle for the United States. Reported below: 301 F. 2d 452. No. 1028. ATKINSON ET AL. v. CITY OF DALLAS. Supreme Court of Texas. Certiorari denied. Petitioners prose. Henry P. Kucera for respondent. 940 OCTOBER TERM, 1961. BLACK, J ., dissenting. 370 U.S. No. 907. N. V. HANDELSBUREAU LA MoLA v. KENNEDY, ATTORNEY GENERAL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Lawrence S. Lesser and Dinsmore Adams for petitioner. Solicitor General Cox, Assistant Attorney General Orrick, John G. Laughlin, Jr. and Pauline B. Heller for respondent. Reported below: 112 U. S. App. D. C. 92, 299 F. 2d 923. MR. JusTICE BLACK dissents: The Trading with the Enemy Act 1 authorizes the Government to seize and confiscate under some circumstances the property of aliens. By its denial of certiorari in this case the Court leaves standing a judgment of confiscation 2 under circumstances which in my judgment the Act does not authorize. I therefore feel impelled to dissent. In May 1940 Hitler's forces, violating the historic neutrality of the Netherlands, suddenly invaded that country, largely destroyed one of its finest cities and within a short time occupied the whole country. Although the United States soon recognized and allied itself with a group of Royal Netherlands citizens who had escaped and set up an independent government-in-exile in London; that occupation continued until May 1945 when troops from this country and its allies finally managed to liberate the Netherlands from the German forces. Within several weeks this country's ally, the Free Netherlands Government, assumed lawful command of its own citizens and territory. It was not, however, until some five and a 1 40 Stat. 411, as amended, 50 U. S. C. App. § 1 et seq. 2 112 U.S. App. D. C. 92, 299 F. 2d 923. 3 See Mutual Aid Agreement between the United States and the Netherlands, July 8, 1942, 56 Stat. 1554; and Mutual Aid Agreement, April 30, 1945, 59 Stat. 1627. HANDELSBUREAU LA MOLA v. KENNEDY. 941 940 BLACK, J., dissenting. half years later, long after the end of the Nazi occupation and the return of the lawful government of the Netherlands, that the Alien Property Custodian in 1951, purportedly acting under the Trading with the Enemy Act, seized and confiscated the four bank accounts in this country which belonged to the petitioning Dutch company and which form the object of this lawsuit. That confiscation of petitioner's property was sustained by the Court of Appeals on the sole ground that the Netherlands, our friend and ally, where petitioner was incorporated, had been overrun and occupied by Germany during the war. Because this result seems so contrary to the purpose of Congress in passing the Trading with the Enemy Act and raises such grave constitutional questions under the Fifth Amendment's command that the Government not take private property without paying just compensation, I think we should grant certiorari to review the Court of Appeals' decision. The Trading with the Enemy Act provides that the President may seize "During the time of war" "any property in which any foreign country or any national thereof has or has had any interest." That Act also provides, however, that "Any person not an enemy or ally of enemy" may sue to compel the return of his property. And even though the Act defines an "enemy" as "Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war ... and any corporation incorporated within such territory ... ," it does not say, as did the Court of Appeals, that every corporation which was at any time present within the territory while that territory was occupied by an enemy is an "enemy" within the meaning of the Act. I do not see how it can be thought that Congress intended by this Act to authorize 942 OCTOBER TERM, 1961. BLACK, J., dissenting. 370 u. s. the confiscation, between the end of actual occupation in 1945 and the official end of the war in 1951,4 of every bit of property in this country owned by the citizens and corporations of the Netherlands, France, Norway, Belgium and other countries solely because those countries, our staunch friends and allies, had during the war been overrun by an enemy that was trying to destroy them and us.5 I can understand how Congress might be thought to have desired to authorize the President to seize the property of citizens and corporations of friendly countries and allies when those countries were at the time being occupied by an enemy which might be able to use their property to carry on war against us. I do not believe, however, that Congress intended to place a permanent taint on the property of our friends so that whenever that property showed up in this country it might be seized-even though long after our friends' countries had been fortunate enough to escape the occupation clutches of our common enemy. It would be bad enough after the end of occupation to confiscate the property of friendly aliens which had been in this country during the occupation but to go beyond that and confiscate as here a bank account which did not even exist in this country until 1948, three years after the return of lawful government to the Netherlands, seems wholly contrary to any purpose Congress could have had in the Act. Moreover, to construe this statute this way raises serious questions about the constitutionality of the Act as applied, for it has long been settled that the provision of the Fifth Amendment requiring the payment of just compensation 4 Joint Resolution to terminate the state of war between the United States and the Government of Germany, October 19, 1951, 65 Stat. 451. 5 Cf. Willenbrock v. Rogers, 255 F. 2d 236. HANDELSBUREAU LA MOLA v. KENNEDY. 943 940 BLACK, J., dissenting. when private property is taken for public use protects friendly aliens as well as citizens.6 And it is obviously no answer to this to say, as did the Court of Appeals, that the confiscation was proper because this Government needed the property after the war to support the cost of its past war efforts. Our constitutional guarantee against uncompensated government seizure of private property surely does not melt away merely because public officials believe the Government needs to seize property without paying for it. This case would of course be far different if the Court of Appeals had rested on the two other grounds urged by the Government below: (1) that petitioner was "enemytainted," (2) and also that it was engaged in doing business in Germany which was enemy territory. But the Court of Appeals did not rest on either of these grounds and we must accept the case as it comes to us or fail to accord petitioner its full day in court. This is particularly true here, since the question of enemy domination, if litigated, would have to be decided in light of Kaufman v. Societe Internationale,7 where we held that innocent stockholders even of enemy corporations must be protected from having their property confiscated. It is true that the refusal of the Court to grant certiorari in this case gives no express approval to the interpretation of the Act made by the Court of Appeals and leaves that question open for final authoritative decision later. The Court's refusal to act now, however, does leave standing the Court of Appeals' decision as a precedent in the lower federal courts which will until reviewed here hang as a cloud over the property rights in this country of citizens of foreign countries. 6 Russian Volunteer Fleet v. United States, 282 U.S. 481, 491-492. 7 343 u. s. 156. 944 OCTOBER TERM, 1961. June 25, 1962. 370 u. s. No. 957. SoBLEN v. UNITED STATES. The motion of Dr. Bernard Diamond et al. for leave to file brief, as amici curiae, is granted. The petition for writ of certiorari to the United States Court of Appeals for the Second Circuit is denied. MR. JusTICE WHITE took no part in the consideration or decision of this motion and petition. Ephraim London and Leonard B. Boudin for petitioner. Solicitor General Cox, Assistant Attorney General Yeagley and Kevin T. Maroney for the United States. William E. Haudek for Dr. Bernard Diamond et al. Norman Dorsen and Melvin L. Wulf for the American Civil Liberties Union, as amicus curiae, in support of the petition. Reported below: 301 F. 2d 236. No. 962. Poss v. LIEBERMAN. The motion to dispense with printing the petition for certiorari is granted. The petition for writ of certiorari to the United States Court of Appeals for the Second Circuit is denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr. for respondent. Reported below: 299 F. 2d 358. No. 1022. BoARD OF EDUCATION OF THE CITY OF MEMPHIS ET AL. v. NORTH CROSS ET AL. The motion of Memphis Citizens' Council for leave to file brief, as amicus curiae, is granted. The petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit is denied. Larry B. Creson for petitioners. Marvin Brooks Norfleet for Memphis Citizens' Council. Reported below: 302 F. 2d 818. No. 927, Misc. JACKSON v. COCHRAN, CORRECTIONS DIRECTOR. Supreme Court of Florida. Certiorari denied. Petitioner pro se. Richard W. Ervin, Attorney General of Florida, and James G. Mahorner, Assistant Attorney General, for respondent. ORDERS. 945 370 U.S. June 25, 1962. No. 738, Misc. CALDWELL v. WILKINS, WARDEN. C. A. 2d Cir. Certiorari denied. No. 743, Misc. DEBARR v. MICHIGAN. Supreme Court of Michigan. Certiorari denied. Petitioner pro se. Frank J. Kelley, Attorney General of Michigan, Eugene Krasicky, Solicitor General, Robert Weinbaum and George Mason, Assistant Attorneys General, for respondent. No. 849, Misc. TILLERY v. MARONEY, CORRECTIONAL SUPERINTENDENT. C. A. 3d Cir. Certiorari denied. Reported below: See 294 F. 2d 12. No. 951, Misc. VERDON v. UNITED STATES. C. A. 8th Cir. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and David Rubin for the United States. Reported below: 296 F. 2d 549. No. 964, Misc. THOMPSON v. WASHINGTON. Supreme Court of Washington. Certiorari denied. F. W. Durnan for petitioner. Bruce T. Rinker for respondent. Reported below: 58 Wash. 2d 598,364 P. 2d 527. No. 970, Misc. Bosco v. NEW YoRK. Court of Appeals of New York. Certiorari denied. Petitioner prose. Isidore Dollinger and Walter E. Dillon for respondent. No. 984, Misc. SuLLIVAN v. HEINZE, WARDEN, ET AL. Supreme Court of California. Certiorari denied. Petitioner pro se. Stanley M osk, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Edsel W. Haws, Deputy Attorney General, for respondents. 946 OCTOBER TERM, 1961. June 25, 1962. 370U. S. No. 986, Misc. MORRISON v. ILLINOIS. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, for respondent. No. 1012, Misc. FROST v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome M. Feit for the United States. Reported below: 111 U.S. App. D. C. 414, 298 F. 2d 328. No. 1027, Misc. SAWYER v. UNITED STATES. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 297 F. 2d 535. No. 1039, Misc. THORNTON ET AL. v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioners prose. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. Reported below: 112 U. S. App. D. C. 57, 299 F. 2d 438. No. 1097, Misc. MIDDLETON v. NEw YORK. Court of Appeals of New York. Certiorari denied. No. 1143, Misc. SrMPSON v. UNITED STATES; No. 1156, Misc. WILLIAMS v. UNITED STATES; and No. 1243, Misc. TURBERVILLE v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioners prose. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 112 U. S. App. D. C. 400, 303 F. 2d 411. ORDERS. 947 370 U.S. June 25, 1962. No. 1032, Misc. OWENS v. ILLINOIS. Supreme Court of Illinois. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, for respondent. No. 1095, Misc. RoADHS v. TINSLEY, WARDEN. Supreme Court of Colorado. Certiorari denied. Petitioner prose. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and J. F. Brauer, Assistant Attorney General, for respondent. No. 1114, Misc. WRIGHT v. RHAY, PENITENTIARY SUPERINTENDENT, ET AL. Supreme Court of Washington. Certiorari denied. Petitioner prose. John J. O'Connell, Attorney General of Washington, and Basil L. Badley, Assistant Attorney General, for respondents. No. 1131, Misc. LAWRENSON v. UNITED STATES. C. A. 4th Cir. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky for the United States. Reported below: 298 F. 2d 880. No. 1139, Misc. THOMAS v. WIMAN, WARDEN. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Mac- Donald Gallion, Attorney General of Alabama, and John C. Tyson II I, Assistant Attorney General, for respondent. No. 1142, Misc. RACINOWSKI v. PATE, WARDEN. Criminal Court of Cook County, Illinois. Certiorari denied. No. 1147, Misc. MATHIS v. UNITED STATES. C. A. 6th Cir. Certiorari denied. Dale M. Quillen for petitioner. Solicitor General Cox for the United States. Reported below: 298 F. 2d 790. No. 1148, Misc. PANARELLO v. RHODE ISLAND. Supreme Court of Rhode Island. Certiorari denied. 948 OCTOBER TERM, 1961. June 25, 1962. 370 u. s. No. 1149, Misc. WRIGHT v. RHAY, PENITENTIARY SUPERINTENDENT, ET AL. Supreme Court of Washington. Certiorari denied. No. 1150, Misc. MEIKLE v. NEW YORK. Court of General Sessions of New York County, New York. Certiorari denied. No. 1151, Misc. REED v. RHAY, PENITENTIARY Su- PERINTENDENT. Supreme Court of Washington. Certiorari denied. No. 1152, Misc. BOYES v. UNITED STATES. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. Reported below: 298 F. 2d 828. No. 1154, Misc. McGANN v. UNITED STATES. C. A. 4th Cir. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. No. 1155, Misc. BoLDT v. UNITED STATES. Court of Claims. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Orrick and Alan S. Rosenthal for the United States. No. 1159, Misc. MORRISON v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. No. 1160, Misc. LANHAM v. KENTUCKY. Court of Appeals of Kentucky. Certiorari denied. ORDERS. 949 370 u. s. June 25, 1962. No. 1162, Misc. GRIFFIN v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States. No. 1163, Misc. STRICKLAND v. UNITED STATES. C. A. 8th Cir. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. Reported below: 295 F. 2d 186. No. 1165, Misc. MONTGOMERY v. EYMAN, WARDEN. Supreme Court of Arizona. Certiorari denied. No. 1166, Misc. SUPERINTENDENT. Certiorari denied. for respondent. WATTERS v. MYERS, CORRECTIONAL Supreme Court of Pennsylvania. Petitioner pro se. Wilson Bucher No. 1167, Misc. WASHINGTON v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Morris Lavine for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Felicw Dubrovsky for the United States. Reported below: 297 F. 2d 342. No. 1169, Misc. FLETCHER v. RAINES, WARDEN. Oklahoma Criminal Court of Appeals. Certiorari denied. No. 1174, Misc. GEORGE v. RANDOLPH, WARDEN. Supreme Court of Illinois. Certiorari denied. No. 1175, Misc. SPANNER v. WASHINGTON ET AL. Supreme Court of Washington. Certiorari denied. 950 OCTOBER TERM, 1961. June 25, 1962. 370 U.S. No. 1173, Misc. SPADY v. RHAY, PENITENTIARY Su- PERINTENDENT. Supreme Court of Washington. Certiorari denied. No. 1176, Misc. GAUDET v. CowEN ET AL. C. A. 5th Cir. Certiorari denied. Cecil M. Burglass, Jr. for petitioner. Reported below: 297 F. 2d 227. No. 1178, Misc. GARCIA v. TURNER. C. A. 10th Cir. Certiorari denied. George H. Searle for petitioner. A. Pratt Kesler, Attorney General of Utah, and Ronald N. Boyce, Assistant Attorney General, for respondent. Reported below: 297 F. 2d 881. No. 1181, Misc. DELLA UNIVERSITA v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney Gener.al Miller, Beatr'ice Rosenberg and Richard W. Schmude for the United States. Reported below: 298 F. 2d 365. No. 1182, Misc. BAGLEY v. WILSON, CORRECTIONAL SUPERINTENDENT, ET AL. Supreme Court of California. Certiorari denied. No. 1185, Misc. JOHNSON v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky for the United States. No. 1186, Misc. SMITH v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pr.o se. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. ORDERS. 951 370 U.S. June 25, 1962. No. 1187, Misc. JOHNSON v. ZIMMER ET AL. Supreme Court of New York, Kings County. Certiorari denied. No. 1189, Misc. CRISWELL v. HEINZE, WARDEN. Supreme Court of California. Certiorari denied. No. 1190, Misc. HALL v. lLLINOis. Supreme Court of Illinois. Certiorari denied. No. 1193, Misc. TucKER v. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1194, Misc. BoOTH v. BOLES, WARDEN. Supreme Court of Appeals of West Virginia. Certiorari denied. No. 1195, Misc. BRONSON v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States. No. 1197, Misc. PATTERSON v. ALABAMA ET AL. Supreme Court of Alabama. Certiorari denied. No. 1198, Misc. REED v. SIGLER, WARDEN. Supreme Court of Nebraska. Certiorari denied. No. 1201, Misc. BRADEY v. Rrn1coFF, SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. C. A. 4th Cir. Certiorari denied. John Bolt Culbertson for petitioner. Solicitor General Cox, Assistant Attorney General Orrick, Morton Hollander and David L. Rose for respondent. Reported below: 298 F. 2d 855. No. 1204, Misc. BROOKS v. RHAY, PENITENTIARY Su- PERINTENDENT. Supreme Court of Washington. Certiorari denied. 663026 0-62-) l 952 OCTOBER TERM, 1961. June 25, 1962. 370U.S. No. 1202, Misc. MITCHELL v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 297 F. 2d 407. No. 1205, Misc. JACEK v. UNITED STATES. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 298 F. 2d 429. No. 1207, Misc. BISNO v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and J. F. Bishop for the United States. Reported below: 299 F. 2d 711. No. 1208, Misc. DUNCAN v. CARTER, INSTITUTION SUPERINTENDENT. C. A. 9th Cir. Certiorari denied. S. Ward Sullivan and Arthur Warner for petitioner. Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for respondent. Reported below: 299 F. 2d 179. No. 1210, Misc. DEVINE v. NEw YORK. Court of Appeals of New York. Certiorari denied. Petitioner prose. Benj. J. Jacobson for respondent. No. 1211, Misc. COFIELD v. ALABAMA. Supreme Court of Alabama. Certiorari denied. Petitioner pro se. MacDonald Gallion, Attorney General of Alabama, James L. Screws, Assistant Attorney General, and Winston Huddleston, Special Assistant Attorney General, for respondent. Reported below: - Ala. -, 136 So. 2d 904. ORDERS. 953 370 u. s. June 25, 1962. No. 1209, Misc. YouNG v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 298 F. 2d 108. No. 1212, Misc. CRuz v. TEXAS. Court of Criminal Appeals of Texas. Certiorari denied. No. 1214, Misc. RowLAND v. NoRTH CAROLINA. Supreme Court of North Carolina. Certiorari denied. No. 1215, Misc. DEARHART v. VIRGINIA. Supreme Court of Appeals of Virginia. Certiorari denied. No. 1216, Misc. O'LEARY v. MACY , CHAIRMAN, U. S. C1v1L SERVICE COMMISSION, ET AL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Orrick and Alan S. Rosenthal for respondents. Reported below: 111 U.S. App. D. C. 357, 297 F. 2d 434. No. 1217, Misc. BoYLE v. MISSOURI. Supreme Court of Missouri. Certiorari denied. No. 1218, Misc. HuoHES, DOING BUSINESS AS HUGHES TRAILERS, v. L. B. SMITH, INC. C. A. 3d Cir. Certiorari denied. William J. Ruano for petitioner. No. 1220, Misc. SMITH v. NEW YORK. Court of Appeals of New York. Certiorari denied. No. 1221, Misc. BRUNSON v. NEw YoRK. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Benj. J. Jacobson for respondent. 954 OCTOBER TERM, 1961. June 25, 1962. 370U. S. No. 1222, Misc. ADKINS v. UNITED STATES. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States. Reported below: 298 F. 2d 842. No. 1223, Misc. SULLIVAN, ADMINISTRATRIX, ET AL. v. TREASURER OF SILVER Bow CouNTY, .MONTANA, ET AL. Supreme Court of Montana. Certiorari denied. No. 1225, Misc. LoPEZ v. TEXAS. Court of Criminal Appeals of Texas. Certiorari denied. No. 1226, Misc. Ruiz v. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1227, Misc. WEIRES v. NEw YoRK. Court of Appeals of New York. Certiorari denied. Petitioner prose. Joseph A. Mogavero, Jr. for respondent. No. 1228, Misc. BEEBE v. RHAY, PENITENTIARY SUPERINTENDENT. Supreme Court of Washington. Certiorari denied. No. 1229, Misc. PAULSON v. lLLINOIS. Supreme Court of Illinois. Certiorari denied. No. 1230, ~isc. MILLER v. BOLES, WARDEN. Supreme Court of Appeals of West Virginia. Certiorari denied. No. 1231, Misc. SMITH v. NASH, WARDEN. Supreme Court of Missouri. Certiorari denied. No. 1232, Misc. ScOTT v. THROSBY. Supreme Court of California. Certiorari denied. ORDERS. 955 370 u. s. June 25, 1962. No. 1233, Misc. HUFFMAN v. UNITED STATES. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 297 F. 2d 754. No. 1236, Misc. ARRINGTON v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. No. 1237, Misc. HOLSCHER v. MINNESOTA. Supreme Court of Minnesota. Certiorari denied. No. 1239, Misc. WILLIS v. CocHRAN, CORRECTIONS DIRECTOR. Supreme Court of Florida. Certiorari denied. No. 1240, Misc. CORONADO v. UNITED STATES. C. A. 5th Cir. Certiorari denied. Petitioner prose. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and J. F. Bishop for the United States. No. 1241, Misc. SARDO v. NEW YORK. Court of Appeals of New York. Certiorari denied. No. 1245, Misc. McTIER v. lLLINOIS. Supreme Court of Illinois. Certiorari denied. No. 1248, Misc. CHAPIN v. RHAY, PENITENTIARY SUPERINTENDENT. Supreme Court of Washington. Certiorari denied. No. 1249, Misc. SMITH v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and J. F. Bishop for the United States. Reported below: 299 F. 2d 574. 956 OCTOBER TERM, 1961. June 25, 1962. 370U.S. No. 1251, Misc. GRAVES v. MARYLAND. Court of Appeals of Maryland. Certiorari denied. T. Emmett McKenzie for petitioner. No. 1253, Misc. NELSON v. GLADDEN, WARDEN. Supreme Court of Oregon. Certiorari denied. No. 1254, Misc. DAVIS ET AL. v. GovERNMENT EMPLOYEES INSURANCE Co. ET AL. Supreme Court of Appeals of Virginia. Certiorari denied. Elmer B. Gower for petitioners. Robert J. Dimond for respondents. No. 1255, Misc. IN RE BRINSON. Supreme Court of California. Certiorari denied. No. 1256, Misc. HASSETT v. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1259, Misc. ScoTT v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assu;tant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States. No. 1260, Misc. HARDEN v. CALIFORNIA. C. A. 9th Cir. Certiorari denied. No. 1264, Misc. GRUBBS v. NEW YoRK. Appellate Division of the Supreme Court of New York, Third Judicial Department. Certiorari denied. No. 1265, Misc. JACKSON v. ILLINOIS. Supreme Court of Illinois. Certiorari denied. No. 1266, Misc. BROWN v. LAVALLEE, WARDEN. C. A. 2d Cir. Certiorari denied. ORDERS. 957 370U.S. June 25, 1962. No. 1267, Misc. KOPTIK v. UNITED STATES. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky for the United States. Reported below: 300 F. 2d 19. No. 1268, Misc. BROWN v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below: 112 U. S. App. D. C. 87, 299 F. 2d 468. No. 1270, Misc. JOHNSON v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. No. 1275, Misc. SULLIVAN v. OREGON. Supreme Court of Oregon. Certiorari denied. No. 1276, Misc. RICHTER v. RIEDMAN, WARDEN. Supreme Court of North Dakota. Certiorari denied. No. 1278, Misc. HoMCHAK v. NEW YORK. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Benj. J. Jacobson for respondent. No. 1280, Misc. THOMPSON v. BANNAN, WARDEN. C. A. 6th Cir. Certiorari denied. No. 1281, Misc. HUNT v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. No. 1284, Misc. BROWN v. PuRCELL, WARDEN, ET AL. Supreme Court of Iowa. Certiorari denied. 958 OCTOBER TERM, 1961. June 25, 1962. 370 U.S. No. 1285, Misc. CEDILLO v. TEXAS. Court of Criminal Appeals of Texas. Certiorari denied. No. 1286, Misc. McLEAN v. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1289, Misc. HALL v. CUNNINGHAM, PENITENTIARY SUPERINTENDENT. Supreme Court of Appeals of Virginia. Certiorari denied. No. 1290, Misc. JONES v. MISSOURI 'ET AL. Supreme Court of Missouri. Certiorari denied. No. 1291, Misc. HAMILTON v. NEW YoRK. Appellate Division of the Supreme Court of New York, Second Judicial Department. Certiorari denied. No. 1293, Misc. MARSHALL v. UNITED STATES. C. A. 10th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 299 F. 2d 141. No. 1294, Misc. SoTO v. FAY, WARDEN. Court of Appeals of New York. Certiorari denied. No. 1295, Misc. GERALD v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. No. 1297, Misc. WRIGHT v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States. ORDERS. 959 370U.S. .June 25, 1962. No. 1302, Misc. KRAWITZ v. McSHANE, U. S. MARSHAL, ET AL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Orrick and Alan S. Rosenthal for respondents. Reported below: 111 U.S. App. D. C. 359,297 F. 2d 436. No. 1303, Misc. MORRIS v. Rousos. Supreme Court of Texas. Certiorari denied. No. 1304, Misc. MORGAN v. HEINZE, WARDEN. Supreme Court of California. Certiorari denied. No. 1305, Misc. DECLARA v. NEw YoRK. Court of Appeals of New York. Certiorari denied. Frances Kahn for petitioner. No. 1310, Misc. GAGER v. SEIDEL, DOING BUSINESS AS BoB SEIDEL'S RESTAURANT, ET AL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Chester H. Gray, Milton D. Korman, Hubert B. Pair and John R. Hess for respondents. Reported below: 112 U. S. App. D. C. 135, 300 F. 2d 727. No. 1311, Misc. ERNST v. YEAGER. Supreme Court of New Jersey. Certiorari denied. Petitioner pro se. Norman Heine for respondent. No. 1312, Misc. MANGUM v. RANDALL. Supreme Court of North Carolina. Certiorari denied. No. 1313. Misc. ADAMS v. MYERS, CORRECTIONAL SUPERINTENDENT. C. A. 3d Cir. Certiorari denied. No. 1314, Misc. MARTIN v. WEST VIRGINIA. Supreme Court of Appeals of West Virginia. Certiorari denied. 960 OCTOBER TERM, 1961. .Tune 25, 1962. 370U.S . No. 1318, Misc. WILLIAMS v. NEW YoRK. Court of Appeals of Xew York. Certiorari denied. No. 1319, :\Iisc. MORRELL ET AL. v. °CNITED STATES. C. A. 9th Cir. Certiorari denied. Jay A. Darwin for petitioners. Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr. for the Pnited States. Reported below: 297 F. 2d 662. No. 1320, Misc. LACRUE v. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1321, Misc. OYLER v. ALASKA. Supreme Court of Alaska. Certiorari denied. No. 1322, Misc. OLIVER v. UNITED STATES. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 299 F. 2d 352. No. 1323, Misc. WOODSON V. 1frERS, CORRECTIONAL SUPERINTENDENT. Supreme Court of Pennsylvania. Certiorari denied. No. 1328, Misc. FLETCHER v. CAVELL, WARDEN. C. A. 3d Cir. Certiorari denied. No. 1329, Misc. ANDREWS v. LANGLOIS, WARDEN. Supreme Court of Rhode Island. Certiorari denied. No. 1330, Misc. NADILE v. NEw YoRK. Court of Appeals of New York. Certiorari denied. No. 1335, Misc. LEWIS v. MICHIGAN. Supreme Court of Michigan. C{!rtiorari denied. ORDERS. 961 370 u. s. June 25, 1962. No. 1333, Misc. CASE v. NORTH CAROLINA. Supreme Court of North Carolina. Certiorari denied. Petitioner pro se. T. W. Bruton, Attorney General of North Carolina, and Harry W. McGalliard, Assistant Attorney General, for respondent. No. 1337, Misc. BURELL v. NORTH CAROLINA. Supreme Court of North Carolina. Certiorari denied. Petitioner pro se. T. W. Bruton, Attorney General of North Carolina, and Harry W. McGalliard, Assistant Attorney General, for respondent. No. 1338, Misc. BROWN v. NEW YoRK. Court of Appeals of New York. Certiorari denied. Petitioner pro se. Benj. J. Jacobson for respondent. No. 1339, Misc. NUNES v. PATE, WARDEN. Supreme Court of Illinois. Certiorari denied. No. 1340, Misc. SPECHT v. TINSLEY, WARDEN. Supreme Court of Colorado. Certiorari denied. Petitioner pro se. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and J. F. Brauer, Assistant Attorney General, for respondent. No. 1342, Misc. PUCKETT v. NORTH CAROLINA. Supreme Court of North Carolina. Certiorari denied. No. 1346, Misc. BARNETT V. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1347, Misc. MARION v. CALIFORNIA. Supreme Court of California. Certiorari denied. No. 1351, Misc. GoonsoN v. VIRGINIA. Supreme Court of Appeals of Virginia. Certiorari denied. .. 962 OCTOBER TERM, 1961. June 25, 1962. 370 U.S. No. 1353, Misc. BLOCKER v. CALIFORNIA ET AL. District Court of Appeal of California, Second Appellate District. Certiorari denied. No. 1359, Misc. BANKS v. WARDEN, MARYLAND PENITENTIARY. Court of Appeals of Maryland. Certiorari denied. No. 1360, Misc. BARBER v. UNITED STATES. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assista?J,t Attorney General Miller and Beatrice Rosenberg for the United States. No. 1389, Misc. PEREIRA ET AL. v. NEW YoRK. Court of Appeals of New York. Certiorari denied. Rudolph Stand, John Cardone and Oscar Gonzalez-Suarez for petitioners. H. Richard Uviller for respondent. No. 1402, Misc. HEADLEY v. NEW YoRK. Court of Appeals of New York. Certiorari denied. Petitioner pro se. H. Richard Uviller for respondent. No. 1410, Misc. LAWRENSON v. REID, JAIL SUPERINTENDENT. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. Petitioner pro se. Solicitor General Cox for respondent. No. 1413, Misc. LusTERINO v. NEW YoRK. Appellate Division of the Supreme Court of New York, Second Judicial Department. Certiorari denied. Petitioner pro se. Benj. J. Jacobson for respondent. No. 1420, Misc. DAWSON v. BOMAR, WARDEN. Supreme Court of Tennessee, Middle Division. Certiorari denied. George E. Barrett for petitioner. ORDERS. 963 370 u. s. June 25, 1962. No. 1431, Misc. IN RE SNEBOLD. Supreme Court of California. Certiorari denied. No. 1445, Misc. ANDERSON v. W1MAN, WARDEN. Supreme Court of Alabama. Certiorari denied. Petitioner pro se. MacDonald Gallion, Attorney General of Alabama, and John C. Tyson III, Assistant Attorney General, for respondent. Reported below: - Ala. - , 139 So. 2d 352. No. 709, Misc. MILLER v. DISTRICT CouRT OF IowA IN AND FOR LEE CouNTY. Petition for writ of certiorari to the Supreme Court of Iowa denied in light of the representations of the State Attorney General as to the adequacy of state remedies. Petitioner prose. Evan Hultman, Attorney General of Iowa, for respondent. No. 867, Misc. RoGERS v. LoursIANA. Supreme Court of Louisiana. Certiorari denied. The motion of G. Wray Gill and Gerard H. Schreiber for leave to withdraw appearances as counsel for petitioner is granted. Jack P. F. Gremillion, Attorney General of Louisiana, and Scallan E. Walsh, Assistant Attorney General, for respondent. No. 1118, Misc. EVERETT v. NEw YoRK. Court of Appeals of New Yark. Certiorari denied. MR. JusTICE DouGLAS is of the opinion that certiorari should be granted. Petitioner prose. Edward S. Silver and Frank Di Lalla for respondent. Reported below: 10 N. Y. 2d 500, 180 N. E. 2d 556. No. 990, Misc. MILLER v. MILLER. The motion to correct the docket and the petition for writ of certiorari to the United States Court of Appeals for the Second Circuit are denied. Reported below: 296 F. 2d 283. 964 OCTOBER TERM, 1961. June 25, 1962. 370 u. s. No. 880, Misc. TITMUS v. TINSLEY, WARDEN. Petition for writ of certiorari to the Supreme Court of Colorado denied on the representations of the State Attorney General that the courts of Colorado will consider and pass upon a proper petition for furnishing a record without the prepayment of costs. Petitioner pro se. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and J. F. Brauer, Assistant Attorney General, for respondent. No. 1001, Misc. JACKSON v. CALIFORNIA. Supreme Court of California. Certiorari denied. MR. JusTICE DOUGLAS is of the opinion that certiorari should be granted. Petitioner pro se. Stanley M osk, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General, for respondent. No. 1079, Misc. SIMCOX v. MADIGAN, WARDEN. C. A. 9th Cir. Certiorari denied. MR. JUSTICE DouGLAS is of the opinion that certiorari should be granted. Robert E. Hannon for petitioner. Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and David Rubin for respondent. No. 1038, Misc. MILLER v. PLEASURE, HosPITAL SUPERINTENDENT. The motions to correct the docket and to strike the respondent's brief are denied. Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit denied. Petitioner pro se. Louis J. Lefkowitz, Attorney General of New York, Irving Galt, Assistant Solicitor General, Philip Watson and John J. O'Grady, Assistant Attorneys General, for respondent. Reported below: 296 F. 2d 283. ORDERS. 965 370U. S. June 25, 1962. No. 1252, Misc. MORGAN v. CALIFORNIA. Superior Court of California, County of Kern. Certiorari denied. MR. JusTICE DouGLAS and MR. JusTICE BRENNAN are of the opinion that certiorari should be granted. William A. Carver for petitioner. Rehearing Denied. No. 394. GEAGAN ET AL. v. GAVIN, CORRECTIONAL SUPERINTENDENT, ante, p. 903; No. 493. ENOCHS, DISTRICT DIRECTOR OF INTERNAL REVENUE, v. WILLIAMS PACKING & NAVIGATION Co., INc., ante, p. 1; No. 773. TAYLOR ET AL. v. LOUISIANA, ante, p. 154; No. 835. WooTEN ET AL. v. TEXAS, 369 U.S. 885; No. 852. WooDARD ET AL., DOING BUSINESS AS WooDARD MoToR Co., v. GENERAL MoToRs CoRP., 369 U.S. 887; No. 802, Misc. BURTON v. FLORIDA, ante, p. 905; and No. 828, Misc. BANKS v. MADIGAN, WARDEN, ante, p. 905. Petitions for rehearing denied. No. 40. BECK v. WASHINGTON, 369 U.S. 541; No. 241. SuNKIST GROWERS, INc., ET AL. v. WINCKLER & SMITH CITRUS PRODUCTS Co. ET AL., ante, p. 19; No. 283. SALEM v. UNITED STATES LINES Co., ante, p. 31; No. 323. VAUGHAN V. ATKINSON ET AL., 369 U. S. 527; No. 475. GALLEGOS v. COLORADO, ante, p. 49; and No. 667. RICHARDSON, EXECUTRIX, ET AL. v. MooREMcCoRMACK LINES, INc., 368 U. S. 989. Petitions for rehearing denied. MR. JusTICE WHITE took no part in the consideration or decision of these applications. No. 46. HUTCHESON v. UNITED STATES, 369 U. S. 599. Petition for rehearing denied. MR. JUSTICE BLACK and MR. JUSTICE WHITE took no part in the consideration or decision of this application. 966 OCTOBER TERM, 1961. June 25, 1962. 370 U.S. No. 109. THOMAS ET ux. v. PATTERSON, DISTRICT DIRECTOR OF INTERNAL REVENUE, 368 U. S. 837. The motion for leave to file petition for rehearing is denied. MR. JUSTICE WHITE took no part in the consideration or decision of this application. STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS, AT CONCLUSION OF OCTOBER TERMS-1959, 1960, AND 1961 ... I '-" "' "' O> ""I OnIOINAL APPELLATE TOTALS MISCELLANEOUS I Terms_ ---- -------- ------ --- - , 1959 1 1960 1 1961 I 1959 1 1960 J 1961 .I 1959 1-1960 F l--19_5_9_1_1_9_6_0...,.1_1_9_61 Numbero(casesondockets_____ 12 1 12 13 1,047 11,046 1,062 1,119 1,255 1,510 12, 178 12,313 1 2,585 Number disposed of during terms_ 0 1 0 860 887 860 962 1, 0-lO 1, 297 1, 822 1, !}28 2, 157 Number remaining on dockets___ 12 I 11 13 I 187 159 202 157 21.'i 213 I 356 1 385 I 428 Distribution o( cases disposed of during terms: Original cases ______________ - - - Appellate cases on merits ______ _ Petitions for certiorari_ _______ _ Miscellaneous docket applications __ _ JUNE 27, 1962 TERMS 1959 I 1960 I 1961 0 I l 215 259 645 628 962 Jl, 0-lO 0 195 665 1, 297 Distribution of cases remaining on docket.s: Original cases _______________ _ _ Appellate cases on merits ___ ___ _ Petitions for certiorari_ _______ _ MiHcellaneous docket applications _ TERMS 1959 1 1960 1 1961 12 116 71 157 11 85 7-1 215 13 118 8-l 213 INDEX ADDICTS. See Constitutional Law, I. ADMINISTRATIVE PROCEDURE. See Agriculture; Armed Forces; Postal Service. ADMIRALTY. 1. Jones Act - Seamen - Damages for personal injuries- Evidence.- In suit by seaman under Jones Act to recover damages for injuries sustained by fall when going to post in crow's nest, it was error for Court of Appeals to order new trial on ground that jury could not determine, in absence of testimony by expert in naval architecture, a claim that the shipowner had failed to provide necessary and feasible safety devices; evidence did not support award of future maintenance for three years. Salem v. United States Lines Co., p. 31. 2. Longshoremen's Compensation Act-Coverage-Possibility of recovery under state law-Election of remedies.-Injuries to workers on new vessels under construction on navigable waters not excluded from coverage of Longshoremen's and Harbor Workers' Compensation Act by § 3 (a) thereof although recovery for such injuries may validly be had under state workmen's compensation law; acceptance of payments under state law did not preclude recovery under Longshorrmen's Act. Calbeck v. Travelers Ins. Co., p. 114. 3. Longshoremen - Negligence - Unseaworthiness - Injuries from noxious fumes in hold of ship.-In suit by longshoreman against owners of ship and grain elevator to recover for injuries resulting from noxious fumes given off in hold of ship by grain being loaded from elevator, evidence was sufficient to support findings that ship was not unseaworthy and that neither defendant knew or should have known that grain had been improperly fumigated by someone else at an inland point. Morales v. City of Galveston, p. 165. AGENCY. See Criminal Law. AGRICULTURE. See also Antitrust Acts, 3. Milk marketing orders-Requirement of "compensatory payments" by importers of milk from outside marketing region.-Requirement that those who buy milk elsewhere and bring it into marketing region for sale as fluid milk make "compensatory payments" to producers 969 970 INDEX. AGRICULTURE-Continued. who regularly supply the region, held invalid because of conflict with § 8c (f) {G) of Agricultural Marketing Agreement Act. Lehigh Valley Coop. v. United States, p. 76. ALIENS. See Trading with the Enemy Act. ANTITRUST ACTS. See also Jurisdiction. 1. Clayton Act-Merger of competing corporations-Injunction.- In suit by Government to enjoin merger of two corporations in shoe industry as violative of § 7 of Clayton Act, record sustained District Court's finding that merger might substantially lessen competition, and its judgment enjoining merger and requiring divestiture affirmed. Brown Shoe Co. v. United States, p. 294. 2. Clayton Act-Price discriminations-Milk-Chain grocers and independent grocers.--Sales of milk at prices which discriminated between independently owned grocery stores and grocery store chains violated § 2 (a) of Clayton Act when class cost justifications submitted to District Court did not satisfy defendants' burden under § 2 (b) of showing that their discriminatory pricing plans reflected only a "due allowance" for actual cost differences. United States v. Borden Co., p. 460. 3. Clayton Act-Sherman Act-Exemption of agricultural cooperatives.- In view of exemption from antitrust laws accorded to agricultural cooperatives by § 6 of Clayton Act and § 1 of Capper-Volstead Act, a treble damage judgment under Clayton Act against two corporations utilized by citrus fruit growers to process and market their fruit collectively could not be sustained on theory that such corporations conspired solely between themselves and with a third corporation, which was another processing agency of the growers, to restrain and monopolize trade in citrus fruit and by-products. Sunkist Growers v. Winckler & Smith Citrus Co., p. 19. 4. Sherman Act-Coverage-Officers of corporations.-An officer of a corporation is subject to prosecution under § 1 of Sherman Act whenever he knowingly participates in effecting an illegal contract, combination or conspiracy-regardless of whether he is acting in a representative capacity. United States v. Wise, p. 405. 5. Shennan Act-Clayton Act-Suit for treble damages-Directed verdict for defendants.-In treble damage suit under § 4 of Clayton Act, alleging monopolization and conspiring and attempting to monopolize trade and commerce in vanadium industry, District Court erred in instructions to jury and in excluding certain evidence, and Court of Appeals erred in holding that evidence was insufficient and that verdict should have been directed for defendants. Continental Ore Co. v. Union Carbide Corp., p. 690. INDEX. APPORTIONMENT. See Constitutional Law, III. ARBITRATION. See Labor, 3--4. ARMED FORCES. See also Veterans. 971 Regular Army-Removal of officer-lnjunction.-After administrative proceedings by Army Board of Inquiry and Board of Review under 10 U.S. C. (Supp. II) §§ 3792 and 3793 had resulted in recommendation that Secretary remove a commissioned officer in Regular Army, but before Secretary had taken any action under § 3794, suit to enjoin him from doing so on grounds that administrative proceedings were unconstitutional was premature. Beard v. Stahr, p. 41. ATTACHMENTS. See Veterans. BANKS. See Veterans. BREACH OF THE PEACE. See Constitutional Law, II, 3. BUS STATIONS. See Constitutional Law, II, 3. CALIFORNIA. See Constitutional Law, I. CAPPER-VOLSTEAD ACT. See Antitrust Acts, 3. CENSORSHIP. See Postal Service. CERTIORARI. See Procedure, 1-3. CHAIN GROCERY STORES. See Antitrust Acts, 2. CITRUS FRUIT. See Antitrust Acts, 3. CIVIL RIGHTS ACT. See Constitutional Law, III. CLAYTON ACT. See Antitrust Acts, 1-5; Contempt, l. COLORADO. See Constitutional Law, II, 2. COMMERCE. See Antitrust Acts, 1-5; Taxation, 3-4. COMPETITION. See Antitrust Acts, 1, 3--4. CONFESSIONS. See Constitutional Law, II, 2. CONFLICTS OF LAWS. See Labor, 3. CONGRESSIONAL INVESTIGATIONS. See Contempt, 2; Procedure, 1. CONSPIRACY. See Antitrust Acts, 3-5. CONSTITUTIONAL LAW. See also Armed Forces; Courts; Postal Service; Procedure, 1, 3--4; Taxation, 4. I. Cruel and Unusual Punishment. State statute making status of narcotics addiction a criminal of!ense.-A California statute, construed as making status of nar972 INDEX. CONSTITUTIONAL LAW-Continued. cotics addiction a criminal offense though the accused had never used narcotics in the State or been guilty of antisocial behavior there, held invalid as inflicting cruel and unusual punishment. Robinson v. California, p. 660. II. Due Process. 1. Apportionment of state legislature.-In suit under Civil Rights Act alleging violations of Due Process Clause of Fourteenth Amendment by New York State's constitutional and statutory provisions governing apportionment of State Legislature, judgment dismissing complaint set aside and case remanded for further consideration in light of Baker v. Carr, 369 U.S. 186. W. M. C. A. v. Simon, p. 190. 2. State criminal trials-Confessions.-Circumstances in which confession was obtained from 14-year-old boy while he was held for five days without seeing lawyer, parent or other friendly adult violated due process, and his conviction of murder, which may have rested on such confession, cannot stand. Gallegos v. Colorado, p. 49. 3. State criminal trials-Breach of peace-Refusal of Negroes to leave white waiting room.-When sole evidence to support convictions of Negroes in state court for breach of the peace was that they refused to leave bus-station waiting room customarily reserved for white people, evidence was insufficient and convictions were reversed. Taylor v. Louisiana, p. 154. 4. State conviction for contempt-Constitutional issues not presented by record.-When petitioner claimed that use of intercepted conversation with brother in jail violated his constitutional rights and invalidated his conviction in state court for refusal to answer questions of state legislative investigating committee, but record showed that two of the questions were not related to intercepted conversation and refusal to answer them was sufficient to support judgment, his constitutional claim was not presented by the record. Lanza v. New York, p. 139. III. Equal Protection. Apportionment of state legislature.-In suit under Civil Rights Act alleging violation of Equal Protection Clause of Fourteenth Amendment by New York State's constitutional and statutory provisions governing apportionment of State Legislature, judgment dismissing complaint set aside and case remanded for further consideration in light of Baker v. Carr, 369 U. S. 186. W. M. C. A. v. Simon, p. 190. INDEX. CONSTITUTIONAL LAW-Continued. IV. Freedom of Religion. 973 Public schools-Recital of state-prescribed prayer.-Under First and Fourteenth Amendments, state officials may not compose an official prayer and require that it be recited in public schools at beginning of each school day. Engel v. Vitale, p. 421. V. Freedom of Speech. Freedom of speech-Contempt of court-Statement of sheriff in political campaign-Obstruction of grand jury proceedings.-Record did not support finding that sheriff's statement in midst of political campaign criticizing judge for instructing grand jury to investigate charges of bloc voting by Negroes and use of money to obtain their votes presented clear and present danger to administration of justice, and his conviction by state court of contempt violated his right to freedom of speech. Wood v. Georgia, p. 375. CONTEMPT. See also Constitutional Law, II, 4; V; Procedure, 1. l. Criminal contempt-Conduct of lawyer during civil trial- Obstruction of justice.-Lawyer's persistent efforts to protect interest of client in civil, suit under Clayton Act for treble damages, notwithstanding erroneous adverse ruling of trial judge, held not sufficiently disruptive of the trial court's business to "obstruct the administration of justice" within meaning of 18 U. 8. C. § 401. In re McConnell, p. 230. 2. Contempt of Congress--Sufficiency of indictment-Statement of question under inquiry.-Under 2 U.S. C. §§ 192 and 194, an indictment for refusal to answer questions asked by congressional committee must state the question under inquiry at time of defendant's refusal to answer. Silber v. United States, p. 717. COOPERATIVE MARKETING ASSOCIATIONS. See Antitrust Acts, 3. CORPORATIONS. See Antitrust Acts, 1, 3-4. COST JUSTIFICATIONS. See Antitrust Acts, 2. COUNSEL. See Constitutional Law, II, 2; Contempt, 1; Procedure, 5; Taxation, 1. COURTS. See also Constitutional Law, II, 4; V; Contempt, 1; Jurisdiction; Procedure. Constitutional or legislative courts-Court of Claims-Court of Customs and Patent Appeals.-The Court of Claims and the Court of Customs and Patent Appeals are constitutional courts created 974 INDEX. COURTS-Continued. under Art. III, and their judges, including retired judges, may serve on District Courts and Courts of Appeals by designation of Chief Justice under 28 U.S. C. §§293 {a) and 294 {d). Glidden Co. v. Zdanok, p. 530. CRIMINAL LAW. See also Antitrust Acts; Constitutional Law, I; II, 2-4; V; Contempt, 1-2; Procedure, 1. Forgery-Unauthorized agency endorsement of check.-One who endorses a government check by signing the name of the payee and then his own, as agent, when in fact he has no such authority, is not thereby guilty of forgery under 18 U.S. C. § 495. Gilbert v. United States, p. 650. CRUEL AND UNUSUAL PUNISHMENT. See Constitutional Law, I. DAIRIES. See Agriculture; Antitrust Acts, 2, 4. DAMAGES. See Admiralty, 1-3; Antitrust Acts, 3, 5; Contempt, 1; Labor, 4--5. DELA WARE. See Taxation, 1. DIRECTED VERDICTS. See Antitrust Acts, 5. DISABILITY BENEFITS. See Veterans. DISCRIMINATION. See Antitrust Acts, 2; Constitutional Law, II, 3; III. DIVORCE. See Taxation, 1. DUE PROCESS. See Constitutional Law, II; Taxation, 3-4. EAVESDROPPING. See Constitutional Law, II, 4. EIGHTH AMENDMENT. See Constitutional Law, I. ELECTION OF REMEDIES. See Admiralty, 2. ELECTIONS. See Constitutional Law, III. EQUAL PROTECTION OF LAWS. See Constitutional Law, III; Taxation, 4. EVIDENCE. See Admiralty, 1, 3; Antitrust Acts, 5; Constitutional Law, II, 3. EXPEDITING ACT. See Jurisdiction. EXPERT TESTIMONY. See Admiralty, 1. FEDERAL RULES OF CIVIL PROCEDURE. See Procedure, 5. INDEX. 975 FEDERAL SAVINGS AND LOAN ASSOCIATIONS. See Veterans. FEDERAL-STATE RELATIONS. See Constitutional Law, I; II, 1-4; III; IV; V; Labor, 2; Procedure, 3-4; Taxation, 3-4. FIRST AMENDMENT. See Constitutional Law, IV; V; Postal Service. FORGERY. See Criminal Law. FOURTEENTH AMENDMENT. See Constitutional Law, I; II, 1-4; III; IV; V. FREEDOM OF PRESS. See Postal Service. FREEDOM OF RELIGION. See Constitutional Law, IV. FREEDOM OF SPEECH. See Constitutional Law, V. FREIGHT CARS. See Taxation, 4. FUMIGATION. See Admiralty, 3. GEORGIA. See Constitutional Law, V. GRAIN. See Admiralty, 3. GRAND JURIES. See Constitutional Law, V. GROCERS. See Antitrust Acts, 2. HOMOSEXUALS. See Postal Service. HUSBAND AND WIFE. See Taxation, 1. INCOME TAX. See Procedure, 2; Taxation, 1. INDICTMENTS. See Contempt, 2. INJUNCTIONS. See Antitrust Acts, 1-2; Armed Forces; Labor, 2-3; Procedure, 4; Taxation, 2. INSECTICIDES. See Admiralty, 3. INSTRUCTIONS TO JURIES. See Antitrust Acts, 5. INSURANCE. See Procedure, 2; Taxation, 3. INTERNAL REVENUE CODE. See Taxation, 1-2. INTERSTATE COMMERCE. See Antitrust Acts, 1-5; Taxation, 3-4. JONES ACT. See Admiralty, 1. JUDGES. See Courts; Procedure, 4. JUDICIAL POWER. See Constitutional Law, III; Courts. 976 INDEX. JURIES. See Antitrust Acts, 5. JURISDICTION. See also Constitutional Law, II, 4; Courts: Labor, 2; Procedure; Taxation, 2--4. Supreme Court-Direct appeal from District Court-Antitrust case-"Final" judgment.-Judgment of District Court enjoining appellant from having or acquiring any interest in competing corporation, requiring divestiture, and ordering appellant to propose plan for carrying out Court's order of divestiture was "final" judgment within meaning of § 2 of Expediting Act, and Supreme Court had jurisdiction of direct appeal. Brown Shoe Co. v. United States, p. 294. JUVENILES. See Constitutional Law, II, 2. LABOR. See also Admiralty, 1-3; Taxation, 2. 1. National Labor Relations Act-Right of nonunion employees to act in concert-Walkout because of cold.-Discharge of nonunion employees for walking off job together because shop was "too cold" violated § 8 (a) (1) by interfering with their right under § 7 to act in concert for mutual .aid or protection; rule against leaving work without permission was not justifiable "cause" for discharge under § 10 (c). Labor Board v. Washington Aluminum Co., p. 9. 2. National Labor Relations Act-Dispute between shipowners and unions of marine engineers-Jurisdiction of state court to enjoin picketing.-In suit by shipowners to enjoin picketing and other protected activities by unions of marine engineers, dispute was arguably within jurisdiction of National Labor Relations Board, and state court was precluded from exercising jurisdiction, notwithstanding claim that only "supervisory" :i:,ersonnel were involved. Marine Engineers v. Interlake Steamship Co., p. 173. 3. Labor Management Relations Act-Norris-LaGuardia Act-Suit by employer to enjoin strike in violation of agreement.-Notwithstanding § 301 of Labor Management Relations Act, 1947, § 4 of Norris-LaGuardia Act bars injunction against strike, picketing, etc., by union and its officers and members in violation of collective bargaining agreement. Sinclair Refining Co. v. Atkinson, p. 195. 4. Labor Management Relations Act-Suit by employer for damages for strike in violation of agreement-Arbitration.-Suit by employer under § 301 of Labor Management Relations Act to recover damages for strike or work stoppage in violation of collective bargaining agreement stated cause of action against unions but not against individual members; contract did not bind employer to arbitrate its claim against union for damages. Atkinson v. Sinclair Refining Co., p. 238. INDEX. 977 LABOR-Continued. 5. Labor .Management Relations Act-Suit by employer for damages for strike in violation of agreement-Arbitration.-Employer's claim against union for damages for strike in violation of collective bargaining agreement was within compulsory arbitration provisions of agreement, and suit for damages under § 301 of Labor Management Relations Act was properly stayed pending completion of arbitration. Drake Bakeries v. Bakery Workers, p. 254. LA WYERS. See Constitutional Law, II, 2; Contempt, 1 ; Procedure, 5; Taxation, 1. LEGISLATURES. See Constitutional Law, III; Contempt, 2; Procedure, 1. LONGSHOREMEN. See Admiralty, 2-3. LOUISIANA. See Constitutional Law, II, 3. MAILS. See Postal Service. MAINTENANCE. See Admiralty, 1. MARINE ENGINEERS, See Labor, 2. McCARRAN-FERGUSON ACT. See Taxation, 3. MERGERS. See Antitrust Acts, 1. MILK. See Agriculture; Antitrust Acts, 2, 4. MINNESOTA. See Labor, 2. MONOPOLY, See Antitrust Acts, 1, 3, 5. NARCOTICS. See Constitutional Law, I. NATIONAL LABOR RELATIONS ACT. See Labor, 1-2. NEGLIGENCE. See Admiralty, 1-3; Procedure, 5. NEGROES. See Constitutional Law, II, 3; V. NEW TRIAL. See Admiralty, 1; Antitrust Acts, 5. NEW YORK. See Constitutional Law, II, 4; III. NORRIS-LaGUARDIA ACT. See Labor, 3. NUDITY. See Postal Service. OBSCENITY. See Postal Service. OBSTRUCTION OF JUSTICE. See Contempt, 1. OFFICERS. See Antitrust Acts, 4; Armed Forces. PENNSYLVANIA. See Taxation, 4. PERSONAL INJURIES. See Admiralty, 1-3; Procedure, 5. 978 INDEX. PICKETING. See Labor, 2-3. POLITICS. See Constitutional Law, III; Y. POSTAL SERVICE. Mails-"Obscene" material-Magazines containing pictures of nude or nearly nude men.-Administrative order of Post Office Department barring from mails as "obscene" under 18 U. S. C. § 1461 magazines containing pictures of nude or nearly nude men and advertisements offering similar pictures for sale, all of which appealed almost exclusively to homosexuals, held invalid. Manual Enterprises v. Day, p. 478. PRAYERS. See Constitutional Law, IV. PRICE DISCRIMINATION. See Antitrust Acts, 2. PROCEDURE. See also Admiralty, 1-3; Antitrust Acts, 3, 5; Armed Forces; Constitutional Law, II, 1-4; V; Contempt; Courts; Jurisdiction; Labor, 2-5; Taxation, 2-4. 1. Supreme Court-Certiorari-Plain error not briefed or argued.- When indictment for contempt of Congress was defective under Russell v. United States, 369 U. S. 749, District Court denied timely motion to dismiss it, and issue was not presented to Court of Appeals or briefed or argued in Supreme Court, the latter could, at its option, notice such plain error and reverse judgment sustaining conviction. Silber v. United States, p. 717. 2. Supreme Court-Certiorari-Review of no importance except to litigants.-When it appeared that outcome of suit for refund of income taxes depended upon facts and review would be of importance to no one except litigants, writ of certiorari dismissed as improvidently granted. Rudolph v. United States, p. 269. 3. Supreme Court-Certiorari-Constitutional issues not presented by record.-When petitioner claimed that use of intercepted conversation with brother in jail violated his constitutional rights and invalidated his conviction in state court for refusal to answer questions of state legislative investigating committee, but record showed that two of the questions were not related to intercepted conversation and refusal to answer them was sufficient to support judgment, his constitutional claim was not presented by the record. Lanza v. New York, p. 139. 4. District Courts-Suit challenging state statute as conflicting with Federal Constitution-Need for three-judge court.-Three-judge court should have been convened under 28 U. S. C. §§ 2281, 2284 to hear and determine suit to enjoin enforcement of state statute because IJ j INDEX. 979 PROCEDURE-Continued. of conflict with Federal Constitution. Idlewild Bon Voyage Liquor Corp. v. Epstein, p. 713. 5. District Courts-Dismissal of suit for want of prosecution-Sua sponte and without notice.-District Court, acting sua sponte and without prior notice, had inherent right to dismiss for want of prosecution long-pending personal injury suit against railroad based on diversity of citizenship; right not restricted by Federal Rule of Civil Procedure 41 (b) to cases in which defendant moves for dismissal; plaintiff bound by his lawyer's conduct. Link v. Wabash R. Co., p. 626. PROPERTY SETTLEMENTS, See Taxation, 1. PUBLIC SCHOOLS. See Constitutional Law, IV. RACIAL DISCRIMINATION. See Constitutional Law, II, 3. RAILROADS. See Procedure, 5; Taxation, 4. RELIGIOUS FREEDOM. See Constitutional Law, IV. REMEDIES. See Admiralty, 1. RULES OF CIVIL PROCEDURE. See Procedure, 5. SAVINGS AND LOAN ASSOCIATIONS. See Veterans. SCHOOLS. See Constitutional Law, IV. SEAMEN. See Admiralty, 1. SEAWORTHINESS. See Admiralty, 3. SECRETARY OF AGRICULTURE. See Agriculture. SECRETARY OF ARMY. See Armed Forces. SHERMAN ACT. See Antitrust Acts, 3-5. SHIPOWNERS. See Admiralty, 1-3; Labor, 2. SHOES. See Antitrust Acts, 1. SOCIAL SECURITY. See Taxation, 2. STAYS. See Labor, 5. STOCK TRANSFERS. See Taxation, 1. STRIKES. See Labor, 2-5. SUPERVISORY PERSONNEL. See Labor, 2. SUPREME COURT. See also Jurisdiction; Procedure, 1-3. Tribute to MR. JUSTICE BLACK, p. v. TAFT-BARTLEY ACT. See Labor, 3-5. 980 INDEX. TAXATION. See also Procedure, 2. 1. Income tax-Transfers of stock-Husband to divorced wife in property settlement-Deductibility of fee paid wife's attorney.- Transfer by taxpayer in Delaware to divorced wife, in return for release of her marital claims, of stock which had appreciated in market value and which was solely property of the husband, was taxable event under Internal Revenue Code of 1954 and not division of property between co-owners; husband not entitled to deduct fee paid to wife's attorney for advice about tax consequences of transaction. United States v. Davis, p. 65. 2. Social security and unemployment taxes--Suit to enjoin collection.- A suit to enjoin collection of social security and unemployment taxes was barred by § 7421 (a) of the Internal Revenue Code of 1954, even though District Court found that they were not, in fact, payable and that their collection would destroy plaintiff's business. Enochs v. Williams Packing & Navigation Co., p. 1. 3. State taxes--Wholly out-of-state insurance transactions covering property in State.-In view of history and language of McCarran- Ferguson Act, a State may not tax wholly out-of-state insurance transactions covering property within the State. State Board of Insurance v. Todd Shipyards Corp., p. 451. 4. State taxes-Personal property-Situs-Freight cars.-Pennsylvania could tax all freight cars, wherever located, owned by railroad incorporated and located in Pennsylvania, except cars proved to have tax situs in another State. Central R. Co. v. Pennsylvania, p. 607." TEXAS. See Taxation, 3. THREE-JUDGE COURT. See Procedure, 4. TRADING WITH THE ENEMY ACT. Property subject to seizure-Bank account created a/ ter liberation but before termination of war.-Right to sue for recovery.-Power of Alien Property Custodian to seize from Dutch corporation bank account created in United States in 1948, three years after liberation of Netherlands but before formal termination of state of war in 1951; right of owner to sue for recovery. Handelsbureau La Mola v. Kennedy, p. 940 (Opinion of BLACK, J., dissenting from denial of certiorari) . TRANSPORTATION. See Constitutional Law, II, 3; Taxation, 4. TRIAL. See Contempt, 1. UNEMPLOYMENT INSURANCE. See Taxation, 2. UNIONS. See Labor, 2-5. L INDEX. VANADIUM. See Antitrust Acts, 5. VETERANS. 981 Disability benefits-Exemption from attachment-Deposits in federal savings and loan association.-Disability benefits paid to incompetent veteran by United States and deposited by his committee or guardian in a federal savings and loan association held exempted from attachment by 38 U. S. C. § 3101 (a) in circumstances of case. Porter v. Aetna Casualty & Surety Co., p. 159. WORDS. 1. "Attempt to monopolize."-Sherman Act, § 2. Continental Ore Co. v. Union Carbide Corp., p. 690. 2. "Concerted activities for the purpose of ... mutual aid or protection."-National Labor Relations Act, § 7. Labor Board v. Washington Aluminum Co., p. 9. 3. "Discharged for cause."-N ational Labor Relations Act, § 10 ( c). Labor Board v. Washington Aluminum Co., p. 9. 4. "Due allowance for differences in the cost."-Clayton Act, § 2 (a). United States v. Borden Co., p. 460. 5. "Final judgment."-Expediting Act. Brown Shoe Co. v. United States, p. 294. 6. "Forges."-18 U. S. C. § 495. Gilbert v. United States, p. 650. 7. "Labor dispute."-Norris-LaGuardia Act, § 4. Sinclair Refining Co. v. Atkinson, p. 195. 8. "Labor dispute."-National Labor Relations Act,§ 2 (a). Labor Board v. Washington Aluminum Co., p. 9. 9. "Labor organization."-National Labor Relations Act, § 8 (b). Marine Engineers v. Interlake Steamship Co., p. 173. 10. "Monopolize."-Sherman Act, § 2. Continental Ore Co. v. Union Carbide Corp., p. 690. 11. "Obscene."-18 U. S. C. § 1461. Manual Enterprises v. Day, p. 478. 12. "Obstruct the administration of justice."-18 U. S. C. § 401. In re McConnell, p. 230. 13. "Person."-Sherman Act, §§ 1, 8. United States v. Wise, p. 405. 14. "Substantially to lessen competition."-Clayton Act, § 7. Brown Shoe Co. v. United States, p. 294. 15. "Tend to create a monopoly."-Clayton Act, § 7. Brown Shoe Co. v. United States, p. 294. WORKMEN'S COMPENSATION. See Admiralty, 2. U.S. GOYHNMENT PRINTING OP'PICE: IHZ 0-113021 ' l --OAMss37429